Manipur has been a conflict ridden state since a long time now. AFSPA has been in force since the 1958 and the demand to repeal the same has been a long standing one. It is believed that the draconian law gives a blanket of protection to the Army and the Manipuri commandos to kill with impunity. As a result, it recently came to light that there have been 1,528 fake encounters in Manipur.
However earlier this year, the Supreme Court alarmed at the rise in the numbers of fake encounters, have made judicial inquiry mandatory for the same. And that holds true even for those involved in the Bhopal encounter. It was alleged that security forces have gunned down 8 SIMI terrorists after they broke out from Bhopal jail.
What happened in Manipur?
On July 8, a Supreme Court bench, comprising justices Madan B. Lokur and Uday Umesh Lalit, gave a detailed judgment in Extra Judicial Execution of Victim Families Association(EEVFAM) vs Union of India explaining why even in a disturbed area, armed personnel cannot claim any immunity from prosecution, if it is proved that they were responsible for a fake encounter death.
The Supreme Court, in this case, was concerned with the plea for justice for the relatives of those killed in the fake encounters perpetrated by armed personnel and the state police while fighting terrorism in Manipur. The number of alleged victims in fake encounters in Manipur, according to the petitioners, is 1,528. The bench has directed verification of each case to decide which of these would require a judicial enquiry to establish whether the encounter was fake, so as to punish the perpetrators.
The fact that Supreme Court bench did not condone the use of disproportionate force by the army even in a disturbed area would make those in the Madhya Pradesh police who are alleged to have used similar force against the eight men, ineligible for any of the defences that encounter cops are generally entitled to.
Will Judicial Inquiry do any good?
Cases of fake encounters have risen so much that the moment the Bhopal encounter was announced, it has given rise to whether it was genuine or fake. On the basis of media reports, the National Human Rights Commission (NHRC) has issued to Madhya Pradesh chief secretary, director general of police and the director general and inspector general of prisons to send detailed reports, within six weeks, about the encounter deaths.
However the reports to be sent to the NHRC will have only of limited value. In the absence of any powers, the NHRC cannot question the credibility of such reports, let alone punish those found guilty of fake encounters. At best, it can award due compensation to the families of the victims, after its enquiry establishes that the encounters were fake.
It is to be noted that the Supreme Court’s judgment notes, under Section 46 of the Code of Criminal Procedure (CrPC), 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.
But the defence of section 46 of the CrPC would be available to a police official only if it is shown that the victims were accused of offences punishable with death or with imprisonment for life. This would presuppose that the accused police officials had prior knowledge of the offences committed by the prisoners who escaped and what punishments that such offences would invite, if proved.
As encounters are very likely sudden and unplanned, one can safely assume that they would have left no time for the police forces to do this preliminary research into whether the prisoners who escaped were accused of offences inviting death or life sentences, so that they could know whether they were free to kill their victims, if they resisted their capture. More important, the encounter cops must prove that their victims resisted their capture, by using force threatening their lives. Killing the prisoners merely for the offence of escaping from prison would be disproportionate to the nature of their offence.
And even if the state government decides the hold magisterial enquiries and take suitable action on the report given, it would not preclude any other inquiry or investigation into the allegations made. There can be no substitute for a judicial inquiry, an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952, the bench had made it clear in that case. The Supreme Court’s conclusions in the Manipur encounter case, therefore, are relevant in the Bhopal encounter case as well.
Source: The Wire