2016 Supreme(SC) 534

SUPREME COURT OF INDIA
MADAN B. LOKUR, UDAY UMESH LALIT, JJ.
Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. – Petitioner
Versus
Union of India & Anr. – Respondents
W.P. (Cri.) No.129 of 2012
Decided on : 08-07-2016

IMPORTANT POINTS
(1) Writ petition alleging gross violations of human rights is maintainable in Apex Court under Article 32 of Constitution.
(2) Right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket.

Headnote:(A) Constitution of India – Article 32 – Writ petition – Maintainability – Issue of extra-judicial executions – This is not an ordinary case of a police complaint or a simple case of an FIR not being registered – This case involves allegations that law enforcement authorities acting in aid of civil power are themselves perpetrators of gross human rights violations – This is also not a case where ordinary criminal law remedy provides an adequate answer – A particular situation of internal disturbance has prevailed for decades and ordinary citizens of Manipur have had little access and recourse to law in the situation that they find themselves placed in – FIRs have been registered against victims by local police thereby leaving next of kin of deceased with virtually no remedy under Cr.P.C. – Petition under Article 32 of Constitution should be entertained – Truth has to be found out however inconvenient it may be for petitioners or for respondents – In matters concerning gross violations of human rights Apex Court and every constitutional court should adopt an open door policy. (Paras 79 and 80)

       (B) Constitution of India – Articles 21 and 32 – Extra-judicial executions – Petitioners claim to have compiled 1528 alleged extra-judicial executions carried out by police and security forces in Manipur – It is alleged that a majority of them have been carried out in cold blood while victims were in custody and allegedly after torturing them – Compilation indicates that place of encounter is not documented in some cases and identity of victim is not known in some cases – No FIR has been allegedly registered by Manipur police against police or security forces even though several complaints have been made in respect of alleged extra-judicial executions – Petitioners say that victims of the extra-judicial executions include innocent persons with no criminal record whatsoever but they are later on conveniently labeled as militants – Petitioners have been compelled to approach Apex Court under Article 32 of Constitution for appropriate orders for setting up a Special Investigation Team (SIT) of police officers from outside State of Manipur to investigate instances of alleged extra-judicial executions and thereafter prosecute offenders in accordance with law. (Paras 5 to 7)

       (C) Constitution of India – Articles 21 and 32 – Section 3 of Armed Forces (Special Powers) Act, 1958 – Extra-judicial executions – Payment of monetary compensation to family of victims – Union of India states that that there is a constant threat from armed militant groups and there is a need for counter insurgency operations through armed forces in conjunction with civil administration – These operations also hold out a threat to lives of armed forces personnel since militants wield deadly weapons – It is stated that to sensitize armed forces personnel on human rights aspects, Ministry of Defence of Government of India has issued ‘Dos’ and Don’ts’ – Armed forces follow these instructions strictly and observe restraint in their operations – It is emphasized that only 5000 militants are holding a population of about 23 Lakhs in Manipur to ransom and keeping people in constant fear – Militants are killing and looting local people and also killing security forces without any fear and operating from foreign country. (Paras 13, 14, 19, 39 and 40)

       (D) Constitution of India – Articles 355 and 365 – Union military help to States – In event of a war, external aggression or an armed rebellion that threatens security of country or a part thereof, it is duty of Union Government to protect States and depending on gravity of situation, President might also issue a proclamation of emergency – Armed forces of Union could be deployed in public order situations to aid tcivil power and on such deployment, they shall operate in cooperation and conjunction with civil administration and until normalcy is restored within a reasonable period – Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of armed forces particularly for public order or law and order purposes as it would mock at our democratic process and would be a travesty of jurisdiction conferred by Entry 2A of Union List for deployment of armed forces to normalize a situation particularly of an internal disturbance. (Paras 88 and 91)

       (E) Armed Forces (Special Powers) Act, 1958 – Sections 3 and 4 – Unlawful Activities (Prevention) Act, 1967 – Section 15 – Disturbed area – Power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances – Unless a statute specifically provides for it, investigation, enquiry, trial and other proceedings in respect of offences under IPC and other laws shall be carried out in accordance with provisions of Cr.P.C. (Paras 96 and 98)

       (F) Army Act, 1950 – Sections 125 and 126 – Armed Forces (Special Powers) Act, 1958 – Sections 3 and 4 – Maintenance of public order – Manipur has been and is facing a public order situation equivalent to an internal disturbance – Tragedy is that this situation has continued since 1958 – Situation in Manipur has never been one of a war or an external aggression or an armed rebellion that threatens security of country or a part thereof – No such declaration has been made by Union of India – Animus to wage a war or any other similar activity is important before a non-conventional war or war-like situation can be said to exist – Every act of violence, even though it may be directed against armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing – Similarly, sporadic but organized killings by militants and ambushes would not lead to a conclusion of existence of a war or war-like conditions – In such a situation, Constitution recognizes only an internal disturbance which is what the situation in Manipur is and that ought to be dealt with by civil administration with services of armed forces that are available in aid of civil power. (Paras 110, 111 and 115)

       (G) Indian Penal Code, 1860 – Sections 96 to 100 – Right to private defence – Right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket – While a victim of aggression has a right of private defence or self-defence, if that victim exceeds right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence – When State uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution – There must be a reasonable connection between act and official duty – Causing death of a person is certainly an offence but whether there was a reasonable connection between death and official act or whether excessive force or retaliatory force was used in the act has to be determined at an appropriate stage – It does not matter whether victim was a common person or a militant or a terrorist, nor does it matter whether aggressor was a common person or State – Law is the same for both and is equally applicable to both – To provide assurance to people, such an allegation must be thoroughly enquired into – This is requirement of a democracy and requirement of preservation of rule of law and preservation of individual liberties. (Para 122, 123, 125 and 135)

       (H) Constitution of India – Article 21 – Fake encounter killing – Need for fair and impartial enquiry – Before a person can be branded as a militant or a terrorist or an insurgent, there must be 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 labeled a militant or terrorist or insurgent – It would not be correct to say that merely because a person was carrying arms in a prohibited area, that person automatically became an enemy or an active member of a banned or unlawful organization – Each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine facts. (Para 139, 141 and 142 and 144)

       (I) Army Act, 1950 – Sections 125 and 126 – Criminal Procedure Code, 1873 – Sections 4 and 5 – Fake encounter killing – If an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by criminal court constituted under Cr.P.C. – To contend that this would have a deleterious and demoralizing impact on security forces is certainly one way of looking at it, but from point of view of a citizen, living under shadow of a gun that can be wielded with impunity, outright acceptance of proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours – Decision to try a person who has committed an offence punishable under Army Act and who is subject to provisions of Army Act does not always or necessarily lie only with Army – Criminal court under Cr.P.C. could also try alleged offender in certain circumstances in accordance with procedure laid down by Cr.P.C. – Even if State Government decides to hold Magisterial Enquiries and take suitable action on report given, it would not preclude any other inquiry or investigation into allegations made – In such situations, there can be no substitute for a judicial inquiry or an inquiry by NHRC or an inquiry under Commissions of Inquiry Act, 1952. (Paras 163 and 164 and 172)

       (J) Constitution of India – Article 21 – Fake encounter killing – Allegation of excessive force resulting in death of any person by Manipur Police or armed forces in Manipur must be thoroughly enquired into – In event of an offence having been committed by any person in Manipur Police or armed forces through use of excessive force or retaliatory force resulting in death of any person, proceedings in respect thereof can be instituted in a criminal court subject to appropriate procedure being followed. (Paras 172 and 173)

       Facts of Case:

       Instant writ petition under Article 32 of Constitution raises important and fundamental questions of human rights violations in context of victims. Do the next of kin of deceased victims have any rights at all, other than receipt of monetary compensation?

       Allegations made in the writ petition concern what are described as fake encounters or extra-judicial executions said to have been carried out by Manipur Police and armed forces of Union, including Army. According to police and security forces, encounters are genuine and victims were militants or terrorists or insurgents killed in counter insurgency or anti terrorist operations. Whether allegations are completely or partially true or are entirely rubbish and whether encounter is genuine or not is yet to be determined, but in any case there is a need to know the truth.

       Findings of Court:

       For the time being we keep open the question whether Court Martial proceedings can be initiated by Army against an offender, if any, to await result of first step. We are making it clear that we have not precluded petitioners from contesting this issue. We are not deciding it for time being only because full facts are not available to us. However, if law permits and Army is so inclined, it may hold a Court of Inquiry in each case.

       Result – Directions issued. Matter listed for further proceedings.