Supreme Court Case on Extrajudicial Killings in Manipur Must be Complied : OMCT

Geneva, 26 September 2018

India: Historic Supreme Court Case on Extrajudicial Killings in Manipur Must be Complied with and Implemented

The World Organization Against Torture (OMCT), the principal global coalition against torture, is deeply concerned about attempts to delay, frustrate and dilute one of the most significant rule of law judgements rendered in Asia over the past years. The decision must be implemented, victims, witnesses and human rights defenders protected, and attempts for a de facto class impunity for law enforcement and the army firmly rejected.

The Supreme Court of India examined the case of 1,528 alleged extrajudicial killings carried out by the police and security forces in Manipur in two landmark judgements in 2016 and 2017. It was a historic step towards addressing grave human rights violations and a key turning point to come to terms with past impunity. The cases were brought to the Supreme Court in 2012 by victims, their families and nongovernmental groups in Manipur. Some of the cases date back to 1979 and the most recent ones are from 2012. The victims’ families and human rights organizations around the world have applauded the historic judgments, some of which have been waiting for their right to truth, justice and redress for almost 40 years.

The long-awaited Supreme Court judgement of 2016 established that any allegations on the use of excessive or retaliatory force by uniformed personnel resulting in death required a thorough inquiry into the incident and that use of such force was never permissible, including in operations led against suspected insurgents and terrorists. Further, the Court stressed the importance of investigations and that legal judgements for a much broader truth-seeking approach is required, taking into account the magnitude of the extrajudicial executions. Following this worldwide acclaimed judgement, in July 2017 the Supreme Court directed the Central Bureau of Investigation (CBI) to examine 98 killings by police, army, and paramilitary forces in Manipur. Despite some initial delays, the CBI investigation has moved forward, raising the hopes of the victims’ families to at last obtain justice and redress.

Yet more than a year after the 2017 judgement, there are serious concerns about attempts to defeat the very meaning of the landmark ruling.

The CBI investigation that has been slow and burdensome has yet again been delayed by a petition presented by the Army challenging the investigations into the Manipur cases

The petition was filed by 356 soldiers and officers of the Indian Army in August 2018 and it would, if entertained by the court, in fact result in a class impunity action for military personnel implicated in crimes under international law. It is particularly frightening to read the reasoning behind the Army’s petition that investigations and responsibility for crimes under Indian and international law should disturb the moral of the troops. The OMCT firmly believes that abiding by the law, acting in a disciplined fashion, and serving the country and its people is what should fuel the morale of the troops, not the blanket immunity from prosecution to those who breach the law.

International law leaves no space for such an exclusion of law enforcement and the Army and its reasoning is deeply flawed and incompatible with the core notion of the rule of law.

The OMCT also recalls that such an interpretation would be in clear violation of basic principles of the rule of law in a democratic society, and contrary to international legal obligations binding on India. International treaty law, such as the International Covenant on Civil and Political Rights (ICCPR) ratified by India in 1979, provide an unequivocal obligation to bring those responsible to justice, along the chain of command, and to provide reparation to the victims and their families. The protection of the rights to remedy and reparation has been further elaborated in consistent universal jurisprudence. What is more, there is not only an obligation to investigate when presented with allegations of extrajudicial killings, the state has a positive obligation to investigate grave human rights violations irrespective of whether or not a formal complaint has been lodged. Lastly, as repeatedly pointed out by the Indian Supreme Court, the victims right to know the truth has gained increasing protection in international law as captured in the UN High Commissioner on Human Rights Study on the right to the truth.[1]

No justice obtained without the protection of victims, their families, witnesses, human rights defenders and lawyers working on the case

Further, OMCT is recalling the importance to ensure that victims and their families, activists, lawyers and human rights defenders working on this case are protected from any reprisals and is seriously concerned about reports it has received about threats and harassments.

It recalls the obligation not only to refrain from such acts but the positive obligation of the state to protect victims, witnesses and human rights defenders, especially pertinent in sensitive cases such as this one.

Need to review the role of the Armed Forces Special Powers Act and to overcome de facto immunity and impunity regimes

The OMCT recognizes the specific context of Manipur, with the presence of armed groups with claims to the right for self-determination. The Armed Forces Special Powers Act (AFSPA) in force in Manipur and Jammu/Kashmir, is regulating the use of force by the armed forces in these so-called “disturbed areas”. AFSPA was adopted in 1958 and has long been an anomaly in the Indian legislation. The Act and its application have long been a major impediment to human rights compliance and carries a legacy of impunity contrary to international human rights and humanitarian law standards. Members of the armed forces are also protected from prosecution under the AFSPA. The Act has for decades created a legislative loophole for impunity for the law enforcement, creating confusion and discrepancies on the rule of law in India. The AFSPA has also consequently been criticized by the UN Special Rapporteur on extra judiciary, summary and arbitrary executions following the mandate holder’s visit to India in 2012.[2]

The OMCT recognizes that the government of India recently announced its intention to amend the AFSPA, removing references to the use of lethal force to maintain public order. This advancement would be a welcomed first step to reduce some of the shortfalls and discrepancies contrary to international human rights and humanitarian law standards.

Finally, the Supreme Court rulings from 2016 and 2017 were steadfast in their human rights’ compliant interpretations and findings. They have been acclaimed across the region and have given hope to victims and new faith in the fundamentals of the rule of law as a rule of rights.

The two landmark judgements should not be questioned. Instead they should be implemented, upheld and treasured as one of the biggest legal milestones of India and beyond.

[1] Promotion and Protection of Human Rights: Study on the right to the truth. Report of the Office of the United Nations High Commissioner for Human Rights; 8th February, 2006. Commission on Human Rights, Sixty-second session, Item 17 of the provisional agenda.

[2] UN Special Rapporteur on extra judiciary, summary and arbitrary executions, Mission to India Report, 26 April 2016, A/HRC/23/47/Add.1, and Follow-up to country recommendations: India, 6 May 2015, A/HRC/29/37/Add.3.