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59. With regard to the alleged fake encounter killings, the third affidavit dated 21st 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 25th October, 2013 to consider the 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. It 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 of kin was awarded Rs. 5 lakhs by way of compensation.

62. The above chart clearly suggests that 31 of the 62 cases were those of a 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.

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 Naga People’s Movement of Human Rights. 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.

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 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[50] 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.