INDIA: Cycles of violence and revenge must end
A Statement by the Asian Human Rights Commission
20 July 2016
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
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
There have been heart-breaking reports
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.
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
* This Press Release was sent to e-pao.net by Asian Human Rights Commission (AHRC) who can be contacted at www.humanrights.asia
This Press Release was posted on July 21 2016
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