Will Supreme Court’s verdict on Manipur fake encounter killings force the Centre to rethink AFSPA?

The Supreme Court’s July 14 judgement on alleged extrajudicial killings in Manipur takes an important institutional step. It recognises the presence of state violence in conflict areas. It also notes that the victims of such violence have no access to justice, which is a basic human right recognised by the Constitution.

The public interest litigation by the Extra Judicial Execution Victim Families Association Manipur, flagging 1,528 deaths between 1979 to 2012, was filed against the odds. The association is a registered trust whose members are women who have lost sons and husbands to violence by the state police and other security forces, including the Army and the Assam Rifles.

The petitioners had struggled to get First Information Reports filed. Now the Supreme Court has overruled the objections of the Centre and the Army and ordered the Central Bureau of Investigation to set up a special investigation team to probe encounter deaths. The case has gone a long way in piercing the institutional blindness to violence by members of the security forces in conflict zones.

But can it work a change in the government’s position that such violations are merely “isolated incidents”, the work of a “few bad apples”, resulting in “collateral damage”? Over 1,500 cases in one petition in one state alone suggests this violence is not incidental but systemic.

Impunity

The impunity that enables violations by the armed forces is wired into the system and comes primarily from the Armed Forces (Special Powers) Act, 1958, long targeted for criticism by human rights groups. “Enacting draconian laws like the Afspa means sustaining impunity vis-a-vis the extrajudicial means employed by the state,” writes social scientist Bhagat Oinam.

First imposed in Nagaland in 1958, the law defines the “use of armed force in aid of civil power”. It flows from the logic of a colonial state, which saw the police and the Army as complementary, not alternative, forces of control. It assumes the “good faith” of public servants acting in the line of duty. It empowers soldiers in “disturbed areas” to search and arrest without a warrant, and to open fire, while protecting them from prosecution by civilian courts.

Over the decades, Afspa spread to other states of the North East before reaching the Kashmir Valley in 1990 and Jammu division in 2001. An act meant to meet the demands of “exceptional circumstances” lingered long after the crisis had waned. As it became the subject of public anger in these states, successive governments made and failed on promises to roll back the law. Barring Tripura, which withdrew Afspa in 2015, and the municipal area of Imphal, the law stayed.

Meanwhile, courts and and commissions of inquiry chipped away at the legitimacy of Afspa. In 2005, after the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread outrage, the government set up the Jeevan Reddy Commission to review Afspa. “The Armed Forces (Special Powers) Act, 1958, should be repealed,” the commission recommended, noting that it had become “an object of hate and an instrument of discrimination and highhandedness”. Still, the law stayed.

The petition filed by the Manipur trust prompted the Supreme Court to set up the Santosh Hegde committee to look into six charges of extrajudicial killing in Manipur. The committee filed its report in 2013, saying five of the six encounters were “not genuine”, that “disproportionate force” had been used against persons with “no known criminal antecedents”, and that Afspa gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.

In July 2016, the Supreme Court, in a hearing on the Manipur cases, dealt a blow to the immunities enjoyed by the armed forces. In response to the Centre’s arguments that any person carrying arms in a prohibited area risked being considered an “enemy” and that the lack of immunity would demoralise armed forces, the court had this trenchant reply.

“It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”  

Besides, both the government and the Army have been opaque about how they handled complaints of human rights abuses in areas under Afspa. According to reports that emerged this May, the Army claimed that of the 1,700-odd complaints received since 1994, just 66 had been found to be true. Only 150 soldiers had been punished and compensation awarded in 49 cases.

A recent Right to Information application filed by Venkatesh Nayak of the Commonwealth Human Rights Initiative in April this year revealed that 186 complaints of rights violation had been received in a roughly three year period from 2012 to 2016. Of these, 127 cases had been “disposed of”, though the Union home ministry does not reveal whether they were found to be true or false.

Jammu and Kashmir accounted for the highest number of complaints, nearly 50%, but just 3% of the monetary relief recommended. Assam received the highest share of monetary relief, followed by Manipur. But the court, in its judgement last week, distinguished between compensation and justice.

“Compensation has been awarded to the next of kin for the agony they have suffered and to enable them to immediately tide over their loss and for their rehabilitation. This cannot override the law of the land, otherwise all heinous crimes would get settled through payment of monetary compensation.”

Denial

Over time, Afspa has grown from a law into an institutional attitude. The impunity granted to Central armed forces has filtered through to the state police; they often operate jointly in conflict areas. And when impunity does not work, there is denial, both by the security agencies and the civilian administration.

Guidelines laid down by both the National Human Rights Commission and the Supreme Court in 2014 state that in case of encounter deaths, an FIR should be filed, investigation conducted by an independent authority and not by officers of the same police station, and a magisterial enquiry held.

These rules, however, have remained on paper in most states. In Manipur, the court says, not a single FIR was filed against any uniformed personnel or member of the state police. Instead, charges have been filed against the deceased for alleged violations of the law.

It does not stop at the police stations. Oinam describes the plight of young women in Manipur suddenly branded “terrorist wives”, with young families to bring up and little support either from the state or their communities. A report from 2011, jointly published by four human rights organisation and financed by the development aid organisation Cordaid, says the Indian government does not extend financial support to the wives and children of those branded as militants. Governments and police have colluded to keep fake encounter victims invisible.

Closure

The court now places its trust in the CBI. But how independent is an investigation body that was famously termed a “caged parrot” by the Supreme Court itself, accused of acting at the behest of its political masters?

The CBI’s past interventions in encounter deaths have led nowhere. Take the Pathribal killings. In March 2000, unidentified gunmen shot dead 34 Sikhs in the village of Chittisinghpora in South Kashmir. Five days later, soldiers of the Rashtriya Rifles claimed they had killed five “foreign militants” responsible for the massacre in Pathribal. They turned out to be local men, whose bodies were charred beyond recognition.

The case wound through civil courts and with the CBI. The agency’s charge sheet submitted evidence suggesting that five soldiers were guilty of “cold-blooded murder”. But then the Supreme Court, in a 2012 judgement, said the Army could choose whether these men were to be tried in civilian or military courts. The Army chose the latter and closed the case in 2014, apparently for lack of evidence.

As the CBI now probes the Manipur encounters, the court must ensure that the investigation reaches its logical conclusion, insulated from political pressures. Judicial intervention has done a lot to push for accountability in conflict areas, to turn the conversation back to basic democratic and human rights. But progressive rulings by the court can only go so far when they are constantly buffeted against attitudes in the government and the Army, which would preserve the status quo.