“We are still at the crossroads of justice,” human rights activist Babloo Loitongbam told me. “And we are waiting anxiously for the final judgment.” His response came minutes after the Supreme Court dismissed a curative petition filed by the Centre to reverse the Court’s July 2016 order that said security forces should be held accountable for human rights violations. The message from the Court was no one should be above the law. India’s Attorney General Mukul Rohatgi had claimed that if this order was not reversed, “It may, one day, be well-nigh impossible to maintain peace and security.”
At another Supreme Court hearing also in April, Attorney General Rohatgi defended India’s armed forces. This case, which had led to the July 2016 order was on a public interest litigation where the petitioners are accusing security force personnel of carrying out hundreds of extrajudicial executions in Manipur and passing them off as encounter deaths. Well, it’s the Army and for them a different set of rules should apply, was the thrust of Rohtagi’s argument. “Army cannot be subjected to FIR otherwise military operations cannot be carried out,” he said. “The Indian Army has to, in given circumstances, take quick decisions which cannot be dissected later on like an ordinary murder appeal.”
The petitioners include an Imphal–based, NGO Human Rights Alert, and a group of men and women from different backgrounds who have lost their near and dear ones to violence and call themselves the Extrajudicial Execution of Victims’ Family Association or EEVFAM. It’s a name that lends itself to a difficult acronym, and perhaps an even more difficult task of getting justice for the dead.
This group of human rights defenders, from the Indian state of Manipur bordering Myanmar, carefully holds on to memories of their family members who they say were raped or extrajudicially executed by members of the police, paramilitary and Indian armed forces. From 1979 to 2012, they say, 1,528 civilians - including 98 children - have been unlawfully killed by the state. This is the tally they preserve with their souls. These are the stories they don’t want the world to forget, and they carry them to the courts in anticipation of closure.
This quest for justice began way back in the nineties with a group of human rights activists and lawyers from Manipur and Delhi meticulously documenting torture, rape and murder allegedly carried out by the state. Babloo Loitongbam, Irom Sharmila, Colin Gonsalves, Preeti Varma, unknown names then, came together and quietly started their legal resistance to alleged brutality of the forces in the name of counterinsurgency. EEVFAM was formed much later around 2009. They entered the Supreme Court in New Delhi with a writ petition in October 2012. And since then, Human Rights Alert, EEVFAM and their lawyers - with the rest of Manipur, it seems - have been in the waiting room for justice.
The routinization of violence
In July 2016, the Supreme Court came up with a welcome order. The Court made it clear that security force personnel accused of human rights violations must not be allowed to get away with impunity. The Court stated, “If any death is unjustified, there is no blanket immunity available to the perpetrator(s) of the offence. No one can act with impunity particularly when there is a loss of an innocent life…. From the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition [that Army personnel have immunity from civilian trials] is equally unsettling and demoralizing, particularly in a constitutional democracy like ours.”
I’d asked Babloo then, “You must be happy?” He welcomed the judgment and added that, “the real sting” would come only when the court ruled on the nature of investigation of the cases. Seven months later his words sound prophetic, as arguments and counter-arguments roll on inside the Court on this very issue.
Legally, the Attorney General’s team has argued that there is a bias against the forces: “Whether it’s Jammu and Kashmir or Manipur, we are facing the same local bias. Why doesn’t any judicial inquiry ever exonerate the Army? These inquiries (have) never said that Army did the correct thing. Army is facing problems due to bias in such inquiries.”
The basic premise of dismissing such inquiries appears to be that the Army is infallible and should not be questioned. Allegations of bias, and saying that lower courts work under “local pressure and considerations”, veer dangerously close to delegitimizing the decisions of lower courts. The Attorney General has tried to argue that there are different rules for the Army - including Army investigations and prosecutions – but India’s military justice system lacks both transparency and independence. Something the bench implicitly acknowledged when it said, ““The [Army] court of inquiry is for the benefit of the army. It is not for the satisfaction of the public, which has the right to know the truth behind any incident.”
The Attorney General and the government’s views appear to reflect a belief that the law is simply a matter of convenience, which can be used to justify violence in the name of sovereignty. It is this attitude that the writer China Mieville critiques, saying, “Violence is the constant backdrop, threat and constituent of legal relations, so it is in the interest of states, particularly the powerful to be able to use violence with few constraints.” In Between Equal Rights: A Marxist Theory of International Law, Mieville writes specifically in the context of international law. However, his premise on what he calls the laissez-faire approach to violence is no less pertinent in Manipur’s context.
The Attorney General asserts there is a war-like situation in Manipur: “Our sole test is if such things (insurgency) are happening, I have to act under AFSPA. Otherwise, I will be held guilty. We don’t count bullets. Army does not collect empty shells. We have to fire. We have to save ourselves, save the country and its people. Either apprehend or kill, which is mainly done in the defence of the country. There is no third option. If I don’t do what I am supposed to, then I am exposed to a punishment which may include death.”
This framing tends to routinize violence. Thus horrific violations like the one that happened in July 2004 when Indian security forces barged inside the house of Thangjam Manorama Devi, a 32-year-old Manipuri woman and then allegedly raped and shot her, are covered up as incidents that occur in the context of national interest.
This framework would find it difficult to acknowledge that a commission appointed by the Supreme Court in this very case in January 2013 to examine six sample cases of alleged extrajudicial executions, found all six cases to be fake encounters, and said that the Armed Forces (Special Powers) Act was widely abused by security forces.
No Trust In Manipur
“They don’t trust families. They don’t trust local judges”, a Manipuri researcher who didn’t want to be named, told me. This argument could easily be extended to “They (some Indians) don’t trust Manipur.” Professor Lokendra Arambam, in a 2009 interview on extrajudicial executions, told me, “I am afraid, the government of India is interested in the land and not in the people of Manipur.” This attitude towards Manipur looked at closely it actually takes us back to the premise of colonialism and the idea of JS Mill that colonies have to be governed until they can govern themselves.
2017 is not the first time that Manipur has witnessed commissions and cases on extrajudicial executions. In 2000, an Independent People’s Inquiry Commission headed by H Suresh, a former Judge from the Bombay High Court, underlined the uncontrolled power given to the Army and the helplessness of the civilians in the face of rapes and murders allegedly carried out by security forces. In neighbouring Nagaland, the Naga People’s Movement for Human Rights (NPMHR) even challenged the constitutionality of the AFSPA in 1982. The Supreme Court judgment that came in 1997 upheld the law, but specified a set of “do’s and dont’s” for the Indian Army, which have frequently been ignored. In 2017, in the vortex of judgments and arguments, civilians seem to be caught in an uphill battle for their own rights guaranteed by the Constitution.
In 2011, Julian Assange’s Wikileaks published a cable by Henry V Jardine, the then US Consulate General in Kolkata, to Washington DC about his 2006 visit to Manipur. Jardine is quoted as writing, ““In ConGen’s many interactions, even with some government officials, a reoccurring comment was that Manipur was less of a state and more of a colony of India. The general use of the AFSPA meant that the Manipuris did not have the same rights of other Indian citizens and restrictions on travel to the state added to a sense of isolation and separation from the rest of India ‘proper’.” Ironically, this depressing remark, even after more than a decade, has stood the test of time. The fate of Manipur in 2017, could well be as revealed in Wikileaks in 2011 or even October 1949, when Manipur was integrated as a part of a newly independent India. The king of Manipur was put under house arrest in Shillong when this happened. More than seventy years later, as the battle for justice for 1,528 dead souls from Manipur is fought with precise detail and evidence, the story of Manipur as part of India is for everyone to see.
Arijit Sen works for Amnesty International, India.