India’s apex court passed a historic judgment on July14, reiterating the primacy of rule of law and that there can be no justification to bypass it. In the case of Extrajudicial Execution Victim Families Association (EEVFAM) & Anr. Vs. UOI & Ors. etc, the Supreme Court ordered that the Central Bureau of Investigation (CBI) set up an independent Special Investigating Team to enquire into the allegations of ‘fake encounters’ in Manipur. The order comes after the Court had earlier passed a judgment in July 2016 holding that any allegation of the use of excessive or retaliatory force by ‘uniformed personnel’ must be enquired into, along with a direction to the petitioners to provide adequate documentation. The second petitioner in the case is the Asian Human Rights Commission’s partner organization, Human Rights Alert.
The judgment makes it clear that uniformed personnel–the Army, Police and other security forces–cannot claim immunity from the law by committing patently illegal acts, even in a conflict-ridden state like Manipur. Extrajudicial executions, more colloquially known as ‘fake encounters’, are rife in India, and security forces justify them on the grounds that the victim was a criminal, a militant, someone who deserved to die. The Supreme Court has now demolished these falsifications, stating that excessive or retaliatory force cannot be used against anyone, whoever that person is. In the case of Manipur, many of the victims were innocent civilians, arbitrarily picked up and killed by the security forces.
Apart from directing a CBI probe, the Supreme Court made some other very important points that deserve a mention.
Lapse of time is no excuse
The Attorney General submitted that due to the passage of time, it may not be appropriate to re-open the cases for investigation. Justice Lokur rejects this submission squarely, by stating that a lapse of time is no excuse if a crime has been committed, and it was in fact the responsibility of the State to have conducted a suo moto enquiry at the time of the incident. The State can now not cite delay as a reason, taking advantage of its own inaction to further do nothing.
Compensation cannot override the law of the land
The Attorney General had further argued that since compensation had been paid in some of the cases, it was unnecessary to investigate and proceed further. Paragraph 22 of the order states that simply because compensation has been paid to the kith and kin of some of the victims of extrajudicial killings, it does not mean that the law need not take its course. The SC commented that if compensation was a substitute for the law, then ‘all heinous crimes would be settled through payment of monetary compensation’.
Special Investigation Team cannot include Manipur Police
Holding up the basic principle of natural justice, that ‘No one can be a judge in their own case’, the Court ordered that the Manipur Police cannot be entrusted to carry out an independent and impartial investigation, especially given that not a single FIR has been filed against any police or army officer for the fake encounters.
The SC stated, “We do not think it appropriate to associate any officer of the Manipur Police particularly since in some of the cases the role of the Manipur police itself has been adversely commented upon”
A small victory in Kashmir
In April this year, Farooq Ahmed Dhar, a young artisan from Kashmir, was used as a human shield by the Indian Army. The Army tried to justify the action by claiming that Dhar was a stone pelter, and that the action was taken for the greater good – to prevent the angry mob from attacking the Army. It even gave the officer responsible, Major Gogoi, an award. On July 10, the Jammu & Kashmir State Human Rights Commission ordered the State Government to pay Dhar Rs.10 lakhs as compensation for “torture and humiliation” and “wrongful confinement”. The Commission stated that it was unable to hold the Army accountable due to the limited application of the Protection of Human Rights Act, 1993. It will remain to be seen whether the J&K government will follow the order of the Commission and uphold the rule of law in the State.
Both these decisions are reminders that even though the Constitution lays down that the rule of law is supreme, it is up to our courts to demand that the State performs its basic duties and responsibilities. Ideally, in both these cases, the State should have stepped up and done what is expected in the law: conducted an investigation and awarded compensation.
Sadly, that rarely happens in India, resulting in prolonged and fraught litigations, helping establish the adage that justice delayed is justice denied.
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About AHRC:The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
