Manipur violence: What are ‘shoot at sight’ orders and how can they be imposed?

What was the Manipur High Court directive?

The Meiteis are the largest community in Manipur, making up roughly 64.6% of its population. In a plea before the High Court, the Meiteis argued that they were recognised as a tribe before the 1949 merger of the princely state of Manipur with the Union of India. Owing to a loss of their identity as a tribe in the aftermath of the merger, the demand for ST status was felt within the community to “save the ancestral land, tradition, culture, and language” of the Meiteis. Thus, the Meiteis sought inclusion in the ST list on account of the community being “victimised without any constitutional safeguards to date”.

On April 19, the Manipur High Court observed that the issue had not been decided due to the state government’s negligence in not sending a recommendation to the Centre for the inclusion of the Meitei community in the ST list to date. Directing the Manipur government to consider the case of the Meiteis’ inclusion in the ST list “expeditiously” within four weeks, the court disposed of the case.

This resulted in opposition from the existing tribes within Manipur on the grounds that the Meiteis were already dominant in terms of both population and political representation, adding that their Manipuri language finds a place in the Eighth Schedule. Further, sections of the predominantly Hindu Meiteis are already classified under the SC or OBC groups and consequently, have access to opportunities associated with the status.

The high court order stands at the center of tensions between the Kukis and the Meiteis and finally escalated into violent clashes between the two communities over the past few days. As the situation worsened on Thursday, the state’s Home Department issued “shoot-at-sight” orders “in extreme cases”.

What do the “shoot-at-sight” orders say?

The orders issued in the name of the state governor “in view of the prevailing law and order situation” in Manipur seek to maintain “public order and tranquility” and “authorize all District Magistrates, Sub-Divisional Magistrates and all Executive Magistrates/Special Executive Magistrates detailed by the District Magistrate concerned to issue Shoot at sight orders” in extreme cases where “all forms of persuasion, warning, reasonable force, etc. had been exhausted under the provisions of law under CrPC, 1973 and the situation could not be controlled”.

What provisions of law allow the issuance of “shoot-at-sight” orders?

A “shoot-at-sight” or firing order may be passed in terms of the statutory powers relating to the arrest or prevention of offences or for disbanding unlawful assemblies under Sections 41-60 and Sections 149-152 of the CrPC, 1973.

More specifically, Section 46 (2) of the CrPC enables the use of force in the course of arresting a person. If a person “forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest,” the provision says. However, Section 46(3) places a limit on this executive power by saying that the provision does not give a right “to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.”

Moreover, Section 3(a) of the Armed Forces Special Powers Act, 1958, which was subsequently amended by the Armed Forces (Assam and Manipur) Special Powers Amendment Act of 1972, empowers the armed forces to use force in “disturbed areas”. A notification in the Official Gazette declaring an area as “disturbed” may be passed by a “Governor of the State of the Administrator of that Union Territory or the Central Government, as the case may be.”

Further, provisions of the Indian Penal Code, of 1860 also deal with this issue. Section 81 of the IPC says that “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.” Besides this, Section 76 exempts such acts, if done by a person “who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.” The illustration to Section 76 IPC goes so far as to say that if a soldier “fires on a mob by the order of his superior officer, in conformity with the commands of the law”, he has committed no offence.

More importantly, Section 144 of the CrPC enables the use of wide powers while dealing with urgent cases of “apprehended danger” or nuisance through the issuance of orders. Within this provision lies Section 144(3), which allows curfew orders to be issued in respect of a “particular individual,” “persons residing in a particular place or area,” or “the public generally when frequenting or visiting a particular place or area.” The executive usually relies on the powers conferred on it by Section 144 to issue “shoot-at-sight orders”. However, the Gujarat High Court’s 1974 ruling in “Jayantilal Mohanlal Patel vs Eric Renison And Anr.” held that the “law and order forces of the State of Gujarat have no authority to shoot at anyone for a mere breach of the curfew order.”

What have the courts said?

In Jayantilal, the Gujarat High Court declared the shoot-at-sight orders imposed for breaking a curfew “void”. It stated that “the executive directions contained in the ‘Important Announcement’ in so far as they hold out to the members of the public the threat that a curfew-breaker for a mere breach of the curfew order is liable to be shot at is ultra vires their powers and also ultra vires Section 144 of the Code of Criminal Procedure, Section 188 of the Indian Penal Code, and Articles 20 and 21 of the Constitution and are, therefore, void and of no effect whatsoever.”

In the 1974 ruling, Justice SH Seth also observed that in a society that is governed by a democratic constitution and the rule of law, state or government actions will ” always be controlled by law.” Adding that the right to life and personal liberty is the greatest prize of the Indian people, given to them by the Constitution, the court reiterated that the Constitution is “founded upon the will of the people and the Rule of Law.” Therefore, it said that any threat issued by the executive to the life of a citizen without the authority of law must be viewed very seriously.

However, this was followed by a 1981 Apex Court ruling, given by Justice YV Chandrachud led Bench, in the case of “State Of West Bengal vs Shew Mangal Singh & Ors” which dealt with the conflict between the executive’s power of extreme coercive action and an individual’s right to liberty. At a time when West Bengal was reeling from the effects of lawlessness owing to the Naxal Movement, two brothers were shot at point-blank range by a police officer. While the police officer was convicted by a trial court, the High Court acquitted him.

When the matter reached the top court, the order of acquittal given by the Calcutta High Court was upheld. In its judgment, the court said that “since the situation prevailing at the scene of the offence was such as to justify the order given by the Deputy Commissioner of Police to open fire, the respondent can seek the protection of that order and plead in defence that they acted in obedience to that order and therefore, they cannot be held guilty of the offence which they are charged.” In doing so, the court also relied on the illustration of Section 76 of the IPC.