(In this post, Anupama Kumar, a practicing advocate based in Chennai, raises some questions about the recent Supreme Court order on alleged extra-judicial killings in the state of Manipur)
Recently, the Supreme Court passed an order in Extra Judicial Execution Victim Families Association vs Union of India [“EEVFAM”]. The petitioners, the Extra-judicial Execution Victims’ Families Association of Manipur, had compiled a list of “encounter killings” that had been carried out by the armed forces in Manipur. The short point before the Court related to the establishment of a Special Investigation Team to inquire into these killings. In this order, the Court made no observations on the formation of this SIT, but concluded that the petitioners did indeed have a “right to know” the truth under Article 21. As a result, while an inquiry can be carried out into the killings, the question of who is to carry it out remains open. The Court then examined the question of whether the Army enjoyed impunity for encounter killings under the AFSPA. I submit that this analysis of the powers of the Army under AFSPA remains unsatisfactory, and I explore this in greater detail below.
Lokur J began by analysing the scope of Entry I, List II (“public order”) in relation to Entry 2A, List I (“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.”). He reasoned that the two entries used the term “internal disturbance,” which is also found in Article 355 of the Constitution. Lokur J noted that, while the term “armed rebellion” had been substituted for “internal disturbance” in Article 352, it continued to be used in Article 355. He further noted that the implication of this has been examined in Naga People’s Movement for Human Rights by four judges as follows:
“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 county or a part thereof, while `internal disturbance’, thought 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.
The provisions of the Central Act have been enacted to enable the Central Government to discharge the obligation imposed on it under Article 355 of the Constitution and to prevent the situation arising due to internal disturbance assuming such seriousness as to require invoking the drastic provisions of Article 356 of the Constitution. The Central Act does not confer of the Union the executive and legislative powers of the States in respect of which a declaration has been made under Section 3. It only enables the personnel of armed forces of the Union to exercise the power conferred under Section 4 in the event of a notification declaring an area to be a disturbed area being issued under Section 3. Having regard to the powers that are conferred under Section 4, we are unable to appreciate how the enactment of the Central Act can be equated with the exercise of the power under Article 356 of the Constitution.”
The Court, in that case, then went on to conclude that the Armed Forces Special Powers Act was constitutional, to the extent that the Union forces were to be used in aid of civil power.
The expression “internal disturbance” was then considered by three judges of the Supreme Court in Sarbananda Sonowal, which arrived at a curious test for what might amount to “external aggression.” The Court in that case considered the constitutionality of the IMDT Act, and the alleged failure of the Union to stop large scale migration into Assam from Bangladesh. In concluding that even non-violent migration could amount to “external aggression.” In doing so, the court did not rely on the text of the Constitution, but on a speech made by Dr. Nagendra Singh at the United Nations, with respect to the influx of refugees into India from erstwhile East Pakistan.
Admittedly, the Court in EEVFAM was bound by decisions of higher benches in both Sarbananda Sonowal and Naga People’s Movement for Human Rights. However, these decisions raise the larger issue of the fact that there is no clarity with respect to when Union forces can be deployed, and what the role of the Union is in such cases.
A similar confusion exists with respect to the scope of the word “war”. The Court concluded that there was no material on record to show that the situation in Manipur had escalated into a war, and that in any case, there had been no declaration by the Union to this effect. (Paras 110-118). In doing so, the Court distinguished the case at hand from Navjot Sandhu, on the grounds that “war” required the presence of an animus to strike against the sovereignty of the Indian State. On fact, the attack in question was to the Parliament, i.e., to the very heart of Indian democracy. In sum:
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 recognises 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.
Such reasoning raises several concerns. First, the decision in Navjot Sandhu did not refer to the term “war” in Article 352, or anywhere in the Constitution, but to s. 121 of the IPC, i.e., waging war against the State. Second, in any event, the scope of s. 121 was also discussed in Kasab, where the attack was on privately owned structures in India. In that case, the Court found that the ingredients of s. 121 had been satisfied, as the attack was “against Indians,” “by foreigners” and with the intention of creating “internal strife and insurgency.” However, in this case, Lokur J had noted that there had been insurgency in Manipur, and that the perpetrators were plainly terrorists. It therefore appears that, third, the Court’s conclusion that this was not a situation of “war” or “armed rebellion” was arrived at simply because any other result would be unpalatable.
It is noted that the question of when Central forces may be deployed within India has been examined by both the Sarkaria and Puncchi commissions on centre-state relations. In both cases, the Commissions concluded that the deployment of the Union forces should only take place in the rarest of cases, and that the deployment should be for the shortest period possible. The Puncchi Commission went as far as to suggest an amendment to Article 355, in order to clarify the proper scope of the powers of the Union. However, until these steps are taking, several questions continue to be left open. What is the scope of Entry 2A, List I, and to what extent can the Centre act independently of the States? When can the Union classify a situation as being serious enough to require classification as not simply “public disorder,” but “internal disturbance” or indeed, “armed rebellion,” of a nature that would require the invocation of Emergency under Article 352? How should the government now classify movements such as the Naxalite movement in Central India, or the movement for independence of Kashmir, and which of these would call for the deployment of Central forces not “in aid of civil power.”? And where the civil power is unable, or unwilling to restore order – as noted by the Court here – what is the correct scope of the powers of the Union?