Jammu and Kashmir Coalition of Civil Society (JKCCS), a human rights watchdog in the restive state, said the apex court's observations are re-affirmations of the established criminal law that the state forces are not above the law.
Hopes for justice have rekindled for the hundreds of families of human rights abuses in Jammu and Kashmir after Supreme Court held that the security forces cannot use "excessive or retaliatory force" in the disturbed areas.
Hearing a plea of the families of civilians killed in the alleged fake encounters in Manipur, a bench of Justice Madan B. Lokur and Justice RK Agarwal said the security forces cannot use excessive force and then claim immunity from the criminal action.
Jammu and Kashmir Coalition of Civil Society (JKCCS), a human rights watchdog in the restive state, said the apex court's observations are re-affirmations of the established criminal law that the state forces are not above the law.
"The armed forces enjoy total immunity and have yet to be tried in a civil court for a single fake encounter. In addition, armed forces personnel have been awarded, rewarded and promoted for fake encounters and other human rights violations in Kashmir", said Khurram Parvez, programme coordinator of J&KCCS.
Hundreds of families are awaiting justice in different human rights cases including killings and enforced disappearances as security forces take cover under the Armed Forces Special Powers Act (AFSPA).
Under AFSPA, the armed forces have sweeping powers to operate in the state with impunity. An official of the armed forces can shoot anybody if he is of the opinion that he is acting against law. Under AFSPA, the forces can also search or even destroy property if they are of the opinion that it is used as hideouts for the ultras. In normal circumstances it is the competent magistrate who has to give orders to open fire or search the property.
Except Kargil and Leh districts of Ladakh division, AFSPA is imposed in all other 20 districts of Jammu and Kashmir. The AFSPA was imposed in Jammu and Kashmir in 1990 when the militancy was at its peak.
Human rights groups claim that the Jammu and Kashmir government has sought sanction from centre to prosecute security forces personnel in over 70 cases of the human rights abuse under AFSPA. "However so far the centre has not granted sanction for prosecution to any of the cases. Plus there are thousands of cases where the government has done nothing so far", said Khurram
Take the case of Manzoor Ahmad Mir of Baramulla. Since 2003, the family is awaiting sanction for the prosecution of the army captain allegedly involved in the enforced disappearances of Manzoor.
Manzoor was picked up from his house on September 7 2003 and has subsequently disappeared in custody. Three years later a body identified to be that of the victim was exhumed from site allocated for the construction of a hospital.
The family identified this body as being that of the victim based on certain identifiers. The family also provided their blood and other samples to the government on July 29 2006 for the purposes of establishing the identity of the body exhumed, but they are yet to get a confirmation that the body was indeed that of the victim.
Ministry of Defence, in its affidavit before the High Court in 2009 on sanctions for prosecution, stated it has been declined in February 2009.
The Ministry of Defence, in response to an RTI on January 10 2012 on sanctions for prosecution, stated in relation to this case that sanction had been declined on February 23 2009. Further, that "the allegation was motivated by vested interests to malign the image of security forces. Neither any operation was not carried by any unit in the area nor was any person arrested as alleged".
"We have suffered in silence. Manzoor's daughter had to undergo three operations for brain tumour. We knocked at every court but to no avail", said Bashir Ahmad Mir, brother of Manzoor.
Political parties however are seeing a ray of hope after the Supreme Court's ruling in Manipur fake encounter case.
"Supreme court has gone into the spirit of it. At the end of the day you are dealing with your own people. Extraordinary situation demand extraordinary measures, but it does not mean that we must behave not properly with our own people", said Dr Mehboob Beg, chief spokesman of ruling Peoples Democratic party.
Main opposition National Conference welcomed the Supreme Court ruling saying such observations will eventually pave way for the central government to take a political initiative on AFSPA.
"We have always advocated the revocation of AFSPA. This observation will not change things on the ground although it is welcome step", said Junaid Mattu, state spokesman of the National Conference.
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