When it comes to the Armed Forces (Special Powers) Act, successive governments at the Centre have been on the same page. New Delhi has accepted in toto the army top brass argument that without AFSPA, the defence forces will be fighting militants with both hands tied. The Central government has never sanctioned prosecution of errant soldiers and officers accused of using excessive force under AFSPA since the Home ministry’s input has always been the same — that such a step will demoralize the army rank and file. This line of reasoning has now been thrown out by the Supreme Court, which ruled on Friday that ‘excessive force’ cannot be used by the army during counter-insurgency operations in areas declared disturbed under AFSPA. In a stern rebuke, the SC bench said: “When the state uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution, or as it is called ‘administrative liquidation’”. Such deaths caused by the State ‘is destructive of the rule of law and plainly unconstitutiol’, observed the apex court, deciding to order a probe into the ‘smoking guns’ of 1,528 alleged fake encounter cases in Manipur since 1978. What is more, the Supreme Court has held that proceedings can be initiated before a crimil court in the event of the death of a person due to excessive or retaliatory force by defence personnel.
The Central government’s stand in court that AFSPA gives immunity to armed forces personnel from being prosecuted by crimil courts, thus stands rejected. Holding sacrosanct the requirement of a democracy and preservation of rule of law and individual liberties, the SC bench observed: “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both”. About probing encounter deaths, the apex court made it clear that even if the victim turns out to be ‘an enemy and an unprovoked aggressor’, the question for enquiry would still remain ‘whether excessive or retaliatory force was used to kill that enemy’. The Supreme Court also refused to accept that an ‘unconventiol war’-like situation prevails in Manipur, noting that it is more a public order situation equivalent to interl disturbance. That the AFSPA continues to be enforced in Manipur nearly six decades after its imposition — indicates failure of both the civil administration and the armed forces, the court said. Normalcy not being restored ‘cannot be a fig leaf’ for indefinite deployment of the armed forces ‘as it would mock at our democratic process’, the SC bench pointed out.
It remains to be seen how this ruling of ‘no absolute immunity for unjustified deaths’ is interpreted in the coming days, as the army top brass has been raising fears that militants can use civil rights groups or locals to file lawsuits against the army. Ected in 1958 to combat ga insurgency, the AFSPA gives security forces powers to shoot to kill, search houses and destroy property ‘likely’ to be used by rebels, arrest ‘without warrant’ a person who has committed a cognizable offence or ‘about to commit’ such offence on ‘reasoble suspicion’. AFSPA negates Article 21 granting right to life and Article 22 which says that a person cannot be arrested without being informed and being denied the right to consult and be defended by a lawyer. It is a draconian law much abused on the ground by rogue securitymen; the Jeevan Reddy committee set up in 2005 to review AFSPA recommended that it should be repealed. This is not likely to happen anytime soon, even after the Supreme Court’s strong criticism. But hopefully, it will bring forth some much-needed soul searching, so that the army authority institutes more meaningful enquiries in future over AFSPA abuses and conducts court martial proceedings strictly against proven offenders.