The recent judgment of the Indian Supreme Court rejecting petitions filed by 350 army-men praying for quashing the FIRs which had been been filed against them for extra judicial killings in fake ‘encounters’ in Manipur, Kashmir and some other states, must be welcomed by all supporters of the rule of law, civil liberties and human rights.
The states in which these alleged extra judicial killings occurred were those declared to be ‘disturbed areas’ under the Armed Forces ( Special Powers ) Act, 1958. That Act had been enacted as a temporary measure, but as someone remarked, if after 60 years a ‘temporary’ Act continues to operate, one wonders what would be a permanent Act ? In fact the Justice B.P.Jeevan Reddy Committee appointed by the Govt of India recommended that it be repealed.
The AFSPA grants immunity to army personnel for shooting at people whom they think are likely to create disorder. But it certainly does not authorize fake encounters or other kinds of atrocities.
A petition was filed in the Supreme Court, Extra Judicial Execution Victims Family Association and Human Rights Alert vs Union of India ( see online ) mentioning 1528 cases of extra judicial executions by army and police personnel between 1979 and 2012 in the state of Manipur. The prayer was that these be investigated by the CBI. The Court appointed a committee consisting of retired Supreme Court Justice Santosh Hegde as its Chairman, and including Mr. Lyndoh, former Chief Election Commissioner as a member, to enquire into some of the complaints, and the committee found many of them prima facie correct. Consequently, the Court ordered registration of FIRs against many army and police personnel and investigation by the CBI against them.
It is these orders which prompted the army, para military and police personnel implicated in fake encounters to approach the Supreme Court.
In my opinion the Court acted correctly in rejecting the petition. Army personnel must know that they are not above the law, and cannot get away with anything as long as there is a Constitution guaranteeing fundamental rights, including the right to life and liberty under Article 21. If it is the army of the Indian people it cannot commit atrocities on the Indian .
In the Nuremburg Trials held after the Second World War in 1945, the Nazi war criminals, including Field Marshal Keitel and General Jodl, took the plea of ‘ orders are orders ‘ but their plea was rejected and several accused were hanged. It was found that Keitel and Jodl had signed several orders for committing atrocities during the war, which were against the Geneva Conventions and other laws of war. They took the plea that they did so only under instructions from Hitler, their superior, but The International Tribunal held that carrying out illegal orders cannot absolve anyone.
Justice Lokur, who presided over the bench which decided the case is retiring next month. He will go down as one in judicial history who always upheld liberty e,g, in his decision in Dataram Singh vs State of UP ( see online ) in which he reiterated the principle laid down by the celebrated Justice Krishna Iyer in State of Rajasthan vs Balchand, that bail, not jail is the normal rule, a stark contrast to the judges who rejected the bail plea of the journalist Abhijit Iyer Mitra, whose only ‘crime’ was that he posted a satirical tweet about the Kobark temple ( for which too he immediately apologized ), and is still rotting in jail.