Ending impunity under AFSPA

Updated - December 04, 2021 11:01 pm IST

Published - July 11, 2016 12:34 am IST

“Accountability is a facet of the rule of law.” This established legal principle has acquired fresh significance after the >Supreme Court ruled that the armed forces cannot escape investigation for excesses in the course of the discharge of their duty even in “disturbed areas”. In such notified areas, security personnel enjoy statutory protection for their use of “special powers”. While hearing petitions demanding an inquiry into 1,528 deaths in counter-insurgency operations and related incidents in Manipur, the court has said the provisions of the Armed Forces (Special Powers) Act and the purported immunity it offers to the use of force “even to the extent of causing death” are not invincible. Such legal protection, especially in a State that has been under AFSPA for nearly 60 years, has to yield to larger principles of human rights, and no allegation of the use of excessive or retaliatory force can be ignored without a thorough inquiry. This is a requirement both of democracy and for the preservation of the rule of law. The court has sought tabulated details on 62 specific cases in which there is some evidence that the deaths involved were not genuine operational casualties but extrajudicial killings or fake encounters. Even though the 85-page ruling draws its broad principles from an earlier Constitution Bench verdict in Naga People’s Movement of Human Rights (1997), it has special meaning in the present context, with a growing body of opinion that AFSPA should be repealed or amended.

The court is not unaware of the circumstances prevailing in Manipur and its neighbouring States. What has caused consternation is the near-total absence of any inquiry. In most cases, not even a first information report has been registered, and in some, the cases are against the victims. The court has acknowledged that additional powers have been given to the armed forces to deal with terrorism effectively. However, it also made clear that this cannot be an excuse for extrajudicial killings — whenever such allegations surface, they have to be investigated, regardless of whether the person concerned is a dreaded criminal, terrorist or insurgent. The court has reminded the authorities of the circumstances in which the use of force, even to the point of causing death, is immune from prosecution and the Army’s own list of dos and don’ts while operating in a disturbed area. It has rejected the notion that every person bearing arms in a disturbed area is ipso facto an “enemy”. The occasion calls for an investigation into allegations of enforced disappearances and extrajudicial killings, especially those already documented or partially probed. It must give momentum to the demand for the repeal of AFSPA as a necessary step to end impunity.

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