On 8 July, Burhan Wani was killed in what the security forces claimed was an ‘encounter’ in Kashmir. On the same day, the Supreme Court passed a significant order considerably restricting the scope of the AFSPA and countering many of the arguments being made to silence critics of fake encounters, AFSPA and prolonged use of military to curb unrest in civilian areas of the country.
The Supreme Court of India, unfortunately, has stopped short of deeming AFSPA to be unconstitutional – and this latest verdict is no different. But this verdict by Justices Madan B. Lokur, J. and Uday Umesh Lalit (Writ Petition (Criminal) No.129 Of 2012 Extra Judicial Execution Victim Families Association (EEVFAM) vs Union of India), while repeatedly invoking the 1998 Naga People’s Movement of Human Rights vs Union of India verdict that had upheld AFSPA, does go several steps further to question the very validity of its widespread and indiscriminate application. While continuing to demand that the AFSPA be scrapped, people’s movements can still welcome this verdict.
The verdict’s forthright observations on fake encounters are especially welcome in a climate when from Ishrat Jehan to Sohrabuddin Sheikh to Burhan Wani, any questions about the veracity of ‘encounters’ is sought to be silenced by the pugnacious claim – ‘he/she was a terrorist/criminal.’
The order was passed in the wake of a 2012 petition by the Extra Judicial Execution Victim Families Association, which had compiled 1528 cases. The Association had made a detailed documentation of 62 of these cases, and focused on 10 of these for the writ petition. In 2013, the Supreme Court had appointed a Commission comprising retired Justice N. Santosh Hegde as the Chairperson and J M Lyngdoh, former Chief Election Commissioner and Ajay Kumar Singh, former Director General of Police and Inspector General of Police, Karnataka as members. The Commission was asked to look into six of the 10 cases cited in the writ petition. The Commission had found all six to be brazen cold-blooded custodial killings beyond possible doubt (see ‘Indictment of AFSPA and Army’s ‘Licence to Kill’, Liberation August 2013).
The petitioners had sought that a SIT from outside Manipur be set up to investigate instances of alleged extra-judicial executions, and also for a direction that the areas in Manipur declared as a ‘disturbed area’ under AFSPA be withdrawn and the notification issued in this regard be quashed. The 8 July order did not deal with the demand for the SIT – that matter will be heard later.
Interestingly, the Home Ministry and Army bigwigs have been complaining that this verdict will set a “bad precedent” that will encourage people all over the country to approach the Supreme Court for relief! In a report in scroll.in by Saikat Datta, a senior home ministry official is quoted as saying “It creates a precedent and what prevents from people from other regions using it to file similar petitions?…That could have a major impact on the efficacy of our operations in Kashmir or Chhattisgarh.” Dr Ambedkar had described Article 32 of the Constitution (under which a citizen’s right to approach the Supreme Court for constitutional remedies is guaranteed) as the “the very soul of the Constitution and the very heart of it”, “without which this Constitution would be a nullity.” Well, in expressing consternation at people availing of this provision, the Home Ministry is clearly going against the very heart and soul of the Constitution!
Some significant portions of the Supreme Court’s observations and order of 8 July are reproduced below.