Part III, Chapter I
1. The Committee, with a view to ascertain the views, opinions in Manipur on the AFSPA and its implementation, issued a notification calling for responses from the public. The Committee visited the State of Manipur in the first instance. This was for the reason that the latest upsurge against the AFSPA took place in Manipur following the death of Ms. Th. Manorma Devi while in the custody of the Assam Rifles. The visit to Imphal took place on December 27-30, 2004 and the hearings were held in the premises of the Manipur Human Rights Commission. The Chairman of MHRC, Justice (Retd.) W. A. Shishak was kind enough to make necessary arrangements for our hearings.
2. There was a bandh [boycott/strike] called by a faction of the Apunba Lup, which demanded the immediate repeal of AFSPA, when the Committee was in the State. Despite that, many groups, individuals and organizations made depositions before the Committee. The family of Manorama Devi also met the Committee. The list of individuals and groups who made representations to the Committee is at Annexure-III. From the views expressed before us and from the representations received, the following distinct view-points emerged:
(a) The dominant view-point expressed by a large number of organizations/individuals was that the Act is undemocratic, harsh and discriminatory. It is applicable only to the North-Eastern States and, therefore, discriminates against the people of the region. Under the protection provided by the Act, several illegal killings, torture, molestations, rapes and extortions have taken place particularly since the Act does not provide for or create a machinery which provides protection against the excesses committed by armed forces/para-military forces deployed in the State. The Act should, therefore, be repealed. The Committee specifically put questions to the persons who appeared before it whether they wanted both the Act and the Army to go, or whether they want only the Act to go but the Army to remain. To this question, the overwhelming response was that while the Act should be repealed, the Army should remain to fight the militants and guard the borders.
A certain view-point voiced by some persons was that both the Act and the Army should be removed from Manipur. According to them, the problem in Manipur is essentially a socioeconomic one and not of law and order. If the basic issues of socio-economic and of political nature are attended, it would not be necessary to have the presence of the Army in the State,
(b) A different view-point voiced by a few elderly persons and associations was that both the Act and the Army should remain in the interest of and for ensuring the safety of small ethnic groups and other minorities.
3. The Committee gathered the impression that there is a certain amount of confusion in the minds of many citizens regarding the respective powers of the State police organizations and that of the armed forces of the Union. They are under the impression that the State Police Forces were also acting under the protection of the Act. As a consequence, the excesses committed by the State Police and Commandos are generally laid at the door of the Act.
4. Certain organizations filed elaborate lists of alleged atrocities committed by the security forces and in particular against the members of the Assam Rifles. These lists also cite instances of killing of innocents, including women and children. This material, being too bulky, is not enclosed to the Report but is sent to the Government along with this Report for such use as may be found appropriate by the concerned authorities. It was also brought to our notice that in several cases of alleged excesses, enquires were held by competent authorities and the guilty personnel awarded punishment and compensation was also given to the aggrieved persons in some cases.
5. The current situation in Manipur is a complex amalgam of factors. There are longstanding animosities among ethnic, tribal, plains and hill groups. The Meitei people who constitute the majority in the State have a deeply felt historical perspective of Manipuri territorial and cultural unity. The nexus between crime and politics on one hand, and foreign involvement through funds, arms, and sanctuaries on the other, make for a highly volatile security situation. Over the years, the nature of insurgency has – as elsewhere in the North East – shifted to acts of terrorism, extortion, coercion of the population giving rise to a situation of internal disorder. In the last two decades the numbers of militant groups, their arsenals and lethality have grown immensely. The situation, it appears, cannot be managed by the State law and order machinery as at present. The Army and other Central forces may continue to play a major role in the security management of Manipur, tiil the political process and socio economic measures begin to take effect and the governance in the State improves.
6. The Committee is also of the opinion that there is a deliberate and carefully planned attempt by militant organizations to damage the reputation and morale of the Armed Forces. The requirement therefore is to ensure that the powers of the army to conduct operations against militant organizations remain while at the same time, ensuring that these operations do not impinge upon the rights and the safety of the citizens.
Hill Districts of Manipur
Senapati
7. The Committee also visited the hill-districts of the State and held hearings at Senapati and Churachandpur on April 21 and April 23, 2005
8. At Senapati the various Naga organizations had met earlier and discussed the issue in detail, exchanged views amongst themselves and made out a common written representation on behalf of the Naga Peoples’ Organisation. However, as many as 11 representatives of the Civil Society groups made oral presentations. Three more written representations were also handed over.
9. Initially, however, they said that they would not be satisfied with ‘review’. Their demand was nothing short of repeal of the Act. It was explained to them on behalf of the Committee that Review was a very wide term and included repeal also. They were quite satisfied with this clarification. They made a grievance that though the Nagas had been suffering and complaining against the Act for almost 50 years, nothing was done until the
Manorama Devi incident in Imphal prompted the Govt. of India to set up this Committee.
Churachandpur
10. Six written representations were received by the Committee at Churachandpur on behalf of the organizations representing the Kukis, Zomis, Paites, Koirengs (Korens) and others on April 23, 2005. Representatives of four organizations (a total of 17 persons) appeared for oral hearings.
11. The views expressed at Churachandpur were qualitatively different from those received from elsewhere in the State. One view was in favour of replacement of the Act by a more effective law so that peace and harmony could be restored in the State. Some others wanted that the Act should not be lifted from Churachandpur area where the people were the major victims at the hands of underground outfits, as a result of which development work had come to a standstill. One view was that the Army should stay but the excesses committed by them should be stopped. Only one organization was in favour of complete withdrawal of AFSPA.
Part IV, Recommendations
4. The Committee finds that there are four options available for it to adopt viz.,
(a) to recommend the repeal of the Armed Forces (Special Powers) Act, 1958;
(b) to recommend that the present Act should continue as it obtains today or with such amendments as may be found appropriate;
(c) in case the repeal of the Armed Forces (Special Powers) Act, 1958 is recommended, to recommend that it should be replaced by an appropriate legislation;
(d) in case of recommendation for repeal of the Act, to recommend insertion of appropriate provisions in an existing /cognate enactment
5. Keeping in view the material placed before us and the impressions gathered by the Committee during the course of its visits and hearings held within and outside the North-Eastern States, the Committee is of the firm view that:
(a) The Armed Forces (Special Powers) Act, 1958 should be repealed. Therefore, recommending the continuation of the present Act, with or without amendments, does not arise. The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon’ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in a Court, the Court examines
(i) whether the Act is within the legislative competence of the Legislature which enacted it
and
(ii) whether the enactment violates any of the provisions of the Constitution. The Court does not – it is not supposed to – pronounce upon the wisdom or the necessity of such an enactment. It must be remembered that even while upholding its constitutional validity, the Hon’ble Court has found it fit and necessary not merely to approve the “Dos and Don’ts” in the instructions issued by the Army Headquarters from time to time but has also added certain riders of its own viz., those contained in clauses 8, 9 and 14 to 21 in para 74 of its judgment (at pages 156 and 157 of the judgment in NAGA PEOPLES’ MOVEMENT OF HUMAN RIGHTS v UNION OF INDIA – (1998) 2 SCC 109). The Committee is of the opinion that legislative shape must be given to many of these riders. We must also mention the impression gathered by it during the course 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 highhandedness. 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). For that purpose, an appropriate legal mechanism has to be devised,
(b) The Committee is also of the firm view that it would be more appropriate to recommend insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as amended in the year 2004) – which is a cognate enactment as pointed out in Chapter III Part II of this Report instead of suggesting a new piece of legislation.
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8. We may also refer in this connection to the necessity of creating a mechanism, which we may designate as the “Grievances Cell”- Over the years many people from the region have been complaining that among the most difficult issues is the problem faced by those who seek information about family members and friends who have been picked up and detained by armed forces or security forces. There have been a large number of cases where those taken away without warrants have “disappeared”, or ended up dead or badly injured. Suspicion and bitterness have grown as a result. There is need for a mechanism which is transparent, quick and involves authorities from concerned agencies as well as civil society groups to provide information on the whereabouts of missing persons within 24 hours.
9. To ensure public confidence in the process of detention and arrest, grievances cells are proposed to be set up in each district where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt enquiries and furnish information to the complainant. Where, however, the complainant is not satisfied with the information furnished and is prepared to file an affidavit in support of his allegation, it shall be competent for the Cell to call upon the State level head of the concerned force or organization to enquire into the matter and report the same to the cell as early as possible, not exceeding in any event, one week. The State level officers from whom these Grievances Cells seek information shall immediately make necessary enquiries and furnish full and correct information to the Grievances Cell as early as possible, not exceeding in any event one week. The Grievances Cells will be composed of three persons, namely, a senior member of the local administration as its chair, a Captain of the armed forces/security forces and a senior member of the local police. These will have dedicated communications, authority to obtain information from concerned authorities and have facilities for recording and responding to complaints. They shall locate their offices in the premises of the Sub Divisional Magistrate or in the premises of the District Magistrates, as the case may be. Such a mechanism is absolutely essential to achieve the two equally important purposes viz., (a) to infuse and instill confidence among the citizenry that the State, while deploying the armed forces of the Union to fight insurgency/terrorism has also taken care to provide for steps to guard against abuses/excesses with a view to protect the people and to preserve their democratic and civil rights; and (b) to protect the honour and the fair name of the forces.
11. While deploying the forces under sub-section (3) the Central Government shall, by a notification published in the Gazette, specifying the State or the part of the State in which the forces would operate and the period (not exceeding six months) for which the forces shall operate. At the end of the period so specified, the Central Government shall review the situation in consultation with the State Government and check whether the deployment of forces should continue and if it is to continue for which period. This review shall take place as and when it is found necessary to continue the deployment of the forces at the expiry of the period earlier specified. It shall be permissible for the Central Government to vary the part of the State where the forces are deployed in case the earlier notification is in respect of a part of a State. Every notification extending the period of deployment of forces or varying the area of the State, as the case may be, shall be laid on the table of both the Houses of Parliament within one month of the publication of such notification.
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Footnote: This appendix consists of extracts from the Report of the Committee to Review the Armed Forces (Special Powers) Act 1958 (AFSPA) pertaining to Manipur, and key recommendations. The committee was chaired by Justice B P Jeevan Reddy (retired), and had as its other members Dr S B Nakade, P P Shrivastav IAS (retired), Lt. Gen. V R Raghavan (retired) and Ssanjoy Hazarika. The committee was established on 19 November 2004 in the wake of intense protests across Manipur following the rape and killing of Thangjam Manorama on 11 July 2004 while in the custody of the Assam Rifles, and the indefinite fast begun by Irom Sharmila in 2001 demanding the repeal of the AFSPA. The committee was asked to determine whether the AFSPA should be amended or replaced. It handed down its findings in mid-2005 but up to time of publication the report had not been tabled in the Indian parliament. Prime Minister Manmohan Singh has also made clear that the law may be amended but not revoked.
