New Delhi, July 8 In a setback to the government and the armed forces, the Supreme Court on Friday ruled the army cannot use excessive force during counter-insurgency operations in areas declared disturbed under the Armed Forces (Special Powers) Act and criminal courts do have the jurisdiction over cases of alleged excesses by security forces.
"The use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible," said a bench of Justice Madan B. Lokur and Justice Uday Umesh Lalit in their judgment.
The verdict came on the plea by the Extra Judicial Execution Victim Families Association (EEVFAM) which has sought a SIT probe into the killing of 1,528 persons by the Manipur Police and security forces since 1978.
Holding that armed forces should refrain from excessive fire power in counter-insurgency operations, Justice Lokur, speaking for the bench, said: "When the state uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution or as it is called 'administrative liquidation'."
"Society and the courts obviously cannot and do not accept such a death caused by the state since it is destructive of the rule of law and plainly unconstitutional," the court said, adding "it is abundantly clear that the right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket".
In a significant conclusion, the court said that "merely because a person is carrying arms in a disturbed area, he does not ipso facto become an enemy. There has to be something much more to brand such a person as an enemy. That a person is not a mere law-breaker but an enemy can be determined only by a thorough enquiry".
Reiterating an earlier view taken by the top court, the bench ruled that proceedings could be initiated before a criminal court in the event of the death of a person on account of excessive or retaliatory force by armed forces.
"The law is therefore very clear that if an offence is committed even by army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. (Code of Criminal Procedure). To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it.
"..but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours."
Rejecting the government's contention that Manipur was faced with "unconventional war" like situation, the judgment said: "Be that as it may, we need to be clear that the situation in Manipur has never been one of a war or an external aggression or an armed rebellion that threatens the security of the country or a part thereof."
It noted that no such declaration of war-like situation has been made by the government - explicitly or even implicitly - and "nothing has been shown to us that would warrant" such a conclusion, terming the situation in the northeastern state as a "public order situation equivalent to an internal disturbance".
Taking note of National Human Rights Commission's submission that it was a "toothless body", the court sought the government's response as to whether it was bound by their recommendations and announced it proposed to consider the nature of guidelines issued by the NHRC and "whether they are binding or only advisory".
Reiterating that an allegation of excessive force by police or army in Manipur resulting in the death of any person must be thoroughly enquired into, the court said, that for the time being it was leaving open the decision as to which agency would probe the cases.
The decision on this, the court said, would be taken after amicus curiae Menaka Guruswamy along with EEVFAM representatives revisits all the 1,466 cases as it had already done in 62 cases.
