Dangers of army being law unto itself are self-evident

While the report on human rights violations in Kashmir of the UN Office of the High Commissioner for Human Rights, OHCHR, has drawn all of India’s attention and ire, the same office also put out on July 4 a scathing indictment of the record in the North East. It said the Central Bureau of Investigation (CBI), tasked by the Supreme Court to investigate the veracity of the charge of 1,528 fake encounter killings by security forces in Manipur, is seemingly stalling the investigation. It is the latest scar on the country’s democratic credentials, thanks to the Armed Forces Special Powers Act (AFSPA), 1958.

The case of the 1,528 encounter deaths, filed by civil organisations -- the Extra-Judicial Execution Victim Families’ Association (EEVFAM) Manipur, and Human Rights Alert (HRA), Manipur -- is pending in the Supreme Court since 2012. The Union and Manipur state governments have been contending that all those killed were insurgents and these deaths happened in actual encounters. In 2013, the Supreme Court appointed a 3-member commission headed by Justice Santosh Hegde to ascertain if the charges of fake encounters carried weight.

The commission picked six of these cases at random and held hearings in Imphal, and its findings were that all six were custodial killings. In 2016, the Supreme Court tasked the CBI to investigate the rest of the cases. On June 30, the CBI indicated that it had investigated no more than four cases.

The disturbing question is, whether at an unconscious level, there is a widely shared belief that draconian measures, and with it severe collateral damage, even if it means disregard of international human rights standards, are necessary to meet militant challenges to the State. Equally, the suspicion is, this shared belief may be what has ensured the continuance of AFSPA in the North East, and in Kashmir since 1990. Exposed in the process is a failure of liberal imagination in India to come up with a civil solution to civil unrest for six decades now. If AFSPA was an emergency measure resorted to in 1958 in the then Naga Hills district of Assam to fight Naga insurgency, the question is, can an emergency last 60 years? And if it does, can it still be called an emergency and not a failure of democracy?

There is an inherent contradiction in AFSPA. This has to do with the use of an instrument of war in a situation of civil unrest. As a short duration emergency measure, perhaps, this would be justifiable but definitely not as a sustained campaign. But given that AFSPA has lasted decades, should not these unrests be treated as war, to justify the use of the military and the State’s belligerence.

Regardless of the atrocities committed, the military under AFSPA cannot be taken to court and will remain accountable only to itself and its martial law. The dangers in this are self-evident.

To the contrary, these unrests continue to be treated as internal law and order situations, for calling them ‘war’ would have other implications. As, for instance, war implies an international conflict, thereby according these insurrections the status of putative states. Moreover, international norms of war such as the Geneva Conventions and the Hague Conventions would become applicable; so would international mediation. No nation, least of all India, would want this.

There have, however, been several serious institutional attempts at an answer. The most notable is the Justice Jeevan Reddy Commission instituted in 2004 to look into the relevance of AFSPA and to “humanise it”. The commission recommended in 2006 the repeal of AFSPA and to incorporate its provisions into the Unlawful Activities (Prevention) Act, UAPA. In short, the continued use of the military in these civil situations, but after making the military’s actions accountable to civil law. The acknowledgment is that the military’s firepower may be essential to neutralise the firepower of the insurgents but the actions of the military in policing role must be made accountable to civil
law. The recommendation did not see the light of day officially because of objections from military brass, but thanks to some radical practitioners in the fourth pillar of Indian democracy, the entire document is public.

The objections to AFSPA is not only the sweeping powers it gives the military, such as to use force to the extent of causing death on mere suspicion that a person is a militant, or to enter homes and make arrests without warrant, or to destroy shelters (houses) on mere suspicion of militants hiding in them, etc., but more so to the impunity provided to those practicing these powers. Regardless of the atrocities committed, the military under AFSPA cannot be taken to court and will remain accountable only to itself and its martial law. The dangers in this are self-evident.

It is true that the police can be equally brutal. In places where AFSPA has been around for long, the culture of impunity has spread to the police as well, though AFSPA does not cover them. Indeed, many of the more recent encounter killings amongst the 1,528 cases in Manipur were the doings of the state’s notorious police commandos. But the difference is, the police is accountable to civil law. When atrocities are exposed, they are liable to be punished, and they know this. The sensational expose by Tehelka in July 2009 of the daylight murder of Chongkham Sanjit by the police, and the legal actions that followed, caused a sudden drop in fake encounters in the state. The victims in these cases are not totally powerless. This remains a vital safeguard. The army, too, must learn to function within the limits of such a safeguard.

(The writer is Editor, Imphal Free Press)