Supreme Court of India has unfolded the Constitution of the Republic in a judgment delivered on July 8, 2016 on the question of human right violations, ‘not in the context of the accused but in the context of the victims [dead and alive] as a result of ‘fake encounters or extra judicial executions’ in the State of Manipur and have examined how to combat terrorism under the rule of law, and have cautioned the armed forces for excessive use of force.
Petitioners brought the allegations of ‘fake encounters or extra-judicial killings’ by ‘the Manipur police and the armed forces, including the Army.’ The petitioners have cited 1528 cases of extra-judicial killings, and majority of them have been killed in cold blood. Not a single FIR was ever recorded, and ‘the cries of anguish of the families of the victims have fallen on deaf ears’.
Union of India in their affidavit has given a broad overview of insurgency in the north-east of India. It is stated that a large number of terrorist groups are active in Manipur State with varying demands including outright secession from India. They have safe heaven across the boarders, and have been indulging in the cold blooded murder of dignitaries, securities force personnel and innocent citizens including political leaders, bureaucratic functionaries etc. These groups have resorted to burning copies of the Constitution of India and the National Flags and have, to a certain extent, subverted the local administration and muzzled the voice of the people by violence and threats of violence.
The Court has examined in detail and has observed thus:
Be that as it may, what is of significance is that this Court has implied that the armed forces of the Union could be deployed in public order situations to aid the civil power and on such deployment, they shall operate in cooperation and conjunction with the civil administration and until normalcy is restored. This view is predicated on and postulates that normalcy would be restored within a reasonable period. What would be the consequence if normalcy is not restored for a prolonged or indeterminate period? In our opinion, it would be indicative of the failure of the civil administration to take effective aid of the armed forces in restoring normalcy or would be indicative of the failure of the armed forces in effectively aiding the civil administration in restoring normalcy or both.
Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process and would be a travesty of the jurisdiction conferred by Entry 2A of the Union List for the deployment of the armed forces to normalize a situation particularly of an internal disturbance.
The Court has quoted with approval the following passage from Prof. Aharon Barak:
The Judge in a Democracy, page 283, Princeton University. The author is former President of the Supreme Court of Israel.
While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts:
We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.
While giving necessary direction for the right to know to what had happened to the victims, the Court has observed thus:
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.
That law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours.
The guidelines in the judgment may beckon to other South Asian countries to follow.
Petitioners brought the allegations of ‘fake encounters or extra-judicial killings’ by ‘the Manipur police and the armed forces, including the Army.’ The petitioners have cited 1528 cases of extra-judicial killings, and majority of them have been killed in cold blood. Not a single FIR was ever recorded, and ‘the cries of anguish of the families of the victims have fallen on deaf ears’.
Union of India in their affidavit has given a broad overview of insurgency in the north-east of India. It is stated that a large number of terrorist groups are active in Manipur State with varying demands including outright secession from India. They have safe heaven across the boarders, and have been indulging in the cold blooded murder of dignitaries, securities force personnel and innocent citizens including political leaders, bureaucratic functionaries etc. These groups have resorted to burning copies of the Constitution of India and the National Flags and have, to a certain extent, subverted the local administration and muzzled the voice of the people by violence and threats of violence.
The Court has examined in detail and has observed thus:
Be that as it may, what is of significance is that this Court has implied that the armed forces of the Union could be deployed in public order situations to aid the civil power and on such deployment, they shall operate in cooperation and conjunction with the civil administration and until normalcy is restored. This view is predicated on and postulates that normalcy would be restored within a reasonable period. What would be the consequence if normalcy is not restored for a prolonged or indeterminate period? In our opinion, it would be indicative of the failure of the civil administration to take effective aid of the armed forces in restoring normalcy or would be indicative of the failure of the armed forces in effectively aiding the civil administration in restoring normalcy or both.
Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process and would be a travesty of the jurisdiction conferred by Entry 2A of the Union List for the deployment of the armed forces to normalize a situation particularly of an internal disturbance.
The Court has quoted with approval the following passage from Prof. Aharon Barak:
The Judge in a Democracy, page 283, Princeton University. The author is former President of the Supreme Court of Israel.
While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts:
We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.
While giving necessary direction for the right to know to what had happened to the victims, the Court has observed thus:
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.
That law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours.
The guidelines in the judgment may beckon to other South Asian countries to follow.
(The writer is a Senior Advocate of Supreme Court of Bangladesh.)
M.I. Farooqui
