Monday 25 September 2017 News Updated at 01:09 PM IST
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SC order has shattered AFSPA impunity - Deccan Herald
SC order has shattered AFSPA impunity
Ashish Tripathi, DH News Service,
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A long battle waged by the 'Extra Judicial Execution Victim Families' Association' has finally resulted in the Supreme Court ordering a CBI probe into the killings of over 80 civilians in Manipur, putting a serious question mark over the role of security personnel deployed in the state, and in the wider Northeast, and given free rein under the protection of the Armed Forces (Special Powers) Act (AFSPA) in this 'disturbed area'.

The group comprises the wives and mothers of those executed by either the Manipur police or the security forces, mainly Assam Rifles and the Army, without legal process and judicial sanction. No less was the effort by Th Suresh Singh, a Manipur-based doctor, who described himself as a vigilant citizen and petitioned the apex court to quash the notification imposing AFSPA in Manipur. Although the court preferred not to consider Dr Singh's plea for now since the Union government argued that "the appropriate government has been periodically reviewing the security situation in the 'disturbed area', and wherever necessary, the application of AFSPA has been withdrawn". It was done so for the Imphal municipal area in August 2004.

The government was also categorical in rejecting a claim that in view of Section 4(a) of the AFSPA, a person can be killed without any reason by the armed forces. It maintained that there are several safeguards and prerequisite conditions, like prior warning before launching an attack.

It said the state's population of 23 lakh people are held to ransom and forced to live under constant fear by different militant groups, numbering over 5,000. Ethnic rivalries, tribal divisions, factions in society, besides unemployment were cited by the government as the factors behind these groups. It also went on to say that the foot soldiers of these groups indulged in extortion to feed their leaders, who lived luxurious lives abroad.

A long international border of 360 km with Myanmar and difficult terrain were other factors that gave an advantage to the militant outfits as they resorted to extortion, kidnapping, killing and looting, and ambushing the security forces.

Yet, in order to protect the human rights of innocent citizens, the government said, the armed forces follow prescribed 'do's and don'ts' and '10 commandments' restraining them from using excessive force. The government also said that a separate inquiry is conducted each time an encounter between militants and security forces is alleged to be a fake encounter.

However, the government insisted that it is the duty of all Army personnel to act against a militant or a terrorist or an insurgent when deployed in a 'disturbed area' under AFSPA. "A militant or terrorist or insurgent is an 'enemy' as per Section 3 of the Army Act, 1950," it said. If, on the other hand, Army personnel do not act against an enemy or show cowardice, that would be a court-martial offence.

The Manipur government said that about 30 extremist organisations, heavily armed with sophisticated weapons including rocket launchers, are operating in the state, with the ultimate aim of seceding from the Union of India and forming an independent Manipur.

Over 100 policemen, 260 security personnel and 1,214 civilians were killed in the period between 2000 to 2012. All these factors led to the declaration of the state as a 'disturbed area', a tag it has had since 1970.

Despite these assertions by the state and Centre, the top court decided to set up a three-member Commission, with former Supreme Court judge N Santosh Hegde as its chairperson and former Chief Election Commissioner J M Lyngdoh and former DGP of Karnataka Ajai Kumar Singh as its members to conduct an enquiry into six alleged cases of fake encounters. In all six cases, the Commission found that the encounter was not genuine and it found no material evidence that any of the victims had adverse antecedents.

After examining penal provisions and the Constitution, the top court acknowledged that the challenges of militancy and terrorism staring us in the face are grave. It, however, held that even in a 'disturbed area', there was no scope for extra-judicial killings.

"Before a person can be branded a militant or a terrorist or an insurgent, there must be the commission or some attempt or semblance of a violent overt act. A person carrying a weapon in a 'disturbed area' in violation of a prohibition to that effect cannot be labelled a militant or terrorist or insurgent," the court said in its July 2016 judgement.

Subsequently, in July this year, the top court ordered a CBI probe into over 80 killings, rejecting the contention by the government that put out every argument against such a probe - that a considerable time had passed since the alleged killings, that the victims had been granted compensation, and even that it would be difficult to collect evidence of what exactly happened now.

"If a crime has been committed -- a crime which involves the death of a person who is possibly innocent -- it cannot be overlooked only because of a lapse of time. Merely because the state has not taken any action and has allowed time to go by, it cannot take advantage of the delay to scuttle an inquiry," the court said.

"Our constitutional jurisprudence does not permit us to shut the door on such persons and our constitutional obligation requires us to give justice and succour to the next of kin of the deceased," it said, adding that "the compensation (given by the government) cannot override the law of the land", otherwise all heinous crimes would get settled through money, extinguishing any hope of justice in citizens.

Although the CBI has registered cases to investigate the killings, it is to be seen how far it will go to bring succour to the families of the victims.