Armed Forces; Extra Judicial Execution Victim Families Association (EEVFAM) Vs. Union of India [Supreme Court of India, 08-07-2016]

Manipur Extra Judicial Killings – Fake Encounters – Excessive force in disturbed areas – Allegation of excessive force by Police or Armed Forces – Army can’t use excessive force – Excessive force by Police or armed forces not permissible – Members of armed forces can be tried by criminal courts – Held, In the event of an offence having been committed by any person in the Manipur Police or the armed forces through the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court subject to the appropriate procedure being followed.


IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

(Madan B. Lokur) and (Uday Umesh Lalit) JJ.

July 8, 2016

WRIT PETITION (CRIMINAL) NO.129 OF 2012

Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. …..Petitioners

versus

Union of India & Anr. ….Respondents

J U D G M E N T

Madan B. Lokur, J.

1. This writ petition under Article 32 of the Constitution raises important and fundamental questions of human rights violations – not in the context of the accused but in the context of the victims. Do the next of kin of deceased victims have any rights at all, other than receipt of monetary compensation?

2. The allegations made in the writ petition concern what are described as fake encounters or extra-judicial executions said to have been carried out by the Manipur Police and the armed forces of the Union, including the Army. According to the police and security forces, the encounters are genuine and the victims were militants or terrorists or insurgents killed in counter insurgency or anti terrorist operations. Whether the allegations are completely or partially true or are entirely rubbish and whether the encounter is genuine or not is yet to be determined, but in any case there is a need to know the truth.

3. The right to know the truth has gained increasing importance over the years. This right was articulated by the United Nations High Commissioner for Human Rights in the sixty-second session of the Human Rights Commission. In a Study on the right to the truth, it was stated in paragraph 8 that though the right had its origins in enforced disappearances, it has gradually extended to include extra-judicial executions. This paragraph reads as follows:

“With the emergence of the practice of enforced disappearances in the 1970s, the concept of the right to the truth became the object of increasing attention from international and regional human rights bodies and special procedures mandate-holders. In particular, the ad hoc working group on human rights in Chile, the Working Group on Enforced or Involuntary Disappearances (WGEID) and the Inter-American Commission on Human Rights (IACHR) developed an important doctrine on this right with regard to the crime of enforced disappearances. These mechanisms initially based the legal source for this right upon articles 32 and 33 of the Additional Protocol to the Geneva Conventions, of 12 August 1949. Commentators have taken the same approach. However, although this right was initially referred to solely within the context of enforced disappearances, it has been gradually extended to other serious human rights violations, such as extrajudicial executions and torture. The Human Rights Committee has urged a State party to the International Covenant on Civil and Political Rights to guarantee that the victims of human rights violations know the truth with respect to the acts committed and know who the perpetrators of such acts were.”1

It is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commiserated with and what further steps ought to be taken, if any.


1Promotion 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.


The background

4. The Extra Judicial Execution Victim Families Association (petitioner no.1) in W.P. (Crl.) No. 129 of 2012 says that it is a registered trust having as its members the wives and mothers of persons whom they say have been extra-judicially executed by the Manipur Police and the security forces (mainly the Assam Rifles and the Army). The Human Rights Alert (petitioner no. 2) also claims to be a registered trust. They are hereinafter compendiously referred to as the petitioners.

5. The petitioners claim to have compiled 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur. It is alleged that a majority of them have been carried out in cold blood while the victims were in custody and allegedly after torturing them. The compilation was presented in the form of a Memorandum to the United Nations Special Rapporteur on extra-judicial, summary or arbitrary executions during his mission to India in March 2012. We do not know what action has been taken on the Memorandum, but a perusal of the compilation indicates that the place of encounter is not documented in some cases and the identity of the victim is not known in some cases. Of these 1528 cases documented by the petitioners, they have made a more elaborate documentation of 62 cases. For the purposes of the writ petition filed under Article 32 of the Constitution, they have referred to 10 specific cases (out of 62) where, according to them, eye-witness accounts exist of extra-judicial executions but the police and the security forces have justified them as encounters with militants. The details of these 10 cases are mentioned in the writ petition but it is not necessary for us to individually discuss them.

6. The petitioners say that not a single First Information Report (for short ‘FIR’) has been registered by the Manipur police against the police or the security forces even though several complaints have been made in respect of the alleged extra-judicial executions. As a result of the failure of the Manipur police to register an FIR not a single investigation or prosecution has commenced and the cries of anguish of the families of the victims have fallen on deaf ears.

7. The petitioners say that the victims of the extra-judicial executions include innocent persons with no criminal record whatsoever but they are later on conveniently labeled as militants. The petitioners also say that the National Human Rights Commission (the NHRC) which is mandated to investigate human rights abuses and recommend punishment of the guilty has turned out to be a toothless tiger. The Manipur State Human Rights Commission is defunct due to the non-appointment of members and non-allocation of resources despite an order of the Manipur Bench of the Gauhati High Court in PIL W.P. No. 15 of 2011. It is under these circumstances that the petitioners have been compelled to approach this Court under Article 32 of the Constitution for appropriate orders for setting up a Special Investigation Team (for short ‘SIT’) of police officers from outside the State of Manipur to investigate instances of alleged extra-judicial executions and thereafter prosecute the offenders in accordance with law.

8. Dr. Th. Suresh Singh is the petitioner in W.P. (C) No. 445 of 2012 and he says that he is a vigilant citizen who safeguards the fundamental rights of all people in Manipur. In his individual capacity as a public interest litigant he prays for a direction that the areas in Manipur declared as a “disturbed area” in terms of