Disturbed area or a mockery of democracy?

Rohit Sharma

In a recent judgment, the Supreme Court has laid the legal ground work for conducting an enquiry into alleged fake encounters in Manipur. It held that use of excessive force by the Manipur police or the Armed Forces of the Union is not permissible, even in areas declared as “disturbed” under the Armed Forces Special Powers Act (AFSPA) and against militants, insurgents and terrorists. It directed that allegations of use of excessive force resulting in death of any person by the Manipur police or the armed forces in Manipur must be enquired into. However, the decision on who will conduct the enquiry was deferred, to be decided after it had been informed about the particulars of cases in which a judicial enquiry had already been held. 

The judgment has been welcomed by human rights activists and families of victims in Manipur also been cited by outfits in Kashmir to justify their demand for the repeal of AFSPA. This, despite the fact that the Supreme Court clarified that Section 6 of AFSPA had no application in the case. Section 6 is the provision under which the armed forces have immunity from legal action regarding acts done in exercise of powers conferred by AFSPA. Opponents of AFSPA call it the source for abuse of power by armed forces. The court's reason for holding that Section 6 had no application was that it had “yet to be determined whether the deaths were in fake encounters” or “in genuine encounters in counter-insurgency operations”. 

Earlier too the Supreme Court had taken the view that the armed forces cannot use excessive force in “disturbed” areas. It was earlier held by a Constitution Bench in 1998,  and the latest judgment only reiterates it. But the latest judgment is significant for another reason. The court cited Constitutional provisions which empower the Union to deploy armed forces “in aid of the civil power” of a state to deal with a situation affecting public order in that state. It referred to the Constitution Bench's explanation of the words “in aid of the civil power”, and concluded that when armed forces are deployed in aid of the state machinery to deal with a public order situation, normalcy should be restored “within a reasonable period”. If normalcy is not restored for a prolonged period, the Court opined that it would indicate a failure of the civil administration to take effective aid of the armed forces in restoring normalcy, or that of the armed forces in effectively aiding the civil administration in restoring normalcy. It held, “normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces… as it would mock at our democratic process…”! 

The Court, without expressly saying so, labelled the situation in Manipur, which has been declared as a “disturbed area” under AFSPA since 1958, as a mockery of our democratic process. While discussing the Constitutional provisions empowering armed forces of the Union to be deployed in a state, the Court laid emphasis of the words “in aid of the civil power” and the meaning ascribed to these words in the Constitution Bench decision in the Naga case. The Constitution Bench had explained that the words “in aid of the civil power” meant that even after armed forces are deployed by the Union in a State, the civil authorities in the state are not substituted or supplanted — they continue to function. It was also clarified that while armed forces of the Union are deployed in a state, the supervision and control over the armed forces does not vest with the authorities of the state, but that the armed forces will operate “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 restored.” These observations of the Constitution Bench were rendered while rejecting a Constitutional challenge to the AFSPA Act, on the ground that permitting the Centre to deploy armed forces in a state amounted to taking away the state's power to maintain public order, which is exclusively conferred on states under the Seventh Schedule. However, the Supreme Court in the latest case has emphasised the words “normalcy restored” to read into them a legal requirement that normalcy should be restored within a reasonable period. This temporal requirement does not flow from the observations of the Constitution Bench, which were made in a totally different context. 

The Constitution Bench had on a different issue held that a declaration of “disturbed area” cannot be for an indefinite period, and therefore, a periodic assessment had to be carried out to review the need for continuance of the declaration. But the Constitution Bench had been careful not to specify a time limit for the declaration to operate. 

The temporal requirement of normalcy being restored within a reasonable period has far-reaching implications. Would it mean that if an area or an entire state has been declared as a “disturbed area” for several decades, the declaration would become unlawful, even if the situation has been periodically reviewed as mandated by the Constitution Bench? The Court does not spell out that consequence, but the question is bound to be asked at a later stage. Was the Court competent to read such a legal requirement into a subject that is sensitive from a security perspective? In another case relating to extra-judicial killings in Manipur, the Supreme Court had been careful to articulate that the amount of terrorist activity in Manipur affecting public order in that state may require certain additional powers to be conferred on the police and armed forces and that it was not for the Court to say whether terrorists should be fought politically or through force. It was a policy matter for the government. 

These are difficult questions to answer from either perspective. It can only be hoped that the Court's observations on restoring normalcy within a reasonable period are understood in the spirit that they were intended, and not used as political tools. To quote from the judgment, “It is high time that concerted and sincere efforts are continuously made by the 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." 

The writer is an advocate in the Supreme Court.