SC Rejects GOI’s attempts to Grant Armed Forces Immunity, Verdict Has Profound Implications

Rejecting a Curative Petition filed by the government of India, the Supreme Court recently upheld its earlier order in which it had said that the
Army cannot use excessive force.

1,528 alleged encounters

Days ago, the Supreme Court rejected a curative petition filed by the government of India. This dismissal, by a five-judge bench of the Supreme Court of an appeal by the Central government for recall of an earlier ruling by a smaller bench of the same court in the case of 1,528 alleged fake encounter killings in Manipur is a historic verdict. Force, torture amidst a culture of impunity has governed the way India’s military and paramilitary have functioned in conflict zones like the north east of India and Jammu and Kashmir.

Hence this dismissal will also have implications for the future of counter-insurgency strategies. The outline of such a force was quite distinctly visible in the dialectic between the government’s curative petition and the wording of its dismissal by the Supreme Court bench. Very briefly, the petition argued that the matter was urgent as the morale of the forces would drop if they were subject to investigation by the local police after every incident. The arguments by the state emphasised that the army needed freedom to use whatever means in its command to tackle what was described as “war-like” situations, actions then should not be open to judicial review.

The judgment rejected the argument that “war-like” situations warrant a free hand to the army, noting that “democracy would be in danger” if the armed forces were permitted to kill citizens on the mere suspicion that they were enemies of the state. It was categorical that there would be “no absolute immunity” from legal prosecution for armed forces personnel on counter-insurgency duties if they are suspected to have caused deaths by the use of excessive and disproportionate force.

The problem is, if this was war, it would imply a conflict of states, thereby giving the insurgents a status that all states would normally avoid. Moreover, if this was war, rules of war, such as the Geneva Conventions and the Hague Conventions, would be deemed applicable, again a prospect no state would concede to. From the government’s point of view, insurgency is therefore definitely not “war”, the noun, but “war-like”, the adjective. But would such semantic acrobatics warrant the use of unaccounted force, as in war? The Supreme Court has said no, urging, instead, all stakeholders “to find a lasting and peaceful solution to the festering problem.”

It was in 1977 that international combat laws attempted to address the grey area created by “non-international armed conflicts” and the Geneva Conventions Protocol II was conceived. The protocol is aimed at bringing violence by non-state forces under the purview of international humanitarian laws. But few states with internal conflicts have ratified it. India, too, though a signatory to the Geneva Conventions of 1949, refused to sign this additional protocol. The ambiguity as to whether insurgencies are “wars”, or merely law and order problems, remains. The use of the military in civil unrest situations, as is being done under the Armed Forces Special Powers Act (AFSPA), also remains controversial.

In many ways, the Manipur police commandos, a unit responsible for a great number of the alleged 1,528 fake encounter killings, is one such entity. Although they are not covered by the AFSPA, they still came to be affected by the climate of impunity introduced by prolonged exposure to the AFSPA.

Before the July 2009 photo expose by Tehelka magazine on how a captured former insurgent, Chongkham Sanjit, was eliminated in broad daylight, reporters of local dailies in Imphal would vouch that there were practically daily body counts of suspects killed by the government forces, often police commandos. Some even have frightening anecdotal stories of how they may have saved some would-be encounter victims. In those days, commandos even called up newspaper offices to send someone to cover encounter sites where alleged insurgents had just been shot. After the Sanjit killing expose, and the judicial probe that followed, everything quietened down, suddenly. Practically no more encounters, much fewer gallantry awards, and surprisingly less insurgent activities too.

If the police is often more brutal than the military, when charged and prosecuted it has to answer to the law. In the Sanjit case has demonstrated how much this one attribute can be a check on the impunity of the forces.

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