Armed person in prohibited area can't be terrorist or enemy:SC

The Supreme Court today said a person cannot be labelled as terrorist, militant or "enemy" merely because he was carrying a weapon in a prohibited area.
"It would not be correct to say that merely because 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," a bench of justices M B Lokur and U U Lalit said while dealing with the PIL on extra-judicial killings in militancy-hit Manipur and the plea for repealing the Armed Forces (Special Powers) Act (AFSPA) that grants special powers to Armed Forces in "disturbed areas".

The bench said for a person to be branded as a militant or a terrorist or an insurgent, there must be commission or some attempt or semblance of a violent overt act.
The bench, which said it was open to the Army to conduct its own inquiries into the allegations of fake encounters in Manipur, was also of the view that an armed person in a prohibited area is not an "enemy" by the very fact.
"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..." the bench said while referring to an earlier judgment in this regard.

The apex court also pointed out that the "alleged enemies" in this case are also citizens of the country who are entitled to all fundamental rights including under Article 21 of the Constitution which deals with the right to life and liberty.

"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," the bench said.
"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," the bench said adding that armed forces should not be used against our citizens.

The top court also said that each instance of an alleged extra-judicial killing of even such a person would have to be examined 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," the bench said.