Treading on the Tramlines of Judicial Review: Supreme Court on AFSPA and Extra-Judicial Killings in Manipur

In a recent judgment [Judgment dated 8 July, 2016 in Extra Judicial Execution Victim Families Association v. Union of India, Writ Petition (Criminal) No. 129 of 2012], the Supreme Court has laid the legal ground-work for conducting an enquiry into alleged fake encounters in Manipur. It held that use of excessive force by the Manipur Police or the Armed Forces of the Union is not permissible, even in areas declared as “disturbed” under the AFSPA and against militants, insurgents and terrorists. It directed that allegations of use of excessive force resulting in death of any person by the Manipur Police or the Armed Forces in Manipur must be enquired into. However, the decision on who will conduct the enquiry was deferred, to be decided after it had been informed about the particulars of cases in which a judicial enquiry had already been held.

The judgment has been welcomed by human rights activists and families of victims in Manipur. It has also been cited by outfits in Kashmir to justify their demand for repeal of AFSPA. This is despite the fact that the Supreme Court clarified that Section 6 of AFSPA had no application in the case. Section 6 is the provision under which the Armed Forces have immunity from legal action regarding acts done in exercise of powers conferred by AFSPA, and which is cited by opponents of AFSPA as being the source for abuse of power by Armed Forces. The Court’s reason for holding that Section 6 had no application was that it had “yet to be determined whether the deaths were in fake encounters” or “in genuine encounters in counter insurgency operations”.

This is not the first time that the Supreme Court has taken the view that the armed forces cannot use excessive force in “disturbed” areas. It was earlier so held by a Constitution Bench in the Naga People’s case in 1997 [Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109], and the latest judgment reiterates that view. But the Court’s emphatic declaration of the law on use of force in disturbed areas is a necessary reality check for a Government that continued to be in denial about allegations of fake encounters in Manipur, despite the Court appointed high-powered Commission’s finding that at least six deaths appeared to have occurred in fake encounters.

Apart from re-affirming the legal requirement to enquire into the truth behind allegations of fake encounters in disturbed areas, the Court has tread on the tramlines of judicial review to arrive at far reaching conclusions about exercise of powers under AFSPA.

The first relates to the power under Section 3 to declare an area, including an entire State, as a disturbed area. The Court referred to Constitutional provisions which empower the Union to deploy armed forces “in aid of the civil power” of a State to deal with a situation affecting public order in that State. It referred to the Constitution Bench’s explanation of the words “in aid of the civil power”, and concluded that when Armed Forces are deployed in aid of the State machinery to deal with a public order situation, normalcy should be restored “within a reasonable period”. If normalcy is not restored for a prolonged period, the Court opined that it would indicate a failure of the civil administration to take effective aid of the armed forces in restoring normalcy, or a failure of the armed forces in effectively aiding the civil administration in restoring normalcy. It held, “normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces… as it would mock at our democratic process…”!

Thus, the Court, without expressly saying so, labelled the situation in Manipur, which has been declared as a “disturbed area” under AFSPA since 1958, as a mockery of our democratic process.

Was such a conclusion within the Court’s power of Judicial Review in such matters?

The Constitution Bench judgment in Naga People’s case had held that while considering a declaration of “disturbed area” under AFSPA, it was not open to the Court to consider whether the material before the Government was sufficient. The limited extent of Judicial Review available to the Court was to see whether the declaration is based on relevant material or on wholly extraneous considerations.

But the Supreme Court in the present case did not rule on the relevance or sufficiency of material on the basis of which Manipur has been notified as a “disturbed area” since 1958. Instead, it relied upon the explanation given by the Constitution Bench in Naga People’s case to the words “in aid of the civil power” occurring in Entry 2A of List I of the Seventh Schedule. The Constitution Bench had explained that the words “in aid of the civil power” meant that even after Armed Forces are deployed by the Union in a State, the civil authorities in the State are not substituted or supplanted – they continue to function. It was also clarified that while Armed forces of the Union are deployed in a State, the supervision and control over the armed forces does not vest with the authorities of the State, but that the armed forces will operate “in cooperation with the civil administration so that the situation which has necessitated the deployment of the armed forces is effectively dealt with and normalcy restored.”

These observations of the Constitution Bench were rendered while rejecting a Constitutional challenge to the AFSPA Act, on the ground that permitting the Central Government to deploy armed forces in a State amounted to taking away the State’s power to maintain public order, which is exclusively conferred on States under Entry 1 of List II of the Seventh Schedule.

However, the Supreme Court in the latest case has emphasized the words “normalcy restored” to read into them a legal requirement that normalcy should be restored within a reasonable period. This temporal requirement does not flow from the observations of the Constitution Bench, which were made in a different context.

In fact, the Constitution Bench had on a different issue held that a declaration of “disturbed area” cannot be for an indefinite period, and therefore, a periodic assessment had to be carried out to review the need for continuance of the declaration. But the Constitution Bench had been careful not to specify a time limit for the declaration to operate.

The temporal requirement of normalcy being restored within a reasonable period may have far reaching implications. Would it mean that if an area or an entire State has been declared as a “disturbed area” for several decades, the declaration would become unlawful, even if the situation has been periodically reviewed as mandated by the Constitution Bench? The Court does not spell out that consequence, but the question is bound to be asked at a later stage.

The other issue on which the Court has tested its limits of Judicial Review relates to a person carrying a weapon in a disturbed area in violation of a prohibition to that effect. Section 4(a) of AFSPA empowers certain officers, in case it is necessary for the maintenance of public order, to fire upon even to the extent of causing death against any person contravening any law or order inter alia prohibiting carrying of weapons in a disturbed area. The Government had argued that since armed forces in the State of Manipur were engaged with militants and terrorists who are ‘enemy’ as defined under the Army Act, the general principles of self defence which prohibit the use of excessive or retaliatory force did not apply. The Court rejected this argument, holding that mere carrying of a weapon in a disturbed area did not automatically lead to the conclusion that the person is an enemy or an active member of a banned or unlawful organization. The Court held there must be the commission or some attempt or semblance of a violent overt act to draw an inference that the person is a militant, terrorist or an insurgent.

This finding was perhaps necessitated on account of the extreme position taken by the Government – namely – to deny the need for any enquiry into allegations of fake encounters on the assumption that the persons who had died were terrorists / militants.

However, the finding may have the effect of whittling down the discretion available to an armed officer while dealing with a sensitive security situation in a disturbed area. In another case relating to extra-judicial killings in Manipur [PUCL v. Union of India, (1997) 3 SCC 433], the Supreme Court had been careful to articulate that the amount of terrorist activity in Manipur affecting public order in that State may require certain additional powers to be conferred on the police and armed forces, and that it was not for the Court to say how terrorists should be fought. It was held “Nobody can say that the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act.”

Thus, the Supreme Court’s view on the situation in Manipur clears many clouds about immunity of the armed forces, but it also raises certain issues about powers under AFSPA that may perhaps not be within the Court’s domain to decide. It can only be hoped that the Court’s observations are understood in the spirit that they were intended, and not used as political tools. As the Hon’ble Judges themselves observed– “It is high time that concerted and sincere efforts are continuously made by the four stakeholders – civil society in Manipur, the insurgents, the State of Manipur and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society.”

Rohit Sharma is an Advocate.