Holding

The writ petition is maintainable under Article 32 and allegations of excessive force by the police or armed forces must be thoroughly investigated, with no blanket immunity available.

Summary

The petitioners, comprising the Extra Judicial Execution Victim Families Association and a human‑rights trust, alleged that the Manipur police and Union armed forces carried out fake encounters and extra‑judicial killings of civilians, many of whom were in custody, and that no FIRs were registered. They sought, under Article 32 of the Constitution, a direction to set up a special investigation team and to ensure prosecution of any wrongdoing. The Court examined whether such allegations, involving gross human‑rights violations, could be entertained directly under Article 32 and held that the writ is maintainable because ordinary criminal remedies were inadequate. It affirmed that the use of excessive or retaliatory force by the police or armed forces is impermissible and must be thoroughly investigated, rejecting any claim of blanket immunity under the AFSPA or the Army Act. While leaving open the question of which authority should conduct the inquiry, the Court directed the petitioners and an amicus to compile a detailed tabular record of the cases and to seek assistance from the NHRC. The petition was listed for further proceedings rather than dismissed.

Issues considered

The maintainability of the writ petition under Article 32 in the context of alleged fake encounters and extra‑judicial executions.
Whether allegations of excessive or retaliatory force by the Manipur police and Union armed forces require a thorough judicial inquiry.
Whether the Armed Forces (Special Powers) Act, 1958, the Army Act, 1950, or the Code of Criminal Procedure provide any immunity from prosecution.
Whether the internal disturbance in Manipur can be treated as a war‑like situation for purposes of emergency powers.
Who should conduct the inquiry – a judicial probe, NHRC investigation, or a commission under the Commissions of Inquiry Act, 1952.

Legislation cited

Armed Forces (Special Powers) Act, 1958s. 3, s. 4(a), s. 6
Army Act, 1950s. 122, s. 125, s. 126, s. 34, s. 3(x), s. 69, s. 70
Code of Criminal Procedure, 1973s. 122, s. 176, s. 4, s. 5
Commissions of Inquiry Act, 1952
Indian Penal Code, 1860s. 121, s. 129-132, s. 146, s. 96-106
Protection of Human Rights Act, 1993s. 19
Unlawful Activities (Prevention) Act, 1967s. 15, s. 2(m), s. 2(o)

Subjects

extra‑judicial executionfake encounterhuman rightsArticle 32Armed Forces (Special Powers) Actinternal disturbanceexcessive forceManipurconstitutional lawinquiry

Judgment

[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 B
[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 - c
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 D
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, E .
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 F
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,
G
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 H
909
910 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 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
B
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
c 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 -
D
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
E 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
F 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
G
defence is a right that can be exercised to defend oneself but not to
retaliate - While a victim of aggression has a right ofprivate 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
H aggressor and commits a punishable offence.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 911
ASSOCJATION (EEVFAM) v. UNION OF INDIA

Use of excessive force or retaliatory force by the Manipur Police A
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,
B
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 c
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:
D
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. E
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 F
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 G
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 H
912 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 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, 1973.
B
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
c 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
D 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
E 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
F 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
G 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
H Seventh Schedule of the Constitution.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 913
ASSOCIATION (EEVFAM) v. uNION OF INDIA

Listing the matter for further proceedings, the Court A
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 B
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 c
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, D
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]
E
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. F
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 G
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
H
914 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 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 -
B
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
c 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
D "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
E 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
F 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
G 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
H Union Government to protect a State from external aggression
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 915
ASSOCIATION (EEVFAM) v. UNION OF INDIA

and internal disturbance. By necessary implication, an external A
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
B
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 c
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
D
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 E
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 F
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 G
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] (952-
G; 953-A-C]
3. Statutory provisions H
916 SUPREME COURT REPORTS (2016] 4 S.C.R.

A 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
B 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
C 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
0 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
E 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
F 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
(ii) Code of Criminal Procedure, 1973
Section 4 and 5 of the Cr.P.C. concern with investigation,
G
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
H law or any special jurisdiction or power conferred or any special
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 917
ASSOCIATION (EEVFAM) v. UNION OF INDIA

procedure provided by any other law for the time being in force A
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
B
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 c
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 D
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
E
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 F
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
G
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 H
918 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 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
B
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
c 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
D
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
E 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
F
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
G 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
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 919
ASSOCIATION (EEVFAM) v. UNION OF INDIA

for being proceeded against according to law, or to stay the A
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; 961-
A-C)
B
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 c
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 D
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 E
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 F
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
G
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
H
920 SUPREME COURT REPORTS [20 I 6] 4 S.C.R.

A 600 : 2005 (2) Suppl. SCR 79 - relied on.
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 self-
defence 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
IPC) if that victim exceeds the right of private defence or self-
c defence 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
D 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; 968-
E D-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 921
· ASSOCIATION (EEVFAM) v. UNION OF INDIA

behind its back. This is not a valid criticism since, and this is A
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
B
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 c
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
D
''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 E
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 F
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
G
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 H
922 SUPREME COURT REPORTS [20 l 6] 4 S.C.R.

A 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
B
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)
c (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
D 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
E 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
F 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)
G 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)
H 2 sec 112 : 1986 (1) SCR 300 - relied on.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 923
ASSOCIATION (EEVFAM) v. UNION OF INDIA

6.3. Killing an 'enemy' is not the only available solution and A
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
B
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 c
duty would be liable to be proceeded against. [Para 149) [981-B-
C, 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 D
(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 E
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 F
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 G
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 H
924 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 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)
B 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.
c 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
D 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]
E 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
F 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
G 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
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 925
ASSOCIATION (EEVFAM) v. UNION OF INDIA

Magisterial Enquiry conducted at the behest of the State A
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
B
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 c
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. Further steps: Of the 62 cases that the petitioners have
documented, their representative and the Amicus will prepare a D
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 First Information Report or
complaint or petition has been filed by the next of kin of the
deceased. The NHRC is requested to render assistance to the E
Amicus in this regard. Since a Magisterial Enquiry is not a judicial
inquiry and, it is not possible to attach any importance to
Magisterial Enquiries, the tabular statement will not include
Magisterial Enquiries. The representative of the petitioners and
the Amicus will revisit the remaining cases (1528 minus 62) and F
carry out an identical exercise. This exercise is required to be
conducted for eliminating those cases in which there is no
information about the identity of the victim or the place of
occurrence or any other relevant detail and then present an
accurate and faithful chart of cases in a simple tabular form. The
grievance of the NHRC that it has become a toothless tiger shall G
be considered, after 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. [Paras 175, 176] [993-E-H; 994-A]
Ex-Havildar Ratan Singh v. Union of India 1992 Supp H
926 SUPREME COURT REPORTS [2016] 4 S.C.R.

A (1) SCC 716: 1991 (2) Suppl. SCR 370; Extra-Judicial
Execution Victim Families Association v. Union of India
(2013) 2 SCC 493 : 2013 (1) SCR140; Kai/ash Gour
v. State ofAssam (2012) 2 SCC 34 : 2011 (16) SCR318;
United Provinces v. Atiqa Begum (1940) FCR 110 -
referred to.
B
Case Law Reference
1991 (2) Suppl. SCR 370 referred to Para 37
2005 (2) Suppl. SCR 79 relied on Para 37
2013 (1) SCR 140 referred to Para 67
2011 (16) SCR 318 referred to Para 75
c 2006 (3) Suppl. SCR 59 referred to Para 78
2007 (8) SCR 390 referred to Para 78
(2014) 14 sec 48 referred to Para 78
2Q~3 (8) SCR 28 referred to Para 78
1997 (5) Suppl. SCR 469 relied on Para 84
(1940) FCR 110 referred to Para 90
D
1997 ( 2) SCR 1012 relied on Para 118
2005 (2) SCR 536 relied on Para 119
(2013) 14 sec 290 relied on Para 120
2010 (1) SCR 642 relied on Para 121
1997 (1) SCR 923 relied on Para 122
E (1955) 2 SCR 925 relied on Para 125
2012 (9) SCR 125 relied on Para 127
(1960) 2 SCR 89 relied on Para 127
2004 (3) SCR 504 relied on Para 127
2012 (11) SCR 916 relied on Para 129
2011 (4) SCR 289 relied on Para 140
F
2011 (2) SCR 506 relied on Para 140
1985 (2) Suppl. SCR 131 relied on Para 142
1986 (1) SCR 300 relied on Para 142
2003 (6) Suppl. SCR 860 referred to Para 146
1994 (5) Suppl. SCR 422 relied on Para 153
G 0969) 2 SCR 177 relied on Para 154
0964) 5 SCR 931 relied on Para 156
2012 (5) SCR 599 relied on · Para 159
2010 (4) SCR 454 referred to Para 167
2010 (9) SCR 1025 referred to Para 168
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 927
ASSOCIATION (EEVFAM) v. UNION OF INDIA

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) A
No. 129 of2012.
[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
Mukul Rohatgi, Attorney General, Colin Gonsalves, Ms. V. Mohana,
V. Giri, Yashank Adhyaru, Sr. Advs., Ms. Arundhati Katju, (For Dr.
Menaka Guruswamy, (A.C.), Himanshu Agarwal, Basanta Kumar, Ms. B
Jyoti Mendiratta, Ashok Kumar Singh, R. Balasubramaniam, Ms. Binu
Tamta, Raj iv Nanda, Mrs. Anil Katiyar, Sun ii Mathews, Santosh Kumar,
S. N. Terdal, B. V. Balaram Das, B. Krishna Prasad, Ms. Shobha, Naresh
Kumar, Ms. B. Khushbansi, Ms. Svadha Shankar, Ms. Lingthoingambi
Thongam, Vijayananda Sharma, Rana Ranjit Singh, Himanshu Shekhar, c
Ms. Mrinmayee Sahu, Edward Belho, Luikang Michael, Ms. Pinky
Behera, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. I. This writ petition under Article 32 of
the Constitution raises important and fundamental questions of human
D
rights violations-not in the context of the accused but in the context of
the victims. Do the next of kin of deceased victims have any rights at all,
other than receipt of monetary compensation?
2. The allegations made in the writ petition concern what are
described as fake encounters or extra-judicial executions said to have
been carried out by the Manipur Police and the armed forces of the E
Union, including the Army. According to the police and security forces,
the encounters are genuine and the victims were militants or terrorists
or insurgents killed in counter insurgency or anti terrorist operations.
Whether the allegations are completely or partially true or are entirely
rubbish and whether the encounter is genuine or not is yet to be F
determined, but in any case there is a need to know the truth.
3. The right to know the truth has gained increasing importance
over the years. This right was articulated by the United Nations High
Commissioner for Human Rights in the sixty-second session of the
Human Rights Commission. In a Study on the right to the truth, it was G
stated in paragraph 8 that though the right had its origins in enforced
disappearances, it has gradually extended to include extra-judicial
executions. This paragraph reads as follows:
"With the emergence of the practice of enforced disappearances·
in the 1970s, the concept of the right to the truth became the
H
928 SUPREME COURT REPORTS [2016] 4 S.C.R.

A object of increasing attention from international and regional human
rights bodies and special procedures mandate-holders. In particular,
the ad hoc working group on human rights in Chile, the Working
Group on Enforced or Involuntary Disappearances (WGEID) and
the Inter-American Commission on Human Rights (IACHR)
developed an important doctrine on this right with regard to the
B
crime of enforced disappearances. These mechanisms initially
based the legal source for this right upon articles 32 and 33 of the
Additional Protocol to the Geneva Conventions, of12August 1949.
Commentators have taken the same approach. However, although
this right was initially referred to solely within the context of
c enforced disappearances, it has been gradually extended to other
serious human rights violations, such as extrajudicial executions
and torture. The Human Rights Committee has urged a State
party to the International Covenant on Civil and Political Rights to
guarantee that the victims of human rights violations know the
truth with respect to the acts committed and know who the
D
perpetrators of such acts were." 1
It is necessary to know the truth so that the law is tempered with
justice. The exercise for knowing the truth mandates ascertaining whether
fake encounters or extra-judicial executions have taken place and if so,
who are the perpetrators of the human rights violations and how can the
E next of kin be commiserated with and what further steps ought to be
taken, if any.
The background
4. The Extra Judicial Execution Victim Families Association
(petitioner no.I) in W.P. (Cr!.) No. 129of2012 says thatit is a registered
F trust having as its members the wives and mothers of persons whom
they say have been extra-judicially executed by the Manipur Police and
the security forces (mainly the Assam Rifles and the Army). The Human
Rights Alert (petitioner no. 2) also claims to be a registered trust. They
are hereinafter compendiously referred to as the petitioners.
G 5. The petitioners claim to have compiled 1528 alleged extra-judicial
executions carried out by the police and security forces in Manipur. It is
1
Promotion and Protection of Human Rights: Study on the right to the truth. Report
of the Office of the United Nations High Commissioner for Human Rights: 8'' February,
2006. Commission on Human Rights, Sixty-second session, Item 17 of the provisional
H agenda
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 929
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

alleged that a majority of them have been carried out in cold blood while A
the victims were in custody and allegedly after torturing them. The
compilation was presented in the form of a Memorandum to the United
Nations Special Rapporteur on extra-judicial, summary or arbitrary
executions during his mission to India in March 2012. We do not know
what action has been taken on the Memorandum, but a perusal of the
B
compilation indicates that the place of encounter is not documented in
some cases and the identity of the victim is not known in some cases. Of
these 1528 cases documented by the petitioners, they have made a more
elaborate documentation of 62 cases. ·For the purposes of the writ petition
filed under Article 32 of the Constitution, they have referred to I 0 specific
cases (out of 62) where, according to them, eye-witness accounts exist c
of extra-judicial executions but the police and the security forces have
justified them as encounters with militants. The details of these I 0 cases
are mentioned in the writ petition but it is not necessary for us to individually
discuss them.
6. The petitioners say that not a single First Information Report D
(for short 'FIR') has been registered by the Manipur police against the
police or the security forces even though several complaints have been
made in respect of the alleged extra-judicial executions. As a result of
the failure of the Manipur police to register an FIR not a single investigation
or prosecution has commenced and the cries of anguish of the families
of the victims have fallen on deaf ears. E

7. The petitioners say thatthe victims of the extra-judicial executions
include innocent persons with no criminal record whatsoever but they
are later on conveniently labeled as militants. The petitioners also say
that the National Human Rights Commission (the NHRC) which is
.mandated to investigate human rights abuses and recommend punishment F
of the guilty has turned out to be a toothless tiger. The Manipur State
Human Rights Commission is defunct due to the non-appointment of
members and non-allocation of resources despite an order of the Manipur
Bench of the Gauhati High Court in PJL W.P. No. 15of2011. It is under
these circumstances that the petitioners have been compelled to approach G
this Court under Article 32 of the Constitution for appropriate orders for
setting up a Special Investigation Team (for short 'SIT') of police officers
from outside the State of Manipur to investigate instances of alleged
extra-judicial executions and thereafter prosecute the offenders in
accordance with law.
H
930 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 8. Dr. Th. Suresh Singh is the petitioner in W.P. (C) No. 445 of
2012 and he says that he is a vigilant citizen who safeguards the
fundamental rights of all people in Manipur. In his individual capacity as
a public interest litigant he prays for a direction that the areas in Manipur
declared as a "disturbed area" in terms of Section 3 of the Armed Forces
(Special Powers) Act, 1958 (for short 'the AFSPA') be withdrawn and
B
the notification issued in this regard be quashed.
9. At the outset it may be stated that though both the writ petitions
were listed for hearing over several days, the sum and substance of the
submissions related to the setting up of an SIT to investigate the alleged
extra-judicial executions with a clear understanding that W.P. (C) No.
c 445 of 2012 would be taken up for consideration later. Therefore, we
are not at all considering the prayers made in W.P. (C) No. 445 of2012.
Affidavits filed by the Union of India
I 0. During the course of hearing, a detailed reference was made
by the learned Attorney General to the counter affidavit filed by the
D
Union of India on 15 1h December, 2012 in W.P. (C) No. 445 of2012.
This was more for convenience in placing the detailed facts rather than
anything else. In the affidavit, it has been stated, imer alia, that the
security of the nation is of paramount importance and this involves the
security of the States as well. A reference is made to Article 355 of the
E Constitution which casts a duty on the Union to protect every State
against external aggression and internal disturbances and also to ensure
that the Government of every State is carried on in accordance with the
provisions of the Constitution.~ A reference is also made to Entry 2A of
List I of the Seventh Schedule of the Constitution (the Union List) relating
to the deployment of anned forces of the Union in any State in aid of the
F civil power. 3
11. It is stated that militant groups are operating in north-east India
demanding separation from the country and indulging in violence by way
of killing innocent civilians with a view to create a fear psychosis and
' 355. Duty of the Union to protect States against external aggression and
G internal disturbance. - It shall be the duty of the Union to protect e\'ery State against
external aggression and internal disturbance and to ensure that the government of every
State is carried on in accordance with the provisions of this Constitution.
3 2-A. Deployment of any armed force of the Union or any other force subject to the

control of the Union or any contingent or unit thereof in any State in aid of the civil
power; powers, jurisdiction, privileges and liabilities of the members of such forces
H while on such deployment.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 931
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

indulging in extortion so as to promote their ideology and goals. These A
militant groups possess sophisticated arms and have cross border support
from countries inimical to the country's interests; they have no respect
for the law of the land and indulge in crimes without having any fear of
the law and order machinery.
12. It is submitted that violence has become a way of life in the B
north-eastern States and the State Governments do not possess the
strength to maintain public order and as such military aid by the Union to
the States becomes inevitable.
13. With specific regard to Manipur it is stated thatthere is a constant
threat from armed militant groups and therefore there is a need for counter
insurgency operations through the armed forces in conjunction with the c
civil administration. These operations also hold out a threat to the Jives
of the armed forces personnel since the militants wield deadly weapons.
It is in this background that the AFSPA came to be enacted and amended
subsequently keeping in view the hostile environment and the imperative
to give legal and logistic protection toJhe armed forces personnel posted D
on duty so as to enable them to operate with the required thrust and
drive.
14. It is stated that to sensitize the armed forces personnel on human
rights aspects, the Ministry of Defence of the Government oflndia has
issued 'Dos' and Don'ts'. The anned forces follow these instructions
E
strictly and observe restraint in their operations.
15. lt is submitted that a review ofthe security situation and potential
militancy levels in the "disturbed area" is a highly specialized issue
requiring requisite expertise in the domain of internal security. The actions
that need to be taken by the appropriate Government to deal with such
F
situations of internal disturbances are not issues that can be decided in a
court of Jaw.
16. It is stated that AFSPA was withdrawn from the Imphal
Municipal Area in August 2004• illustrating that the appropriate
government has been periodically reviewing the security situation in the
"disturbed area" and wherever necessary, the application of AFSPA G
has been withdrawn.
17. With reference to the allegation that in view of Section 4(a) of
the AFSPA a person can be killed without any reason by the armed

' 12th August, 2004 H
932 SUPREME COURT REPORTS [2016) 4 S.C .R.

A forces, this is categorically denied by stating that there are several
safeguards and pre-requisite conditions that need to be fulfilled under
AFSPA before a person might be killed by the armed forces. These
safeguards and pre-requisite conditions have been mentioned in the
affidavit and it is concluded that it is absolutely wrong to suggest that the
armed forces personnel can kill any person without any reason, as
B
alleged. The pre-conditions, inter alia, are:
(a) There has to be a declaration of disturbed area by a high
level authority as mentioned in the Act.
(b) The concerned officer has to be of the opinion that it is
c necessary to do for the maintenance of public order.
(c) He has to give such due warning as he may consider
necessary.
(d) The person against whom action is being taken by armed forces
must be "acting in contravention of any law or order for the
D time being in force in the disturbed area".
(e) Such law or order must relate to 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.
E
18. It is submitted that though Manipur is facing an insurgency
problem and the police and the armed forces are dealing with that problem
to the best of their ability, the common man is not generally affected by
the counter insurgency operations. It is stated that the people ofManipur
have been actively participating in the electoral process and by way of
F example it is stated that in the 1990 elections for the assembly seats, the
voting turnout was 89.95% and similarly in the 2012 elections for the
assembly seats the voting percentage was 83.24%. It is submitted that
the voting percentage in Manipur is amongst the highest in the country.
19. It is emphasized that only 5000 militants are holding a population
G ofabout 23 lakhs in Manipurto ransom and keeping the people in constant
fear. It is further stated that the root cause of militancy in Manipur is the
constant endeavour of insurgent groups to extort money so that their
leaders can lead a luxurious life in foreign countries. Additionally, ethnic
rivalries, the tribal divide and factions in society and the unemployed
youth are being exploited by militant outfits to fuel tension.
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 933
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.)

20. It is pointed out that the militant groups take advantage of a A
long international border of over 250 kms that is shared with Myanmar
and that the border is heavily forested and has a very difficult terrain.
The border area is inhabited by the same tribes on either side. These
tribes have family relations and social interactions and therefore a free
movement regime to move upto 16 kms on both sides is permitted. Taking
B
advantage of this, the militant outfits utilize the other side of the border
in conveniently conducting their operations of extortion, kidnapping, killing,
looting and ambushing the security forces.
21. With regard to the amendments to the AFSPA it is stated that
the Justice Jeevan Reddy Committee was set up by the Government of
India in 2004 and it submitted a report on 61h June, 2005 recommending
c
the repeal of AFSPA and suggesting amendments to the Unlawful
Activities (Prevention) Act, 1967 (for short 'the UAPA') to achieve the
purpose of AFSPA. However, the Cabinet Committee on Security has
not approved the proposal and a final decision has not yet been taken by
the Cabinet and the exercise of amending the AFSPA is under D
consideration of the Government oflndia.
22. It is submitted in this context that the 2"d Administrative Refonns
Commission had endorsed the view of the Justice Jeevan Reddy
Committee and the Group of Ministers in the Government ofl ndia decided
on J71h August, 2012 to consult the State Governments and that process E
is still on.
23. It is submitted that several militants have surrendered as a result
of a dialogue between the Government and militant outfits willing to
abjure violence. The Government has also framed a surrender policy
whereby the militants who surrender are provided incentives including F
assurances oflivelihood.
24. On the human rights issue, it is stated that a Human Rights
Division in the Army Headquarters ensures that prescribed 'Dos' and
Don'ts' (while dealing with militants and insurgents) are adhered to.
Additionally, the Chief of Army Staff has also issued 'Ten
G
Commandments' and this indicates that the armed forces consistently
(and constantly) keep a watch on issues of human rights.
25. It is submitted that complaints of violation of human rights as
reported by the NHRC are received by the Ministry of Defence in respect
of alleged violations by the Army and in the Ministry of Home Affairs
H
934 SUPREME COURT REPORTS [2016] 4 S.C.R.

A (Human Rights Division) in the case of Central Armed Police Forces.
As far as the Ministry of Defence is concerned, the complaints are sent
to the Army Headquarters (Human Rights Division) and they are then
investigated by the District Magistrate and the local police. A separate
enquiry is also conducted by the Army and wherever necessary
appropriate action is taken. In respect of allegations against the Central
B
Armed Police Forces, State level investigations are conducted and the
factual position determined. It is then that a decision is taken whether
an encounter is genuine or fake.
26. It is furtfler submitted that as many as 70 personnel have been
punished for human rights violations and therefore it is incorrect to say
c that no one has been punished for human rights violations.
27. The Union oflndia has filed two substantive affidavits in W.P.
(Crl.) No. 129 of 2012. The first is an affidavit dated 51h December,
2012 which is a somewhat abridged version of the subsequent affidavit
of 15 1h December, 2012 in W.P. (C) No. 455 of 2012. The second is an
D affidavit filed in September 2013. There is a third affidavit which is a
response to the report of the Justice Hegde Commission5 but we are not
concerned with its contents in any detail.
28. In the affidavit of 51h December, 2012 it is stated that the persons
killed allegedly through 'extra-judicial executions' as stated by the
E petitioners are those killed during counter-insurgency operations in
Manipur. It is further stated that ''.in most of these cases, persons might
have been killed in the lawful exercise of the powers and/or performance
of the official duties by personnel from the police and armed forces."
29. Attention is then drawn to provisions of law that permit the
killing of a human being by a police officer or armed forces personnel
F
subject to certain conditions and which may not amount to an offence
but might be justifiable under law. Reference in this regard is made to
Section 46 of the Code of Criminal Procedure, 1973 (for short 'the
Cr.P.C. ')and it is submitted that in certain extreme situations it may be
justifiable even if the death of a person being arrested is caused if the
G conditions mentioned in the Section are satisfied and ifthe person being
arrested is accused of an offence punishable with death or with
imprisonment for life.
30. Reference is also made to Sections 129 to 132 of the Cr.P.C.
relating to the "Maintenance of Public Order and Tranquility". These
H ' Referred to later.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 935
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

sections allow the use of force, including by the armed forces, to disperse A
an unlawful assembly and in extreme situations use of such force may
even lead to causing the death of a person while dispersing such an
unlawful assembly.
31. The affidavit also refers to Chapter 4 of the Indian Penal Code
(for short 'the IPC') particularly Sections 99 to I 06 which deal with the B
right of private defence. It is submitted that when personnel from the
police or armed forces are attacked with firearms etc. by insurgents or
other criminals, uniformed personnel have the right to exercise their right
of private defence which may extend to causing the death of such an
insurgent or criminal.
c
32. Reliance is placed on Section 4 of the AFSPA where, for the
maintenance of public order in a "disturbed area" the armed forces may
fire upon or otherwise use force even to the extent of causing death.
However, this power is given only to certain personnel of the armed
forces and that power may be exercised only ifthat person is of opinion
that it is necessary to do so for the maintenance of public order, after D
giving such due warning as he may consider necessary. It is also provided
that the person fired upon must be 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 carrying of weapons or of things
capable of being used as weapons oroffireanns, ammunition or explosive E
substances.
33. It is stated that without going into the alleged extra-judicial
executions, the death of 1528 persons in the cases mentioned by the
petitioners is caused by uniformed personnel in the lawful exercise of
powers vested and in circumstances that justify the use of such force F
under the legal provisions mentioned above.
34. It is emphasized that only around 1500 militants are holding a
population of about 23 lakhs in Manipur to ransom and keeping the people
in constant fear. 6
35. In the affidavit of September 2013, a broad overview of G
insurgency in the north-east is given by the Union oflndia. With specific
reference to Manipur, it is stated that a large number of terrorist groups

''This may be contrasted with the assertion in the atlidavit of I 5'h December. 2012 in
W.P. (C) No. 445 of201 2 of the number of militants. The Census of201 I suggests a
population of over 27 lakhs in Manipur. H
936 SUPREME COURT REPORTS [2016] 4 S.C.R.

A are active in the State with varying demands including outright secession
from India. These terrorist groups have safe havens across the border
and they have been indulging in the cold blooded murder of dignitaries,
security force personnel and innocent citizens including political leaders,
bureaucratic functionaries etc. These groups have resorted to burning
copies of the Constitution of India and the national flag and have, to a
B
certain extent, subverted the local administration and muzzled the voice
of the people by violence and threats of violence.
36. It is further stated that the armed forces conduct operations
within the framework of the military ethos wherein local customs and
traditions are deeply valued and respected and restraint is exercised.
c This is reflected, significantly, in the number of casualties suffered since
1990 - approximately for every two terrorists killed, one security force
personnel has been killed and for every two security force personnel
killed, three of them have been wounded in operations.
37. The Union oflndia has filed detailed written submissions on 4m
D May, 2016 which essentially reiterate and reaffirm the submissions made
on affidavit. However, it is pointed out that "a militant or terrorist or
insurgent, is an 'Enemy' within the aforesaid definition [Section 3(x) of
the Army Act, 1950] and it is the bounden duty of all Army Personnel to
act against a militant or a terrorist or an insurgent, while he is deployed
in a 'disturbed area' under AFSPA. In case Army personnel do not act
E against an enemy or show cowardice, it is a Court-martial offence under
Army Act Section 34, punishable with death.'" Reference is made to
Ex-Havildar Ratan Singlt v. Union oflndia 8 to conclude that a militant
is an enemy within the definition of Section 3(x) of the Army Act, 1950.
This view is carried forward by submitting that the victims have been
F persons waging war against the Government of India and in terms of
Section 121 of the !PC anyone who joins an insurrection against the
Government of India has committed an offence of waging war. In this
regard, reference is made to State (NCT of Del/ti) v. Navjot Sa11d/tu 9
wherein it is held that under Section 121 of the !PC 'war' is not
contemplated as conventional warfare between two nations. Organizing
G and joining an insurrection against the Government of India is also a
form of war.
7
Section 3(x) of the Army Act. 1950: "enemy" includes all 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.
'1992 Supp Ol sec 716
H '(2005J 11 sec 600

•
EXTRA JUDICIAL EXECUTION VICTIM fAMILIES ASSOCIATION 937
(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J.]

Affidavits filed by the State of Manipur A
38. The State ofManipur has filed five affidavits in W.P. (Crl.) No.
129 of2012 but only two of them are substantive. In the affidavit dated
17°' November, 2012 it is stated that of the 10 cases detailed by the
petitioners in the writ petition, reports have been furnished by Manipur
to the NHRC in all of them and significantly, in none of these cases has B
the NHRC given a finding of violation of human rights. In this context,
it is submitted that the NHRC is a high-powered body whose Chairman
is a retired Chief Justice oflndia and under the circumstances, it cannot
be described as a toothless tiger. However, it is submitted that this Court
may require the NHRC to indicate the status of the I 0 cases and intervene
only if the NHRC has failed to perform its statutory functions to
c
safeguard vital fundamental rights.
39. With regard to the problem of insurgency in Manipur, it is stated
that Manipur has an international border of over 360 kms with Myanmar.
About 30 extremist organizations operate in Manipur and all of them are
very powerful and heavily armed with sophisticated weapons, including D
rocket launchers. Their aim and object is to form an independent Manipur
by its secession from India. They have been indulging in violent activities
including killing of civilians and security forces and law abiding citizens
ofManipur to achieve their objective. They have also been intimidating,
extorting and looting civilians for collection of funds and making efforts E
to get established abroad for influencing public opinion and securing their
assistance by way of arms and training in achieving their secessionist
objective. Though these organizations have been declared as unlawful
organizations under the UAPA, the ordinary criminal laws are insufficient
to deal with insurgency problems which have warranted enforcement of
theAFSPA. The State ofManipur has also given the following statistics F
for the period 2000 to October 2012 of police personnel killed and injured,
security forces personnel killed and injured and civilians killed and injured
to highlight the problem of insurgency in the State:
Police Police Sea.uity SeaJ1ity forces Gvilians Gvilians
killw injured forces killed iniurw kiliw injured G
105 178 260 466 1214 1173
40. It is further stated that the facts indicate that the insurgents
are different from other criminals inasmuch as they are heavily atmed
and operate from foreign countries and it is not possible to identify the
members of the banned organizations and though they may be few in
H
938 SUPREME COURT REPORTS [2016] 4 S.C.R.

A number, they have many supporters and sympathizers who provide
logistical support to them.
41. The other affidavit filed by the State ofManipur on 3rd August,
2013 is effectively a reply to the Court appointed Committee (which
Committee is referred to a little later). The affidavit reiterates the
B presence of a large number of underground groups who propagate
freedom, independence and sovereignty of the State of Manipur and
possess sophisticated arms, some of which are transported from
neighbouring countries. The affidavit reiterates the statistics and
submissions made in the earlier affidavit of 17'h November, 2012 and
indicates that the genesis of declaring the entire State as a "disturbed
c area" goes back to a notification dated I S'h October, 1970 and it has
continued to be declared as a "disturbed area" since then. In August
2004 the Imphal Municipal Area in the State was de-notified as a
"disturbed area" under the AFSPA. The State Government has been
trying to de-notify more and more areas but given the circumstances, it
D is finding it difficult and unable to do so.
42. It is stated that to synergize security issues and counter
insurgency operations in Manipur a Unified Headquarter was established
on 161h September, 2004. This consists of the Combined Headquarters
headed by the Chief Minister ofManipur as its Chairman, Strategy and
E Operations Group headed by the Chief Secretary, Manipur as its
Chairman and Operational Intelligence Group headed by the Director
General of Police as its Chairman. Under the circumstances, it is stated
that even though the number of incidents of militancy are large and
casualties are heavy, the State Government will not tolerate even one
false encounter and will also ensure that no innocent security personnel
F is victimized or harassed for an innocent act performed in good faith and
without any ma/a fide intentions.
43. With regard to the specific cases dealt with by the Court
appointed Commission and the recommendations made by the said
Commission, the State of Manipur has raised several preliminary
G objections and made several submissions.For the present purposes, it is
not necessary for us to go into this aspect of the matter. It is stressed
that the implementation of AFSPA is necessary and that it has yielded
positive results in reducing mmtancy in Manipur.
44. The State ofManipur has filed a supplementary counter affidavit
H on 4'h December, 2012 detailing its viewpoint with regard to the 10 cases
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 939
(EEVFAM) v. UNION OF INDIA [MADAN 8. LOKUR, J.]

identified by the petitioners. For our purposes, it is not necessary to deal A
with the merits of these cases. Written submissions have also been filed
by Manipur on 3rct May, 2016 and these are a reiteration of the views
expressed in the affidavits filed.
Affidavits filed by the NHRC
45. The NHRC has filed as many as four affidavits in W.P. (Crl.) B
No. 129 of2012.
46. In the first affidavit dated 30.11.2012/03.12.2012, it is stated
that the NHRC has issued guidelines on 29th March, 1997 recommending
the correct procedure to be followed by all the States in relation to deaths
due to encounters between the police and others. These guidelines were C
forwarded with a request to all the States to issue appropriate directions
through the Director General of Police to all the Police Stations.
47. The guidelines were revised on znct December, 2003 on the
basis of experience gained over the previous six years. It was noted,
unfortunately, that most of the States were not following the earlier D
guidelines in their true spirit.
48. One of the important modifications made in the guidelines issued
on znct December, 2003 was the requirement of a Magisterial Enquiry in
all cases of death which occur in the course of police action. Another
significant modification was that all States were required to furnish six- E
monthly statements to the NHRC in respect of all deaths in police stations
in a prescribed format along with the post-mortem report and inquest
report.
49. The guidelines were further modified on J2th May, 2010 once
again with the NHRC observing thaf most of the States were not following F
the recommendations earlier made in their true spirit. These guidelines
recommended that the Magisterial Enquiry must be compulsorily
conducted and completed in all cases of death which occur in the course
of police action preferably within three months. It was also recommended
that a report be sent to the NHRC in a format prescribed in the guidelines
in all cases of death in police action within 48 hours of the death occurring. G
SO. The NHRC has generally stated in the affidavit that in all cases
the State Governments invariably take more than reasonable time to
submit the Magisterial Enquiry report, post-mortem report, inquest report
and ballistic expert report and in view of these delays the NHRC is not
in a position to conclude its proceedings at an early date. H
940 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 51. With regard to deaths due to action taken by members of the
armed forces, the NHRC says that it has no option, in view of Section
19 of the Protection of Human Rights Act, 1993 except to seek a report
from the Central Government and thereafter make a recommendation
and publish it with the action taken by the Central Government. 10
B 52. It is stated that between 2007 and 2012, the NHRC has received
1671 complaints/information regarding fake encounters (not necessarily
from Manipur) and it has awarded monetary compensation to the tune
of Rs. 10,51,80,000/- (Rs. Ten Crores Fifty One Lakhs and Eighty
Thousand) in 191 cases. It is further stated that on receiving the
Magisterial Enquiry report and other related reports, ifthe NHRC finds
c itself in agreement with them, and if as per the report the encounter has
been found to be genuine, then it closes the complaint by passing an
order to that effect. However, if it is found that the encounter was fake,
then a show cause notice is issued to the concerned State Government
to appropriately compensate the family of the victim. In other words,
D between 2007 and 2012 the NHRC has found 191 cases of fake
encounters. It is not clear which of these, if any, relate to the 1528 cases
from Manipur.
53. By way of a complaint(ifwe may call it that) the NHRC states
in the affidavit that it has written to the Central Government to increase
E its staff but the request has not been acted upon. It also states that to
give more teeth to the guidelines issued by the NHRC, it would be
appropriate if this Court directs all the States to strictly comply with
them both in letter and spirit.
10
19. Procedure with respect to armed forces.-( I) Notwithstanding anything
contained in this Act, while dealing with complaints of violation of human rights by
F members of the armed forces, the Commission shall adopt the following procedure,
namely:-
( a) it may, either on its own motion or on receipt of a petition, seek a report from the
Central Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or, as
the case may be, make its recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the
G recommendations within three months or such further time as the Commission may
allow.
(3) The Commission shall publish its report together with its recommendations made
to the Central Government and the action taken by that Government on such
recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3)
H to the petitioner or his representative.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 941
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

54. In the second affidavit dated 3rd January, 2013 it is stated that A
as far back as on I o•h August, 1995 the NHRC had advised all Chief
Ministers to introduce video-filming of the post-mortem examination with
effect from I" October, 1995 in all cases of deaths in police action or
armed forces action to avoid any distortions of facts due to alleged
pressure of the local police.
B
55. In a communication dated 27•h March, 1997 the NHRC
expressed its ~istress to all the Chief Ministers on the quality of post-
mortem reports being prepared and sent to the NHRC. Along with the
letter, the NHRC annexed a Model Autopsy Form prepared by it based
on the U.N. Model Autopsy Protocol and recommended to all the State
Governments to prescribe the said Model Autopsy Form and the
c
Additional Procedure for Inquest as indicated in the letter dated 27.'h
March, 1997.
56. In the affidavit, the NHRC expresses helplessness in taking
any coercive measures since it has no power to take action against
persons or authorities who do not follow the guidelines laid down by it D
nor does it have power to give directions or pass orders but can only
make recommendations. By way of an example, it is stated that the
Government of Delhi by its letters dated 91h February, 2011 and J4th
June, 2011 has refused to conduct a Magisterial Enquiry in case of police··
encounters and has clearly stated that ifthe Home Department is satisfied E
that such an enquiry is to be conducted, only th~n would it be conducted.
57. The NHRC has again lamented the shortage of staff available
with it resulting in delays taking place and follow up action being made
more difficult. The NHRC has also lamented the poor quality of the
Magisterial Enquiry reports received by it wherein the family of the F
person killed is not examined nor independent witnesses examined.
58. The NHRC has annexed some statistics of disposal of cases
along with the affidavit but they are not necessary for the present
purposes. The NHRC has prayed that in view of the circumstances and
on the basis of its experience of several years the suggestions G
incorporated in the affidavit may be made an order of this Court.
59. With regard to the alleged fake encounter killings, the third
affidavit dated 21 ~ February, 2014 filed by the NHRC is extremely vague.
All that it says is that the NHRC held a camp sitting in Imphal, Manipur
between 23rd October, 2013 and 25'h October, 2013 to consider the-
H
942 SUPREME COURT REPORTS [20,16] 4 S.C.R.

A pending complaints of extra-judicial killings by the armed forces/police.
During the sittings the NHRC had listed 46 cases, as per the cause list
attached, but only in 5 cases it could reach a conclusion that the victims
were murdered/killed by the armed forces/police while they were in
their custody. Accordingly, monetary relief ranging from Rs. 5 lakhs to
Rs. 20 lakhs was ordered to be given to their next of kin. lt is not at all
B
clear which five cases were dealt with. It is also not clear what happened
to the remaining cases. All that the NHRC has annexed with the affidavit
is the record of proceedings in one case relating to late Thangjam Thoithoi
in which his next ofkin was awarded Rs. 5 lakhs by way of compensation.
60. In the fourth affidavit dated 27'h July, 2015 the NHRC has
c given the progress in respect of 62 cases of which details are given in
the writ petition. Subsequently, during the course of hearing, the up to
date information was given to us and therefore it is not necessary to
refer to the information given in the affidavit. All that needs to be saidis
that the NHRC has complained that the State of Manipur has not been
D furnishing the required documents and information within the prescribed
time and has also not been submitting the compliance report in respect
of the recommendations made for providing monetary relief.
61. As mentioned above, the NHRC has furnished information in
respect of the 62 cases during the course of hearing and also in the
E written submissions filed on 4'h May, 2016. The gist of the information is
as follows:
Compensation Show cause notices Pending Cases No case Total
aw.rrded by NHRC pending for award disposal closed registerOO
or High Court of compensation with the with the
NHRC NHRC
27 4 17 7 7 62
F
62. The above chart clearly suggests that 31 of the 62 cases were
those ofa fake encounter or an extra-judicial killing. In 7 of the 62 cases
no complaint was made to the NHRC. As regards, the cases that have
been closed, we find from a perusal of some orders produced before us
that some of these complaints have been closed without any application
G
of mind and simply because of the conclusion arrived at in the Magisterial
Enquiry report, which is really an administrative report.
63. The written submissions submitted by the NHRC are a
reiteration of the submissions made in the various affidavits filed by it
and presently do not need any detailed discussion. However, it is pointed
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 943
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

out (perhaps with a tinge of frustration) that the petitioners might not be A
very wrong in describing the NHRC as a toothless tiger!
Proceedings in this Court
64. The petition was taken up for consideration by this Court from
time to time on the above broad pleadings. At this stage it is necessary
to have a brief overview of the proceedings that took place in this Court B
over the last couple of years. ·
65. On 1" October, 2012 notice was issued in the writ petition to
the respondents, that is, the Union oflndia and the State ofManipur. A
request was also sent to the National Human Rights Commission for its
response in the matter. Ms. Menaka Guruswamy an advocate of this c
Court was requested to assist as Amicus Curiae.
66. On 4'h January, 2013 the case was heard at great length and it
was proposed to appoint a high-powered Commission to inform this Court
about the correct facts with regard to the killing of persons in the cases
cited by the petitioners. Accordingly, a three-member Commission was D
constituted with Mr. Justice N. Santosh Hegde, a former Judge of this
Court as the Chairperson; Mr. J.M. Lyngdoh, former Chief Election
Commissioner and Mr. Ajay Kumar Singh, former Director General of
Police and Inspector General of Police, Kamataka as Members.
67. The Commission was requested to make a thorough enquiry in E
six identified cases and record a finding regarding the antecedents of
the victims and the circumstances in which they were killed. The State
Government and all other agencies were directed to hand over to the
three-member Commission all relevant records. The Commission was
free to devise its own procedure and also address the larger question of
the role of the State Police and the security forces in Manipur and to F
make recommendations. The Commission was requested to give its report
within twelve weeks. The order passed by this Court is reported as
Extra-Judicial Execution Victim Families Association v. Union of
India. 11
68. On 30'h March, 2013 the Commission submitted its report and G
the case was taken up on 4'h April, 2013. While recording its gratitude
for the painstaking effort put in by the three-member Commission, this
Court noted that the Commission had found that in all the six cases, the
killing of the victims was not in any true encounter with the police or the
11
t20t3) 2 sec 493 H
944 SUPREME COURT REPORTS [2016) 4 S.C.R.

A security forces. A very briefresume of the conclusions arrived at by the
three-member Commission was noted as follows:
Case 1 - Md. Azad Khan
The incident in which the deceased Md. Azad Khan was killed
was not an encounter nor was he killed in exercise of the right of self-
B defence.
69. The Commission further found that there was no evidence to
conclude that the deceased was an activist of any unlawful organization
or was involved in any criminal activities. However, as per the report of
the NHRC now made available to us, it is stated that the High Court of
c Manipurpassed a direction in W.P. (Crl.) 49 of2009 for monetary relief
of Rs. 5 lakhs to the mother of the deceased since the police personnel
and Assam Rifles personnel were responsible for the death.
Case 2 - Khumbongmayum Orsonjit
The incident in which the deceased Khumbongmayum Orsoqjit
D died is not an encounter nor can the security forces plead that it
was in the exercise oftheir right of private defence.
70. The Commission further found that Khumbongmayum Orsonjit
did not have any adverse criminal antecedents. As per the latest report
of the NHRC, a notice has been issued to the Ministry of Home Affairs
of the Government of India to show cause why monetary relief should
E
not be paid to the next of kin of the deceased. Apparently, the matter is
still pending with the NHRC.
Case 3 - Nameirakpam Gobind Meitei & Nameirakpam Nobo
Meitei
F The incident in question is not an encounter but an operation by
the security forces wherein death of the victims was caused
knowingly.
71. The Commission further found that the two deceased did not
have any criminal antecedents. As per the latest report of the NHRC, a
G recommendation has been made to the Government of Manipur for
payment of Rs. 5 lakhs to the next of kin of the two deceased. The
matter is still pending with the NHRC on the request of the State
Government awaiting the decision of the present petition by this Court.
Case 4 - Elangbam Kiranjit Singh
H Even if the case put forward by the complainant cannot be
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 945
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

accepted, the case put forth by the security forces cannot also be A
accepted because they exceeded their right of private defence.
Therefore, this Commission is of the opinion that the incident, in
question, cannot be justified on the ground of self-defence.
72. The Col)lmission further found that there were no adverse
antecedents against the deceased. As per the latest report of the N HRC, B
a notice has been issued to the Government of Manipur to show cause
why monetary relief be not paid to the next of kin of the deceased.
Apparently the matter is pending with the NHRC awaiting compliance
by the State Government.
Case 5 - Chongtham Umakanta C
This incident in which Umakanta died has compelled us to come
to the conclusion that though the manner in which he was picked
up, as stated by the complainant, cannot be accepted. The manner
in which he died definitely indicates that this could not have been
an encounter. For the reasons stated above, we are of the D
considered opinion that the case put forth on behalf of the security
forces that the incident was an encounter and that Umakanta
was killed in an encounter or in self-defence cannot be accepted.
73. The Commission further found that although there were
allegations against the deceased, the veracity of those allegations was E
not established. We have been informed that the NHRC has made a
recommendation to the Government of Manipur for payment of Rs. 5
lakhs to the next of kin of the deceased. Apparently the matter is pending
with the NHRC.
Case 6 - Akoijam Priyobrata @ Bochou Singh F
The deceased did not die in an encounter.
74. The Commission further found that there is no acceptable
material to come to the conclusion that the deceased had any adverse
antecedents. The NHRC has recommended to the Government of
Manipur to pay Rs. 5 lakhs to the next of kin of the deceased. The G
matter is still pending with the NHRC on the request of the State
Government awaiting our decision in this petition.
75. In other words, in all the six cases, the Commission found that
the encounter (if any) was not genuine or that the use of force was
excessive. H
946 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 76. We may mention that during the course of oral submissions,
the learned Attorney General was rather critical of the procedure adopted
by the Commission and the conclusions arrived at. His principal grievance
was thatthe right of self-defence has no role in an encounter with militants
and terrorists. [This is contrary to the stand taken by the Union oflndia
in the affidavit filed in December 2012]. He also relied on Kai/as/I Gour
B
v. State ofAssam'~ to contend that the rules of evidence and the standards
of evaluating the evidence cannot be given a go-by even by a Court
appointed Commission.
77. It is not necessary for us to deeply go into the report of the
Commission in the view that we are taking. For the present, we must
c acknowledge the efforts put in by the Commission and also acknowledge
that it has put us on the right track and has convinced us that the allegations
made by the petitioners cannot be summarily rubbished. There is some
truth in the allegations, calling for a deeper probe. How the whole truth
should be arrived at is the question that concerns us. However, before
that exercise is undertaken, the position in law must be clear and that is
D
what we will endeavour to do.
Maintainability of the writ petition
78. An objection was raised by the learned Attorney General to the
effect that in a writ petition like the present one, a prayer to order a
police investigation is not maintainable. It was submitted that the
E procedure laid down in the Cr.P.C. is quite adequate and ifthere is any
inaction on the part of the authorities, recourse may be had to the grievance
redressal procedure laid down in the Cr.P.C. In this context reliance
was placed on Hari Singh v. State of U.P., 13 Aleque Pa<lamsee v.
Union of India," Simi/ Ganga<llwr Karve v. State of Malwmslltra 1·3
F and Doliben Kantilal Patel v. State of Gujarat. 16
79. We are not impressed by this submission. 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.
G
This is also not a case where the ordinary criminal law remedy provides
an adequate answer. A particular situation of internal disturbance has
12
(2012) 2 sec 34
1
' (2006) s sec 733
1
• (2007) 6 sec 171
' (2014) 14 sec 48
1

H " (2013) 9 sec 447
1
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 947
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

prevailed for decades and the ordinary citizens of Manipur have had A
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.
80. This case immediately brings to mind the view expressed by B
Dr. Ambedkar with respect to Article 32 of the Constitution: "If I was
asked to name any particular article in this Constitution as the most
important- an article without which this Constitution would be a nullity-
! could not refer to any other article except this one. It is the very soul of
the Constitution and the very heart of it." If in a case such as the present,
the petitioners are precluded, at the threshold, from approaching this c
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 ofalleged extra-judicial executions. We are not satisfied that this
petition under Article 32 of the Constitution should not be entertained. D
The truth has to be found out however inconvenient it may be for the
petitioners or for the respondents. In matters concerning gross violations
of human rights this Court and every constitutional court should adopt an
'open door policy'. The preliminary objection is rejected.
Constitutional provisions
81. The background of the case, as we have understood it, leads us E
to conclude that we are concerned in this petition not so much with a
law and order situation in Manipur, but a public order situation.
82. 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. 17 But, the Union Government may deploy its armed forces F
in any State in aid of the civil power in terms of Entry 2A of List 1 of the
Seventh Schedule to the Constitution. 18 This has been the constitutional
position ever since Entry 1 of List JI of the Seventh Schedule was amended
by the Constitution (Forty-second Amendment)Act, 1976 and Entry 2A
was inserted in List I of the Seventh Schedule to the Constitution by the G
same Amendment Act. What is of importance is that deployment of the
armed forces should only be in aid of the civil power.
17
I. Public order (but not including the use of any naval, military or air force or any
other armed force of the Union or of any other force subject to the control of the Union
or of any contingent or unit thereof in aid of the ci vii power).
18 See footnote 2. H
948 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 83. Article 352 of the Constitution finds place in Part XVlll of the
Constitution relating to emergency provisions. This Article was amended
by the Constitution (Forty-fourth Amendment) Act, 1978 and the
amendment that concerns us is the substitution of the words 'armed
rebellion' by the words' internal disturbance' in clause (I) of Article 352
of the Constitution. 19
B
84. The impact of the above substitution of words was the subject
matter of consideration by a Constitution Bench of this Court in Naga
People's Movement of Human Rights v. Union of lndia.' 0 It was
held therein that though an internal disturbance is cause for concern, it
does not threaten the security of the country or a part thereof unlike an
c armed rebellion which could pose a threat to the security of the country
or a part thereof. Since the impact of a proclamation of emergency
under Article 3 52 of the Constitution is rather serious, its invocation is
limited to situations of a threat to the security of the country or a part
thereof either through a war or an external aggression or an armed
D rebellion, but not an internal disturbance. To put it negatively, an internal
disturbance is not a ground for a proclamation of emergency under Article
352 of the Constitution. This is what the Constitution Bench had to say
in this regard:
'"Prior to the amendment of Article 352 by the Forty-foutih
E Amendment of the Constitution it was open to the President to
issue a proclamation of emergency ifhe was satisfied that a grave
emergency exists whereby the security of India or of any part of
the territory thereof is threatened whether by war or external
aggression or "internal disturbance". By the Forty-fourth
Amendment the words "internal disturbance" in A11icle 352 have
F 19
For the present purposes, the relevant portion of Article 352 of the Constitution as
it now stands is of importance:
352. Proclamation of Emergency.-( I) If the President is satisfied that a gra\ e
emergency exists whereby the security of India or of any part of the territory thereof
is threatened. whether by war or external aggression or armed rebellion, he may, by
Proclamation, make a declaration to that effect in respect of the whole of India or of
G such part of the territory thereof as may be specified in the Proclamation.
Exp/anation.-A Proclamation of Emergency declaring that the security of India or any
part of the territory thereof is threatened by war or by external aggression or by armed
rebellion may be made before the actual occurrence of war or ofany such aggression or
rebellion, ifthe President is satisfied that there is imminent danger !hereof.
(2) A Proclamation issued under clause (I) may be varied or revoked by a subsequent
Proclamation.
H !" (1998) 2 sec 109
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 949
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

been substituted by the words "armed rebellion". The expression A
"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
B
underlying the substitution of the word "internal disturbance" by
the word "armed rebellion" in Article 3 52 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 c
situations of internal disturbance which are oflesser gravity. This
has been done because a proclamation of emergency under Article
352 has serious implications having effect on the executive as
well as the legislative powers of the States as well as the Union."
85. However, a proclamation of emergency could be made in the D
event of an internal disturbance (not covered by Article 352 of the
Constitution) by resort to Article 356 of the Constitution." This has been
so held in Naga People's Movement ofH uma11 Rights in the following
words:
"There can be a situation arising out of internal disturbance which E

21
356. Provisions in case of failure of constitutional machinery in States.-( I) If
the President, on receipt of a report from the Governor of a State or otherwise. is
satisfied that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of this Constitution, the President may by
Proclamation-
F
(a) assume to himselfall or any of the functions of the Government of the State and all
or any of the powers vested in or exercisable by the Governor or any body or authority
in the State other than the Legislature of the State:

(b) declare that the powers of the Legislature of the State shall be exercisable by or
under the authority of Parliament: G

( c) make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the objects of the Proclamation. including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:

Provided that xxx xxx xxx [Not relc\'ant for the present purposes] H
950 SUPREME COURT REPORTS [2016] 4 S.C.R.

A may justify the issuance of a proclamation under A11icle 356 of
the Constitution enabling the President to assume to himself all or
any of the functions of the Government of the State. That would
depend on the gravity of the situation arising on account of such
internal disturbance and on the President being satisfied that a
situation has arisen where the Government of the State cannot be
B
carried on in accordance with provisions of the Constitution."

86. 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 of the Constitution while the latter comes within the purview
c only of Article 356 of the Constitution and not Article 352 of the
Constitution. However, as observed by the Justice Punchhi Commission
on Centre-State Relations in March 20 I 0 an 'internal disturbance' by
itself cannot be a ground for invoking the power under Article 356(1) of
the Constitution "if it is not intertwined with a situation where the
D government of a State cannot be carried on in accordance with the
provisions of the Constitution."'' This is what was said:

"The 44'h Constitutional Amendment substituted "anned rebellion'·
for "internal disturbance" in Article 352. "Internal disturbance"
is, therefore, no longer a ground for taking action under that Article.
E Further, it cannot, by itself, be a ground for imposing President's
rule under Article 356( I), if it is not intertwined with a situation
where the government of a State cannot be carried on in
accordance with the provisions of the Constitution."

87. At this stage, it is also important to refer to Article 355 of the
F Constitution.' 3 This Article makes it the duty of the Union Government
to protect a State from external aggression 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. We therefore have four situations: war, external aggression
G 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
"Page IOI in Volume 2 of the Report
H " See footnote I.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 951
(EEVFAM) v. UNION OF INDIA [MADAN 8. LOKUR, J.]

Entry 2A of List I of the Seventh Schedule to the Constitution "in aid of A
the civil power".

88. 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 Government to protect the
States and depending on the gravity of the situation, the President might B
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 c
and balances. In providing protection to the States in the event of an
internal disturbance, the armed forces of the Union may be deployed "in
aid of the civil power". What does the expression "in aid of the civil
power" mean?

89. In Naga People's Movement ofHuman Rig/its the Constitution D
Bench sought to explain this expression by implication, namely, a situation
that has made the deployment of the armed forces of the Union necessary
for the maintenance of public order. It was made clear that such
deployment does not mean that the civil power becomes dormant- the
civil power continues to function and the armed forces do not supplant
or substitute the civil power - they only supplement it. This is what this E
Coui:t had to say:

"The expression "in aid of the civil power" in Entry 1 of the State
List and in Entry 2-A of the Union List implies that deployment of
the armed forces of the Union shall be forthe purpose of enabling
the civil power in the State to deal with the situation affecting F
maintenance of public order which has necessitated the
deployment of the armed forces in the State. The word "aid"
postulates the continued existence of the authority to be aided.
This would mean that even after deployment of the armed forces
the civil power will continue to function. The power to make a G
law providing for deployment of the armed forces of the Union in
aid of the civil power in the State does not comprehend the power
to enact a law which would enable the armed forces of the Union
to supplant or act as a substitute for the civi I power in the State.
We are, however, unable to agree with the submission of the
H
952 SUPREME COURT REPORTS [2016] 4 S.C.R.

A learned counsel for the petitioners that during the course of such
deployment the supervision and control over the use of armed
forces has to be with the civil authorities of the State concerned
or that the State concerned will have the exclusive power to
determine the purpose, the time period and the areas within which
the armed forces should be requested to act in aid of civil power.
B
In our opinion, what is contemplated by Entry 2-A of the Union
List and Entry 1 of the State List is that in the event of deployment
of the armed forces of the Union in aid of the civil power in a
State, the said forces shall operate in the State concerned in
cooperation with the civil administration so that the situation which
c has necessitated the deployment of the armed forces is effectively
dealt with and normalcy is restored."

90. On a reading of the above passage, it is clear that the Constitution
Bench does not limit the deployment of the armed forces of the Union
only to a situation affecting public order. The armed forces of the Union
D could be deployed for situations oflaw and order (although this would be
extremely unusual and rare) as also for humanitarian aid such as in the
event of an earthquake or floods, should it be necessary, in aid of the
civil power. This is because Entry 2A of List I of the Seventh Schedule
to the Constitution (for short Entry 2A of the Union List) does not limit
E the deployment of the armed forces to any particular situation. The view
of this Court, beginning with the decision of the Federal Court in United
Pr_ovinc!S v. Atiqa Begum~-1 has always been that legislative entries
must not be read in a narrow or restricted sense and that each general
word should be held to extend to all ancillary or subsidiary matters which
can fairly and reasonably be comprehended in it.~; But we are making
F this observation only en passant.

91. Be that as it may, what is of significance is that this Court has
implied that 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
G

"(1940) FCR 110
"Na\'inchandra Mafatlal v. Commissioneroflncome Tax. 1955 (I) SCR 189 (5 Judges
Bench). This view has been followed by the Constitution Bench in Jagannath Baksh
Singh v. State of U.P., ( 1963) I SCR 220 and several other decisions rendered by this
Court.
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 953
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

until normalcy is restored. This view is predicated on and postulates that A
normalcy would be restored within a reasonable period. What would be
the consequence if normalcy is not restored for a prolonged or
indeterminate period? In our opinion, it would be indicative of the failure
of the civil administration to take effective aid of the armed for-ces in
restoring normalcy or would be indicative of the failure of the armed
8
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 forthe deployment· C
of the armed forces to normalize a situation particularly of an internal·.
disturbance.

92. This discussion is intended to lay down three broad principles:
(a) The public order situation in Manipur is, at best, an internal D
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.

(b) For tackling the internal disturbance, the armed forces of the
Union can be deployed in aid of the civil power. The armed forces E
do not supplant the civil administration but only supplement it.

( c) The deployment of the armed forces is intended to restore
normalcy and it would be extremely odd if normalcy were not
restored within some reasonable period, certainly not an indefinite
period or an indeterminate period. F

Statutory provisions

(i) The Armed Forces (Special Powers) Act, 1958
93. The Armed Forces (Special Powers) Act, 1958 (hereinafter
'the AFSPA') was originally enacted as the Armed Forces (Assam and G
Manipur) Special Powers Act, 1958. It was initially extended to the State
of Assam and the Union Territory of Manipur. Since then the entire
Union Territory ofManipur(and subsequently the entire State ofManipur)
has been declared a disturbed area in terms of Section 3 of the
AFSPA.'6 In other words, Manipur has been a disturbed area for about H
954 SUPREME COURT REPORTS [2016] 4 S.C.R.

A sixty years! A declaration that the State of Manipur is a disturbed area
can be made by the Governor ofManipur or the Central Government if
either is of opinion that the State ofManipuror a part thereof"is in such
a disturbed or dangerous condition that the use of armed forces in aid of
the civil power is necessary". The declaration under Section 3 of the
AFSPA is made through a notification published in the Official Gazette.
B
As mentioned above, Manipur has been a <listurbed area since 1958 as
. a resul.t of declarations issued under Section 3 of the AFSPA from time
to time. However, the Imphal Municipal Area ceased to be a 'disturbed
area' from J2•h August, 2004.
94. The postulates for a declaration under Section 3 of the AFSPA
c are that a public order situation exists and that the assistance of the
armed forces of the Union is required in aid of the civil power. In such a
situation, theAFSPA enables the armed forces of the Union to exercise
vast powers.
95. One of the vast powers exercisable by the armed forces of the
D 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 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
E explosive substances" .~ 7
26
3. Power to declare areas to be disturbed areas.-lf. in relation to any State or
Union Territory to which this Act extends. the Governor of that State or the
Administrator of that Union Territory or the Central Government, in either case. if of
the opinion that the whole or any part of such State or Union Territory, as the case may
be, is in such a disturbed or dangerous condition that the use of armed forces in aid of
F the civil power is necessary, the Governor of that State or the Administrator of that
Union Territory or the Central Government, as the case may be, may, by notification in
the Official Gazette. declare the whole or such part of such State or Union Territory to
be a disturbed area.
27 4. Special powers of the armed forces.-Any commissioned ofticer. warrant officer.

non-commissioned officer or any other person of equivalent rank in the armed forces
may, in a disturbed area.-
G (a) if he is of opinion that it is necessary so to do for the maintenance of public order,
after giving such due warning as he may consider necessary, fire upon or otherwise use
force, even to the causing of death, against 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:
(b) to (d) xxx xxx xxx [Not relevant forthe present purposes].
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 955
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

96. Clearly, the power to cause death is relatable to maintenance A
of public 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 more persons or (b) prohibits the
B
carrying of weapons or of things capable of being used as weapons or
of fire-arms, ammunition or explosive substances. In the present case,
we are not concerned with other powers conferred by Section 4 of the
AFSPA. What we are concerned with is whether any of the victims
referred to by the petitioners contravened any prohibitory order, that is,
an order prohibiting an assembly of five or more persons or an order c
prohibiting the carrying of any weapons or of things capable of being
used as weapons or of fire-arms, ammunition or explosive substances.
We are also concerned, in the facts of this case, with the power to cause
death for violating such a prohibitory order.
97. Section 6 of the AFSPA grants immunity, inter alia, from
D
prosecution to any person in respect of anything done or purported to be
done in exercise of the powers conferred by the AFSPA (including Section
4(a) thereof), except with the previous sanction of the Central
Government. 28
(ii) Code of Criminal Procedure, 1973
98. Section 4 of the Cr.P.C. as well as Section 5 of the Cr.P.C. E
concern themselves with investigation, enquiry, trial and other proceedings
in relation to offences. 29 The sum and substance of both these provisions
"6. Protection to persons acting under Act - No prosecution. suit or other legal
proceeding shall be instituted, except with the previous sanction of the Central Gov-
ernment, against any person in respect of anything done or purported to be done in F
exercise of the powers conferred by this Act.
" 4. Trial of offences under the Indian Penal Code and other laws - ( l) All
offences under the Indian Penal Code ( 45of1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions, but subject to any enactment for G
the time being in force regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.
5. Saving - Nothing contained in this Code shall. in the absence ofa specific provision
to~ the contrary, affect any special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure prescribed, by any
other law for the time being in force.
H
956 SUPREME COURT REPORTS [2016) 4 S.C.R.

A is that the investigation, enquiry, trial and other proceedings in respeqt of
offences under the Indian Penal Code, 1860 (or the IPC) and other laws
shall be carried out in accordance with the provisions of the Cr.P.C.
However, this does not preclude any enactment regulating the manner
or place of investigating, inquiring into, trying or otherwise dealing with
such offences. Further, the applicability of any other special or local law
B
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. 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
c 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. This is mentioned in the context of the submission by the
learned Attorney General that the provisions of the Cr.P.C. would not be
D
applicable to offences committed by Army personnel on active duty.

(iii) The Unlawful Activities (Prevention) Act, 1967

99. The Unlawful Activities (Prevention) Act, 1967 (hereafter 'the
E UAPA') is concerned, inter alia, with cession and secession of a part
of the territory oflndia and terrorist activities. Section 2(m) of the UAPA
defines a terrorist organization as one listed in Schedule I to the UAPA
or an organization operating under the same name as the listed
organization. 30 Schedule I of the UAPA lists some organizations in
Manipur such as People's Liberation Army (PLA), United National
F Liberation Front (UNLF), People's Revolutionary Party ofKangleipak
(PREPAK), Kangleipak Communist Party (KCP), Kanglei Yaol Kanba
Lup (KYKL) and Manipur People's Liberation Front (MPLF). By
definition, therefore, these are terrorist organizations.
JOO. An unlawful activity is defined in Section 2(o) of the UAPA
G as, inter alia, an activity intended to or supporting any claim to cede a
part of the territory of India or secede a part of the territory of India

311
(m) "terrorist organisation" means an organisation listed in the Schedule or an
organisation operating under the same name as an organisation so listed:
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 957
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

from the Union. 31 unlawful activity" Similarly, an unlawful association is A
defined in Section 2(p) of the UAPA as an association that has, as its
object, inter alia, any unlawful activity. 3"
I 01. 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 oflndia or intends to strike terror or is likely to B
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. 33
31
(o) ··unlawful activity", in relation to an individual or association, means any action
taken by such individual or association (whether by committing an act or by words,
either spoken or written, or by signs or by visible representation or otherwise),- c
(i) which is intended, or supports any claim. to bring about, on any ground whatsoever,
the cession of a part of the territory of India or the secession of a part of the territory
oflndia from the Union, or which incites any individual or group of individuals to bring
about such cession or secession: or
(ii) which disclaims. questions. disrupts or is intended to disrupt the sovereignty and
territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India:
D
"(p) ··unlawful association·• means any association,-
(i) which has for its object any unlawful activity, or which encourages or aids persons
to undertake any unlawful activity, or of which the members undertake such activity;
or
(ii) which has for its object any activity which is punishable under Section 153-A or
Section I 53-B of the Indian Penal Code (45 of I 860), or which encourages or aids E
persons to undertake any such activity, or of which the members undertake any such
activity :
Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and
Kashmir;
-'-' 15. Terrorist act.- (I) WhoeYer does any act with intent to threaten or likely to
threaten the unity, integrity, security, economic security, or sovereignty of India or
with intent to strike terror or likely to strike terror in the people or any section of the F
people in India or iri any foreign country.-
(a) by using bombs, dynamite or other explosive substances or inflammable substances
or firearms or other lethal
weapons or poisonous or noxious gases or other chemicals or by any other substances
(whether biological radioactive, nuclear or otherwise) ofa hazardous nature or by any
other means of whatever nature to cause or likely to cause-
(i) death of. or injuries to. any person or persons: or G
(ii) loss of. or damage to, or destruction ot: property: or
(iii) disruption of any supplies or services essential to the life of the community in
India or in any foreign country; or
(iii-a) damage to, the monetary stability oflndia by way of production or smuggling or
circulation of high quality counterfeit Indian paper currency, coin or of any other
material; or H
958 SUPREME COURT REPORTS [2016] 4 S.C.R.

A I 02. In view of the above, there is no doubt that the organizations
in Manipur that are mentioned above are not only terrorist organizations
or terrorist gangs (as defined in Section 2(1) of the UAPA) 3-1 but are
unlawful associations, for they threaten the unity, integrity, security or
sovereignty of India. Would membership of such an organization
incriminate a person? This will be discussed a little later.
B
(iv) The Army Act, 1950
103. The Army Act, 1950 (for short 'the Army Act') is ofconsiderable
importance for deciding the present controversy. A person subject to the
Army Act is said to be in active service if that person is, inter alia,
c 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.35 The enemy

D (iv) damage or destruction of any property in India or in a foreign country used or
intended to be used for the defence of India or in connection with any other purposes
of the Government of India. any State Government or any of their agencies: or
(b) overawes by means of criminal force or the show of criminal force or attempts to do
so or causes death of any public functionary or attempts to cause death of any public
functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or
E does any other act in order to compel the Government of India, any State Government
or the Government of a foreign country or an international or inter-governmental
organisation or any other person to do or abstain from doing any act: or.
commits a terrorist act.
Explanation.-For the purpose of this sub-section,-
(a) "public functionary" means the constitutional authorities or any other functionary
F notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may
be declared after examination by an authorised or notified forensic authority that such
currency imitates compromises with the key security features as specified in the Third
Schedule.
(2) The terrorist act includes an act which constitutes an offence within the scope of,
G and as defined in any of the treaties specified in the Second Schedule.
"(I) "terrorist gang" means any association, other than terrorist organisation, whether
systematic or otherwise, which is concerned with, or involved in, terrorist act;
"3. Definitions.-ln this Act. unless the context· otherwise requires.-
(i) "active service", as applied to a person subject to this Act, means the time during
which such person-
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 959
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

must be armed. A
104. The Anny Act also provides for offences in relation to the
enemy which are punishable with death, 36 offences not punishable with
death 37 and offences that are more severely punishable while on active
service. 38 The significance of these provisions is best understood in the
background of the submission of the learned Attorney General that under B
theAFSPA, 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 unlawful
association and is threatening or is likely to threaten the unity, integrity,
security or sovereignty oflndia. c
I 05. 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. The limitation provided is a period of three
years commencing from (a) the date of the offence; or (b) when the D
commission of the offence is not known to the person aggrieved or the
competent authority, the date on which the commission of such an offence
comes to the knowledge of the person aggrieved or the competent
authority whichever is earlier; or ( c) when the identity of the offender is
not known, the date on which the identity is known to the person aggrieved E
or the competent authority, whichever is earlier.

106. Section 125 and Section 126 of the Army Act are of

(a) is attached to, or fonns part of, a force which is engaged in operations against an
enemy, or F
(b) is engaged in military operations in, or is on the line of march to, a country or place
wholly or partly occupied by an enemy, or
(c) is attached to or fonns part of a force which is in military occupation of a foreign
country;
(x) ··enemy" includes all anned mutineers, anned rebels, armed rioters, pirates and any G
person in anns against whom it is the duty of any person subject to military law to act;
36
Section 34
37
Section 35
"Section 36
H
960 SUPREME COURT REPORTS [2016) 4 S.C.R.

A considerable importance in this context and as far as this case is
concemed. 39 These Sections ought to be read in conjunction with Section
4 and Section S 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
B
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,
c 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.

I 07. In this context, it is necessary to refer to the Criminal Courts
D and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules
provide, inter alia, that when a person subject to the Anny Act is 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 Magistrate records his opinion in
E

39
125. Choice between criminal court and court-martial - When a criminal court
and a court-martial have each jurisdiction in respect of an offence, it shall be in the
discretion of the officer commanding the army, army corps, division or independent
brigade in which the accused person is serving or such other officer as may be prescribed
F to decide before which court the proceedings shall be instituted, and, if that officer
decides that they should be instituted before a court-martial, to direct that the accused
person shall be detained in military custody.
126. Power of criminal court to require delivery of offender - (I) When a criminal
court havingjurisdiction is ofopinion that proceedings shall be instituted before itself
in respect of any alleged offence, it may, by written notice, require the officer referred
to in Section 125 at his option, either to deliver over the offender to the nearest
G magistrate to be proceeded against according to law, or to postpone proceedings pending
a reference to the Central Government.
(2) In every such case the said officer shall either deliver over the offender in compliance
with the requisition, or shall forthwith refer the question as to the court before which
the proceedings are to be instituted for the determination of the Central Government,
whose order upon such reference upon such reference shall be final.
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 961
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

writing that he should so proceed without being so moved.' 0 In the latter A
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."
108. In the event a Magistrate concludes that a person subject to
the Army Act has committed an offence triable by the Magistrate but B
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 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
c
Government for determination as to the court before which proceedings
should be instituted."'~
'°Rule 3: Where a person subject military. naval, air force or Coast Guard law. or any
other laws relating to the Armed Forces of the Union for the time being in force is
brought before a Magistrate and charged with an offence for which he is also liable to be D
tried by a Court Martial or Coast Guard Court, as the case may be such Magistrate
shall not proceed to try such person or to commit the case to the Court of Session,
unless:-
( a) he is moved thereto by a competent military, naval, air force or Coast Guard
authority; or
(b) he is ofopinion, for reasons to be recorded, that he should so proceed or to commit
without being moved thereto by such authority. E
41 Rule 4: Before proceeding under clause (b) of rule 3. the Magistrate shall give a

written notice to the Commanding Oflicer or the competent military. naval, air force or
Coast Guard authority, as the case may be, of the accused and until the expiry of a
period of fifteen days from the date of service of the notice he shall not:-
(a) Convict or acquit the accused xxxx xxxx; or
( b) frame in writing a charge against the accused xxx xxx: or
(c) make an order committing the accused for trial to the Court of Session xxx xxx; or F
(d) make over the case for inquiry or trial under section 192 of the said Code.
42 Rule 8: Not\\·ithstanding an~1hing in the foregoing rules, where it comes to the notice

of a Magistrate that a person subject to military. naval, air force or coast guard law, or
any other law relating to the Armed Forces of the Union forthe time being in force has
committed an offence, proceedings in respect of which ought to be instituted before
him and that the presence of such person cannot be procured except through military,
G
naval, air force or coast guard authorities, 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 for being proceeded against according to law,
or to stay the proceedings against such person before the Court Martial or coast guard
court, as the case may be if since instituted, and to make a reference to the Central
Government for determination as to the court before which proceedings should be
instituted. H
962 SUPREME COURT REPORTS [2016] 4 S.C.R.

A Is there a war-like situation in Manipur?

109. The principal contention of the learned Attorney General in
opposing any investigation or inquiry into the alleged extra-judicial killings
is that a war-like situation has been and is prevailing in Manipur. It is to
control any escalation of the situation that vast powers have been given
B to the armed forces under AFSPA and the constitutionality of AFSPA
has been upheld by the Constitution Bench in Naf!a People's Movement
of Human Rig/tis. It is only due to the efforts of the Manipur Police
and the armed forces of the Union that the security environment in
Manipur has not deteriorated but has vastly improved over the years.
c The efforts made in the past and the successes gained, the efforts being
presently made and the efforts that will be made in the future should not
get hamstrung through wanton and sometimes irresponsible allegations
of violations of human rights and use of excessive force. These have a
deleterious and demoralizing impact on the security forces to no one's
advantage except the militants, terrorists and insurgents. This is apart
D from the submission that the deaths caused were justified, being deaths
of militants, terrorists and insurgents in counter insurgency or anti terrorist
operations.

I 10. There is no doubt from the records of the case that Manipur
E 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. This goes so far back that when we requested
learned counsel for the State of Manipur to place before us the
declarations under AFSPA and the prohibitory orders issued under Section
I 44 of the Cr.P.C. only fairly recent declarations and prohibitory orders
F were produced, the rest having perhaps been lost in antiquity. A generation
or two has gone by and issues have festered for decades. It is high time
that concerted and sincere efforts are continuously made by the four
stakeholders - civil society in Manipur, the insurgents, the State of
Manipur and the Government of India to find a la,sting and peaceful
G solution to the festering problem, with a little consideration from all
quarters. It is never too late to bring peace and harmony in society.

1I I. Be that as it may, we need to be clear that 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.
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 963
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

No such declaration has been made by the Union oflndia-explicitly or A
even implicitly - and nothing has been shown to us that would warrant a
conclusion that there is a war or an external aggression or an armed
rebellion in Manipur. That is not anybody's case at all nor has it even
been suggested.

112. In support of his contention that a war-like situation was and is B
prevailing in Manipur, the learned Attorney General relied on Navjot
Sandhu to submit that under Section 121 of the IPC 'war' is not
necessarily conventional warfare between two nations and even
organizing and joining an insurrection against the Government oflndia is
a form of war. The militants in Manipur were creating a situation of an
insurrection and this was resulting in a war-like situation in Manipur.
c
Alternatively, the victims were members of banned organizations under
the UAPA and were provoking cession or secession from India and
were therefore 'enemy'. On this basis it was contended that even if
there is no war-like situation prevailing in Manipur, the victims being
'enemy', their killing is justified in counter insurgency or anti terrorist D
operations.
113. Navjot Sandhu was a case in which Parliament was attacked
by terrorists. There can be no doubt that those who attacked the heart
of our democracy were our enemies for all practical purposes, regardless
of whether they were carrying out a war against our country or not. It is E
not necessary for us to dwell at length on the facts of that case since we
have already observed that there is no declaration of a war in Manipur,
even as per the case of the Union oflndia. However, the question is: Is
an internal disturbance equivalent to a war-like situation? In this regard
certain observations in Navjot Sandhu are of significance.
F
114. This Court analyzed the law on the subject in Navjot Sandhu
and held (inter alia) in paragraphs 282 and 283 of the Report that in the
context of'war' {i) the animus of the party is important; (ii) the use of
force or arms is necessary; (iii) the number of members in the party is
not relevant and even a few can cause devastation; (iv) 'pomp and
G
pageantry' accompanying a war is irrelevant and even a stealthy operation
could be a war. However, what is important is that it was made clear
that all acts of violent resistance, even against the armed forces and
public officials could not be branded as acts of war. It was held as
follows:
H
964 SUPREME COURT REPORTS [2016] 4 S.C.R.

A "282. On the analysis of the various passages found in the cases
and commentaries referred to above, what are the highlights we
come across? The most important is the intention or purpose behind
the defiance or rising against the Government. As said by [Sir
Michael] Foster, "The true criterion is quo animo did the parties
assemble?" In other words the intention and purpose of the warlike
B
operations directed against the governmental machinery is an
important criterion. 1f the object and purpose is to strike at the
sovereign authority of the Ruler or the Government to achieve a
public and general purpose in contradistinction to a private and a
particular purpose, that is an important indicia of waging war. Of
c course, the purpose must be intended to be achieved by use of
force and arms and by defiance of government troops or armed
personnel deployed to maintain public tranquillity. Though the
modus operandi of preparing for the offensive act against the
Government may be quite akin to the preparation in a regular war,
it is often said that the number of force, the manner in which they
D are arrayed, armed or equipped is immaterial. Even a limited
number of persons who carry powerful explosives and missiles
without regard to their own safety can cause more devastating
damage than a large group of persons armed with ordinary
weapons or firearms. Then, the other settled proposition is that
E there need not be the pomp and pageantry usually associated with
war such as the offenders forming themselves in battle line and
arraying in a warlike manner. Even a stealthy operation to
overwhelm the armed or other personnel deployed by the
Government and to attain a commanding position by which terms
could be dictated to the Government might very well be an act of
F
waging war.
283. While these are the acceptable criteria of waging war, we
must dissociate ourselves from the old English and Indian
authorities to the extent that they lay down a too general test of
attainment of an object of general public nature or a political object.
G We have already expressed reservations in adopting this test in its
literal sense and construing it in a manner out of tune with the
present day. The court must be cautious in adopting an
approach which has the effect of bringing within the fold of
Section 121 [of the IPC] all acts of lawless and violent acts
H resulting in destruction of public properties, etc., and all
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 965
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

acts of violent resistance to the armed personnel to achieve A
certain political objectives. The moment it is found that
the object sought to be attained is of a general public nature
or has a political hue, the offensive violent acts targeted
against the armed forces and public officials should not be
branded as acts of waging war. The expression "waging war"
B
should not be stretched too far to hold that all the acts of
disrupting public order and peace irrespective of their
magnitude and repercussions could be reckoned as acts of
waging war against the Government. A balanced and realistic
approach is called for in construing the expression "waging war"
irrespective of how it was viewed in the long long past. An c
organised movement attended with violence and attacks
against the public officials and armed forces while agitating
for the repeal of an unpopular law or for preventing
burdensome taxes were viewed as acts of treason in the
form of levying war. We doubt whether such construction
D
is in tune with the modern day perspectives and standards.
Another aspect on which a clarification is called for is in regard to
the observation made in the old decisions that "neither the number
engaged, nor the force employed, nor the species of weapons
with which they may be armed" is really material to prove the
offence of levying/waging war. This was said by Lord President E
Hope in R. v. Hardie" in 1820 and the same statement finds its
echo in many other English cases and in the case of Magan/al
Radhakishan v. Emperor. 4" But, in our view, these are not
irrelevant factors. They will certainly help the court in forming an
idea whether the intention and design to wage war against the
F
established Governrilent exists or the offence falls short of it. For
instance, the firepower or the devastating potential of the arms
and explosives that may be carried by a group of persons - may
be large or small, as in the present case, and the scale of violence
that follows may at times become useful indicators of the nature
and dimension of the action resorted to. These, coupled with the G
other factors, may give rise to an inference of waging war."
(Emphasis supplied by us).

" ( 1820) 1 State Tr NS 609, 610
"AIR 1946 Nagpur 173, 185
H
966 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 115. Therefore, 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
B
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. ft would also reflect poorly on the Union of
India that it is unable to resort to available constitutional provisions and
c measures to bring a war-like situation under control for almost six decades.
We cannot be expected to cast or even countenance any such aspersions
on our armed forces or the Union oflndia. All that we can and do say is
that 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
D
forces that are available in aid of the civil power.

116. The submission of the learned Attorney General is nothing but
a play on words and we reject it and hold that an internal disturbance is
not equivalent to or akin to a war-like situation and proceed on the basis
E that 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.

117. Therefore, the questions before us are quite straightforward-
to quell this internal disturbance, has there been use of excessive force
F by the Manipur Police and the armed forces in the 1528 cases compiled
by the petitioners through fake encounters or extra-judicial executions
during the period of internal disturbance in Manipur as alleged by the
petitioners. Secondly, has the use of force by the armed forces been
retaliatory to the point of causing death and was the retaliatory force
G pennissible in law on the ground that the victims were 'enemy' as defined
in Section 3(x) of the Army Act?

Use of excessive force and retaliation

118. At the outset, a distinction must be drawn between the right of
H self-defence or private defence and use of excessive force or retaliation.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 967
(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J .]

Very simply put, the right of self-defence or private defence is a right A
that can be exercised to defend oneself but not to retaliate. 45 This view
was reiterated but expressed somewhat differently in Rajeslt Kumar v.
Dltaramvir6 when it was said: 'To put it differently, the right is one of
defence and not of requital or reprisal. Such being the nature ofright,
the High Court could not have exonerated the accused persons of the
B
charges levelled against them by bestowing on them the right to retaliate
and attack the complainant party."

119. A similar opinion was expressed somewhat more lucidly in V.
Subramani v. State of Tamil Nadu• 1 when it was said:
c
"Due weightage has to be given to, and hypertechnical approach
has to be avoided in considering what happens on the spur of the
moment on the spot and keeping in view normal human reaction
and conduct, where self-preservation is the paramount
consideration. But, ifthe fact situation shows that in the guise of
self-preservation, what really has been done is to assault the original D
aggressor, even after the cause of reasonable apprehension has
disappeared, the plea of right of private defence can legitimately
be negatived. The court dealing with the plea has to weigh the
material to conclude whether the plea is acceptable. It is essentially,
as noted above, a finding of fact." E

120. In Rolltasll Kumar v. State ofHarym1a-l 8 this Court cautioned
against the use of retaliatory force even against a dreaded criminal. It
was held:

"It also appears that he [the appellant] was declared absconder. F
But merely because a person is a dreaded criminal or a proclaimed
offender, he cannot be killed in cold blood. The police must make
an effort to arrest such accused. In a given case if a dreaded
criminal launches a murderous attack on the police to prevent
them from doing their duty, the police may have to retaliate and, in
G

45 Manjeet Singh v. State of H.P., (2014) 5 SCC 697
"' <1997) 4 sec 496
1
• \2005) lo sec 358
"(2013) 14 sec 290
H
968 SUPREME COURT REPORTS (2016] 4 S.C.R.

A that retaliation, such a criminal may get killed. That could be a
case of genuine encounter. But in the facts of this case, we are
unable to draw such a conclusion."

121. Finally, reference may be made to Darsftan Sin!(ft v. State ()f
Punjab49 wherein this Court held:
B
"When there is real apprehension that the aggressor might cause
death or grievous hurt, in that event the right of private defence of
the aefender could even extend to causing of death. A mere
reasonable apprehension is enough to put the right of self-defence
c into operation, but it is also a settled position oflaw that a right of
self-defence is only a right to defend oneself and not to retaliate.
It is not a right to take revenge."

122. From the above, it is abundantly clear that the right of self-
defence or private defence falls in one basket and use of excessive
D 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 lPC) ifthat 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. Unfortunately occasionally, use of excessive force
E
or retaliation leads to the death of the origin[!( 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 /11tlia anti
another5° it is called "administrative liquidation". Society and the courts
F obviously cannot and do not accept such a death caused by the State
since it is destructive of the rule oflaw and plainly unconstitutional.

123. The problem before the courts tends to become vexed 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
G 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

"(201 OJ 2 sec 333
'"(1997) 3 sec 433
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 969
(EEVFAM) v. UNION OF INDIA [MADAN 8. LOKUR, J.]

hand tied behind its back. This. is not a valid criticism since, and this is A
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.
·B
124. This concern, both from the perspective of the State and from
the perspective of preserving and protecting human rights of a citizen is
adverted to by Prof. Aharon Barak a former President of the Supreme
Court of Israel who acknowledges that sometimes a democracy must
fight with one hand tied behind its back in the following words: c
"While terrorism poses difficult questions for every country, it
poses especially challenging questions for democratic countries,
because not every effective means is a legal means. I discussed
this in one case, in which our Court held that violent interrogation
of a suspected terrorist is not lawful, even if doing so may save D
human life by preventing impending terrorist acts:
"We are aware that this decision does not make it easier to deal
with that reality. This is the fate of democracy, as not all means
are acceptable to it, and not all meth0<;ls employed by its enemies
are open to it. Sometimes a democracy must fight with one hand E
tied behind its back. Nonetheless, it has the upper hand. Preserving
the rule oflaw and recognition of individual liberties constitute an
important component of its understanding of security. At the end
of the day, they strengthen its spirit and strength and allow it to
overcome its difficulties." 51 F
125. It is this preservation of the rule of law, recognition of human
rights and check on the abuse or misuse of power that has been the
highlight of a few decisions placed before us. In Matajog Dobey v.
H.C. Bltari5~ a cautious step by step approach Was advocated by the
Constitution Bench of th is Court in the matter of grant of sanction to G
prosecute an official under the provisions of the Code of Criminal
Procedure, 1898. The first step is to ascertain whether the act complained
" Aharon Barak: The Judge in a Democracy. page 283 (Princeton University
Press)
" ( 1955) 2 SCR 925 H
970 SUPREME COURT REPORTS [2016] 4 S.C.R.

A of is an offence and the second step is to determine whether it was
committed in the discharge of official duty. "There must be a reasonable
connection between the act and the official duty. It does not matter even
if the act exceeds what is strictly necessary for the discharge of the
duty, as this question will arise only at a later stage when the trial proceeds
on the merits. What we must find out is whether the act and the official
B
duty are so inter-related that one can postulate reasonably that it was
done by the accused in the performance of the official duty, though
possibly in excess of the needs and requirements of the situation." 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
c 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. It is for this reason
that with regard to the abuse or misuse of power by the State this Court
D
expressed the following view in Naga People's Movement of Human
Rig/its in paragraph 61 of the Report:

"In order that the people may feel assured that there is an effective
check against misuse or abuse of powers by the members of the
E. armed forces it is necessary that a complaint containing an
allegation about misuse or abuse of the powers conferred under
the Central Act [the AFSPA] should be thoroughly inquired into
and, if it is found that there is substance in the allegation, the
victim should be suitably compensated by the State and the requisite
sanction under Section 6 of the Central Act should be granted for
F instruction of prosecution and/or a civil suit or other proceedings
against the person/persons responsible for such violation."

126. In other words, the decision of the Constitution Bench 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
G
complaint or allegation ofabuse or misuse of power. All ofus are bound
by this direction ofthe Constitution Bench which has been given to assure
. the people that there is no abuse or misuse of power by the armed
forces.

H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 971
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] -

127. Om Prakash v. State of Jflarkltand5 3 dealt with an alleged A
fake encounter by the police and use of excessive force resulting in the
death, inter alia, of the complainant's son. The version of the police
was that they were fired upon and they had to retaliate to save themselves
and that resulted in the death. The complainant preferred a private
complaint before the concerned Chief Judicial Magistrate and also before
B
the NHRC. The decision of this Court arose out of the private complaint.
Be that as it may, the complaint made to the NHRC was enquired into
and the NHRC concluded that it was not a case of a fake encounter.
This Court also took a similar view. Though the case related primarily to
the grant of sanction to prosecute under Section 197 of the Cr.P.C., it
was held, relying upon K. Satwant Sin1:1t v. State ofPunja'h 54 and State· C
of Orissa v. Ganeslt Chandra Jew 55 that if there is a "reasonable
connection" between the official duty and the use of excessive force,
then the use of excessive force will not be a ground for denial of protection
under Section 197 of the Cr.P.C. Thereafter, it was held in paragraph 42
of the Report that it is not the duty of the police to kill a person even ifhe
D
is a dreaded criminal and that such killings must be deprecated. It was
saicl:
~

"It is not the duty of the police officers to kill the accused merely
because he is a dr~aded criminal. Undoubtedly, the police have to
arrest the accused and put them up- for trial. This Court has
E
repeatedly admonished trigger-happy police personneY, who
liquidate criminals and project the incident as an encounter. Such .
killings must be deprecated. They are not recognised as legal by
our criminal justice administration system. They amount to State-
sponsored terrorism. But, one cannot be oblivious of the fact that
there are cases where the police, who are performing their duty, F
are attacked and killed. There is a rise in such incidents and judicial
notice must be taken of this fact. In such circumstances, while
the police have to do their legal duty of arresting the criminals,
they have also to protect themselves. The requirement of sanction
to prosecute affords protection to the policemen, who are
G
sometimes required to take drastic action against criminals to

"(2012) 12 sec n
"(1960) 2 SCR 89
"(2004) s sec 40
H
972 SUPREME COURT REPORTS [2016) 4 S.C.R.

A protect life and property of the people and to protect themselves
against attack. Unless unimpeachable evidence is on record to
establish that their action is indefensible, mala fide and vindictive,
they cannot be subjected to prosecution."

128. How does anyone determine whether the action of causing
B the death of a person was "indefensible, mala fide and vindictive"? It
can only be through a thorough enquiry as postulated in Naga People's
Movement_of Human Rif(ilts and in Om Prakaslt that enquiry had
been conducted at the instance of the N HRC by the Criminal Investigation
Department or the CID.
c
129. Similarly, fo State ofMaltaraslttra v. Saeed So/tail Slieik/1 56
the issue related to the alleged high-handedness of jail officials in the
transfer of prisoners under the Maharashtra Control of Organized Crime
Act, 1999. The prisoners were in custody in connection with what is
known as the Bombay Blast case.
D
130, On the directions of the Bombay High Court, a Sessions Judge
conducted an inquiry into the incident and submitted his report. The report
was accepted by the High Court and on the basis thereof the Government
was directed to hold a departmental inquiry against the officials for use
of excessive force in bringing the situation in the jail under control.
E
131. This Court then considered the question whether the High
Court was justified in giving the direction that it did. It was held that the
report was preliminaryn and "flawed in many respects". Neve11heless
this Court held that the inquiry report could provide "no more than a
F primafacie basis for the Government to consider whether any further
investigation into the incident was required to be conducted either for
disciplinary action or for launching prosecution of those found guilty."

132. It was further observed in paragraph 39 of the Report that
accountability is a facet of the rule oflaw and in a country governed by
G the rule oflaw "police excesses whether inside or outside the jail cannot
be countenanced in the name of maintaining discipline or dealing with
anti-national elements." It was said:

"(2012) 13 sec 192
"There is nothing to indicate that the report was preliminary.
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 973
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

"In a country governed by the rule oflaw police excesses whether A
inside or outside the jail cannot be countenanced in the name of
maintaining discipline or dealing with anti-national elements.
Accountability is one of the facets of the rule oflaw. If anyone is
found to have acted in breach oflaw or abused his position while
exercising powers that must be exercised only within the
B
parameters of law, the breach and the abuse can be punished.
That is especially so when the abuse is alleged to have been
committed under the cover of authority exercised by people in
uniform. Any such action is also open to critical scrutiny and
examination by the courts."
c
133. In People's Union.for Civil Liberties it was alleged that two
persons from Manipur were killed in a fake encounter by the police.
This was denied by the police who averred that the deceased were
killed in a cross-fire between the police and an unlawful organization in
Mizoram. In a writ petition filed in this Court, the District and Sessions
Judge was directed to conduct an inquiry and submit a report. In his D
report given to this Court, the District and Sessions Judge concluded
that there was no encounter and that the two deceased were shot dead
by the police while in custody. Objections to the report were filed by the
State of Manipur but were rejected by this Court.
E
134. It was submitted by the learned counsel for the State ofManipur
that it was a disturbed area and that several terrorist groups were
operating in the State. On a consideration of the submissions put forward,
this Court held in paragraph 6 of the Report that the actions of the police
could not be countenanced even in a disturbed area and that
"administrative liquidation" was not a course open to them. It was said: F

"It is true that Manipur is a-disturbed area, that there appears to
be a good amount of terrorist activity affecting public order and,
may be, even security of that State. It may also be that under
these conditions, certain additional and unusual powers have to
G
be given to the police to deal with terrorism. It may be necessary
to fight terrorism with a strong hand which may.involve vesting of
good amount of discretion in the police officers or other paramilitary
forces engaged in fighting them. If the version of the police with

H
974 SUPREME COURT REPORTS (2016] 4 S.C.R.

A respect to the incident in question were true, there could have
been no question of any interference by the court. Nobody can
say that the police should wait till they are shot at. It is for the
force on the spot to decide when to act, how to act and where to
act. It is not for the court to say how the terrorists should be
fought. We cannot be blind to the fact that even after fifty years
8
of our independence, our territorial integrity is not fully secure.
There are several types of separatist and terrorist activities in
several parts of the country. They have to be subdued. Whether
they should be fought politically or be dealt with by force is a
matter of policy for the Government to determine. The courts
c may not be the appropriate forum to detennine those questions.
All this is beyond dispute. But the present case appears to be one
where two persons along with some others were just seized from
a hut, taken to a long distance away in a truck and shot there.
This type of activity cannot certainly be countenanced by the courts
even in the case of disturbed areas. If the police had information
D
that terrorists were gathering at a particular place and if they had
surprised them and arrested them, the proper course for them
was to deal with them according to law. "Administrative liquidation"
was certainly not a course open to them."

E 135. lt must be held, and there can be no doubt about it, that in view
of the consistent opinion expressed by this Court, that an allegation or
complaint of absence of a reasonable connection between an official
act and use of excessive force or retaliatory force will not be
countenanced and an allegation of this nature would always require to
be met regardless of whether the State is concerned with a dreaded
F criminal or a militant, terrorist or insurgent. It must also be held that to
provide assurance to the people, such an allegation must be thoroughly
enquired into. This is the requirement of a democracy and the requirement
of preservation. of the rule of law and the preservation of individual
liberties. A consequential question that will arise is who should conduct
G that thorough enquiry.

136. In this regard, it was submitted by the learned Attorney General
that apart from anything else, an internal enquiry is conducted through
the Human Rights Division of the Army and the Ministry of Defence to
ensure that any violation of human rights is duly punished. In this regard,
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 975
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

it was submitted that though the enquiry may be internal, it is nevertheless A
fair and over the years as many as 70 personnel have been punished for
human rights violations. Therefore, there is no need to have any
independent enquiry into the alleged fake encounters.

137. We are not inclined to accept this submission. We had asked
the learned Attorney General to hand over sample files so that we could B
understand the nature of the internal enquiry and how it was conducted.
We were handed over a sealed cover which upon opening revealed that
what was handed over to us were four files relating to four cases enquired
into by the Justice Hegde Commission. These four cases are Case I -
Md. Azad Khan, Case 3 - Nameirakpam Gobind Meitei & Nameirakpam c
Nobo Meitei, Case 4 - Elangbam Kiranjit Singh and Case 5 - Chongtham
Umakanta. In all these cases the respondents have come to the conclusion
that the allegations were not supported by any credible evidence and
therefore the case needed closure. However as we have noticed above,
on a thorough enquiry having been made by the Justice Hegde Commission
the view taken was that all these persons were killed in a fake encounter D
or that the force used against them was excessive. Under these
circumstances, we do not wish to comment on the nature of the internal
enquiry conducted by the respondents but only record that these cases
apparently never reached the Human Rights Division of the Army or the
Ministry of Defence. E

Retaliation against an enemy

138. It was contended by the learned Attorney General that the
general principles of self-defence or private defence provided for in
several decisions of this Court, including Darsltan Singlt would not be F
applicable to the disturbed area of Manipur since the armed forces in
that State were engaged with militants and terrorists who are 'enemy'
as defined in Section 3(x) of the Army Act. This is a shift from the stand
taken in affidavit filed by the Union oflndia but we let it pass. Reliance
was placed by the learned Attorney General on an observation in Ratan
G
Singh that militants are "undisputedly" included in the expression 'enemy'
as defined under Section 3(xfofthe Army Act. In that case, the record
shows that Ratan Singh was a member of the IPKF (Operation Pawan)
in Sri Lanka and when fired upon by militants, he quit his post. It was in
this context that this Court observed that "The operation in which the
H
976 SUPREME COURT REPORTS [2016] 4 S.C.R.

A appellant was engaged was directed against the militants who were
undisputedly included in the expression 'enemy' within Section 3(x) [of
the Army Act]." The reference was specific to "the militants" against
whom the IPKF was required to act. There was no general or blanket
conclusion arrived at by this Court that all militants in every situation are
'enemy'.
B
139. In any event, 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
c a militant or terrorist or insurgent. In Navjot Sandhu this Comt cited Sir
James Stephen with approval in paragraph 276 of the Report to the
following effect:

"Unlawful assemblies, riots, insurrections, rebellions, levying of
war are offences which run into each other and not capable of
D being marked off by perfectly definite boundaries. All of them
have in common one feature, namely, that the normal tranquillity
of a civilised society is, in each of the cases mentioned,
disturbed either by actual force or at least by the show and
threat ofit." 58 (Emphasis supplied by us).
E
140. Similarly, though in a slightly different context, it was held by
this Court in Indra Das v. State ofAssam 59 after referring to and relying
upon Arup Bhuyan v. State of Assam60 that mere membership of a
banned organization does not incriminate a person. He might be a passive
member and not an active one and so it is necessary to prove that he has
F indulged in some act of violence or imminent violence. This is what was
said:

"In Arup Bhuyan case we have stated that mere membership of
a banned organisation cannot incriminate a person unless he is
proved to have resorted to acts of violence or incited people to
G

" Digest of Criminal Law by Sir James Stephen
"(2011) 3 sec 380
'°(2011) 3 sec 377
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 977
(EEVFAM) v. UNION OF lNDIA [MADAN B. LO KUR, J.]

imminent violence, or does an act intended to create disorder or A
disturbance of public peace by resort to imminent violence. In the
present case, even assuming that the appellant was a member of
ULFA which is a banned organisation, there is no evidence to
show that he did acts of the nature abovementioned. Thus, even
ifhe was a member ofULFA it has not been proved that he was
B
an active member and not merely a passive member. Hence the
decision in Arup Bhuyan case-squarely applies in this case."

141. In so far as the present case is concerned, the Justice Hegde
Commission found that none of the victims in the six cases examined by
it at the instance of th is Court had any criminal antecedents or that there c
was any credible evidence to show that they had affiliations with a banned
or unlawful organization. Therefore it would not be correct to say that
merely bec;mse a person was carrying arms in a prohibited area, that
person automatically became an enemy or an active member of a banned
or unlawful organization. We note, without comment, the contention of
the petitioners that in most cases the arms are planted on the victims. D

142. 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 an imminent act of violence E
or such an attempt by any armed person. There can be little doubt that
'armed mutineers' and 'armed rebels' by definition deal in violence. This
Court has associated 'mutiny' with violence in Union of In<lfrt v.
Tulsiram Pate/6' and S/1ivajiAtmaji Sawant v. Stme ofMalum1shtra. 6~
Armed rioters are also involved in violence. Section 146 of the IPC63
explains rioting as use of force or violence by an unlawful assembly or F
by any member thereof in prosecution of the common object of such
assembly. Similarly, an act of piracy inherently involves violence. Article
IOI of the United Nations Convention on the Law of the Sea explains
piracy as follows:
G
61
1985) 3 sec 398 at paragraph 161
(
62
1986) 2 sec 112 at paragraphs 6 and 7
(
63
146. Rioting· Whenever force or violence is used by an unlawful assembly, or by any
member thereof, in prosecution of the common object of such assembly, every member
of such assembly is guilty of the offence ofrioting.
H
978 SUPREME COURT REPORTS [2016] 4 S.C.R.

A "Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of
depredation, committed for private ends by the crew or the
passengers ofa private ship or a private aircraft, and directed:

B (i) on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside
the jurisdiction of any State;
c (b) any act of voluntary participation in the operation of a ship or
of an aircraft with knowledge of facts making it a pirate ship or
aircraft;

(c) any act of inciting or ofintentionally facilitating an act described
D in subparagraph (a) or (b)."

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
E by a thorough enquiry. as postulated by Naga People's Moveme11t of
Huma11 Rights.

143. In cases such as the present, there is a greater duty of care
and an equally greater necessity of a thorough enquiry since, we must
not forget, the alleged 'enemy' in this case is a citizen of our country
F entitled to all fundamental rights including under Article 21 of the
Constitution. In this regard, it is worth recalling what the Constitution
Bench said in Naga People '.5 Movement ofHuman Rigltts - our armed
forces are not trained to fight and kill our own countrymen and women.
To this we may add that ordinarily our armed forces should not be used
G against our countrymen and women. This Court observed in Naga
People's Movement of Human Rights in paragraph 39 of the Report:

"The primary task of the armed forces of the Union is to defend
the country in the event of war or when it is faced with external
aggression. Their training and orientation is to defeat the hostile
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 979
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

forces. A situation of internal disturbance involving the local A
population requires a different approach. Involvement of armed
forces in handling such a situation brings them in confrontation
with their countrymen. Prolonged or too frequent deployment of
armed forces for handling such situations is likely to generate a
feeling of alienation among the people against the armed forces
B
who by their sacrifices in the defence of their country have earned
a place in the hearts of the people. It also has an adverse effect
on the morale and discipline of the personnel of the armed forces."

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 c
'enemy' not only the rule of law but our democracy would be in grave
danger.

144. In view of our discussion, it is not possible to accept the
contention of the learned Attorney General that a person carrying
weapons in violation of prohibitory orders in the disturbed area ofManipur D
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. This is far too sweeping and general an allegation and cannot be
accepted as it is or at its face value. Each instance of an alleged extra-
judicial killing of even such a person would have to be examined or E
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.
F
145. The learned Attorney General also relied upon the UAPA to
contend that a terrorist is an enemy, though not specifically mentioned in
Section 3(x) of the Army Act and it is the duty of a person subject to
military law to act against a terrorist. The argument of the learned
Attorney General proceeds on the basis that in the present case every
G
victim is a militant or a terrorist. There is no such presumption one way
or the other and there is also no presumption one way or the other that
all the operations and encounters were faked as sought to be contended
by the petitioners. The facts have not yet been determined in this regard
in all cases. Moreover, the stand of the State ofManipur in its affidavit
H
980 SUPREME COURT REPORTS [2016] 4 S.C.R.

A of I 7'h November, 2012 is that the ordinary criminal laws including the
UAPAare inadequate to deal with the problem of insurgency in Manipur
necessitating the enforcement of the AFSPA. Hence, reliance on the
UAPA does not advance the case of the learned Attorney General.

146. Undoubtedly, the challenges of militancy and terrorism staring
B us in the face are grave. In People's Union/or Civil Liberties v. Union
of India 6 " the legislative competence of Parliament to enact the
Prevention of Terrorism Act, 2002 was under question. In that decision,
this Court described terrorism as an "undeclared war" as well as a "proxy
war". Adverting to the reality of terrorism, this Court observed that
c terrorist acts are meant, in several ways, to destabilize the nation and,
amongst others, demoralize the security forces. It was observed that
terrorism is a new challenge for law enforcement and that the terrorist
threat we are facing is now on an unprecedented global scale. It was
further observed that to face terrorism we need new approaches,
techniques, weapons, expertise and of course new laws. It is under
D these circumstances that the Prevention of Terrorism Act was enacted.

147. In a similar vein, Section 15 of the UAPA which was relied on
by the learned Attorney General virtually defines a terrorist as the
perpetrator of an act with intent to threaten or likely to threaten the
E unity, integrity, security, economic security or sovereignty of India or
with intent to strike terror or likely to strike terror in the people or any
section of the people in India by any of the acts mentioned in the said
section.

148. This Court had occasion to advert to the challenges from
F terrorists, the response of the State .and the constitutional commitment
of the Courts. In Saeetl Solwi/ Slleikll it was held in paragraph 40 of
the Report as follows:

"Having said that we cannot ignore the fact that the country today
faces challenges and threats from extremist elements operating
G from within and outside India. Those dealing with such elements
have at times to pay a heavy price by sacrificing their lives in the
discharge of their duties. The glory ofthe constitutional democracy
that we have adopted, however, is that whatever be the challenges

H "'(2004) 9 sec 580
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 981
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

posed by such dark forces, the country's commitment to the rule A
of law remains steadfast. Courts in this country have protected
and would continue to protectthe ideals of the rights of the citizen
being inviolable except in accordance with the procedure
established by law."

149. Killing an 'enemy' is not the only available solution and that is B
what the Geneva Conventions and the principles of international
humanitarian law tell us. Equally importantly, the instructions issued by
the Army Headquarters under the caption: "List of Dos and Don ~s
while acting under the Armed Forces (Special Powers) Act, 1958"
read with "List of Dos and Don 'ts while providing aid to civil c
authority" restrain the Army from using excessive force. In Naga
People's Movement of Human Rights it was held by the Constitution
Bench in paragraph 58 of the Report:

"The instructions in the form of "Dos and Don'ts" to which
reference has been made by the learned Attorney General have D
to be treated as binding instructions which are required to be
followed by the members of the armed forces exercising powers
under the Central Act and a serious note should be taken of
violation of the instructions and the persons found responsible for
such violation should be suitably punished under the Army Act, E
1950."

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 F
with the performance of their official duty would be liable to be proceeded
against.

150. Advocating caution and use of minimal force against our own
people, it was held in Naga People's Movement of Human Rights
that power can be exercised under Section 4(a) of the AFSPA only G
under certain circumstances. It was said in this context:

"The powers under Section 4(a) can be exercised only when (a)
a prohibitory order of the nature specified in that clause is in force
H
982 SUPREME COURT REPORTS [2016] 4 S.C.R.

A in the disturbed area; (b) the officer exercising those powers forms
the opinion that it is necessary to take action for maintenance of
public order against the person/persons acting incontravention of
such prohibitory order; and (c) a due warning as the officer
considers necessary is given before taking action. The laying down
of these conditions gives an indication that while exercising the
B
powers the officer shall use minimal force required for effective
action against the person/persons acting in contravention of the
prohibitory order."

151. In this context it is important to quote the Ten Commandments
c issued by the Chief of Army Staff. These read as follows and nothing
can better elucidate how the security forces are expected to act in
Manipur:

COAS TEN COMMANDMENTS

D Remember that people you are dealing with, are your own
countrymen. All your conduct must be dictated by this one
significant consideration.

Operations must be people friendly, using minimum force and
avoiding collateral damage - restrain must be the key.
E
Good intelligence is the key to success - the thrust of your
operations must be intelligence based and mµst include the militant
leadership.

Be compassionate, help the people and win their hearts and
F
minds. Employ all resources under your command to improve
their living conditions.

No operations without police representative. No operations
against women cadres under any circumstances without
G mahila police. Operations against women insurgents be
preferably carried out by police.

· Be truthful, honest and maintain highest standards of integrity,
honour, discipline, courage and sacrifice.

· Sustain physical and moral strength, mental robustness and
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 983
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

motivation. A

· Train hard, be vigilant and maintain highest standards of military
professionalism.

· Synergise your actions with the civil administration and other
security forces. B

· Uphold Dharma and take pride in your country and the army.

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 c
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 ofinternal disturbances and why no enquiry should D
be held ifthe response is alleged to be disproportionate.
152. At this stage, we would like to make it clear that Section 6 of
the AF SPA and Section 49 of the UAPA 6; presently have no application
to this case. It has yet to be determined whether the deaths were in fake
encounters as alleged or whether the deaths were in genuine encounters E
in counter insurgency operations and it has also to be determined whether
the use of force was disproportionate or retaliatory or not. If any death
was unjustified, there is no blanket immunity available to the perpetrator(s)
of the offence. No one can act with impunity particularly when there is
a loss of an innocent life.
F

"49. Protection of action taken in good faith - No suit. prosecution or other legal
proceeding shall lie against -
(a) the Central Government or a State Government or any officer or authority of the
Central Government or State Government or District Magistrate or any officer authorised
in this behalf by the Government or the District Magistrate or any other authority on G
whom powers have been conferred under this Act, for anything which is in good faith
done or purported to be done in pursuance of this Act or any rule or order made
thereunder; and
(b) any serving or retired member of the armed forces or paramilitary forces in respect
ofany action taken or purported to be taken by him in good faith, in the course of any
operation directed towards combating terrorism.
H
984 SUPREME COURT REPORTS [2016] 4 S.C.R.

A Army Act and the Cr.P.C.
153: A contention was raised by the learned Attorney General that
an offence committed by a member of armed forces must be tried under
the provisions of the Army Act through Court Martial proceed in gs and
not under the Cr.P.C. In other words, if anyone from the Army is found
B to have used excessive force, he should be proceeded against under the
provisions of the Army Act and not in a criminal court. Reliance was
placed in this regard on Balbir Singh v. State of Punjab. 66

154. Ifwe go further back, in Som Datt Datta v. Union of Imlia 67
a Constitution Bench of this Court was concerned with a challenge to a
c finding of guilt by a Court Martial for an offence punishable under Section
304 and Section 149 of the !PC. The contention of the petitioner was
thatthe Court Martial had no jurisdiction to try.him and that only a criminal
court constituted under the Cr.P.C. had jurisdiction to try him. On a
consideration of Section 69 and Section 70 of the Army Act, the
D Constitution Bench held that under the Anny Act there are three categories
of offences, namely:

(I) Offences committed by a person subject to the Act triable by
a Court Martial in respect whereof specific punishments have
been assigned;
E
(2) Civil offences committed by a person subject to the Act at any
place in or beyond India, but deemed to be offences committed
under the Act and, if charged under Section 69 of the Act, triable
by a Court Martial; and

F (3) Offences of murder and culpable homicide not amounting to
murder or rape committed by a person subject to the Act against
a person not subject to the military law.

It was held by the Constitution Bench that subject to a few
G exceptions, the third category of cases is not triable by a Court Martial
but is triable only by ordinary criminal courts. The exceptions are to be
found in Section 70 of the Army Act and one of them is ifthe offence is

'" (1995) 1sec90
67
(1969) 2 SCR 177
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 985
(EEVFAM) v. UNION OF !NOIA [MADAN B. LOKUR, J.]

committed by the accused while in active service. A

155. The Constitution Bench then considered the provisions of
Section 125 and Section 126 of the Army Act in this context. It was held
that Section 125 pre-supposes that in respect of an offence both a criminal
court and a Court Martial have concurrent jurisdiction. Section 125 of
the Army Act read with Section 126 thereof gives discretion to the officer 8
mentioned in Section 125 to decide before which forum the proceedings
shall be instituted. Ifit is decided that the proceedings should be instituted
before a Court Martial then the accused is taken into military custody.
However, ifthe criminal court is of opinion thatthe offence should be
tried before itself then it must follow the procedure laid down in Section c
126 of the Army Act pending a reference to the Central Government. It
was held that these two sections of the Ar.:Uy Act provide a satisfactory
machinery to resolve a conflict of jurisdiction, having regard to the
exigencies of the situation, in any particular case. It was said:

"Section 125 presupposes that in respect of an offence both a D
Criminal Court as well as a Court Martial have each concurrent
jurisdiction. Such a situation can arise in a case of an act or omission
punishable both under the Army Act as well as under any law in
force in India. It may also arise in the case of an offence deemed
to be an offence under the Army Act. Under the scheme of the E
two sections, in the first instance, it is left to the discretion of the
officer mentioned in Section 125 to decide before which court the
proceedings shall be instituted, and, ifthe officer decides that they
should be instituted before a court Martial, the accused person is
to be detained in military custody; but if a Criminal Court is of
opinion that the said offence shall be tried before itself, it may F
issue the requisite notice under Section 126 either to deliver over
the offender to the nearest Magistrate or to postpone the
proceedings pending a reference to the Central Government. On
receipt of the said requisition, the officer may either deliver over
the offender to the said court or refer the question of proper court G
for the determination of the Central Government whose order
shall be final. These two sections of the Army Act provide a
satisfactory machinery to resolve the conflict ofjurisdiction, having
regard to the exigencies of the situation in any particular case."

H
986 SUPREME COURT REPORTS [2016] 4 S.C.R.

A On the facts of the case, it was held that the police had not
completed its investigation into the alleged offence and that the accused
had not been brought before the Magistrate after the filing of the charge
sheet, hence the criminal court alone did not have jurisdiction over the
accused.
8 156. At this stage, it may be mentioned in the above context that in
Ram Swarup v. Union lndia68 a Constitution Bench of this Court held
that the exercise of discretion by the competent authority under Sections
125 and 126-oftheArmy Act is not unguided and does not violate Article
14 of the Constitution.
c
157. In Balhir Singlt the accused was in active service in the Air
Force and was tried and convicted by a criminal court for an offence
punishable under Sections 302 and 34 of the IPC. The contention urged
before this Court was that the criminal court inherently lacked jurisdiction
to try the accused. This Court considered the provisions of Section 72 of
D the Air Force Act, 1950 (corresponding to Section 70 of the Army Act),
Sections 124 and 125 of the said Act (corresponding to Sections 125 and
126 of the Army Act) and the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952. It was held that in the event of
a Court Martial and a criminal court both having jurisdiction to try the
E offence, the first option to try a person subject to the Air Force Act who
is in active service is with the Air Force authorities. If the Air Force
authorities do not exercise that option or decide not to try that person by
a Court Martial, then the accused could be tried by the criminal court in
accordance with the procedure laid down by the Cr.P.C. It was further
held that if the criminal court decides to proceed in the matter despite
F the contrary view of the Air Force authorities, then the conflict of
jurisdiction shall be resolved by the Central Government under Section
125(2) of the said Act and the decision of the Central Government would
be final.
158. In paragraph 17 of the Report this was held as follows:
G
"A conjoint reading of the above provisions shows that when a
criminal court and court-martial each have jurisdiction in respect
of the trial of the offence, it shall be in the discretion of the officer

68
(1964) 5 SCR 931
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EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 987 ·.
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

commanding the group, wing or station in which the accused is ·A
serving or such other officer as may be prescribed; in the first
instance, to decide before which court the proceedings shall be
instituted and ifthat officer decides that they should be instituted
before a "court-martial", to direct that the accused persons shall
be detained in air force custody. Thus, the option to try a person
B
subject to the Air Force Act who commits an offence while on
"active service" is in the first instance with the Air Force
Authorities. The criminal.court, when such an accused is brought
before it shall not proceed to try such a person or to inquire with
a view to his commitment for trial and shall give a notice to the
Commanding Officerof the accused, to decide whether they would c
like to try the accused by a court-martial or allow the criminal
court to proceed with the trial. In case, the Air Force Authorities
decide either not to try such a person by a court-martial or fail to
exercise the option when intimated by the criminal court within
the period prescribed by Rule 4 of the 1952 Rules (supra), the
D
accused can be tried by the ordinary criminal court in accordance
with the Code of Criminal Procedure. On the other hand if the
Authorities under the Act opt to try the accused by the 'court-
martial', the criminal court shall direct delivery of the custody of
the accused to the Authorities under the Act and to forward to the
Authorities a statement of the offence of which he is accused. It E
is explicit that the option to try the accused subject to the Act by
a court-martial is with the Air Force Authorities and the accused
person has no option or right to claim trial by a pm:ticular
forum.
F
However, in the event the criminal court is of the opinion, for
reasons to be recorded, that instead of giving option to the
Authorities under the Act, the said court should proceed with the
trial of the accused, without being moved by the competent authority
under the Act and the Authorities under the Act decide to the G
contrary, the conflict ofjurisdiction shall be resolved by the Central
Government under Section 125(2) of the Act and the decision as
to the forum of trial by the Central Government in that eventuality
shall be final."

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988 SUPREME COURT REPORTS ~[2016) 4 S.C.R.

A We may note that the provisions <;f the Criminal Courts and Court
Martial (Adjustment uf Jurisdiction) Rules, 1978 now applicable are
substantively similar to the Criminal Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1952 dealt with in Ba/bir SingIt.

159. This issue also came up for consideration in General Officer
B Commanding, Raslztriya Rifles v. Central Bureau ofInvestigation 69
where the provisions of the Armed Forces (Jammu and Kashmir) Special
Powers Act, 1990 and the AF SPA were considered. The decision arose
out a charge sheet filed in the criminal court in Srinagar on an allegation
of deaths caused by Army personnel in a fake encounter and a charge
c sheet filed in a criminal court in Kamrup on a similar allegation of deaths
caused by Army personnel in a fake encounter. In both courts the view
canvassed by the Army was that the prosecution could not be launched
without the previous sanction of the Central Government, the action
complained of was in performance of official duties and therefore the
charge sheet ought to be returned to the investigating agency.
D
160. This Court explained that institution of proceedings is required
to be understood in the context of the scheme of the Army Act and so
far as criminal proceedings are concerned institution does not mean filing,
,,resenting or initiating proceedings but it means taking cognizance of
E the offence as per the provisions of the Cr.P.C. and that cognizance
means takingjudicial notice of an offence by an application of mind to
the complaint or police report and thereafter proceeding under the
provisions of the Cr.P.C. Relying upon Matajog Dobey it was held that
the criminal court lacks jurisdiction to take cognizance of the offence
unless sanction is granted by the Central Government.
F
161. A reference was then made to Sections 125 and 126 of the
Army Act and it was held in paragraph 86 ofthc Report, following Som
Datt Datta and Balbir Singh as follows:

"Military authority may ask the criminal court dealing with the
G case that the accused would be tried by the Court Martial in view
of the provisions of Section 125 of the Army Act. However, the
option given by the authority is not final in view of the provisions
of Section 126 of the Army Act. Criminal court havingjurisdiction
to try the offender may require the competent military officer to
H •• (2012) 6 sec 22s
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 989
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

deliver the offender to the Magistrate concerned to be proceeded A
with according to law or to postpone the proceedings pending
reference to the Central Government, ifthat criminal court is of
the opinion that proceedings be instituted before itself in respect
of that offence. Thus, in case the criminal court makes such a
request, the military officer either has to comply with it or make a
B
reference to the Central Government whose orders would be final
with respect to the venue of the trial. Therefore, the discretion
exercised by the military officer is _subject to the control of the
Central Government. Such matter is being governed by the
provisions of Section 4 75 CrPC read with the provisions of the
J&K Criminal Courts and Court Martial (Adjustment of c
Jurisdiction) Rules, 1983."

162. This Court then recorded its conclusions in paragraph 95 of
the Report and they read as follows:

"95.To sum up: D
95.1. The conjoint reading_ of the relevant statutory provisions and
Rules make it clear that the term "institution" contained in Section
7 of the 1990 Act means taking cognizance of the offence and not
mere presentation of the charge-sheet by the investigating agency.
95.2. The competent army authority has to exercise his discretion E
to opt as to whether the trial could be by a Court Martial or criminal
court after filing of the charge-sheet and not after the cognizance
of the offence is taken by the court.
95.3. Facts of this case require sanction of the Central Government
to proceed with the criminal prosecution/trial. F

95.4. In case option is made to try the accused by a Court Martial,
sanction of the Central Government is not required."

163. The law is therefore very clear that if an offence is committed
even by Army personnel, there is no concept of absolute immunity from G
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 oflooking at it, but from the point of view of
a citizen, living under the· shadow of a gun that can be wieided with
impunity, outright acceptance of the proposition advanced is equally H
990 SUPREME COURT REPORTS [2016] 4 S.C.R.

A unsettling and demoralizing, particularly in a constitutional democracy
like ours.

164. 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
B punishable under the Army Act 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.
c
Issue of limitation

165. The next contention of the learned Attorney General was that
even today the Army would be entitled to hold a Court of Inquiry and
determine whether an offence had been committed by any of its
D personnel, identify the offender (if any) and then punish him in accordance
with the provisions of the Army Act. It was submitted that the issue of
limitation postulated by Section 122 of the Army Act would not come in
the way.

166. It may be mentioned that the period of limitation provided
E 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
F who committed the offence, the first day on which the identity of the
alleged offender is known to the competent authority.

167. Reference was made by the learned Attorney General to Union
ofIndia v. V.N. Singli'0 in which the allegation related to irregularities
in local purchases. It was only much later when a Staff Court oflnquiry
G gave its recommendations blaming the respondent that Court Martial
proceedings were initiated against him. This Court took the view that
the period oft imitation for convening a Court Martial would commence
from the date on which the competent authority of the respondent came
to know of the involvement of the respondent in the irregularities.
10
(201 oi s sec 579
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 991
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.]

168._Similarly, J.S. Sek/ion v. Union of India 71 concerned an A
allegation of irregularities in some purchases. It is only after a Court of
Inquiry gave an adverse recommendati!)n against the appellant that he
had defrauded the Army through irregular purchases that a Court Martial
was convened.

169. None of decisions really take us much further in understanding B
a situation such as the present in which the Army categorically says that
no offence has been committed by any of its personnel. If that be so,
there .is no question of holding any Court oflnquiry and Section 122 of
the Army Act does not even come into picture, nor does the question
whether a particular person is guilty of any offence or not. Therefore, c
even holding a Court Martial cannot arise. But ifthe Army has an open
mind on the issue, it can certainly hold a Court of Inquiry, if the law
permits it to do so at this distant point of time.

170. However, we make it clear that even if the armed forces
decide to take action and inquire into the allegations at their own level, it D
would not preclude any other inquiry or investigation into the allegations
made.

I 71. Insofar as holding a Magisterial Enquiry is concerned, the
NHRC has stated in their affidavits that the guidelines issued from time
E
to time are not being followed in their true spirit. That apart, the NHRC
has complained that the State Governments (including perhaps the State
ofManipur) 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, it
appears that the Magisterial Enquiry is not given its due importance but F
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, it may also be mentioned that the NHRC has also complained
about the poor quality of the Magisterial Enquiry reports received by it
G
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 Magisterial Enquiry conducted at the behest of the
11
(20IOJ 11 sec 586 H
992 SUPREME COURT REPORTS (2016] 4 S.C.R.

A State Government, even though it might have been conducted under
Section 176 of the Cr.P.C.

172. Therefore, we make it clear that 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
B 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 oflnquiry Act, 1952.

Conclusions
c 173. On an overall consideration of the submissions made and the
material before us, we conclude :

(a)This writ petition alleging gross violations of human rights is
maintainable in this Court under Article 32 of the Constitution.
D
(b) We respectfully follow and reiterate the view expressed by the
Constitution Bench of this Court in Naga People's Movement ofHuman
Rights that the use of excessive force or retaliatory force by the Manipur
Police or the armed forces of the Union is not permissible. As is evident
from the Dos and Don 'ts and the Ten Commandments of the Chief of
E Army Staff, the Army believes in this ethos and accepts that this principle
would apply even in an area decl~red 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.
F
(c) We respectfully follow and reiterate the view expressed by the
Constitution Bench of this Court in Naga People's Movement ofHuman
Rights that an allegation of excessive force resulting in the death of any
person by the Manipur Police or the armed forces in Manipur must be
thoroughly enquired into. For the time being, we leave it open for decision
G on who should conduct the inquiry and appropriate directions in this regard
will be given after the exercise mentioned below is ~onductecl

(d) We respectfully follow and reiterate the view expressed by this
Court that in the event of an offence having been committed by any
person in the Manipur Police or the armed forces through the use of
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 993
(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J.]

excessive force or retaliatory force, resulting in the death of any person, A
the proceedings in respect thereof can be instituted in a criminal court
subject to the appropriate procedure being fol lowed.

Further steps

174. Unfortunately, we have not been given accurate and complete B
information about each of the 1528 cases that the petitioners have
complained about. Therefore, there is a need to obtain and collate this
information before any final directions can be given: Learned Amicus
has to Id us that there are 15 cases out of 62 in which it has been held by
the Justice Hegde Commission or by judicial inquiries conducted at the c
instance of the Gauhati High Court that the encounters were faked. On
the other hand, the NHRC has informed us that there are 31 cases out
of62 in which it has been concluded thatthe encounters were not genuine
and compensation awarded to the next of kin of the victims or the award
of compensation is pending.
D
175. Therefore, as a first step, we direct:

(a)Of the 62 cases that the petitioners have documented, their
representative <tnd the learned Amicus will prepare a simple tabular
statement indicating whether in each case a judicial enquiry or an inquiry
E
by the NHRC or an inquiry under the Commissions oflnquiry Act, 1952
has been held and the result of the inquiry and whether any First
Information Report or complaint or petition has been filed by the next of
kin of the deceased. We request the NHRC to render assistance to the
learned Amicus in this regard. We make it clear that since a Magisterial
Enquiry is not ajudicialinquiry and, as mentioned above, it is not possible F
to attach any importance to Magisterial Enquiries, the tabular statement
will not include Magisterial Enquiries.

(b) The representative of the petitioners and the learned Amicus
will revisit the remaining cases ( 1528 minus 62) and carry out an identical
exercise as above. This exercise is required to be conducted for G
eliminating those cases in which there is no information about the identLty
of the victim or the place of occurrence or any other relevant detail and
then present an accurate and faithful chart of cases in a simple tabular
form.
H
994 SUPREME COURT REPORTS [2016] 4 S.C.R.

A 176. We propose to consider the grievance of the NHRC that it
has become a toothless tiger, after hearing the Union of India and the
NHRC on this important issue. We also propose to consider the nature
of the guidelines issued by the NHRC - whether they are binding or
only advisory.
B 177. For the time being we keep open the question whether Court
Martial proceedings can be initiated by the Army against an offender, if
any, to await the result of the first step as mentioned above. We are
making it clear that we have not precluded the petitioners from contesting
this issue. We are not deciding it for the time being only because full
facts are not available to us. However, ifthe law permits and the Army
c is so inclined, it may hold a Court of Inquiry in each case.
178. We record our appreciation for the assistance rendered by the
learned Amicus at every stage of hearing of the case and for the valuable
assistance rendered and expect her to continue assisting us till the closure
of this petition.
D
l 79. List the matter for further proceedings immediately after four
weeks.
Devika Gujral Listed for further proceedings.

•