India: Cycles of violence and revenge must end

Asia Human Rights
July 20, 2016
Reproduced with Permission
Asian Human Rights Commission

On 8 July 2016, the Supreme Court, in the case of Extra Judicial Execution Victim Families Association (EEVFAM) &Anr. v. Union of India & Anr., ruled that victims of extrajudicial executions have the right to know the truth. The AHRC's partner organization in Manipur, Human Rights Alert, was the second petitioner in this important case.

The case has brought attention to 'fake encounters' or extrajudicial killings by members of the armed forces of the Union (including the Army) and by members of the police in Manipur. The petitioners claim that they have compiled information regarding "1528 alleged extra-judicial executions carried out by the police and security forces in Manipur". The petitioners also alleged that the majority of the victims were tortured before being executed. The police and armed forces have claimed that these killings were genuine encounters and the victims were "militants or terrorists or insurgents killed in counter insurgency or anti terrorist operations".

The role and powers of the National Human Rights Commission (NHRC) have also come under the scanner. In one of the affidavits filed by the NHRC in this case, in view of the fact that most states did not follow NHRC recommendations or guidelines, it stated that in order "to give more teeth to the guidelines issued by the NHRC", the Supreme Court should direct all the states to "strictly comply with them both in letter and spirit".

The Supreme Court, addressing the use of excessive force, reiterated that the right of self-defence or private defence must be differentiated from the use of excessive force or retaliation. Relying on the judgments in previous cases, such as Rohtash v. State of Haryana [(2013) 14 SCC 290] and Darshan Singh v. State of Punjab [(2010) 2 SCC 333], the Supreme Court stated the following:

"122. From the above, 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. Therefore, while a victim of aggression has a right of private defence or self-defence (recognized by Sections 96 to 106 of the IPC) if that victim exceeds the right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence. Unfortunately occasionally, use of excessive force or retaliation leads to the death of the original aggressor. 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…. 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 then goes further to mark the difference.

"123. …. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation."

Therefore, it is clear that that the armed forces cannot use force in order to "retaliate" or take "revenge" on people, even if they are militants or terrorists. The Supreme Court has also stated that a person cannot be branded as a militant or terrorist unless there is a commission, or an attempt to commit, or a semblance, of an overt violent act. With regards to the enquiry to be conducted, the Supreme Court held that an allegation of excessive force and extrajudicial killing must be thoroughly enquired into, leaving it open as to who should conduct it.

The AHRC believes that while this judgment is welcome, reminding us of already established positions of law, it does not offer much more. The question of an ordinary criminal court trying offences committed by members of the armed forces was examined and it is clear that proceedings in a criminal court can only be instituted with the sanction of the Central Government, as per Sections 125 and 126 of the Army Act, 1950 . As per Section 126 of the Army Act, when a reference is made to the Central Government as to the court before which proceedings are to be instituted, the order of the Central Government will be final. Therefore, the difficulty of ensuring accountability and punishment for those officers who commit extrajudicial executions remains a Herculean task.

The judgment, though, comes as a reminder at an apt time, a particularly terrible time in India's history. The past ten days have seen unprecedented violence in Kashmir following the killing of Burhan Wani, a Kashmiri militant and separatist leader, and the focus has yet again fallen on the use of excessive force by the armed forces and the police officials in Kashmir. In an attempt to quell the mass protests following Wani's death, curfew has been imposed in the Valley. The Army, the paramilitary, and the police have been accused of killing, blinding, and maiming innocents. The violent protests began on July 8 and the clashes have resulted in the death of more than 42 people, and injured more than 3,400 people, including 1,600 security force personnel.

There have been heart-breaking reports of police and armed forces brutalizing and terrorizing the injured people, many of whom were on their way to the hospital in ambulances. There are reports of police officers stopping ambulances and attacking and torturing patients and their attendants and of paramilitary officials molesting and stripping a woman who was on her way to the hospital. These incidents are shameful and abhorrent, and reek of the need of police and military officials to be vengeful and cause harm to the 'other', in this case the Kashmiri people.

All of these incidents must be enquired into, compensation must be provided, and the Central and state governments must ensure that the military, paramilitary, and police forces do not prevent urgent medical care from being provided to anyone who needs it. Those officials who have been found to have harmed civilians in acts of vengeance must be severely punished.

Finally, it will be fitting to end with this paragraph from the Supreme Court Judgment:

'110. 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'

These efforts must be made in every part of India that is plagued by violent separatist movements and counter-insurgency operations, whether it is Kashmir, Chhattisgarh, Jharkhand, or Manipur. The presence of statutes like the Armed Forces (Special Powers) Act result in the situations we see today in Kashmir, and those the petitioners submitted about in Manipur - the unbridled sanction to use force on the "enemy" or the "militant" - has resulted in a slippery slope of violence and counter-violence. And it is fast slipping out of the State's hands.