The recent order of the Supreme Court on the applicability of the Armed Forces’ Special Powers Act (AFSPA) and the immunity it confers to the actions of military personnel is a landmark in the rights discourse in the country, where one may say that the court adopts an approach consistent with constitutional guarantees of life and liberty and dismantles the incessant and unreflective argument based on extreme notions of security and order. The order, which is a precursor to a final finding on the deaths of 1,528 persons in the state of Manipur, gives hope that the court has become aware, and has taken seriously, the gross human rights violations that have occurred under the mantle of the AFSPA. Indeed, several parts of the order give rise to such an understanding.
First, it is extremely significant that the court does not agree with the argument that a law and order situation, or sustained disturbance in any area, gives rise to a situation of “war”. It categorically states that any military intervention under the proclamation that a particular area is “disturbed” must be to supplement and help restore civil authority, and not to supplant the same completely by military administration. Within the territory of the country, a constitutional government and its authority must always be the norm, and any deviation from the same cannot be unlimited, either in scope or time. It is especially noticed by the court that Manipur, with the exception of the Imphal Municipal Area, has been constantly notified as a disturbed area since 1958. This fact signifies best that military deployment under the guise of the Disturbed Areas Act and immunity under the AFSPA often become so intertwined with notions of order that they become permanent features of governance themselves, and not the means to an end.
Second, for perhaps the first time, the Supreme Court looks into the inquiries conducted, or lack thereof, in specific cases of deaths caused by the armed forces or the state police under the AFSPA. Of the six cases that are looked into, it is clear that none of those were killed in the purported manner indicated by the security forces. In all cases, it was found that the encounters were not genuine and the use of force had been excessive. Indeed, this is the main crux of the argument against the AFSPA, that it encourages a disregard for legal processes such as arrest and detention in favour of the use of brute force and extra judicial executions. Here, the court finds that the preliminary evidence points strongly in the direction that activists have been arguing for decades, namely that the AFSPA is often used as a tool for unneeded and excessive force and violence. Added to the complication was the fact that the inquiries that were conducted into the deaths by the army itself, were found to be unreliable. The court states that there is no evidence to even believe that the cases reached the human rights division of the army or the ministry of defence.
Third, the Supreme Court in the present case has reiterated that there is a difference in the manner in which a person who violates an order in force in a disturbed area should be treated as compared to an enemy combatant belonging to a hostile country. The fact that an Indian citizen, in a disturbed area, is violating a prohibitory order, does not give rise to an automatic right for the security forces to treat him with force or to assume that he constitutes an enemy in that situation. The court looks at the methods of practice prescribed by the army itself and states that the use of force and especially excessive and retaliatory force on citizens is unjustified.
Finally, the court also holds that in such cases, where the use of force is excessive or the encounter itself not genuine, there is nothing which precludes a criminal investigation and inquiry under ordinary criminal law. Both the Army Act, and the Code of Criminal Procedure (CrPC), allow for an inquiry to be conducted before a judicial magistrate for crimes committed by the personnel of the force while on duty. The general nature of the CrPC is that it applies to all crimes under the Indian Penal Code unless otherwise excluded. In the present case, it is Section 6 of the AFSPA which precludes any prosecution, suit or legal proceeding against personnel of the security forces. The court holds that if the deaths of civilians are unjustified, there is no question of blanket immunity as under Section 6 and that there cannot be impunity where loss of human life is concerned. The scheme, then, seems to be that in case of killings carried out in disturbed areas by the security forces, an inquiry must be conducted into all cases to determine whether the killing was justified or not. If it is held not to be, then the personnel involved do not enjoy immunity from criminal prosecution.
The order, which will be one in a series of orders to come, as more cases being investigated reach their conclusions, has shone a much needed light on the dark underbelly of the operation of the AFSPA in several parts of the country and the effects it has had on governance and civil liberties. It is a welcome step in extending the rule of law and fundamental rights to an area where there has been much need for it for decades.
(This article first appeared in the print edition under the headline ‘A law unto itself’.)