Every death caused by the armed forces in a disturbed area, whether the victim is a dreaded criminal or a militant or a terrorist or an insurgent, should be thoroughly enquired into, the Supreme Court held on Friday. This is to address any allegation of use of excessive or retaliatory force beyond the call of duty, the court 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 and the preservation of individual liberties,” a Bench of Justices Madan B. Lokur and U.U. Lalit said in an 85-page judgment.
The verdict tears down the cloak of secrecy about unaccounted deaths involving security forces in disturbed areas and serves as a judicial precedent to uphold civilian and human rights in sensitive areas under military control.
Plea by Manipur families
The judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police.
Dealing a blow to the immunity enjoyed by security personnel under the Armed Forces (Special Powers) Act of 1958 (AFSPA) against criminal action for acts committed in disturbed areas, the apex court held that “there is no concept of absolute immunity from trial by a criminal court” if an Army man has committed an offence.
Argument thrown out
Throwing out the government’s argument that lack of immunity from prosecution would have a demoralising impact on the security forces, the court asked the Centre to spare a thought for the “equally unsettling and demoralising” picture of a citizen living under the fear of the gun in a democracy.
The court dismissed the government’s argument that every armed person breaking prohibitory orders in a disturbed area runs the risk of being considered an “enemy.”
“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 judgment held.
A thorough enquiry should be conducted 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.”