EXTRA JUDL.EXEC.VICTIM FAMILIES ASSN&ANR Vs. UNION OF INDIA & ANR

CONSTITUTION OF INDIA 1949

Section 32 - Remedies for enforcement of rights conferred by this Part

Tags Interpretation

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Crl.), 129 of 2012, Judgment Date: Jul 08, 2016

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
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.
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:

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:

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 more persons or (b) prohibits the
carrying of weapons or of things capable of being used as weapons or of
fire-arms, ammunition or explosive substances. In the present case, we are
not concerned with other powers conferred by Section 4 of the AFSPA. What
we are concerned with is whether any of the victims referred to by the
petitioners contravened any prohibitory order, that is, an order
prohibiting an assembly of five or more persons or an order prohibiting the
carrying of any weapons or of things capable of being used as weapons or of
fire-arms, ammunition or explosive substances. We are also concerned, in
the facts of this case, with the power to cause death for violating such a
prohibitory order.
97. Section 6 of the AFSPA grants immunity, inter alia, from prosecution
to any person in respect of anything done or purported to be done in
exercise of the powers conferred by the AFSPA (including Section 4(a)
thereof), except with the previous sanction of the Central Government.[28]
(ii) Code of Criminal Procedure, 1973
98. Section 4 of the Cr.P.C. as well as Section 5 of the Cr.P.C. concern
themselves with investigation, enquiry, trial and other proceedings in
relation to offences.[29] The sum and substance of both these provisions is
that the investigation, enquiry, trial and other proceedings in respect of
offences under the Indian Penal Code, 1860 (or the IPC) and other laws
shall be carried out in accordance with the provisions of the Cr.P.C.
However, this does not preclude any enactment regulating the manner or
place of investigating, inquiring into, trying or otherwise dealing with
such offences. Further, the applicability of any other special or local
law or any special jurisdiction or power conferred or any special procedure
provided by any other law for the time being in force shall not be affected
by the Cr. P.C. For example, there are special requirements for dealing
with juveniles in conflict with law and therefore that special law would be
applicable to those juveniles to the extent it provides for the
investigation, enquiry or procedure different from the Cr.P.C. In other
words, unless a statute specifically provides for it, the investigation,
enquiry, trial and other proceedings in respect of offences under the IPC
and other laws shall be carried out in accordance with the provisions of
the Cr.P.C. This is mentioned in the context of the submission by the
learned Attorney General that the provisions of the Cr.P.C. would not be
applicable to offences committed by Army personnel on active duty.
(iii) The Unlawful Activities (Prevention) Act, 1967
99. The Unlawful Activities (Prevention) Act, 1967 (hereafter ‘the
UAPA’) is concerned, inter alia, with cession and secession of a part of
the territory of India and terrorist activities. Section 2(m) of the UAPA
defines a terrorist organization as one listed in Schedule 1 to the UAPA or
an organization operating under the same name as the listed
organization.[30] Schedule 1 of the UAPA lists some organizations in
Manipur such as People’s Liberation Army (PLA), United National Liberation
Front (UNLF), People’s Revolutionary Party of Kangleipak (PREPAK),
Kangleipak Communist Party (KCP), Kanglei Yaol Kanba Lup (KYKL) and Manipur
People’s Liberation Front (MPLF). By definition, therefore, these are
terrorist organizations.
100. An unlawful activity is defined in Section 2(o) of the UAPA as,
inter alia, an activity intended to or supporting any claim to cede a part
of the territory of India or secede a part of the territory of India from
the Union.[31] Similarly, an unlawful association is defined in Section
2(p) of the UAPA as an association that has, as its object, inter alia, any
unlawful activity.[32]
101. In terms of Section 15 of the UAPA a terrorist act is one that
threatens or is likely to threaten, amongst others, the unity, integrity,
security or sovereignty of India or intends to strike terror or is likely
to strike terror in the people or any section of the people by any one of
the activities mentioned in the section such as using bombs or firearms or
other lethal weapons that cause or are likely to cause death or injury.[33]
102. In view of the above, there is no doubt that the organizations in
Manipur that are mentioned above are not only terrorist organizations or
terrorist gangs (as defined in Section 2(l) of the UAPA)[34] but are
unlawful associations, for they threaten the unity, integrity, security or
sovereignty of India. Would membership of such an organization incriminate
a person? This will be discussed a little later.
(iv) The Army Act, 1950
103. The Army Act, 1950 (for short ‘the Army Act’) is of considerable
importance for deciding the present controversy. A person subject to the
Army Act is said to be in active service if that person is, inter alia,
attached to or forms a part of a force engaged in an operation against an
enemy. There is no dispute that the Army personnel in Manipur are on active
service. An ‘enemy’ is inclusively defined as armed mutineers, armed
rebels, armed rioters, pirates and any person in arms against whom it is
the duty of any person subject to military law to act.[35] The enemy must
be armed.
104. The Army Act also provides for offences in relation to the enemy
which are punishable with death,[36] offences not punishable with death[37]
and offences that are more severely punishable while on active service.[38]
The significance of these provisions is best understood in the background
of the submission of the learned Attorney General that under the AFSPA, the
armed forces are entitled while maintaining public order in a disturbed
area to cause the death of an enemy, that is a militant, terrorist,
insurgent, underground element or secessionist who belongs to or is
associated with a terrorist organization or terrorist gang or unlawful
association and is threatening or is likely to threaten the unity,
integrity, security or sovereignty of India.
105. For an offence committed by a person subject to the Army Act, the
alleged offender may be tried by a Court Martial but the period of
limitation for the trial of such an alleged offender is regulated by
Section 122 of the Army Act. The limitation provided is a period of three
years commencing from (a) the date of the offence; or (b) when the
commission of the offence is not known to the person aggrieved or the
competent authority, the date on which the commission of such an offence
comes to the knowledge of the person aggrieved or the competent authority
whichever is earlier; or (c) when the identity of the offender is not
known, the date on which the identity is known to the person aggrieved or
the competent authority, whichever is earlier.
106. Section 125 and Section 126 of the Army Act are of considerable
importance in this context and as far as this case is concerned.[39] These
Sections ought to be read in conjunction with Section 4 and Section 5 of
the Cr.P.C. These Sections provide that when both a criminal court and a
Court Martial have jurisdiction in respect of an offence, the first option
would be with the Army to decide whether the accused person should be
proceeded against in a criminal court or before a Court Martial. However,
if the criminal court is of opinion that the proceedings should be
instituted before itself, it may require the Army to send the alleged
offender to the nearest Magistrate to be proceeded against or to postpone
the proceedings pending a reference to the Central Government. In other
words, in the event of a conflict of jurisdiction, whether an alleged
offender should be tried by a criminal court constituted under the Cr.P.C.
or by a Court Martial constituted under the Army Act, that conflict shall
be referred to the Central Government for passing an appropriate order.
107. In this context, it is necessary to refer to the Criminal Courts and
Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules
provide, inter alia, that when a person subject to the Army Act is brought
before a Magistrate and is charged with an offence also triable by a Court
Martial, then such Magistrate shall not proceed to try that person or
commit the case to the Court of Session unless he is moved thereto by a
competent Army authority or the Magistrate records his opinion in writing
that he should so proceed without being so moved.[40] In the latter event,
the Magistrate shall give a written notice of fifteen days to the
Commanding Officer of that person and shall until then effectively stay his
hands.[41]
108. In the event a Magistrate concludes that a person subject to the
Army Act has committed an offence triable by the Magistrate but the
presence of such a person cannot be procured except through the competent
Army authority, then the Magistrate “may by a written notice require the
Commanding Officer of such person either to deliver such person to a
Magistrate to be named in the said notice for being proceeded against
according to law, or to stay the proceedings against such person before the
Court Martial …… and to make a reference to the Central Government for
determination as to the court before which proceedings should be
instituted.”[42]
Is there a war-like situation in Manipur?
109. The principal contention of the learned Attorney General in opposing
any investigation or inquiry into the alleged extra-judicial killings is
that a war-like situation has been and is prevailing in Manipur. It is to
control any escalation of the situation that vast powers have been given to
the armed forces under AFSPA and the constitutionality of AFSPA has been
upheld by the Constitution Bench in Naga People’s Movement of Human Rights.
It is only due to the efforts of the Manipur Police and the armed forces of
the Union that the security environment in Manipur has not deteriorated but
has vastly improved over the years. The efforts made in the past and the
successes gained, the efforts being presently made and the efforts that
will be made in the future should not get hamstrung through wanton and
sometimes irresponsible allegations of violations of human rights and use
of excessive force. These have a deleterious and demoralizing impact on the
security forces to no one’s advantage except the militants, terrorists and
insurgents. This is apart from the submission that the deaths caused were
justified, being deaths of militants, terrorists and insurgents in counter
insurgency or anti terrorist operations.
110. There is no doubt from the records of the case that Manipur has been
and is facing a public order situation equivalent to an internal
disturbance. The tragedy is that this situation has continued since 1958 –
for almost 60 years. This goes so far back that when we requested learned
counsel for the State of Manipur to place before us the declarations under
AFSPA and the prohibitory orders issued under Section 144 of the Cr.P.C.
only fairly recent declarations and prohibitory orders were produced, the
rest having perhaps been lost in antiquity. A generation or two has gone by
and issues have festered for decades. It is high time that concerted and
sincere efforts are continuously made by the four stakeholders – civil
society in Manipur, the insurgents, the State of Manipur and the Government
of India to find a lasting and peaceful solution to the festering problem,
with a little consideration from all quarters. It is never too late to
bring peace and harmony in society.
111. Be that as it may, we need to be clear that the situation in Manipur
has never been one of a war or an external aggression or an armed rebellion
that threatens the security of the country or a part thereof. No such
declaration has been made by the Union of India – explicitly or even
implicitly - and nothing has been shown to us that would warrant a
conclusion that there is a war or an external aggression or an armed
rebellion in Manipur. That is not anybody’s case at all nor has it even
been suggested.
112. In support of his contention that a war-like situation was and is
prevailing in Manipur, the learned Attorney General relied on Navjot Sandhu
to submit that under Section 121 of the IPC ‘war’ is not necessarily
conventional warfare between two nations and even organizing and joining an
insurrection against the Government of India is a form of war. The
militants in Manipur were creating a situation of an insurrection and this
was resulting in a war-like situation in Manipur. Alternatively, the
victims were members of banned organizations under the UAPA and were
provoking cession or secession from India and were therefore ‘enemy’. On
this basis it was contended that even if there is no war-like situation
prevailing in Manipur, the victims being ‘enemy’, their killing is
justified in counter insurgency or anti terrorist operations.
113. Navjot Sandhu was a case in which Parliament was attacked by
terrorists. There can be no doubt that those who attacked the heart of our
democracy were our enemies for all practical purposes, regardless of
whether they were carrying out a war against our country or not. It is not
necessary for us to dwell at length on the facts of that case since we have
already observed that there is no declaration of a war in Manipur, even as
per the case of the Union of India. However, the question is: Is an
internal disturbance equivalent to a war-like situation? In this regard
certain observations in Navjot Sandhu are of significance.
114. This Court analyzed the law on the subject in Navjot Sandhu and held
(inter alia) in paragraphs 282 and 283 of the Report that in the context of
‘war’ (i) the animus of the party is important; (ii) the use of force or
arms is necessary; (iii) the number of members in the party is not relevant
and even a few can cause devastation; (iv) ‘pomp and pageantry’
accompanying a war is irrelevant and even a stealthy operation could be a
war. However, what is important is that it was made clear that all acts of
violent resistance, even against the armed forces and public officials
could not be branded as acts of war. It was held as follows:

“282. On the analysis of the various passages found in the cases and
commentaries referred to above, what are the highlights we come across? The
most important is the intention or purpose behind the defiance or rising
against the Government. As said by [Sir Michael] Foster, “The true
criterion is quo animo did the parties assemble?” In other words the
intention and purpose of the warlike operations directed against the
governmental machinery is an important criterion. If the object and purpose
is to strike at the sovereign authority of the Ruler or the Government to
achieve a public and general purpose in contradistinction to a private and
a particular purpose, that is an important indicia of waging war. Of
course, the purpose must be intended to be achieved by use of force and
arms and by defiance of government troops or armed personnel deployed to
maintain public tranquillity. Though the modus operandi of preparing for
the offensive act against the Government may be quite akin to the
preparation in a regular war, it is often said that the number of force,
the manner in which they are arrayed, armed or equipped is immaterial. Even
a limited number of persons who carry powerful explosives and missiles
without regard to their own safety can cause more devastating damage than a
large group of persons armed with ordinary weapons or firearms. Then, the
other settled proposition is that there need not be the pomp and pageantry
usually associated with war such as the offenders forming themselves in
battle line and arraying in a warlike manner. Even a stealthy operation to
overwhelm the armed or other personnel deployed by the Government and to
attain a commanding position by which terms could be dictated to the
Government might very well be an act of waging war.

283. While these are the acceptable criteria of waging war, we must
dissociate ourselves from the old English and Indian authorities to the
extent that they lay down a too general test of attainment of an object of
general public nature or a political object. We have already expressed
reservations in adopting this test in its literal sense and construing it
in a manner out of tune with the present day. The court must be cautious in
adopting an approach which has the effect of bringing within the fold of
Section 121 [of the IPC] all acts of lawless and violent acts resulting in
destruction of public properties, etc., and all acts of violent resistance
to the armed personnel to achieve certain political objectives. The moment
it is found that the object sought to be attained is of a general public
nature or has a political hue, the offensive violent acts targeted against
the armed forces and public officials should not be branded as acts of
waging war. The expression “waging war” should not be stretched too far to
hold that all the acts of disrupting public order and peace irrespective of
their magnitude and repercussions could be reckoned as acts of waging war
against the Government. A balanced and realistic approach is called for in
construing the expression “waging war” irrespective of how it was viewed in
the long long past. An organised movement attended with violence and
attacks against the public officials and armed forces while agitating for
the repeal of an unpopular law or for preventing burdensome taxes were
viewed as acts of treason in the form of levying war. We doubt whether such
construction is in tune with the modern day perspectives and standards.
Another aspect on which a clarification is called for is in regard to the
observation made in the old decisions that “neither the number engaged, nor
the force employed, nor the species of weapons with which they may be
armed” is really material to prove the offence of levying/waging war. This
was said by Lord President Hope in R. v. Hardie[43] in 1820 and the same
statement finds its echo in many other English cases and in the case of
Maganlal Radhakishan v. Emperor.[44] But, in our view, these are not
irrelevant factors. They will certainly help the court in forming an idea
whether the intention and design to wage war against the established
Government exists or the offence falls short of it. For instance, the
firepower or the devastating potential of the arms and explosives that may
be carried by a group of persons — may be large or small, as in the present
case, and the scale of violence that follows may at times become useful
indicators of the nature and dimension of the action resorted to. These,
coupled with the other factors, may give rise to an inference of waging
war.” (Emphasis supplied by us).

115. Therefore, animus to wage a war or any other similar activity is
important before a non-conventional war or war-like situation can be said
to exist. Every act of violence, even though it may be directed against the
armed forces or public officials would not lead to an inference that a war
is going on or that war-like conditions are prevailing. Similarly, sporadic
but organized killings by militants and ambushes would not lead to a
conclusion of the existence of a war or war-like conditions. Were such a
blanket proposition accepted, it would reflect poorly on our armed forces
that they are unable to effectively tackle a war-like situation for the
last almost six decades. It would also reflect poorly on the Union of India
that it is unable to resort to available constitutional provisions and
measures to bring a war-like situation under control for almost six
decades. We cannot be expected to cast or even countenance any such
aspersions on our armed forces or the Union of India. All that we can and
do say is that in such a situation, our Constitution recognizes only an
internal disturbance, which is what the situation in Manipur is and that
ought to be dealt with by the civil administration with the services of the
armed forces that are available in aid of the civil power.
116. The submission of the learned Attorney General is nothing but a play
on words and we reject it and hold that an internal disturbance is not
equivalent to or akin to a war-like situation and proceed on the basis that
there is no war or war-like situation in Manipur but only an internal
disturbance, within the meaning of that expression in the Constitution -
nothing more and nothing less.
117. Therefore, the questions before us are quite straightforward – to
quell this internal disturbance, has there been use of excessive force by
the Manipur Police and the armed forces in the 1528 cases compiled by the
petitioners through fake encounters or extra-judicial executions during the
period of internal disturbance in Manipur as alleged by the petitioners.
Secondly, has the use of force by the armed forces been retaliatory to the
point of causing death and was the retaliatory force permissible in law on
the ground that the victims were ‘enemy’ as defined in Section 3(x) of the
Army Act?
Use of excessive force and retaliation
118. At the outset, a distinction must be drawn between the right of self-
defence or private defence and use of excessive force or retaliation. Very
simply put, the right of self-defence or private defence is a right that
can be exercised to defend oneself but not to retaliate.[45] This view was
reiterated but expressed somewhat differently in Rajesh Kumar v.
Dharamvir[46] when it was said: “To put it differently, the right is one of
defence and not of requital or reprisal. Such being the nature of right,
the High Court could not have exonerated the accused persons of the charges
levelled against them by bestowing on them the right to retaliate and
attack the complainant party.”
119. A similar opinion was expressed somewhat more lucidly in V.
Subramani v. State of Tamil Nadu[47] when it was said:

“Due weightage has to be given to, and hypertechnical approach has to be
avoided in considering what happens on the spur of the moment on the spot
and keeping in view normal human reaction and conduct, where self-
preservation is the paramount consideration. But, if the fact situation
shows that in the guise of self-preservation, what really has been done is
to assault the original aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private defence can
legitimately be negatived. The court dealing with the plea has to weigh the
material to conclude whether the plea is acceptable. It is essentially, as
noted above, a finding of fact.”

120. In Rohtash Kumar v. State of Haryana[48] this Court cautioned
against the use of retaliatory force even against a dreaded criminal. It
was held:

“It also appears that he [the appellant] was declared absconder. But merely
because a person is a dreaded criminal or a proclaimed offender, he cannot
be killed in cold blood. The police must make an effort to arrest such
accused. In a given case if a dreaded criminal launches a murderous attack
on the police to prevent them from doing their duty, the police may have to
retaliate and, in that retaliation, such a criminal may get killed. That
could be a case of genuine encounter. But in the facts of this case, we are
unable to draw such a conclusion.”

121. Finally, reference may be made to Darshan Singh v. State of
Punjab[49] wherein this Court held:

“When there is real apprehension that the aggressor might cause death or
grievous hurt, in that event the right of private defence of the defender
could even extend to causing of death. A mere reasonable apprehension is
enough to put the right of self-defence into operation, but it is also a
settled position of law that a right of self-defence is only a right to
defend oneself and not to retaliate. It is not a right to take revenge.”

122. From the above, it is abundantly clear that the right of self-
defence or private defence falls in one basket and use of excessive force
or retaliatory force falls in another basket. Therefore, while a victim of
aggression has a right of private defence or self-defence (recognized by
Sections 96 to 106 of the IPC) if that victim exceeds the right of private
defence or self-defence by using excessive force or retaliatory measures,
he then becomes an aggressor and commits a punishable offence.
Unfortunately occasionally, use of excessive force or retaliation leads to
the death of the original aggressor. When the State uses such excessive or
retaliatory force leading to death, it is referred to as an extra-judicial
killing or an extra-judicial execution or as this Court put it in People's
Union for Civil Liberties v. Union of India and another[50] it is called
“administrative liquidation”. Society and the courts obviously cannot and
do not accept such a death caused by the State since it is destructive of
the rule of law and plainly unconstitutional.
123. The problem before the courts tends to become vexed when the victims
are alleged to be militants, insurgents or terrorists. In such cases, how
does anyone (including the court) assess the degree of force required in a
given situation and whether it was excessive and retaliatory or not?
Scrutiny by the courts in such cases leads to complaints by the State of
its having to fight militants, insurgents and terrorists with one hand tied
behind its back. This is not a valid criticism since, and this is
important, in such cases it is not the encounter or the operation that is
under scrutiny but the smoking gun that is under scrutiny. There is a
qualitative difference between use of force in an operation and use of such
deadly force that is akin to using a sledgehammer to kill a fly; one is an
act of self-defence while the other is an act of retaliation.
124. This concern, both from the perspective of the State and from the
perspective of preserving and protecting human rights of a citizen is
adverted to by Prof. Aharon Barak a former President of the Supreme Court
of Israel who acknowledges that sometimes a democracy must fight with one
hand tied behind its back in the following words:

“While terrorism poses difficult questions for every country, it poses
especially challenging questions for democratic countries, because not
every effective means is a legal means. I discussed this in one case, in
which our Court held that violent interrogation of a suspected terrorist is
not lawful, even if doing so may save human life by preventing impending
terrorist acts:

“We are aware that this decision does not make it easier to deal with that
reality. This is the fate of democracy, as not all means are acceptable to
it, and not all methods employed by its enemies are open to it. Sometimes a
democracy must fight with one hand tied behind its back. Nonetheless, it
has the upper hand. Preserving the rule of law and recognition of
individual liberties constitute an important component of its understanding
of security. At the end of the day, they strengthen its spirit and strength
and allow it to overcome its difficulties.” [51]

125. It is this preservation of the rule of law, recognition of human
rights and check on the abuse or misuse of power that has been the
highlight of a few decisions placed before us. In Matajog Dobey v. H.C.
Bhari[52] a cautious step by step approach was advocated by the
Constitution Bench of this Court in the matter of grant of sanction to
prosecute an official under the provisions of the Code of Criminal
Procedure, 1898. The first step is to ascertain whether the act complained
of is an offence and the second step is to determine whether it was
committed in the discharge of official duty. “There must be a reasonable
connection between the act and the official duty. It does not matter even
if the act exceeds what is strictly necessary for the discharge of the
duty, as this question will arise only at a later stage when the trial
proceeds on the merits. What we must find out is whether the act and the
official duty are so inter-related that one can postulate reasonably that
it was done by the accused in the performance of the official duty, though
possibly in excess of the needs and requirements of the situation.” Causing
the death of a person is certainly an offence, but whether there was a
“reasonable connection” between the death and the official act or whether
excessive force or retaliatory force was used in the act has to be
determined at an appropriate stage. It does not matter whether the victim
was a common person or a militant or a terrorist, nor does it matter
whether the aggressor was a common person or the State. The law is the same
for both and is equally applicable to both. It is for this reason that with
regard to the abuse or misuse of power by the State this Court expressed
the following view in Naga People’s Movement of Human Rights in paragraph
61 of the Report:

“In order that the people may feel assured that there is an effective check
against misuse or abuse of powers by the members of the armed forces it is
necessary that a complaint containing an allegation about misuse or abuse
of the powers conferred under the Central Act [the AFSPA] should be
thoroughly inquired into and, if it is found that there is substance in the
allegation, the victim should be suitably compensated by the State and the
requisite sanction under Section 6 of the Central Act should be granted for
instruction of prosecution and/or a civil suit or other proceedings against
the person/persons responsible for such violation.”

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126. In other words, the decision of the Constitution Bench requires that
every death caused by the armed forces, including in the disturbed area of
Manipur “should be thoroughly enquired into” if there is a complaint or
allegation of abuse or misuse of power. All of us are bound by this
direction of the Constitution Bench which has been given to assure the
people that there is no abuse or misuse of power by the armed forces.
127. Om Prakash v. State of Jharkhand[53] dealt with an alleged fake
encounter by the police and use of excessive force resulting in the death,
inter alia, of the complainant’s son. The version of the police was that
they were fired upon and they had to retaliate to save themselves and that
resulted in the death. The complainant preferred a private complaint before
the concerned Chief Judicial Magistrate and also before the NHRC. The
decision of this Court arose out of the private complaint. Be that as it
may, the complaint made to the NHRC was enquired into and the NHRC
concluded that it was not a case of a fake encounter. This Court also took
a similar view. Though the case related primarily to the grant of sanction
to prosecute under Section 197 of the Cr.P.C., it was held, relying upon K.
Satwant Singh v. State of Punjab[54] and State of Orissa v. Ganesh Chandra
Jew[55] that if there is a “reasonable connection” between the official
duty and the use of excessive force, then the use of excessive force will
not be a ground for denial of protection under Section 197 of the Cr.P.C.
Thereafter, it was held in paragraph 42 of the Report that it is not the
duty of the police to kill a person even if he is a dreaded criminal and
that such killings must be deprecated. It was said:

“It is not the duty of the police officers to kill the accused merely
because he is a dreaded criminal. Undoubtedly, the police have to arrest
the accused and put them up for trial. This Court has repeatedly admonished
trigger-happy police personnel, who liquidate criminals and project the
incident as an encounter. Such killings must be deprecated. They are not
recognised as legal by our criminal justice administration system. They
amount to State-sponsored terrorism. But, one cannot be oblivious of the
fact that there are cases where the police, who are performing their duty,
are attacked and killed. There is a rise in such incidents and judicial
notice must be taken of this fact. In such circumstances, while the police
have to do their legal duty of arresting the criminals, they have also to
protect themselves. The requirement of sanction to prosecute affords
protection to the policemen, who are sometimes required to take drastic
action against criminals to protect life and property of the people and to
protect themselves against attack. Unless unimpeachable evidence is on
record to establish that their action is indefensible, mala fide and
vindictive, they cannot be subjected to prosecution.”

128. How does anyone determine whether the action of causing the death of
a person was “indefensible, mala fide and vindictive”? It can only be
through a thorough enquiry as postulated in Naga People’s Movement of Human
Rights and in Om Prakash that enquiry had been conducted at the instance of
the NHRC by the Criminal Investigation Department or the CID.
129. Similarly, in State of Maharashtra v. Saeed Sohail Sheikh[56] the
issue related to the alleged high-handedness of jail officials in the
transfer of prisoners under the Maharashtra Control of Organized Crime Act,
1999. The prisoners were in custody in connection with what is known as
the Bombay Blast case.
130. On the directions of the Bombay High Court, a Sessions Judge
conducted an inquiry into the incident and submitted his report. The report
was accepted by the High Court and on the basis thereof the Government was
directed to hold a departmental inquiry against the officials for use of
excessive force in bringing the situation in the jail under control.
131. This Court then considered the question whether the High Court was
justified in giving the direction that it did. It was held that the report
was preliminary[57] and “flawed in many respects”. Nevertheless this Court
held that the inquiry report could provide “no more than a prima facie
basis for the Government to consider whether any further investigation into
the incident was required to be conducted either for disciplinary action or
for launching prosecution of those found guilty.”
132. It was further observed in paragraph 39 of the Report that
accountability is a facet of the rule of law and in a country governed by
the rule of law “police excesses whether inside or outside the jail cannot
be countenanced in the name of maintaining discipline or dealing with anti-
national elements.” It was said:

“In a country governed by the rule of law police excesses whether inside or
outside the jail cannot be countenanced in the name of maintaining
discipline or dealing with anti-national elements. Accountability is one of
the facets of the rule of law. If anyone is found to have acted in breach
of law or abused his position while exercising powers that must be
exercised only within the parameters of law, the breach and the abuse can
be punished. That is especially so when the abuse is alleged to have been
committed under the cover of authority exercised by people in uniform. Any
such action is also open to critical scrutiny and examination by the
courts.”

133. In People’s Union for Civil Liberties it was alleged that two
persons from Manipur were killed in a fake encounter by the police. This
was denied by the police who averred that the deceased were killed in a
cross-fire between the police and an unlawful organization in Mizoram. In a
writ petition filed in this Court, the District and Sessions Judge was
directed to conduct an inquiry and submit a report. In his report given to
this Court, the District and Sessions Judge concluded that there was no
encounter and that the two deceased were shot dead by the police while in
custody. Objections to the report were filed by the State of Manipur but
were rejected by this Court.
134. It was submitted by the learned counsel for the State of Manipur
that it was a disturbed area and that several terrorist groups were
operating in the State. On a consideration of the submissions put forward,
this Court held in paragraph 6 of the Report that the actions of the police
could not be countenanced even in a disturbed area and that “administrative
liquidation” was not a course open to them. It was said:

“It is true that Manipur is a disturbed area, that there appears to be a
good amount of terrorist activity affecting public order and, may be, even
security of that State. It may also be that under these conditions, certain
additional and unusual powers have to be given to the police to deal with
terrorism. It may be necessary to fight terrorism with a strong hand which
may involve vesting of good amount of discretion in the police officers or
other paramilitary forces engaged in fighting them. If the version of the
police with respect to the incident in question were true, there could have
been no question of any interference by the court. Nobody can say that the
police should wait till they are shot at. It is for the force on the spot
to decide when to act, how to act and where to act. It is not for the court
to say how the terrorists should be fought. We cannot be blind to the fact
that even after fifty years of our independence, our territorial integrity
is not fully secure. There are several types of separatist and terrorist
activities in several parts of the country. They have to be subdued.
Whether they should be fought politically or be dealt with by force is a
matter of policy for the Government to determine. The courts may not be the
appropriate forum to determine those questions. All this is beyond dispute.
But the present case appears to be one where two persons along with some
others were just seized from a hut, taken to a long distance away in a
truck and shot there. This type of activity cannot certainly be
countenanced by the courts even in the case of disturbed areas. If the
police had information that terrorists were gathering at a particular place
and if they had surprised them and arrested them, the proper course for
them was to deal with them according to law. “Administrative liquidation”
was certainly not a course open to them.”

135. It must be held, and there can be no doubt about it, that in view of
the consistent opinion expressed by this Court, that an allegation or
complaint of absence of a reasonable connection between an official act and
use of excessive force or retaliatory force will not be countenanced and an
allegation of this nature would always require to be met regardless of
whether the State is concerned with a dreaded criminal or a militant,
terrorist or insurgent. It must also be held that to provide assurance to
the people, such an allegation must be thoroughly enquired into. This is
the requirement of a democracy and the requirement of preservation of the
rule of law and the preservation of individual liberties. A consequential
question that will arise is who should conduct that thorough enquiry.
136. In this regard, it was submitted by the learned Attorney General
that apart from anything else, an internal enquiry is conducted through the
Human Rights Division of the Army and the Ministry of Defence to ensure
that any violation of human rights is duly punished. In this regard, it was
submitted that though the enquiry may be internal, it is nevertheless fair
and over the years as many as 70 personnel have been punished for human
rights violations. Therefore, there is no need to have any independent
enquiry into the alleged fake encounters.
137. We are not inclined to accept this submission. We had asked the
learned Attorney General to hand over sample files so that we could
understand the nature of the internal enquiry and how it was conducted. We
were handed over a sealed cover which upon opening revealed that what was
handed over to us were four files relating to four cases enquired into by
the Justice Hegde Commission. These four cases are Case 1 - Md. Azad Khan,
Case 3 - Nameirakpam Gobind Meitei & Nameirakpam Nobo Meitei, Case 4 -
Elangbam Kiranjit Singh and Case 5 - Chongtham Umakanta. In all these
cases the respondents have come to the conclusion that the allegations were
not supported by any credible evidence and therefore the case needed
closure. However as we have noticed above, on a thorough enquiry having
been made by the Justice Hegde Commission the view taken was that all these
persons were killed in a fake encounter or that the force used against them
was excessive. Under these circumstances, we do not wish to comment on the
nature of the internal enquiry conducted by the respondents but only record
that these cases apparently never reached the Human Rights Division of the
Army or the Ministry of Defence.
Retaliation against an enemy
138. It was contended by the learned Attorney General that the general
principles of self-defence or private defence provided for in several
decisions of this Court, including Darshan Singh would not be applicable to
the disturbed area of Manipur since the armed forces in that State were
engaged with militants and terrorists who are ‘enemy’ as defined in Section
3(x) of the Army Act. This is a shift from the stand taken in affidavit
filed by the Union of India but we let it pass. Reliance was placed by the
learned Attorney General on an observation in Ratan Singh that militants
are “undisputedly” included in the expression ‘enemy’ as defined under
Section 3(x) of the Army Act. In that case, the record shows that Ratan
Singh was a member of the IPKF (Operation Pawan) in Sri Lanka and when
fired upon by militants, he quit his post. It was in this context that this
Court observed that “The operation in which the appellant was engaged was
directed against the militants who were undisputedly included in the
expression ‘enemy’ within Section 3(x) [of the Army Act].” The reference
was specific to “the militants” against whom the IPKF was required to act.
There was no general or blanket conclusion arrived at by this Court that
all militants in every situation are ‘enemy’.
139. In any event, before a person can be branded as a militant or a
terrorist or an insurgent, there must be the commission or some attempt or
semblance of a violent overt act. A person carrying a weapon in a disturbed
area in violation of a prohibition to that effect cannot be labeled a
militant or terrorist or insurgent. In Navjot Sandhu this Court cited Sir
James Stephen with approval in paragraph 276 of the Report to the following
effect:

“Unlawful assemblies, riots, insurrections, rebellions, levying of war are
offences which run into each other and not capable of being marked off by
perfectly definite boundaries. All of them have in common one feature,
namely, that the normal tranquillity of a civilised society is, in each of
the cases mentioned, disturbed either by actual force or at least by the
show and threat of it.”[58] (Emphasis supplied by us).

140. Similarly, though in a slightly different context, it was held by
this Court in Indra Das v. State of Assam[59] after referring to and
relying upon Arup Bhuyan v. State of Assam[60] that mere membership of a
banned organization does not incriminate a person. He might be a passive
member and not an active one and so it is necessary to prove that he has
indulged in some act of violence or imminent violence. This is what was
said:

“In Arup Bhuyan case we have stated that mere membership of a banned
organisation cannot incriminate a person unless he is proved to have
resorted to acts of violence or incited people to imminent violence, or
does an act intended to create disorder or disturbance of public peace by
resort to imminent violence. In the present case, even assuming that the
appellant was a member of ULFA which is a banned organisation, there is no
evidence to show that he did acts of the nature abovementioned. Thus, even
if he was a member of ULFA it has not been proved that he was an active
member and not merely a passive member. Hence the decision in Arup Bhuyan
case squarely applies in this case.”

141. In so far as the present case is concerned, the Justice Hegde
Commission found that none of the victims in the six cases examined by it
at the instance of this Court had any criminal antecedents or that there
was any credible evidence to show that they had affiliations with a banned
or unlawful organization. Therefore it would not be correct to say that
merely because a person was carrying arms in a prohibited area, that person
automatically became an enemy or an active member of a banned or unlawful
organization. We note, without comment, the contention of the petitioners
that in most cases the arms are planted on the victims.
142. Significantly, the word ‘enemy’ is used in conjunction with the word
‘alien’ in Article 22 of the Constitution. But the Army Act provides for a
broader and more inclusive meaning. Nevertheless it inherently connotes an
overt or covert act of violence or an imminent act of violence or such an
attempt by any armed person. There can be little doubt that ‘armed
mutineers’ and ‘armed rebels’ by definition deal in violence. This Court
has associated ‘mutiny’ with violence in Union of India v. Tulsiram
Patel[61] and Shivaji Atmaji Sawant v. State of Maharashtra.[62] Armed
rioters are also involved in violence. Section 146 of the IPC[63] explains
rioting as use of force or violence by an unlawful assembly or by any
member thereof in prosecution of the common object of such assembly.
Similarly, an act of piracy inherently involves violence. Article 101 of
the United Nations Convention on the Law of the Sea explains piracy as
follows:

“Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a private ship
or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons
or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described
in subparagraph (a) or (b).”

Therefore merely because a person is carrying arms in a disturbed area, he
does not ipso facto become an enemy. There has to be something much more
to brand such a person as an enemy. That a person is not a mere law-breaker
but an enemy can be determined only by a thorough enquiry as postulated by
Naga People’s Movement of Human Rights.
143. In cases such as the present, there is a greater duty of care and an
equally greater necessity of a thorough enquiry since, we must not forget,
the alleged ‘enemy’ in this case is a citizen of our country entitled to
all fundamental rights including under Article 21 of the Constitution. In
this regard, it is worth recalling what the Constitution Bench said in Naga
People’s Movement of Human Rights - our armed forces are not trained to
fight and kill our own countrymen and women. To this we may add that
ordinarily our armed forces should not be used against our countrymen and
women. This Court observed in Naga People’s Movement of Human Rights in
paragraph 39 of the Report:

“The primary task of the armed forces of the Union is to defend the country
in the event of war or when it is faced with external aggression. Their
training and orientation is to defeat the hostile forces. A situation of
internal disturbance involving the local population requires a different
approach. Involvement of armed forces in handling such a situation brings
them in confrontation with their countrymen. Prolonged or too frequent
deployment of armed forces for handling such situations is likely to
generate a feeling of alienation among the people against the armed forces
who by their sacrifices in the defence of their country have earned a place
in the hearts of the people. It also has an adverse effect on the morale
and discipline of the personnel of the armed forces.”

If members of our armed forces are deployed and employed to kill citizens
of our country on the mere allegation or suspicion that they are ‘enemy’
not only the rule of law but our democracy would be in grave danger.
144. In view of our discussion, it is not possible to accept the
contention of the learned Attorney General that a person carrying weapons
in violation of prohibitory orders in the disturbed area of Manipur is ipso
facto an enemy or that the security forces in Manipur in such a case are
dealing with an ‘enemy’ as defined in Section 3(x) of the Army Act. This is
far too sweeping and general an allegation and cannot be accepted as it is
or at its face value. Each instance of an alleged extra-judicial killing of
even such a person would have to be examined or thoroughly enquired into to
ascertain and determine the facts. In the enquiry, it might turn out that
the victim was in fact an enemy and an unprovoked aggressor and was killed
in an exchange of fire. But the question for enquiry would still remain
whether excessive or retaliatory force was used to kill that enemy.
145. The learned Attorney General also relied upon the UAPA to contend
that a terrorist is an enemy, though not specifically mentioned in Section
3(x) of the Army Act and it is the duty of a person subject to military law
to act against a terrorist. The argument of the learned Attorney General
proceeds on the basis that in the present case every victim is a militant
or a terrorist. There is no such presumption one way or the other and there
is also no presumption one way or the other that all the operations and
encounters were faked as sought to be contended by the petitioners. The
facts have not yet been determined in this regard in all cases. Moreover,
the stand of the State of Manipur in its affidavit of 17th November, 2012
is that the ordinary criminal laws including the UAPA are inadequate to
deal with the problem of insurgency in Manipur necessitating the
enforcement of the AFSPA. Hence, reliance on the UAPA does not advance the
case of the learned Attorney General.
146. Undoubtedly, the challenges of militancy and terrorism staring us in
the face are grave. In People’s Union for Civil Liberties v. Union of
India[64] the legislative competence of Parliament to enact the Prevention
of Terrorism Act, 2002 was under question. In that decision, this Court
described terrorism as an “undeclared war” as well as a “proxy war”.
Adverting to the reality of terrorism, this Court observed that terrorist
acts are meant, in several ways, to destabilize the nation and, amongst
others, demoralize the security forces. It was observed that terrorism is
a new challenge for law enforcement and that the terrorist threat we are
facing is now on an unprecedented global scale. It was further observed
that to face terrorism we need new approaches, techniques, weapons,
expertise and of course new laws. It is under these circumstances that the
Prevention of Terrorism Act was enacted.
147. In a similar vein, Section 15 of the UAPA which was relied on by the
learned Attorney General virtually defines a terrorist as the perpetrator
of an act with intent to threaten or likely to threaten the unity,
integrity, security, economic security or sovereignty of India or with
intent to strike terror or likely to strike terror in the people or any
section of the people in India by any of the acts mentioned in the said
section.
148. This Court had occasion to advert to the challenges from terrorists,
the response of the State and the constitutional commitment of the Courts.
In Saeed Sohail Sheikh it was held in paragraph 40 of the Report as
follows:

“Having said that we cannot ignore the fact that the country today faces
challenges and threats from extremist elements operating from within and
outside India. Those dealing with such elements have at times to pay a
heavy price by sacrificing their lives in the discharge of their duties.
The glory of the constitutional democracy that we have adopted, however, is
that whatever be the challenges posed by such dark forces, the country’s
commitment to the rule of law remains steadfast. Courts in this country
have protected and would continue to protect the ideals of the rights of
the citizen being inviolable except in accordance with the procedure
established by law.”

149. Killing an ‘enemy’ is not the only available solution and that is
what the Geneva Conventions and the principles of international
humanitarian law tell us. Equally importantly, the instructions issued by
the Army Headquarters under the caption: “List of Dos and Don’ts while
acting under the Armed Forces (Special Powers) Act, 1958” read with “List
of Dos and Don’ts while providing aid to civil authority” restrain the Army
from using excessive force. In Naga People’s Movement of Human Rights it
was held by the Constitution Bench in paragraph 58 of the Report:

“The instructions in the form of “Dos and Don’ts” to which reference has
been made by the learned Attorney General have to be treated as binding
instructions which are required to be followed by the members of the armed
forces exercising powers under the Central Act and a serious note should be
taken of violation of the instructions and the persons found responsible
for such violation should be suitably punished under the Army Act, 1950.”

Therefore, even while dealing with the ‘enemy’ the rule of law would apply
and if there have been excesses beyond the call of duty, those members of
the Manipur Police or the armed forces who have committed the excesses
which do not have a reasonable connection with the performance of their
official duty would be liable to be proceeded against.
150. Advocating caution and use of minimal force against our own people,
it was held in Naga People’s Movement of Human Rights that power can be
exercised under Section 4(a) of the AFSPA only under certain circumstances.
It was said in this context:

“The powers under Section 4(a) can be exercised only when (a) a prohibitory
order of the nature specified in that clause is in force in the disturbed
area; (b) the officer exercising those powers forms the opinion that it is
necessary to take action for maintenance of public order against the
person/persons acting in contravention of such prohibitory order; and (c) a
due warning as the officer considers necessary is given before taking
action. The laying down of these conditions gives an indication that while
exercising the powers the officer shall use minimal force required for
effective action against the person/persons acting in contravention of the
prohibitory order.”

151. In this context it is important to quote the Ten Commandments issued
by the Chief of Army Staff. These read as follows and nothing can better
elucidate how the security forces are expected to act in Manipur:
COAS TEN COMMANDMENTS

Remember that people you are dealing with, are your own countrymen. All
your conduct must be dictated by this one significant consideration.

Operations must be people friendly, using minimum force and avoiding
collateral damage – restrain must be the key.

Good intelligence is the key to success – the thrust of your operations
must be intelligence based and must include the militant leadership.

Be compassionate, help the people and win their hearts and minds. Employ
all resources under your command to improve their living conditions.

No operations without police representative. No operations against women
cadres under any circumstances without mahila police. Operations against
women insurgents be preferably carried out by police.

Be truthful, honest and maintain highest standards of integrity, honour,
discipline, courage and sacrifice.
Sustain physical and moral strength, mental robustness and motivation.
Train hard, be vigilant and maintain highest standards of military
professionalism.
Synergise your actions with the civil administration and other security
forces.
Uphold Dharma and take pride in your country and the army.

It is quite clear from the various instructions issued (and which are
binding on the armed forces) that minimum force is to be used even against
terrorists, militants and insurgents. This is very much in tune with
international law even in times of war when the Geneva Conventions and the
principles of international humanitarian law are applicable. There is
absolutely no reason why an equally toned down response cannot be given by
our armed forces in times of internal disturbances and why no enquiry
should be held if the response is alleged to be disproportionate.
152. At this stage, we would like to make it clear that Section 6 of the
AFSPA and Section 49 of the UAPA[65] presently have no application to this
case. It has yet to be determined whether the deaths were in fake
encounters as alleged or whether the deaths were in genuine encounters in
counter insurgency operations and it has also to be determined whether the
use of force was disproportionate or retaliatory or not. If any death was
unjustified, there is no blanket immunity available to the perpetrator(s)
of the offence. No one can act with impunity particularly when there is a
loss of an innocent life.
Army Act and the Cr.P.C.
153. A contention was raised by the learned Attorney General that an
offence committed by a member of armed forces must be tried under the
provisions of the Army Act through Court Martial proceedings and not under
the Cr.P.C. In other words, if anyone from the Army is found to have used
excessive force, he should be proceeded against under the provisions of the
Army Act and not in a criminal court. Reliance was placed in this regard on
Balbir Singh v. State of Punjab.[66]
154. If we go further back, in Som Datt Datta v. Union of India[67] a
Constitution Bench of this Court was concerned with a challenge to a
finding of guilt by a Court Martial for an offence punishable under Section
304 and Section 149 of the IPC. The contention of the petitioner was that
the Court Martial had no jurisdiction to try him and that only a criminal
court constituted under the Cr.P.C. had jurisdiction to try him. On a
consideration of Section 69 and Section 70 of the Army Act, the
Constitution Bench held that under the Army Act there are three categories
of offences, namely:

Offences committed by a person subject to the Act triable by a Court
Martial in respect whereof specific punishments have been assigned;

Civil offences committed by a person subject to the Act at any place in or
beyond India, but deemed to be offences committed under the Act and, if
charged under Section 69 of the Act, triable by a Court Martial; and

Offences of murder and culpable homicide not amounting to murder or rape
committed by a person subject to the Act against a person not subject to
the military law.

It was held by the Constitution Bench that subject to a few exceptions, the
third category of cases is not triable by a Court Martial but is triable
only by ordinary criminal courts. The exceptions are to be found in Section
70 of the Army Act and one of them is if the offence is committed by the
accused while in active service.
155. The Constitution Bench then considered the provisions of Section 125
and Section 126 of the Army Act in this context. It was held that Section
125 pre-supposes that in respect of an offence both a criminal court and a
Court Martial have concurrent jurisdiction. Section 125 of the Army Act
read with Section 126 thereof gives discretion to the officer mentioned in
Section 125 to decide before which forum the proceedings shall be
instituted. If it is decided that the proceedings should be instituted
before a Court Martial then the accused is taken into military custody.
However, if the criminal court is of opinion that the offence should be
tried before itself then it must follow the procedure laid down in Section
126 of the Army Act pending a reference to the Central Government. It was
held that these two sections of the Army Act provide a satisfactory
machinery to resolve a conflict of jurisdiction, having regard to the
exigencies of the situation, in any particular case. It was said:

“Section 125 presupposes that in respect of an offence both a Criminal
Court as well as a Court Martial have each concurrent jurisdiction. Such a
situation can arise in a case of an act or omission punishable both under
the Army Act as well as under any law in force in India. It may also arise
in the case of an offence deemed to be an offence under the Army Act. Under
the scheme of the two sections, in the first instance, it is left to the
discretion of the officer mentioned in Section 125 to decide before which
court the proceedings shall be instituted, and, if the officer decides that
they should be instituted before a court Martial, the accused person is to
be detained in military custody; but if a Criminal Court is of opinion that
the said offence shall be tried before itself, it may issue the requisite
notice under Section 126 either to deliver over the offender to the nearest
Magistrate or to postpone the proceedings pending a reference to the
Central Government. On receipt of the said requisition, the officer may
either deliver over the offender to the said court or refer the question of
proper court for the determination of the Central Government whose order
shall be final. These two sections of the Army Act provide a satisfactory
machinery to resolve the conflict of jurisdiction, having regard to the
exigencies of the situation in any particular case.”

On the facts of the case, it was held that the police had not completed its
investigation into the alleged offence and that the accused had not been
brought before the Magistrate after the filing of the charge sheet, hence
the criminal court alone did not have jurisdiction over the accused.
156. At this stage, it may be mentioned in the above context that in Ram
Swarup v. Union India[68] a Constitution Bench of this Court held that the
exercise of discretion by the competent authority under Sections 125 and
126 of the Army Act is not unguided and does not violate Article 14 of the
Constitution.
157. In Balbir Singh the accused was in active service in the Air Force
and was tried and convicted by a criminal court for an offence punishable
under Sections 302 and 34 of the IPC. The contention urged before this
Court was that the criminal court inherently lacked jurisdiction to try the
accused. This Court considered the provisions of Section 72 of the Air
Force Act, 1950 (corresponding to Section 70 of the Army Act), Sections 124
and 125 of the said Act (corresponding to Sections 125 and 126 of the Army
Act) and the Criminal Courts and Court Martial (Adjustment of Jurisdiction)
Rules, 1952. It was held that in the event of a Court Martial and a
criminal court both having jurisdiction to try the offence, the first
option to try a person subject to the Air Force Act who is in active
service is with the Air Force authorities. If the Air Force authorities do
not exercise that option or decide not to try that person by a Court
Martial, then the accused could be tried by the criminal court in
accordance with the procedure laid down by the Cr.P.C. It was further held
that if the criminal court decides to proceed in the matter despite the
contrary view of the Air Force authorities, then the conflict of
jurisdiction shall be resolved by the Central Government under Section
125(2) of the said Act and the decision of the Central Government would be
final.
158. In paragraph 17 of the Report this was held as follows:

“A conjoint reading of the above provisions shows that when a criminal
court and court-martial each have jurisdiction in respect of the trial of
the offence, it shall be in the discretion of the officer commanding the
group, wing or station in which the accused is serving or such other
officer as may be prescribed, in the first instance, to decide before which
court the proceedings shall be instituted and if that officer decides that
they should be instituted before a “court-martial”, to direct that the
accused persons shall be detained in air force custody. Thus, the option to
try a person subject to the Air Force Act who commits an offence while on
“active service” is in the first instance with the Air Force Authorities.
The criminal court, when such an accused is brought before it shall not
proceed to try such a person or to inquire with a view to his commitment
for trial and shall give a notice to the Commanding Officer of the accused,
to decide whether they would like to try the accused by a court-martial or
allow the criminal court to proceed with the trial. In case, the Air Force
Authorities decide either not to try such a person by a court-martial or
fail to exercise the option when intimated by the criminal court within the
period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be
tried by the ordinary criminal court in accordance with the Code of
Criminal Procedure. On the other hand if the Authorities under the Act opt
to try the accused by the ‘court-martial’, the criminal court shall direct
delivery of the custody of the accused to the Authorities under the Act and
to forward to the Authorities a statement of the offence of which he is
accused. It is explicit that the option to try the accused subject to the
Act by a court-martial is with the Air Force Authorities and the accused
person has no option or right to claim trial by a particular forum.
……
However, in the event the criminal court is of the opinion, for reasons to
be recorded, that instead of giving option to the Authorities under the
Act, the said court should proceed with the trial of the accused, without
being moved by the competent authority under the Act and the Authorities
under the Act decide to the contrary, the conflict of jurisdiction shall be
resolved by the Central Government under Section 125(2) of the Act and the
decision as to the forum of trial by the Central Government in that
eventuality shall be final.”

We may note that the provisions of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1978 now applicable are substantively
similar to the Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1952 dealt with in Balbir Singh.
159. This issue also came up for consideration in General Officer
Commanding, Rashtriya Rifles v. Central Bureau of Investigation[69] where
the provisions of the Armed Forces (Jammu and Kashmir) Special Powers Act,
1990 and the AFSPA were considered. The decision arose out a charge sheet
filed in the criminal court in Srinagar on an allegation of deaths caused
by Army personnel in a fake encounter and a charge sheet filed in a
criminal court in Kamrup on a similar allegation of deaths caused by Army
personnel in a fake encounter. In both courts the view canvassed by the
Army was that the prosecution could not be launched without the previous
sanction of the Central Government, the action complained of was in
performance of official duties and therefore the charge sheet ought to be
returned to the investigating agency.
160. This Court explained that institution of proceedings is required to
be understood in the context of the scheme of the Army Act and so far as
criminal proceedings are concerned institution does not mean filing,
presenting or initiating proceedings but it means taking cognizance of the
offence as per the provisions of the Cr.P.C. and that cognizance means
taking judicial notice of an offence by an application of mind to the
complaint or police report and thereafter proceeding under the provisions
of the Cr.P.C. Relying upon Matajog Dobey it was held that the criminal
court lacks jurisdiction to take cognizance of the offence unless sanction
is granted by the Central Government.
161. A reference was then made to Sections 125 and 126 of the Army Act
and it was held in paragraph 86 of the Report, following Som Datt Datta and
Balbir Singh as follows:
“Military authority may ask the criminal court dealing with the case that
the accused would be tried by the Court Martial in view of the provisions
of Section 125 of the Army Act. However, the option given by the authority
is not final in view of the provisions of Section 126 of the Army Act.
Criminal court having jurisdiction to try the offender may require the
competent military officer to deliver the offender to the Magistrate
concerned to be proceeded with according to law or to postpone the
proceedings pending reference to the Central Government, if that criminal
court is of the opinion that proceedings be instituted before itself in
respect of that offence. Thus, in case the criminal court makes such a
request, the military officer either has to comply with it or make a
reference to the Central Government whose orders would be final with
respect to the venue of the trial. Therefore, the discretion exercised by
the military officer is subject to the control of the Central Government.
Such matter is being governed by the provisions of Section 475 CrPC read
with the provisions of the J&K Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1983.”
162. This Court then recorded its conclusions in paragraph 95 of the
Report and they read as follows:
“95.To sum up:

95.1. The conjoint reading of the relevant statutory provisions and Rules
make it clear that the term “institution” contained in Section 7 of the
1990 Act means taking cognizance of the offence and not mere presentation
of the charge-sheet by the investigating agency.

95.2. The competent army authority has to exercise his discretion to opt as
to whether the trial could be by a Court Martial or criminal court after
filing of the charge-sheet and not after the cognizance of the offence is
taken by the court.

95.3. Facts of this case require sanction of the Central Government to
proceed with the criminal prosecution/trial.

95.4. In case option is made to try the accused by a Court Martial,
sanction of the Central Government is not required.”

163. The law is therefore very clear that if an offence is committed even
by Army personnel, there is no concept of absolute immunity from trial by
the criminal court constituted under the Cr.P.C. To contend that this would
have a deleterious and demoralizing impact on the security forces is
certainly one way of looking at it, but from the point of view of a
citizen, living under the shadow of a gun that can be wielded with
impunity, outright acceptance of the proposition advanced is equally
unsettling and demoralizing, particularly in a constitutional democracy
like ours.
164. The result of the interplay between Section 4 and Section 5 of the
Cr.P.C. and Sections 125 and 126 of the Army Act makes it quite clear that
the decision to try a person who has committed an offence punishable under
the Army Act and who is subject to the provisions of the Army Act does not
always or necessarily lie only with the Army – the criminal court under the
Cr.P.C. could also try the alleged offender in certain circumstances in
accordance with the procedure laid down by the Cr.P.C.
Issue of limitation
165. The next contention of the learned Attorney General was that even
today the Army would be entitled to hold a Court of Inquiry and determine
whether an offence had been committed by any of its personnel, identify the
offender (if any) and then punish him in accordance with the provisions of
the Army Act. It was submitted that the issue of limitation postulated by
Section 122 of the Army Act would not come in the way.
166. It may be mentioned that the period of limitation provided under
Section 122 of the Army Act commences from (a) the date of the offence (the
commission of which is denied in the present case); (b) where the
commission of the offence was not known to the competent authority, the
first day on which the commission of such offence comes to the knowledge of
the competent authority; (c) when it is not known who committed the
offence, the first day on which the identity of the alleged offender is
known to the competent authority.
167. Reference was made by the learned Attorney General to Union of India
v. V.N. Singh[70] in which the allegation related to irregularities in
local purchases. It was only much later when a Staff Court of Inquiry gave
its recommendations blaming the respondent that Court Martial proceedings
were initiated against him. This Court took the view that the period of
limitation for convening a Court Martial would commence from the date on
which the competent authority of the respondent came to know of the
involvement of the respondent in the irregularities.
168. Similarly, J.S. Sekhon v. Union of India[71] concerned an allegation
of irregularities in some purchases. It is only after a Court of Inquiry
gave an adverse recommendation against the appellant that he had defrauded
the Army through irregular purchases that a Court Martial was convened.
169. None of decisions really take us much further in understanding a
situation such as the present in which the Army categorically says that no
offence has been committed by any of its personnel. If that be so, there is
no question of holding any Court of Inquiry and Section 122 of the Army Act
does not even come into picture, nor does the question whether a particular
person is guilty of any offence or not. Therefore, even holding a Court
Martial cannot arise. But if the Army has an open mind on the issue, it can
certainly hold a Court of Inquiry, if the law permits it to do so at this
distant point of time.
170. However, we make it clear that even if the armed forces decide to
take action and inquire into the allegations at their own level, it would
not preclude any other inquiry or investigation into the allegations made.
171. Insofar as holding a Magisterial Enquiry is concerned, the NHRC has
stated in their affidavits that the guidelines issued from time to time are
not being followed in their true spirit. That apart, the NHRC has
complained that the State Governments (including perhaps the State of
Manipur) invariably take more than reasonable time to submit important
documents such as the port-mortem report, inquest report and the ballistic
expert report as well as the Magisterial Enquiry report. Therefore, it
appears that the Magisterial Enquiry is not given its due importance but in
any event since it is an administrative enquiry (which is apparently
conducted in a casual manner) and not a judicial enquiry, not much credence
can be attached to the Magisterial Enquiry report. In this context, it may
also be mentioned that the NHRC has also complained about the poor quality
of the Magisterial Enquiry reports received by it and it is pointed out
that in some instances the family of the person killed is not examined nor
any independent witness is examined by the Magistrate. That being the
position, it is not possible to attach any importance to the Magisterial
Enquiry conducted at the behest of the State Government, even though it
might have been conducted under Section 176 of the Cr.P.C.
172. Therefore, we make it clear that even if the State Government
decides to hold Magisterial Enquiries and take suitable action on the
report given, it would not preclude any other inquiry or investigation into
the allegations made. In situations of the kind that we are dealing with,
there can be no substitute for a judicial inquiry or an inquiry by the NHRC
or an inquiry under the Commissions of Inquiry Act, 1952.
Conclusions
173. On an overall consideration of the submissions made and the material
before us, we conclude :
This writ petition alleging gross violations of human rights is
maintainable in this Court under Article 32 of the Constitution.
(b) We respectfully follow and reiterate the view expressed by the
Constitution Bench of this Court in Naga People’s Movement of Human Rights
that the use of excessive force or retaliatory force by the Manipur Police
or the armed forces of the Union is not permissible. As is evident from
the Dos and Don’ts and the Ten Commandments of the Chief of Army Staff, the
Army believes in this ethos and accepts that this principle would apply
even in an area declared as a disturbed area under AFSPA and against
militants, insurgents and terrorists. There is no reason why this
principle should not apply to the other armed forces of the Union and the
Manipur Police.
(c) We respectfully follow and reiterate the view expressed by the
Constitution Bench of this Court in Naga People’s Movement of Human Rights
that an allegation of excessive force resulting in the death of any person
by the Manipur Police or the armed forces in Manipur must be thoroughly
enquired into. For the time being, we leave it open for decision on who
should conduct the inquiry and appropriate directions in this regard will
be given after the exercise mentioned below is conducted.
We respectfully follow and reiterate the view expressed by this Court that
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.
Further steps
174. Unfortunately, we have not been given accurate and complete
information about each of the 1528 cases that the petitioners have
complained about. Therefore, there is a need to obtain and collate this
information before any final directions can be given. Learned Amicus has
told us that there are 15 cases out of 62 in which it has been held by the
Justice Hegde Commission or by judicial inquiries conducted at the instance
of the Gauhati High Court that the encounters were faked. On the other
hand, the NHRC has informed us that there are 31 cases out of 62 in which
it has been concluded that the encounters were not genuine and compensation
awarded to the next of kin of the victims or the award of compensation is
pending.
175. Therefore, as a first step, we direct:
Of the 62 cases that the petitioners have documented, their representative
and the learned Amicus will prepare a simple tabular statement indicating
whether in each case a judicial enquiry or an inquiry by the NHRC or an
inquiry under the Commissions of Inquiry Act, 1952 has been held and the
result of the inquiry and whether any First Information Report or complaint
or petition has been filed by the next of kin of the deceased. We request
the NHRC to render assistance to the learned Amicus in this regard. We make
it clear that since a Magisterial Enquiry is not a judicial inquiry and, as
mentioned above, it is not possible to attach any importance to Magisterial
Enquiries, the tabular statement will not include Magisterial Enquiries.
The representative of the petitioners and the learned Amicus will revisit
the remaining cases (1528 minus 62) and carry out an identical exercise as
above. This exercise is required to be conducted for eliminating those
cases in which there is no information about the identity of the victim or
the place of occurrence or any other relevant detail and then present an
accurate and faithful chart of cases in a simple tabular form.
176. We propose to consider the grievance of the NHRC that it has become
a toothless tiger, after hearing the Union of India and the NHRC on this
important issue. We also propose to consider the nature of the guidelines
issued by the NHRC – whether they are binding or only advisory.
177. For the time being we keep open the question whether Court Martial
proceedings can be initiated by the Army against an offender, if any, to
await the result of the first step as mentioned above. We are making it
clear that we have not precluded the petitioners from contesting this
issue. We are not deciding it for the time being only because full facts
are not available to us. However, if the law permits and the Army is so
inclined, it may hold a Court of Inquiry in each case.
178. We record our appreciation for the assistance rendered by the
learned Amicus at every stage of hearing of the case and for the valuable
assistance rendered and expect her to continue assisting us till the
closure of this petition.
179. List the matter for further proceedings immediately after four weeks.

………………………….J
(Madan B. Lokur)

………………………….J
New Delhi; (Uday Umesh Lalit)
July 8, 2016

-----------------------
[1] Promotion 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.
[2] 355. Duty of the Union to protect States against external aggression
and internal disturbance. - It shall be the duty of the Union to protect
every State against external aggression and internal disturbance and to
ensure that the government of every State is carried on in accordance with
the provisions of this Constitution.
[3] 2-A. Deployment of any armed force of the Union or any other force
subject to the control of the Union or any contingent or unit thereof in
any State in aid of the civil power; powers, jurisdiction, privileges and
liabilities of the members of such forces while on such deployment.
[4] 12th August, 2004
[5] Referred to later.
[6] This may be contrasted with the assertion in the affidavit of 15th
December, 2012 in W.P. (C) No. 445 of 2012 of the number of militants. The
Census of 2011 suggests a population of over 27 lakhs in Manipur.
[7] Section 3(x) of the Army Act, 1950: “enemy” includes all armed
mutineers, armed rebels, armed rioters, pirates and any person in arms
against whom it is the duty of any person subject to military law to act.
[8] 1992 Supp (1) SCC 716
[9] (2005) 11 SCC 600
[10] 19. Procedure with respect to armed forces.—(1) Notwithstanding
anything contained in this Act, while dealing with complaints of violation
of human rights by members of the armed forces, the Commission shall adopt
the following procedure, namely:—
(a) it may, either on its own motion or on receipt of a petition, seek
a report from the Central Government;
(b) after the receipt of the report, it may, either not proceed with
the complaint or, as the case may be, make its recommendations to that
Government.
(2) The Central Government shall inform the Commission of the action
taken on the recommendations within three months or such further time as
the Commission may allow.
(3) The Commission shall publish its report together with its
recommendations made to the Central Government and the action taken by that
Government on such recommendations.
(4) The Commission shall provide a copy of the report published under
sub-section (3) to the petitioner or his representative.
[11] (2013) 2 SCC 493
[12] (2012) 2 SCC 34
[13] (2006) 5 SCC 733
[14] (2007) 6 SCC 171
[15] (2014) 14 SCC 48
[16] (2013) 9 SCC 447
[17] 1. Public order (but not including the use of any naval, military
or air force or any other armed force of the Union or of any other force
subject to the control of the Union or of any contingent or unit thereof in
aid of the civil power).
[18] See footnote 2.
[19] For the present purposes, the relevant portion of Article 352 of
the Constitution as it now stands is of importance:
352. Proclamation of Emergency.—(1) If the President is 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 armed rebellion, he may, by Proclamation, make a declaration to that
effect in respect of the whole of India or of such part of the territory
thereof as may be specified in the Proclamation.
Explanation.—A Proclamation of Emergency declaring that the security of
India or any part of the territory thereof is threatened by war or by
external aggression or by armed rebellion may be made before the actual
occurrence of war or of any such aggression or rebellion, if the President
is satisfied that there is imminent danger thereof.
(2) A Proclamation issued under clause (1) may be varied or revoked by
a subsequent Proclamation.
[20] (1998) 2 SCC 109
[21] 356. Provisions in case of failure of constitutional machinery in
States.—(1) If the President, on receipt of a report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in which the
government of the State cannot be carried on in accordance with the
provisions of this Constitution, the President may by Proclamation—
(a) assume to himself all or any of the functions of the Government of
the State and all or any of the powers vested in or exercisable by the
Governor or any body or authority in the State other than the Legislature
of the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending in whole or in part
the operation of any provisions of this Constitution relating to any body
or authority in the State:
Provided that xxx xxx xxx [Not relevant for the present purposes]
[22] Page 101 in Volume 2 of the Report
[23] See footnote 1.
[24] (1940) FCR 110
[25] Navinchandra Mafatlal v. Commissioner of Income Tax, 1955 (1) SCR
189 (5 Judges Bench). This view has been followed by the Constitution Bench
in Jagannath Baksh Singh v. State of U.P., (1963) 1 SCR 220 and several
other decisions rendered by this Court.
[26] 3. Power to declare areas to be disturbed areas.—If, in relation to
any State or Union Territory to which this Act extends, the Governor of
that State or the Administrator of that Union Territory or the Central
Government, in either case, if of the opinion that the whole or any part of
such State or Union Territory, as the case may be, is in such a disturbed
or dangerous condition that the use of armed forces in aid of the civil
power is necessary, the Governor of that State or the Administrator of that
Union Territory or the Central Government, as the case may be, may, by
notification in the Official Gazette, declare the whole or such part of
such State or Union Territory to be a disturbed area.
[27] 4. Special powers of the armed forces.—Any commissioned officer,
warrant officer, non-commissioned officer or any other person of equivalent
rank in the armed forces may, in a disturbed area,—
(a) if he is of opinion that it is necessary so to do for the
maintenance of public order, after giving such due warning as he may
consider necessary, fire upon or otherwise use force, even to the causing
of death, against 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;
(b) to (d) xxx xxx xxx [Not relevant for the present purposes].
[28] 6. Protection to persons acting under Act - No prosecution, suit or
other legal proceeding shall be instituted, except with the previous
sanction of the Central Government, against any person in respect of
anything done or purported to be done in exercise of the powers conferred
by this Act.
[29] 4. Trial of offences under the Indian Penal Code and other laws -
(1) All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with according to
the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or otherwise dealing with
such offences.
5. Saving - Nothing contained in this Code shall, in the absence of a
specific provision to the contrary, affect any special or local law for the
time being in force, or any special jurisdiction or power conferred, or any
special form of procedure prescribed, by any other law for the time being
in force.
[30] (m) “terrorist organisation” means an organisation listed in the
Schedule or an organisation operating under the same name as an
organisation so listed;
[31] (o) “unlawful activity”, in relation to an individual or
association, means any action taken by such individual or association
(whether by committing an act or by words, either spoken or written, or by
signs or by visible representation or otherwise),—
(i) which is intended, or supports any claim, to bring about, on any
ground whatsoever, the cession of a part of the territory of India or the
secession of a part of the territory of India from the Union, or which
incites any individual or group of individuals to bring about such cession
or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the
sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;

[32] (p) “unlawful association” means any association,—
(i) which has for its object any unlawful activity, or which encourages
or aids persons to undertake any unlawful activity, or of which the members
undertake such activity; or
(ii) which has for its object any activity which is punishable under
Section 153-A or Section 153-B of the Indian Penal Code (45 of 1860), or
which encourages or aids persons to undertake any such activity, or of
which the members undertake any such activity :
Provided that nothing contained in sub-clause (ii) shall apply to the
State of Jammu and Kashmir;
[33] 15. Terrorist act.- (1) Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or likely
to strike terror in the people or any section of the people in India or in
any foreign country,—
(a) by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisonous or
noxious gases or other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a hazardous nature or by
any other means of whatever nature to cause or likely to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of
the community in India or in any foreign country; or
(iii-a) damage to, the monetary stability of India by way of production
or smuggling or circulation of high quality counterfeit Indian paper
currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign
country used or intended to be used for the defence of India or in
connection with any other purposes of the Government of India, any State
Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force
or attempts to do so or causes death of any public functionary or attempts
to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or
injure such person or does any other act in order to compel the Government
of India, any State Government or the Government of a foreign country or an
international or inter-governmental organisation or any other person to do
or abstain from doing any act; or,
commits a terrorist act.
Explanation.—For the purpose of this sub-section,—
(a) “public functionary” means the constitutional authorities or any
other functionary notified in the Official Gazette by the Central
Government as public functionary;
(b) “high quality counterfeit Indian currency” means the counterfeit
currency as may be declared after examination by an authorised or notified
forensic authority that such currency imitates compromises with the key
security features as specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an offence
within the scope of, and as defined in any of the treaties specified in the
Second Schedule.
[34] (l) “terrorist gang” means any association, other than terrorist
organisation, whether systematic or otherwise, which is concerned with, or
involved in, terrorist act;
[35] 3. Definitions.—In this Act, unless the context otherwise
requires,—
(i) “active service”, as applied to a person subject to this Act, means
the time during which such person—
(a) is attached to, or forms part of, a force which is engaged in
operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march
to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military
occupation of a foreign country;
(x) “enemy” includes all armed mutineers, armed rebels, armed rioters,
pirates and any person in arms against whom it is the duty of any person
subject to military law to act;
[36] Section 34
[37] Section 35
[38] Section 36
[39] 125. Choice between criminal court and court-martial - When a
criminal court and a court-martial have each jurisdiction in respect of an
offence, it shall be in the discretion of the officer commanding the army,
army corps, division or independent brigade in which the accused person is
serving or such other officer as may be prescribed to decide before which
court the proceedings shall be instituted, and, if that officer decides
that they should be instituted before a court-martial, to direct that the
accused person shall be detained in military custody.
126. Power of criminal court to require delivery of offender - (1) When
a criminal court having jurisdiction is of opinion that proceedings shall
be instituted before itself in respect of any alleged offence, it may, by
written notice, require the officer referred to in Section 125 at his
option, either to deliver over the offender to the nearest magistrate to be
proceeded against according to law, or to postpone proceedings pending a
reference to the Central Government.
(2) In every such case the said officer shall either deliver over the
offender in compliance with the requisition, or shall forthwith refer the
question as to the court before which the proceedings are to be instituted
for the determination of the Central Government, whose order upon such
reference upon such reference shall be final.
[40] Rule 3: Where a person subject military, naval, air force or Coast
Guard law, or any other laws relating to the Armed Forces of the Union for
the time being in force is brought before a Magistrate and charged with an
offence for which he is also liable to be tried by a Court Martial or Coast
Guard Court, as the case may be such Magistrate shall not proceed to try
such person or to commit the case to the Court of Session, unless:-
(a) he is moved thereto by a competent military, naval, air force or
Coast Guard authority; or
(b) he is of opinion, for reasons to be recorded, that he should so
proceed or to commit without being moved thereto by such authority.

[41] Rule 4: Before proceeding under clause (b) of rule 3, the
Magistrate shall give a written notice to the Commanding Officer or the
competent military, naval, air force or Coast Guard authority, as the case
may be, of the accused and until the expiry of a period of fifteen days
from the date of service of the notice he shall not :-
(a) Convict or acquit the accused xxxx xxxx; or
(b) frame in writing a charge against the accused xxx xxx; or
(c) make an order committing the accused for trial to the Court of
Session xxx xxx; or
(d) make over the case for inquiry or trial under section 192 of the
said Code.

[42] Rule 8: Notwithstanding anything in the foregoing rules, where it
comes to the notice of a Magistrate that a person subject to military,
naval, air force or coast guard law, or any other law relating to the Armed
Forces of the Union for the time being in force has committed an offence,
proceedings in respect of which ought to be instituted before him and that
the presence of such person cannot be procured except through military,
naval, air force or coast guard authorities, the Magistrate may by a
written notice require the commanding officer of such person either to
deliver such person to a Magistrate to be named in the said notice for
being proceeded against according to law, or to stay the proceedings
against such person before the Court Martial or coast guard court, as the
case may be if since instituted, and to make a reference to the Central
Government for determination as to the court before which proceedings
should be instituted.
[43] (1820) 1 State Tr NS 609, 610
[44] AIR 1946 Nagpur 173, 185
[45] Manjeet Singh v. State of H.P., (2014) 5 SCC 697
[46] (1997) 4 SCC 496
[47] (2005) 10 SCC 358
[48] (2013) 14 SCC 290
[49] (2010) 2 SCC 333
[50] (1997) 3 SCC 433
[51] Aharon Barak: The Judge in a Democracy, page 283 (Princeton
University Press)
[52] (1955) 2 SCR 925
[53] (2012) 12 SCC 72
[54] (1960) 2 SCR 89
[55] (2004) 8 SCC 40
[56] (2012) 13 SCC 192
[57] There is nothing to indicate that the report was preliminary.
[58] Digest of Criminal Law by Sir James Stephen
[59] (2011) 3 SCC 380
[60] (2011) 3 SCC 377
[61] (1985) 3 SCC 398 at paragraph 161
[62] (1986) 2 SCC 112 at paragraphs 6 and 7
[63] 146. Rioting - Whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of the common object of
such assembly, every member of such assembly is guilty of the offence of
rioting.
[64] (2004) 9 SCC 580
[65] 49. Protection of action taken in good faith - No suit, prosecution
or other legal proceeding shall lie against -
(a) the Central Government or a State Government or any officer or
authority of the Central Government or State Government or District
Magistrate or any officer authorised in this behalf by the Government or
the District Magistrate or any other authority on whom powers have been
conferred under this Act, for anything which is in good faith done or
purported to be done in pursuance of this Act or any rule or order made
thereunder; and
(b) any serving or retired member of the armed forces or paramilitary
forces in respect of any action taken or purported to be taken by him in
good faith, in the course of any operation directed towards combating
terrorism.
[66] (1995) 1 SCC 90
[67] (1969) 2 SCR 177
[68] (1964) 5 SCR 931
[69] (2012) 6 SCC 228
[70] (2010) 5 SCC 579
[71] (2010) 11 SCC 586

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