Supreme Court Order on AFSPA — applicability of the law and immunities accorded to the armed forces personnel
- War: First, it is extremely significant that the court does not agree with the argument that a law and order situation, or sustained disturbance in any area, gives rise to a situation of “war”.
- It categorically states that any military intervention under the proclamation that a particular area is “disturbed” must be to supplement and help restore civil authority, and not to supplant the same completely by military administration.
- Within the territory of the country, a constitutional government and its authority must always be the norm, and any deviation from the same cannot be unlimited, either in scope or time.
- It is especially noticed by the court that Manipur, with the exception of the Imphal Municipal Area, has been constantly notified as a disturbed area since 1958. This fact signifies best that military deployment under the guise of the Disturbed Areas Act and immunity under the AFSPA often become so intertwined with notions of order that they become permanent features of governance themselves, and not the means to an end.
- Excessive Use of Force
- In all the cases of killings looked into by the court, the shootings by military forces were not genuine and the use of force had been excessive.
- Indeed, this is the main crux of the argument against the AFSPA, that it encourages a disregard for legal processes such as arrest and detention in favour of the use of brute force and extra judicial executions.
- Treatment of Indian Citizens:
- The Supreme Court in the present case has reiterated that there is a difference in the manner in which a person who violates an order in force in a disturbed area should be treated as compared to an enemy combatant belonging to a hostile country.
- The fact that an Indian citizen, in a disturbed area, is violating a prohibitory order, does not give rise to an automatic right for the security forces to treat him with force or to assume that he constitutes an enemy in that situation.
- The court looks at the methods of practice prescribed by the army itself and states that the use of force and especially excessive and retaliatory force on citizens is unjustified.
- Enquiry Needed in case of actions under AFSPA:
- Finally, the court also holds that in such cases, where the use of force is excessive or the encounter itself not genuine, there is nothing which precludes a criminal investigation and inquiry under ordinary criminal law.
- Both the Army Act, and the Code of Criminal Procedure (CrPC), allow for an inquiry to be conducted before a judicial magistrate for crimes committed by the personnel of the force while on duty.
The order, which will be one in a series of orders to come, as more cases being investigated reach their conclusions, has shone a much needed light on the dark underbelly of the operation of the AFSPA in several parts of the country and the effects it has had on governance and civil liberties. It is a welcome step in extending the rule of law and fundamental rights to an area where there has been much need for it for decades.