On April 12, Indian Attorney General Mukul Rohatgi submitted a “curative petition” to the Supreme Court requesting reconsideration of its July 2016 order restraining the security forces from using “excessive or retaliatory force” in insurgency-hit areas in the country’s northeast and the state of Jammu & Kashmir.
The petition sought to overrule calls to repeal the repressive Armed Forces (Special Powers) Act 1958 (AFSPA), a vestige of the colonial period described by some as a truly nasty and terrifying piece of legislation and as national-security tyranny. The petition demanded that the Supreme Court not dilute the repressive provisions of the law so that the Indian Army could retain its control over conflict-affected areas in the northeast and Jammu & Kashmir.
The “curative petition” thus showed scant regard for the present government’s “Act East” policy, which indicates a different approach to development challenges in the northeast.
As far as Jammu & Kashmir is concerned, the present government unrealistically appears to hold Pakistan responsible for all its ills.
The “curative petition” appears to adopt a national-security rather than a human-security approach to development challenges in northeast India.
So how and why did the July 2016 ruling of the Supreme Court the attorney general finds objectionable come about?
In 2012, the Extrajudicial Execution Victim Families Association, Manipur (EEVFAM), with Neena Ningombam as secretary, submitted a petition to the Supreme Court of India seeking justice for all innocent victims of extrajudicial executions by both central-government and state security forces in the northeastern state of Manipur, including the Assam Rifles (AR) and Manipur Police commandos, which had allegedly taken advantage of the immunity provision of the AFSPA.
An organization of widows and mothers of those extrajudicially executed by the security forces, the EEVFAM wanted an independent probe into 1,528 cases of alleged extrajudicial executions by security forces in Manipur.
The victims allegedly included 31 women and 98 children killed by security forces in fake encounters during the period 1979-2012. A total of 419 had been allegedly been killed by the AR, a central-government paramilitary force, and 481 others by combined teams of Manipur Police commandos, AR and other armed police forces.
Further, state police alone allegedly killed 344 persons between 1979 and 2012. Of these, 40 were killed by Manipur Police commandos, 90 by Imphal East police district commandos, 132 by Imphal West police district commandos, 15 by Bishnupur police commandos, and 67 by Thoubal police commandos, it was alleged.
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions was also approached by the EEVFAM.
In almost all the cases, young boys attending to their daily chores were picked up at random and killed by the security forces, the association reported. In several of these cases witnesses narrated the cold practice of picking up and gunning down young men and women by Manipur Police commandos and the AR.
The killings were justified by the authorities as encounters with terrorists, but critics say the motivation of the killers was mainly to gain recognition, rewards and medals from the central government for their “excellent work” in fighting terrorism.
Neena Ningombam’s husband Michael was killed on November 4, 2008, by Manipur Police commandos who had branded him a terrorist. A district judge appointed by the Guwahati High Court found that Michael was not guilty of firing on the commandos as alleged.
On July 23, 2009, Manipur Police commandos killed two innocents: a pregnant woman, Rabina Devi, 23, and a young former militant, Sanjit Meitei, 25, in a crowded market area in Imphal, the capital city of Manipur.
Harrowing tales of human-rights violations were described by the EEVFAM. Women whose husbands were killed detailed their woes in the absence of their menfolk, whose earnings had been the only support of their families and which were now facing starvation. They demanded justice as well as income-earning opportunities to support themselves and their children.
The women also demanded the resignation of the Manipur chief minister on moral grounds and the dismissal of the state director general of police for gross dereliction of duty in allowing fake encounters to be carried out by his subordinates.
After the complaint by the EEVFAM, the Supreme Court of India appointed a three-member commission led by Justice Santosh Santosh Hegde to look into the issue of extrajudicial executions by security forces in Manipur. The Supreme Court found that all the selected cases examined by Hegde were unjustified killings.
It ordered that the local police had the liberty to probe the role of armed forces that had used the provisions of the AFSPA to abuse the rights of ordinary people.
The AFSPA had been formulated by the British Raj in 1942. In 1958, the act was revived and applied to several northeastern areas including Manipur.
Briefly, Section 4a of the act allows any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces to fire “even causing death” upon any person acting in contravention of any law or order, any person carrying weapons or anything capable being used to prohibit the assembly of more than five people.
Section 4c allows armed police personnel to arrest without warrant and with any necessary force “any person who has committed a cognizable offense”. Section 4d allows armed-forces personnel to “enter and search premises without warrant” to make “any arrest”. Section 6 prohibits prosecution of any person in respect of anything done in the exercise of the powers conferred by the law.
The act applies to any area declared “disturbed” by the central government of India or a state government. The designation of Manipur as a “disturbed area” in September 1980 meant, in effect, that the state was subject to an undeclared state of emergency circumscribing not only the liberties of individual citizens but even limiting the freedom of the state government.
In 2009, a fact-finding team noted that Manipur, with a population of less than 3 million, had too many military and paramilitary personnel (about 60,000) and too few civilian police (about 5,000). The basic purpose of policing, namely to serve the public, was downgraded at the cost of maintenance of public order.
The team also found that the number of criminal cases registered per year (including normal crime and extraordinary crime) was not large and the rate of conviction was poor.
Both findings were disturbing.
After the killing of a young woman named Thangjam Manorama by AR men in July 2004, the Jeevan Reddy Committee was set up. It made its report in 2005; its recommendations were ignored. Many Manipuri women demonstrated in front of the AR headquarters and disrobed. The only concession made by the authorities was to restrict the operation of the AFSPA to some selected areas of the state capital. Further, Manipur Police commandos were removed from the immunity available to federal armed police forces under the provisions of the act.
Irom Sharmila Chanu, a woman who was on a Gandhi-style indefinite hunger strike for 16 years demanding the repeal of the AFSPA in Manipur was kept alive through forcible nasal feeding. She faced a charge of attempted suicide under the colonial-era Indian Penal Code. Neither the state government elite nor those in the central government were bothered, though they assemble ritually every year on October 2 and January 30 to celebrate the birth and to mourn the death of the father of the nation, Mahatma Gandhi.
Many case studies in 2008 showed that security forces involved in unjustified killings in Manipur were often combined teams of state police commandos and army or federal paramilitary forces such as the Assam Rifles, which had been set up by the British in 1835.
After independence in 1947, the AR became a historical anomaly. It is redundant, since each state in the northeast has its own police forces headed by a director general of police.
Ironically, heads of state police forces have no jurisdiction over the AR deployed in their states. The AR reports only to the Indian Army headquarters in New Delhi. This further encourages the AR’s impunity and commission of human-rights violations.
Eminent scholars have pointed out that the Indian Criminal Procedure Code is sufficient to achieve the aims sought by the AFSPA, though minus the impunity available under the latter.
British historian Perry Anderson has insightfully noted that India has used the AFSPA only in non-Hindu areas such as the Jammu & Kashmir and the northeast. It is high time the Indian Army got rid of its counterinsurgency mindset.
Perry Anderson, The Indian Ideology (2012, Three Essays Collective, New Delhi)
K S Subramanian, State, Policy and Conflicts in Northeast India (Routledge, 2017)