Supreme Court sets a Dangerous Precedent for Armed Forces (Special Powers) Act

The Supreme Court dealt a body blow to human rights with its verdict in the case of Masooda Parveen v Union of India. This case deals with a writ petition filed by the wife of deceased Advocate and businessman, Ghulam Mohi-ud-din Regoo, who had been taken into custody by soldiers of 17 Jat Regiment, based at Lethapora from his residence in Chandhara village, Sopore and then tortured to death on the night of 1 st February 1998. His body was blown apart by explosives and the Army claimed that he was a militant. The petitioner had demanded compensation for the said killing and a job on compassionate grounds.

The Supreme Court dismissed the writ petition while accepting the contention of the army that the deceased was a militant. The court accepted this submission even when not a scrap of evidence exists for such an allegation and to show that Regoo was a militant or that he had any association with any militant organization Even the vague 'intelligence inputs received by the battalion' and his interrogation were never brought on record. The Court has also chosen to overlook the fact that the original file of the S. 174 DrPC investigation conducted in the death was conveniently "lost" after the District Magistrate, Pulwama rejected the finding of "accidental death" in the closure report presented by the local police.

Most dangerously, the Court has further observed that the petitioner has not been able to show her version of events was true. This observation completely inverts the fundamental principle of presumption of innocence and burden of proof. In a writ petition in the nature of habeas corpus, the burden is on the State to show what happened to the arrested person, and the burden is all the more onerous when the person has admittedly died in custody.

For the Supreme Court to dismiss such a petition on the ground that the petitioner has not discharged her burden, especially in the political context of Jammu and Kashmir, is to say that the Army can kill anyone in the State by labeling him/her as a militant, and then the burden of proof is on his family to show that he was not. This rationale of the Court is an abdication of its function as a Constitutional Court safeguarding the fundamental rights of the people, and needs to be critiqued in all possible ways and foras.


This is the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act., 1990. On one hand, the Court has acknowledged that the guidelines and the law laid down in Naga People's Movement of Human Rights v. Union of India [(1998) 2 SCC 109] applies mutatis mutandis to this statute as well.

But amidst numerous platitudes, the Court has chosen to carve out something bordering on an exception, by stating: "[W]e are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action."

It must be pointed out at this stage that the NPMHR judgment had directed that any deviation from the Act as well as the Do's and Don'ts constitutes an offence under the Army Act, and is liable for prosecution.

However, the observations of the Court in the instant case go against the grain of the Judgment of a 5 Judge Constitution Bench rejecting an application filed by the Government of India in the NPMHR case. The Government had attempted to get such exemption against the safeguards through an application seeking clarification of the Court Order. However, the 5 Judge Constitution Bench had categorically rejected the application and affirmed that the safeguards are inviolable.

Critically, this judgment is also untenable as per incuriam (decided without reference to an earlier precedent), for a 2 Judge Bench cannot override the decision of a Constitutional Bench.

Being the first major case of interpretation of the Jammu and Kashmir Armed Forces Special Powers Act, the observations made in this case sets a very dangerous precedent for future and also roll back some of the few minimally progressive principles laid out in the NPMHR case.

Strangely, the judgment is completely bereft of any discussion on the Right to Life under Article 21, the Right against self incrimination under Article 20 or the rights of an arrestee under Article 22, and perhaps a clarification on whether these rights apply.

This judgment therefore sets a very dangerous portent for the democratic rights of the people of the North east and Kashmir. By this judgment, the Court has given its imprimatur of approval to fake encounters, custodial killings, torture and disappearances that have become a part of the living reality of these regions with the draconian Armed Forces (Special) Powers Act.

This judgment also exposes the doublespeak of the Indian State on the Armed Forces (Special Powers) Act. The Supreme Court had upheld the constitutionality of this dreaded Act on the ground that it shall be implemented strictly and mere possibility of abuse cannot be a ground for declaring it unconstitutional. However, when instances of abuse are brought to the notice of the Court, as done in this case, the Court have condoned such indefensible abuses citing the extraordinary circumstances in which security forces operate. As such, this judgment exposes the hollowness of the assurances of strict and cautious use of the Act, recurrently avowed by different institutions of the Indian State, including the Judiciary. It brings to fore the stark reality that the very use of this Act amounts to an attack on human rights of the people of North East and Kashmir.

As such, along with the need for due legal recourse, there is a strong imperative for a strong civil society discussion, debate and opposition to such an anti-people, undemocratic and authoritarian judgment from the Apex Court that gives a license to impunity on the part of the Armed Forces in Jammu and Kashmir, and approves the precedence of coercive powers of the state over the fundamental rights liberties of people.