All must be made to understand that deprivation of life without due process is not permissible in our legal system. Let there be fair trials in all the cases investigated by the CBI for which establishment of a special CBI court is crucial. It will not only ensure the rule of law, which is the basic foundation of every democratic government but also preserve faith of the people in criminal justice system of the country
By N Brajakanta Singh
Truth is fundamental to justice, and the discovery of truth requires a searching inquiry. An independent, efficient and speedy justice delivery system is an important facet of a modern democratic system based on rule of law. The Constitution of India, in its preamble, aims to secure to all its citizens justice – social, economic and political as one of its prime objectives. The Indian legal system also fosters a well-functioning and efficient judicial system for the protection of the fundamental rights of its people and expeditious resolution of disputes. The efficacy of courts lies not only in its ability to dispense justice but also in the timely delivery of it to the people.
The greatest strength of the judiciary is the faith people repose in it. A sense of confidence in the Courts is essential to maintain a fabric of order and liberty for a free people. Delay in disposal of cases would destroy that confidence and do incalculable damage to the society; that people would come to believe that courts cannot vindicate their legal rights. Insuring an efficient, accessible and qualitative justice represents a legitimate expectation of citizens in a society founded on the tenets of the rule of law. An efficient judicial system acquires legitimacy and respect from the citizens through an excellent functioning which results in impartial, clear and well-reasoned judgments.
Therefore, raising the level of public trust in justice, as a fundamental element of the legitimacy of any judicial system, and its efficient functioning at the service of citizens, is based on the transparency and accountability of this system. The judicial reach and plural range of the judicial process to remove injustice in a given society is an index of law-in-action. However, law and justice are also interwoven. The end of law is justice. Law seeks to give justice, but law is not justice. Justice is the ultimate goal of the society. Again, justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused.
It seems that the Supreme Court has become the last bastion of democracy in contemporary India, as it grapples with extremes of human rights and sexual violations allegedly committed by its own military and paramilitary personnel. The article explores the cases of Extra Judicial Killings or fake encounter decided by the Supreme Court of India for upholding the rule of law and protection of human rights in the state of Manipur. It also examines a judgment related to infamous BT Road fake encounter case in which the learned Sessions judge, Imphal West acquitted all the accused police personnel on technical grounds. It also made some suggestions, including establishment of a dedicated CBI court for delivering justice to families of victims of human right violations in the state.
Cases that change scenario in Manipur
In Extra Judicial Execution Victims’ Families Association v. Union of India, (2017) 8 SCC 417, the Supreme Court was dealing with a petition brought before it stating that 1528 persons had been killed in fake encounters by police and armed forces personnel in Manipur. This was a follow-up of the judgment rendered by the Supreme Court on 8th July 2016 (Extra Judicial Execution Victims’ Families Association v. Union of India, AIR 2016 SC 340) in which it had issued directions for complete information to be collected as regards each individual case and also for information as to whether a judicial inquiry, an inquiry by the National Human Rights Commission or an inquiry under the Commission of Inquiry Act had been held and the results thereof.
The Court noted the extraordinary circumstances in which, for many years, no action had been taken by the State. It rebutted the submissions of the learned Attorney General that “some of the incidents are of considerable vintage and at this point of time, it may not be appropriate to re-open the issues for investigation”. The Court observed that “merely because the State has not taken any action and has allowed time to go by, it cannot take advantage of the delay to scuttle an inquiry”. The Supreme Court observed that our constitutional jurisprudence does not permit us to shut the door on such persons and our constitutional obligation requires us to give justice and succour to the next of kin of the deceased. It was also submitted therein that since the compensation had been paid to the next of kin, it would be advisable not to proceed further in the matter. This too was rejected by the Supreme Court observing that “compensation has been awarded to the next of kin for the agony they have suffered and enable them to immediately tide over their loss and for their rehabilitation. The Supreme Court observed that this cannot override the law of the land otherwise all heinous crimes would get settled through payment of monetary compensation. The attorney General of India, on the other hand, averred that the security personnel have to act “in a particular way” on the Line of Control or during an insurgent operation. It was also contended by the Attorney General that “truth of human rights violations if any can be found through criminal trials”.
Rejecting the contention of the Attorney General a bench of Justices MB Lokur and UU Lalit observed: “It is not the Line of Control but the heart of the cities like Imphal, is what we are concerned. Public order needs to be followed.” The bench ruled that though an internal disturbance is a cause for concern, it does not threaten the security of the country. It, thus, held: “Having considered the issues in their entirety, we are of the opinion that it would be appropriate if the Central Bureau of Investigation is required to look into these fake encounters or use of excessive or retaliatory force. Accordingly, the Director of CBI is directed to nominate a group of five officers to go through the records of the cases mentioned in the three tables given above, lodge necessary FIRs and to complete the investigations into the same by 31-12-2017 and prepare charge-sheets, wherever necessary”.
Practical reality
It is a fact that the Government of India has used a two-pronged strategy to deal with militancy activities in the State. On the one hand, it has chosen to respond to the dissenting voices militarily and, on the other, it pursued administrative and political interventions. The state not only asserts violence, but also employs extrajudicial methods to clear itself of all accountability. The AFSPA survived a series of committees and commissions of inquiry that recommended its repeal. The Justice Jeevan Reddy Committee was constituted in 2005 to review the operation of the AFSPA after the brutal rape and murder of one Thangjam Manorama, a thirty two year old woman alleged to be a militant, in the custody of Assam Rifles. This unfortunate incident led to widespread protests across the state, including an iconic nude protest by twelve ‘imas’(mothers) with banners reading ‘Indian Army Rape Us’.
The Committee, observing that the AFSPA had become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness, recommended repealing the AFSPA. The Second Administrative Reforms Commission of the central government, chaired by Veerappa Moily, also recommended the repeal of the AFSPA in 2007. Again in 2013, the Justice Verma Committee, chaired by the same judge who was on the bench that decided the Naga People Movement case along with Justice Leila Seth and Gopal Subramanium, stressed the need to review the continuance of the AFSPA as soon as possible. In the same vein, the Justice Hegde Commission appointed by the Supreme Court in 2013 also observed that the AFSPA had little or no effect on insurgency in Manipur. However, the AFSPA still remains on the statute book.
According to the Extra Judicial Execution Victims’ Families Association in a Statement released on the occasion of its 11th foundation day organised on July 11, 2020, the Supreme Court had directed the CBI to complete investigation of 39 cases for which the agency had lodged FIRs. So far the CBI had submitted 14 charge sheets. Last hearing of only one case was held by the subordinate Sessions Court, Imphal West, as on March 7, 2020 and thereafter no hearing takes place due to covid-19 lockdown. There was no report of hearing of the case till today.
Undoing justice
In the meanwhile, on July 26, 2023 the Sessions Judge, Imphal West has acquitted all the police personnel accused to be involved in the infamous BT Road fake encounter case occurred on 23/07/2009 in which one Chungkham Sanjit Meitei was done to death by Manipur police commandos. The factum of the murder came to light when the Tehelka Magazine, Delhi published the sequences in an article titled “Murder in plain sight” appearing at pages 10-15 of its issue dated 08/08/2009 written by Ms. Teresa Rehman, a journalist, At the instance of the Gauhati High Court the case was entrusted to CBI for fair and complete investigation to discover the truth about the death of the victim. The fairness, effectiveness, rigour, integrity and speed of any investigation naturally determine whether justice will be done in any criminal case.
The investigation carried out by the CBI concluded that accused H. Devendra Singh (A-2), Herojit Singh(A-3) N. Toyaima Singh (A-4), W. Binoy Kumar Singh (A-5), Th. Jagat Singh (A-6), Md Imran Khan (A-7), O. Keshor Singh (A-8) and Makan Kanchung (A-9) in pursuance of their common intention to cause death of Sanjit Meitei, accosted him and led him to the store room of Social Time Emporium located at the BT Road, under the command of Inspector H Devendra Singh (A-2) where Sanjit, who was unarmed, was shot dead by head constable Herojit Singh (A3). Further, in pursuance of the common intention, Y Munal Singh (A-1), H, Devendra Singh (A-2), Herojit Singh (A-3) and N. Toyaima Singh (A-4) prepared/got prepared false and incorrect record to save or knowing it to be likely that thereby they will save H. Devendra Singh (A-2), Herojit Singh (A-3), N. Toyaima Singh (A 4), W. Binoy Kumar Singh (A-5), Th. Jagat Singh (A-6), Md Imran Khan (A-7), O. Keshor Singh (A-8) and Makan Kanchung (A-9) from legal punishment for committing the murder of Sanjit Meitei. Inspector H. Devendra singh (A-2) and HC Herojit Singh (A-3) also gave false information to City PS while lodging complaint on 23/07/2009.
The CBI as a prime prosecutor agency, in order to bring home the charges against the accused persons, produced and examined 117 prosecution witnesses. Ms. Teresa Rehman was examined as a prosecution witness and she had identified and stated that the photographs appearing in the magazine as the same photographs, which were received by her through her email. The hard copies of the Tehelka Magazine dated 08/08/2009 and also soft copy of the photographs in a CD were obtained from the Tehelka Magazine and the same was got examined by the CFSL, New Delhi which reported that none of the photographs were edited or morphed and that 7 photographs in which deceased Sanjit was seen alive surrounded by commandos have been snapped by one camera in a time span of 5 minutes i.e., the victim was alive in control of the commandos for at least 5 minutes. However, no witness turned up to own the photographs having been snapped by him. Though, wide publicity was given, no one came forward to state that the deceased Sanjit was seen alive surrounded by Commandos/police on 23/07/09 near Gambhir Singh Shopping Arcade/Maimu Pharmacy at BT Road, perhaps due to fear factor.
All the accused denied the charges made by the CBI against them. But, they did not produce any iota of evidence to prove that they had not murdered Sanjit. The learned Sessions judge observed that since the prosecution has failed to prove the photographs contained in the Tehelka Magazine (Ext P/13) published on 8.8.2009 as genuine by not producing the mandatory certificate provided under section 65B(4) of the Indian Evidence Act. One wondered why the CBI produced only the photostat copies of the photographs appearing at Tahelka Magazine, Ext P/13, (Ext P/13(A) Sl.No. 1 to 7). The learned judge opined that being Photostat copies thereof, the same were not admissible under the law unless it was proved by producing primary evidence. The trial judge also observed that except those photographs contained in Ext P/13 were not admissible in the eye of law, there was no other convincing oral or documentary evidence in order to show all the accused persons acted in excess while discharging their official duties on the fateful day. The learned judge observed that the question whether the accused persons acted in excess of their discharging official duties on 23.7.2009 was to be assessed…, only when the prime and important documents contained at Ext P/13 (Ext P/13(A) Sl.No. 1 to 7) of the Tahelka Magazine were proved to be genuine according to law.
The court further observed that ‘whatever found in the depositions against all the accused persons cannot be taken as gospel truth in evidence’. It was observed that ‘since the prosecution also admitted that all the accused persons were doing their duties as Police Officers, head constables, constable and rifleman as government servants under the state Home Department’. However, the trial court does not ruled on the genuineness or otherwise of the acts in question. The learned Sessions judge further observed that prosecution sanction under section 197 of the Cr.P.C. was mandatorily necessary in order to proceed with the present case. The learned judge ruled that “due to want of prosecution sanction under section 197 Cr.P.C. and due to lack of Certificate required under section 65B (4) of the Indian Evidence Act, all the accused persons are hereby acquitted from the present case.” It is utter failure of CBI as prosecutors to unearth the truth of the case. In my humble opinion the learned Sessions judge eludes to determine whether Sanjit was killed in a genuine encounter or not. He did not reflect in his judgment of acquittal the principle of law enshrined in Article 21 of the Constitution of India which expressly states that ‘no one shall be deprived of his life or personal liberty except according to procedure established by law’. The victim was unarmed, under the control of the accused police personnel and no exchange of firing took place at the relevant time. Thus, a practitioner of law is made to think that when justice eludes justice then no one murdered Sanjit.
The way forward
It is undeniable that the EEVFAM case pertains to allegations of serious violations of the human rights of persons described as insurgents. A large number of such persons were killed in operations carried out by the Army, the paramilitary forces and the Manipur Police. Whether the death/killing of such persons was justified or not is a matter of investigation by the special investigation team and the trials will prove it. The AFSPA should be withdrawn. It will dissuade armed personnel from unnecessarily and unmindfully resorting to violence in dealing with innocent civilians.
Opening legal avenues to the victims will ensure proper investigation of human right violations and prosecution of errant armed personnel where deemed necessary. It is high time that the High Court of Manipur as harbinger of justice should endeavour to set up a special CBI court to deliver timely justice to the victim families to sub serve the larger interest of the society and the majesty of rule of law. It may be reiterated that the purpose of the criminal trial is to dispense fair and impartial justice, uninfluenced by extraneous considerations. Expeditious disposal of the trial is also a facet of fairness of a trial and speedy trial is in fact a fundamental right. The accused persons responsible for the extrajudicial killings in the state must be brought to justice.
Bringing such offenders to justice will not pose serious challenge to law and order situation in the state. It rather would bring an atmosphere making people to believe that ours is a state governed by rule of law and not by trigger happy people. Years have passed by before they can be made answerable for the illegal acts committed by them. All must be made to understand that deprivation of life without due process is not permissible in our legal system. Let there be fair trials in all the cases investigated by the CBI for which establishment of a special CBI court is crucial. It will not only ensure the rule of law, which is the basic foundation of every democratic government but also preserve faith of the people in criminal justice system of the country. Thus, establishment of a special CBI court to be manned by experienced senior judges for trial of every CBI case is call for. If a new special CBI court is established, it will not only ensure timely disposal of CBI investigated cases of extrajudicial killings but also can repose faith in the judiciary by the families who have been demanding justice for long.
(The author is a faculty member in the Department of Law at Manipur University)