AFSPA, yet another opportunity for the judiciary

    By Anjuman Ara Begum

    The Commission of Inquiry, constituted by the Supreme Court of India, in Writ Petition (Criminal) 129 of 2012 [Extra Judicial Execution Victims Families’ Association and Another (petitioners) Against Union of India and Others (respondents)] and Writ Petition (Civil) 445 of 2012 [Suresh Singh (petitioner) Against Union of India and Others (respondents)] filed its report to the Court on 30 March 2013. This investigation by the Commission was chaired by Justice N. Santhosh Hegde (retired Judge of the Supreme Court and former Solicitor General of India) along with Mr. J. M. Lyngdoh (former Chief Election Commissioner of India) and Dr. Ajai Kumar Singh (former Director General of Police, Karnataka state) as members. Clearly, this inquiry highlights, once again, the practice of false encounter killings by security forces in six cases investigated in Manipur. A highlight of the report is the finding that the Armed Forces Special Powers Act, 1958, (AFSPA) needs to be looked at from the point of state responsibility and accountability rather than relying on assurances forwarded by the armed forces in 1997 in the Naga People’s Movement for Human Rights vs. Union of India case (NPMHR onwards, AIR 1998 SC 431.)

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    In NPMHR, the Supreme Court of India examined all sections of the Act and upheld the validity of AFSPA on the ground that it is not ultra vires the Constitution. The Court held that provisions of the Act do not violate Articles 14, 19 and 21 of the Constitution. However, the Court did not take into consideration the actual implementation of practice of the Act and its earlier judgment in Sabastian Hongrey vs. Union of India [1984 AIR 1026, 1984 SCR (3) 544]. The Court simply reduced the concept of state responsibility and accountability in a list of ‘Dos and Don’t’s’ to be followed by the uniformed forces of the state. These guidelines were, up to that point, unknown to the public and were revealed in affidavits filed by the Union of India in the course of litigation and the judiciary was convinced with it beyond a reasonable doubt.

    However, after 16 years, the Writ Petition (Criminal) 129 of 2012 [Extra Judicial Execution Victims Families’ Association and Another (petitioners) Against Union of India and Others (respondents) filed in 2012 exists now to fill the gap. This petition listed 1528 cases of alleged false encounter killings committed by security forces in Manipur and demanded a proper investigation. The Court formed the Hegde Commission to investigate six sample cases. Details of this report can be found in the Asian Human Rights Commission (AHRC) statement, INDIA: Court report suggests frightening administrative failure in Manipur.

    Theoretically and practically, the AFSPA violates the right to life. It provides a wide scope for the use of abusive lethal force in the name of security. The AFSPA allows all officers of the armed forces to use lethal force. AFSPA violates both national and international norms concerning inalienable human rights guarantees. Section 4 of AFSPA empowers the armed forces to use lethal force against suspects, thereby violating the fundamental principle of criminal justice; ‘innocent until proven guilty beyond a reasonable doubt’. Such an arrangement resulted into systemic fake encounter killings.

    In 1997, the Supreme Court upheld that, Section 4 (a) is not in violation of the right to life guaranteed under Article 21 of the Constitution. Instead, the Court issued a series of guidelines to the armed forces to be followed when the armed forces use Section 4(a) of the AFSPA. Section 4(a) is not independent of these ‘Do’s and Don’ts’. Any violation of the guidelines would amount to arbitrary and extra-judicial execution and arbitrary deprivation of the right to life or false encounters. Several case studies, documented by human rights organisations, concluded that in reality, these guidelines are cosmetic. 1528 allegations of false encounters put forth in the current petition are examples of it.

    However, intentional negligence of these guidelines became permissible in 2001, when the Supreme Court permitted detention by the army for the purpose of extracting ‘operational intelligence’ from the person detained by armed forces. Army authorities obtained an order from the Supreme Court in August 2001, explicitly empowering them with the authority to detain and interrogate suspects in the name of collection of “operational intelligence” if not ‘substantive intelligence’.

    Violation of the guidelines was again allowed in 2007 through the verdict in Masooda Parveen vs. Union of India and others [AIR 2007 SC 1840. Writ Petition (civil) 275 of 1999, decided on May 12, 2007]. In this case, the court explained the ‘difficulty of implementing the list of ‘Do’s and Don’ts’ and observed, ‘the application of the guidelines cannot be mechanically applied and must of necessity relate to the facts of each case’. The Supreme Court in this case held that anyone produced to the courts after 5 days is acceptable, ‘as sometimes armed forces may require that much time for necessary questioning’.

    Most of the false encounters committed in north-east India preceded illegal detention by the armed forces. Vague interpretations by the judiciary that diluted state responsibility to mere guidelines and further into exemptions of due process, that acted as catalyst to a wide-range of abuses by the armed forces, resulting in a large number of murders, committed with impunity.

    Before the Hegde Commission’s report, several inquiry commissions were constituted by the state government of Manipur under the Commissions of Inquiry Act, 1952. Though these commissions submitted reports to the government, most of them are yet to see the light of day. It would not be wrong to presume that these reports probably narrated the sagas of murders or the false encounter killings and hence were kept secret. The much publicised Jeevan Reddy Committee report on the AFSPA, was leaked to the media, and has not yet officially released.

    Finally, the immunity provided under Section 6 of the AFSPA further encouraged the armed forces to commit murders in the name of encounters. Section 6 prohibits legal proceedings against the armed forces without prior sanction and instance of granting sanctions from prosecution is unheard of in the region.

    The Santhosh Hegde Commission’s report on six cases of false encounter deaths is just the tip of the iceberg. The Commission observed: “if one innocent person is killed by police or other security forces in a false encounter, it creates a tremendous upsurge of hatred…ordinary people know who is innocent. People even know whether an innocent person was killed deliberately or by mistake…” However, the report is an eye-opener for the Apex Court to rectify the NPMHR and subsequent judgments that has cost so many lives in states like Manipur, where AFSPA is implemented. The report provides ample scope for the Apex Court to understand two things: (i) the nature of its actual implementation and (ii) the wide scope of abuse of power granted under the AFSPA.

    Anjuman Ara Begum is at Asian Human Rights Commission and can be contacted at e-mail [email protected]