SC judgment on AFSPA is significant

The Supreme Court's judgment of July 8 on the Armed Forces in Manipur is an important step.

It is a blot on Indian federalism that our Army has a dominant, seemingly permanent, presence in the seven states of the Northeast and Kashmir.

Armed assistance to the police is one thing, brutality and murder quite another. It would be shameless if our Constitution cannot respond to the Army's gruesome failures.

The Armed Forces Special Powers Act, 1958 (AFSPA) is a sweeping legislation to send the Army to a disturbed area "in aid of the civil power" (Section 3), empowering it to destroy arms-dumps, arrest, enter and search without warrant on reasonable suspicion, maintain public order and "use force even to the causing of death" (Section 4).

Killings

Arrested persons are to be made over to the police (Section 5), requiring government sanction for proceeding against the Army or police for legal proceedings.

The Army's powers and immunities are immense, and the fact that they act "in aid of the civil power" is operationally meaningless. In the Nagaland case (1998), amongst others I also appeared to challenge the validity of the AFSPA.

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We failed; the five-judge court seemed to have been impressed by the "do's and don'ts" instructions of the Army, gave 26 directions - upholding the AFSPA, asserting that it applies for limited durations and generally counselled the Army to act in aid of the civil power, using minimal force. The power of the government not to sanction proceedings against officers remained.

It was difficult to contain our disappointment with this decision which was so out of sync with reality. The Court was directly confronted by fake encounter killings in Pathribal and Saikhowa.

A two-judge bench went all over the place, citing 69 rulings, giving an inadequate answer to whether these cases should be dealt by the Army court martial or criminal courts - leaving it to the Army to opt.

The Army lapped this up. In the Manipur Extra Judicial Execution case (2013) the Court did say that "administrative liquidation" is not permissible even in the face of grave emergency, but instead of directing a special investigation team to take charge, appointed a commission consisting of ex-justice Hegde, JM Lyngdoh and police DGP AK Singh to report to the Court.

Transparency

Hegde's report re-enters the present case with the firm conclusion that such deadly encounters did take place. I must clarify why decisions permitting Army a choice of court martial over criminal due process is disconcerting.

In the late '90s, justice Venkatachaliah, then chair of the NHRC, called a grand meeting with the Army top brass, the commander-in-chief, with all relevant generals, activists and the NHRC.

Since court martial proceedings were opaque, I simply requested the Army to give transparency by allowing at least one observer. This was emphatically turned down by the Army, which claimed autonomy over transparency.

The amicus in the present case is the super-competent and incisive Menaka Guruswamy who had to take unnecessary flak from government counsel Maninder Singh, later replaced by the attorney general.

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It was really not necessary for the Union to deal with questions settled by the Naga Peoples case.

But justice Lokur rightly said that prolonged deployment of the Army "mocks at our democratic process and (is)… a, travesty of jurisdiction". Justice Jeevan Reddy's committee had suggested abolishing the AFSPA and replacing it with due process instructed Unlawful Activities Act, 1967. The Court could not ignore the five-judge Naga judgment.

Commandments

But Lokur J addressed important constitutional concerns. He nipped in the bud many seemingly absurd arguments of the Union that anyone carrying arms was an enemy of the Army!

Equally, drawing on the Nagaland case, he smashed the myth that the Army's discretion in favour of a court martial was beyond judicial review - adding, that in the present cases a court martial was out of the question because the Army said no offence was committed.

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Lokur J clarified that the Army could not claim that it had a kind of private self-defence against those it faced, because there was a vast difference between claiming private self-defence and excessive or retaliatory force by the State.

The State is bound by constitutional prescriptions even if "terrorists" were not. The Punjab counteroffensive in the late '80s showed frightening excesses.

One can only be amused by the Army's Ten Commandments which were placed before the court. After counselling self-restraint, courage, sacrifice, vigilance, maintaining military standards, it added: "Uphold dharma and take pride in your country and the Army".

For the present, this case is not over. As amicus Menaka has to revert the remaining cases. For the moment, we celebrate this judgment for its perspicuity.

(Courtesy of Mail Today.)