April 23, 2019

Supreme Court and AFSPA – Whats the Truth?

On July’ 8 2016, the Indian Print media prominently covered story of Supreme Court ends impunity for armed forces, in north east and advises Indian army to not use excess force while mitigating the insurgency or terrorism. With this information two extreme outrage erupted on Social Media, where pseudo liberals lauded the ruling and trolled Indian army by labeling them as killers; on the other side pro-Indian army expressed their anguish on judiciary interfering in matter of national security. Amid the chaos, the fact remained, either side had not read or understood the ruling/judgement, and expressed opinion based on news paper report.

Our reader (name withheld on request) shared his views on the Supreme Court ruling and also on the outraged in Social Media over the ruling:-

The reactions to the SC order on Manipur Extra Judicial Victims are out of line. It starts with the media. No one has read the judgment properly.

There are 2 completely opposite sections in the media. The part which champions HR violations feel very happy that “SC has curbed use of excessive force in Manipur”. Another section of pro establishment journos keep bemoaning “Oh, SC has now curbed excessive force, how can AFs function” A group of Retired Star Officers also join in this. Both views are wrong.

Here is what the gist of the case is.

The petitioners in this case claim that there have been around 1528 alleged extra judicial killings carried out by Police and Security Forces, in Manipur, from 2001 till 2012.

There are allegations of torture, arbitrary executions, use of excessive force etc. (The Court has not yet gone into the merits of this allegations completely).

In specific response of the charge of excessive force being used, the Centre in its affidavit clarified that Govt of India Rules and Guidelines does not sanction use of excessive force. Further the Government’s affidavit also says that there are a list of Do’s and Don’ts to be followed issued by the Army (word used by Govt is there are “binding instructions”) which are to be scrupulously followed; there is a further list of 10 Commandments issued by the Army Chief.  Both these documents clearly bring out that excessive force should not be used, that all efforts must be made to ensure that terrorists/insurgents are caught alive, that aloud warning, in local language must be given before any firing, that all firing must be done to immobilize the suspect etc. In essence, GoI is of the view that in all anti insurgency operations, excessive force should not be used.

The Govt also state that there are HR Divisions in both the Army HQ and in Ministry of Home Affairs. They do look into any complaints of excessive force, enquiries are held and wherever violations have been found, action taken.

The Attorney General, representing the Govt has informed the Court that these guidelines are being enforced, and that around 70 men from Security Forces have already been punished. (It isn’t clear if this 70 relates only to Manipur or only to use of excessive force.)

While specifically the Govt has not admitted to use of excessive force in any case, there is a tacit acknowledgement that excessive force has been used, at least in a few cases.

While the Budgam case has not been specifically mentioned in the SC, the fact that Modi Govt has taken action against Army soldiers who used excessive fire on 3 young boys killing 2 of them is a clear proof that this NDA Govt does take HR violations very seriously.

In a 1997 judgment by SC in case of Naga Peoples Movement for Human Rights, the SC has clearly stated that excessive force cannot be used in any anti insurgency operation.

Now once again the SC has reiterated that in any anti insurgency operations, excessive force cannot be used.  This is also the stated position of the Govt. 

Why this outrage?

Has the Court picked on AFSPA? (The petition does seek to withdraw AFSPA from Manipur but the SC has not gone into this matter nor has it even issued notice)

The Government has informed the Court that AFSPA is not a license to kill, that there are very severe guidelines to be followed by Army officers when they operate under this Act.The SC has reiterated the same.

The Court has not said or defined what excessive force is. They have left this to the enquiries to determine this.

In several places, the Court has praised the Armed Forces, has praised the Guidelines and Commandment.

I see no sense in this crazy outrage.


Pic Courtesy – www.campusghanta.com

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