The imposition of this draconian Act way back in 1958 has seen mindless killings of innocent people, rapes of women and all-pervasive fear. However, a recent Supreme Court judgment could well change matters
By Ramesh Menon
When armed militants would often barge into his modest home in Imphal in the dead hour of the night, little Thounaojam Herojit would crouch in fear. They wanted his father to pay them as he was a government servant and was seen as the enemy. Each time they would demand thousands of rupees. So, his father had to sell pieces of his small landholding to meet their incessant demands. But when he grew up, there was a new emotion: anger. Little did these militants realize that one day Herojit would turn his gun on them and without blinking shoot them point-blank. Earlier, this year, Herojit, 35, a head constable with the Manipur Police, confessed that he had killed over a hundred in encounters. Returning home after the encounters, he would bathe outside before entering his modest home. He would then get his wife, Ratna, to wash his uniform even if it was not soiled. It is only years later that she knew why.
One of his last encounters was in 2009 of Chungkham Sanjit who had earlier been a militant with the PLA but had left it to live a normal life. Following orders of senior officer, Akioijam Jhalajit, he had pushed the unarmed youth into a pharmacy in Imphal and shot him six times in full view of those who were in the shop. Sanjit’s body was then dragged out and thrown into a truck which had the body of a woman who was five months pregnant. She had fallen to a stray bullet moments before Sanjit’s death at the busy marketplace.
He used to return home and record the details of each encounter in a notebook. As the pages of one got exhausted, he started another. That also got full, so he started the third. He felt no remorse during the killings, he said. But later, he felt that he must confess.
In another instance, he chanced upon seven insurgents from the United National Liberation Front, who wanted a lift from a truck in which Herojit was traveling. After taking their guns, Herojit lined them up in a lonely place and shot them dead. That day, the police issued a statement that seven militants had been killed in an encounter with the police.
Herojit was suspended in 2008 after the death of a journalist, Konsam Rishikanta, working in Imphal Free Press but reinstated soon after. In 2009, he got a gallantry medal and was promoted as head constable. But as the trauma of these numerous fake encounters caught up with him, he tried to escape by consuming various types of drugs. He fears for his life. He wonders whether he can escape the immense guilt that shrouds him and if fate will catch up with him.
Manipur’s stunning landscape of mountains, water bodies and lush greenery, mixed with its tingling fresh air and the melodious songs of women as they work in the fields, stand out as stark contrasts in a state wracked by violence, fear and death.
Insurgent activity for decades followed by retaliatory action by security forces has made life hell for ordinary people. Tension hangs around the state like a cloak. Images of torture and death refuse to go away. When life is normal on certain days, the fear is that it will not last. It has been like this for many years now and people wonder how the next tragedy will unfold. Numerous terrorist groups operate in the state. Some are demanding independence from India and mostly survive with foreign funding and arms. It is a lucrative business as they go around extorting money in the name of taxes. When Ravi Nitesh, a human right activist, recently visited Manipur, he asked a Class X student how the Armed Forces Special Powers Act (AFSPA) which gives security forces special powers to search, arrest, destroy property and kill, had affected him. The 15-year-old replied: “AFSPA has snatched our right to dream. Youngsters all over India can dream. We cannot. Every time I move out of home, my family worries if I will return. My grandfather and father have been victims of atrocities. No one is safe here, not even journalists. We live in constant fear.”
For Manipuris, life is hell. They feel trapped in a state ravaged by frequent bandhs, attacks, arbitrary detentions, executions and shortages. But more than everything else, it is the fear of impending death that mentally maims them. After any ambush on security forces, villagers flee from the area, fearing a backlash from uniformed forces even though they may have nothing to do with the attack. Over a period of time, even the state police forces have taken shelter under the Act, though they cannot under the law and have killed many in the name of encounters. Observers in the state feel that many of these extra-judicial killings have nothing to do with terrorism and are done just to win accolades and gallantry medals from the state government. Or to settle scores. The rant against AFSPA in the state has got louder with every encounter.
“Almost every house in Manipur has a story about what AFSPA has done to people there,” says Nitesh. In 2011, he filed an RTI asking the National Human Rights Commission how many times its members had traveled to Manipur to probe human right violations between 2000 and 2011. The reply was that in those 11 years, none of its officials had visited Manipur. He was not surprised. This was when news about human right violations had got highlighted in the media all the time.
The Naga People’s Movement for Human Rights was formed in the JNU campus to fight AFSPA, among other things. In October 1980, it petitioned the Supreme Court, challenging the constitutionality of AFSPA. Seventeen years later, the Supreme Court delivered a judgment on November 27, 1997, which said that it was constitutional to have AFSPA as it was applied only in affected areas and there were Do’s and Don’ts worked out by the army to ensure it would not do anything wrong. Well-known jurist Fali Nariman called it one of the most conservative judgments in the annals of the Indian judiciary.
In 2000, Human Rights Alert constituted an independent peoples’ commission of inquiry in Manipur under Justice Hosbet Suresh and lawyers Colin Gonsalves and Preeti Verma to look into the human rights impact of the prolonged imposition of AFSPA. Their report in October 2000, after meeting numerous victims of the Act, said that the Do’s and Don’ts the army followed under AFSPA were hardly complied with and were breached most of the time. Referring to the earlier Supreme Court judgment that said that AFSPA was constitutional, Justice Suresh said: “Sanction to kill cannot be constitutional.”
One week after this report came out, on November 2, 2000, a bomb went off by the side of a road in Malom village near Imphal when an Assam Rifles convoy was passing by. No one was hurt, but the jawans rounded up 10 civilians and shot them dead at a bus stop as they suspected they were insurgents. Ironically, it included a 63-year-old woman and a school student who had won a national award for bravery.
Three days later, Irom Sharmila, a 28-year-old woman who was a volunteer with Human Rights Alert, was so incensed with the incident that she decided to go on an indefinite hunger strike demanding the removal of AFSPA. For the past 16 years, she has not had a morsel of food or water and is being force-fed at the Jawaharlal Institute of Medial Sciences in Imphal. She has been arrested numerous times on charges of attempting to commit suicide, but her resolve has not broken. Her action galvanized numerous activists to demand the removal of AFSPA.
One of them was Nishant, who, after his M Tech in gas engineering, decided to set up the Save Sharmila Solidarity Campaign in 2009 to sensitize society in India about what he calls, a “draconian law”. It took him numerous trips to Manipur to figure out the complications that ordinary lives were caught in because of human right violations.
In a significant and far-reaching judgment, the Supreme Court recently said that AFSPA cannot continue forever and it was only a temporary measure to restore law and bring in normalcy. It clearly laid out principles and points of law stating:
- There cannot be immunity for armed forces in human right violations
- The army and police can be investigated and prosecuted in accordance with law
- Criminal courts also have the jurisdiction to prosecute
- Truth about the violations must be found out
- Magisterial inquiries conducted are of no relevance as only the judicial inquiries are relevant
- Inquiries conducted by the human right cell of the army does not inspire confidence
- Internal disturbances have to be handled by a civilian administration and the role of the army is only to aid it.
This has been one of the most hard-hitting judgments on human rights as the Act has been in force in Manipur for nearly 35 years. It said that it showed a failure of governance as no solution had been found. Senior lawyer and human rights activist Colin Gonslaves told India Legal: “The extraordinary judgment is a major breakthrough as it demolishes the framework which is often used as a camouflage to hide or disguise fake encounters.”
The judgment was in response to a petition filed in the Supreme Court in September 2012 by the Extra Judicial Execution Victim Families Association (EEVFAM). It wanted a Special Investigative Team to probe the 1,528 extra-judicial executions and compensate affected families. The court randomly picked six cases out of the lot and appointed Justice Santosh Hegde to head a commission of inquiry that would investigate the encounters. Justice Hegde found that all of them were fake encounters and all the seven who were killed had no criminal antecedents.
One of them was Azad Khan, a 12-year-old who was reading a newspaper to his mother when the Assam Rifles and police barged in and dragged him to a paddy field and shot him. Another shocking case involved a young villager who was cycling around looking for his cow when he was picked up and shot dead. Then, there were cousins Nobo and Govin who were having tea at a stall when they were picked up and shot dead.
Said Babloo Loitongbam, executive director, Human Rights Alert: “The judgment has brought hope to hundreds of families who have suffered under AFSPA and lost dear ones. We are working on documenting all the 1,528 cases in as much detail that we can find as the Supreme Court now wants to look into all these cases. How can we have such a law in a democratic civilized country?”
Nirjhari Sinha, convenor of the Jan Sangarsh Manch, Ahmedabad, who visited Manipur along with her late husband Mukul Sinha, a human rights activist and lawyer, said that it was terrifying to step out on the lonely streets of Manipur after 8 pm as there were uniformed men all around with guns. She said she would never forget the tales that she heard from young widows who had lost their husbands to encounters. “All these widows wanted was proof that their husbands were militants as this was the charge the army used to shoot them dead,” she said.
In a significant observation, the Court said that if the Act had been deployed for so many years in Manipur, it directly reflected the failure of both the security forces and the government that had not resolved the problem. The Court said that while Manipur faced a public order situation since 1958 for almost 60 years and generations have gone by, issues continued to fester. It was high time that concerted and sincere efforts were made by civil society, insurgents, the state and central governments to find a lasting, peaceful solution.
The Court said that the use of excessive force or retaliatory force by the Manipur police or the armed forces was not permissible. Any allegation of excessive force resulting in the death of any person by the Manipur police or armed forces must be thoroughly probed. The case will come up for hearing again in mid-August. The petitioners had pointed out that the Manipur police had not registered a single FIR against the security forces despite complaints that they were extra-judicial executions. Many of those killed had no criminal records but were labeled as militants, they said.
In his submission to the Court, Mukul Rohtagi, attorney-general of India, argued that probes into allegations of fake encounters would demoralize security forces, and they would end up battling insurgents with their hands tied behind their backs in a war-like situation. The Supreme Court bench of Justices Madan B Lokur and Uday Lalit rejected his arguments outright pointing out that there was no war-like situation in Manipur and what was under the scanner was the smoking gun and not the encounter operations. Security forces were deployed only to aid civil authorities and not for an indefinite period, the Court said.
Rohatgi had referred to Article 355 which said that it was the duty of the Union to protect every state against external aggression and internal disturbances and ensure that the government of every state is carried on in accordance with the provisions of the constitution. He stated that militant groups were operating in the north-east and demanding separation from India and had the support of countries inimical to the interests of the country. He said they were killing innocent people to create fear and indulging in extortion and had no fear of the law. There was a constant threat to Manipur from the militant groups, so counter-insurgency operations were carried out. As they had deadly weapons, the lives of armed personnel were under threat and so AFSPA was put into force, he argued.
Rohatgi said that only 5,000 militants were holding a population of 23 lakh in Manipur to ransom and were exploiting ethnic rivalries, tribal divides and unemployed youth to fuel tension. The Ministry of Defence had issued instructions to the armed forces to observe restraint in their operations. “Situations of internal disturbances are not issues that can be decided in a court of law,” he said. The Ministry of Defence did not respond to queries of India Legal.
On July 15, 2004, 12 women, who were all mothers, stripped before the Kangla Fort in Imphal that housed security personnel of the Assam Rifles to protest against the alleged rape and execution of 32-year-old Thangjam Manorama by its jawans. She had been picked up on the night of July 11 and hours later, her body was found riddled with bullets. Forensic tests confirmed rape. The security forces said that she was a militant of the banned People’s Liberation Army. The encounter death of Manorama led to statewide protests. The women stood in front of the entrance to the Fort carrying banners asking the jawans to rape them too. All of them were arrested and jailed for three months. Soon after, the Assam Rifles moved out of the Fort and AFSPA was lifted from seven assembly constituencies of Imphal but continued in the rest of the state.
One of the women, L Gyaneshori, who took part in the protest at the Fort told Human Rights Watch: “Manorama’s killing broke our hearts. We had campaigned for the arrest memo to protect people from torture after arrest. Yet, it did not stop the soldiers from raping and killing her. They mutilated her body and shot her in the vagina. We mothers were weeping. Our daughters can be raped. They can be subjected to such cruelty. Every girl is at risk. We shed our clothes and stood before the army. We said: ‘We mothers have come. Drink our blood. Eat our flesh. Maybe this way you can spare our daughters.’ But nothing was done to punish those soldiers. The women of Manipur were disrobed by AFSPA. We are still naked.” The killers of Manorama were never found. This fact resonates in the state even though 12 painful years have flown past.
C Upendra Singh, retired district sessions judge, who was the chairman of a commission to probe into the death of Manorama, said: “This is the most shocking custodial killing of a Manipuri village girl.” His report said that she was picked up by armed troops of the 17th Assam Rifles at midnight from her home and later found dead with gunshot injuries on her private parts and thighs. Barging into her home, the jawans had dragged her out as she screamed out to Khumaleima, her mother, saying, “Ima Ima Khamu (Mother please stop them).” Assam Rifles had said that they had recovered a grenade and a radio set from her house and that she was shot as she tried to flee. Her family disputes this.
In December 2006, then Prime Minister Manmohan Singh declared that the Act would be amended to make it more humane on the basis of the recommendations. But that never happened.
In 2009, the UN Commission for Human Rights said the law was outdated and had no place in the 21st century. Neena Ningombam of the Extra Judicial Execution Victim Families Association said that 31 women and 98 children were killed by the security forces between 1979 and 2012.
As the encounters invited national attention through the media, the central government set up a committee under former Supreme Court judge BP Jeevan Reddy to look into the working of AFSPA. The Committee said the Act was a symbol of hate, a weapon of oppression and an instrument of discrimination and recommended its repeal. It also said that if the military needs a legal framework to fight insurgency, it must be a part of the general law and there must be a window for commoners to register their grievances, if any. The government did not act on the recommendation. The UPA just chose to be silent on the report. Soon after it took over, the NDA government rejected it in toto.
Let us look at the origins of this draconian law. It was the British in India who whipped up the Armed Forces Special Powers Ordinance in 1942 to suppress the freedom movement led by Mahatma Gandhi in India. Lord Linlithgow, the viceroy of India hurriedly promulgated it on August 15, 1942, after the Congress passed the historic Quit India resolution on August 8, 1942. The British were under a lot of pressure, with the Japanese making advances during World War II. They had entered Burma and also parts of Nagaland and Manipur. So the law put in had all kinds of rigorous clauses giving extensive powers to the army.
India created the Armed Forces Special Powers Act drawing on this British ordinance and added some more provisions which made it stringent. It added vaguely defined powers like using force to search any place without warrant, destroying a place if there was suspicion that it was being used by armed groups and even killing any person it suspected of carrying weapons.
While the British Ordinance had only authorized captains or officers above this rank to take action, the Indian Act gave the power to lower ranks, which included non-commissioned officers. Garnering huge powers under this Act, security forces have till now being shielded from being tried under human right violations. But with the latest observation by the Supreme Court, it will not continue to be the case.
When the Naga insurgency which was demanding independence from India broke out in 1954, Prime Minister Jawaharlal Nehru thought it best to send in battalions of Indian soldiers and paramilitary men to crush it. He got AFPSA (1958) passed in parliament to boost the army attack and provide them legal protection. One of the few MPs who spoke up against it was Surendra Mohanty who said that while all of us wanted a free India, we did not want one with barbed wires and concentration camps where havaldars could shoot anybody.
What followed were large-scale atrocities which Nagas even today recall with anger and bitterness. Gavin Young, a reporter from The Observer who was witness to it as he traveled through the state at that time, wrote: “The stories of burned rice stores and houses seemed endless. Individuals told how they had been beaten and tied up for hours without water; how they had been bound and hung downwards from beams to be flogged; how sons, brothers and fathers had been bayoneted to death.”
A 2008 Human Rights Watch report called “These Fellows Must Be Eliminated: Relentless Violence and Impunity in Manipur” says that for 50 years there had been a failure of justice in Manipur and the army protected under AFSPA has been involved in numerous violations of human rights and so could not be held accountable for serious crimes. “In the name of national security and armed forces morale, the state protects abusers and leaves Manipuris with no remedy to secure justice”, the report said.
The Justice JS Verma Committee that suggested amendments to laws relating to crimes against women said that there was an imminent need to review the continuance of AFSPA. Gopal Subramaniam, one of the committee members, said that there was a crying need to try armed forces personnel guilty of sexual offences in conflict areas under the ordinary criminal law.
When will these numerous voices be heard? The Supreme Court remains the only hope for thousands of victims and their families.
Lead Photo: Sanjit, a former insurgent, was one of the many who were killed in fake encounters by Hirojit. Sanjit had come overground and started living a normal life. Photo credit: Tehelka