The Supreme Court on Friday held that neither the Army nor the Manipur police can use excessive force under the provisions of the Armed Forces (Special Powers) Act (AFSPA) or the Unlawful Activities Prevention Act to deal with militants or insurgency.
A bench of Justices Madan B. Lokur and Uday Lalit gave this ruling on a PIL filed by Extra-judicial Execution Victim Families Association alleging 1,528 fake encounter deaths in Manipur in the last decade and demanding a probe by a special investigation team.
The bench said if members of the armed forces are deployed and employed to kill Indian citizens on the mere allegation or suspicion that they are the “enemy”, “not only the rule of law but our democracy would be in grave danger”. It said use of excessive force or retaliatory force by the Manipur police or the armed forces of the Union under AFSPA is not permissible.
It said therefore, even while dealing with the “enemy”, the rule of law would apply and, if there have been excesses beyond the call of duty, those members of the Manipur police or the armed forces who have committed excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against in a court of law, and not necessarily by the Army in court martial proceedings.
The bench said as is evident from the “Do’s and Don’ts and the Ten Commandments of the Chief of Army Staff”, the Army believes in this ethos and accepts that this principle would apply even in an area declared a disturbed area under AFSPA and against militants, insurgents and terrorists. There is no reason why this principle should not apply to the other armed forces of the Union and the Manipur police, it said.
The bench rejected the Centre’s submission that a person carrying weapons in violation of prohibitory orders in disturbed areas of Manipur is ipso facto an “enemy” or that the security forces in Manipur in such a case are dealing with an “enemy” as defined in Section 3(x) of the Army Act.
The bench said, “This is far too sweeping and general an allegation and cannot be accepted as it is or at its face value. Each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine the facts. In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy. Killing an ‘enemy’ is not the only available solution and that is what the Geneva Conventions and the principles of international humanitarian law tell us.” It added: “An allegation of excessive force resulting in the death of any person by the Manipur police or the armed forces in Manipur must be thoroughly enquired into. For the time being, we leave it open for decision on who should conduct the inquiry and appropriate directions in this regard will be given later.”
