Opinion Manipur corrective

The AFSPA provides legal immunity to armed forces personnel but the powers under the Act can be exercised only under specific conditions and circumstances.

The Supreme Court has done well to dismiss a plea to recall its July 2016 order that called for a probe into 1,528 cases of alleged fake encounters by security forces and the state police in Manipur during 1979-2012. It has underlined a message that is very valuable in a constitutional system: That no institution, howsoever exceptional or difficult the conditions under which it operates, can function outside the pale of the law and with disregard to the constraints and responsibilities imposed by due process.

In its 2016 order, the apex court had said, “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… This is the requirement of a democracy and the requirement of preservation of the rule of law…” The curative petition moved by the Centre had claimed that the order imposed restrictions on the security forces and crippled its anti-terror and anti-insurgency operations. It argued that even probing the claims of extra-judicial killings would bring down the morale of the security personnel. The five-judge bench, by rejecting the petition, has sent out a clear message against the culture of impunity that often prevails in states fighting insurgency. In the backdrop of the violence in Kashmir Valley, the Supreme Court’s warning in 2016 that “democracy would be in grave danger” if armed forces were permitted to kill citizens on a mere allegation or suspicion that they were enemies of the state and that “smoking guns” must come under judicial scrutiny to examine if excessive or retaliatory force was used by security forces has enormous significance. It should inject a dose of caution and diligence in the conduct of security forces battling insurgency under the protection of special laws like the Armed Forces Special Powers Act (AFSPA).

Advertisement

The AFSPA provides legal immunity to armed forces personnel but the powers under the Act can be exercised only under specific conditions and circumstances. In the Manipur case, the Hegde Commission, constituted under the direction of the SC, had probed a sample of six of the 1,528 cases listed in the petition and found that not one of the encounters was genuine, none was in self-defence, and not one victim had a terrorist background or a criminal record. The security personnel fight militancy and terrorism in extremely tough circumstances, which is why the courts uphold laws like the AFSPA. But such laws certainly do not offer immunity from investigation and prosecution in cases of transgression and criminal conduct.