EXTRA JUDICIAL EXECUTION VICTIM FAMILIES  ASSOCIATION (EEVFAM) & ANR. versus UNION OF INDIA & ANR.
[2016] 4 S.C.R. 909, Supreme Court of India, 2016
Outcome: Directions issued
Segment: Ratio
[2016] 4 S.C.R. 909 
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
A 
ASSOCIATION (EEVFAM) & ANR. 
v. 
UNION OF INDIA & ANR. 
(Writ Petition (Criminal) No.129Of2012) 
JULYOS,2016 
[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.] 
Constitution of India: 
Arts.32, 226 - Maintainability of the writ petition - Allegation 
in writ petition that fake encounters or extra judicial executions 
carried out by Manipur police and the armed forces of the Union -
Held: In matters concerning gross violations of human rights, 
constitutional court should adopt an 'open door policy' - The 
instant case is not an ordinary case of a police complaint or a simple 
case of an FIR not being registered - This case involves allegations 
that the law enforcement authorities, that is, the Manipur Police 
along with the armed forces acting in aid of the civil power are 
themselves perpetrators of gross human rights violations - Possible 
grave injustice might be caused to the petitioners, the next of the 
kin of the victims alleged to have been killed in fake encounter or 
victims of alleged extra-judicial executions, if they are precluded, 
at the threshold, from approaching Supreme Court u/Art.32 of the 
Constitution - Therefore, petition u!Art.32 is held maintainable . . 
Art.32 - Prayer in writ petition for appropriate order for setting 
up a special investigation team (SIT) of police officers from outside 
the State of Manipur to investigate the instances of alleged extra 
iudicial executions and thereafter
prosecute the offendors in 
accordance with law - Held: An allegation of excessive force 
resulting in the death of any person by Manipur Police or the armed 
forces in Manipur must be thorougly enquired into - However. for 
the time being, matter left open for decision on who should conduct 
the inquiry - Of the 62 cases that the petitioners have documented, 
their representative and the Amicus are directed to prepare a simple 
tabular statement indicating whether in each case a judicial enquiry 
or an inquiry by the NHRC or an inquiry under the Commissions of 
Inquiry Act, 1952 has been held and the result of the inquiry and 
whether any FIR or complaint or petition has been filed by the next 
of kin of the deceased - The NHRC is requested to render assist~nce 
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SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
to the Amicus in this regard - The representative of the petitioners 
and the Amicus would revisit the remaining cases (1528 minus 62) 
and carry out an identical exercise - The grievance of the NHRC 
that it has become a toothless tiger shall be considered, ajier hearing 
the Union of India and the NHRC on this important issue -
The 
nature of the guidelines issued by the NHRC - whether they are 
binding or only advisory shall also be considered - Armed Forces 
(Special Powers) Act, 1958. 
Art.352 - Amendment of Art.352 by Constitution (Forty-fourth 
Amendment) Act, 1978 whereby words 'armed rebellion 'substituted 
for words 'internal disturbance' in clause (1) of Art. 352 - Legislative 
intent behind the amendment - Held: The intention was to limit the 
invocation of emergency powers u/Art.352 only to more serious 
situation where there is a threat to the security of the country or 
part thereof on account of war or external aggression or armed 
rebellion and to exclude the invocation of emergency powers in. 
situations of internal disturbance which are of lesser gravity -
However, proclamation of emergency could be made in the event of 
internal disturbance (not covered by Art.352) by resort to Art.356. 
Arts.352, 356 - 'armed rebellion' and 'internal disturbance' -
Distinction between - Discussed. 
Art.355; Seventh Schedule; List l; Entry 2A - Deployment of 
armed forces to aid civil power to tackle
human rights violation in 
Manipur - Held: It is the duty of Union Government to protect State 
from external aggression and internal disturbance - The public order 
situation in Manipur is, at best, an internal disturbance - There is 
no threat to the security of the country or a part thereof either by 
war or an external aggression or an armed rebellion - For tackling 
the internal disturbance, the armed forces of the Union can be 
deployed in aid of the civil power- The armed forces do not supplant 
the civil administration but only supplement it. 
Use of excessive force or retaliation and right of self defence 
- Distinction between - Held: The right of self-defence or private 
defence is a right that can be exercised to defend oneself but not to 
retaliate - While a victim of aggression has a right of private defence 
or self-defence (recognized by ss.96 to 106 of the !PC) if that victim 
exceeds the right of private defence or self-defence by using 
excessive force or retaliatory measures, he then becomes an 
aggressor and commits a punishable offence.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCJATION (EEVFAM) v. UNION OF INDIA 
Use of excessive force or retaliatory force by the Manipur Police 
or the armed forces of the Union - Permissibility - Held: ls not 
permissible - As is evident from the Dos and Don ~s and the Ten 
Commandments of the Chief of Army Staff. the Army believes in this 
ethos and accepts that this principle would apply even in an area 
declared as a disturbed area under AFSPA and against militants, 
insurgents and terrorists - There is no reason why this principle 
should not apply to the other armed forces of the Union and the 
Manipur Police -
In the event of an offence having been committed 
by any person in the Manipur Police or the armed forces through 
the use of excessive force or retaliatory force, resulting in the death 
of any person, the proceedings in respect thereof can be instituted 
in a criminal court subject to the appropriate procedure being 
followed. 
Army Act, 1950: 
s.3(x) - 'enemy' - Person carrying arms in a disturbed area 
whether included in expression 'enemy' as defined uls.3(x) - Held: 
Before a person can be branded as a militant or a terrorist or an 
insurgent, there must be the commission or some attempt or semblance 
of a violent overt act - Merely because a person is carrying arms in 
a disturbed area, he does not ipso facto become an enemy - There 
has to be something much more to brand such a person as an enemy 
- Unlawful Activities (Prevention) Act, 1967. 
Use of
excessive force against enemy - Held: Each instance 
of an alleged extra-judicial killing of even such a person would 
have to be examined or thoroughly enquired into to ascertain and 
determine the facts - In the enquiry, it might turn out that the victim 
was in fact an enemy and an unprovoked aggressor and was killed 
in an exchange of fire - But the question for enquiry would still 
remain whether excessive or retaliatory force was used to kill that 
enemy. 
Offence committed by member of armed forces - Applicable 
law - Held: If an offence is committed by Army personnel, there is 
no concept of absolute immunity from trial by the criminal court 
constituted under the Cr.P.C. -
The decision to try a person who 
has committed an offence punishable under the Army Act and who 
is subject to the provisions of the Army Act does not always or 
n~cessarily lie only with the Army - The criminal court under the 
Cr.P.C. could also try the alleged offender in certain circumstances 
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SUPREME COURT REPORTS 
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in accordance with the procedure laid down by the Cr.P.C. - In the 
event of conflict of jurisdiction, whether an alleged offender should 
be tried by a criminal court constituted under the Cr.P.C. or by the 
Court Martial constituted under the Army Act, that conflict shall be 
referred to the Central Government for passing an appropriate order 
- Code of Criminal Procedure, 197 3. 
s.122 - Offence committed by Army personnel - Limitation -
Invocation of - Held: The period of limitation provided u!s. 122 
commences from (a) the date of the offence; (b) where the commission 
of the offence was not known to the competent authority, the first 
day on which the commission of such offence comes to the 
knowledge of the competent authority; (c) when it is not known 
who committed the offence, the first day on which the identity of the 
alleged offender is known to the competent authority. 
Code of Criminal Procedure, 1973: ss.4 and 5 - Held: The 
applicability of any other special or local law or any special 
jurisdiction or power conferred or any special procedure provided 
by any other law for the time being in force shall not be affected by 
the Cr. P.C. - Unless a statute specifically provides for it, the 
investigation, enquiry, trial and other proceedings in respect of 
offences under the !PC and other laws shall be carried out in 
accordance with the provisions of the Cr.P.C. 
Penal Code, 1860: s.121 -
Waging of war - Is there a war like 
situation in Manipur - Held: The situation in Manipur has never 
been one of a war or an external aggression or an armed rebellion 
that threatens the security of the country or a part thereof - Every 
act of violence, even though it may be directed against the armed 
forces or public officials would not lead to an inference that a war 
is going on or that war-like conditions are prevailing - Similarly, 
sporadic but organized killings by militants and ambushes would 
not lead to a conclusion of the existence of a war or war-like 
conditions -
An internal disturbance is not equivalent to or akin to 
a war-like situation - There is no war or war-like situation in 
Manipur but only an internal disturbance, within the meaning of 
that expression in the Constitution. 
Words and phrases: Expression .. in aid of the civil power" -
Meaning of expression in the context of Entry 2A of List I of the 
Seventh Schedule of the Constitution.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. uNION OF INDIA 
Listing the matter for further proceedings, the Court 
HELD: 1. Maintainability of the writ petition. 
This is not an ordinary case of a police complaint or a simple 
case of an FIR not being registered. This case involves 
allegations that the law enforcement authorities, that is, the 
Manipur Police along with the armed forces acting in aid of the 
civil power are themselves perpetrators of gross human rights 
violations. This is also not a case where the ordinary criminal law 
remedy provides an adequate answer. A particular situation of 
internal disturbance has prevailed for decades and the ordinary 
citizens of Manipur have had little access and recourse to law in 
the situation that they find themselves placed in. To make matters 
worse, FIRs have been registered against the victims by the local 
police thereby leaving the next of kin of the deceased with virtually 
no remedy under the Cr.P.C. If in a case such as the present, the 
petitioners are precluded, at the threshold, from approaching this 
Court or a High Court under Article 226 of the Constitution, 
possible grave injustice would have been done to the next of the 
kin of the victims who are alleged to have been killed in a fake 
encounter or have been victims of alleged extra-judicial 
executions. This petition under Article 32 of the Constitution 
should be entertained. [Paras 79, 80] [946-G; 947-C-D] 
Hari Singh v. State of
U.P. (2006) 5 SCC 733 : 2006 (3) 
Suppl. SCR 59; Aleque Padamsee v. Union of India 
(2007) 6 sec 171 : 2001 (8) SCR 390; Sunil 
Gangadhar Karve v. State of Maharashtra (2014) 14 
SCC 48; Doliben Kantilal Patel v. State of Gujarat 
(2013) 9 SCC 447: 2013 (8) SCR 28 - referred to. 
2. Constitutional provisions 
2.1. This petition is concerned not so much with a law and 
order situation in Manipur, but a public order situation. 
Maintenance of public order falls within the jurisdiction of a State 
in view of Entry 1 of List II of the Seventh Schedule to the 
Constitution. But, the Union Government may deploy its armed 
forces in any State in aid of the civil power in terms of Entry 2A of 
List I of the Seventh Schedule to the Constitution. This has been 
the constitutional position ever since Entry 1 of List II of the 
Seventh Schedule was amended by the Constitution (Forty-second 
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Amendment) Act, 1976 and Entry 2A was inserted in List I of the 
Seventh Schedule to the Constitution by the same Amendment 
Act. What is of importance is that deployment of the armed forces 
should only be in aid of the civil power. [Paras 81, 82) [947~E-G] 
Naga Peoples Movement of Human Rights v. Union of 
India (1998) 2 SCC 109 : 1997 (5) Suppl. SCR 469 -
relied on. 
2.2. Article 352 of the Constitution finds place in Part XVIII 
of the Constitution relating to emergency provisions. This Article 
was amended by the Constitution (Forty-fourth Amendment) Act, 
1978 and the important amendment is the substitution of the 
words 'armed rebellion' by the words 'internal disturbance' in 
clause (1) of Article 352 of the Constitution. The expression 
"internal disturbance" has a wider connotation than "armed 
rebellion" in the sense that "armed rebellion" is likely to pose a 
threat to the security of the country or a part thereof, while 
"internal disturbance", though serious in nature, would not pose 
a threat to the security of the country or a part thereof. The 
intention underlying the substitution of the word "internal 
disturbance" by the word "armed rebellion" in Article 352 is to 
limit the invocation of the emergency powers under Article 352 
only to more serious situations where there is a threat to the 
security of the country or a part thereof on account of war or 
external aggression or armed
rebellion and to exclude the 
invocation of emergency powers in situations of internal 
disturbance which are of lesser gravity. To put it negatively, an 
internal disturbance is not a ground for a proclamation of 
emergency under Article 352 of the Constitution. However, a 
proclamation of emergency could be made in the event of an 
internal disturbance (not covered by Article 352 of the 
Constitution) by resort to Article 356 of the Constitution. There 
is, therefore, a clear distinction between an armed rebellion that 
threatens the security of the country or a part thereof and an 
internal disturbance. The former comes within the purview of 
Article 352 and Article 356 while the latter comes within the 
purview only of Article 356 and not Article 352. [Paras 83 to 86] 
(948-A-B; 949-A-D; 950-C) 
2.3. Article 355 of the Constitution makes it the duty of the 
Union Government to protect a State from external aggression
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
and internal disturbance. By necessary implication, an external 
aggression for this purpose includes a war and an armed rebellion 
that threatens the security of the country or a part thereof. 
Therefore, there are four situations: war, external aggression 
and armed rebellion, all of which can threaten the security of the 
country or a part thereof and fourthly an internal disturbance. In 
providing protection against an internal disturbance, the Union 
Government is entitled and empowered to deploy the armed 
forces of the Union under Entry 2A of List I of the Seventh 
Schedule to the Constitution "in aid of the civil power". The 
conclusion, therefore, is that in the event of a war, external 
aggression or an armed rebellion that threatens the security of 
the country or a part thereof, it is the duty of the Union 
Go.-ernment to protect the States and depending on the gravity 
of the situation, the President might also issue a proclamation of 
emergency. That apart, the Union Government also has a duty to 
protect the States from an internal disturbance. However, the 
President cannot, in the event of the latter situation, issue a 
proclamation of emergency except by using the drastic power 
under Article 356 of the Constitution which has in-built checks 
and balances. [Paras 87, 88] (950-F-G; 951-A-C] 
2.4. The armed forces of the Union could be deployed in 
public order situations to aid
the civil power and on such 
deployment, they shall operate in cooperation and conjunction 
with the civil administration and until normalcy is restored. If 
normalcy is not restored for a prolonged or indeterminate period, 
it would be indicative of the failure of the civil administration to 
take effective aid of the armed forces in restoring normalcy or 
would be indicative of the failure of the armed forces in effectively 
aiding the civil administration in restoring normalcy or both. 
Whatever be the case, normalcy not being restored cannot be a 
fig leaf for prolonged, permanent or indefinite deployment of the 
armed forces (particularly for public order or law and order 
purposes) as it would mock at our democratic process and would 
be a travesty of the jurisdiction conferred by Entry 2A of the 
Union List for the deployment of the armed forces to normalize a 
situation particularly of an internal disturbance. [Para 91] (952-
G; 953-A-C] 
3. Statutory provisions 
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3.1. (i) The Armed Forces (Special Powers) Act, 1958 
The Armed Forces (Special Powers) Act, 1958 (AFSPA) was 
originally enacted as the Armed Forces (Assam and Manipnr) 
Special Powers Act, 1958. It was initially extended to the State of 
Assam and the Union Territory of Manipur. Since then the entire 
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Union Territory of Manipur (and subsequently the entire State of 
Manipur) has been declared a disturbed area in terms of Section 
3 of t,he AFSPA. In other words, Manipur bas been a disturbed 
area for about sixty years. The postulates for a declaration under 
Section 3 of the AFSPA are that a public order situation exists 
and that the assistance of the armed forces of the Union is required 
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in aid of the civil power. In snch a situation, the AFSPA enables 
the armed forces of the Union to exercise vast powers. One of 
the vast powers exercisable by the armed forces of the Union in 
a disturbed area is in terms of Section 4(a) of the AFSPA. The 
power so exercisable includes the use of force even to the extent 
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 
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order in a disturbed
area and is to be exercised under definite 
circumstances that is: (i) after giving such due warning as the 
authorized officer may consider necessary; (ii) the alleged 
offender is acting in contravention of any law or order in force in 
the disturbed area which (a) prohibits the assembly of five or 
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more persons or (b) prohibits the carrying of weapons or of things 
capable of being used as weapons or of fire-arms, ammunition or 
explosive substances. [Paras 93 to 96] (953-G-H; 954-A, C-E; 
955-A-BJ 
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(ii) Code of Criminal Procedure, 1973 
Section 4 and 5 of the Cr.P.C. concern with investigation, 
enquiry, trial and other proceedings in relation to offences under 
the Indian Penal Code, 1860 and other laws. However, this does 
not preclude any enactment regulating the manner or place of 
investigating, inquiring into, trying or othenvise dealing with such 
offences. Further, the applicability of any other special or local 
law or any special jurisdiction or power conferred or any special
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
procedure provided by any other law for the time being in force 
shall not be affected by the Cr. P.C. For example, there are special 
requirements for dealing with juveniles in conflict with law and 
therefore that special law would be applicable to those juveniles 
to the extent it provides for the investigation, enquiry or 
procedure different from the Cr.P.C. In other words, unless a 
statute specifically provides for it, the investigation, enquiry, trial 
and other proceedings in respect of offences under the IPC and 
other laws shall be carried out in accordance with the provisions 
of the Cr.P.C. [Para 98) [955-E; 956-A-D] 
(iii) The Unlawful Activities (Prevention) Act, 1967 
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is 
concerned, inter alia, with cession and secession of a part of the 
territory of India and terrorist activities. In terms of Section 15 
of the UAPA, a terrorist act is one that threatens or is likely to 
threaten, amongst others, the unity, integrity, security or 
sovereignty of India or intends to strike terror or is likely to 
strike terror in the people or any section of the people by any 
one of the activities mentioned in the section such as using bombs 
or firearms or other lethal weapons that cause or are likely to 
cause death or injury. ·[Paras 99, 101) [956-E; 957-B) 
(iv) The Army Act, 1950 
A person subject to the Army Act, 1950 (Army Act) is
said 
to be in active service if that person is, inter alia, attached to or 
forms a part of a force engaged in an operation against an enemy. 
There is no dispute that the Army personnel in Manipur are on 
active service. An 'enemy' is inclusively defined as armed 
mutineers, armed rebels, armed rioters, pirates and any person 
in arms against whom it is the duty of any person subject to military 
law to act. The enemy must be armed. The Army Act also provides 
for offences in relation to the enemy which are punishable with 
death, offences not punishable with death and offences that are 
more severely punishable while on active service. The significance 
of these provisions is best understood in the background of the 
submission that under the AFSPA, the armed forces are entitled 
while maintaining public order in a disturbed area to cause the 
death of an enemy, that is a militant, terrorist, insurgent, 
underground element or secessionist who belongs to or is 
associated with a terrorist organization or terrorist gang or 
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SUPREME COURT REPORTS 
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unlawful association and is threatening or is likely to threaten 
the unity, integrity, security or sovereignty oflndia. For an offence 
committed by a person subject to the Army Act, the alleged 
offender may be tried by a Court Martial but the period of 
limitation for the trial of such an alleged offender is regulated by 
Section 122 of the Army Act. Section 125 and Section 126 of the 
Army Act are of considerable importance in this context and as 
far as this case is concerned. These Sections ought to be read in 
conjunction with Section 4 and Section 5 of the Cr.P.C. These 
Sections provide that when both a criminal court and a Court 
Martial have jurisdiction in respect of an offence, the first option 
would be with the Army to decide whether the accused person 
should be proceeded against in a criminal court or before a Court 
Martial. However, if the criminal court is of opinion that the 
proceedings should be instituted before itself, it may require the 
Army to send the alleged offender to the nearest Magistrate to 
be proceeded against or to postpone the proceedings pending a 
reference to the Central Government. In other words, in the 
event of a conflict of jurisdiction, whether an alleged offender 
should be tried by a criminal court constituted under the Cr.P.C. 
or by a Court Martial constituted under the Army Act, that conflict 
shall be referred to the Central Government for passing an
appropriate order. The Criminal Courts and Court Martial 
(Adjustment of Jurisdiction) Rules, 1978 provide, inter alia, that 
when a person subject to the Army Act·ois brought before a 
Magistrate and is charged with an offence also triable by a Court 
Martial, then such Magistrate shall not proceed to try that person 
or commit the case to the Court of Session unless he is moved 
thereto by a competent Army authority or the Magistraterecords 
his opinion in writing that he should so proceed without being so 
moved. In the latter event, the Magistrate shall give a written 
notice of fifteen days to the Commanding Officer of that person 
and shall until then effectively stay his hands. In the event a 
Magistrate concludes that a person subject to the Army Act has 
committed an offence triable by the Magistrate but the presence 
of such a person cannot be procured except through the 
competent Army authority, then the Magistrate "may by a written 
notice require the Commanding Officer of such person either to 
deliver such person to a Magistrate to be named in the said notice
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
for being proceeded against according to law, or to stay the 
proceedings against such person before the Court Martial ....•. 
and to make a reference to the Central Government for 
determination as to the court before which proceedings should 
be instituted. [Paras 103 to 108) [958-C; 959-A-D; 960-A-E; 961-
A-C) 
4. Is there a war-like situation in Manipur? 
4.1. There is no doubt from the records of the case that 
Manipur has been and is facing a public order situation equivalent 
to an internal disturbance. The tragedy is that this situation has 
continued since 1958 - for almost 60 years. However, the situation 
in Manipur has never been one of a war or an external aggression 
or an armed rebellion that threatens the security of the country 
or a part thereof. That is not anybody's case at all nor has it even 
been suggested. [Paras 110, 111) [962-E, H; 963-A-B) 
4.2. The animus to wage a war or any other similar activity 
is important before a non-conventional war or war-like situation 
can be said to exist. Every act of violence, even though it may be 
directed against the armed forces or public officials would not 
lead to an inference that a war is going on or that war-like 
conditions are prevailing. Similarly, sporadic but organized killings 
by militants and ambushes would not lead to a conclusion of the 
existence of a war or war-like conditions. Were such a blanket 
proposition
accepted, it would reflect poorly on our armed forces 
that they are unable to effectively tackle a war-like situation for 
the last almost six decades. It would also reflect poorly on the 
Union oflndia that it is unable to resort to available constitutional 
provisions and measures to bring a war-like situation under control 
for almost six decades. In such a situation, our Constitution 
recognizes only an internal disturbance, which is what the situation 
in Manipur is and that ought to be dealt with by the civil 
administration with the services of the armed forces that are 
available in aid of the civil power. An internal disturbance is not 
equivalent to or akin to a war-like situation. There is no war or 
war-like situation in Manipur but only an internal disturbance, 
within the meaning of that expression in the Constitution - nothing 
more and nothing less. [Paras 115, 116) [966-A-E) 
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 
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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 
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IPC) if that victim exceeds the right of private defence or self-
defence by using excessive force or retaliatory measures, he then 
becomes an aggressor and commits a punishable offence. 
Unfortunately occasionally, use of excessive force or retaliation 
_leads to the death of the original aggressor. When the State uses 
such excessive or retaliatory force leading to death, it is referred 
to as an extra-judicial killing or an extra-judicial execution or as 
this Court put it in *People's Union for Civil Liberties v. Union 
of India and another it is called "administrative liquidation". 
Society and the courts obviously cannot and do not accept such a 
death caused by the State since it is destructive of the rule of law 
and plainly unconstitutional. [Paras 118, 122] (966-H; 967-A; 968-
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 
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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 
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when the victims are alleged to be militants, insurgents or 
terrorists. In such cases, how does anyone (including the court) 
assess the degree of force required in a given situation and 
whether it was excessive and retaliatory or not? Scrutiny by the 
courts in such cases leads to complaints by the State of its having 
to fight militants, insurgents and terrorists with one hand tied 
H
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
· ASSOCIATION (EEVFAM) v. UNION OF INDIA 
behind its back. This is not a valid criticism since, and this is 
important, in such cases it is not the encounter or the operation 
that is under scrutiny but the smoking gun that is under scrutiny. 
There is a qualitative difference between use of force in an 
operation and use of such deadly force that is akin to using a 
sledgehammer to kill a'fly; one is an act of self-defence while the 
other is an act of retaliation. Causing the death of a person is 
certainly an offence, but whether there was a "reasonable 
connection" between the death and the official act or whether 
excessive force or retaliatory force was used in the act has to be 
determined at an appropriate stage. It does not matter whether 
the victim was a common person or a militant or a terrorist, nor 
does it matter whether the aggressor was a common person or 
the State. The law is the same for both and is equally applicable 
to both. The decision of the Constitution Bench in Naga People's 
Movement of Human Rights requires that every death caused 
by the armed forces, including in the disturbed area of Manipur 
''should be thoroughly enquired into" if there is a complaint or 
allegation of abuse or misuse of power. This is the r~quirement 
of a democracy and the requirement of preservation of the rule 
of law and the preservation of individual liberties. [Paras 123, 
125, 126] [Para 135) [968-G; 969-A-B; 970-C-D, G;
974-G] 
Matajof{ Dobey v. HC. Bhari (1955) 2 SCR 925; Om 
Prakash v. State of Jharkhand (2012) 12 SCC 72 : 2012 
(9) SCR 125 K. Satwant Singh v. State of Punjab (1960) 
2 SCR 89; State of Orissa v. Ganesh Chandra Jew 
(2004) 8 SCC 40 : 2004 (3) SCR 504; State of 
Maharashtra v. Saeed Sohail Sheikh (2012) 13 SCC 
192 : 2012 (11) SCR 916 - relied on. 
6. Retaliation against an enemy 
6.1. Before a. person can be branded as a militant or a 
terrorist or an insurgent, there must be the commission or some 
attempt or semblance of a violent overt act. A person carrying a 
weapon in a disturbed area in violation of a prohibition to that 
effect cannot be labeled a militant or terrorist or insurgent. 
Significantly, the word 'enemy' is used in conjunction with the 
word 'alien' in Article 22 of the Constitution. But the Army Act 
provides for a broader and more inclusive meaning. Nevertheless, 
it inherently connotes an overt or covert act of violence or air 
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imminent act of violence or such an attempt by any armed person. 
There can be little doubt that 'armed mutineers' and 'armed 
rebels' by definition deal in violence. Section 146 of the IPC 
explains rioting as use of force or violence by an unlawful assembly 
or by any member thereof in prosecution of the common object 
of such assembly. Similarly, an act of piracy inherently involves 
violence. Therefore, merely because a person is carrying arms 
in a disturbed area, he does not ipso facto become an enemy. 
There has to be something much more to brand such a person as 
an enemy. That a person is not a mere law-breaker but an enemy 
can be determined only by a thorough enquiry. [Paras 139, 142) 
(976-B-C; 977-E-D; 978-E] 
6.2. In cases such as the present, there is a greater duty of 
care and an equally greater necessity of a thorough enquiry since, 
the alleged 'enemy' in this case is a citizen of our country entitled 
to all fundamental rights including under Article 21 of the 
Constitution. Ordinarily our armed forces should not be used 
against our countrymen and women. If members of our armed 
forces are deployed and employed to kill citizens of our country 
on the mere allegation or suspicion that they are 'enemy' not 
only the rule of law but our democracy would be in grave danger. 
It is wrong to say that a person carrying weapons in violation of 
prohibitory orders in the disturbed area of
Manipur is ipso facto 
an enemy or that the security forces in Manipur in such a case 
are dealing with an 'enemy' as defined in Section 3(x) of the Army 
Act. Each instance of an alleged extra-judicial killing of even 
such a person would have to be examined or thoroughly enquired 
into to ascertain and determine the facts. In the enquiry, it might 
turn out that the victim was in fact an enemy and an unprovoked 
aggressor and was killed in an exchange of fire. But the question 
for enquiry would still remain whether excessive or retaliatory 
force was used to kill that enemy. [Paras 143, 144) (978-F-G; 
979-C-F) 
Indra Das v. State of Assam (2011) 3 SCC 380 : 2011 
(4) SCR 289; Arup Bhuyan v. State of Assam (2011) 3 
SCC 377 : 2011 (2) SCR 506; Union of India v. Tulsiram 
Patel (1985) 3 SCC 398 : 1985 (2) Suppl. SCR 131; 
Shivaji Atmaji Sawant v. State of Maharashtra (1986) 
2 sec 112 : 1986 (1) SCR 300 - relied on.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
6.3. Killing an 'enemy' is not the only available solution and 
that is what the Geneva Conventions and the principles of 
international humanitarian law tell. Equally importantly, the 
instructions issued by the Army Headquarters under the caption: 
"List of Dos and Don'ts while acting under the Armed Forces 
(Special Powers) Act, 1958" read with "List of Dos and Don'ts 
while providing aid to civil authority" restrain the Army from using 
excessive force. Therefore, even while dealing with the 'enemy' 
the rule of law would apply and if there have been excesses beyond 
the call of duty, those members of the Manipur Police or the 
armed forces who have committed the excesses which do not 
have a reasonable connection with the performance of their official 
duty would be liable to be proceeded against. [Para 149) [981-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 
(and which are binding on the armed forces) that minimum force 
is to be used even against terrorists, militants and insurgents. 
This is very much in tune with international .law even in times of 
war when the Geneva Conventions and the principles of 
international humanitarian law are applicable. There is absolutely 
no reason why an equally toned down response cannot be given 
by our
armed forces in times of internal disturbances and why no. 
enquiry should be held if the response is alleged to be 
disproportionate. [Para 151) [982-C; 983-C-D) 
8. Army Act and the Cr.P.C.The law is very clear that if an 
offence is committed even by Army personnel, there is no concept 
of absolute immunity from trial by the criminal court constituted 
under the Cr.P.C. To contend that this would have a deleterious· 
and demoralizing impact on the security forces is certainly one 
way of looking at it, but from the point of view of a citizen, living 
under the shadow of a gun that can be wielded with impunity, 
outright acceptance of the proposition advanced is equally 
unsettling and demoralizing, particularly in a constitutional 
democracy like ours. The result of the interplay between Section 
4 and Section 5 of the Cr.P.C. and Sections 125 and 126 of the 
Army Act makes it quite clear that the decision to try a person 
who has committed an offence punishable under the Army Act 
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and who is subject to the provisions of the Army Act does not 
always or necessarily lie only with the Army - the criminal court 
under the Cr.P.C. could also try the alleged offender in certain 
circumstances in accordance with the procedure laid down by 
the Cr.P.C. [Paras 163, 164) [989-G-H; 990-A-C) 
Balbir Singh v. State of Punjab (1995) 1 SCC 90 : 1994 
(5) Suppl. SCR 422; Som Datt Datta v. Union of India 
(1969) 2 SCR 177; Ram S111arup i: Union India (1964) 
5 SCR 931; General Officer Commanding, Rashtriya 
Rifles v. Central Bureau of Investigation (2012) 6 SCC 
228 : 2012 (5) SCR 599 - relied on. 
9. Issue of limitation 
The period of limitation provided under Section 122 of the 
Army Act commences from (a) the date of the offence (the 
commission of which is denied in the present case); (b) where 
the commission of the offence was not known to the competent 
authority, the first day on which the commission of such offence 
comes to the knowledge of the competent authority; (c) when it 
is not known who committed the offence, the first day on which 
the identity of the alleged offender is known to the competent 
authority. [Para 166) [990-E-F] 
10. Insofar as holding a Magisterial Enquiry is concerned, 
the NHRC has stated in their affidavits that the guidelines issued 
from time to time are not being followed in their true spirit. That 
apart, the NHRC has complained that the State Governments
invariably take more than reasonable time to submit important 
documents such as the port-mortem report, inquest report and 
the ballistic expert report as well as the Magisterial Enquiry 
report. Therefore, the Magisterial Enquiry is not given its due 
importance but in any event since it is an administrative enquiry 
· (which is apparently conducted in a casual manner) and not a 
judicial enquiry, not much credence can be attached to the 
Magisterial Enquiry report. In this context, the NHRC has also 
complained about the poor quality of the Magisterial Enquiry 
reports received by it and it is pointed out that in some instances 
the family of the person killed is not examined nor any 
independent witness is examined by the Magistrate. That being 
the position, it is not possible to attach any importance to the
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
Magisterial Enquiry conducted at the behest of the State 
Government, even though it might have been conducted under 
Section 176 of the Cr.P.C. Therefore, even if the State 
Government decides to hold Magisterial Enquiries and take 
suitable action on the report given, it would not preclude any 
other inquiry or investigation into the allegations made. In 
situations of the kind that we are dealing with, there can be no 
substitute for a judicial inquiry or an inquiry by the NHRC or an 
inquiry under the Commissions of Inquiry Act, 1952. [Paras 171, 
172] [991-E-H; 992-A-B] 
Union of India v. V.N Singh (2010) 5 SCC 579 : 2010 
(4) SCR 454; J.S. Sekhon " Union of India (2010) 11 
SCC 586 : 2010 (9) SCR 1025; Peoples Union for 
Civil Liberties v. Union of India (2004) 9 SCC 580 : 
2003 (6) Suppl. SCR 860 - relied on. 
11. Further steps: Of the 62 cases that the petitioners have 
documented, their representative and the Amicus will 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 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 
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 
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 
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 
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(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 of Assam (2012) 2 SCC 34 : 2011 (16) SCR318; 
United Provinces v. Atiqa Begum (1940) FCR 110 
-
referred to. 
Case Law Reference 
1991 (2) Suppl. SCR 370 
referred to 
2005 (2) Suppl. SCR 79 
relied on 
2013 (1) SCR 140 
referred to 
2011 (16) SCR 318 
referred to 
2006 (3) Suppl. SCR 59 
referred to 
2007 (8) SCR 390 
referred to 
(2014) 14 sec 48 
referred to 
2Q~3 (8) SCR 28 
referred to 
1997 (5) Suppl. SCR 469 
relied on 
(1940) FCR 110 
referred to 
1997 ( 2) SCR 1012 
relied on 
2005 (2) SCR 536 
relied on 
(2013) 14 sec 290 
relied on 
2010 (1) SCR 642 
relied on 
1997 (1) SCR 923 
relied on 
(1955) 2 SCR 925 
relied on 
2012 (9) SCR 125 
relied on 
(1960) 2 SCR 89 
relied on 
2004 (3) SCR 504 
relied on 
2012 (11) SCR 916 
relied on 
2011 (4) SCR 289 
relied on 
2011 (2) SCR 506 
relied on 
1985 (2) Suppl. SCR 131 
relied on 
1986 (1) SCR 300 
relied on 
2003 (6) Suppl. SCR 860 
referred to 
1994 (5) Suppl. SCR 422 
relied on 
0969) 2 SCR 177 
relied on 
0964) 5 SCR 931 
relied on 
2012 (5) SCR 599 
relied on · 
2010 (4) SCR 454 
referred to 
2010 (9) SCR 1025 
referred to 
Para 37 
Para 37 
Para 67 
Para 75 
Para 78 
Para 78 
Para 78 
Para 78 
Para 84 
Para 90 
Para 118 
Para 119 
Para 120 
Para 121 
Para 122 
Para 125 
Para 127
Para 127 
Para 127 
Para 129 
Para 140 
Para 140 
Para 142 
Para 142 
Para 146 
Para 153 
Para 154 
Para 156 
Para 159 
Para 167 
Para 168
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES 
ASSOCIATION (EEVFAM) v. UNION OF INDIA 
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) 
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. 
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, 
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 
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 
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 
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 
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 
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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 
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 
enforced disappearances, it has been gradually extended to other 
serious human rights violations, such as extra judicial 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 
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 
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 
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. 
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 
agenda
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
alleged that a majority of them have been carried out in cold blood while 
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 
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 
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 
(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. 
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 
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 
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. 
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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 
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. 
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 
Union of India on 151h 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 
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 
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 
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 
while on such deployment.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
indulging in extortion so as to promote their ideology and goals. These 
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 
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 
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 
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 
strictly and observe restraint in their operations. 
15. lt is submitted that a review of the 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 
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 
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 
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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 
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 
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E 
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(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. 
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 
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 
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.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.) 
20. It is pointed out that the militant groups take advantage of 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 
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 
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 
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 
933 
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on J 71h 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 
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 
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 
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(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 
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 
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 151h December, 2012 in W.P. (C) No. 455 of 2012. The second is an 
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
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 
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 
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 
' Referred to later.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
sections allow the use of force, including by the armed forces, to disperse 
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 
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. 
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 
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 
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 
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 
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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. 
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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 
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. 
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 
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 
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 of lndia8 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 
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/tu9 
wherein it is held that under Section 121 of the !PC 'war' is not 
contemplated as conventional warfare between two nations. Organizing 
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 
'(2005J 11 sec 600 
•
EXTRA JUDICIAL EXECUTION VICTIM fAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J.] 
Affidavits filed by the State of Manipur 
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 
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 
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 
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 
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 
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 
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 
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SUPREME COURT REPORTS 
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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 
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 
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 
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 
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 
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 
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 
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. 
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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 
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 
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, 
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 
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 
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 
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) 
to the petitioner or his representative.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
54. In the second affidavit dated 3rd January, 2013 it is stated that 
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. 
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 
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 
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 J 4th 
June, 2011 has refused to conduct a Magisterial Enquiry in case of police·· 
encounters and has clearly
stated that ifthe Home Department is satisfied 
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 
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 
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-
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[20,16] 4 S.C.R. 
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 
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 
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 
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 
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 
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 
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
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 
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 
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 
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 
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 
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 
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 
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[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. 
c 
D 
E 
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 
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 
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 
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 
The deceased did not die in an encounter. 
F 
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. 
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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 
v. State of Assam'~ 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 
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 
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 
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 
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. 
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 
1' (2014) 14 sec 48 
1" (2013) 9 sec 447
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
prevailed for decades and the ordinary citizens of Manipur have had 
little access and recourse to law in the situation that they find themselves 
placed in. To make matters worse, FIRs have been registered against 
the victims by the local police thereby leaving the next of kin of the 
deceased with virtually no remedy under the Cr.P.C. 
80. This case immediately brings to mind the view expressed by 
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 
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. 
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 
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 
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 
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. 
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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 
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 
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 
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 
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 
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 
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. 
!" (1998) 2 sec 109
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
been substituted by the words "armed rebellion". The expression 
"internal disturbance" has a wider connotation than ·'armed 
rebellion" in the sense that "armed rebellion" is likely to pose a 
threat to the security of the country or a part thereof, while 
"internal disturbance", though serious in nature, would not pose a 
threat to the security of the country or a part thereof. The intention 
underlying the substitution of the word "internal disturbance" by 
the word "armed rebellion" in Article 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 
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 
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 of H uma11 Rights in the following 
words: 
"There can be a situation arising out of
internal disturbance which 
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-
(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 
949 
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under the authority of Parliament: 
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( 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] 
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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 
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 
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 
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. 
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 
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 
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 
(EEVFAM) v. UNION OF INDIA [MADAN 8. LOKUR, J.] 
Entry 2A of List I of the Seventh Schedule to the Constitution "in aid of 
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 
also issue a proclamation of emergency. That apart, the Union 
Government also has a duty to protect the States from an internal 
disturbance. However the President cannot, in the event of the latter 
situation, issue a proclamation of emergency except by using the drastic 
power under Article 356 of the Constitution which has in-built checks 
and balances. 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 Nag a People's Movement of Human Rig/its the Constitution 
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 
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 
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 
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 
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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. 
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 
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 
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 
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 
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 
"(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.
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 
forces in effectively aiding the civil administration in restoring normalcy 
or both-. Whatever be the case, normalcy not being restored cannot be a 
8 
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 
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 
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. 
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 
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 
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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. 
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 
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 
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 
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 
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.-
( 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].
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
96. Clearly, the power to cause death is relatable to maintenance 
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 
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 
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 
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. 
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 
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 
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. 
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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 
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 
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 
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 
H 
311 (m) "terrorist organisation" means an organisation listed in the Schedule or an 
organisation operating under the same name as an organisation so listed:
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
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(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),-
(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: 
"(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 
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 
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 
(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 
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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. 
(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, 
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 
(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 
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 
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, 
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-
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
must be armed. 
104. The Anny Act also provides for offences in relation to the 
enemy which are punishable with death,36 offences not punishable with 
death37 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 
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. 
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 
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 
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 
(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; 
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(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 
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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 
a Court Martial. However, if the criminal court is of opinion that the 
proceedings should be instituted before itself, it may require the Army to 
send the alleged offender to the nearest Magistrate to be proceeded 
against or to postpone the proceedings pending a reference to the Central 
Government. In other words, in the event of a conflict of jurisdiction, 
whether an alleged offender should be tried by a criminal court constituted 
under the Cr.P.C. or by a Court Martial constituted under the Army Act, 
that conflict shall be referred to the Central Government for passing an 
appropriate order. 
I 07. In this context, it is necessary to refer to the Criminal Courts 
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 
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 
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 
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.

EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
writing that he should so proceed without being so moved.'0 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." 
108. In the event a Magistrate concludes that a person subject to 
the Army Act has committed an offence triable by the Magistrate but 
the presence of such a person cannot be procured except through the 
competent Army authority, then the Magistrate "may by a written notice 
require the Commanding Officer of such person either to deliver such 
person to a Magistrate to be named in the said notice for being proceeded 
against according to law, or to stay the proceedings against such person 
before the Court Martial ...... and to make a reference to the Central 
Government for determination as to the court before which proceedings 
should be instituted."'~ 
'°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 
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. 
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 
(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, 
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. 
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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 
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. 
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 
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 
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 
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 
solution to the festering problem, with a little consideration from all 
quarters. It is never too late to bring peace and harmony in society. 
1 I 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.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
No such declaration has been made by the Union oflndia-explicitly or 
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 
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. 
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 
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 
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. 
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 
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: 
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"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 
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 
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 
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
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 
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. 
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 
resulting in destruction of public properties, etc., and all
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
acts of violent resistance to the armed personnel to achieve 
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" 
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 
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 
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 
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 
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 
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 
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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 
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 
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 
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 
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 
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 
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 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J .] 
Very simply put, the right of self-defence or private defence is a right 
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 
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: 
"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 
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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 of Harym1a-l8 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. 
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 
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 
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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: 
"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 
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 
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 
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 
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 
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
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN 8. LOKUR, J.] 
hand tied behind its back. This. is not a valid criticism since, and this is 
important, in such cases it is not the encounter or the operation that is 
under scrutiny but the smoking gun that is under scrutiny. There is a· 
qualitative difference between use of force in an operation and use of 
such deadly force that is akin to using a sledgehammer to kill a fly; one 
is an act of self-defence while the other is an act of retaliation. 
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: 
"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 
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 
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 
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. 
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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 
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SUPREME COURT REPORTS 
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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 
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 
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 
expressed the following view in Naga People's Movement of Human 
Rig/its in paragraph 61 of the Report: 
E. 
"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 
armed forces it is necessary that a complaint containing an 
allegation about misuse or abuse of the powers conferred under 
F 
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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 
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 
complaint or allegation ofabuse or misuse of power. All ofus are bound 
by this direction of the Constitution Bench which has been given to assure 
. the people that there is no abuse or misuse of power by the armed 
forces.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] -
127. Om Prakash v. State of Jflarkltand53 dealt with an alleged 
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 
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 
971 
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was held, relying upon K. Satwant Sin1:1t v. State of Punja'h54 and State· 
C 
of Orissa v. Ganeslt Chandra Jew55 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 
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 
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, 
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 
sometimes required to take drastic action against criminals to 
"(2012) 12 sec n 
"(1960) 2 SCR 89 
"(2004) s sec 40 
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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 
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. 
129. Similarly, fo State of Maltaraslttra 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. 
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. 
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 
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 
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.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
"In a country governed by 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. 
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 
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." 
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 
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. 
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: 
"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 
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 
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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 
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 
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 
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." 
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 
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 
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,
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
it was submitted that though the enquiry may be internal, it is nevertheless 
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 
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 
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 
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. 
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 
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 
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 
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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'. 
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 
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 
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). 
140. Similarly, though in a slightly different context, it was held by 
this Court in Indra Das v. State of Assam59 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 
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 
" Digest of Criminal Law by Sir James Stephen 
"(2011) 3 sec 380 
'°(2011) 3 sec 377
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF lNDIA [MADAN B. LO KUR, J.] 
imminent violence, or does an act intended to create disorder or 
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 
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 
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. 
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 
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 of Malum1shtra.
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 
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: 
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. 
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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; 
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(ii) against a ship, aircraft, persons or property in a place outside 
the jurisdiction of any State; 
(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 
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 
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 
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 of Human 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 
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
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
forces. A situation of internal disturbance involving the local 
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 
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 
'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 
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
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. 
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 
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 
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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 
us in the face are grave. In People's Union/or Civil Liberties v. Union 
of India6" 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 
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 
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 
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 
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 
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 of the constitutional democracy 
that we have adopted, however, is that whatever be the challenges 
"'(2004) 9 sec 580
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
posed by such dark forces, the country's commitment to the rule 
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 
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 
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 
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, 
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 
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 
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 
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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 
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 
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 
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. 
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 
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 
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
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 
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 
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 
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. 
"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 
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. 
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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 
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 Imlia67 
a Constitution Bench of this Court was concerned with a challenge to a 
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 
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; 
(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 
(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 
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
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF !NOIA [MADAN B. LOKUR, J.] 
committed by the accused while in active service. 
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 
mentioned in Section 125 to decide before which forum the proceedings 
shall be instituted. I fit 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 
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 
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 
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 
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 
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 of jurisdiction, having 
regard to the exigencies of the situation in any particular case." 
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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. 
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. 
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 
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 
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 
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: 
"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
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 
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 
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 
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 
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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 
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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. 
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 
F 
trial of the accused, without being moved by the competent authority 
under the Act and the Authorities under the Act decide to the 
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contrary, the conflict of jurisdiction 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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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 Sing It. 
159. This issue also came up for consideration in General Officer 
Commanding, Raslztriya Rifles v. Central Bureau of Investigation69 
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 
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. 
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 
the offence as per the