Dr Asangba Tzüdir
The recent pronouncement made by the Supreme Court that the Army cannot use excessive force in its ‘counter-insurgency’ operations in areas declared disturbed can be seen as a first step towards protecting the human rights that have been so ‘condemned’ by an extraordinary inhuman law. This ruling came on a plea by hundreds of families in Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters including the Army and the police. The apex court, making its stand clear stated that, “there is no concept of absolute immunity from trial by a criminal court” if any Army commits an offence. The question of immunity has been the point of contention between the Government that calls for immunity of the security forces, and the Supreme Court appealing for an “equally unsettling” picture of the citizens living under the fear of AFSPA.
Notwithstanding the judgment of the apex court, certain things still remains uncertain on the challenging difference between ‘face value of law’ and ‘place value of law’, between theory and practice. The ruling serves as a judicial precedent to uphold civilian as well as human rights. Further, the court held that criminal courts do have the jurisdiction to look into cases of alleged excesses by the armed forces in areas declared disturbed. But, the tricky word ‘however’ in relation to law comes to play that, the bench of Justice Madan B. Lokur and Uday Umesh Lalit, however, reserved its verdict on the question of ordering a probe by a Special Investigation Team (SIT) into more than 1528 allegedly staged shootouts in Manipur. One may think whether this ruling will only lead to ‘exceptions to the rule.’ On another level, the degree of ‘excessive force’ is not clearly defined. The extremity of AFSPA is the license to ‘shoot to kill’ on mere suspicion. Beyond the extremity, a question needs to be addressed. How much can the Supreme Court’s ruling have an impact on the use of ‘excessive force’ by the Armies in disturbed areas? It only highlights an underlying impression that, so long as a ‘legal fiction’ produces an ‘extraordinary law’ that can unconstitutionally and undemocratically declare an area as disturbed, further ‘exceptions to the rule’ that legitimates a ‘state of necessity’ will continue to infringe on the Human rights.
Questions concerning Human rights cannot arise where legal fiction like AFSPA that contravenes with the very spirit of human rights is in place. Beyond the contentious issues related to the use of excessive force and the question of impunity associated therein, a tangible solution is for AFSPA and DDA to be repealed and revoked. Afterall, there cannot be legal cover for human rights when a legal fiction unconstitutionally declares an area as ‘disturbed.’ The Supreme Court judgment that the Army cannot use ‘excessive force’ may not produce the desired effect; however, such judgment should provide the catalytic impetus to push for repealing AFSPA as a ‘necessary condition’ to bring an end to impunity and to restore the peace that’s so long been ‘disturbed.’
(Dr. Asangba Tzüdir is Editor with Heritage Publishing House. He contributes a weekly guest editorial to the Morung Express. Comments can be mailed to asangtz@gmail.com)
