Murderous AFSPA: Tripura not enough. SC must act now

Let not Tripura’s decision to withdraw the Armed Forces Special Powers Act (AFSPA) cloud our vision. In spite of the fact that it is a much welcome step, especially because it has taken 18 years and much bloodshed to arrive here, there are fiercer battles over this particular law being fought elsewhere - in next door Manipur as well as the Supreme Court. Last year, a public interest litigation (PIL) was filed by two non-governmental organisations (NGOs) - Extra-Judicial Execution Victims’ Families Association of Manipur and Human Rights Alert, contending that the AFSPA be declared unconstitutional because since it had been brought into force in 1954, it has been used as a licence to kill in cold blood and with complete impunity.

This isn't the first time that the constitutional validity of this anti-insurgency law has been challenged before the Supreme Court. In 1997, the Naga People's Movement for Human Rights, a coalition of civil liberties organisations, had approached the court, drawing its attention to the alarming number of instances of human rights violations being committed by the Army and paramilitary forces. Ostensibly, the law is designed to enable the forces to keep "disturbed areas" and their population under control, to maintain and protect India's territorial sovereignty and national security.

The strongest criticism against the Act was for sections four and six, which read together, enabled the uniformed men with guns to get away with murder. For while section four granted blanket licence to shoot to kill anyone on the grounds of suspicion, section six mandated that the Centre's sanction must be obtained before any soldier, policeman or paramilitary personnel accused of committing illegalities under the cover of section four could be prosecuted. The court, at that time, did not show any inclination to read human rights and state accountability into its understanding of "national security".

However, it sounded a note of caution lest the AFSPA was made to become a vehicle of travesties. In paragraph 74, it laid down a list of dos and don'ts - that only personnel properly trained and sensitised in armed operations in civilian areas be allowed to take part in "encounters" and the like, and if any allegation is seen to have prima facie merit, necessary sanction for prosecution according to section six must be granted. Not only that, if the charges are proved, the guilty should be made criminally liable, and the victims suitably compensated by the state.

The Justice N Santosh Hegde Commission was set up by the Supreme Court in the course of adjudication of the present PIL, because six encounters alleged to be fake had not only been vehemently denied by the Manipur government, the Army, and the Centre, but also no independent or fair investigation had been conducted. In fact, the authorities asserted that any such probe would derail the fight against militancy and deliver a crushing blow to the morale of the forces on the ground.

The commission's findings, published in July 2013, were startling, to say the least. Very much like the state letting loose a reign of terror on its own people.

The committee probed six cases, one of which involved a scooterist branded as an insurgent subsequent to being shot dead. In the commandos’ own words: "He was riding a scooter in such a manner which seemed fishy to us, so we brought him down with a hail of bullets." (Not only is the claim of firing in self-defence ludicrous: the dead scooterist was alleged to have fired a single bullet from a country-made revolver, both of which were never recovered from the spot, but he was also riddled with ten rounds of the 41 fired from the most sophisticated of firearms.) Then the cover-up began: details were dug out to show that he was a member of a banned organisation and that apparently, he was headed towards a suspicious place. Did it justify the use of grossly disproportionate force? No reasons were provided as to why he was not accosted and asked to stop. Also, a member of the very team which carried out the encounter provided the tip-off.

Secondly, what about redressal? In all the six cases investigated by the commission, the state's "investigation" was a farce. In one case, no post mortem was conducted for three days, and the inquest was done in the mortuary of the government hospital and not at the spot where the supposed encounter took place. In most cases, the arms and ammunition recovered from the slain "militants" were never sent for forensic examination.

Thirdly, who were being entrusted with implementing the draconian Act? Not properly trained personnel as the Supreme Court had ordered and the state had promised in 1997, but commandos of the Manipur police. These men were given elementary training in counter-insurgency operations, but as the commission found out, they didn't have even minimal knowledge or understanding of the laws and the peremptory norms applicable to such situations, in combat, wartime, or during peace.

Even in 2005, the Justice BP Jeevan Reddy Commission undertook a detailed investigation of the ground reality, and strongly recommend that the Act be either repealed, unless of course the government did away with sections four and six and brought it in line with established principles of human rights:

"The Act is too sketchy, too bald and inadequate in several particulars... We must also mention the impression gathered by [the Committee] during the court of its work viz, the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go)."

Now that the Supreme Court has concrete evidence, and cannot afford to act out of naivete and blind belief in the armed forces as it did in 1997. "Judicial blindness" to the murderous excesses of the AFSPA and its purveyors would be a bigger injustice than the Act itself.