India: AFSPA, Yet Another Opportunity For the Judiciary
Ms. Anjuman Ara Begum
The Commission of Inquiry, constituted by the Supreme Court of India, in Writ Petition (Criminal) 129 of 2012 [Extra
Judicial Execution Victims Families' Association and Another (petitioners) Against Union of India and Others
(respondents)] and Writ Petition (Civil) 445 of 2012 [Suresh Singh (petitioner) Against Union of India and Others
(respondents)] filed its report to the Court on 30 March 2013. This investigation by the Commission was chaired by
Justice N. Santhosh Hegde (retired Judge of the Supreme Court and former Solicitor General of India) along with Mr. J.
M. Lyngdoh (former Chief Election Commissioner of India) and Dr. Ajai Kumar Singh (former Director General of Police,
Karnataka state) as members. Clearly, this inquiry highlights, once again, the practice of false encounter killings by
security forces in six cases investigated in Manipur. A highlight of the report is the finding that the Armed Forces
Special Powers Act, 1958, (AFSPA) needs to be looked at from the point of state responsibility and accountability rather
than relying on assurances forwarded by the armed forces in 1997 in the Naga People's Movement for Human Rights vs.
Union of India case (NPMHR onwards, AIR 1998 SC 431.)
In NPMHR, the Supreme Court of India examined all sections of the Act and upheld the validity of AFSPA on the ground
that it is not ultra vires the Constitution. The Court held that provisions of the Act do not violate Articles 14, 19
and 21 of the Constitution. However, the Court did not take into consideration the actual implementation of practice of
the Act and its earlier judgment in Sabastian Hongrey vs. Union of India [1984 AIR 1026, 1984 SCR (3) 544]. The Court
simply reduced the concept of state responsibility and accountability in a list of 'Dos and Don't's' to be followed by
the uniformed forces of the state. These guidelines were, up to that point, unknown to the public and were revealed in
affidavits filed by the Union of India in the course of litigation and the judiciary was convinced with it beyond a
reasonable doubt.
However, after 16 years, the Writ Petition (Criminal) 129 of 2012 [Extra Judicial Execution Victims Families'
Association and Another (petitioners) Against Union of India and Others (respondents) filed in 2012 exists now to fill
the gap. This petition listed 1528 cases of alleged false encounter killings committed by security forces in Manipur and
demanded a proper investigation. The Court formed the Hegde Commission to investigate six sample cases. Details of this
report can be found in the Asian Human Rights Commission (AHRC) statement, INDIA: Court report suggests frightening administrative failure in Manipur.
Theoretically and practically, the AFSPA violates the right to life. It provides a wide scope for the use of abusive
lethal force in the name of security. The AFSPA allows all officers of the armed forces to use lethal force. AFSPA
violates both national and international norms concerning inalienable human rights guarantees. Section 4 of AFSPA
empowers the armed forces to use lethal force against suspects, thereby violating the fundamental principle of criminal
justice; 'innocent until proven guilty beyond a reasonable doubt'. Such an arrangement resulted into systemic fake
encounter killings.
In 1997, the Supreme Court upheld that, Section 4 (a) is not in violation of the right to life guaranteed under Article
21 of the Constitution. Instead, the Court issued a series of guidelines to the armed forces to be followed when the
armed forces use Section 4(a) of the AFSPA. Section 4(a) is not independent of these 'Do's and Don'ts'. Any violation of
the guidelines would amount to arbitrary and extra-judicial execution and arbitrary deprivation of the right to life or
false encounters. Several case studies, documented by human rights organisations, concluded that in reality, these
guidelines are cosmetic. 1528 allegations of false encounters put forth in the current petition are examples of it.
However, intentional negligence of these guidelines became permissible in 2001, when the Supreme Court permitted
detention by the army for the purpose of extracting 'operational intelligence' from the person detained by armed forces.
Army authorities obtained an order from the Supreme Court in August 2001, explicitly empowering them with the authority
to detain and interrogate suspects in the name of collection of "operational intelligence" if not 'substantive
intelligence'.
Violation of the guidelines was again allowed in 2007 through the verdict in Masooda Parveen vs. Union of India and
others [AIR 2007 SC 1840. Writ Petition (civil) 275 of 1999, decided on May 12, 2007]. In this case, the court explained
the 'difficulty of implementing the list of 'Do's and Don'ts' and observed, 'the application of the guidelines cannot be
mechanically applied and must of necessity relate to the facts of each case'. The Supreme Court in this case held that
anyone produced to the courts after 5 days is acceptable, 'as sometimes armed forces may require that much time for
necessary questioning'.
Most of the false encounters committed in north-east India preceded illegal detention by the armed forces. Vague
interpretations by the judiciary that diluted state responsibility to mere guidelines and further into exemptions of due
process, that acted as catalyst to a wide-range of abuses by the armed forces, resulting in a large number of murders,
committed with impunity.
Before the Hegde Commission's report, several inquiry commissions were constituted by the state government of Manipur
under the Commissions of Inquiry Act, 1952. Though these commissions submitted reports to the government, most of them
are yet to see the light of day. It would not be wrong to presume that these reports probably narrated the sagas of
murders or the false encounter killings and hence were kept secret. The much publicised Jeevan Reddy Committee report
on the AFSPA, was leaked to the media, and has not yet officially released.
Finally, the immunity provided under Section 6 of the AFSPA further encouraged the armed forces to commit murders in the
name of encounters. Section 6 prohibits legal proceedings against the armed forces without prior sanction and instance
of granting sanctions from prosecution is unheard of in the region.
The Santhosh Hegde Commission's report on six cases of false encounter deaths is just the tip of the iceberg. The
Commission observed: "if one innocent person is killed by police or other security forces in a false encounter, it
creates a tremendous upsurge of hatred...ordinary people know who is innocent. People even know whether an innocent
person was killed deliberately or by mistake..." However, the report is an eye-opener for the Apex Court to rectify
the NPMHR and subsequent judgments that has cost so many lives in states like Manipur, where AFSPA is implemented. The
report provides ample scope for the Apex Court to understand two things: (i) the nature of its actual implementation and
(ii) the wide scope of abuse of power granted under the AFSPA.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia,
documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these
rights. The Hong Kong-based group was founded in 1984.
ENDS