By Justice Kamaljit Singh Garewal
He hit me first, so I hit him back. This is the common excuse the school bully trots out when caught hitting a classmate. It is, after all, an act of self defence. Law does not mean anyone should be a coward. If someone slaps you, you may retaliate with a slap and not turn the other cheek. The Gandhian adage is fine in theory, but in the big bad world, things work differently.
The police executioner says much the same thing when he carries out an extra-judicial killing, which is nowadays called an “encounter”. A horrible euphemism. The dead man fired the shot first, no one in the police party was hit, but the police returned the fire and the man died. Or the dead man tried to escape from custody, so had to be killed. Such killings have not stopped, perhaps never will, because the system allows them, even sanctions them, and the law never punishes the killers. The dead man is picked up from home, thrashed at some unknown detention centre to extract a confession and shot because he was of no further utility as an informer. Then an “encounter” is stage-managed. This is just an illustration, but sadly police encounters carry the sanction of law and sometimes the system actually rewards the executioners, depending upon the dead man’s category as an ultra, a militant or a terrorist or all of the three or the dead man’s underground military rank such as major, colonel or general.
To judicially execute anyone takes years. To do it extra-judicially and extra-quickly takes a second. A well-aimed shot to the head or chest ends life in a flash. So why bother with arrest, interrogation, investigation, final report, charges, trial, death sentence, confirmation by high court, appeal, special appeal to the Supreme Court, mercy petitions to the president, loads of paper work and a huge expense. Be done with all this meaningless procedure. Just blind-fold the poor fellow and shoot him at point blank range. Finished, done and dusted in double-quick time. Let’s meet at the Mess at 7 pm and raise a glass or two to the health of the nation we saved from this ungrateful rogue.
But quick execution requires some preparation. If the executioner is unprepared, it means that he was not expecting the man to show up. The killing happened all of a sudden when the executioner was surprised. In fact, in such cases, no culpability is fastened. It’s when policemen have been forewarned that some intruders are coming down a lonely stretch of the road or a tree-lined canal bank that they wait to ambush them. And are fully prepared to down them with a lethal volley. Even then, they must be absolutely sure that the persons heading their way are the wanted men and not some people hitching a ride home. And fire only if they are certain, very certain that the vehicle coming their way is carrying the wanted men.
This is where training counts and so does utmost restraint which good training brings. The Armed Forces (Special Powers) Act, 1958, is expected to have been read, re-read and understood by all concerned. The officer must first decide whether firing at the men is necessary for maintaining public order. Then he must give a warning to the driver of the vehicle or ask him to at least stop. There are many ways in which suspicion can arise that the vehicle is carrying armed men determined to shatter public order. It is only after the officer is completely satisfied that there is imminent danger and threat to public order that command to fire should be given.
The manner in which AFSPA works can be best explained through illustrations. The moment a murder is committed or a person is shot dead by an army officer, the criminal justice system must commence with the registration of FIR and start investigation. What will happen to our rational humanism, universal brotherhood and constitutional morality if the executioners of the six unarmed men in the truck on that fateful afternoon in Nagaland are protected by AFSPA?
Let us have a look at the whole scenario from the army’s point of view. The army is by all accounts a very lethal killing machine for the defence of India, and faces outwards to watch for enemies tying to invade the country. Under ordinary circumstances, the army has no role in defending people from its own misguided militants and insurgents. For this duty, we have the police and other paramilitary forces. Should the task get too big to handle, the army moves in to tackle the situation.
When a State is declared a disturbed area by the governor, it means that it “is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”. The army is well-organised under capable officers, and well-trained to give the insurgents a heavy dose of their own medicine. But special powers are required to protect them if the law is sometimes broken by its officers, in “aid of civil power”. It is for this purpose that AFSPA was enacted in 1958 and is still continuing 63 years later. The question to be asked is why the disturbed state of affairs has remained for so long. Obviously, the policy of sending the army in aid of civil power has failed.
If the state government wants the army’s help, there must be some legal protection for the officers. This is the constant refrain from the army HQ—to save officers from prosecution should someone get shot by them in self defence or by mistake. No one can cavil because the army will not be like a Class XII bully who thrashes a Class I kid and then seeks protection because the kid hit him first. The army officer can only be prosecuted after the central government grants its sanction to prosecute him. These are the safeguards against prosecution. But there is also another safeguard. It’s the defence the officer can take at his trial. Of course, he can say that he acted in the exercise of the right of private defence given to him by Section 96 of the Indian Penal Code. He can additionally say that in a disturbed area it was necessary to shoot to maintain public order after giving due warning, relying upon provisions of AFSPA.
A few days ago in Nagaland, six simple coal miners came under fire by their own army and died. But it seems no one is going to be put to trial as the army is protected by AFSPA. So life goes on as usual. This outmoded law has been subject of many learned commissions, judgments and scholarly articles, none of which have fully endorsed the special powers law, but hedged their opinions by leaving the door ajar for the army to protect its officers. Protection for the armed forces is necessary if they are to quell an internal insurgency, but how does one pacify the families of the victims? They too must receive justice.
As Lord Atkin wrote in Liversidge vs Anderson, in 1941 in a war-time case: “In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
India is looking ahead into its fast unfolding future. But should it look away from the plight of ordinary people? Indeed, we must keep looking back to see that none gets left behind. Look back at the devastation caused to the ordinary people of Nagaland because six young unarmed miners were shot dead in broad daylight.
The policymakers must look deeply into the working of AFSPA because it does not meet contemporary standards of a fair and just procedure. This legislation is not blanket immunity, complete or partial, to the armed forces. It is only a measure of defence at the trial which the officer who gave the order to shoot and the jawan who pressed the trigger must inevitably face. One may well ask what the sessions judge is for if not to try people accused of murders in his jurisdiction and ensure justice to the families of the victims.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York