Manipur killings: Amicus Curiae on 'Army & Constitutionalism'; No legal impediment to register FIRs, says Manipur

Murali Krishnan *

The hearing in Supreme Court in the Manipur encounter killings with respect to cases in which Gauhati and Manipur High Courts had ordered judicial inquiries concluded on April 20 . The matter was heard by a Bench of Justices Madan B Lokur and UU Lalit, which reserved its order. The hearing in this case comes pursuant to the judgment of the Supreme Court dated July 8, 2016.

The Dramatis Personae, and a brief history:

The case was filed in the Supreme Court by Extra Judicial Execution Victims Families Association, a registered trust having as its members – the wives and mothers of persons whom they claim have been extra-judicially executed by the Manipur Police and the security forces (mainly the Assam Rifles and the Army). The petitioner has alleged 1,528 extra-judicial killings by the Army and other security forces in Manipur. A compilation in the form of a Memorandum was presented to the United Nations Special Rapporteur, which contained 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur.

The petitioner also mentioned that the members of Armed forces had escaped punishment because they operated under the AFSPA, which grants special powers to arrest, conduct searches and seizures and also provides immunity from prosecution.

Dr. Suresh Singh also appeared in the capacity of a Public Interest Litigant, and requested for a direction that the areas in Manipur declared as a "disturbed area" in terms of Section 3 of the Armed Forces (Special Powers) Act, 1958 (for short 'the AFSPA') be withdrawn and the notification be quashed.

In 2013, a committee appointed by the Supreme Court to probe six cases of alleged extra- judicial killings in Manipur, informed the court that all the encounters were fake. The committee, comprising retired judge Santosh Hegde, former chief election commissioner JM Lyngdoh and former Karnataka police chief AK Singh, held that all the seven victims, including a 12-year old boy, did not have any criminal background and had not been named in any insurgency-related case.

Meanwhile, in similar writ petitions filed before the Gauhati High Court, judicial inquires were conducted by District and Sessions Judge pursuant to High Court orders. In total, 11 Judicial Inquiry Reports were filed before the High Court, in addition to 7 Commission of Inquiry Reports that were submitted by various Commissions of Inquiry set up by the Manipur government. These reports stated that the victims were killed from fake encounters and not from exchange of firing as claimed by the security forces.

Judgment – July 8, 2016:

Subsequently, in a significant judgment delivered on July 8, 2016, Court acknowledged that the prevailing situation in Manipur, is "a public order situation equivalent to an internal disturbance" and not "a war-like situation", as alleged by the Attorney General, which was the chief ground for opposing a detailed enquiry into the cases of extra-judicial killings.

The Court held that the use of excessive force or retaliatory force by the Manipur Police or the Armed Forces of the Union is not permissible even under the Armed Forces Special Powers Act, 1958.

It also held that any allegations of excessive force resulting in the death of any person by the Manipur Police or the armed forces in Manipur must be thoroughly enquired into. While it did not delve into the question of appointing an agency for that particular purpose, it said that a decision on the same would be taken after the collated report was submitted by the Amicus Curiae. Regarding whether members of Armed forces can be tried by regular criminal courts, the court placed reliance on its earlier judgments and held the following:

"The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. The Court then directed that information regarding the 1528 cases be collated and provided so that it can issue directions on who should conduct inquiry into the alleged fake encounters.

Present hearing: Cases on which hearing took place

Pursuant to the directions of the Court in the judgment of July 8, 2016, data was submitted to the court regarding the killings of 265 persons. The matter was, thereupon listed for hearing. It was heard continuously for three days – from April 18 to 20. The deaths of 265 persons were categorized into four categories: i) where Commissions of Inquiry were constituted by the State Government; ii) where judicial inquiries were ordered by the Gauhati / Manipur High Courts; iii) where matters were taken up by the National Human Rights Commission and iv) Cases with written complaints.

Out of the aforementioned categories of case, the Court heard the cases pertaining only to Army and the Assam Rifles which pertain to the category in which judicial inquiries were ordered by Gauhati/ Manipur High Courts. The order was reserved only with respect to the said category of cases.

Central Govenment:

Attorney General Mukul Rohatgi, representing Central government made vehement submissions against pursuing investigation and prosecution in the cases. He was particularly critical of the fact that the victims had taken compensation and a demand was now being made for an inquiry.

"The High Court looked into the cases, ordered for compensation to be given and closed the case. They pocket the money given as compensation and then come here demanding prosecution", he said. He also argued that judicial commission enquiry was not fair and the report submitted by the Judicial Commission should not be relied upon.

"In all judicial inquiry reports, slant is against us. They proceeded on the basis that Army is always wrong. They do not know under what atmosphere armed personnel work in terrorism-hit states. Our job is not to go and start killing innocent people. They get killed after being caught in the crossfire between the Army and terrorist", he argued. Rohatgi also cited the fact that Army personnel were also killed to rebut the argument that the encounters were fake.

"How can I stage manage a fake encounter in which my own people get killed. How can I be accused of killing civilians when I lose my own personnel in encounters? None of the report is impartial", submitted Rohatgi.

Amicus Curiae: Army and Constitutionalism

Amicus Curiae Dr. Menaka Guruswamy has played a significant role in the case and her report in the case had a major impact on the Court when it had delivered the judgment of July 8, 2016. The submissions of Guruswamy this time around discussed an oft ignored aspect relating to Armed Forces – relating to application of Constitutional provisions to the acts of Armed forces. In her written submissions, Guruswamy states:

"The submission on behalf of Union of India is that the Army is different and is subject to its own discipline is alien to the Constitutional values entrenched in the Constitution and crafted by the Supreme Court. The Constitution never permits violations of Article 21 even by the Army."

Placing reliance on the case of SN Mukherjee v. Union of India, Guruswamy contended that Constitutional courts retain jurisdiction to enforce rights under Part III notwithstanding special provisions regarding the Army. In the above case, the Court had held that, "This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of court martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of fundamental rights guaranteed under Part III of the Constitution." It was therefore, the Amicus' submission that findings of the Judicial Inquiries, Commission of Inquiries, Hegde Commission and the High Courts which had concluded cases of fake encounters and abuse of powers by Armed Forces, necessitated strict action by the Supreme Court.

"For the State to allow for a lack of remedial action in the face of clear patterns of transgression and impunity by security personnel would violate the hallmarks of Indian constitutionalism – the rule of law, the rights to life, dignity and fair trial." The Amicus made it clear that prosecution must be initiated against the security personnel found responsible for the deaths in the fake encounters. She also submitted that ordinary criminal courts retain jurisdiction over Army personnel for offences committed by them and the Army Act does not bar investigation by ordinary police. Guruswamy suggested a slew of reliefs for the consideration of the Court including constitution of a Special Investigation Team by the Supreme Court, establishment of fast track courts, appointment of a Special Public Prosecutor and Supreme court monitored investigation and trial.

Manipur – No legal impediment to register FIRs:

Senior Advocate V Giri appeared for State of Manipur. The Bench quizzed him on why FIRs were not registered in the cases. Giri's response that there were no complaints filed, did not impress the Bench. "Again that is a very lame excuse that you were waiting for a complaint to register FIRs", remarked Justice Lalit.

"If you have not done it, can you do it now, is there any legal impediment", asked Justice Lokur. Giri responded that there is no legal impediment for registering FIRs even now.

Order reserved:

The Court after hearing the parties reserved its orders. The relevant portion of the order reads as follows:
"We have heard submissions on behalf of the learned Attorney General, learned Amicus and learned counsel for the parties with regard to cases pertaining only to the Army and the Assam Rifles which pertain to the category in which Commissions of Inquiry were constituted by the State Government as well as those in which judicial inquiries were ordered by the High Courts. In so far as Commissions of Inquiry are concerned, there are three cases that have been identified concerning the Army. We are not dealing with them at the present moment and we will take a decision on them at an appropriate time.

We have heard submissions of the learned Attorney General, learned Amicus and learned counsel for the parties on the cases pertaining to judicial inquiries which were constituted under the orders of the Gauhati / Manipur High Courts."

Lawyers: Attorney General Mukul Rohatgi appeared for the Central government along with Senior Advocate V Mohana and advocate R Bala with Advocate BK Prasad as the Advocate-on-Record. Senior Advocate Colin Gonsalves appeared for the petitioner with advocate Jyoti Mendiratta as the AoR. Senior Advocate V Giri represented Manipur while Advocate Shobha represented NHRC. Advocate Menaka Guruswamy served as Amicus Curiae assisted by advocate Govind Manoharan.

Meanwhile, Curative petition dismissed:

The curative petition filed by the Central government against the judgment of July 8, 2016 was dismissed by the Supreme Court. The petition was decided by circulation by a Bench of Chief Justice JS Khehar and Justices Dipak Misra, Jasti Chelameswar, Madan B Lokur and UU Lalit. The order dismissing the curative petition reads as follows: "The prayer for hearing the curative petition in open Court is rejected. We have gone through the Curative Petition and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petition is dismissed".

(Courtesy : Bar and Bench)