Supreme Court ruling stands on a slippery slope
The Supreme Court's ruling against the use of “excessive force” by the police or the military in the “disturbed areas” of Manipur, under the Armed Forces (Special Powers) Act and its contention that allegations of use of excessive force resulting in the death of any person have to be investigated has some fundamental problems. Take, for example, the Supreme Court's observations on the need for “normalcy” to be restored “within a reasonable period”. The ‘normalcy restored’ clause was brought in by a Constitution Bench of the Supreme Court in the previous Naga People's case.
The issue at that time was whether AFSPA imposed the writ of Union Government via the military upon the State Government which otherwise controls law and order. The court had ruled that this was not the case because the Armed Forces were working in cooperation with the civilian authorities in the State till such time that normalcy was restored. Now, the apex court has taken this clause a step further. While there is no doubt that a prolonged insurgency of the sort that we have seen in Manipur and elsewhere is indeed indicative of failure on the part of all stakeholders in the peace process, to nevertheless describe the situation, as the apex court has done, as a mockery of democracy, wherein the lack of normalcy is used as “a fig leaf for prolonged, permanent or indefinite deployment of the Armed Forces”, is a bit much. Keep in mind that the ‘disturbed areas' declaration under AFPSA is regularly reviewed, as ordered in the Naga People's case. Is the court then suggesting that the implementation of AFSPA beyond a certain time period will be illegalIJ This is still unclear.
Similarly, the apex court's comment on the “qualitative difference” between “the use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly” pushes it down a slippery slope. Such decisions and distinctions are not for the court to make — it is the military, and the military alone, which should decide on what actions need to be taken to effectively neutralise the enemy. At this rate, it seems like the court might one day start adjudicating over whether the generals should have send in commandos on the ground or dropped them from the air, or whether a soldier should have fired one round or five rounds of ammunition. This is absurd, as is the court's observation that the Armed Forces cannot be presume that a gun-toting individual in a disturbed area to be an enemy combatant.
Muddying the waters further, the Supreme Court has clarified that its ruling for enquiries into fake encounters does not disturb the AFSPA sheild which protects the military from precisely such enquiries. Instead, it argues that the Section 6 of the Act has not been taken into consideration because it was “yet to be determined whether the deaths were in fake encounters” or “in genuine encounters in counter-insurgency operations”.