Killing an 'enemy' is not the answer: SC

“It is not the encounter which should be under scrutiny but the smoking gun.”

The Supreme Court, which ordered on Friday that all encounter deaths in a disturbed area caused by armed forces should be probed, said: “It would not be correct to say that merely because a person was carrying arms in a prohibited area, he or she becomes an enemy or an active member of a banned or unlawful organisation... Before a person can be branded as a militant or a terrorist or an insurgent, there must be the commission or some attempt or semblance of a violent overt act.”

The Bench of Justices Madan B. Lokur and U.U. Lalit said a thorough enquiry should be ordered into “encounter” killings in disturbed areas because the “alleged enemy is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.”

“If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegations or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger,” Justice Lokur wrote.

The Supreme Court held that even if the enquiry proved that the victim was an enemy and an “unprovoked aggressor”, the security forces should still answer to the question whether excessive or retaliatory force beyond the call of duty was used.

“Killing an ‘enemy’ is not the only available solution,” Justice Lokur observed.

The court, without making any comment of its own, referred to how the petitioners said that in “most cases the arms are planted on victims.”

To the dual questions as to what and who decides whether “excessive or retaliatory force” was used, the court said that “it is not the encounter or operation which should be under scrutiny but the smoking gun.”

On the question who should conduct the probe into an encounter death to see whether it was of an “indefensible, mala fide and vindictive” nature, the apex court said the enquiry should be done by the Criminal Investigation Department at the instance of the National Human Rights Commission (NHRC).

The court observed that there are several ‘dos and don’ts’ in the defence forces’ rule book and there is no justification whatsoever of breaching these rules of combat and conduct.