At Long Last, a Silver Lining in the Darkest of Clouds!

By: Shubhangi Bhargava

On July 14, 2017, The Supreme Court of India delivered a landmark judgment in the case of Extrajudicial Execution Victim Families Association (EEVFAM) & Anr. v. UOI & Ors., which came as a hope for the victims of the dark, like little drizzles in the bout of drought. It decided on the issue of harsh and insensitive extrajudicial killings or ‘fake encounters’ (as it is called euphemistically) at the hands of the army officials in the garb of national security and the authoritative Armed Forces Special Powers Act (hereinafter AFSPA). These cases are very much prevalent and have become an integral part of the counterinsurgency operations in the state of Manipur today.

In 2013, the Apex Court had set up a three-member commission to gather the facts regarding the killing of six persons as alleged by the petitioners. After the commission reported that none of the six killings were genuine encounters, the court recognised that allegations, in this case, couldn’t be summarily ignored and there is a need of a deeper probe. Also, the court relied on the judgment of Naga People’s Movement of Human Rights,[1] which requires that every death caused by the armed forces should be thoroughly enquired into to keep a check on the misuse of power. Therefore, the essential question to be addressed was put up by the court as “Do the next of kin of deceased victims have any rights at all, other than receipt of monetary compensation?”[2]

The Apex Court finally ordered Central Bureau of Investigation (hereinafter CBI) to set up a Special Investigating Team (hereinafter SIT) to enquire into alleged fake encounter killings in Manipur. The court passed this order by rejecting the army’s submission that it had already investigated such killings and hence there was no need for any further probe. The court upheld the supremacy of law by stressing upon one of the principles of natural justice, “No man can be a judge in his own case” and ordered the Manipur Police to refrain from carrying out an independent investigation because of the overall un-cooperative and apathetic impression of the Manipur police which has not even filed a single FIR against any policeman or army officer for the fake encounters.

The verdict is of huge importance because it has recapitulated the significance of Article 32 of the Constitution of India. The court has rejected the preliminary objection of the state regarding the non-maintainability of the petition and has held that such petitions must be entertained by the Apex Court. It reasoned the maintainability by holding that ordinary criminal law remedy would provide no adequate answer because the allegations are against the law enforcement authorities who are themselves the alleged perpetrators of gross human rights violations, in a place where internal disturbance has prevailed for decades. While deciding on the subject in question, it has endorsed the noteworthiness of the right to know the truth with respect to the acts committed and know who the perpetrators of such acts were. However, this right was originally framed for enforced disappearances; it has gradually extended to extrajudicial executions and torture as well. The legal basis of this right is found in Articles 32 and 33 of the Additional Protocol to the Geneva Conventions, of 12 August 1949.

Along with that, defying the arguments put forward by the Attorney General, the court has made some important observations: (a) The situation in Manipur is not akin to a war-like situation but is merely the situation of internal disturbance. (b) It would be too far sweeping for the state to contend that a person carrying weapons in violation of prohibitory orders in the disturbed area of Manipur is ipso facto an enemy as defined in Section 3(x) of the Army Act. It also held that even if he is an enemy, killing an ‘enemy’ is not the only available solution according to Geneva Conventions and also in accordance with the instructions issued by the Army Headquarters as List of Dos and Don’ts while acting under the Armed Forces (Special Powers) Act, 1958. (c) Only monetary compensation is no legal recourse to the crimes of such heinous nature. (d) Lapse in time is no excuse to get away from the due process of law and punishment, specifically when the delay is due to the inaction of the state that had the obligation of taking the cognizance of the cases. (e) The armed forces do not substitute the civil power, they only supplement it and it continues to function until normalcy is restored.

The judgment is significant because it has struck a shot at the impunity enjoyed by the Army officials in escaping the impending charges under the law. They have been committing illegal acts under the guise of their uniform and duty by asserting the innocent people as militant, insurgent or a terrorist with no proof to that effect. The court has shown its concern for the citizens who are constantly living under the shadow of the gun that is wielded with impunity and has held that it is a demoralising and unsettling proposition in a democracy like ours. The Supreme Court has time and again (earlier in July 2016) harboured its reservations about the use of ‘excessive or retaliatory force’ by the uniformed personnel and has rightly held that, “There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”[3] The court has highlighted the exigency of scrutiny in such cases and this judgment has indeed generated a little optimism for justice in the prevalence of such miserable times.

[1]Naga People’s Movement of Human Rights v Union of India (1998) 2 SCC 109.

[2]Extrajudicial Execution Victim Families Association (EEVFAM) v Union of India (2016) SCC 14 578 (2).

[3] Extrajudicial Execution Victim Families Association (EEVFAM) v Union of India (2016) 14 SCC 536.

(Shubhangi is currently a student at Government Law College, Mumbai.)