SC right on AFSPA abuse in Manipur

Deccan Chronicle.

Opinion, DC Comment

The Armed Forces Special Powers Act (AFSPA) applies to disturbed areas.

Supreme Court of India

While ordering an investigation on Friday into the allegedly more than 1,500 “extra-judicial killings” in Manipur in the past decade, the Supreme Court has come down hard on the state and the Centre, questioning some of the key principles under which the Indian state has operated.

The court’s order and its observations — while they may suffer from a lack of clarity on whether they are strictly in the context of Manipur (and not, say, also Kashmir) — are a veritable essay into the rights of Indian citizens even in places designated as “disturbed.”

The Armed Forces Special Powers Act (AFSPA) applies to disturbed areas. This, of course, is needed. It is inconceivable how the security forces can take on armed opponents without legal protection. The AFSPA provides the forces the cover to kill without being dragged before the law for each act of killing in the way of legitimate duty, and provides the sanction in order that such killings may be deemed not to be murder.

But the two-judge bench of Justice Madan B. Lokur and U.U. Lalit has been sensitive to the reality that the armed forces, including the Manipur police in this case, have acted without restraint since 1958 when AFSPA was introduced in the state. The judgement, in fact, strongly notes that there is no “war-like situation” in Manipur, only an “internal disturbance”, as defined by the Constitution, and castigates the state government and the Centre for not finding ways to overcome the situation in as long as six decades.

After laying this down, the bench is quite categorical that “excessive force” must not be applied even when AFSPA is in operation and that retaliatory fire by the security forces must be distinguishable from instances of wanton brutality. There are laws against this even in war between nations, the judges have pointed out. Significantly, they also note that armed forces personnel are liable to be prosecuted under CrPC even when AFSPA is in operation, and this is well within the purview of the Army Act as well as CrPC — subject, of course, to the circumstances in which a killing may have occurred. Effectively, every civilian death is subject to enquiry. The SC has ruled out blanket cover for forces even under AFSPA.

It is, of course, arguable that the SC is not competent to judge whether a war-like situation prevails or just “internal disturbances”. Especially in today’s circumstances, parallels may be drawn between Manipur and Jammu and Kashmir.