The judgment was passed today by Justices Madan B Lokur and Deepak Gupta.
The case was filed in the Supreme Court by Extra Judicial Execution Victims Families Association, a registered trust having as its members the wives and mothers of persons whom they claim have been extra-judicially executed by the Manipur Police and the security forces (mainly the Assam Rifles and the Army). The petitioner has alleged 1,528 extra-judicial killings by the Army and other security forces in Manipur.
A compilation in the form of a Memorandum was presented to the United Nations Special Rapporteur, which contained 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur.
The petitioner also mentioned that members of the Armed Forces had escaped punishment because they operated under the Armed Forces Special Powers Act, 1958 (AFSPA), which grants special powers to arrest, conduct searches and seizures and also provides immunity from prosecution.
In 2013, a committee appointed by the Supreme Court to probe six cases of alleged extra-judicial killings in Manipur informed the court that all the encounters were fake.
The committee, comprising retired judge Justice Santosh Hegde, former chief election commissioner JM Lyngdoh and former Karnataka police chief AK Singh, held that all the seven victims, including a 12-year old boy, did not have any criminal background and had not been named in any insurgency-related case.
Meanwhile, in similar writ petitions filed before the Gauhati High Court, judicial inquires were conducted by District and Sessions Judge pursuant to High Court orders. In total, 11 Judicial Inquiry Reports were filed before the High Court, in addition to 7 Commission of Inquiry Reports that were submitted by various Commissions of Inquiry set up by the Manipur government.
These reports stated that the victims were killed from fake encounters and not from exchange of firing as claimed by the security forces.
Subsequently, in a significant judgment delivered on July 8, 2016, the Court acknowledged that the prevailing situation in Manipur, is “a public order situation equivalent to an internal disturbance” and not “a war-like situation”, as alleged by the Attorney General, which was the chief ground for opposing a detailed inquiry into the cases of extra-judicial killings.
The Court held that the use of excessive force or retaliatory force by the Manipur Police or the Armed Forces of the Union is not permissible even under the Armed Forces Special Powers Act, 1958.
Pursuant to the judgment of July 8, 2016, data was submitted to the court regarding the killings of 265 persons. The matter was, thereupon listed for hearing.
The deaths of 265 persons were categorized into four categories:
i) where Commissions of Inquiry were constituted by the State Government;
ii) where judicial inquiries were ordered by the Gauhati/Manipur High Courts;
iii) where matters were taken up by the National Human Rights Commission;
iv) Cases with written complaints.
It was heard continuously for three days – from April 18 to 20.
The Court in its judgment refuted all the submissions made by the Central government. Holding that access to justice is “certainly a human right and it has been given a special place in our constitutional scheme”, the Court held
“The primary reason is that for many of the deprived sections of society, access to justice is only a dream. To provide access to justice to every citizen and to make it meaningful, this Court has evolved its public interest jurisprudence where even letter-petitions are entertained in appropriate cases. The history of public interest litigation over the years has settled that the deprived sections of society and the downtrodden such as bonded labourers, trafficked women, homeless persons, victims of natural disasters and others can knock on the doors of our constitutional courts and pray for justice. This is precisely what has happened in the present petitions where the next of kin could not access justice even in the local courts and the petitioners have taken up their cause in public interest. Our constitutional jurisprudence does not permit us to shut the door on such persons and our constitutional obligation requires us to give justice and succour to the next of kin of the deceased.”
Regarding one of the major contentions by the Central government that the victims’ kin have been awarded monetary compensation and hence the matter must be closed, the Court held the following:
“We cannot agree. Compensation has been awarded to the next of kin for the agony they have suffered and to enable them to immediately tide over their loss and for their rehabilitation. This cannot override the law of the land, otherwise all heinous crimes would get settled through payment of monetary compensation. Our constitutional jurisprudence does not permit this and we certainly cannot encourage or countenance such a view.”
The Court then chose to entrust the investigation with CBI.
“Having considered the issues in their entirety, we are of opinion that it would be appropriate if the Central Bureau of Investigation (or the CBI) is required to look into these fake encounters or use of excessive or retaliatory force. Accordingly, the Director of the CBI is directed to nominate a group of five officers to go through the records of the cases mentioned in the three tables given above, lodge necessary FIRs and to complete the investigations into the same by 31st December, 2017 and prepare charge sheets, wherever necessary.”
The Director of the CBI has to nominate the team and inform the Court of its composition within two weeks.
Interestingly, the Court in its judgment also noted the problems faced by National Human Right Commission (NHRC) viz. non-compliance/ implementation of its guidelines and communications by State governments. It proceeded to direct the Central government to take note of the difficulties faced by the NHRC and remedy them. It also had a word of caution for State governments.
“We expect all State Governments to abide by the directions issued by the NHRC in regard to compensation and other issues as may arise from time to time. If the people of our country are deprived of human rights or cannot have them enforced, democracy itself would be in peril.”