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

JUDGMENT

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

Signature Not Verified

rubbish and whether the encounter is genuine or not is yet to be determined, but in
Digitally signed by
SANJAY KUMAR
Date: 2016.07.08
17:01:37 IST
Reason:
any case there is a need to know the truth.

W.P. (Crl.) No. 129/2012 Page 1

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.

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; 8 th February, 2006. Commission on Human Rights,
Sixty-second session, Item 17 of the provisional agenda.

W.P. (Crl.) No. 129/2012 Page 2

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

W.P. (Crl.) No. 129/2012 Page 3

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

W.P. (Crl.) No. 129/2012 Page 4

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 15 th

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
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.

W.P. (Crl.) No. 129/2012 Page 5

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

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.

W.P. (Crl.) No. 129/2012 Page 6

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 20044 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:

(a) There has to be a declaration of disturbed area by a high level

authority as mentioned in the Act.

(b) The concerned officer has to be of the opinion that it is necessary

4
12th August, 2004

W.P. (Crl.) No. 129/2012 Page 7

 to do for the maintenance of public order.

(c) He has to give such due warning as he may consider necessary.

(d) 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”.

(e) 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.

W.P. (Crl.) No. 129/2012 Page 8

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 17 th 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

W.P. (Crl.) No. 129/2012 Page 9

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 15 th December, 2012 in

W.P. (Crl.) No. 129/2012 Page 10

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

Commission5 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.

5
Referred to later.

W.P. (Crl.) No. 129/2012 Page 11

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
6
This may be contrasted with the assertion in the affidavit of 15 th 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.

W.P. (Crl.) No. 129/2012 Page 12

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

W.P. (Crl.) No. 129/2012 Page 13

offence under Army Act Section 34, punishable with death.” 7 Reference is made to

Ex-Havildar Ratan Singh v. Union of India8 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 Sandhu9 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 17 th 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
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

W.P. (Crl.) No. 129/2012 Page 14

NHRC has failed to perform its statutory functions to safeguard vital fundamental

rights.

39. With regard to the problem of insurgency in Manipur, it is stated that Manipur

has an international border of over 360 kms with Myanmar. About 30 extremist

organizations operate in Manipur and all of them are very powerful and heavily

armed with sophisticated weapons, including rocket launchers. Their aim and

object is to form an independent Manipur by its secession from India. They have

been indulging in violent activities including killing of civilians and security

forces and law abiding citizens of Manipur to achieve their objective. They have

also been intimidating, extorting and looting civilians for collection of funds and

making efforts to get established abroad for influencing public opinion and

securing their assistance by way of arms and training in achieving their

secessionist objective. Though these organizations have been declared as unlawful

organizations under the UAPA, the ordinary criminal laws are insufficient to deal

with insurgency problems which have warranted enforcement of the AFSPA. The

State of Manipur has also given the following statistics for the period 2000 to

October 2012 of police personnel killed and injured, security forces personnel

killed and injured and civilians killed and injured to highlight the problem of

insurgency in the State:

Police Police Security Security forces Civilians Civilians

killed injured forces killed injured killed injured
105 178 260 466 1214 1173

W.P. (Crl.) No. 129/2012 Page 15

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 3 rd 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 17 th 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 16 th 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

W.P. (Crl.) No. 129/2012 Page 16

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 4 th

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 3 rd 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

W.P. (Crl.) No. 129/2012 Page 17

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 2 nd

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.

W.P. (Crl.) No. 129/2012 Page 18

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

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.

W.P. (Crl.) No. 129/2012 Page 19

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 1 st 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 9 th February, 2011 and 14th

June, 2011 has refused to conduct a Magisterial Enquiry in case of police

W.P. (Crl.) No. 129/2012 Page 20

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 21 st

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 23 rd 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

W.P. (Crl.) No. 129/2012 Page 21

relating to late Thangjam Thoithoi in which his next of kin was awarded Rs. 5

lakhs by way of compensation.

60. In the fourth affidavit dated 27th July, 2015 the NHRC has given the progress

in respect of 62 cases of which details are given in the writ petition. Subsequently,

during the course of hearing, the up to date information was given to us and

therefore it is not necessary to refer to the information given in the affidavit. All

that needs to be said is that the NHRC has complained that the State of Manipur

has not been furnishing the required documents and information within the

prescribed time and has also not been submitting the compliance report in respect

of the recommendations made for providing monetary relief.

61. As mentioned above, the NHRC has furnished information in respect of

the 62 cases during the course of hearing and also in the written submissions filed

on 4th May, 2016. The gist of the information is as follows:

Compensation Show cause Pending Cases No case Total

awarded by notices pending disposal closed registered
NHRC or High for award of with the with the
Court compensation NHRC NHRC
27 4 17 7 7 62

62. The above chart clearly suggests that 31 of the 62 cases were those of a fake

encounter or an extra-judicial killing. In 7 of the 62 cases no complaint was made

to the NHRC. As regards, the cases that have been closed, we find from a perusal

of some orders produced before us that some of these complaints have been closed

without any application of mind and simply because of the conclusion arrived at in

the Magisterial Enquiry report, which is really an administrative report.

W.P. (Crl.) No. 129/2012 Page 22

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

W.P. (Crl.) No. 129/2012 Page 23

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

11
(2013) 2 SCC 493

W.P. (Crl.) No. 129/2012 Page 24

 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

W.P. (Crl.) No. 129/2012 Page 25

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

W.P. (Crl.) No. 129/2012 Page 26

(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 Assam12 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

12
(2012) 2 SCC 34

W.P. (Crl.) No. 129/2012 Page 27

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 Maharashtra15 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

13
(2006) 5 SCC 733
14
(2007) 6 SCC 171
15
(2014) 14 SCC 48
16
(2013) 9 SCC 447

W.P. (Crl.) No. 129/2012 Page 28

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

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.

W.P. (Crl.) No. 129/2012 Page 29

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

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

W.P. (Crl.) No. 129/2012 Page 30

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:

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]

W.P. (Crl.) No. 129/2012 Page 31

 “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

22
Page 101 in Volume 2 of the Report
23
See footnote 1.

W.P. (Crl.) No. 129/2012 Page 32

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

W.P. (Crl.) No. 129/2012 Page 33

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

W.P. (Crl.) No. 129/2012 Page 34

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 Begum24 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

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.

W.P. (Crl.) No. 129/2012 Page 35

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:

(a) 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.

(b) 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.

(c) 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
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

W.P. (Crl.) No. 129/2012 Page 36

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

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

W.P. (Crl.) No. 129/2012 Page 37

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

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.

W.P. (Crl.) No. 129/2012 Page 38

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.

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.

W.P. (Crl.) No. 129/2012 Page 39

(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

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

W.P. (Crl.) No. 129/2012 Page 40

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

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.

W.P. (Crl.) No. 129/2012 Page 41

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 death37 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

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

W.P. (Crl.) No. 129/2012 Page 42

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

W.P. (Crl.) No. 129/2012 Page 43

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

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.

W.P. (Crl.) No. 129/2012 Page 44

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

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.

W.P. (Crl.) No. 129/2012 Page 45

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

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.

W.P. (Crl.) No. 129/2012 Page 46

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

W.P. (Crl.) No. 129/2012 Page 47

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:

W.P. (Crl.) No. 129/2012 Page 48

 “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”

W.P. (Crl.) No. 129/2012 Page 49

 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. Hardie43 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

43
(1820) 1 State Tr NS 609, 610
44
AIR 1946 Nagpur 173, 185

W.P. (Crl.) No. 129/2012 Page 50

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?

W.P. (Crl.) No. 129/2012 Page 51

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. Dharamvir46 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 Nadu47 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:

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

W.P. (Crl.) No. 129/2012 Page 52

 “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 Punjab49

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

49
(2010) 2 SCC 333

W.P. (Crl.) No. 129/2012 Page 53

Civil Liberties v. Union of India and another50 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
50
(1997) 3 SCC 433

W.P. (Crl.) No. 129/2012 Page 54

 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. Bhari52 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

51
Aharon Barak: The Judge in a Democracy, page 283 (Princeton University Press)
52
(1955) 2 SCR 925

W.P. (Crl.) No. 129/2012 Page 55

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.”

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

53
(2012) 12 SCC 72

W.P. (Crl.) No. 129/2012 Page 56

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

Jew55 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
54
(1960) 2 SCR 89
55
(2004) 8 SCC 40

W.P. (Crl.) No. 129/2012 Page 57

 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

preliminary57 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
56
(2012) 13 SCC 192
57
There is nothing to indicate that the report was preliminary.

W.P. (Crl.) No. 129/2012 Page 58

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

W.P. (Crl.) No. 129/2012 Page 59

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

W.P. (Crl.) No. 129/2012 Page 60

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

W.P. (Crl.) No. 129/2012 Page 61

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

W.P. (Crl.) No. 129/2012 Page 62

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 Assam59 after referring to and relying upon Arup Bhuyan

v. State of Assam60 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

58
Digest of Criminal Law by Sir James Stephen
59
(2011) 3 SCC 380
60
(2011) 3 SCC 377

W.P. (Crl.) No. 129/2012 Page 63

 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 Patel61 and Shivaji Atmaji Sawant v. State of

Maharashtra.62 Armed rioters are also involved in violence. Section 146 of the

61
(1985) 3 SCC 398 at paragraph 161
62
(1986) 2 SCC 112 at paragraphs 6 and 7

W.P. (Crl.) No. 129/2012 Page 64

IPC63 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 -

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.

W.P. (Crl.) No. 129/2012 Page 65

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

W.P. (Crl.) No. 129/2012 Page 66

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 17 th

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 India64 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

64
(2004) 9 SCC 580

W.P. (Crl.) No. 129/2012 Page 67

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.

W.P. (Crl.) No. 129/2012 Page 68

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

W.P. (Crl.) No. 129/2012 Page 69

 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.

W.P. (Crl.) No. 129/2012 Page 70

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 UAPA65 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

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.

W.P. (Crl.) No. 129/2012 Page 71

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 India67 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:

(1) Offences committed by a person subject to the Act triable by

a Court Martial in respect whereof specific punishments have
been assigned;

(2) 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

(3) 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
66
(1995) 1 SCC 90
67
(1969) 2 SCR 177

W.P. (Crl.) No. 129/2012 Page 72

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

W.P. (Crl.) No. 129/2012 Page 73

 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 India68 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

68
(1964) 5 SCR 931

W.P. (Crl.) No. 129/2012 Page 74

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

W.P. (Crl.) No. 129/2012 Page 75

 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

69
(2012) 6 SCC 228

W.P. (Crl.) No. 129/2012 Page 76

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:

W.P. (Crl.) No. 129/2012 Page 77

 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

W.P. (Crl.) No. 129/2012 Page 78

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. Singh70 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

70
(2010) 5 SCC 579

W.P. (Crl.) No. 129/2012 Page 79

irregularities.

168. Similarly, J.S. Sekhon v. Union of India71 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

71
(2010) 11 SCC 586

W.P. (Crl.) No. 129/2012 Page 80

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 :

(a) 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

W.P. (Crl.) No. 129/2012 Page 81

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.

(d) 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

W.P. (Crl.) No. 129/2012 Page 82

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:

(a) 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.

(b) 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

W.P. (Crl.) No. 129/2012 Page 83

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

W.P. (Crl.) No. 129/2012 Page 84

ITEM NO.1A COURT NO.7 SECTION PIL(W)
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal) No(s). 129/2012

EXTRA JUDL.EXEC.VICTIM FAMILIES ASSN&ANR Petitioner(s)

VERSUS

UNION OF INDIA & ANR Respondent(s)

Date : 08/07/2016 This petition was called on for

pronouncement of judgment today.

For Petitioner(s) Mr. Colin Gonsalves, Sr. Adv.

Ms. Jyoti Mendiratta,Adv.

Amicus Ms. Menaka Guruswamy

For Respondent(s) Mr. Himanshu Shekhar,Adv.

Mr. R. Bala, Adv.

Mr. B. V. Balaram Das,Adv.

Mr. Rana Ranjit Singh,Adv.

Ms. Shobha,Adv.
Mr. Akanksha Kaushik, Adv.

Ms. Mrinmayee Sahu,Adv.

Ms. Pinky Behera,Adv.

Hon'ble Mr. Justice Madan B. Lokur pronounced the reportable

judgment of the Bench comprising His Lordship and Hon'ble Mr.

Justice Uday Umesh Lalit with following observations:

“173. On an overall consideration of the submissions made

and the material before us, we conclude :

W.P. (Crl.) No. 129/2012 Page 85

 (b) 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

W.P. (Crl.) No. 129/2012 Page 86

the exercise mentioned below is conducted.

(e) 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.

W.P. (Crl.) No. 129/2012 Page 87

175. Therefore, as a first step, we direct:

(c) 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.

(d) 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

W.P. (Crl.) No. 129/2012 Page 88

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.”

(Meenakshi Kohli) (Jaswinder Kaur)

Court Master Court Master
[Signed reportable judgment is placed on the file]

W.P. (Crl.) No. 129/2012 Page 89