AFSPA - the Armed Forces (Special Powers) Protection Act - does not mean security forces "can go around just killing anybody", retired Supreme Court judge Justice Madan Lokur told NDTV Monday, amid outrage over the deaths of 14 civilians during a botched Army op in Nagaland this weekend.
Justice Lokur also underlined the "extremely defective" application of AFSPA - which gives armed forces the power to conduct ops anywhere in enforced states and arrest anyone without a warrant.
AFSPA also protects security forces from all legal proceedings unless it is cleared by the centre. In the context of the Nagaland violence and killings, there are concerns the centre will cite AFSPA to protect the Army's elite 21 Para Special Forces from investigation by Nagaland Police.
Referring to the operation in Nagaland, Justice Lokur said ''the armed forces proactively did whatever they did. So, it would certainly qualify as an 'intention to kill'... depending on the investigation it could, perhaps, be called 'intention to kill'."
Justice Lokur - who was part of the Supreme Court bench that in 2017 directed the CBI to probe dozens of extra-judicial killings by the Army and police in Manipur, when AFSPA was in force there - also told NDTV, "I don't know how they (Nagaland Police) are going to investigate."
''I think there should be an independent investigation done by people - by eminent people. They should be the ones to investigate because there are sufficient chances, if I may use that expression, there are sufficient chances for the armed forces to try and cover up the incident," he said.
According to a preliminary report by Nagaland Police, a group of villagers converged on the scene of Saturday's failed ambush after hearing gunshots. They reportedly found 21 Para SF personnel trying to wrap bodies in tarpaulin sheets and take them back to their base.
The Army has categorically denied any attempt at a cover-up; sources said the plan was to move the bodies to a police station and that there was never any effort to hide or dispose of the corpses.
Justice Lokur also spoke about claims in the Nagaland Police FIR that it was the "intention" of the security forces to "murder and injure innocent civilians".
''Here, because you know, that it was not in self-defence, so to speak, but proactive action taken by the armed forces, it could amount to murder. Again... depending upon the investigations and whatever the facts are revealed, eventually," Justice Lokur said.
The Army had said its soldiers were forced to open fire in "self-defence" when faced with villagers attacking with machetes.
A political and legal landmine, the controversial AFSPA - which was extended by six months in Nagaland in June - has been often attacked by the opposition and even some allies of the ruling BJP.
After what happened this weekend, those attacks resurfaced and, this time, they were led by Nagaland Chief Minister Neiphiu Rio, whose NDPP is a BJP ally.