As blood of ‘fake encounters’ singes AFSPA, the law needs to be done away with in totality

Good legislation is necessary, effective, clear and coherent. But in a complicated country like ours, quality of implementation and perception are equally important.

The much-abused Armed Forces Special Powers Act (AFSPA) has been removed from certain pockets of the North East. And not a day too soon. This is an encouraging sign but it should not be mere posturing or symbolic in nature. AFSPA needs to be done away with in totality.

There are some irrefragable reasons for AFSPA to go: Extrajudicial killings; lack of political intent; and alienation of the civilian population.

In November 2000, 10 civilians were gunned down by the 8th Assam Rifles at Malom Makha Leikai, near Imphal’s Tulihal airport. While the troops claimed there was an encounter underway, after the convoy had come under attack from extremists, the Manipur High Court observed no such incidents were reported.

After 21 years, the high court ordered a compensation of Rs 5 lakh for each of the families of the victims. Activist Irom Sharmila went on a fast and eschewed solid food for 16 years until justice was served.

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The Malom massacre in the year 2000 is often compared to the My Lai massacre committed by American troops on unarmed South Vietnamese civilians in 1968 during the Vietnam War. Having said that, the death toll at My Lai was far higher. Between 347 and 504 unarmed people were killed by US Army soldiers.

Victims included men, women, children, and infants. Some of the women were gang-raped and their bodies mutilated, as were children as young as 12. Twenty-six soldiers were charged with criminal offences, but only Lieutenant William Calley Jr, a platoon leader in C Company, was convicted.

Found guilty of murdering 22 villagers, he was originally given a life sentence but served three-and-a-half years under house arrest after president Richard Nixon commuted his sentence.

What followed after the Malom massacre has similarities to the aftermath of the My Lai massacre. Justice was delayed; charges were denied; a cover-up was attempted and a measly compensation was doled out 21 years later.

Back home and before Malom was another horrific incident. In February 1994, troops of the 18 Punjab regiment based at Dhola in Tinsukia, picked up nine youths from their homes in Tinsukia district’s Talap area following the death of Rameshwar Singh, the general manager of the Assam Frontier Tea Limited at the Talap tea estate. Singh was allegedly killed by the United Liberation Front of Asom (ULFA).

After receiving reports of the missing men, a habeas corpus in the Gauhati High Court was filed. Following the court order, the special forces released four men, while the other five were taken on boats to the Dibru-Saikhowa National Park, where they were shot.

The boatmen, reportedly, were untraceable too. Post-mortem of the bodies revealed that the five men were brutally tortured before being killed. In 2018, seven accused personnel were given lifers.

The Amshipora murders or the Shopian fake encounter refers to the killing of three Kashmiri labourers, including one minor in Amshipora village, in Shopian. The incident took place on 18 July 2020, when the armed forces alleged they received inputs about the presence of militants and carried out the operation.

It was later confirmed the deceased were labourers. Two army personnel were arrested while one was detained.

The rape and murder of Thangjam Manorama still resonates in Manipur. She was a 32-year-old woman who was killed by the 17th Assam Rifles on 11 July 2004. Her bullet-ridden and badly mutilated body was found abandoned. Investigations revealed she was reportedly tortured and raped before being killed.

At the time of the arrest, no incriminating items were found, as per the arrest memo. Later it was said that a grenade and other items had been seized from her home. Assam Rifles claimed she was shot while trying to escape. However, no blood was found near the body despite six bullet wounds.

A commission of inquiry was set up by the Manipur government in 2004, and submitted its report in November 2004. However, the Gauhati High court also looked into the matter and ruled that since the Assam Rifles had been deployed under the AFSPA, the state government did not have jurisdiction over them.

And the case should be dealt with by the Centre. The report was never released subject to this judgement.

Five days after the killing, around 30 middle-aged women walked naked through Imphal to the Assam Rifles headquarters, shouting: “Indian Army, rape us too… We are all Manorama’s mothers.” Padma Shree author MK Binodini Devi returned her award in protest.

In early 2012, the Justice Varma committee included measures for reviewing AFSPA as part of a set of steps to reduce violence against women; these measures were partly attributed to the protests involving Manorama.

Recently, in December 2014, in a case filed at Supreme Court, the apex court awarded a compensation of Rs 10 lakh to Manorama’s family. But in the past courts could not spell any judgement against culprits for awarding punishment.

And now for the politics behind it all.

Taking Kashmir as an example; Section 4 of the AFSPA gives power to an officer to destroy any arms dump, prepared or fortified position or shelter. This is one of the most contentious portions of the Act, which is bitterly resented by the locals. And that is because in 99 per cent cases, when terrorists hole up in a house, it is destroyed later by the paramilitary forces.

During the UPA regime, P Chidambaram, who was home minister in the Manmohan Singh government, was in favour of withdrawing AFSPA from certain areas. The home ministry had routed a proposal too, but it was turned down by then defence minister AK Antony, as per available information.

The Congress was in favour of dialogue with the stakeholders in the Valley. But the BJP government took a tougher stand.

Figures from the home ministry show deaths in all three categories — civilians, security personnel and terrorists — have spiked. Between 2014 and 2018, the number of civilians killed in Jammu and Kashmir had risen by 35.71 per cent; the number of security persons killed had increased by 93 per cent and the number of terrorists killed had seen a rise of 133.63 per cent.

So, this is indication enough that politics apart from the cold reality on the ground tells a different story.

Security experts argue that AFSPA should not be construed as a “licence to kill”. And that charges of extrajudicial killings or “fake encounters” against armed forces personnel must be investigated.

What is said in favour of the law is it shields armed forces, involved in anti-insurgency operations, against attempts to malign them. But what happens when those powers are misused?

Finally, it all comes down to how effective the local police are in handling such situations. They need support from the state governments.

Beyond these arguments — the simple truth is that each error bears its own human cost. And in the case of AFSPA there is no procedural fairness or room for rectification of the errors. It needs to be dead and buried.

This is Part 2 of a two-part series. Click here to read Part 1.

The author is CEO of nnis. Views expressed are personal.

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