Indictment of AFSPA and Army’s ‘Licence to Kill

(The Supreme Court recently appointed a Committee headed by former Justice Santosh Hegde to examine allegations of fake encounters in Manipur. In January 2013, the Justice Verma Committee report on sexual violence had recommended that “sexual violence against women by members of the armed forces or uniformed personnel must be brought within the purview of the ordinary criminal law... We notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimised by the AFSPA, which is in force in large parts of our country. It must be recognised that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country.” Commenting on the Santosh Hegde committee’s report, a bench of Justices Aftab Alam and Ranjana Desai blamed the Central Government, saying “This is not the best way to integrate (north-eastern) people. It is the best way to alienate them.” The Bench further commented, “What we find distressing is that the elaborate guidelines laid down by the Supreme Court, series of guidelines issued by Army headquarters, NHRC and the Manipur government have been confined to the papers. Nothing is followed in practice (by armed forces and police while carrying out the operations)....The bench said, “The Army authorities have issued a series of dos and don’ts. But, unfortunately none of the guidelines or the dos and don’ts is followed in actual operations. One of the issues before the court is how to ensure the state police and security forces follow the guidelines”.

Excerpts from Committee’s Report are below)

The enquiry has concluded that the six cases before this commission were not cases of genuine encounters. It would appear that the security forces believed a priori that the suspects involved in the encounters had to be eliminated and the forces acted accordingly.

In the light of the enquiries made by it, this Commission would categorically like to state that the CDOs and Assam Rifles personnel have been transgressing the legal bounds for their counter-insurgency operations in the State of Manipur.

During the enquiry...it is found that the important conditions laid down by the Hon’ble Supreme Court (in the Naga Peoples Movement for Human Rights judgement in which the SC had upheld the validity of AFSPA based on certain stringent conditions – ed/) and the Dos and Don’ts issued by the Army Hqrs have remained largely on paper only. They are mostly followed in violation.

For example one of the guidelines... prescribes only the minimum force to be used for effective action....On the contrary the maximum force is visible in all six cases. ...

Though Section 176 CrPC contemplates Magisterial Enquiry into all cases of death in police custody or police action, in the cases before this Commission, Magisterial Enquiries were ordered after a lapse of a couple of years. Same is true of the judicial enquiries in two cases.

Senior officers of AR of the rank of Major deposed before this Commission that they were just “generally aware” of the Dos and Don’ts issued by Army Headquarters. In fact, some of them appeared surprised when some of the guidelines were read out to them. The CDOs and AR personnel did not appear to have any idea about the guidelines laid down in the NPMHR judgement.

Though (AFSPA) gives sweeping powers to the security forces even to the extent of killing a suspect with protection against prosecution, the Act does not provide any protection to the citizens against possible misuse of these extraordinary powers. Despite repeated questions posed by the Commission, we have not been informed of any monitoring system to review the use/abuse/misuse of these powers by the Security Forces as claimed by the Central Government in their affidavit before the Supreme Court...

Normally, the greater the power, the greater the restraint and stricter the mechanism to prevent its misuse or abuse. But here in the case of AFSPA in Manipur, this principle appears to have been reversed.

The Commission has been told that no action has been taken in the last five years against any Assam Rifles personnel for violating Dos and Don’ts issued by Army Hqrs....66 complaints were received against AR personnel, and only 3 have been disposed of. It is not known what action was taken in those 3 cases....In the last 5 years, only in one case, the Manipur Govt sought permission to prosecute an AR officer for alleged abuse of powers under AFSPA. The permission was refused by the Central Government...in the last 5 years there have been 17 writ petitions (against AR)...10 of them pertaining to alleged custodial deaths, 4 for missing persons, and 1 is a case of torture. No information is available about action taken against CDOs on the above-mentioned grounds.

There is no doubt that insurgency in Manipur is a reality. But the continuous use of the AFSPA for decades in Manipur has evidently had little or no effect on the situation. On the other hand, the 6 cases, which have been shown to be not real encounters, are egregious examples of AFSPA’s gross abuse.

The Jeevan Reddy Committee to Review the AFSPA ...found that AFSPA had become “a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness.” The Commission has carefully gone through the said Report and is in respectful agreement with the same.”

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