Truth should be found about encounter killings in Manipur: SC

Asserting that the situation in Manipur has "never been one of war", the Supreme Court today directed a thorough probe into alleged fake encounter killings there, saying the use of "excessive or retaliatory force" by the armed forces or police was not permissible in 'disturbed areas' under the draconian AFSPA.
Maintaining that inquest was needed "to know the truth" in Manipur, the apex court, while dealing with a PIL on alleged 1528 extra-judicial killings in Manipur from 2000 to 2012 by security forces and police, said "the public order situation in Manipur is, at best, an internal disturbance and there is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion".

Secondly, for tackling internal disturbance, the armed forces can be deployed in aid of the civil power, a bench comprising Justices M B Lokur and U U Lalit said.
"The armed forces do not supplant the civil administration but only supplement it," it said, adding that "the deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period."
Ordering probe into the alleged fake encounter killings, the bench said "it is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commiserated with and what further steps ought to be taken, if any."

The bench, which also dealt in detail with the controversial Armed Force Special Powers Act (AFSPA), said Manipur has been facing a public order situation equivalent to internal disturbance and the tragedy is that this has continued since 1958 - for almost 60 years and a generation or two has gone by with the issues festering for decades.

"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," the bench said.

"No such declaration has been made by the Union of India
- explicitly or even implicitly - and nothing has been shown to us that would warrant a conclusion that there is a war or an external aggression or an armed rebellion in Manipur. That is not anybody's case at all, nor has it even been suggested," the bench said.
On the alleged fake encounters, the apex court said "if members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are 'enemy', not only the rule of law but our democracy would be in grave danger."

It further said that before branding a person as a terrorist or insurgent, "there must be the commission or some attempt or semblance of a violent overt act".
If an offence is committed even by army personnel, there is no concept of absolute immunity from trial by the ordinary criminal court.
"To contend that this would have a deleterious and demoralising impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralising, particularly in a constitutional democracy like ours," the bench said.

It also rejected the Centre's contention that an internal enquiry was conducted through the Human Rights Division of the Army and the Defence Ministry to ensure that any violation of human rights was duly punished and there was no need to have any independent probe into the alleged fake encounters.
While arriving at such findings, the bench referred to the report of the three-member committee appointed by it, comprising former apex court judge Santosh Hegde, former chief election commissioner J M Lyngdoh and former Karnataka DGP Ajay Kumar Singh.
"We are not inclined to accept this submission. We had asked the Attorney General to hand over sample files so that we could understand the nature of the internal enquiry and how it was conducted. We were handed over a sealed cover which upon opening revealed that what was handed over to us were four files relating to four cases enquired into by the Justice Hegde Commission.

"These four cases... The respondents have come to the conclusion that the allegations were not supported by any credible evidence and therefore the case needed closure. However as we have noticed above, on a thorough enquiry having been made by the Justice Hegde Commission, the view taken was that all these persons were killed in a fake encounter or that the force used against them was excessive.
(Reopens LGD29)
The apex court said it has not received accurate and complete information on each of the 1528 cases that has been alleged as fake encounters by the petitioners and there is need to collate the information to give any final direction.

It said that Amicus Curiae appointed in the case to assist the court had informed that there are 15 cases out of 62 in which it has been held by Justice Hegde Commission or by judicial inquiries conducted at the instance of the Gauhati High Court that the encounters were faked.
It further said the NHRC has informed that there are 31 cases out of 62 in which it has been concluded that the encounters were not genuine and compensation awarded to the next of kin of the victims or the award of compensation is pending.
"Of the 62 cases that the petitioners have documented, their representative and the Amicus will prepare a simple tabular statement indicating whether in each case a judicial enquiry or an inquiry by the National Human Rights Commission (NHRC) or an inquiry under the Commissions of Inquiry Act, 1952 has been held and the result of the inquiry and whether any First Information Report or complaint or petition has been filed by the next of kin of the deceased," it directed.

The bench made it clear that since a Magisterial Enquiry is not a judicial inquiry and, it is not possible to attach any importance to such enquiries, the tabular statement will not include Magisterial Enquiries.
"The representative of the petitioners and the Amicus will revisit the remaining cases (1528 minus 62) and carry out an identical exercise as above. This exercise is required to be conducted for eliminating those cases in which there is no information about the identity of the victim or the place of occurrence or any other relevant detail and then present an accurate and faithful chart of cases in a simple tabular form," the bench said.

It, however, said the grievance of the NHRC that it has become a toothless tiger, will be decided after hearing the Centre and human rights commission and it would also consider the nature of the guidelines issued by the NHRC - whether they are binding or only advisory.
The bench said that for the time being it was leaving open the question whether Court Martial proceedings can be initiated by the Army against an offender, if any, till the details of all the cases are being collated.
It said that if the law permits and the Army is so inclined, it may hold a Court of Inquiry in each case and posted the matter after four weeks for further proceedings.