# ASSOCIATION (EEVFAM) & ANR v. UNION OF INDIA & ANR

- **Citation:** [2016] 4 S.C.R. 909
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Bench:** Madan B. Lokur, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/association-eevfam-anr-v-union-of-india-anr-31323
- **Pages:** 86

## Headnote

Constitution of India:
Arts.32, 226 - Maintainability of the writ petition - Allegation
in writ petition that fake encounters or extra judicial executions
carried out by Manipur police and the armed forces of the Union -
Held: In matters concerning gross violations of human rights,
constitutional court should adopt an 'open door policy' - The
instant case 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 - Possible
grave injustice might be caused to the petitioners, the next of the
kin of the victims alleged to have been killed in fake encounter or
victims of alleged extra-judicial executions, if they are precluded,
at the threshold, from approaching Supreme Court u/Art.32 of the
Constitution - Therefore, petition u!Art.32 is held maintainable . .
Art.32 - Prayer in writ petition for appropriate order for setting
up a special investigation team (SIT) of police officers from outside
the State of Manipur to investigate the instances of alleged extra
iudicial executions and thereafter prosecute the offendors in
accordance with law - Held: An allegation of excessive force
resulting in the death of any person by Manipur Police or the armed
forces in Manipur must be thorougly enquired into - However. for
the time being, matter left open for decision on who should conduct
the inquiry - Of the 62 cases that the petitioners have documented,
their representative and the Amicus are directed to 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 FIR or complaint or petition has been filed by the next
of kin of the deceased - The NHRC is requested to render assist~nce
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[2016] 4 S.C.R.
to the Amicus in this regard - The representative of the petitioners
and the Amicus would revisit the remaining cases (1528 minus 62)
and carry out an identical exercise - The grievance of the NHRC
that it has become a toothless tiger shall be considered, ajier hearing
the Union of India and the NHRC on this important issue -
The
nature of the guidelines issued by the NHRC - whether they are
binding or only advisory shall also be considered - Armed Forces
(Special Powers) Act, 1958.
Art.352 - Amendment of Art.352 by Constitution (Forty-fourth
Amendment) Act, 1978 whereby words 'armed rebellion 'substituted
for words 'internal disturbance' in clause (1) of Art. 352 - Legislative
intent behind the amendment - Held: The intention was to limit the
invocation of emergency powers u/Art.352 only to more serious
situation where there is a threat to the security of the country or
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 -
However, proclamation of emergency could be made in the event of
internal disturbance (not covered by Art.352) by resort to Art.356.
Arts.352, 356 - 'armed rebellion' and 'internal disturbance' -
Distinction between - Discussed.
Art.355; Seventh Schedule; List l; Entry 2A - Deployment of
armed forces to aid civil power to tackle human rights violation in
Manipur - Held: It is the duty of Union Government to protect State
from external aggression and internal disturbance - 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 - 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

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[2016] 4 S.C.R. 909
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
A
ASSOCIATION (EEVFAM) & ANR.
v.
UNION OF INDIA & ANR.
(Writ Petition (Criminal) No.129Of2012)
JULYOS,2016
[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.]
Constitution of India:
Arts.32, 226 - Maintainability of the writ petition - Allegation
in writ petition that fake encounters or extra judicial executions
carried out by Manipur police and the armed forces of the Union -
Held: In matters concerning gross violations of human rights,
constitutional court should adopt an 'open door policy' - The
instant case 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 - Possible
grave injustice might be caused to the petitioners, the next of the
kin of the victims alleged to have been killed in fake encounter or
victims of alleged extra-judicial executions, if they are precluded,
at the threshold, from approaching Supreme Court u/Art.32 of the
Constitution - Therefore, petition u!Art.32 is held maintainable . .
Art.32 - Prayer in writ petition for appropriate order for setting
up a special investigation team (SIT) of police officers from outside
the State of Manipur to investigate the instances of alleged extra
iudicial executions and thereafter prosecute the offendors in
accordance with law - Held: An allegation of excessive force
resulting in the death of any person by Manipur Police or the armed
forces in Manipur must be thorougly enquired into - However. for
the time being, matter left open for decision on who should conduct
the inquiry - Of the 62 cases that the petitioners have documented,
their representative and the Amicus are directed to 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 FIR or complaint or petition has been filed by the next
of kin of the deceased - The NHRC is requested to render assist~nce
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to the Amicus in this regard - The representative of the petitioners
and the Amicus would revisit the remaining cases (1528 minus 62)
and carry out an identical exercise - The grievance of the NHRC
that it has become a toothless tiger shall be considered, ajier hearing
the Union of India and the NHRC on this important issue -
The
nature of the guidelines issued by the NHRC - whether they are
binding or only advisory shall also be considered - Armed Forces
(Special Powers) Act, 1958.
Art.352 - Amendment of Art.352 by Constitution (Forty-fourth
Amendment) Act, 1978 whereby words 'armed rebellion 'substituted
for words 'internal disturbance' in clause (1) of Art. 352 - Legislative
intent behind the amendment - Held: The intention was to limit the
invocation of emergency powers u/Art.352 only to more serious
situation where there is a threat to the security of the country or
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 -
However, proclamation of emergency could be made in the event of
internal disturbance (not covered by Art.352) by resort to Art.356.
Arts.352, 356 - 'armed rebellion' and 'internal disturbance' -
Distinction between - Discussed.
Art.355; Seventh Schedule; List l; Entry 2A - Deployment of
armed forces to aid civil power to tackle human rights violation in
Manipur - Held: It is the duty of Union Government to protect State
from external aggression and internal disturbance - 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 - 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.
Use of excessive force or retaliation and right of self defence
- Distinction between - Held: The right of self-defence or private
defence is a right that can be exercised to defend oneself but not to
retaliate - While a victim of aggression has a right of private defence
or self-defence (recognized by ss.96 to 106 of the !PC) 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.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCJATION (EEVFAM) v. UNION OF INDIA
Use of excessive force or retaliatory force by the Manipur Police
or the armed forces of the Union - Permissibility - Held: ls not
permissible - As is evident from the Dos and Don ~s 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 -
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.
Army Act, 1950:
s.3(x) - 'enemy' - Person carrying arms in a disturbed area
whether included in expression 'enemy' as defined uls.3(x) - Held:
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 - 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
- Unlawful Activities (Prevention) Act, 1967.
Use of excessive force against enemy - Held: 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 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.
Offence committed by member of armed forces - Applicable
law - Held: If an offence is committed by Army personnel, there is
no concept of absolute immunity from trial by the criminal court
constituted under the Cr.P.C. -
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
n~cessarily lie only with the Army - The criminal court under the
Cr.P.C. could also try the alleged offender in certain circumstances
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in accordance with the procedure laid down by the Cr.P.C. - In the
event of conflict of jurisdiction, whether an alleged offender should
be tried by a criminal court constituted under the Cr.P.C. or by the
Court Martial constituted under the Army Act, that conflict shall be
referred to the Central Government for passing an appropriate order
- Code of Criminal Procedure, 197 3.
s.122 - Offence committed by Army personnel - Limitation -
Invocation of - Held: The period of limitation provided u!s. 122
commences from (a) the date of the offence; (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.
Code of Criminal Procedure, 1973: ss.4 and 5 - Held: 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. - Unless a statute specifically provides for it, the
investigation, enquiry, trial and other proceedings in respect of
offences under the !PC and other laws shall be carried out in
accordance with the provisions of the Cr.P.C.
Penal Code, 1860: s.121 - Waging of war - Is there a war like
situation in Manipur - Held: 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 - 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
conditions -
An internal disturbance is not equivalent to or akin to
a war-like situation - There is no war or war-like situation in
Manipur but only an internal disturbance, within the meaning of
that expression in the Constitution.
Words and phrases: Expression .. in aid of the civil power" -
Meaning of expression in the context of Entry 2A of List I of the
Seventh Schedule of the Constitution.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. uNION OF INDIA
Listing the matter for further proceedings, the Court
HELD: 1. Maintainability of the writ petition.
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. If in 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. This petition under Article 32 of the Constitution
should be entertained. [Paras 79, 80] [946-G; 947-C-D]
Hari Singh v. State of U.P. (2006) 5 SCC 733 : 2006 (3)
Suppl. SCR 59; Aleque Padamsee v. Union of India
(2007) 6 sec 171 : 2001 (8) SCR 390; Sunil
Gangadhar Karve v. State of Maharashtra (2014) 14
SCC 48; Doliben Kantilal Patel v. State of Gujarat
(2013) 9 SCC 447: 2013 (8) SCR 28 - referred to.
2. Constitutional provisions
2.1. This petition is concerned not so much with a law and
order situation in Manipur, but a public order situation.
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. 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. This has been
the constitutional position ever since Entry 1 of List II of the
Seventh Schedule was amended by the Constitution (Forty-second
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Amendment) Act, 1976 and Entry 2A was inserted in List I of the
Seventh Schedule to the Constitution by the same Amendment
Act. What is of importance is that deployment of the armed forces
should only be in aid of the civil power. [Paras 81, 82) [947~E-G]
Naga Peoples Movement of Human Rights v. Union of
India (1998) 2 SCC 109 : 1997 (5) Suppl. SCR 469 -
relied on.
2.2. 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 important amendment is the substitution of the
words 'armed rebellion' by the words 'internal disturbance' in
clause (1) of Article 352 of the Constitution. 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. To put it negatively, an
internal disturbance is not a ground for a proclamation of
emergency under Article 352 of the Constitution. 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. 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 while the latter comes within the
purview only of Article 356 and not Article 352. [Paras 83 to 86]
(948-A-B; 949-A-D; 950-C)
2.3. Article 355 of the Constitution makes it the duty of the
Union Government to protect a State from external aggression
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. UNION OF INDIA
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.
Therefore, there are 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". 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
Go.-ernment 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. [Paras 87, 88] (950-F-G; 951-A-C]
2.4. 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. If
normalcy is not restored for a prolonged or indeterminate period,
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 the deployment of the armed forces to normalize a
situation particularly of an internal disturbance. [Para 91] (952G; 953-A-C]
3. Statutory provisions
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3.1. (i) The Armed Forces (Special Powers) Act, 1958
The Armed Forces (Special Powers) Act, 1958 (AFSPA) was
originally enacted as the Armed Forces (Assam and Manipnr)
Special Powers Act, 1958. It was initially extended to the State of
Assam and the Union Territory of Manipur. Since then the entire
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Union Territory of Manipur (and subsequently the entire State of
Manipur) has been declared a disturbed area in terms of Section
3 of t,he AFSPA. In other words, Manipur bas been a disturbed
area for about sixty years. 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
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in aid of the civil power. In snch a situation, the AFSPA enables
the armed forces of the Union to exercise vast powers. 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
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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". Clearly,
the power to cause death is relatable to maintenance of public
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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
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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. [Paras 93 to 96] (953-G-H; 954-A, C-E;
955-A-BJ
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(ii) Code of Criminal Procedure, 1973
Section 4 and 5 of the Cr.P.C. concern with investigation,
enquiry, trial and other proceedings in relation to offences under
the Indian Penal Code, 1860 and other laws. However, this does
not preclude any enactment regulating the manner or place of
investigating, inquiring into, trying or othenvise dealing with such
offences. Further, the applicability of any other special or local
law or any special jurisdiction or power conferred or any special
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. UNION OF INDIA
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. [Para 98) [955-E; 956-A-D]
(iii) The Unlawful Activities (Prevention) Act, 1967
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is
concerned, inter alia, with cession and secession of a part of the
territory of India and terrorist activities. 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. ·[Paras 99, 101) [956-E; 957-B)
(iv) The Army Act, 1950
A person subject to the Army Act, 1950 (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. The enemy must be armed. The Army Act also provides
for offences in relation to the enemy which are punishable with
death, offences not punishable with death and offences that are
more severely punishable while on active service. The significance
of these provisions is best understood in the background of the
submission 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
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unlawful association and is threatening or is likely to threaten
the unity, integrity, security or sovereignty oflndia. 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. Section 125 and Section 126 of the
Army Act are of considerable importance in this context and as
far as this case is concerned. 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. The Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1978 provide, inter alia, that
when a person subject to the Army Act·ois brought before a
Magistrate and is charged with an offence also triable by a Court
Martial, then such Magistrate shall 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 Magistraterecords
his opinion in writing that he should so proceed without being so
moved. 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. 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
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. UNION OF INDIA
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 instituted. [Paras 103 to 108) [958-C; 959-A-D; 960-A-E; 961A-C)
4. Is there a war-like situation in Manipur?
4.1. There is no doubt from the records of the case that
Manipur has been and 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. However, 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. That is not anybody's case at all nor has it even
been suggested. [Paras 110, 111) [962-E, H; 963-A-B)
4.2. The 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 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 oflndia that it is unable to resort to available constitutional
provisions and measures to bring a war-like situation under control
for almost six decades. 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. An internal disturbance is not
equivalent to or akin to a war-like situation. 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. [Paras 115, 116) [966-A-E)
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
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5. Use of excessive force and retaliation
5.1. There is distinction between the right of self-defence
or private defence and use of excessive force or retaliation. The
right of self-defence or private defence is a right that can be
B ·exercised to defend oneself but not_to retaliate. The right of selfdefence 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
c
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IPC) if that victim exceeds the right of private defence or selfdefence 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 Civil Liberties v. Union
of India and another 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. [Paras 118, 122] (966-H; 967-A; 968D-F)
Rajesh Kumar v. Dharamvir (1997) 4 SCC 496 : 1997
(2) SCR1012; V. Subramani v. State of Tamil Nadu
(2005) 10 SCC 358 : 2005 (2) SCR 536; Rohtash
Kumar v. State of Haryana (2013) 14 SCC 290; Darshan
F
Singh v. State of Punjab (2010) 2 SCC 333 : 2010 (1)
SCR 642; *People '.s Union for Civil Liberties v. Union
of India and another (1997) 3 SCC 433 : 1997 (1) SCR
923 - relied on.
5.2. The problem before the courts tends to become vexed
G
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
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
· ASSOCIATION (EEVFAM) v. UNION OF INDIA
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. Causing the death of a 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. The decision of the Constitution Bench in Naga People's
Movement of Human Rights 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. This is the r~quirement
of a democracy and the requirement of preservation of the rule
of law and the preservation of individual liberties. [Paras 123,
125, 126] [Para 135) [968-G; 969-A-B; 970-C-D, G; 974-G]
Matajof{ Dobey v. HC. Bhari (1955) 2 SCR 925; Om
Prakash v. State of Jharkhand (2012) 12 SCC 72 : 2012
(9) SCR 125 K. Satwant Singh v. State of Punjab (1960)
2 SCR 89; State of Orissa v. Ganesh Chandra Jew
(2004) 8 SCC 40 : 2004 (3) SCR 504; State of
Maharashtra v. Saeed Sohail Sheikh (2012) 13 SCC
192 : 2012 (11) SCR 916 - relied on.
6. Retaliation against an enemy
6.1. 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.
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 air
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[20 l 6] 4 S.C.R.
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. Section 146 of the IPC
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. 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. [Paras 139, 142)
(976-B-C; 977-E-D; 978-E]
6.2. In cases such as the present, there is a greater duty of
care and an equally greater necessity of a thorough enquiry since,
the alleged 'enemy' in this case is a citizen of our country entitled
to all fundamental rights including under Article 21 of the
Constitution. Ordinarily our armed forces should not be used
against our countrymen and women. 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.
It is wrong to say 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. 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 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. [Paras 143, 144) (978-F-G;
979-C-F)
Indra Das v. State of Assam (2011) 3 SCC 380 : 2011
(4) SCR 289; Arup Bhuyan v. State of Assam (2011) 3
SCC 377 : 2011 (2) SCR 506; Union of India v. Tulsiram
Patel (1985) 3 SCC 398 : 1985 (2) Suppl. SCR 131;
Shivaji Atmaji Sawant v. State of Maharashtra (1986)
2 sec 112 : 1986 (1) SCR 300 - relied on.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. UNION OF INDIA
6.3. Killing an 'enemy' is not the only available solution and
that is what the Geneva Conventions and the principles of
international humanitarian law tell. 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. 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. [Para 149) [981-BC, F)
7. The Ten Commandments are issued by the Chief of Army
Staff to show how the security forces are expected to act in
Manipur. 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. [Para 151) [982-C; 983-C-D)
8. Army Act and the Cr.P.C.The law is 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. 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
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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 down by
the Cr.P.C. [Paras 163, 164) [989-G-H; 990-A-C)
Balbir Singh v. State of Punjab (1995) 1 SCC 90 : 1994
(5) Suppl. SCR 422; Som Datt Datta v. Union of India
(1969) 2 SCR 177; Ram S111arup i: Union India (1964)
5 SCR 931; General Officer Commanding, Rashtriya
Rifles v. Central Bureau of Investigation (2012) 6 SCC
228 : 2012 (5) SCR 599 - relied on.
9. Issue of limitation
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. [Para 166) [990-E-F]
10. 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
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
report. Therefore, 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, 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
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) v. UNION OF INDIA
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. Therefore, 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. [Paras 171,
172] [991-E-H; 992-A-B]
Union of India v. V.N Singh (2010) 5 SCC 579 : 2010
(4) SCR 454; J.S. Sekhon " Union of India (2010) 11
SCC 586 : 2010 (9) SCR 1025; Peoples Union for
Civil Liberties v. Union of India (2004) 9 SCC 580 :
2003 (6) Suppl. SCR 860 - relied on.
11.