Extra Judicial Execution Victim Families Association (EEVFAM) & ANR. Vs. Union of India & ANR. [July 8, 2016]
2016 Latest Caselaw 474 SC

Extra Judicial Execution Victim Families Association (EEVFAM) & ANR. Vs. Union of India & ANR.

[Writ Petition (Criminal) No.129 of 2012]

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.

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 Section 3 of the Armed Forces (Special Powers) Act, 1958 (for short 'the AFSPA') be withdrawn and the notification issued in this regard be quashed.

9. At the outset it may be stated that though both the writ petitions were listed for hearing over several days, the sum and substance of the submissions related to the setting up of an SIT to investigate the alleged extra-judicial executions with a clear understanding that W.P. (C) No. 445 of 2012 would be taken up for consideration later. Therefore, we are not at all considering the prayers made in W.P. (C) No. 445 of 2012. Affidavits filed by the Union of India

10. During the course of hearing, a detailed reference was made by the learned Attorney General to the counter affidavit filed by the Union of India on 15th December, 2012 in W.P. (C) No. 445 of 2012. This was more for convenience in placing the detailed facts rather than anything else. In the affidavit, it has been stated, inter alia, that the security of the nation is of paramount importance and this involves the security of the States as well. A reference is made to Article 355 of the Constitution which casts a duty on the Union to protect every State against external aggression and internal disturbances and also to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.[2] A reference is also made to Entry 2A of List I of the Seventh Schedule of the Constitution (the Union List) relating to the deployment of armed forces of the Union in any State in aid of the civil power.[3]

11. It is stated that militant groups are operating in north-east India demanding separation from the country and indulging in violence by way of killing innocent civilians with a view to create a fear psychosis and indulging in extortion so as to promote their ideology and goals. These militant groups possess sophisticated arms and have cross border support from countries inimical to the country's interests; they have no respect for the law of the land and indulge in crimes without having any fear of the law and order machinery.

12. It is submitted that violence has become a way of life in the north- eastern States and the State Governments do not possess the strength to maintain public order and as such military aid by the Union to the States becomes inevitable.

13. With specific regard to Manipur it is stated that there is a constant threat from armed militant groups and therefore there is a need for counter insurgency operations through the armed forces in conjunction with the civil administration. These operations also hold out a threat to the lives of the armed forces personnel since the militants wield deadly weapons. It is in this background that the AFSPA came to be enacted and amended subsequently keeping in view the hostile environment and the imperative to give legal and logistic protection to the armed forces personnel posted on duty so as to enable them to operate with the required thrust and drive.

14. It is stated that to sensitize the armed forces personnel on human rights aspects, the Ministry of Defence of the Government of India has issued 'Dos' and Don'ts'. The armed forces follow these instructions strictly and observe restraint in their operations.

15. It is submitted that a review of the security situation and potential militancy levels in the "disturbed area" is a highly specialized issue requiring requisite expertise in the domain of internal security. The actions that need to be taken by the appropriate Government to deal with such situations of internal disturbances are not issues that can be decided in a court of law.

16. It is stated that AFSPA was withdrawn from the Imphal Municipal Area in August 2004[4] illustrating that the appropriate government has been periodically reviewing the security situation in the "disturbed area" and wherever necessary, the application of AFSPA has been withdrawn.

17. With reference to the allegation that in view of Section 4(a) of the AFSPA a person can be killed without any reason by the armed forces, this is categorically denied by stating that there are several safeguards and pre-requisite conditions that need to be fulfilled under AFSPA before a person might be killed by the armed forces. These safeguards and pre- requisite conditions have been mentioned in the affidavit and it is concluded that it is absolutely wrong to suggest that the armed forces personnel can kill any person without any reason, as alleged. The pre- conditions, inter alia, are: There has to be a declaration of disturbed area by a high level authority as mentioned in the Act.

The concerned officer has to be of the opinion that it is necessary to do for the maintenance of public order. He has to give such due warning as he may consider necessary. The person against whom action is being taken by armed forces must be "acting in contravention of any law or order for the time being in force in the disturbed area". Such law or order must relate to prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.

18. It is submitted that though Manipur is facing an insurgency problem and the police and the armed forces are dealing with that problem to the best of their ability, the common man is not generally affected by the counter insurgency operations. It is stated that the people of Manipur have been actively participating in the electoral process and by way of example it is stated that in the 1990 elections for the assembly seats, the voting turnout was 89.95% and similarly in the 2012 elections for the assembly seats the voting percentage was 83.24%. It is submitted that the voting percentage in Manipur is amongst the highest in the country.

19. It is emphasized that only 5000 militants are holding a population of about 23 lakhs in Manipur to ransom and keeping the people in constant fear. It is further stated that the root cause of militancy in Manipur is the constant endeavour of insurgent groups to extort money so that their leaders can lead a luxurious life in foreign countries. Additionally, ethnic rivalries, the tribal divide and factions in society and the unemployed youth are being exploited by militant outfits to fuel tension.

20. It is pointed out that the militant groups take advantage of a long international border of over 250 kms that is shared with Myanmar and that the border is heavily forested and has a very difficult terrain. The border area is inhabited by the same tribes on either side. These tribes have family relations and social interactions and therefore a free movement regime to move upto 16 kms on both sides is permitted. Taking advantage of this, the militant outfits utilize the other side of the border in conveniently conducting their operations of extortion, kidnapping, killing, looting and ambushing the security forces.

21. With regard to the amendments to the AFSPA it is stated that the Justice Jeevan Reddy Committee was set up by the Government of India in 2004 and it submitted a report on 6th June, 2005 recommending the repeal of AFSPA and suggesting amendments to the Unlawful Activities (Prevention) Act, 1967 (for short 'the UAPA') to achieve the purpose of AFSPA. However, the Cabinet Committee on Security has not approved the proposal and a final decision has not yet been taken by the Cabinet and the exercise of amending the AFSPA is under consideration of the Government of India.

22. It is submitted in this context that the 2nd Administrative Reforms Commission had endorsed the view of the Justice Jeevan Reddy Committee and the Group of Ministers in the Government of India decided on 17th August, 2012 to consult the State Governments and that process is still on.

23. It is submitted that several militants have surrendered as a result of a dialogue between the Government and militant outfits willing to abjure violence. The Government has also framed a surrender policy whereby the militants who surrender are provided incentives including assurances of livelihood.

24. On the human rights issue, it is stated that a Human Rights Division in the Army Headquarters ensures that prescribed 'Dos' and Don'ts' (while dealing with militants and insurgents) are adhered to. Additionally, the Chief of Army Staff has also issued 'Ten Commandments' and this indicates that the armed forces consistently (and constantly) keep a watch on issues of human rights.

25. It is submitted that complaints of violation of human rights as reported by the NHRC are received by the Ministry of Defence in respect of alleged violations by the Army and in the Ministry of Home Affairs (Human Rights Division) in the case of Central Armed Police Forces. As far as the Ministry of Defence is concerned, the complaints are sent to the Army Headquarters (Human Rights Division) and they are then investigated by the District Magistrate and the local police. A separate enquiry is also conducted by the Army and wherever necessary appropriate action is taken. In respect of allegations against the Central Armed Police Forces, State level investigations are conducted and the factual position determined. It is then that a decision is taken whether an encounter is genuine or fake.

26. It is further submitted that as many as 70 personnel have been punished for human rights violations and therefore it is incorrect to say that no one has been punished for human rights violations.

27. The Union of India has filed two substantive affidavits in W.P. (Crl.) No. 129 of 2012. The first is an affidavit dated 5th December, 2012 which is a somewhat abridged version of the subsequent affidavit of 15th December, 2012 in W.P. (C) No. 455 of 2012. The second is an affidavit filed in September 2013. There is a third affidavit which is a response to the report of the Justice Hegde Commission[5] but we are not concerned with its contents in any detail.

28. In the affidavit of 5th December, 2012 it is stated that the persons killed allegedly through 'extra-judicial executions' as stated by the petitioners are those killed during counter-insurgency operations in Manipur. It is further stated that "in most of these cases, persons might have been killed in the lawful exercise of the powers and/or performance of the official duties by personnel from the police and armed forces."

29. Attention is then drawn to provisions of law that permit the killing of a human being by a police officer or armed forces personnel subject to certain conditions and which may not amount to an offence but might be justifiable under law. Reference in this regard is made to Section 46 of the Code of Criminal Procedure , 1973 (for short 'the Cr.P.C.') and it is submitted that in certain extreme situations it may be justifiable even if the death of a person being arrested is caused if the conditions mentioned in the Section are satisfied and if the person being arrested is accused of an offence punishable with death or with imprisonment for life.

30. Reference is also made to Sections 129 to 132 of the Cr.P.C. relating to the "Maintenance of Public Order and Tranquility". These sections allow the use of force, including by the armed forces, to disperse an unlawful assembly and in extreme situations use of such force may even lead to causing the death of a person while dispersing such an unlawful assembly.

31. The affidavit also refers to Chapter 4 of the Indian Penal Code (for short 'the IPC') particularly Sections 99 to 106 which deal with the right of private defence. It is submitted that when personnel from the police or armed forces are attacked with firearms etc. by insurgents or other criminals, uniformed personnel have the right to exercise their right of private defence which may extend to causing the death of such an insurgent or criminal.

32. Reliance is placed on Section 4 of the AFSPA where, for the maintenance of public order in a "disturbed area" the armed forces may fire upon or otherwise use force even to the extent of causing death. However, this power is given only to certain personnel of the armed forces and that power may be exercised only if that person is of opinion that it is necessary to do so for the maintenance of public order, after giving such due warning as he may consider necessary. It is also provided that the person fired upon must be acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.

33. It is stated that without going into the alleged extra-judicial executions, the death of 1528 persons in the cases mentioned by the petitioners is caused by uniformed personnel in the lawful exercise of powers vested and in circumstances that justify the use of such force under the legal provisions mentioned above.

34. It is emphasized that only around 1500 militants are holding a population of about 23 lakhs in Manipur to ransom and keeping the people in constant fear.[6]

35. In the affidavit of September 2013, a broad overview of insurgency in the north-east is given by the Union of India. With specific reference to Manipur, it is stated that a large number of terrorist groups are active in the State with varying demands including outright secession from India. These terrorist groups have safe havens across the border and they have been indulging in the cold blooded murder of dignitaries, security force personnel and innocent citizens including political leaders, bureaucratic functionaries etc. These groups have resorted to burning copies of the Constitution of India and the national flag and have, to a certain extent, subverted the local administration and muzzled the voice of the people by violence and threats of violence.

36. It is further stated that the armed forces conduct operations within the framework of the military ethos wherein local customs and traditions are deeply valued and respected and restraint is exercised. This is reflected, significantly, in the number of casualties suffered since 1990 - approximately for every two terrorists killed, one security force personnel has been killed and for every two security force personnel killed, three of them have been wounded in operations.

37. The Union of India has filed detailed written submissions on 4th May, 2016 which essentially reiterate and reaffirm the submissions made on affidavit. However, it is pointed out that "a militant or terrorist or insurgent, is an 'Enemy' within the aforesaid definition [Section 3(x) of the Army Act, 1950] and it is the bounden duty of all Army Personnel to act against a militant or a terrorist or an insurgent, while he is deployed in a 'disturbed area' under AFSPA.

In case Army personnel do not act against an enemy or show cowardice, it is a Court-martial offence under Army Act Section 34, punishable with death."[7] Reference is made to Ex-Havildar Ratan Singh v. Union of India[8] to conclude that a militant is an enemy within the definition of Section 3(x) of the Army Act, 1950. This view is carried forward by submitting that the victims have been persons waging war against the Government of India and in terms of Section 121 of the IPC anyone who joins an insurrection against the Government of India has committed an offence of waging war.

In this regard, reference is made to State (NCT of Delhi) v. Navjot Sandhu[9] wherein it is held that under Section 121 of the IPC 'war' is not contemplated as conventional warfare between two nations. Organizing and joining an insurrection against the Government of India is also a form of war. Affidavits filed by the State of Manipur

38. The State of Manipur has filed five affidavits in W.P. (Crl.) No. 129 of 2012 but only two of them are substantive. In the affidavit dated 17th November, 2012 it is stated that of the 10 cases detailed by the petitioners in the writ petition, reports have been furnished by Manipur to the NHRC in all of them and significantly, in none of these cases has the NHRC given a finding of violation of human rights. In this context, it is submitted that the NHRC is a high-powered body whose Chairman is a retired Chief Justice of India and under the circumstances, it cannot be described as a toothless tiger. However, it is submitted that this Court may require the NHRC to indicate the status of the 10 cases and intervene only if the NHRC has failed to perform its statutory functions to safeguard vital fundamental rights.

39. With regard to the problem of insurgency in Manipur, it is stated that Manipur has an international border of over 360 kms with Myanmar. About 30 extremist organizations operate in Manipur and all of them are very powerful and heavily armed with sophisticated weapons, including rocket launchers. Their aim and object is to form an independent Manipur by its secession from India. They have been indulging in violent activities including killing of civilians and security forces and law abiding citizens of Manipur to achieve their objective.

They have also been intimidating, extorting and looting civilians for collection of funds and making efforts to get established abroad for influencing public opinion and securing their assistance by way of arms and training in achieving their secessionist objective. Though these organizations have been declared as unlawful organizations under the UAPA, the ordinary criminal laws are insufficient to deal with insurgency problems which have warranted enforcement of the AFSPA. The State of Manipur has also given the following statistics for the period 2000 to October 2012 of police personnel killed and injured, security forces personnel killed and injured and civilians killed and injured to highlight the problem of insurgency in the State:

Police killed

Police injured

Security forces killed

Security forces injured

Civilians killed

Civilians injured

105

178

260

466

1214

1173

40. It is further stated that the facts indicate that the insurgents are different from other criminals inasmuch as they are heavily armed and operate from foreign countries and it is not possible to identify the members of the banned organizations and though they may be few in number, they have many supporters and sympathizers who provide logistical support to them.

41. The other affidavit filed by the State of Manipur on 3rd August, 2013 is effectively a reply to the Court appointed Committee (which Committee is referred to a little later). The affidavit reiterates the presence of a large number of underground groups who propagate freedom, independence and sovereignty of the State of Manipur and possess sophisticated arms, some of which are transported from neighbouring countries. The affidavit reiterates the statistics and submissions made in the earlier affidavit of 17th November, 2012 and indicates that the genesis of declaring the entire State as a "disturbed area" goes back to a notification dated 15th October, 1970 and it has continued to be declared as a "disturbed area" since then. In August 2004 the Imphal Municipal Area in the State was de-notified as a "disturbed area" under the AFSPA. The State Government has been trying to de-notify more and more areas but given the circumstances, it is finding it difficult and unable to do so.

42. It is stated that to synergize security issues and counter insurgency operations in Manipur a Unified Headquarter was established on 16th September, 2004. This consists of the Combined Headquarters headed by the Chief Minister of Manipur as its Chairman, Strategy and Operations Group headed by the Chief Secretary, Manipur as its Chairman and Operational Intelligence Group headed by the Director General of Police as its Chairman. Under the circumstances, it is stated that even though the number of incidents of militancy are large and casualties are heavy, the State Government will not tolerate even one false encounter and will also ensure that no innocent security personnel is victimized or harassed for an innocent act performed in good faith and without any mala fide intentions.

43. With regard to the specific cases dealt with by the Court appointed Commission and the recommendations made by the said Commission, the State of Manipur has raised several preliminary objections and made several submissions. For the present purposes, it is not necessary for us to go into this aspect of the matter. It is stressed that the implementation of AFSPA is necessary and that it has yielded positive results in reducing militancy in Manipur.

44. The State of Manipur has filed a supplementary counter affidavit on 4th December, 2012 detailing its viewpoint with regard to the 10 cases identified by the petitioners. For our purposes, it is not necessary to deal with the merits of these cases. Written submissions have also been filed by Manipur on 3rd May, 2016 and these are a reiteration of the views expressed in the affidavits filed. Affidavits filed by the NHRC

45. The NHRC has filed as many as four affidavits in W.P. (Crl.) No. 129 of 2012.

46. In the first affidavit dated 30.11.2012/03.12.2012, it is stated that the NHRC has issued guidelines on 29th March, 1997 recommending the correct procedure to be followed by all the States in relation to deaths due to encounters between the police and others. These guidelines were forwarded with a request to all the States to issue appropriate directions through the Director General of Police to all the Police Stations.

47. The guidelines were revised on 2nd December, 2003 on the basis of experience gained over the previous six years. It was noted, unfortunately, that most of the States were not following the earlier guidelines in their true spirit.

48. One of the important modifications made in the guidelines issued on 2nd December, 2003 was the requirement of a Magisterial Enquiry in all cases of death which occur in the course of police action. Another significant modification was that all States were required to furnish six- monthly statements to the NHRC in respect of all deaths in police stations in a prescribed format along with the post-mortem report and inquest report.

49. The guidelines were further modified on 12th May, 2010 once again with the NHRC observing that most of the States were not following the recommendations earlier made in their true spirit. These guidelines recommended that the Magisterial Enquiry must be compulsorily conducted and completed in all cases of death which occur in the course of police action preferably within three months. It was also recommended that a report be sent to the NHRC in a format prescribed in the guidelines in all cases of death in police action within 48 hours of the death occurring.

50. The NHRC has generally stated in the affidavit that in all cases the State Governments invariably take more than reasonable time to submit the Magisterial Enquiry report, post-mortem report, inquest report and ballistic expert report and in view of these delays the NHRC is not in a position to conclude its proceedings at an early date.

51. With regard to deaths due to action taken by members of the armed forces, the NHRC says that it has no option, in view of Section 19 of the Protection of Human Rights Act, 1993 except to seek a report from the Central Government and thereafter make a recommendation and publish it with the action taken by the Central Government.[10]

52. It is stated that between 2007 and 2012, the NHRC has received 1671 complaints/information regarding fake encounters (not necessarily from Manipur) and it has awarded monetary compensation to the tune of Rs. 10,51,80,000/- (Rs. Ten Crores Fifty One Lakhs and Eighty Thousand) in 191 cases. It is further stated that on receiving the Magisterial Enquiry report and other related reports, if the NHRC finds itself in agreement with them, and if as per the report the encounter has been found to be genuine, then it closes the complaint by passing an order to that effect. However, if it is found that the encounter was fake, then a show cause notice is issued to the concerned State Government to appropriately compensate the family of the victim. In other words, between 2007 and 2012 the NHRC has found 191 cases of fake encounters. It is not clear which of these, if any, relate to the 1528 cases from Manipur.

53. By way of a complaint (if we may call it that) the NHRC states in the affidavit that it has written to the Central Government to increase its staff but the request has not been acted upon. It also states that to give more teeth to the guidelines issued by the NHRC, it would be appropriate if this Court directs all the States to strictly comply with them both in letter and spirit.

54. In the second affidavit dated 3rd January, 2013 it is stated that as far back as on 10th August, 1995 the NHRC had advised all Chief Ministers to introduce video-filming of the post-mortem examination with effect from 1st October, 1995 in all cases of deaths in police action or armed forces action to avoid any distortions of facts due to alleged pressure of the local police.

55. In a communication dated 27th March, 1997 the NHRC expressed its distress to all the Chief Ministers on the quality of post-mortem reports being prepared and sent to the NHRC. Along with the letter, the NHRC annexed a Model Autopsy Form prepared by it based on the U.N. Model Autopsy Protocol and recommended to all the State Governments to prescribe the said Model Autopsy Form and the Additional Procedure for Inquest as indicated in the letter dated 27th March, 1997.

56. In the affidavit, the NHRC expresses helplessness in taking any coercive measures since it has no power to take action against persons or authorities who do not follow the guidelines laid down by it nor does it have power to give directions or pass orders but can only make recommendations. By way of an example, it is stated that the Government of Delhi by its letters dated 9th February, 2011 and 14th June, 2011 has refused to conduct a Magisterial Enquiry in case of police encounters and has clearly stated that if the Home Department is satisfied that such an enquiry is to be conducted, only then would it be conducted.

57. The NHRC has again lamented the shortage of staff available with it resulting in delays taking place and follow up action being made more difficult. The NHRC has also lamented the poor quality of the Magisterial Enquiry reports received by it wherein the family of the person killed is not examined nor independent witnesses examined.

58. The NHRC has annexed some statistics of disposal of cases along with the affidavit but they are not necessary for the present purposes. The NHRC has prayed that in view of the circumstances and on the basis of its experience of several years the suggestions incorporated in the affidavit may be made an order of this Court.

59. With regard to the alleged fake encounter killings, the third affidavit dated 21st February, 2014 filed by the NHRC is extremely vague. All that it says is that the NHRC held a camp sitting in Imphal, Manipur between 23rd October, 2013 and 25th October, 2013 to consider the pending complaints of extra-judicial killings by the armed forces/police. During the sittings the NHRC had listed 46 cases, as per the cause list attached, but only in 5 cases it could reach a conclusion that the victims were murdered/killed by the armed forces/police while they were in their custody. Accordingly, monetary relief ranging from Rs. 5 lakhs to Rs. 20 lakhs was ordered to be given to their next of kin. It is not at all clear which five cases were dealt with. It is also not clear what happened to the remaining cases. All that the NHRC has annexed with the affidavit is the record of proceedings in one case relating to late Thangjam Thoithoi in which his next of kin was awarded Rs. 5 lakhs by way of compensation.

60. In the fourth affidavit dated 27th July, 2015 the NHRC has given the progress in respect of 62 cases of which details are given in the writ petition. Subsequently, during the course of hearing, the up to date information was given to us and therefore it is not necessary to refer to the information given in the affidavit. All that needs to be said is that the NHRC has complained that the State of Manipur has not been furnishing the required documents and information within the prescribed time and has also not been submitting the compliance report in respect of the recommendations made for providing monetary relief.

61. As mentioned above, the NHRC has furnished information in respect of the 62 cases during the course of hearing and also in the written submissions filed on 4th May, 2016. The gist of the information is as follows:

Compensation awarded by NHRC or High Court

Show cause notices pending for award of compensation

Pending disposal with the NHRC

Cases closed

No case registered with the NHRC

Total

27

4

17

7

7

62

62. The above chart clearly suggests that 31 of the 62 cases were those of a fake encounter or an extra-judicial killing. In 7 of the 62 cases no complaint was made to the NHRC. As regards, the cases that have been closed, we find from a perusal of some orders produced before us that some of these complaints have been closed without any application of mind and simply because of the conclusion arrived at in the Magisterial Enquiry report, which is really an administrative report.

63. The written submissions submitted by the NHRC are a reiteration of the submissions made in the various affidavits filed by it and presently do not need any detailed discussion. However, it is pointed out (perhaps with a tinge of frustration) that the petitioners might not be very wrong in describing the NHRC as a toothless tiger!

Proceedings in this Court:

64. The petition was taken up for consideration by this Court from time to time on the above broad pleadings. At this stage it is necessary to have a brief overview of the proceedings that took place in this Court over the last couple of years.

65. On 1st October, 2012 notice was issued in the writ petition to the respondents, that is, the Union of India and the State of Manipur. A request was also sent to the National Human Rights Commission for its response in the matter. Ms. Menaka Guruswamy an advocate of this Court was requested to assist as Amicus Curiae.

66. On 4th January, 2013 the case was heard at great length and it was proposed to appoint a high-powered Commission to inform this Court about the correct facts with regard to the killing of persons in the cases cited by the petitioners. Accordingly, a three-member Commission was constituted with Mr. Justice N. Santosh Hegde, a former Judge of this Court as the Chairperson; Mr. J.M. Lyngdoh, former Chief Election Commissioner and Mr. Ajay Kumar Singh, former Director General of Police and Inspector General of Police, Karnataka as Members.

67. The Commission was requested to make a thorough enquiry in six identified cases and record a finding regarding the antecedents of the victims and the circumstances in which they were killed. The State Government and all other agencies were directed to hand over to the three- member Commission all relevant records. The Commission was free to devise its own procedure and also address the larger question of the role of the State Police and the security forces in Manipur and to make recommendations. The Commission was requested to give its report within twelve weeks. The order passed by this Court is reported as Extra-Judicial Execution Victim Families Association v. Union of India.[11]

68. On 30th March, 2013 the Commission submitted its report and the case was taken up on 4th April, 2013. While recording its gratitude for the painstaking effort put in by the three-member Commission, this Court noted that the Commission had found that in all the six cases, the killing of the victims was not in any true encounter with the police or the security forces. A very brief resume of the conclusions arrived at by the three- member Commission was noted as follows: Case 1 - Md. Azad Khan The incident in which the deceased Md. Azad Khan was killed was not an encounter nor was he killed in exercise of the right of self-defence.

69. The Commission further found that there was no evidence to conclude that the deceased was an activist of any unlawful organization or was involved in any criminal activities. However, as per the report of the NHRC now made available to us, it is stated that the High Court of Manipur passed a direction in W.P. (Crl.) 49 of 2009 for monetary relief of Rs. 5 lakhs to the mother of the deceased since the police personnel and Assam Rifles personnel were responsible for the death. Case 2 - Khumbongmayum Orsonjit The incident in which the deceased Khumbongmayum Orsonjit died is not an encounter nor can the security forces plead that it was in the exercise of their right of private defence.

70. The Commission further found that Khumbongmayum Orsonjit did not have any adverse criminal antecedents. As per the latest report of the NHRC, a notice has been issued to the Ministry of Home Affairs of the Government of India to show cause why monetary relief should not be paid to the next of kin of the deceased. Apparently, the matter is still pending with the NHRC. Case 3 - Nameirakpam Gobind Meitei & Nameirakpam Nobo Meitei The incident in question is not an encounter but an operation by the security forces wherein death of the victims was caused knowingly.

71. The Commission further found that the two deceased did not have any criminal antecedents. As per the latest report of the NHRC, a recommendation has been made to the Government of Manipur for payment of Rs. 5 lakhs to the next of kin of the two deceased. The matter is still pending with the NHRC on the request of the State Government awaiting the decision of the present petition by this Court. Case 4 - Elangbam Kiranjit Singh Even if the case put forward by the complainant cannot be accepted, the case put forth by the security forces cannot also be accepted because they exceeded their right of private defence. Therefore, this Commission is of the opinion that the incident, in question, cannot be justified on the ground of self-defence.

72. The Commission further found that there were no adverse antecedents against the deceased. As per the latest report of the NHRC, a notice has been issued to the Government of Manipur to show cause why monetary relief be not paid to the next of kin of the deceased. Apparently the matter is pending with the NHRC awaiting compliance by the State Government. Case 5 - Chongtham Umakanta This incident in which Umakanta died has compelled us to come to the conclusion that though the manner in which he was picked up, as stated by the complainant, cannot be accepted. The manner in which he died definitely indicates that this could not have been an encounter. For the reasons stated above, we are of the considered opinion that the case put forth on behalf of the security forces that the incident was an encounter and that Umakanta was killed in an encounter or in self-defence cannot be accepted.

73. The Commission further found that although there were allegations against the deceased, the veracity of those allegations was not established. We have been informed that the NHRC has made a recommendation to the Government of Manipur for payment of Rs. 5 lakhs to the next of kin of the deceased. Apparently the matter is pending with the NHRC. Case 6 - Akoijam Priyobrata @ Bochou Singh The deceased did not die in an encounter.

74. The Commission further found that there is no acceptable material to come to the conclusion that the deceased had any adverse antecedents. The NHRC has recommended to the Government of Manipur to pay Rs. 5 lakhs to the next of kin of the deceased. The matter is still pending with the NHRC on the request of the State Government awaiting our decision in this petition.

75. In other words, in all the six cases, the Commission found that the encounter (if any) was not genuine or that the use of force was excessive.

76. We may mention that during the course of oral submissions, the learned Attorney General was rather critical of the procedure adopted by the Commission and the conclusions arrived at. His principal grievance was that the right of self-defence has no role in an encounter with militants and terrorists. [This is contrary to the stand taken by the Union of India in the affidavit filed in December 2012]. He also relied on Kailash Gour v. State of Assam[12] to contend that the rules of evidence and the standards of evaluating the evidence cannot be given a go-by even by a Court appointed Commission.

77. It is not necessary for us to deeply go into the report of the Commission in the view that we are taking. For the present, we must acknowledge the efforts put in by the Commission and also acknowledge that it has put us on the right track and has convinced us that the allegations made by the petitioners cannot be summarily rubbished. There is some truth in the allegations, calling for a deeper probe. How the whole truth should be arrived at is the question that concerns us. However, before that exercise is undertaken, the position in law must be clear and that is what we will endeavour to do. Maintainability of the writ petition

78. An objection was raised by the learned Attorney General to the effect that in a writ petition like the present one, a prayer to order a police investigation is not maintainable. It was submitted that the procedure laid down in the Cr.P.C. is quite adequate and if there is any inaction on the part of the authorities, recourse may be had to the grievance redressal procedure laid down in the Cr.P.C. In this context reliance was placed on Hari Singh v. State of U.P.,[13] Aleque Padamsee v. Union of India,[14] Sunil Gangadhar Karve v. State of Maharashtra[15] and Doliben Kantilal Patel v. State of Gujarat.[16]

79. We are not impressed by this submission. This is not an ordinary case of a police complaint or a simple case of an FIR not being registered. This case involves allegations that the law enforcement authorities, that is, the Manipur Police along with the armed forces acting in aid of the civil power are themselves perpetrators of gross human rights violations. This is also not a case where the ordinary criminal law remedy provides an adequate answer. A particular situation of internal disturbance has prevailed for decades and the ordinary citizens of Manipur have had little access and recourse to law in the situation that they find themselves placed in. To make matters worse, FIRs have been registered against the victims by the local police thereby leaving the next of kin of the deceased with virtually no remedy under the Cr.P.C.

80. This case immediately brings to mind the view expressed by Dr. Ambedkar with respect to Article 32 of the Constitution: "If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other article except this one.

It is the very soul of the Constitution and the very heart of it." If in a case such as the present, the petitioners are precluded, at the threshold, from approaching this Court or a High Court under Article 226 of the Constitution, possible grave injustice would have been done to the next of the kin of the victims who are alleged to have been killed in a fake encounter or have been victims of alleged extra-judicial executions.

We are not satisfied that this petition under Article 32 of the Constitution should not be entertained. The truth has to be found out however inconvenient it may be for the petitioners or for the respondents. In matters concerning gross violations of human rights this Court and every constitutional court should adopt an 'open door policy'. The preliminary objection is rejected.

Constitutional provisions:

81. The background of the case, as we have understood it, leads us to conclude that we are concerned in this petition not so much with a law and order situation in Manipur, but a public order situation.

82. Maintenance of public order falls within the jurisdiction of a State in view of Entry 1 of List II of the Seventh Schedule to the Constitution.[17] But, the Union Government may deploy its armed forces in any State in aid of the civil power in terms of Entry 2A of List I of the Seventh Schedule to the Constitution.[18] This has been the constitutional position ever since Entry 1 of List II of the Seventh Schedule was amended by the Constitution (Forty-second Amendment) Act, 1976 and Entry 2A was inserted in List I of the Seventh Schedule to the Constitution by the same Amendment Act. What is of importance is that deployment of the armed forces should only be in aid of the civil power.

83. Article 352 of the Constitution finds place in Part XVIII of the Constitution relating to emergency provisions. This Article was amended by the Constitution (Forty-fourth Amendment) Act, 1978 and the amendment that concerns us is the substitution of the words 'armed rebellion' by the words 'internal disturbance' in clause (1) of Article 352 of the Constitution.[19]

84. The impact of the above substitution of words was the subject matter of consideration by a Constitution Bench of this Court in Naga People's Movement of Human Rights v. Union of India.[20] It was held therein that though an internal disturbance is cause for concern, it does not threaten the security of the country or a part thereof unlike an armed rebellion which could pose a threat to the security of the country or a part thereof. Since the impact of a proclamation of emergency under Article 352 of the Constitution is rather serious, its invocation is limited to situations of a threat to the security of the country or a part thereof either through a war or an external aggression or an armed rebellion, but not an internal disturbance.

To put it negatively, an internal disturbance is not a ground for a proclamation of emergency under Article 352 of the Constitution. This is what the Constitution Bench had to say in this regard: "Prior to the amendment of Article 352 by the Forty-fourth Amendment of the Constitution it was open to the President to issue a proclamation of emergency if he was satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or "internal disturbance". By the Forty-fourth Amendment the words "internal disturbance" in Article 352 have been substituted by the words "armed rebellion".

The expression "internal disturbance" has a wider connotation than "armed rebellion" in the sense that "armed rebellion" is likely to pose a threat to the security of the country or a part thereof, while "internal disturbance", though serious in nature, would not pose a threat to the security of the country or a part thereof.

The intention underlying the substitution of the word "internal disturbance" by the word "armed rebellion" in Article 352 is to limit the invocation of the emergency powers under Article 352 only to more serious situations where there is a threat to the security of the country or a part thereof on account of war or external aggression or armed rebellion and to exclude the invocation of emergency powers in situations of internal disturbance which are of lesser gravity. This has been done because a proclamation of emergency under Article 352 has serious implications having effect on the executive as well as the legislative powers of the States as well as the Union."

85. However, a proclamation of emergency could be made in the event of an internal disturbance (not covered by Article 352 of the Constitution) by resort to Article 356 of the Constitution.[21] This has been so held in Naga People's Movement of Human Rights in the following words: "There can be a situation arising out of internal disturbance which may justify the issuance of a proclamation under Article 356 of the Constitution enabling the President to assume to himself all or any of the functions of the Government of the State. That would depend on the gravity of the situation arising on account of such internal disturbance and on the President being satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with provisions of the Constitution."

86. There is therefore a clear distinction between an armed rebellion that threatens the security of the country or a part thereof and an internal disturbance. The former comes within the purview of Article 352 and Article 356 of the Constitution while the latter comes within the purview only of Article 356 of the Constitution and not Article 352 of the Constitution. However, as observed by the Justice Punchhi Commission on Centre-State Relations in March 2010 an 'internal disturbance' by itself cannot be a ground for invoking the power under Article 356(1) of the Constitution "if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution."[22]

This is what was said: "The 44th Constitutional Amendment substituted "armed rebellion" for "internal disturbance" in Article 352. "Internal disturbance" is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President's rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution."

87. At this stage, it is also important to refer to Article 355 of the Constitution.[23] This Article makes it the duty of the Union Government to protect a State from external aggression and internal disturbance. By necessary implication, an external aggression for this purpose includes a war and an armed rebellion that threatens the security of the country or a part thereof. We therefore have four situations: war, external aggression and armed rebellion, all of which can threaten the security of the country or a part thereof and fourthly an internal disturbance. In providing protection against an internal disturbance, the Union Government is entitled and empowered to deploy the armed forces of the Union under Entry 2A of List I of the Seventh Schedule to the Constitution "in aid of the civil power".

88. The conclusion therefore is that in the event of a war, external aggression or an armed rebellion that threatens the security of the country or a part thereof, it is the duty of the Union Government to protect the States and depending on the gravity of the situation, the President might also issue a proclamation of emergency. That apart, the Union Government also has a duty to protect the States from an internal disturbance. However the President cannot, in the event of the latter situation, issue a proclamation of emergency except by using the drastic power under Article 356 of the Constitution which has in-built checks and balances. In providing protection to the States in the event of an internal disturbance, the armed forces of the Union may be deployed "in aid of the civil power". What does the expression "in aid of the civil power" mean?

89. In Naga People's Movement of Human Rights the Constitution Bench sought to explain this expression by implication, namely, a situation that has made the deployment of the armed forces of the Union necessary for the maintenance of public order. It was made clear that such deployment does not mean that the civil power becomes dormant - the civil power continues to function and the armed forces do not supplant or substitute the civil power - they only supplement it. This is what this Court had to say:

"The expression "in aid of the civil power" in Entry 1 of the State List and in Entry 2-A of the Union List implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State. The word "aid" postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function.

The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power in the State does not comprehend the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State. We are, however, unable to agree with the submission of the learned counsel for the petitioners that during the course of such deployment the supervision and control over the use of armed forces has to be with the civil authorities of the State concerned or that the State concerned will have the exclusive power to determine the purpose, the time period and the areas within which the armed forces should be requested to act in aid of civil power.

In our opinion, what is contemplated by Entry 2-A of the Union List and Entry 1 of the State List is that in the event of deployment of the armed forces of the Union in aid of the civil power in a State, the said forces shall operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of the armed forces is effectively dealt with and normalcy is restored."

90. On a reading of the above passage, it is clear that the Constitution Bench does not limit the deployment of the armed forces of the Union only to a situation affecting public order. The armed forces of the Union could be deployed for situations of law and order (although this would be extremely unusual and rare) as also for humanitarian aid such as in the event of an earthquake or floods, should it be necessary, in aid of the civil power. This is because Entry 2A of List I of the Seventh Schedule to the Constitution (for short Entry 2A of the Union List) does not limit the deployment of the armed forces to any particular situation. The view of this Court, beginning with the decision of the Federal Court in United Provinces v. Atiqa Begum[24] has always been that legislative entries must not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.[25] But we are making this observation only en passant.

91. Be that as it may, what is of significance is that this Court has implied that the armed forces of the Union could be deployed in public order situations to aid the civil power and on such deployment, they shall operate in cooperation and conjunction with the civil administration and until normalcy is restored. This view is predicated on and postulates that normalcy would be restored within a reasonable period. What would be the consequence if normalcy is not restored for a prolonged or indeterminate period?

In our opinion, it would be indicative of the failure of the civil administration to take effective aid of the armed forces in restoring normalcy or would be indicative of the failure of the armed forces in effectively aiding the civil administration in restoring normalcy or both. Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process and would be a travesty of the jurisdiction conferred by Entry 2A of the Union List for the deployment of the armed forces to normalize a situation particularly of an internal disturbance.

92. This discussion is intended to lay down three broad principles: The public order situation in Manipur is, at best, an internal disturbance. There is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion. For tackling the internal disturbance, the armed forces of the Union can be deployed in aid of the civil power. The armed forces do not supplant the civil administration but only supplement it. The deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period.

Statutory provisions

(i) The Armed Forces (Special Powers) Act, 1958

93. The Armed Forces (Special Powers) Act, 1958 (hereinafter 'the AFSPA') was originally enacted as the Armed Forces (Assam and Manipur) Special Powers Act, 1958. It was initially extended to the State of Assam and the Union Territory of Manipur. Since then the entire Union Territory of Manipur (and subsequently the entire State of Manipur) has been declared a disturbed area in terms of Section 3 of the AFSPA.[26] In other words, Manipur has been a disturbed area for about sixty years! A declaration that the State of Manipur is a disturbed area can be made by the Governor of Manipur or the Central Government if either is of opinion that the State of Manipur or a part thereof "is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary". The declaration under Section 3 of the AFSPA is made through a notification published in the Official Gazette. As mentioned above, Manipur has been a disturbed area since 1958 as a result of declarations issued under Section 3 of the AFSPA from time to time. However, the Imphal Municipal Area ceased to be a 'disturbed area' from 12th August, 2004.

94. The postulates for a declaration under Section 3 of the AFSPA are that a public order situation exists and that the assistance of the armed forces of the Union is required in aid of the civil power. In such a situation, the AFSPA enables the armed forces of the Union to exercise vast powers.

95. One of the vast powers exercisable by the armed forces of the Union in a disturbed area is in terms of Section 4(a) of the AFSPA. The power so exercisable includes the use of force even to the extent of causing the death of "any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances".[27]

96. Clearly, the power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances that is:

(i) after giving such due warning as the authorized officer may consider necessary;

(ii) the alleged offender is acting in contravention of any law or order in force in the disturbed area which

(a) prohibits the assembly of five or m