(Imphal: Waba Publications, 2014): pages 848; price 600/-
On April 6 2015, a 13 year old Karbi girl, her mother and grandmother were allegedly raped and molested by jawans of the 8th Jat Regiment near their village located in Parkopar area of the Karbi Anglong district of Assam. A villager who tried to intervene was roughed up by the soldiers and an infant was also injured. The incident sparked off wide public protests both within the district as well as in the state capital and elsewhere. An FIR was lodged at the Dokmoka PS by villagers on 8th April and a protest demonstration two days later turned violent in which 12 persons, including some security men, were injured in stone pelting and police firing. Following the protests, the state police and district administration instituted two probes and the defence ministry asked the army to conduct an internal inquiry into the incident. The SP of Karbi Anglong and the Assam Home Secretary clarified that since the state is under the Armed Forces (Special Powers) Act, the officials will have to seek sanctions from the Centre before prosecuting the guilty. In November 2014, the Centre extended the AFSPA for another year in Assam and, like before, declared the “entire state of Assam” as ‘disturbed’. Incidentally, Karbi Anglong, the erstwhile Mikir Hills district of Assam, has been within the ambit of the Act for a very long time.
Several issues arise out of the above. First, the heinousness of the crime: the rape (or was it a gang rape?) of a minor and her two female relatives by men in uniform. Second, the impunity with which the soldiers attacked a civilian and an infant in order to cover up their crimes. Third, the violent public protests exhibiting civilian anger against the continuance of the Act. Fourth, the question whether the army will hand over the guilty as the Act protects men in uniform against “prosecution, suit or other legal proceedings” (section 6, AFSPA). Fifth, the power of the Centre to declare any region or state as ‘disturbed’ (section 3), despite law and order being a state subject. Sixth, the recurrence of a pattern of impunity and resistance which accompany army atrocities. Not surprisingly, the present incident was followed by reports of molestation and harassment of residents by unidentified jawans in Jullang village in Lower Taraso in Papum Pare district of Arunachal Pradesh. The incidents also occurred on 6th April 2015 and the residents lodged an FIR at Balijan PS and questioned the legality of such unwarranted action. Notwithstanding the legitimacy of public queries, it is worth remembering that the Act empowers commissioned and non-commissioned officers to “enter and search without warrant any premises” (section 4).
These two recent instances form only a miniscule of the total number of incidents (reported and unreported) of atrocities committed by security personnel. Over the years, the Act has spawned a culture of impunity underlined by scores of enforced disappearances, ‘encounter’ killings, custodial deaths, torture, rapes, molestations, intimidation, harassment etc. Enacted in 1958 and first applicable to the then state of Assam and the Union Territory of Manipur, the writ of the Act today runs over all the seven states of the North-East as well as Jammu and Kashmir. Even though the ‘disturbed area’ notification varies from state to state, the fact of the matter is that the consequences of militarization on civil society are over half a century old and the people of these areas have long demanded an end to the Act. The iconic hunger strike of Irom Sharmila since November 2000, the naked fury of the Meira Paibis against the rape and murder of Thangjam Manorama in 2004 or the violent stone pelting protests in Kashmir in 2010 are some of the well-known protests in recent times. Particularly in the last thirty years, the experiential history of impunity and resistance has been documented by a variety of people including activists, lawyers and scholars. Within this growing body of literature, Malem Ningthouja’s aptly titled, India's War on Democracy: The Debate on AFSPA 1958 (Imphal: Waba Publications, 2014) is an important addition. Chronologically arranged, the book begins with the Armed Forces (Special Powers) Ordinance 1942 and ends with a note on the culture of impunity documented by Amnesty International in November 2013. Ningthouja states in the “Introduction” (p xviii) that the volume offers four different kinds of writings: a) parliamentary debates and questions; b) excerpts from booklets, pamphlets, memorandum and press-releases; c) court orders, judgments and petitions; d) and miscellaneous documents including suicide notes, reports, articles, Acts and others. Through these varied writings spread over 800 pages, the anthology chronicles seventy one years of history. While some of the documents are known, there are others which are unknown and which have been translated along with their sources for the convenience of the English reading public.
The book deserves to be appreciated for providing vast archival materials for scholars and activists interested in understanding the contemporary debate on the AFSPA. The debate can be broadly summed up in two substantive issues: one, the intention underlying the promulgation, particularly the question of interests; and two, the subject of resistance including the forms and modes of protest. These issues presume a historical understanding of the changing nature of contested relations between the processes of militarization and people’s aspirations for self-determination and resistance against the suppression of democratic rights. The immediate scope of the book is to provide a comprehensive understanding of how the “India’s War on Democracy” has been fought in the not-so-level-playing-fields of Manipur, even while the war has never been acknowledged by India. The discussion below addresses the author’s particular understanding of the contested relations and draws attention to certain specific issues arising out of the contents.
The argument: setting the stage for war
Against the overwhelmingly legal turn of contemporary debates, Ningthouja presents a materialist and Marxist reading of the political economy of militarization in the “Introduction”. His contention is that the AFSPA should not be regarded as “a factor of rights violation but as a syndrome that is integral to the larger context of militarization.” Building his analysis on the expansionist drive of capital and the corresponding growth of the coercive state apparatus for protecting the ruling class interests, Ningthouja argues that the transfer of political power in 1947 facilitated and consolidated the territorial ambitions of this class of‘ big bourgeoisie’, represented by Nehru and others. This ambition spurred the ruthless incorporation of the erstwhile princely states and prompted control over strategic territories and natural resources. The Northeast was a necessary part of this advancing ambition as it offered important security locations and untapped resources. The ruling class adopted and continued the colonial policy of suppression and subjugation in order to quell aspirations of secession and to forcibly ensure accession.
Militarization was the logical corollary and the AFSPA was introduced in 1958 specifically as an instrument of suppression against the Naga aspirations for self-determination. With the lateral spread of the Act, the ‘community of suspects’ only grew, as more areas and people came under its ambit. Consequently, militarization fuelled local ambitions of the ‘rentier bourgeoisie’, comprising “landlords, usurers, contractors, commission agents, corrupt officials, petty merchants etc.” which benefited and profited from military policies. As a result, class collaboration between the local and national ruling classes was possible as the former lacked the need for independent initiatives towards creating capital through industrial investments. Besides profits, the local bourgeoisie gained politically and electorally through adroit manipulation of the tools of political bargaining which successfully divided the people along ethnic and community lines. This is precisely what the national ruling classes needed for their own advancement: a competitively divided society which could be ruthlessly suppressed and selectively mobilized for furthering schisms.
Ningthouja argues that the state’s double imperatives, of military pursuit and collaborative class interests, powerfully set the conditions of war and compelled the fractured resistance movement to acknowledge and accept the terms of militarization. As an instrument of power, the AFSPA grants absolute right to the army and paramilitary to take-over all strategic lands, occupational and recreational areas and important buildings and structures in ‘disturbed areas’. The armed forces are complemented by state police force and other auxiliary battalions drawn from among the local youth, including educated middle-class ones. Obviously militarization is not an outside alien factor but a necessary field of force which has directed and continues to dominate civil society by providing employment opportunities, upward mobility, economic prosperity and political authority. In today’s context, the culture of impunity, outlined in the introductory incidents, extends to rampant bribery and corruption. The tentacles of militarization have tapped into other social forces such as communal bosses and surrendered militants who have become important stakeholders in this war. In all this, the case of the guerrilla warfare has become most vexed and troubling as it seems to have lost its plot of national liberation and has ended up embracing the model of the Indian state, including its taxation and conscription. Within this bleak and ravaged picture, the real casualties of militarization are the fundamental and democratic rights of people.
Ningthouja’s analysis is cogent and compelling and exhibits his deep understanding of how militarization has affected Manipur. As a scholar and activist he combines his theoretical and historical arguments with political commitment. The only drawback is that he omits citing relevant materials anthologized in the book as illustrations for his arguments. This creates a disjunction between the introduction and the rest of the book and leaves some of his arguments hanging. His assertion that the chronological framework of the book aims at offering “sequences of events” (p xviii) is not necessarily convincing as it can be argued that a thematic arrangement would have helped better in bringing out the rigour of his theoretical formulations. Notwithstanding this lack, it must be said that some of the documents are extremely moving and one is struck by the range of political emotions that the issues arouse such as in Phizo’s plebiscite speech of 1951 (pp. 41-57) or in a leaflet entitled “Eikhogi Wakat” “Our Cry” (pp. 484486) or in the personal Suicide Note of Chanu Rose (pp. 470-71), to name just a few. Overall, the book offers itself as a testimony to the struggles which people have waged and continue to wage against this unjust war. Taking a cue from the title, “The Debate on the AFSPA”, a few issues that expand the debate are highlighted below.
The Expanding Debate
The official doublespeak. Any historical discussion on the AFSPA involves turning attention to the parliamentary debates of 1958 and reiteration of the facts that the Act came in the form of an Ordinance twelve days after the Budget session of the Parliament was over, or that very little time was actually spent in debating the matter in either of the two Houses. Notwithstanding the dissent expressed by several parliamentarians, the legislative fiat was accomplished because of the ‘brute majority’ of the Congress ruling party. While all this is well known, what is, perhaps, less known is how the clause “in aid of civil power” (section 3) was explained away by the ruling party. The Minister of Home Affairs, GB Pant, explained the clause as “a very simple measure” (p. 59) meant to contain the “hostile Nagas” (!) and assured that “no power is transferred from the executive authority.” (p. 67). The Minister of State for Home, BN Datar, categorically stated that “civil authority is not abdicated at all, is not abrogated at all” (p 148). However, the debate turned acrimonious and the Rajya Sabha members were not satisfied with the argument that “there is no dispute”. The Law Minister, AK Sen had to be called in particularly since he had a ‘hand’ in drafting the Bill. The Law Minister actually stated that the “in aid of civil power” means supplanting civil power as he argued that when the Governor makes up his mind that an area is disturbed, “the very fact that he forms that opinion shows that the ordinary civil power cannot cope with the situation”. (p 164) In the same speech he asserted that “the forming of opinion (about what to do) as regards certain actions to be taken must necessarily be left to the military officers”. He admitted that “it would be difficult to entrust the civil authorities with the authority to give directions to the military authorities” (what can be permitted in sections 129-131 of the Cr.PC, Code of Criminal Procedure).
Even while the Supreme Court upheld that the Act does not “displace the civil power” in its judgment of 1997 (see pp. 600-605), there is clear proof that the lawmakers meant otherwise. There is damning proof provided in the Law Minister’s speech delivered on the floor of the House. He admitted to the Act supplanting civil authority. This admission nails the lie that has often been given about ‘in aid of civil power’; it substantiates why the Act must be repealed as a democracy cannot remain intact when civil power is supplanted by military force and injunctions.
The wheels of justice:
How do wheels of justice turn and how long does it take for two mothers to convince the courts that their two sons had been killed by security personnel as they never returned home? A quick look at three judgements pertaining to the issue of enforced disappearances explains this tragic story. Two boys, K. Loken Singh alias Premjit Singh (21 yrs) and T. Lokendra Singh (19 yrs) who were picked up army men of the JK Army Rifle in Manipur in September 1980 never returned home. The army maintained that they had taken the two boys along with another boy, K Iboyaima Singh on 23rd September 1980 and released all three on 25th September, two days later. In their many petitions before authorities, the families of the two disappeared boys stated that whilst Iboyaima Singh was admittedly released and that he returned home on 26th September, the two boys did not. Two habeas corpus petitions filed by the families came up before the Guwahati High Court in September 1981. A single bench judge rejected the petitions as it accepted the army’s position: that it had taken the three boys into custody; that it released all three of them; that their release was shown as ‘white’ (meaning innocent) in the army’s secret documents; and that it had informed the families on 30th September. The court refused to take into consideration the account of torture that the third boy revealed as this had “never been mentioned in any of the applications of the petitioners to different authorities” (p. 493). The only concession the court was prepared to make was that the army should have complied with section 5 of the Act and handed the two boys over to the nearest police station instead of merely releasing them.
The matter once again came up before the same court in 1988 as the two petitioners were “aggrieved” by the dismissal of their writs (p. 544). However, the two bench judge once again dismissed the petitions on the same grounds as before. Significantly, the bench drew attention to the 1983 Supreme Court judgment on a similar matter of enforced disappearances, of C Daniel and C Paul in March 1982 (see Sebastian M. Hongray vs. Union of India and Others, pp. 520-535) by the 21st Sikh Regiment. The apex court had admitted the writ as it was “satisfied that the respondent was responsible for the unauthorized and illegal detention” of the two persons. The Guwahati High Court drew attention to this matter only to reject its relevance in the case of the disappearance of the two boys, Premjit Singh and Lokendra Singh, on the grounds that the army’s secret document showed a ‘white’ entry against their release.
When the matter came before the Supreme Court in 1989, the court directed the District Judge, Imphal to conduct an inquiry into the disappearances in 1990. Based on the report which showed that “there was no cogent evidence to show that the boys had been released”, the two member bench of the apex court in 1997 directed that the appellants be paid compensation of Rs. 1,25,000/- each (p 599). It took the two mothers seventeen years to convince the courts about the illegal detention and enforced disappearances of their two sons. While these mothers succeeded, how many more mothers have waited and continue to wait for their sons who have never returned? Is there a count?
Why it does not matter what the world thinks
The above issues explain why the demand for the repeal of the AFSPA is not an easy one. So while parliamentarians express unhappiness and judges and journalists recommend changes or repeal, AFSPA continues to live and propagate a culture of impunity in the name of national security. It does not matter that sexual violence forms a large part of this culture of impunity as evident in the Manorama case. It also does not matter that the Act violates the constitutionally guaranteed rights and also those of international law (see Amnesty International’s Report, 1997 and UN documents of 1991 and 1997, pp. 588-95; 572-73; 596-97 respectively). For the lawmakers and law enforcers the constitutional validity of the Act survives, particularly since it has been upheld by the apex court.
As the struggle against the Act continues, new impetus is derived from committee reports such as the Justice Jeevan Reddy Committee Report 2005 (pp 654-662) which recommended the repeal, or the Verma Committee report of 2013 which suggested urgent review of the Act. However, it is alarming to note that while the Jeevan Reddy Report recommended repeal, it suggested that the clauses of the Act could be incorporated within the Unlawful Activities (Prevention Act)! It stated that after the necessary incorporations, the UAPA would be sufficient to fight terrorism as it would allow for the deployment of the armed forces and offer protection to witnesses. It also stated that the beefed up UAPA would end discrimination that people of the Northeast are subjected to as it is a Central Act! Hopefully, the members of the Jeevan Reddy committee have woken up to the fact that the UAPA today is the most sectarian law which is routinely used against Muslim youth.
The lessons of Malem Ningthouja’s book lie in understanding that the issue of militarization cannot be solved simply by demanding repeal of the AFSPA as it could lead to incorporations in other draconian laws. The struggle against militarization is a struggle to believe in a democratic polity which grants the right to self-determination and right to dissent to all, without discrimination. The struggle against militarization is a struggle for a better and a more equal world.
The author is Secretary, People’s Union of Democratic Rights