United Nations Human Rights : The Manipur Experience
- Part 4 -

Babloo Loitongbam *

(This write up is the speech delivered by Babloo Loitongbam at the 14th Arambam Somorendra Memorial Lecture organised by The Aramam Somorendra Trust held at Lamyanba Sanglen Palace Compound, Imphal East )

24. The Special Rapporteur notes that the Supreme Court of India held that the declaration of a "disturbed area" under AFSPA must be "for a limited duration and there should be periodic review of the declaration before the expiry of six months". He found, however, that this procedure is not followed in practice, and AFSPA remains effective for prolonged periods without a review of the context in the respective area.

25. The Special Rapporteur wishes to underline that several international bodies have called for the repeal or reform of AFSPA, including the former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. Furthermore, Indian authorities at various levels have also expressed their support for the repeal of AFSPA. In this context, the Indian Government set up a special committee in 2004, tasked with examining the provisions of AFSPA and advising the Government on whether to amend or repeal the Act.

The special committee found that AFSPA should be repealed – that it was "quite inadequate in several particulars" and had "become a symbol of oppression, an object of hate and an instrument of discrimination". The need to repeal AFSPA was reiterated by the Second Administrative Reforms Commission in its fifth report, published in June 2007. Finally, the NHRC shared with the Special Rapporteur its views in support of AFSPA's repeal during a meeting held in New Delhi.

26. The Supreme Court of India ruled, however, in 1997 that AFSPA did not violate the Constitution. The Special Rapporteur is unclear about how the Supreme Court reached such a conclusion. The Special Rapporteur, however, notes that in the same case the Supreme Court declared as binding the list of "Dos and Don'ts" elaborated by the Armed Forces, and containing a series of specifications on the manner of applying AFSPA in practice. Although the list contains more precise guidelines on the use of lethal force under AFSPA, the Special Rapporteur believes that they still fail to bring AFSPA in compliance with the international standards in this regard.

27. In the Special Rapporteur's view, the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict.

This situation is also difficult to reconcile in the long term with India's insistence that it is not engaged in an internal armed conflict. The Special Rapporteur is therefore of the opinion that retaining a law such as AFSPA runs counter to the principles of democracy and human rights. Its repeal will bring domestic law more in line with international standards, and send a strong message that the Government is committed to respect the right to life of all people in the country.

28. The Special Rapporteur was encouraged to hear from several Government officials that AFSPA is in the process of being amended, which will lead to reduced powers provided to the armed forces acting under this Act. This is a welcomed first step.

In Geneva, when the Special Rapporteur presented his report of his mission to India. Government of India blasted Prof. Heyns for disrespecting the Supreme Court in his report for his comments on how he could not understand how the Court upheld the constitutionality of AFSPA. But the Rapporteur responded by quoting GA resolutions that his mandate requires him to examine every organ of the government and the society including the judiciary pertaining to his mandate and the Supreme Court is not exception.

Two years later the Special Rapporteur did a follow up report of his mission to India contained in document A/HRC/29/37/Add.3 dated 6 May 2015. In the follow-up report he has the following to say about AFSPA and related legislation:

15. In his country visit report, the Special Rapporteur noted that the situation concerning the use of force in India was exacerbated by the implementation of the Armed Forces (Special Powers) Act. The Act is applied in areas that have been declared "disturbed" or "dangerous" to the extent that the use of armed force is deemed necessary. These have included areas of Manipur, Assam, Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura, while in Jammu and Kashmir, a nearly identical piece of legislation known as the Jammu and Kashmir Armed Forces (Special Powers) Act is applied.

16. Particular concern was expressed in the report over the provisions in the Act regulating the use of lethal force, in violation of the international standards on the use of force, and the related principles of proportionality and necessity. The Special Rapporteur also expressed his concern at the protection granted to officers under the Armed Forces (Special Powers) Act and the Jammu and Kashmir Act, where the prosecution of such officers is prohibited unless sanction to prosecute is granted by the central Government. This rarely occurs in practice.

Thus, accountability for extrajudicial or arbitrary killings committed by armed forces members is frequently made practically impossible. The Indian Supreme Court upheld the constitutionality of the Act and provided several conditions on the use of the special powers conferred on the Armed Forces by section 4 thereof. This part of the country visit report in particular was strenuously opposed by the Government in its comments thereto, on the basis that the State viewed it as a gross disregard for the Supreme Court (see A/HRC/23/47/Add.7, para. 1).

This approach seems not to take into account the fact that the special procedures of the Human Rights Council regularly pronounce on the rulings of domestic courts from all over the world, in line with the established principle of international law that States are internationally responsible for the actions of all their organs (see General Assembly resolution 65/19).

17. Several international bodies and Indian authorities have subsequently also expressed concern over the provisions of the Armed Forces (Special Powers) Act. The Justice Verma Committee, constituted in December 2012 as a result and within a few days of the brutal gang rape and murder committed in New Delhi on 16 December 2012, recommended the continuance of the Armed Forces (Special Powers) Act and similar legal protocols in internal conflict areas be immediately reviewed. The Committee found that the review was necessary in order to determine the propriety of resorting to such legislation in the areas concerned.

In July 2014, the Committee on the Elimination of Discrimination against Women called upon India to implement the recommendations of the Justice Verma Committee and to promptly review the continued application of Act and related legal protocols (see CEDAW/C/IND/CO/4-5, para. 13 (a)). The Committee also urged India to amend and/or repeal the Act, so that sexual violence against women perpetrated by members of the armed forces could be brought under the purview of ordinary criminal law and, pending such amendment or repeal, to remove the requirement for government permission to prosecute members of the armed forces accused of crimes of violence against women or other human rights abuses of women, and to grant permission to enable prosecution in all pending cases.

18. In part V, paragraph 5.4 of its report, a commission appointed by the Supreme Court stated that it was time to progressively de-notify areas of the State under the Act, and to withdraw section 144 of the Code of Criminal Procedure. That commission agreed with the Jeevan Reddy Committee created to review the Act. The Committee¼s report has not been made public, but determined that the Act had become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness, and that it was highly desirable and advisable to repeal it altogether. In part IV, paragraph 3.10 of its report, the commission found that the conditions laid down by the Supreme Court had remained largely on paper only and were mostly followed in violation.

19. The Special Rapporteur, however, regrets that India has not followed the recommendation that it repeal or at least radically amend the Act, as well as the equivalent legislation in Jammu and Kashmir, to ensure that legislation regarding the use of force is brought in line with international human rights law and to remove all legal barriers for the criminal prosecution of members of the armed forces.

The Special Rapporteur also recommended that, while waiting for the necessary repeal or amendment of the Act, it must be ensured that the status of a "disturbed area" is subject to regular review and a justified decision is made on its further extension. In that regard, he has been informed that states of the North-East and Jammu and Kashmir regions continue to be declared "disturbed areas", without any deliberation, justification or reference to the scale of insurgency in the respective areas.

Public Statement by Special Rapporteur on Summary, Arbitrary or Extrajudicial Execution and Special Rapporteur on situation of Human Rights Defender

In Manipur, EEVFAM and HRA converted the memorandum to the Special Rapporteur into a Public Interest Litigation to the Supreme Court of India2 seeking justice for a list of 1,528 victims of extrajudicial execution carried out from 1979 to 2012. The apex court after perusing report of its own fact finding commission and acknowledging the systematic violation of the right to life under AFSPA, pronounced a historic judgment in 2016 re-asserting that the criminal cases should be registered against the police and armed forces of the union and that criminal investigation should commence in each case of extrajudicial killing.

But this is easier said than done. The Central Bureau of Investigation (CBI) was assigned to investigate 98 cases where there is already a prima facie finding. But the CBI is not only carrying out the task in a very slow pace but also demonstrate extreme reluctance to do so. Witnesses and human rights defenders involved in the case are systematically intimidated and harassed.

This has compelled the present UN Special Rapporteur on Summary, Arbitrary or Extrajudicial Execution, Ms. Agnes Callamard and the UN Special Rapporteur on situation of Human Rights Defender, Mr. Michel Forst to issue a public statement on 4 July, 2018 reiterating that "the Government of India has an obligation to ensure prompt, effective and thorough investigations into all allegations of potentially unlawful killings, and a failure to do so is a violation of its international obligations. Justice delayed is justice denied."

They also stated that "some of these families have been waiting decades for these cases to be fully investigated. It is unacceptable that CBI is failing to meet these deadlines and appears to lack good faith". They further stated that "we are extremely concerned that the delay appears to be deliberate, undue and unreasonable and we condemn this lack of progress."

Till date only 39 FIRs have been registered and eight charge sheets have been filed against some lower ranking Manipur Police personnel. Five final reports have been submitted stating that no charge can be made out. EEVFAM is challenging the report in the Session's Court in Imphal.

No armed forces personnel of the Union involved in the killing have been indicted till date. In fact, in August 2018, when the first army officer, one Major Vijay Singh Balhara (now Colonel), was even named in the First Information Report, 356 serving army personnel moved the Supreme Court in a Writ Petition3 seeking class impunity from legal action in their conduct of counter insurgency operations. The number of army personnel signing the petition swelled up to more than 750.

Even though the court finally dismissed the petition on 30 November 2018, such a demonstration of military valour in the court, supported by the Attorney General, has effectively stopped the proceeding in the EEVFAM case. The Supreme Court registry has not listed the case for hearing since September 2018.


(To be continued.....)