Updated: Nov 23, 2020
61 Years of Suspension to Right to Life: Armed Forces (Special Powers) Act in North East India
This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.
This is not going to be a scholarly presentation but rather, experience-oriented.This is going to be about how, as activists, we are trying to grapple with formidable challenges. But since everything begins with the Constitution and the colonial era, let me also take you back to 1942. Perhaps that was when the British were most threatened in their control over this vast subcontinent. In England, the Nazis were exerting a lot of pressure, and almost the whole of continental Europe was already in their hands. Churchill urged his countrymen to make this the ‘finest hour’ of Britain. Back in India, for the first time, in the Bombay Session of the All India Congress, the Quit India Resolution was passed on 8 August. The August Kranti Movement had started. In a knee-jerk reaction, Lord Linlithgow, the Governor-General, declared a state of emergency all over India. He introduced a law called the Armed Forces Special Powers Ordinance, which allowed the military to go out and do pretty much what the police was doing to contain this unprecedented movement that had emerged for freedom, asking the British to Quit India.
This Ordinance gave a Commissioned Officer of the Indian Army the permission to shoot people on suspicion. There could be no legal recourse against this unless and until it was granted by the Central Government, which is again only of theoretical importance. This was 15 August 1942. Exactly 5 years later, India became an independent country; and since it was dealing with the Partition, a similar law was being used to bring out the army. There was a 1948 Act but this was soon repealed, because it did not really comply with the new constitution being drafted, wherein the military would be under the control of the civil authority. However, in 1958, an exception was created to deal with the ‘unrest’ in the Naga Hills. An Armed Forces Special Powers Ordinance was again reenacted by the Republic of India in 1958. This time, there were three differences:
It was applied only to Assam and Manipur, which at that point covered most of what we today call the North-East, except Tripura.
There was no declaration of a State of Emergency. At least the colonial British had done the courtesy of first calling an open public Emergency, and then applying AFSPA.
It gave the power to shoot people on suspicion and if they were disturbing public order.
If you are disturbing public order in Calcutta, the maximum punishment you will get is imprisonment for 6 months. But if you are in the ‘disturbed areas’ in Assam and Manipur, it can be used to the extent of causing death. In a way, it is a death penalty. This power was devolved at three levels, from a Captain or Commissioned Officer to a Junior Commissioned Officer to even Non-Commissioned Officers, which means that any officer above the rank of the Sepoy could order the execution of citizens in these disturbed areas.
Since this began as an Ordinance, and under the Constitution an ordinance cannot last for more than 6 months, it was introduced as a bill in Parliament in August 1958. There was considerable debate. M.P. Mohanty vehemently opposed this Bill and was against calling the military into action without declaring a formal state of Emergency. Moreover, he did not see reason enough for the state to declare an emergency in these areas. He did not want people to be put on the barbed wires. He clearly said that this was unconstitutional and it was not tenable. Manipur 2 MPs, and both vehemently opposed this. Laisram Achaw, who was a Socialist MP, said that this was a black law, a lawless law. He said that, in certain hill districts of Manipur, the military was abusing their unchecked power. There were allegations of rape and murder inside the churches.
But they were 2 MPs in a House of 494. At that time, Home Minister G.B. Pant tried to say that this was only a temporary measure, that once the situation was under control, civil administration would be restored. But this was 1958. The areas considered ‘disturbed’ at that time were the Naga Hills, Tuensang district and three sub-divisions in Manipur that the Naga tribes inhabited. In the 1960s, the same law became applicable in the Lushai Hills, now Mizoram. In the 1970s, this was also introduced in other parts of the North East. In 1972, with the reorganization of the North-East, many new states and union territories came into being. Now, instead of Assam and Manipur, all 7 sister states were included—Arunachal Pradesh, Assam, Manipur, Nagaland, Tripura, Mizoram and Meghalaya. In the 1958 version, the power to declare an area ‘a disturbed area’, where the AFSPA is applicable, was given to the state government. In 1972, though, through an amendment, that power was given to the state or central government. Even if a state government refuses, the central government can still apply it. It was also geographically extended to Tripura. The Tripura Chief Minister and the government vehemently opposed this, but, again, the central government prevailed. A similar law was applied in Punjab in 1983, but repealed later. A similar law is still applicable in Jammu and Kashmir, but that has been in force since 1990s. For the North-East, this has been the case since 1958.
This Act was challenged the moment the Public Interest Litigation jurisdiction came into existence in India. As early as 1980, a group of students from the North East who were studying in Delhi University formed a human rights forum. They wrote a petition to the Chief Justice, which was accepted as a writ petition and a PIL, on 10 October 1980. Many other litigants joined: PUDR and Naga People’s Movement for Human Rights, for example. These were arguably the best days of PILs, when Justice Krishna Iyer, Justice Chinnappa Reddy and Justice Bhagawati were creating this new jurisprudence of human rights and expanding Article 21, arguing that it was not just the animal existence but that the Right to Life should include a dignified life. Despite this, they were absolutely silent on the AFSPA. I remember Justice Krishna Iyer would come and speak in public meetings and argue how laws like these should be scrapped immediately. But inside the Supreme Court, he was absolutely silent on the AFSPA. I don’t know what the reason was—there are perhaps more resourceful minds who can speak about what was happening then.
The UN only paid attention to the AFSPA after the 1990s, when it was applied in J&K. India, under Morarji Desai after the Emergency, had signed the International Covenant on Civil and Political Rights (ICCPR) in 1979. Once you become a signatory to this covenant, there are periodic reports on these issues. Initially, the period was every 3 years; subsequently, every 5 years. A committee was created called the Human Rights Committee, constituted by well-respected judges and experts from different parts of the world, to review these reports. The first review from India was held in 1983, but nobody even raised the issue of AFSPA in the North East. Perhaps the civil society was also quite ignorant of these processes.
In 1991, when the second review took place, a group of activists from Manipur were supported and helped by Nandita Haksar, P.N. Haksar’s daughter. They were fighting the Oinam case. The Assam Rifles is a paramilitary group that is not exactly a part of the Indian army, but the Indian Army does have deputation into it, and it functions pretty much like the Indian Army. The NSCN, the National Socialist Council of Nagaland, attacked one of these groups and took away its guns. For the next 3 months, the military cordoned off the area. The CM of Manipur then, Rishang Keishing, wanted to visit the areas but was denied. Even the CM could not enter some territories in his own state. 28 people were tortured and killed. Unnumbered women were raped, many of them still not fully documented. Churches were converted into concentration camps, people were starving without food and water. For the first time, Amnesty International came out with a report called 'Operation Bluebird, a case study of extra-judicial execution, rape and torture in Manipur'. These activists, because of the publication from Amnesty, were able to present the case against AFSPA in front of the Human Rights Committee in 1991. That was perhaps the first time the AFSPA was brought to the attention of the UN. Of course, when this happened in Kashmir, Pakistan raised the issue in the political forums of the Human Rights Commission. That is a different and more political forum, whereas Human Rights Committee is an expert body. The activists argued that the current state of affairs is not compatible with the rights guaranteed under the International Covenant of Civil and Political Rights.
The 3rd periodic reporting under the ICCPR, for which I was also present, was in 1997. At this time, the Naga Peace process with the NSCN had begun; unfortunately, none of our Naga friends went there to follow up on the 1991 reports. Groups from Manipur and Assam did go to the Human Rights Committee and followed up on what was being said during the earlier session. We presented all the documentation to the committee and the committee came to very interesting conclusions:
When AFSPA is being used, the Government of India is in fact using emergency powers without actually declaring it. The International Covenant on Civil and Political Rights says that the state can derogate from some obligations under this law provided the life of a nation is under threat. This has to be done through a certain procedure that is given in Article 4 of the International Covenant on Civil and Political Rights, i.e. declaring that there is a state of Emergency. But India, derogating all these basic rights without declaring Emergency, is clearly in violation of Article 4.
There are certain rights that can never be derogated, whether it is a state of emergency or an all-out war. ‘All is fair in love and war’ is no longer tenable today. We have a body of international law called the International Humanitarian Law that deals specifically with the situation of armed conflict or war. The most important right is the right to life. It is one thing that two combatants shoot and kill each other, but you cannot arrest someone, take him to prison and kill him there. They become ‘Hors de Combat’. But AFSPA says that you can use powers to the extent of causing death, and there can be no legal recourse to it.
The committee clearly stated that the AFSPA was very problematic. The Attorney General who was representing the Government of India said that the matter was pending in the Supreme Court, and the SC will have to decide on the legality of this law. That is great, but the case which represents a violation of the core of the Constitution had been pending since 1980– if the core of the Constitution is Part III, then the core of Part III is Article 21. In 1997, the Right to Life of 40 million citizens had been suspended for almost 40 years, and the Supreme Court was sleeping on it without a pronouncement or judgement since 1980! The AG said that he would try his level best to expedite the process. This happened in July 1997, and the final hearing took place in August 1997. When we returned after attending the Human Rights Committee, we cancelled our trip to Imphal, stayed back and heard the final arguments in the Supreme Court. We had brilliant lawyers—Indira Jaisingh was one of them, Kapil Sibal another. They argued that this was ultra vires of the Constitution, suspicion of a Non-Commissioned Officer out in the street cannot be procedure established by law, nor the due process of law, as required to get rid of the Right to Life of a citizen. They also demanded the objective criteria by which a disturbed area is declared 'disturbed'. Despite these arguments, we were very disappointed to see that the final judgment which was pronounced on 27 November by a Constitution Bench comprising 5 judges, headed by Justice Verma, gave a constitutional stamp to the AFSPA, stating that there was nothing ultra vires about this law.
In the Constitution, the situation of law and order is classified into 3 or 4 grades. It starts from ‘Law and Order’, which is when the police deal with certain issues of crime, and is basically a state subject. When things get more difficult and serious, for example, instances of communal violence like Hindu–Muslim riots, the central government, and thus the central armed forces and police, can be mobilized—that is what they call ‘Public Order’. Then there is ‘Armed Rebellion’, followed by ‘External Aggression’—of course these categories require a formal declaration of a state of emergency. But after the 44th Amendment of 1979, when India signed the International Covenant on Civil and Political Rights, a new category was introduced, called ‘Internal Disturbance’. This is a category for which you don’t have to declare a state of emergency before calling upon the military. It gives the state the wherewithal to use military to deal with problems and still get away from the scrutiny of international law or even constitutional law. A very convenient arrangement for the state!
There have been several instances of mass protest. I’m sure everybody is familiar with the unprecedented struggle of Irom Sharmila, who for 15 years lay in hospital, avoiding food, even though they put a drip into her system. Other unprecedented protests broke out in Manipur after the rape and murder of a Manipuri maiden called Thangjam Manorama, and a large group of mothers protested boldly in front of the Assam Rifles Head Quarters. The Prime Minster of India at that point of time came down to Manipur and promised the people that this Act would be replaced by a more humane one. He constituted a committee called the Jeevan Reddy Committee, headed by a person no less than the former judge of the Supreme Court. The committee included the Director of Military Operations, who knows about the defence requirements of the country, and the former Home Secretary, Mr Srivastava. The committee deliberated and spoke to the Home Ministry, the Defence Ministry, the State Governments and civil society of all the seven sister states. The Committee submitted their reports to the government in June 2005. This report never came out in public. When we took Irom Sharmila to Delhi the next year, in 2006, the report was clandestinely leaked in The Hindu which then had Siddharth Varadarajan as editor. The report clearly said that, for whatever reason, AFSPA is not solving the problem that it was originally meant to. It wanted to deal with the Naga insurgency. When it was activated in 1958, there was one insurgent group in the whole of the North East. In 2004, there were about 50. Violence being what it is, repressing people especially when they are fighting for their identity, to such an extent, will push them to a brink where they have no alternative but to fight back. In a way, AFSPA is aiding this cycle of violence, making the conflict deeper and deeper, rather than solving the problem of identity, and the need for recognition and autonomy. The committee had concluded that AFSPA was too clumsy—it had not solved the problem, and, for whatever reason, had become a symbol of oppression and an instrument of discrimination of the North Eastern people.
There is another very important international law, the International Convention on the Elimination of Racial Discrimination (CERD). When it was crafted, India was a very important country to push for it, because, at the global level, Indians have experienced racial discrimination. They were the first to raise the issue in the UN, taking the apartheid South Africa to task. In 2007,when the CERD committee was discussing India, we presented the report of the Jeevan Reddy Committee and highlighted the fact that it has become an instrument of discrimination. The committee did not take much time to digest what was happening, and stamped AFSPA a racist law. If there is a racist law in a country which have already ratified the International Covenant on Racial Discrimination, according to procedure, the committee can ask the government to repeal this law within a year. They activated that provision in February 2007 and wrote a letter to the Government of India. It is 2019 now, and I really don’t know how long it takes for them to write back. There has been no response despite reminders.
Even though forms of pressure, such as movement on the ground and International law are very weak, they at least delegitimize AFSPA in the eyes of the Human Rights community. When the UPA was in power, the AFSPA was at least kept as an agenda in the Cabinet Sub-Committee on Security, even though a decision was never taken. We know that our then PM wasn’t very good at taking decisions, and so it was kept pending and pending. Unfortunately, when the NDA came to power, the agenda itself vanished. Now, there is no question of even discussing or deliberating on the AFSPA. When poor Rahul Gandhi put this in the Congress manifesto, Amit Shah, now Home Minister, laughed, saying that it will never be possible. That is the state of affairs today.
On the ground, after the 2004 episode where the mothers organized the protest and the PM himself came down and admitted that something terribly wrong had happened, there was a two-prong shift in the government’s policy of counter-insurgency in the area. The first was the usual carrot-and-stick technique—Institutions like Manipur University have been converted into central institutions. I don’t know how many people are familiar with this, but usually in state government universities, you need to consult an astrologer to know if you will get your salary or not! These irregularities have not taken place since and professors are very happy because they are all given 7th Pay Commission. The other carrot was Kangla Palace, where the mothers protested. This was the site of the Manipur Kingdom, where the power had resided for 2000 years, a sanctum sanctorum for the people of Manipur. That didn’t really matter to the military which used it as an army barrack for its central location and ease of wireless communication, ever since Manipur merged with India in 1949. Manmohan Singh, or perhaps the academic in him, understood this insensitivity, and handed back this place to the public.
Simultaneously, there were a series of military operations that pushed the armed groups from their so-called liberated zones. The number of fake encounters increased in leaps and bounds, both in urban areas and in villages—people were routinely bumped off on mere suspicion. They called it the ‘Punjab Model’, after a similar model used in Punjab post-Indira Gandhi’s assassination. As human rights activists, we go to the families of these victims and document their cases. When we go to the police station and try to file a police complaint, the police tell us to get out—there is no question of lodging an FIR. It is always the military’s story, or the police’s story, that will go into the official record. We then send our reports to the National Human Rights Commission—they peruse our case, and send the same complaint to the same police station, and ask them to file a report. The police will, of course, respond that all of this is ‘anti-national’. We are very glad that our ‘anti-national’ tribe is increasing, and we can now have some solidarity. We have been ‘anti-nationals’ for a very long time because we try to use the language of Rights and the Constitution. These killings are usually done in secrecy; but, even if there are eyewitnesses, which is a bit of an anomaly, the police and the military have become so callous that nobody even questions them. Initially, they were killing people in the middle of the night, or in remote areas on the hillsides. Now, they do it right in the middle of the day, and in the middle of the marketplace. They even shoot people in front of news cameras. On 23 July 2009, in the middle of a market, a pregnant woman and an ‘insurgent’ were killed. But this ‘insurgent’ was seen talking to the policeman—the whole sequence of events was captured by someone in the media with a concealed camera. This ‘insurgent’ was photographed talking to the police commandos. Then he was taken inside a pharmacy, shot, and his dead body brought out. That evening, when the journalist showed this tape to his editor, his editor told him to do nothing. He wanted to continue publishing his newspaper, so there was no question of him breaking this story. The next morning, the photographs found its way to our organization. We are known for sticking our necks out to do crazy things. We offered him no guarantee, but sent these photographs to 2 media houses—Tehelka, and I am not going to name the other. Tehelka published it and it became a big issue. People started protesting again in Manipur—many were booked under National Security Act for this protest. Finally, a CBI inquiry began, and the trial is still on today.
Interestingly, the policeman who shot the ‘insurgent’ confessed in 2016 that he had indeed killed the man, but had done so under the command of his superior. He argued that his superior office ordered him to do so with clearance from the DGP (Director General of Police) and the CM of Manipur. The matter is still pending. We are only in 2019; by our standards, it is still very recent. They are yet to examine some 160 prosecution witnesses, so it drags on and on and on, even though the head constable confessed to the crime. The legal system is still walking at a snail’s pace, not only in the lower courts but also in the Supreme Court.
Fortunately or unfortunately, India, perhaps because of its international image, in 2011, extended an open invitation to any special rapporteur to the Human Rights Council to visit. This is what democratic governments do to show how open and transparent they are. In the HRC, there are certain people mandated to look at particular human rights issues. The first such rapporteur who came to India in 2012 was Professor Christof Heyns, the special rapporteur on summary, arbitrary and extra-judicial execution. He looks after issues of killing people without due judicial pronouncement, all over the world. When this happened, we had just finished organizing the families and widows, we had all the documentation, addresses and contacts. When the Special Rapporteur visited, we submitted a memorandum listing 1,528 civilians—not armed groups or militants or insurgents—who had been extra-judicially killed under the shadow of AFSPA. Not a single prosecution had taken place. The list was from 1979 to 2012. This was later converted into a Public Interest Litigation and the Supreme Court has been perusing it since 2012.
The happy part of the story is that, after we moved and started this process in the Supreme Court and were able to give evidence, the killing has at least stopped. In 2009, when we started this process, there were almost 500 extrajudicial killings that we had recorded of civilians by the security forces. Today, in 2019, we can comfortably say that there are 0 killings of this nature. It is the impact of using PIL and of organizing the victims themselves to speak up for their own rights, with some complementary efforts from the UNHRC.
Question and Answer Session
Bhatia. The Supreme Court gave a fairly good judgement on the case a couple of years ago, but the judge has now retired, so who knows where it will go now. It has been 22 years since the judgement in Naga People’s Movement for Human Rights, and of course, given the present composition of the court, it would be inadvisable to try and reopen the case. I was wondering whether you think that, given the time that has passed, whether at some point, in the medium-term future, it is worth thinking about a challenge once more, in view of the intervening events? And if that is something which is possible, what kind of research should we be preparing from now onwards, to come to a point where a challenge might actually have a chance of succeeding?
Loitongbam. Thank you very much. I should have made this a part of my presentation and I am very glad that you have raised this. In 2016, Justice Lokur and Justice Lalit gave a historic judgement stating that, even if AFSPA is activated in a given territory, when someone is killed then it is not sufficient to simply provide compensation—a criminal process, a criminal investigation, the registration of an FIR, and thereafter prosecution, should be conducted. We were also asked to provide more verified information about those 1,528 cases. We actually set up a small office in the Old Manipur Bar Office and asked the families to come forward and sign an affidavit that they want to further pursue their case. About 900 families turned up, and we submitted this list to the court, but the government again objected, saying that some of them were not a part of our original 1528 cases. So we had to remove some 200 cases. But they still have to deal with around 655 cases. Out of this, they objected to those cases where there was already a preliminary finding by the establishment, and those where either the High Court or the NHRC had already given compensation. For the remaining 98 cases, they constituted an SIT of the CBI to start criminal prosecution. Even though they were given 6 months to do this, they had registered only 6 FIRs when this was called up again in the SC. When the SC questioned them, they said that they were still verifying information and not able to get any. The SC said that there were already findings by the NHRC or the High court, so why were they still trying to verify information to register an FIR? ‘If there is an accident in front of the SC today, will you wait for the post-mortem report to file an FIR?’ The CBI after this thrashing went back, and in the next hearing said that they had finally filed FIRs and submitted them to the courts. We checked the FIRs and saw that these were the FIRs that the police had originally filed in Manipur against the person who had already been tried. The charge was for Section 307, attempt to murder, and not an FIR against the policemen who are killing these people, which is Section 302, murder. The SC was furious that the government was fooling around. They were asked to file FIRs against the security forces and the police involved, and not against the people who had died. Finally, after a lot of pressure, they came up with a few FIRs against the security forces and police. But again, none of the police or security forces was named. In the original FIRs against the victims, many of the names of policemen and the army were given because it is on this basis that they are awarded gallantry awards for fighting the ‘terrorists’. There’s a grading system where if you have killed a terrorist you get 4 grades—so gallantry awards helped in getting out-of-turn promotions. But in these new FIRs, all the police and army names had disappeared—it was an unknown policeman, or an unknown member of the Assam Rifles that did the killings. These were some of the unnecessary delays, despite the fact that the SC was monitoring this process. The families of the victims and the people working on the case have faced threats, intimidation and harassment. Many of my colleagues were visited in the middle of the night by the army, their homes searched, with the excuse that there was a ‘suspect’ in their house. One of my colleagues, Ranjita Sadopam had to open up her house and all the army men, without women, searched her house at 1 a.m. The lady in the video was greeted by 10 police commandos at 6 in the morning, her house cordoned off and ransacked, the excuse being that they were looking for drugs.
On 4 July 2018, the UN special rapporteur on extra-judicial executions and Human Rights Defender, again issued a public statement that there was inordinate delay in this process,that ‘the government of India has an obligation to ensure prompt, effective and thorough investigation, into allegations of potential unlawful killings. A failure to do so is a violation of its international obligations. Some of these families have been waiting for decades for these cases to be fully investigated. It is unacceptable that the CBI is failing to meet these deadlines[. . .] We are extremely concerned that the delays appear to be deliberate, undue and unreasonable, and we condemn this lack of progress.’
At the moment, some of the chargesheets have been submitted. The CBI has been pulled up, the director himself had been summoned to court and been subjected to some harsh words from the bench. He promised that, on at least 42 cases, they will submit the final report by December 2018. We are already in July 2019; instead of 42, we have only 16 final reports in the lower courts in Manipur. The problem is that even on these 16 cases, 11 were chargesheets and 5 basically returns of FR. So there is no charge being pressed. But even the lower judiciary, who have been conditioned for the last 61 years not to touch the police and the army, is reluctant to take up such cases fairly. There were instances when the families of the victims, in court, have been intimidated and accused falsely of taking pictures of the accused. They also have to provide explanations on the flimsy ground that these complaints have not come from the family but from the SC. The lower judiciary has been denying copies of the final reports to be given to them. Of course, we are taking it up in court, but every step is a major hurdle. It is an uphill task.
Besides the AFSPA, there is an attempt to write a legal immunity into the law, saying that it is okay to kill people. Starting from the police to the lower judiciary, to the medical profession, are the institutions are set to protect each other. Besides legal immunity, the whole ecosystem has been developed to facilitate impunity by framing it as a part of a ‘national security’ project. Actually, it was quite a shock for many of these police officers as well as the establishment in Manipur that the SC came down on them heavily. This is interesting clash of two ideas: the dictates of the sovereign, and the laws and principles laid down by the Constitution. At least now the lower-ranking policemen, where sanctions are granted, have to now stand in trial. It has been so difficult to push just 11 cases—I don’t know how we will deliver justice for 1,528. Everyday, at least people from 2 families visit us and ask us about proceedings of the cases after they’ve submitted their documents. We have no answers to give them.
We are currently doing a socioeconomic survey of each and every family with the Manipur University, in the Centre for the Study of Social Exclusion and Inclusive Policy. This is again done as a peer-reviewed process. One family will go to another and share their pains and document them. Some of them are quite educated. We are collecting not just the cries and the tears but also the qualitative situations in which they are living, in terms of their livelihood, in terms of their access to government schemes, in terms of the education of their children and similar data. Hopefully, at some point down the line, we might be able to use this for some kind of a restitution and reparation of these victims. But, honestly, we need people like you [Gautam Bhatia] to help us find alternatives. How did other people in different parts of the world deal with large-scale human rights violations like these? Is a truth commission something we can think of? Could there be a transitional justice process that might work? We still don’t know. I think we have a lot of questions, and we will be very happy to find some legal minds who can work on this.
Audience member 1. I completely agree that the AFSPA is wrongly used to kill innocent people. On the other hand, if you see the India-Myanmar border, there are 30–40 insurgent groups who are fighting everyday and killing so many soldiers. Along with this, Manipuri insurgent groups themselves attack the Indian government, which makes it difficult for them to repeal this law. What is the middle path that you think the government can take?
Loitongbam. This is a very mild form of posing this question, and this is exactly what we had to face when we first moved this petition to the SC. They were not so courteous and diplomatic as you. The government council immediately branded us as ‘anti-national’ as usual, and said that we were trying to demoralize the security forces who were working in extremely difficult situations in the border area to safeguard the borders of the country. One of the petitioners is a 23-year-old widow with a 8-month-old child—she is denied all social security measures. By the way, even to register yourself as a widow you have to be 40 years. This 23-year-old widow has to wait for another 17 years to register herself, and only then will she be entitled to around 2,000 rupees per year. Even that is not given. This family has already been branded a terrorist family, without any verification. The plea to the court was that if a proper discussion on this petition is denied, the court should at least suggest/recommend other forums we could go to for the restitution of our fundamental rights. After hearing both these points of view, Justice Aftab Alam came out with a beautiful order which says that every life in this country is important, including, more so, the life of these security forces who are working in very difficult situations in isolated and remote areas. However, when an allegation of this magnitude is made, the killing of 1,528 civilians, as long as there is a Constitution, so long as Article 21 is part of the Constitution, and so long as there is a Supreme Court in the country to ensure that this Constitution works, we are left with no other option but to side with the petitioners and at least consider at the veracity of these claims—I’m not quoting verbatim, but that was the central idea. They said they that were not blindly believing any allegation, but at least a serious examination on the truth of these allegations must be made. Justice Alam, towards the end of 2012 and the beginning of 2013, again constituted a fact-finding commission manned by ‘people of highest integrity in this country’. He chose Justice Hegde—some of you might know the antecedents of Justice Hegde, his fathers and forefathers have been outstanding, they were the ones who opposed the Emergency despite pressure. He also chose another higher-ranking police officer and a former Election Commission member from the North East. They were to choose 6 cases randomly out of 1,528, and to look at 2 questions: whether there was a genuine encounter as claimed by the security forces, or if they were fake encounters as claimed by the family; the second, regarding the antecedents of the victims: were they hardcore terrorists as claimed by the security forces, or just ordinary people? This process too involved a lot of fireworks because the military was not in a position to depose in front of this commission, but they finally gave in to the authority of the SC. Justice Santosh Hegde’s finding was that none of the 6 incidents were genuine encounters, that none of the 7 victims—one of the incidents had 2 victims, had any established criminal record. They should have had at least 10 criminal cases against them if they were hardcore terrorists, but these were just ordinary people—one of them was a 12-year-old boy reading a newspaper with his mother and family. Chased by the Assam Rifles, shot in front of his courtyard, and all of a sudden, he became a ‘Terrorist’. The army claimed that he was a member of the People’s United Liberation Front, a terrorist organization. PULF is a militant outfit of the Muslim population of Manipur which is not even banned under the Unlawful Activities Prevention Act! The court asked how a 12-year old could be a terrorist—but that doesn’t matter. As a matter of fact, when the CBI filed the first FIR, urged by the Supreme Court, against Colonel Balar who was involved in killing this 12-year old boy, 356 army men petitioned the Supreme court for A Class impunity, saying that they were doing counter-insurgency operations and that nobody should be able to question them. This was in 2018, and the number of signatories swelled to about 757. Due to these disturbances and show of military valour, the Supreme Court rejected the issue in November 2018 and has not heard our case since September 2018.
We understand that there is a situation of insurgency in that area, but for heaven’s sake, these are political issues that need political solutions. Killing civilians and giving gallantry awards to the killers has not solved the problem in 61 years. If the same plan is followed for the next 6 decades, insurgent groups will rise from fifty to a hundred. It is not solving the problem, and it is in these muddy waters that outside interests will start playing games. If you are serious about solving the problem, I think it has to be a much more verbose political approach than killing 12-year-old boys. You are only pushing helpless people, who don’t have access to justice, to the brink where they have no other option but to think of dismantling the state. I am not for once advocating that, but it is time to understand that there are problems in this approach.
Babloo Loitongbam is the executive director of Human Rights Alert, based in the conflict-ridden state of Manipur. He has been empowering the victimized communities by organizing them and opening up access to human rights redress mechanisms at the local, national and international level. Currently he is leading a monumental struggle for justice of 1528 families of victims of extrajudicial executions in the Supreme Court of India. He holds twin degrees in Anthropology and Law from Delhi University and a master’s degree in Conflict Resolution and Peace-building from Eastern Mennonite University, Virginia. He is an Ashoka Fellow and Fulbright scholar.