Monika`s Lost Olympic and Manipuri Explosion
Troubled Galaxy Destroyed Dreams: Chapter 45
Palash Biswas
http://troubledgalaxydetroyeddreams.blogspot.com/
NDTV.com Protests for Monika turn violent
NDTV.com, India - 8 Aug 2008
He said they have also urged Manipur government to demand a White Paper from the Centre on the issue of dropping of Monica. Official sources said Manipur ...
Calcutta Telegraph Manipur flare-up over Monika exit
Calcutta Telegraph, India - 7 Aug 2008
7: Manipur today erupted over weightlifter Monika Devi’s shock exit from the Olympics squad
Manipur - Wikipedia, the free encyclopedia Manipur pronunciation (help·info) (mnipur in Meitei Mayek) is a state in northeastern India making its capital in the city of Imphal. Manipur is bounded by ...
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The Manipur star mentioned that he and his colleagues had never thought of being 3-0 up mid-way through the first half against Tajikistan. ...
Independence Day - View from the other side of the coin
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Lack of economic opportunities is also a key factor in the proliferation of militant groups - in Manipur alone, there are reportedly 30-odd militant groups ...
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Zee News - 1 hour ago
New Delhi, Aug 14: India on Thursday cautioned Pakistan that its comments on the developments in Jammu and Kashmir does not help create the "right type of atmosphere" to carry on the composite dialogue.
India warns Pakistan: Keep off J&K issue Times of India
Pranab Mukherjee Times Now.tv
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Monika`s lost Olympic is associated with the habitual rapist Indian Hindu Zionist White Ruling Hegemony practice to use the State Power to crush the aboriginal indigenous People since time Infinite!
Only today, I was stunned to read a front page story in a National Daily written by a Guahati Editor. Based in North East, the prominent journalist pleads for Army Action against so called Bangladeshi Illegal Immigrants settled in the River island in Assam. Doing this, he shamelessly justifies the Armed Forces Special Act and advocates to execute the Act in all those areas in North East where it is not implemented. This journalist is known very colse to ULFA and he repents that ULFA activists are always killed in encounter and others spared! The gist is the encounter campaign should be implemented against others ,too!
This journalist does not belong to North East. But since he happens to be an editor in a Guahati based daily, he is expected to be aware of the sentiment of North East Indigenous people against the Military repression under AFPSA umbrella!
He belongs to the so called Main Land!
India rightly celebrates the first Olympic Gold for India. It is ,of course. a rare moment of Glory! May we expect the Manipuri people among us at this moment!
It said Monika's exit was an attempt by mainland India to suppress the people of Manipur and demanded another test!
Monika was stopped from going to Beijing on August 6 at the eleventh hour after she tested positive for an unspecified banned substance.
However, three days later she was cleared by the SAI of any wrong doing but the relief came too late for her to participate in the Olympics.
Recently, only on July 25 th July, I was a participant in a Media Mass Movement discourse organised by NAFRE People`s movement at Gandhi Darshan, Rajghat New Delhi!
The words pronounced by a Manipuri Activist haunt me every time! He asked, `We did everything! Our mothers stripped themselves before the Kangla Fort and challenged the Army to rape them! Nothing happened. AFPSA continues! Continues the repression! What should we do to communicate the mainstream people of India?’
I have friends in North East!
I have friends in Manipur!
I know them personally. They are opposed to the centre of repression! Thus, they ban Hindi. but in day to day life they communicate in Hindi. We must understand this! Hindi is quite popular in Manipur. But they have to oppose Hindi as the Ruling Class in India plays the Hindutva Politics of Hindi, Hindu , Hindustani!The Global ruling class uses the remote areas of North East for target practice and wargames! The North East Indigenous people are used as guinipigs!
But I feel the fire and smoke within from Kolkata! I know the people who seem to be as cool as dynamites are. Who may explode anytime and anywhere!
Please read:
Create Free Blog - ibibo - Palash Speaks - ibibo Blogs Feel Manipur from Singur Palash Biswas (Pl publish and send a copy. ... Imaginary Lines and Manipur Palash Biswas (Contact: c/o Mrs Arati Roy, Gosto Kanan, ...
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Manipur-style Strip Threat Accompanied by Leftist Anti Imperialism ... Archives. July, 2008 (8) · June, 2008 (9) · May, 2008 (5) · January, 2008 (4) · December, 2007 (5) · November, 2007 (36) · October, 2007 (28) · September, ...
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North East: Federalism concept rooted in self rule! | Palash ...
Contact: Palash C Biswas, C/O Mrs Arati Roy, Gosto Kanan, Sodepur, .... the formation of the “tribal conclave” in Manipur as a collective group to bargain ...
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Marxists Have to Strike Deal Afresh on Gorkhaland while Ruling ...
6 Aug 2008 ... Palash Biswas. I visited Darjeeling a few years back in September, 2002. ... Manipuri, Gujrati and other nationality problems in India. ...
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nandigramunited: A MAESTRO IN MANIPUR Over the past decade, the little and beautiful state of Manipur has replaced the larger and even .... ramguha@vsnl.com. Posted by Palash Biswas at 10:41 AM ...
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22 Nov 2006 ... (contact: Palash Biswas, c/o Mrs Arati Roy, Gosto Kanan, ..... Bhutan and Arunachal Pradesh, in the east by Nagaland and Manipur, in the ...
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Resistance
Monday, April 9, 2007. Palash Biswas Both feminism and nationalism in India emerged from the social reform movement of the C19th, it is widely believed. ...
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Imaginary Lines and Manipur
Before being brought to the capital, she was being force-fed through a nasal tube at a government-run hospital in Imphal, Manipur's capital. ...
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The weightlifter from Manipur tested positive for an unnamed anabolic steroid on August 6 and was pulled out of the Beijing-bound Indian squad hours before the flight to Chinese capital.
Unhappy about Sports Authority of India's flip-flop over dope testing allegedly involving weightlifter Monika Devi, Sports Minister M S Gill today appointed former Chief Election Commissioner T S Krishnamurthy to inquire into all aspects of this matter.
Krishnamurthy has been asked to submit his report within a week, sources in the Sports Ministry said.
Gill, who returned here from Beijing early 13th August morning, discussed all aspects of "this unfortunate incident" with his Ministry officials, had a meeting with Monika and spoke to Manipur Chief Minister Okram Ibobi Singh over phone after which he ordered the inquiry "to know the precise truth".
The meeting between Gill and Monika lasted for 45 minutes.
Meanwhile, a general strike has been called in the north eastern states of the country by four different insurgent outfits on August 15 as a part of its boycott of the Independence Day of India.
While announcing that the general strike would be effective from 1 am of August 15 to 6 pm of the same day, a joint statement of the four insurgent groups, the Kamatapur Liberation Organsation, KLO, Manipur People’s Liberation Front, MPLF, Tripura People’s Democratic Front, TPDF and the United Liberation Front of Asom, ULFA today also appealed to the people of the region to extend support to them and make the boycott and general strike a complete success.
The underground outfits of the region have been boycotting the Independence Day with a general strike over the last many years as a part of symbolic expression of solidarity against Indian rule, the statement said.
The Indian state has been employing all means, particularly covert and state terrorism to intimidate the outfits and using massive military force to push the liberation forces into ‘peace talks’.
But as anticipated, such ‘peace talks’ have not produced the desired results even after 10 years of negotiations as talks could not resolve the politico-military conflict in the region because it does not address the core issue of sovereignty and independence, it said. So some quarters are trying to sell the idea of ‘talks with pre-conditions’ as these quarters do not know the ulterior motive behind it, the statement said.
However, it further said unrelenting armed struggles along with unarmed struggles in the region had defeated all the evil designs to suppress the freedom struggle.
The statement while observing that the freedom struggle was receiving more and more acceptance, said that it was an encouraging to note the concept of interdependent unity and coexistence among the people of the region.
“This strength of ours needs to be consolidated to the maximum with all sincerity and earnestness,” the joint statement said.
The joint coordinating committee formed in connection with the conspiracy to exclude international weightlifter L Monika from the ongoing Beijing Olympics has reaffirmed its call for a 24-hours general strike form 6 am of August 19 to protest against the discrimination by national level organisations and sports bodies.
The co-convenor of the coordinating committee, during a press conference held this evening at the Manipur Olympic Association office at Khuman Lampak main studium, mentioned that there will be no participation in any event or game organised at the national level by players from the state until justice is delivered in the case by the Central government.
He said it was unfortunate to announce a boycott of the players from the state who had already gone to participate in many national level regional championships, inter SAI championships and athletics events but the stand on the boycott by the committee would remain on these players and coaches unless there was satisfactory explanation from those concerned, the spokesman added.
The spokesman of the coordinating committee further mentioned that the committee had already completed mobilisations throughout the state to launch a state-wide protest by coordinating the local bodies and district level civil society organisations in the state.
The committee would conduct non violent agitations by holding dharnas and sit-in protests in the respective localities, he said.
The spokesman also mentioned that the stand of the state government regarding the issue was not satisfactory and it was necessary to take the issue directly to the people of the state.
The press conference of the joint coordinating committee was attended by representatives of the DESAM, AMSU, and various state level sports organisations.
The Telegraph, Kolkata reports:
Imphal, Aug. 13: That August 13 would be marked as a day of mourning was etched on the Manipuri calendar in 1891 when freedom fighter Bir Tikendrajit was hanged by the British.
That weightlifter Monika Devi was to perform on this very day at the Beijing Olympics suddenly made the anguish even more poignant.
For years, observing Patriot’s Day on August 13 had become a ritual. The same floral tributes, speeches and functions.
An inexplicable ouster from the Olympics contingent and the day assumed a new meaning.
Unlike in past years, when only the Manipur government held a ceremonial function at Bir Tikendrajit park here, this year student organisations, social organisations and political parties joined the Patriot’s Day programmes.
“People in Manipur are observing Patriots’ Day today like never before. Maybe because of the injustice done to Monika. People are considering denial of the weightlifter from Beijing Olympics a form of repression,” CPI state secretary Langol Iboyaima said.
Former minister N. Mangi Singh agreed. The day reminded people of the past struggle of the forefathers to defend Manipur and the Monika case has drummed up a sense of patriotism in the minds of the people, he said.
The day began with a ministerial team, led by chief minister Okram Ibobi Singh, paying floral tributes at Hijam Yaichampat, Tikendrajit’s graveyard, and then at Thangal mandir. Ibobi Singh also opened an extended portion of the Bir Tikendrajit park in the morning.
The main function organised by state government was held at the park in the afternoon. At the programme, Governor Gurbachan Jagat and chief minister Ibobi Singh goaded the youths to follow the freedom fighter’s ideals.
But Monika weighed heavy was on the minds of student leaders.
“New Delhi is trying to suppress the people of Manipur. The manner in which she was thrown out of the Indian contingent to the Olympics is a glaring example of the suppression of Manipuri people by the Indian government,” P.C. Newton, adviser of the Democratic Students Alliance, Manipur, said at a function organised jointly by the alliance and the All Manipur Students Union at C.C. Higher Secondary School.
Former Thoubal district president of the All Manipur Students Union, M. Madhumangol, admitted that Patriots Day was “neglected” in the past by the people of Manipur. “We should observe the day every year to instil a sense of patriotism in young minds,” he said.
http://www.telegraphindia.com/1080814/jsp/northeast/story_9689103.jsp
Defamation Angle
Source: IMPHAL FREE PRESS
Posted: 2008-08-14
The bitterness that the injustice done to weightlifter L Monika has left in the hearts of most in Manipur is unlikely to wash away for a long time, and rightly so too. But whatever be the resort, what’s done cannot be undone. However, the redeeming power of justice and retribution must not be taken for granted. In this regard, it heartening that the Union government has conceded to the first demand of the agitating public and today instituted an inquiry into the affair to establish the truth behind what is now evidently a game of petty politics of regionalism. We hope the penalty awarded as per the law if guilt is established at the end of the probe is also proportionate to the offence committed. Second, as the saying goes, in public issues like this it is not enough that justice is done, but justice must also be seen as done, and emphatically too. Towards this end, it would be obligatory on the part of the Union government to meet the other demand by the aggrieved party and immediately take public cognizance of the circumstantial evidences that distinctly point to a possibility of serious miscarriage of justice in the case. It is true that Manipur, and indeed the entire Northeast is easily hurt, but this is because any slight or insensitivity on the part of the Centre towards it, opens up afresh old festering wounds, and the Centre needs to empathise with this.
But there are more reasons why the Monika issue should not be treated as trivial. Apart from unfairly making a promising athlete miss what is the dream of any athlete, it is also a serious case of defamation. Surprisingly, this angle has been least focused on by the media or public in the present controversy. The muck from the serious charge doping would have tarnished Monika’s image beyond total redemption even if the charge is cleared. This is particularly so because the charge is on a person whose occupation makes it extremely plausible that she could have been guilty. Susceptibility of drugs use amongst weightlifters is something everybody is willing to believe or suspect as a distinct possibility. Her name is going to be, in fact is already, directly or indirectly associated with the use of banned performance enhancing drugs, even if it is just to say that she is innocent of the offence. Those in the advertising profession will know better how much this constant association of her name with doping is going to harm her image in the average mind. To elaborate with an example, to accuse any girl of being a prostitute is bad, but unless the charge is proven there will not be many who take it too seriously. Instead, all that comes through may be a slap on the accuser’s face. But if a girl working in the hospitality department of a 5-star hotel doing round the clock shift duty, or an air-hostess keeping similar work schedule and spends most off duty hours in hotels away from home, were to be accused of sexual infidelity, and especially if the charge comes from the management, the mud is much more likely to stick even if she is perfectly innocent. The damage to her reputation would also outlive the proof of innocence. Monika’s predicament is close to the latter scenario, but harsher, because her case is now in the public domain. If we were Monika’s legal advisers, we would have suggested her to file a defamation suit against those who made this extremely grave and false charge against her and then as if in a fit of frivolity, withdrew it claiming she is clean. This is not laughing matter.
However, having said this, we would also suggest to those who are agitating against the injustice done, to limit their demand to seeking justice, and not go about burning bridges. Monika was victim of a petty politics (or conspiracy if you like) and not everybody is given to such pettiness as was more than evident even in the manner the Indian Weightlifting Federation, IWF, stood solidly behind her during the entire crisis. Again, although some SAI top officials seem to be implicated in this impish game even at the cost of destroying somebody else’s career, nobody will doubt that the SAI as an institution has also been behind the empowering of so many extraordinary sporting talents from the state in the decades that have gone by. Even in the midst of darkness, let sanity not be lost. But to underscore the point once again, in assuaging this hurt sentiment, the empathy of the Centre would be of tremendous help.
http://www.kanglaonline.com/index.php?template=headline&newsid=1923&typeid=0
Amidst reports that weightlifter Monika Devi has been cleared of dope charges, the Indian Olympic Association (IOA) said on Saturday, 9th August2008, that it was too late for her to take part in the Beijing Olympics.
"It is too late for Monika to come to Beijing now and take part in the Olympic Games because we have closed the entry process," IOA Secretary General Randhir Singh said.
Asked if IOA President Suresh Kalmadi could do anything to help Monika take part in the 69kg weight category competition scheduled for August 13, Randhir said it was not possible at this level.
"What can Mr Kalmadi do? It is not National Games. It is Olympic Games and only IOC can take a decision," said Randhir who is also a member of the International Olympic Committee.
Deputy Chef-de-Mission of Indian Olympic contingent in Beijing Baljit Singh Sethi said, "Monika just cannot take part in the Beijing Olympics. As of now, the organisers have not accepted her entry and to be honest I don't see her competing here".
Asked to confirm if Monika was indeed coming here, Sethi said, "See, you cannot stop anyone from coming here. But the thing is she cannot take part. Her name has been withdrawn and how can she compete? She will not be allowed to enter the Olympic village."
Singh pointed out the draw of contestants in the 69kg category has been drawn up and Monika's name does not figure in that.
The Union Sports Minister, M.S. Gill, has instituted an enquiry into the circumstances in which weightlifter Monika Devi was not sent to Beijing for the Olympics.
On his return from Beijing, the minister had a meeting with Monika Devi and all others concerned regarding the issue and decided to institute an enquiry. The enquiry will be conducted by the former Chief Election Commissioner, T.S. Krishnamurthy.
“I have requested him (Mr. Krishnamurthy) to come to Delhi at the earliest to hold this inquiry, and to favour me with his report and recommendations at the earliest,” Mr. Gill said through an official release on Wednesday,13th august.
The Indian Weightlifting Federation instituted its own panel to hear the lifter from Manipur and cleared her participation, though, by then, the Indian Olympic Association (IOA0 had withdrawn her name from the entry list and there was no way of re-entering her after August 7.
“As Sports Minister, while I am determined to set up an independent, technically proficient dope testing mechanism, which has credibility in the world, and towards which end I have taken certain steps already, I am also equally anxious that no sportsperson should suffer due to any laxity or delay on the part of this testing mechanism. While ensuring prompt and firm action in Monika Devi’s case, I am determined to ensure that such incidents do not happen in future. I want to assure all sportspersons that they will get full consideration and fair treatment from me at all times.”
It may be recalled that the Manipur Chief Minister had sought a CBI inquiry into the incident even as agitations have been going on in the State against the manner in which Monika’s case was handled.
Coming down harshly on the Sports Authority of India (SAI) for the recent dope charges, weightlifter Laishram Monika Devi alleged that the country's apex sport body has plotted a conspiracy to end her sporting career. ''I have no plans to go for retirement. But after the huge media hype, I fear that the IOA, SAI and IWF may not give me the 'no objection certificate', which will deprive me from taking part in future competitions,'' Monika said.
''A top-ranking official in SAI is threatening and metally harassing me in order to remove me out of the Indian team and favouring another player,'' the lifter stated.
The weightlifter from Manipur, who missed the Olympics despite being cleared of doping charges, further expressed her frustration at not being able to participate at Beijing.
''I have been training hard for this Olympics since the last three years. I also gave several tests; and none of them were positive except for the sample collected in Pune,'' lamented Monika.
She added, ''the SAI must have manipulated my sample, otherwise how could other samples taken just about a fortnight later be negative? ''If I had tested positive, why was I allowed to continue in the Olympic camp for more than two months? Why did they announce the result just before I was due to leave for Beijing?'' Monika said she has no problem to undergo any test by an independent agency and is ready to accept punishment if found guilty.
Accusing IOA and SAI of being involved in "a big manipulative game" to keep out weightlifter Monika Devi of the Beijing Olympics, Manipur Chief Minister O Ibobi Singh on Sunday,10th august, decided to push for a CBI probe into the whole episode.
"The entire episode appears to be a big manipulative game played by SAI, the national dope testing laboratory and the IOA against a sportsperson whose dream for Olympics has been shattered," Singh told a press conference here.
He said as per the international norms the Sports Authority of India (SAI) should have made public the dope testing reports of the Manipuri weightlifter at least 72 hours before her proposed departure for the Chinese capital but this was not done.He said the SAI report was sent to the Indian Weightlifting Federation at 12.30 pm on August 6 while Monika's flight was at 3.30 am on the same day.
Singh said a probe should be conducted into how the SAI report was leaked "in violation of rules".
"The SAI, the highest authority of Indian sports, has done a great damage to the career of the Monika, it's a great injustice with a pre-planned motive, done to an international sportsperson," he said.
Singh also said Monika would not be sent to Beijing anymore as there was no possibility for her entry request to be entertained by the Games organisers.
"Monika will not go to Beijing now as there is no way for her to compete in the Games," he said.
Meanwhile, Indian Weightlifting Federation President Harbhajan Singh blamed the "procedural lapses" for Monika missing the Games.
"It was all a procedural lapse and those responsible for it would be taken to task," he said.
KCP warns SAI (Manipur) on L Monika
Source: The Sangai Express
Imphal, August 07: Strongly protesting the exclusion of L Monika from the Olympic squad, the proscribed KCP has asked the officials of the Sports Authority of India (Manipur Centre) to resign from their posts as soon as possible and added that an indefinite ban on the administration of SAI (Manipur Centre) will be imposed from tomorrow (August 9).In a statement self styled chief project officer-cum-secretary, information and public relations department, Ibungo Ngangom said that the decision has been taken after careful consideration of the corrupt practices and discriminatory treatment meted out to players by officials of SAI, which have a demoralising effect on the sportspersons of the land who often outshine their counterparts from other States of India.
The outfit has also asked the Imphal Municipal Council to properly treat Langol area which is presently being used as a dumping site contending that the piling garbage is posing a threat to the health of the people of Langol in particular.
http://www.e-pao.net/epRelatedNews.asp?heading=Snipp6&src=080808
On August 6, two days ahead of the Olympics, she was pulled back and not allowed to leave for the Games with the Indian contingent just hours before they were to take their flight. She reportedly tested positive for banned steroids in a test conducted by the Sports Authority of India (SAI). Later, she was apparently given a clean chit but the entire incident remains shrouded in mystery.
Manipur Chief Minister O Ibobi Singh met Prime Minister Manmohan Singh and is believed to have taken up the issue of weightlifter L Monika Devi's exclusion from the Indian Olympic team. The Chief Minister is understood to have taken up the issue, which has sparked widespread protest in Manipur, with the Prime Minister, official sources said.Earlier, Manipur Olympic Association (MOA) had decided not to participate in any national championship and forthcoming National Games if Monika was not sent to Beijing as part of the Indian Olympic team. The decision to boycott the national championships and National Games was taken at a joint meeting of the MOA, different sports associations and students organisations yesterday in Imphal.
A 24-hour general strike was observed in Manipur on 8th August 2008, in protest against the dropping of Monika from the Indian team to Beijing. Monika's exclusion in the team became a major issue, in Manipur with sports associations organising rallies to protest against the dropping of Monika from the team.
Normal life came to a standstill in Manipur on Friday due to a 24-hour general strike called by several social organisations to protest the dropping of weightlifter Monika Devi from the Indian Olympic team to Beijing.
Official sources said markets, shops and business establishments remained closed in response to the strike call given by different organisations, including United Committee Manipur (UCM).
Attendance in government offices was also reported 'very low' because of the general strike which began from midnight last, the sources said.
Transport services between Manipur and neighbouring states and within the state were also suspended.
Sports lovers burnt vehicle tyres on roads at Singjamei in Imphal West district to prevent movement of people in the area.
However, no untoward incident was reported during the strike, the sources said.
Describing the dropping of Monika as "pre-planned", Manipur Olympic Association (MOA) and Manipur Weightlifting Association (MWA) have demanded a thorough probe into the issue.
They said it was an attempt to include weightlifter P Shailaja in the team in place of Monika.
With Monika's exclusion in the team becoming a major issue, state Sports minister N. Biren rushed New Delhi on Thursday to find out the details.
At least five sportspersons were injured when police burst tear gas shells on Thursday to disperse a rally organized by sports organisations to protest against the dropping of Monika.
A series of protests were followed by arrests but there is no looking back as far as Manipuri students in the Indian Capital are concerned. They gathered in large numbers in the Capital on Tuesday to protest against the way weightlifter Monika Devi’s Olympic dream was ruined when she was preparing to leave for Beijing.
Students from JNU, DU, and Jamia Millia raised their voice against the ‘injustice’ meted out to a sportsperson from Manipur. Demanding an immediate CBI inquiry into the doping controversy, they said that those responsible for tyring to disgrace their state must be held accountable. "Despite putting forth our demands to the sports ministry several times, they refused to cooperate. A large number of students, including those who held a meeting with ministry officials were arrested, but we will not give up," said Chinglen, a student from DU.
Thokchom Meinya, MP from Manipur, said, "We are demanding a white paper and SAI should conduct an inquiry into the matter. One day they say the test is positive, another day they say it is negative. How can things work in this manner?"
Talking about the arrests, Gurdeep Singh, ACP Parliament street police station said, "We detained around 60 students, but have released them after giving them a warning."
Meanwhile, By rallying behind weightlifter Monika Devi — who was stopped from leaving for the Beijing Olympics over a doping controversy — at a function to honour two freedom fighters from Manipur, BJP’s prime ministerial candidate L K Advani on Wednesday reached out to the state, that has rarely figured on the BJP’s radar.
“I felt sad. Because of her — and Manipur — India could have earned a name in the Olympics going on in China. After the news of the doping controversy, it was said two days later that it was wrong,” said Advani.
Indian Express reported:`In what appears to be part of a cleverly-crafted strategy to reach out to diverse groups, Advani on Wednesday addressed a function organised by a Manipur association. In the last few months, he has addressed meeting under the auspices of Church bodies, party’s minority cell and even managed to get superstars like Mammootty for his book-release functions.
“A great injustice has been done to Monika Devi. Manipur has an extremely healthy sporting tradition. How many people would be aware that the current Indian soccer team in the Olympics has as many as four players from the state,” asked Adavni. Recalling his rath yatra of 1997, the BJP PM candidate said: “How many people in Delhi, a country in miniature, would be aware of Bir Tikendrajit and General Thangal, the two illustrious freedom fighters from the state,” asked Advani.’
Police burst teargas shells and baton charged hundreds of Manipuri sportspersons who tried to the storm the chief minister's residence in Imphal on Thursday to protest the removal of weightlifter Laishram Monika Devi from the Beijing Olympic squad after she failed a dope test.
A police spokesman said about 500 people, all of them sportspersons, took out a rally and tried to enter the chief minister's residence when police intervened.
"We burst teargas shells and resorted to mild baton charge to disperse the protesters. The situation is normal and there were no reports of any injuries," the police official said.
Authorities later allowed five of the protesters to meet the chief minister.
"We want a thorough investigation and the intervention of the Manipur government to ensure that Monika Devi is included in the Indian Olympic squad," one of the protesters said.
Meanwhile, family members of Monika Devi and locals said the entire episode was a conspiracy and an attempt to defame sportspersons from the northeast.
"This entire episode is nothing but a conspiracy against my daughter to promote someone else. We want the test to be confirmed by the World Anti-Doping Agency (WADA) and request the authorities to repeat the test at the doping test facility in Beijing," Monika's father L Nabachandra Singh told IANS.
Monika Devi, hailing from Potsangbam Nachou village in Bishnupur district, was to compete in the 69 kg category at the Beijing Olympics beginning Friday.
"This is another attempt at defaming sportspersons from the northeast and reflects the attitude of the mainstream towards the northeast," said Brajamani Singh, a community elder in capital Imphal.
The last minute withdrawal of Manipuri weightlifter L Monika from the Indian Olympic squad has drawn vehement allegations of conspiracy and discrimination from various students, civil, political and sports bodies.
The Manipur People’s Party, MPP has said that the removal of Monika from the squad was part of a conspiracy by the Indian Olympic Association, Sports Authority of India and the Central government.
Speaking at a press conference, president Dr L Chandramani lauded the courage of Monika who challenged the director of SAI and officials of the Indian Olympic Association on the undue treatment given to her.
He also said that this was not the first case of discrimination against Manipuri players.
As all the five dope tests conducted on Monika were found negative before confirmation of her selection to represent India, the last minute positive doping test was certainly a manipulated one, he asserted adding that this was a game plan to send weightlifter Shailaja of Andhra Pradesh.
MLA Ng Bijoy who also spoke at the press conference insisted that even if the Central government does not sent her to the Olympics, she should be sent to Beijing by the people of the state.
He also said that the state chief minister, O Ibobi Singh and other politicians of the state should fly to Delhi and look into the matter directly.
O Joy Singh, MLA also said that the incident was shocking not only for the people of the state but also for the sports lovers of India as well as the world.
He also informed that the MPP had lodged a complaint with the concerned authorities to look into the matter.
RK Anand, MLA demanded that the sports minister, N Biren should go to Beijing with Monika and allow her to participate in the competition.
The BJP, Manipur state unit while condemning the removal of Monika from the Indian squad said that it was not a good example and the unit took it seriously. Those involved in the conspiracy should be punished, it demanded.
Amrik Singh Pahwa, a social worker from Imphal also said in a statement that the executive committee of the Imphal bazar board met today and discussed the doping test of Monika which had shocked all communities as well as sportspersons.
Pahwa also said that he had contacted the Union sports secretary Sudhir Nath, joint secretary sports Sriniwas as well as cheif of the national dope testing laboratory, New Delhi and conveyed the sentiments of the people here.
He also spoke to former state chief secretary Jarnail Singh and MS Gill and urged for necessary action in the controversial dope test issue.
Shock on the controversial test result and condemnation of the dropping of the lone representative from India in weightlifting at the Beijing Games also came from various students bodies like the All India Students Federation, AISF, Manipuri Students’ Federation, MSF, and Kangleipak Students’ Association.
The North East Dialogue Forum in a statement said that the test might not have been carried out properly while observing that the decision of SAI director RK Naidu had insulted the people of the north east in general and the people of Manipur in particular.
The Centre For Social Development, Palace Compound, Women Action for Development, Nongmeibung, Chanura Lamjinglel Kangleipak, Imphal, MEELAL, Kanglei Apunba Yaipha Lup, Manipur, All Manipur Nupi Marup, Irawat complex, Manipur Tug-of-War Association and Thangmeiband Uripok Club Organisation also strongly condemned the disgraceful manner in which the sports authorities had treated Monika.
In the meantime, a join representation of the DESAM, AMSU, All Manipur Body Building Association, AMBBA, SAI, Manipur Women Hockey Association, SAI NERC, YWO, Singjamei, Macha Leima, HERICON, MAFYF, Manipur Swimming Association, Mapi Council, UPF, All Manipur Kick Boxing Federation, Manipur Olympic Association, MIKHOL, WACAK and NIPCO was submitted to the chief minister urging him to take necessary steps to clear Monika’s participation in the weightlifting event at the Beijing Olympics.
Monika....Manipur is behind you
R.K. Shivachandra *
In the last couple of months Monika had her urine sample tested more than four times and it was then found to be negative. Than how this dope 'positive news' suddenly sprung up at the eleven hour?
The aircraft which was to pick Monika Devi along with her fellow Olympians to China had been abandoned on the charges of being 'positive' collaborated on purpose with an anabolic steroid in her urine sample. Monika, since the last few months had consecutively been participating in a series of International events.
This sudden news has shown the stark conspiracy hatched by the SAI officials against the lone woman weight-lifter of Manipur who had been selected to participate in the Olympic event. Shall we go for further detail other than this? Unfortunately this woman-lifter happened to be from a state called Manipur in the North Eastern parts of India.
If she ever hails from West Bengal, Maharastra or Delhi than India would have been stormed by her news, media in and around the capital city of India would have been busy to make it cover story but it is not so for poor Monika, for she hails from Manipur.
Dope positive news is not a new story but the way the unscrupulous SAI officials had meted out to her is definitely a case of conspiracy.. this cannot be altered. Shall we continue watching before the television the gleefully marching Indian contingent in Beijing Olympic?
Manipuris are not only a second class citizen but 5th class citizen in the views of many sports officials of India. The SAI Executive Director, Mr. RK. Naidu, whoever he may be should be held responsible for this.
He refused to give the test report to Monika on the pretext that it was an official document and not to be shown to the athlete. What a devil in his brain. At this juncture we need to see the functioning style of the SAI institutions in India.
Sometimes we are inclined to think whether SAI is doing more harm than good especially to our Manipuris. Functioning of Institutions like SAI needed to be closely observed in Manipur. Manipuris can do better without a corrupt Institution like SAI.
We have already produced a lot of players long before the concept of SAI was mooted in India. If SAI and its branches in India ever tries to kill the very spirit of sports of the Manipuris, than we may not remain a mute spectators.
People like Naidu call themselves Sports Officials, speak as if they know everything but I wonder if they ever had possessed any bones inside their fleshy bodies that belongs to sports. Corruption, nepotism in sports had been practicing in India since long.
The step-motherly treatment or the age old concept of Indians sports officials leading them to think North Eastern parts of India as an alien culture; alien race calls for a rethink and be ashamed of their undue behavior towards the heroes in the field.
Better recall- this is Manipuris that speaks volumes of Indian sports in the international context. Yet, how we can easily forget the case of Kunjarani Devi who despite of her enough qualification to participate in the Olympic events, however was made to participate at a much later stage when the weight lifter had almost retired from the competition.
So also the in case of Sepak Takraw in Asian Games. The Game was dropped from the Indian contingent only because of the fact that all the participants were from Manipur.
Thoiba the yesteryears icon in the India hockey scene was simply denied captainship of Indian Hockey team for he was a Manipuri. To many of the Indians of the mainland, Manipuris with flat nose with half open eyes appeared to be more of Chinese than Indians.
We are sorry we cannot be one of those pointed nose and hairy Indians as far as our outlook goes. This is something we cannot change and we may be excused.
Officials who are intended to take Saileja Pujari in lieu of Monika have now reiterated "There is no need to get another weightlifter. It is already embarrassing enough before the Games and since there is no chance of a medal, what is the point in raking up the issue again," said an official on condition of anonymity.
The deputy chef-de-mission of the Indian contingent, Baljeet Singh Sethi, also said: "We are actually relieved it happened before she reached here because it would have shamed the country if she had failed a test at the Olympics."
Crook, Hypocrite ... are not they? The corrupt officials speak endless dialogue with their sore tooth but not the spirit of sports in their souls.
Somebody should tell Mr. Baljeet the so called India deputy chef-de-mission to Beijing Olympics that if the India Government ever afford to invest quarter of the amount of the whole budget of the Indian sports to Manipur, than by now there would have been hundred of medals in Indian's kitty. If so Indian sports official like Mr. Baljeet would have held his neck high while meeting with his foreign counterparts.
The State Government and Centre both should swallow the bitter pill of fact that Monika could be another Manorama's case in the Manipur's scenario. This is not the first time the players from Manipur have been deprived by the Indian sports officials in Delhi.
Their outlooks are as narrow as they are. Their vision through the thick lenses of their spectacle concentrated in specific zones somewhere in the mainland. I wonder how many of them know that India has a three-time world champion in women's boxing from Manipur.
Monika may be in the Indian contingent or not-tomorrow will tell. Thanks to Minister Biren who had been to Delhi to challenge the cause of Monika. This pen had never been habituated written poems on the bravery of legislators who have already shown a bed example to the people of Manipur.
But as a true citizen of Manipur, I simply acknowledge my heartfelt gratitude to the Minister of sports, Manipur that through his endeavor let Monika be seen in the limelight of Olympic in Beijing.
Anecdote
Traveling for the first time abroad in 1994, I was sitting quiet in the big Cathay-Pacific Aircraft in Hong Kong. In a few minutes the aircraft would be air-bound for Taipei and then to Seoul where I will have to make my final destination. Next to me was an Indian from Maharastra who run a factory in Maharastra, a big shot as he looks.
But the kind of typical Indian that everybody would have spotted him out. As the air-stewardess passed by, I have requested for a glass of water which the beautiful air hostess happily offered with a smile. The gentleman next to me also requested the same favour for a glass of water. The quick answer of the stewardess upset my co-passenger, when she replied "Sorry gentleman, let the flight take off!".
The gentleman felt a little embarrassment and I simply shy away to sip the glass of water offered by the spotless clean lady of the Cathay-Pacific. The Indian gentleman who was denied a glass of water before it took off murmured to my ears "She thinks you are a Chinese".
My inner self also says he is right. Had it been in Delhi he was supposed to have the first glass of water. Sensing my broad nose with my fingers, soon a sense of pride and happiness crept into my mind and that was a wonderful feeling.
http://e-pao.net/epSubPageExtractor.asp?src=news_section.opinions.RK_Shivachandra_Opinion.Monika_Manipur_is_behind_you
Defining Unlawful
By: R.K. Shivachandra *
Shall we say, don't drink water because fishes defecate in it. This is exactly what the SPF Government recently did by reiterating that the Media will be liable to be punished under certain laws if they publish underground related news.
The clean politician claimed to have no nexus with the underground element, let him throw the first stone to the Press. I am afraid will there be one? If it is viewed from practical aspects what would be Manipur Newspaper like without filling their columns with such news items.
Do we have any news not related to crimes now a days? But when it comes to blame somebody one shouldn't forget that the finger that points to someone has at the same time another four fingers that contradicts himself. We are all there as a part of it.
Be it Government or any element whatsoever under the Sun has its own share either bad or good in the present affair of Manipur. Shall we let the Manipur Press also follow the yardstick of "Myanmar News Light" or "Myanmar Times" published in Myanmar that carries only the Government related news, nothing but developmental news like where the Dam was built, bridges have been inaugurated kind?
Military Junta in one way could act themselves as true people's representatives despite being a military ruled Government in Myanmar. However imposing the style and functioning of Myanmar in this State of India, which is known to be the Greatest Democracy of the World may be unfair.
The Press is in dilemma, like the war prisoners who have no right to protest. They are made forced hostages in their own soil. The deep blue sea or the monster is equally dangerous. The Government imposes certain strictures of 'Dos and Don'ts' on the Press Fraternity in Manipur. Would not this tantamount to breach of laws that violates the sanctity of freedom of Press?
I cannot see any reason why should not the Government also be branded another unlawful agency for breach of laws. Press alone shouldn't get the blame neither Government should throw its weight on them. The SPF Government instead of gagging the mouth of Press can better do something innovative with the help of Medias like other state does.
In our neighboring Assam, ULFA is no longer viewed as a dreaded unlawful organization. Tarun Gogoi in his recent statement said his government had recommended the release of some of the jailed ULFA leaders if that would help in bringing peace to the State. He pronounced 'We are definitely going to ask the government during the talks to expedite the process of releasing the five jailed ULFA leader.
On the other hand ULFA is on the rise in terms of violence; struck in a big way killing hordes of Hindi-speaking people across the State of Assam. In such juncture Press plays the most vital kind of role, which the State Government needed the most. This is not in support of any vandalism or in the act of atrocities; it is still believed that every problem has a solution.
Let us not say that columns of forces that deployed in Manipur will stamp out insurgency. There should be some other means to bring Peace in Manipur. Kuldip Nayar, renowned journalist, rightly commented "If a government wants to depend on "extra-judicial powers" to administer any part of the country even after 57 years of Independence; there is something basically wrong with the approach of that government.
Former Chairman of the National Human Rights Commission Ranganath Mishra admitted that AFSPA was "grossly misused". The present government cannot brush aside his criticism because he was brought to the Rajya Sabha on the Congress ticket." I hope Kuldip Nayar didn't say wrong.
Manipur is virtually engulfed with chaos, turmoil and unrest. Apprehension prevails that Manipur may break into pieces someday. MLAs and MP who got elected from Manipur Assembly Constituencies have submitted a memorandum to the Prime Minister of India recently to segregate parts of Manipur and form a bigger state merging with Nagaland.
When one fathoms the degree, is there anything unlawful other than this act? What the Government will have to say on this? Laws itself don't prevail in the Palace; laws are being breached by the rulers and the King becomes dumbfounded. At this point of time laws are not meant to be enforced upon the subjects. So the term unlawful needs to be discussed broadly on a more befitting platform.
Yes we are talking on emotional aspects; emotional integrity, territorial integrity and lots more. If His Excellency, the Governor of Manipur or the Hon'ble Chief Minister ever travels on the National Highway 39 that leads to Dimapur of Nagaland only then they would understand as to how the most talked about "Emotional Integration" slipped off in the trouble torn Manipur.
Starting right from Gopibung near kangpokpi down the border town Mao of Manipur there are numerous potholes big enough to drown a baby -child. This has been almost an abandoned terrain by our wealthy-hefty Ministers and bureaucrats. I wonder how on the Earth one could find such a deplorable National Highway.
The poor maintenance of the road never reveals that the Chief Minister ever slightly ponders the integration issue. Nonetheless the Government talks big things; about developmental works being taken place etc. However driving along the road there is nothing one can be positive or optimistic about in their thought.
Every pothole made one to recall the name of Ibobi with a chant of blessing to live long the Chief Minister. Controlling the wheel is all you will have to do nothing comes in mind. As for me this is unlawful; grossly violated the right of basic amenities of the people. Shree Ibobi should get advice from his Nagaland Counterpart how the latter made a road from Khuzama and the rest of the stretches of National Highway in Nagaland akin to the road of Jan path Road in New Delhi.
Let us do some practical exercise; not to lament or shedding crocodile tears. Let us make Manipur ever resourceful and economic-self reliant state with good transport and communication. Let us dream Manipur be converted into a large rice bowl, another commercial hub like Bangkok and Yangon in the South East Asia.
Manipur by virtue of its geographic location is known to be the Gateway to the South East Asia. Why shouldn't we take advantage of it? Bangkok or Singapore doesn't require any emotional integration's plead.
Well Manipur should be a fertile and economic zone where every son of the soil flock together and prosper together. When that time comes the emotional integration chapter will sink itself in the fold of the history for Love and tranquility will prevail across the horizon.
Integrity Anecdote:
Sadananda the popular singer and star of Manipur silver screen happened to accompany me to Kohima where he had to stage a concert last year. My car in which we were traveling needed to have a repairing for some mechanical defect in a workshop at Senapati.
Soon the workshop was crowded with a lot of Sadananda's fans who were mostly teens. They seemed to be overjoyed seeing their favorite star and having an eyeball to eyeball talk with him. The ever smiling hero of the screen distributed sweets to his fans and small kids alike. Never was Shadananda considered by the crowd that he belongs to a particular community. People simply loved to hear what he said..readily to applaud in favour of him. For the moment the spirit of integration was flying high.
I hope any talker or spokesperson who has the capability of being glued to microphone hours on integration issue would not have been able to pull that much crowd as did by Sadananda. It took place in an unexpected time in a corner of Senapati where the theme of emotional integration requires to be planted cautiously and see how it blooms.
In one way Sadananda is a more practical crusader of Emotional Integration than anyone else.
"The Eskimo has fifty-two names for snow because it is important to them; there ought to be as many for love."
- Margaret Atwood
The Illusion
By: R.K. Shivachandra *
Have you ever come across any Manipuri who had a local school background and at the same time forgotten his own language in the changing pace of the world?
I fortunately met one such gentleman in Zakhama Loyola English School, Nagaland where he was serving as an assistant teacher. This happened way back in 1986 when I was being introduced to him by one of my friends who was also serving as a teacher in a private school nearby Zakhama.
The gentleman in question introduced himself as Rajesh hailing from Thoubal district of Manipur never spoke any language other than English but amusingly in the kind of tone which itself revealed who he was. I was amused and further enquired how he had forgotten his own mother tongue? He said ?I came here at an early age and hardly got the chance to speak Manipuri. Now I can?t speak it?.
This reminded me of the joke of two Manipuris who pretended to each other of being foreign nationals - one as Thai and the other as a Korean at their first meeting in Mumbai. Later they came to know each other?s identity only when they were dining together in a restaurant where they started murmuring vulgarities in Manipuri dialect blaming oneself for not being familiar with the ?fork and spoon? tradition.
Dolak Phom was also a popular person who had been elected as one of the town committee members in the ?Tuensang Town Committee? in 1995. A wonderful personality so eloquent in Phom dialect that one would mistake him as an influential Phom politician. However, he is a Manipuri who never returned home over the years.
Yet he still speaks excellent Manipuri. He is quite a capable chap in the Tuensang district of Nagaland who in the process of life married a local woman, thereafter he had been known as Dolak Phom otherwise he was Sanasam Dhiren.
One elderly friend of mine who had been breathing the air of Mizoram for forty years now is also a well-known Manipuri in Aizawl but unluckily without a surname of his own. All his offspring opted for the surname and title of their mother and the father seemed to have followed suit.
It is not an offensive or objectionable act but what is the harm when one remains true to the self instead of shying away from his origin? Is it a sin to be a Manipuri? Can't one settle there upholding one?s own identity and roots?
In the same case, I came across many Muslim gentlemen who had settled in different parts of the country having inter- marriage life with the locals of the place but they hardly embraced other religion or converted to some other community for mere gain in life.
Once I met one of my respected teachers in Shillong who had almost settled in Itanagar, Arunachal Pradesh. He had given me a visiting card when we parted. I wrote a letter enquiring about his well being and recollecting the short encounter in Shillong when I reached Delhi.
The reply was so embarrassing and cold and I was warned not to write his full surname on the envelope next time. Later I learnt that ?L? which he uses in short form, doesn?t stand for Leisangthem but the adopted surname of his wife which also co-incidentally began with the alphabet ?L?. Many such persons are often seen around while few could be available upholding his or her identity.
A Manipuri Meitei woman who is married to one of my Mao friends serving in the Bank of Baroda seemed to have enjoyed life with her husband and no doubt the child born by them will definitely be ?Maos?. So also is Bimola who married an Angami friend of mine in Kohima village. This is the true spirit.
My Mao friend and Angami friend will never change their identity because they married a Manipuri woman. Likewise any child born of Manipuri women married to Sardarji, Bengali and other communities by no means become a Manipuri by blood.
We don?t adopt the system of the distinguished tribes in Meghalaya where women have to decide the fate of the husband. This is nothing related to the communal ethos or Manipuri chauvinism. This is simply the question of identity.
However one of my friends who was serving in Nagaland, Ibohal, who had married an Angami lady is of different character. His wife will always dress in Manipuri attire and speak polished Manipuri and learning the way of the Manipuris. His effort to make his wife speak the Manipuri language in a Nagamese and English spoken land was never a mater of joke.
On the part of the wife she never hesitates to become the most understanding ?better half? of her husband. Moreover following the footprints of the husband and converting herself to the community to which her husband belongs never contradicts the law of the land. But such people come very few and far between.
In Manipur we have the example of Banuo Koijam, otherwise the better half of our Ex-Chief Minister Radhabinod Koijam, she can compete well with the most orthodox Meitei ladies when it comes to maintaining and sharing her husband's public life.
Sometimes I am bemused when the Keralites lit up the light of ?Onam festival?. People from every walk of life in Kerala celebrate it in full spirit. The same is being practiced elsewhere in the world wherever Keralites inhabit. They all gather in a joyous festive mood keeping aside the religious differences.
When the ?Gan-ngai festival? season comes around, the Kabui community celebrate the festival welcoming one and all whether one is a Christian or a non-Christian. Sekreni the festival of the Angamis and Chakhesang and Motsu the festival of Aos are age-old traditional festivals.
All the Nagas had been observing such festivals since time immemorial much before Nagas embraced Christianity and it still continues. They never despised this colorful festival after they became Christians.
Unfortunately any Meitei when he becomes a Christian, (s)he despises Uamang Lai Haraoba of Manipur and will disassociate himself from all the Meitei cultural and traditional rituals as a rule. Very few may come out to contradict it.
The conversion of religion is something, which happens for one, love the doctrine and scripture of the religion and it is my humble opinion that it has nothing to do with one?s origin and community.
When the Japanese embrace Christianity, they proudly stand in their positions and exclaim, ?We will be Japanese Christians not American Christians?. Unfortunately this spirit and sense of oneness doesn?t flow in the mind and body of those who had opted different religions and settled elsewhere far from the memories of truth.
When the cult of Hinduism arrived at this religiously fertile land and when the Manipuri scriptures (Puyas) were burnt, Manipuris seemed to have fully converted into Hinduism. We surrendered everything to the new religion and everybody assumed Hindu names and titles.
Such practice has not only sapped the vitality of the people of Manipur but it has also seriously blurred their future politically and identity aspects. Such unfortunate systems had not occurred to other States in India when the people of certain States converted to the religion they loved, but never changed their traditional names.
Nevertheless when any of the Manipuri Meiteis convert himself or herself into Christianity, it has become a rule to change his/her name too. When Nonglenba was baptized recently, he has since then became to known as Brother Mark. I wonder why he can?t still remain as Nonglenba despite his conversion to the religion he likes.
However Nancy MacCradle Maybe, widow of Jupiter Yambem who perished in the most horrifying attack at the World Trade Center in New York, heralded a new message to the world communities in large and Manipuris in particular.
In her short and impromptu speech in a simple inaugural function of ?Jupiter Yambem Center? at Paona Bazaar on September 11, 2002, she asserted ?I wanted to bring my son Santi (Chinglai Lakpa) to Imphal frequently so that he can keep in touch with his father's roots?.
I wonder why Nancy doesn?t wish to erase the memory of Manipur from her son and let her son grow up as a proud American? What made her think to bring her son from a far distant place like America to Manipur every year only to impart to her son the ?Manipuris way of life? and its tradition and culture?
This remains a trillion-dollar question to us and especially for the Manipuris who bade adieu to the society of Manipur and want to lead a different life of their own.
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Armed Forces Special Powers Act:
A study in National Security tyranny
Introduction
Historical Background
The Act and its provisions
Legal Analysis
Conclusions
Recommendations
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1. INTRODUCTION
The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the more draconian legislations that the Indian Parliament has passed in its 45 years of Parliamentary history. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to "maintain the public order".
The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of "aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the north- eastern region of India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the "seven sisters". The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the North East states from seceeding from the Indian Union. There is a strong movement for self-determination which precedes the formation of the Indian Union.
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2. HISTORICAL BACKGROUND
As the great Himalayan range dividing South and Central Asia runs down the east, it takes a southward curve and splits into lower hill ranges. The hills are punctuated by valleys and the valleys are washed by the rivers that drain into to the Bay of Bengal. Waves of people settled in these blue hills and green valleys at various times in history. They brought with them cultures and traditions. The new interacted with the old and evolved into the unique cultural mosaic that characterizes the region.
Through the centuries, these hills and valleys have bridged South, South East, and Central Asia. On today's geo-political map, a large part of the original region constitutes the seven states of the Republic of India, but its political, economic and socio-cultural systems have always been linked with South East Asia. The great Hindu and Muslim empires that reigned over the Indian sub-continent never extended east of the Bhramaputra river.
India's British colonizers were the first to break this barrier. In the early 19th century, they moved in to check the Burmese expansion into today's Manipur and Assam. The British, with the help of the then Manipur King, Gambhir Singh, crushed the Burmese imperialist dream and the treaty of Yandabo was signed in 1828. Under this treaty, Assam became a part of British India and the British continued to influence the political affairs of the region.
This undue interference eventually led to the bloody Anglo- Manipuri conflict of 1891. The British reaffirmed their position but were cognizant of the ferocious spirit of independence of these people and did not administer directly but only through the King.
It was during the Second World War, when the Japanese tried to enter the Indian sub-continent through this narrow corridor, that the strategic significance of the region to the Indian armed forces was realised. With the bombing of the Hiroshima and Nagasaki, a disenchanted Japanese had to retreat from Imphal and Kohima fronts, however the importance of control over the region subsequently remained a priority for the Government of India.
With the end of the war, the global political map was changed over night. As the British were preparing to leave Asia, the Political Department of the British Government planned to carve out a buffer state consisting of the Naga Hills, Mikir Hills, Sadiya Area, Balipara Tract, Manipur, Lushai Hills, Khasi and Hills in Assam, as well as the Chin Hills and the hills of northern Burma. The impending departure of the British created confusion and turmoil over how to fill the political vacuum they would leave behind. Ultimately, the various territories were parceled out to Nehru's India, Jinnah's Pakistan, Aung Sang's Burma and Mao's China according to strategic requirements. As expected, there were some rumblings between the new Asiatic powers on who should get how much - India and Burma over Kabow valley, India and East Pakistan over Chittagong Hill Tracts, and India and China over the North-East Frontier Agency (NEFA), present day Arunachal Pradesh.
Compromises were made, and issues were finally settled in distant capitals, to the satifaction of the new rulers. The people who had been dwelling in these hills and valleys for thousands of years were systematically excluded from the consultation process. The Indian share of the British colonial cake in this region constitutes the present "Seven Sisters" states of the North-East.
Over the years, thanks to the British, the advent of western education and contact with new ideas brought about the realization that the old ways had to give way to the new. Indigenous movements evolved as the people aspired to a new social and political order. For example, in the ancient Kingdom of Manipur, under the charismatic leadership of Hijam Irabot, a strong popular democratic movement against feudalism and colonialism was raging. After the departure of the British, the Kingdom of Manipur was reconstituted as a constitutional monarchy on modern lines by passing the Manipur Constitution Act, 1947.
Elections were held under the new constitution. A legislative assembly was formed. In 1949, Mr V P Menon, a senior representative of the Government of India, invited the King to a meeting on the pretext of discussing the deteriorating law and order situation in the state at Shillong. Upon his arrival, the King was allegedly forced to sign under duress the merger agreement. The agreement was never ratified in the Manipur Legislative Assembly. Rather, the Assembly was dissolved and Manipur was kept under the charge of a Chief Commissioner. There were protests, but the carrot-and-stick policy launched by the Indian Government successfully suppressed any opposition.
The Naga Movement
At the beginning of the century, the inhabitants of the Naga Hills, which extend across the Indo-Burmese border, came together under the single banner of Naga National Council (NNC), aspiring for a common homeland and self-governance. As early as 1929, the NNC petitioned the Simon Commission, which was examining the feasibility of future of self-governance of India. The Naga leaders were adamantly against Indian rule over their people once the British pulled out of the region. Mahatma Gandhi publicly announced that the Nagas had every right to be independent. His assertion was based on his belief in non-violence, he did not believe in the use of force or an unwilling union.
Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Union or not. However, shortly after the British withdrew, independent India proclaimed the Naga Territory as part and parcel of the new Republic.
The NNC proclaimed Nagaland's independence. In retaliation, Indian authorities arrested the Naga leaders. An armed struggle ensued and there were large casualties on either side. The Armed Forces Special Powers Act is the product of this tension.
In 1975, some Naga leaders held talks with the Government of India which resulted in what is known as the Shillong Accord. The Naga leaders who did not agree with the Shillong accord formed the National Socialist Council of Nagaland (NSCN) and continue to fight for what they call," Naga sovereignty".
Problems of Integration
Much of this historical bloodshed could have been avoided if the new India had lived up to the democratic principles enshrined in its Constitution and respected the rights of the nationalities it had taken within its borders. But in the over-zealous efforts to integrate these people into the "national mainstream", based on the dominant brahminical Aryan culture, much destruction has been done to the indigenous populations.
Culturally, the highly caste ridden, feudal society is totally incompatible with the ethics of North-East cultures which are by and large egalitarian. To make matters even worse, the Indian leaders found it useful to club these ethnic groups with the adivasis (indigenous peoples) of the sub-continent, dubbing them "scheduled tribes". As a result, in the casteist Indian social milieu, indigenous peoples are stigmatized by higher castes.
The languages of the North-East are of the Tibeto- Chinese family rather than the Indo-Aryan or Dravidian. Until the recent Eighth Schedule of the Indian Constitution, none of the Tibeto- Chinese languages were recognized as Indian languages. The predominantly mongoloid features of the people of the North-East is another barrier to cultural assimilation.
Politically dependent, the North East is being economically undermined; the traditional trade routes with South East Asia and Bangladesh have been closed. It was kept out of the Government of India's massive infrastructural development in the first few five-year-plans. Gradually, the region has become the Indian capitalist's hinterland, where local industries have been reduced to nothing and the people are now entirely dependent on goods and businesses owned predominantly by those from the Indo- Gangetic plains. The economic strings of this region are controlled by these, in many cases, unscrupulous traders.
All the states of the North-East are connected to India by the "chicken's neck", a narrow corridor between Bangladesh and Bhutan. At partition, the area was cut off from the nearest port of Chittagong, in what is now Bangladesh, reducing traffic to and from the region to a trickle. The states in the region are largely unconnected to India' vast rail system.
India freely exploits the natural resources of the North-East. Assam produces one-fourth of all the petroleum for India, yet it is processed outside of Assam so the state does not receive the revenues. Manipur is 22% behind the national average for infrastructural development, and the entire North-Eastern region is 30% behind the rest of India.
Observers have pointed out that "...it is clear that in the North East, insurgency and underdevelopment have been closely linked; in such a situation strong-arm tactics will only help to further alienate the people."
The shifting demographic balance due to large-scale immigration from within and outside the country is another source of tension. The indigenous people fear that they will be outnumbered by outsiders in their own land. Laborers from Bihar and Bengal who live under rigidly feudal, casteist socio-economic conditions in their states are ready to do all kinds of menial jobs at much lower wages. As they pour in, more and more local laborers are being edged out of their jobs. Illegal immigration from Bangladesh and Nepal is also percieved as a threat. In Tripura, the indigenous population has been reduced to a mere 28% of the total population of the state because of large scale immigration from then East Pakistan and now Bangladesh.
In Assam, a similar fear of " immigrant invasion" was at the root of a student movement in the early eighties. The student leaders formed a political party called the Assam Gana Parisad (AGP) and contested state elections and won. In 1984, the Assam Accord was signed with the Central Government. However, the provisions of the Accord were never implemented. The failure of the AGP to bring about change in the state of Assam fostered the growth of the armed and overtly seccessionist United Liberation Front of Assam (ULFA).
Mizoram
In the Lushai hills of Assam in the early sixties, a famine broke out. A relief team cried out for help from the Government of India. But there was little help. The relief team organized themselves into the Mizo National Front (MNF) and called for an armed struggle, " to liberate Mizoram from Indian colonialiasm." In February 1966, armed militant groups captured the town of Aizawl and took possession of all government offices. It took the Indian army one week to recapture the town. The army responded viciously with air raids. This is the only place in India where the Indian Security Forces actually aerially bombed its own civilian population. The armed forces compelled people to leave their homes and dumped them on the roadside to set up new villages, so that the armed forces would be able to better control them. This devastated the structure of Mizo society. In 1986, the Mizo Accord was signed between the MNF and the Government of India. This accord was identical to the Shilong Accord made with the Nagas earlier. The MNF agreed to work within the Indian Constitution and to renounce violence.
The Government of India's primary interest in the North East was strategic, and so was its response to the problems. A series of repressive laws were passed by the Government of India in order to deal with this uprising. In 1953, the Assam Maintenance of Public Order (Autonomous District) Regulation Act was passed. It was applicable to the then Naga Hills and Tuensang districts. It empowered the Governor to impose collective fines, prohibit public meetings and and detain anybody without a warrant.
On 22 May 1958, a mere 12 days after the Budget Session of Parliament was over, the Armed Forces (Assam-Manipur) Special Powers Ordinance was passed. A bill was introduced in the Monsoon session of Parliament that year. Amongst those who cautioned against giving such blanket powers to the Army included the then Deputy Chairman of the Rajya Sabha, (Upper House of the Indian Parliament), Mr P N Sapru. In a brief discussion that lasted for three hours in the Lok Sabha and for four hours in the Rajya Sabha, Parliament approved the Armed Forces (Assam- Manipur) Special Powers Act with retrospective from 22 May 1958.
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3. THE ACT AND ITS PROVISIONS
Section 1: This section states the name of the Act and the areas to which it extends (Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram).
Section 2: This section sets out the definition of the Act, but leaves much un-defined. Under part (a) in the 1972 version, the armed forces were defined as "the military and Air Force of the Union so operating". In the 1958 version of the Act the definition was of the "military forces and the air forces operating as land forces". In the Lok Sabha Debates which led to the passing of the original Act, Mr Naushir Bharucha commented, "that probably means that the Government very mercifully has not permitted the air forces to shoot or strafe the area ... or to bomb." The Minister of Home Affairs did not confirm this interpretation, but certainly "acting as land forces" should rule out the power to resort to aerial bombardment. Nevertheless, in 1966, the Air Force in Mizoram did resort to aerial bombardment.
Section 2(b) defines a "disturbed area" as any area declared as such under Clause 3 (see discussion below). Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950.
Section 3: This section defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. Rather, the AFSPA only requires that such authority be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case. The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in practice, it is only the government's understanding which classifies an area as disturbed. There is no mechanism for the people to challenge this opinion. Strangely, there are acts which define the term more concretely. In the Disturbed Areas (Special Courts) Act, 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.
The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central Government. In the 1958 version of the AFSPA only the state governments had this power. In the 1972 Lok Sabha debates it was argued that extending this power to the Central Government would take away the State's authority. In the 1958 debates the authority and power of the states in applying the AFSPA was a key issue. The Home Minister had argued that the AFSPA broadened states' power because they could call in the military whenever they chose. The 1972 amendment shows that the Central Government is no longer concerned with the state's power. Rather, the Central Government now has the ability to overrule the opinion of a state governor and declare an area disturbed. This happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government.
In the 1972 Lok Sabha debates, Mr S D Somasundaram pointed out that there was no need to extend this power to the Central Government, since the President had "the power to intervene in a disturbed State at any time" under the Constitution. This point went unheeded and the Central Government retains the power to apply the AFSPA to the areas it wishes in the Northeast.
Section 4: This section sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons.
The army can shoot to kill, under the powers of section 4(a), for the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be "of the opinion that it is necessary to do so for the maintenance of public order" and only give "such due warning as he may consider necessary".
The army can destroy property under section 4(b) if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp, or as a hide-out by armed gangs or absconders.
The army can arrest anyone without a warrant under section 4(c) who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest".
Under section 4(d), the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.
Section 5: This section states that after the military has arrested someone under the AFSPA, they must hand that person over to the nearest police station with the "least possible delay". There is no definition in the act of what constitutes the least possible delay. Some case-law has established that 4 to 5 days is too long. But since this provision has been interpreted as depending on the specifics circumstances of each case, there is no precise amount of time after which the section is violated. The holding of the arrested person, without review by a magistrate, constitutes arbitrary detention.
Section 6: This section establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This section leaves the victims of the armed forces abuses without a remedy.
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4. LEGAL ANALYSIS
The Armed Forces Special Powers Act contravenes both Indian and International law standards. This was exemplified when India presented its second periodic report to the United Nations Human Rights Committee in 1991. Members of the UNHRC asked numerous questions about the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR. The Attorney General of India relied on the sole argument that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a "war footing." He argued that the Indian Constitution, in Article 355, made it the duty of the Central Government to protect the states from internal disturbance, and that there is no duty under international law to allow secession.
This reasoning exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the peoples of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government.
A) INDIAN LAW
There are several cases pending before the Indian Supreme Court which challenge the constitutionality of the AFSPA. Some of these cases have been pending for over nine years. Since the Delhi High Court found the AFSPA to be constitutional in the case of Indrajit Barua and the Gauhati High court found this decision to be binding in People's Union for Democratic Rights, the only judicial way to repeal the act is for the Supreme Court to declare the AFSPA unconstitutional.
It is extremely surprising that the Delhi High Court found the AFSPA constitutional given the wording and application of the AFSPA. The AFSPA is unconstitutional and should be repealed by the judiciary or the legislature to end army rule in the North East.
Violation of Article 21 - Right to life
Article 21 of the Indian Constitution guarantees the right to life to all people. It reads, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Judicial interpretation that "procedure established by law means a "fair, just and reasonable law" has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi. This decision overrules the 1950 Gopalan case which had found that any law enacted by Parliament met the requirement of "procedure established by law".
Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force.
The offenses under section 4(a) are: "acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or fire-arms, ammunition or explosive substances". None of these offences necessarily involve the use of force. The armed forces are thus allowed to retaliate with powers which are grossly out of proportion with the offence.
Justice requires that the use of force be justified by a need for self-defense and a minimum level of proportionality. As pointed out by the UN Human Rights Commission, since "assembly" is not defined, it could well be a lawful assembly, such as a family gathering, and since "weapon" is not defined it could include a stone. This shows how wide the interpretation of the offences may be, illustrating that the use of force is disproportionate and irrational.
Several incidents show how the Border Security Force (BSF) and army personnel abuse their powers in the North East. In April 1995, a villager in West Tripura was riding near a border outpost when a soldier asked him to stop. The villager did not stop and the soldier shot him dead. Even more grotesque were the killings in Kohima on 5 March 1995. The Rastriya Rifles (National Rifles) mistook the sound of a tyre burst from their own convoy as a bomb attack and began firing indiscriminately in the town. The Assam Rifles and the CRPF who were camped two kilometers away heard the gunshots and also began firing. The firing lasted for more than one hour, resulting in the death of seven innocent civilians, 22 were also seriously injured. Among those killed were two girls aged 3 1/2 and 8 years old. The injured also included 7 minors. Mortars were used even though using mortars in a civilian area is prohibited under army rules.
This atrocity demonstrates the level of tension prevalent in the North East. For a tire burst to be mistaken for a bomb proves that the armed forces are perpetually under stress and live under a state of siege.
In the Indrajit Barua case, the Delhi High Court found that the state has the duty to assure the protection of rights under Article 21 to the largest number of people. Couched in the rhetoric of the need to protect the "greater good", it is clear that the Court did not feel that Article 21 is a fundamental right for the people of Assam. The Court stated, "If to save hundred lives one life is put in peril or if a law ensures and protects the greater social interest then such law will be a wholesome and beneficial law although it may infringe the liberty of some individuals."
This directly contradicts Article 14 of the Indian Constitution which guarantees equality before the law. This article guarantees that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." The AFSPA is in place in limited parts of India. Since the people residing in areas declared "disturbed" are denied the protection of the right to life, denied the protections of the Criminal Procedure Code and prohibited from seeking judicial redress, they are also denied equality before the law. Residents of non-disturbed areas enjoy the protections guaranteed under the Constitution, whereas the residents of the Northeast live under virtual army rule. Residents of the rest of the Union of India are not obliged to sacrifice their Constitutional rights in the name of the "greater good".
Protection against arrest and detention - Article 22
Article 22 of the Indian Constitution states that "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate." The remaining sections of the Article deal with limits on these first two sections in the case of preventive detention laws. On its face, the AFSPA is not a preventive detention law therefore the safeguards of sections (1) and (2) must be guaranteed to people arrested under the AFSPA.
Section (2) of Article 22 was the subject of much debate during the framing of the Indian Constitution. There was argument over whether the time limit should be specified or whether the words "with the least possible delay" should be used. Dr Amedkar, one of the principal framers of the Indian Constitution argued that "with the least possible delay" would actually result in the person being held for a shorter period of time, whereas "twenty- four hours" would result in the person being held for the maximum time of twenty-four hours. The application of these terms has since shown that a specified time period constitutes a greater safeguard. Under the AFSPA, the use of "least possible delay" language has allowed the security forces to hold people for days and months at a time. A few habeas corpus cases in which the court did find the delay to be excessive are indicative of the abuses which are occurring in practice. It should be noted that habeas corpus cases are only filed for those who have access to lawyers and the court. In all the seven states of the North East only the Guwhati High Court bench in Assam can hear habeas corpus cases. So although in the two following cases the time of delay in handing over the arrested person was found excessive, it can only be imagined what types of abuses occur in the states of Manipur and Nagaland where the people do not have access to the court. In Nungshitombi Devi v. Rishang Keishang, CM Manipur, (1982) 1 GLR 756, the petitioner's husband was arrested by CRPF on 10 January 1981, and was still missing on 22 February 1981. He had been arrested under AFSPA Section 4(c). The court found this delay to have been too long and unjustified, even under Section 5 of the AFSPA. In Civil Liberties Organisation (CLAHRO) v. PL Kukrety, (1988) 2 GLR 137, people arrested in Oinam were held for five days before being handed over to magistrates. The court found this to be an unjustified delay.
In its application, the AFSPA does lead to arbitrary detention. If the AFSPA were defended on the grounds that it is a preventive detention law, it would still violate Article 22 of the Constitution. Preventive detention laws can allow the detention of the arrested person for up to three months. Under 22(4) any detention longer than three months must be reviewed by an Advisory Board. Moreover, under 22(5) the person must be told the grounds of their arrest. Under section 4(c) of the AFSPA a person can be arrested by the armed forces without a warrant and on the mere suspicion that they are going to commit an offence. The armed forces are not obliged to communicate the grounds for the arrest. There is also no advisory board in place to review arrests made under the AFSPA. Since the arrest is without a warrant it violates the preventive detention sections of article 22.
The case of Luithukla v. Rishang Keishing, (1988) 2 GLR 159, a habeas corpus case, exemplifies the total lack of restraint on the armed forces when carrying out arrests. The case was brought to ascertain the whereabouts of a man who had been arrested five years previously by the army. The court found that the man had been detained by the army and that the forces had mistaken their role of "aiding civil power". The court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there are is no enforcement of these rulings.
Army officers have accused High Court judges of weakening military powers in the North East, exemplifying that the armed forces are not interested in complying with civil law standards. Any attempt by the courts to oblige compliance with police procedure is ignored. (see further section on the lack of independence of the judiciary)
In the habeas corpus case of Bacha Bora v. State of Assam, (1991) 2 GLR 119, the petition was denied because a later arrest by the civil police was found to be legal. However, in a discussion of the AFSPA, the court analyzed Section 5 (turn the arrested person over to the nearest magistrate "with least possible delay"). The court did not use Article 22 of the Constitution to find that this should be less than twenty-four hours, but rather said that "least possible delay" is defined by the particular circumstances of each case. In this case, the army had provided no justification for the two week delay, when a police station was nearby, so section 5 was violated. Nevertheless, this leaves open the interpretation that circumstances could justify a delay of 5 days or more.
The Indian Criminal Procedure Code ("CrPC")
The CrPC establishes the procedure police officers are to follow for arrests, searches and seizures, a procedure which the army and other para- military are not trained to follow. Therefore when the armed forces personnel act in aid of civil power, it should be clarified that they may not act with broader power than the police and that these troops must receive specific training in criminal procedure.
In explaining the AFSPA bill in the Lok Sabha in 1958, the Union Home Minister stated that the Act was subject to the provisions of the Constitution and the CrPC. He said "these persons [military personnel] have the authority to act only within the limits that have been prescribed generally in the CrPC or in the Constitution." If this is the case, then why was the AFSPA not drafted to say "use of minimum force" as done in the CrPC? If the government truly means to have the armed forces comply with criminal procedure, than the AFSPA should have a specific clause enunciating this compliance. Further it should also train the armed forces in this procedure.
The CrPC has a section on the maintenance of public order, Chapter X, which provides more safeguards than the AFSPA. Section 129 in that chapter allows for the dispersal of an assembly by use of civil force. The section empowers an Executive Magistrate, officer-in-charge of a police station or any police officer not below the rank of sub-inspector to disperse such an assembly. It is interesting to compare this section with the powers the army has to disperse assemblies under section 4(a) of the Act. The CrPC clearly delineates the ranks which can disperse such an assembly, whereas the Act grants the power to use maximum force to even to non commissioned officers. Moreover, the CrPC does not state that force to the extent of causing death can be used to disperse an assembly.
Sections 130 and 131 of the same chapter sets out the conditions under which the armed forces may be called in to disperse an assembly. These two sections have several safeguards which are lacking in the Act. Under section 130, the armed forces officers are to follow the directives of the Magistrate and use as little force as necessary in doing so. Under 131, when no Executive Magistrate can be contacted, the armed forces may disperse the assembly but if it becomes possible to contact an Executive Magistrate at any point, the armed forces must do so. Section 131 only gives the armed forces the power to arrest and confine. Moreover, it is only commissioned or gazetted officers who may give the command to disperse such an assembly, whereas in the AFSPA even non-commissioned officers are given this power. The AFSPA grants wider powers than the CrPC for dispersal of an assembly.
Moreover, dispersal of assemblies under Chapter X of the CrPC is slightly more justifiable than dispersal under Section 4(a) of the AFSPA. Sections 129-131 refer to the unlawful assemblies as ones which "manifestly endanger" public security. Under the AFSPA the assembly is only classified as "unlawful" leaving open the possibility that peaceful assemblies can be dispersed by use of force.
Chapter V of the CrPC sets out the arrest procedure the police are to follow. Section 46 establishes the way in which arrests are to be made. It is only if the person attempts to evade arrest that the police officer may use "all means necessary to effect the arrest." However, sub-section (3) limits this use of force by stipulating that this does not give the officer the right to cause the death of the person, unless they are accused of an offence punishable by death or life imprisonment. This power is already too broad. It allows the police to use more force than stipulated in the UN Code of Conduct for Law Enforcement Officials (see section on International law below). Yet the AFSPA is even more excessive. Section 4(a) lets the armed forces kill a person who is not suspected of an offence punishable by death or life imprisonment.
Under the Indian Penal Code, at Section 302, only murder is punishable with death. Murder is not one of the offenses listed in section 4(a) of the AFSPA. Moreover the 4(a) offences are assembly of five or more persons, the carrying of weapons, ammunition or explosive substances, none of which are punishable with life imprisonment under the Indian Penal Code. Under section 143 of the Penal Code, being a member of an unlawful assembly is punishable with imprisonment of up to six months and/or a fine. Even if the person has joined such unlawful assembly armed with a deadly weapon, the maximum penalty is imprisonment for two years and a fine. Moreover, persisting or joining in an unlawful assembly of five or more persons is also punishable with six months imprisonment, or a fine, or both. The same offence committed by someone in a disturbed area under the AFSPA is punishable with death. This again violates the Constitutional right to equality before the law. Different standards of punishment are in place for the same act in different parts of the country, violating the equality standards set out in the Constitution.
Supposedly the military do have instructions on the procedures they are to follow when they act in aid of civil power. In People's Union for Democratic Rights v. Union of India, (1991) 2 GLR 1, when the court reviewed the army's powers it referred to two sets of instructions issued to the military when acting in aid of civil power. The first was a 1969 pamphlet issued by the Government of India as guidance for military but it was confidential and the court was not allowed to review it. A 1973 basic book instructions for army acting in aid of civil power was also referred to in the case. In a personal meeting with Justice Raghuvir, former Chief Justice of the Guwahati High Court, and the Justice who wrote the opinion in People's Union for Democratic Rights, SAHRDC asked for details on the nature of these instructions. Justice Raghuvir told us that he was only able to see a few pages and that the whole booklet was not available to non-military personnel. He believes that the military keeps these instruction manuals confidential so that it can not be shown that the armed forces fail to comply with their own standards. This is another example of the lack of judicial review and allows the armed forces to remain above the law.
Military's Immunity / Lack of Remedies
The members of the Armed Forces in the whole of the Indian territory are protected from arrest for anything done within the line of official duty by Section 45 of the CrPC. Section 6 of the AFSPA provides them with absolute immunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the Central Government.
In a report on the AFSPA to the UN Human Rights Committee in 1991, Nandita Haksar, a lawyer who has often petitioned the Guwahati High Court in cases related to the AFSPA, explains how in practice this leaves the military's victims without a remedy. Firstly, there has not been a single case of any one seeking such permission to file a case in the North East. Given that the armed forces personnel conduct themselves as being above the law and the people are alienated from the state government, it is hardly surprising that no one would approach Delhi for such permission. Secondly, when the armed forces are tried in army courts, the public is not informed of the proceedings and the court martial judgments are not published. In a meeting with the government National Human Rights Commission (NHRC), a representative of SAHRDC was able to discuss cases where BSF and armed forces in Jammu and Kashmir were punished for abuses. Yet, the results of these trials were not published and the NHRC representative stated that it would endanger the lives of the soldiers.
This section of the AFSPA was also reviewed in Indrajit Barua. The High Court justified this provision on the grounds that it prevents the filing of "frivolous claims". The court even said that this provision provides more safeguards, obviously confusing safeguards for the military with safeguards for the victims of the military's abuses.
Instances of human rights abuses by the army have shown that unless there is public accountability there is no incentive for the army to change its conduct. This was exemplified in Burundi when security forces killed 1,000 people in October 1991. Amnesty International reported, "The failure to identify those responsible for human rights violations and bring them to justice has meant that members of the security forces continue to believe that they are above the law and can violate human rights with impunity." Without the transparency of the public accounting, it is impossible to be sure that perpetrators are actually punished.
Habeas corpus cases have been the only remedy available for those arrested under the AFSPA. A habeas corpus case forces the military or police to hand the person over to the court. This gives the arrested person some protection and it is in these cases that legal counsel have been able to make arguments challenging the AFSPA. However, a habeas corpus case will not lead to the repeal of the act nor will it punish particular officers who committed the abuses. Also, only people who have access to lawyers will be able to file such a case.
Section 6 of the AFSPA thus suspends the Constitutional right to file suit. Mr Mahanty raised this crucial argument in the first Lok Sabha debate on the AFSPA in 1958. He said that Section 6 of the AFSPA "immediately takes away, abrogates, pinches, frustrates the right to constitutional remedy which has been given in article 32(1) of the Constitution." This further shows that the AFSPA is more than an emergency provision because it is only in states of emergency that these rights can be constitutionally suspended.
Section 32(1) of the Constitution states that "the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." In the Constitutional Assembly debates, Dr B R Ambedkar said, "If I was asked to name any particular article of the Constitution as the most important - an article without which this Constitution would be a nullity. I would not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it."
During the emergency in 1975 the right to file for writs of habeas corpus was suspended as ruled by the Supreme Court in A.D.M. v. Shivakant Shukla, (1976) 2 SCC 521. The Emergency had been declared under Section 359 of the Constitution. This section has now been amended, stating that the fundamental rights of section 20 and 21 cannot be suspended, even in a state of emergency. Therefore, should an emergency be declared today, the right to file habeas corpus on the grounds that the fundamental right to life has been denied should be allowed. Nevertheless, the 1975 case exemplifies the court's deference for the executive, even if it means a total suspension of individual liberty.
In the 1958 Lok Sabha, debate also occured about whether the right to file suit was a guaranteed right under the Constitution. The Speaker said, "Now who is to decide whether a right is one which has been guaranteed under this article? (article 32) The Supreme Court will decide it." Turning to this argument later, the Home Minister pointed out that under the Criminal Procedure Code and the Civil Procedure Code that the Government's consent was already required before a member of the armed forces could be sued in connection with their duties. This remains the case under both Codes today. Since, as seen above, the Supreme Court so readily defers to the executive and legislative branches, if the legislature does not pause to ask if a provision is constitutional, should the court review it once the legislature has passed it, it will most likely be deemed constitutional.
The Army Act
The 1950 act was a revision of the 1911 Indian Army Act. One of the goals of this revision was "to bridge the gap between the Army and civil laws as far as possible in the matter of punishments of offenses." The High Courts of the country have a limited right to interfere with the court-martial system. Court-martial proceedings do not have to satisfy Article 21 of the Constitution. In chapter five of the Army Act, the members of the services are granted privileges, including immunity from attachments and arrest for debt. The only civil acts committed by members of the army which are not triable by court-martial are murder or rape of a civilian, unless this was done while on active service. This means that soldiers operating under the AFSPA will, if tried at all, be tried by court-martial, leaving no civil law remedy for the victims. Section 6 of the AFSPA only further reinforces the army's immunity.
States of Emergency
The declaration that an area is disturbed essentially amounts to declaring a state of emergency but by-passes the Constitutional safeguards. The point that this bill invokes a state of emergency was raised immediately by Mr Mahanty (Dhenkanal) in the 1958 Lok Sabha debates. He said the Assembly could not proceed if Section 352(1) of the Constitution was not fulfilled. In response, Mr K C Pant, then Home Minister, attempted to argue that the powers granted under the AFSPA do not resemble a state of emergency. He said that in an emergency fundamental rights can be abrogated and that the AFSPA does not abrogate those rights. But under Section 4(a) the right to life is clearly violated. An officer shooting to kill, because he is of the opinion that it is necessary, does not conform, even prima facie, with the Article 21 Constitutional requirement that the right to life cannot be abridged except according to procedure established by law. The Home Minister said the AFSPA powers stem rather from Article 355 of the Constitution, which gives the Central Government authority to protect the States against external aggression.
Dr Krishnaswanmi (Chingleput) also made the argument that the AFSPA was outside the powers granted in the Constitution, since it was declaring a state of emergency without following the Constitutional provisions for such a declaration. He argued that this Bill would take away the State's power by bringing in the military. The Speaker responded that this did not take away the State's power, rather it granted the States more power because it allowed them to decide to "hand over thoroughly, entirely and completely to the Armed Forces". This argument is circular - the Speaker was saying that the States are given more power because they are now able to freely hand over their power. And because this was explained as granting power to the States, no Presidential proclamation was necessary (the proclamation is only made when the State powers are restricted). So the emergency provisions in the Constitution were cleverly by-passed.
In a state of emergency, fundamental rights may be suspended under Article 359, since the 1978 amendment to this article, rights under Articles 20 and 21 may not be suspended. As shown above, the AFSPA results in the suspension of Article 21 right to life, therefore AFSPA is more draconian than emergency rule. Emergency rule can only be declared for a specified period of time, and the President's proclamation of emergency must be reviewed by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review.
The UN Working Group on Arbitrary Detention noted in its report of 17 December 1993, that states of emergency tend to be a "fruitful source of arbitrary arrests." In its report of 21 December 1994, the Working Group concluded that preventive detention is "facilitated and aggravated by several factors such as ... exercise of the powers specific to states of emergency without a formal declaration, non-observance of the principle of proportionality between the gravity of the measures taken and the situation concerned, too vague a definition of offenses against State security, and the existence of special or emergency jurisdictions." This describes exactly the situation under the AFSPA. The AFSPA grants state of emergency powers without declaring an emergency as prescribed in the Constitution. The measures taken by the military outweigh the situation in the North East, notably the power to shoot to kill. The offences are not clearly defined, since all of the Section 4 offences are judged subjectively by the military personnel. And the AFSPA is a "special jurisdiction" provision.
B) INTERNATIONAL LAW
Under relevant international human rights and humanitarian law standards there is no justification for such an act as the AFSPA. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (the "UDHR"), the International Covenant on Civil and Political Rights (the "ICCPR"), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.
A UDHR argument would just be repetitive with ICCPR so SAHRDC has not done it but the UDHR articles which the AFSPA violates are the following: 1 - Free and Equal Dignity and rights, 2 - Non- discrimination, 3 - Life, liberty, security of person, 5 - no torture, 7 - equality before the law, 8 - effective remedy, 9 - no arbitrary arrest, 17 - property.
International Covenant on Civil and Political Rights ("ICCPR")
India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. The rights enunciated by the ICCPR are those which must be guaranteed during times of peace by the member states. In times of public emergency, the ICCPR foresees that some rights may have to be suspended. However, the ICCPR remains operative even under such circumstances since certain rights are non- derogable. The AFSPA violates both derogable and non-derogable rights.
This first article of the ICCPR states that all people have the right to self-determination. As discussed previously, the AFSPA is a tool in stifling the self-determination aspirations of the indigenous peoples of the North East.
Article 2 imposes an obligation on the states to ensure that all individuals enjoy the rights guaranteed by the Covenant. This includes an obligation to provide a remedy for those whose rights are violated. When India gave its second periodic report to the UN Human Rights Committee in March 1991, members of the Committee pointed out that the AFSPA violates this right because article 2 foresees more than just a legal system which provides such remedies, but requires that such a system work on the practical level.
Article 4 of the Covenant governs the suspension of some of the Covenant's rights. Derogation of the ICCPR has three conditions. Firstly, it is only "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed" that states may derogate from their obligations under the ICCPR. Also, such derogation must be "strictly required by the exigencies of the situation" and cannot be inconsistent with other international law obligations nor "involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." The AFSPA has been enacted without such an official proclamation of emergency and goes beyond the requirements of the situation. Moreover, the fact that the AFSPA targets the population of the North East shows that it does discriminate on the basis of social origin. Secondly, there can be no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18. As discussed below, the AFSPA violates three of these, article 6 guaranteeing the right to life, article 7 prohibiting torture and article 8 prohibiting forced labour. Thirdly, any state which derogates from the ICCPR obligations must inform the other states party to the Covenant. India has not met this obligation as regards the AFSPA.
The AFSPA comes within the purview of article 4 as understood by the Human Rights Committee. The members found that since it "enables the army to supplement ... [the] civil authorities [in] powers of arrest, powers of search" the AFSPA is the equivalent of emergency legislation. Moreover, a committee member stated that the AFSPA had actually created a "continuous state of emergency" since it has been in application since 1958.
The greatest outrage of the AFSPA under both Indian and international law is the violation of the right to life. This comes under Article 6 of the ICCPR, and it is a non-derogable right. This means no situation, or state of emergency, or internal disturbance, can justify the suspension of this right. Committee members insisted on this particular point in regards to the AFSPA. They found that the powers to kill under the Act are simply too broad. As pointed out by a member of the committee, the offences under Section 4(a) for which the soldier may shoot do not threaten the soldier. The Code of Conduct for Law Enforcement Officials only foresees the use of deadly force when the officer is threatened with force. Under Section 4(a) of the AFSPA, the officer can shoot when there is an unlawful assembly, not defined as threatening, or when the person has or is suspected of having a weapon. Since "weapon" is defined as anything "capable of being used as a weapon", a committee member pointed out that this could even include a stone, further bringing out the lack of proportionality between the offence and the use of force by the army.
The armed forces in the North East have systematically tortured the people they arrested under the AFSPA. Article 7 of the ICCPR prohibits torture and this also is a non-derogable right. Moreover, the prohibition against torture is a "norm of customary law". Under the UDHR, torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other person."
During Operation Bluebird, the Assam Rifles committed gross abuses of this right. The Operation was launched in the wake of an attack on an Assam Rifles outpost in Oinam, a village in Manipur. The attack is believed to have been carried out by the NSCN. The armed forces retaliated by perpetuating atrocities on the village people of Oinam. The Amnesty International report found that more than 300 villagers claimed they were beaten, "some torture victims were left for dead ... others were reportedly subjected to other forms of torture including inserting chili powder into sensitive parts of the body, being given electric shocks by means of a hand operated dynamo ... or being buried up to the neck in apparent mock executions." The headman of the village was also tortured and reported, "I was called out and repeatedly interrogated throughout the day ... I was beaten by the officers an jawans ... they also indiscriminately attack[ed] the villagers - ... chili powder dissolved in water [was] rubbed into the nostrils, eyes and soft parts of the body and [officers and jawans] took sadistic pleasure from the cries of pain by the victims."
Under similar circumstances in "Operation Rhino", Rajputana Rifles surrounded the village of Bodhakors on October 4, 1991. An extensive house to house searched was conducted during which women were sexually harassed and men were taken to interrogation camps. They were beaten up and kept without food or water. During this combing operation not a single insurgent was found. The People's Union for Civil Liberties (PUCL) noted, "It is very difficult to understand the logic such useless raids, mass torture and interrogations, unless the purpose is taken to be the creation of pure terror for some sinister and ulterior motives."
During Operation Bluebird, the military also forced the villagers of Oinam to work for them and provided them with no compensation. This violates article 8(3) of the ICCPR which prohibits forced labour. The Assam Rifles "rounded up villagers for forced labour for such tasks as porter service, building new army camps, washing clothes and carrying firewood."
Article 9 of the ICCPR guarantees liberty and security of person, and the AFSPA violates all five sub-parts of this right. Sub- part (1) guarantees that "Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his Liberty except on such ground and in accordance with such procedure as are established by law." All the residents of a disturbed area are subject to arbitrary arrest. The military can arrest them on mere suspicion and detain them for unspecified amounts of time before handing them over to the nearest magistrate. Sub-part (2) states "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." The AFSPA does not require the arresting army officer to inform the person of the reason for their arrest. This is a requirement under Indian criminal procedure, but the military are not trained in this procedure. Sub-part (3) requires that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other official authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time of release." The AFSPA requires less than this since it states that the person should be brought to the nearest police station "with the least possible delay". Moreover, requiring the person to be handed over to the police station does not assure that they will be brought promptly before a judge.
Article 26 of the ICCPR, like article 14 of the Indian Constitution guarantees equal protection for all persons before the law. The AFSPA violates this right because the inhabitants of the North East do not have equal protection before the law. They live under a virtual but undeclared state of emergency and are given no remedy for the injustices they suffer at the hands of the military. Inhabitants of the rest of India, with the exception of Punjab and Kashmir are not subject to this law.
In response the UN Human Rights Committee in 1991, the Attorney General from India did not address the specific points of these various ICCPR articles. He justified the AFSPA under Section 355 of the Indian Constitution which makes it the duty of the Union to protect each state from external aggression. He said the AFSPA was necessary given the context of the North East where there is "infiltration of aliens into the territories mingling with the local public, and encouraging them towards this [secession]." He stated that the ICCPR does not encourage secession and governments are not encouraged to promote it. He said the AFSPA is a "temporary measure", not addressing the concern of committee members that the AFSPA has proven to be a longterm provision as it has been in force for over thirty years.
International Customary Law
The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra-legal and summary executions all form part of international customary law because they were passed by UN General Assembly resolutions. They lend further strength to the conclusion that the AFSPA violates basic human rights standards.
The UN Code of Conduct for Law Enforcement Officials was adopted by the UN General Assembly in resolution 34/169 of 17 December 1979. This code applies to all security forces stationed in the North East since "law enforcement officials" are defined as all those who exercise police powers, and it can include military officers. The first article requires that, "Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal act, consistent with the high degree of responsibility required by their profession." A high degree of responsibility is sadly lacking in the troops stationed in the North East. As exemplified by the atrocities noted above, the BSF, CRPF and Assam Rifles are not concerned with the requirements of the law enforcement profession, rather they are operating on a "war footing".
The second article of the code requires that, "In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons." As demonstrated above, multiple provisions of the basic human rights standards in the ICCPR are violated under the AFSPA. The AFSPA encourages the military officers to violate human rights because it allows the armed forces to base arrests, searches and seizures on their subjective suspicion. The armed forces know their actions will not be reviewed and that they will not be held accountable for their actions. They have neither the training nor the incentive to comply with this article of the Code.
Under Article 3 of the Code, "Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." The Attorney General of India tried to convince the UN Human Rights Committee that the use of force under the AFSPA is strictly necessary and is "squarely within the requirements of Article 3 [of the Code]." However, this argument ignores the sub-sections of Article 3 which stipulate that "(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used." This provision aims at establishing proportionality between the use of force by an officer and the use of force by an offender. Under 4(a) of the AFSPA, the military personnel can use force against people who are not presenting any force. Under 4(c) they can use any amount of force necessary to arrest someone who is suspected of having committed, or being about to commit, an offence. Under 4(d), this same excessive use of force can be justified in entering and searching premises without a warrant.
Sub-section (c) of the code further clarifies that "in general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender." When armed forces fire upon an unlawful assembly under Section 4(a) they are violating this basic provision. Moreover, the fact that the armed forces have begun firing into crowds and lob mortar shells in the middle of a town in the North East proves they are not interested in "less extreme measures".
Under the Code, the armed forces have no grounds on which to justify their broad powers in the North East. Article 5 of the code reads, "No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment." (emphasis added) This sweeps aside all the arguments made in the Lok Sabha to justify the original passage of the AFSPA, as well as the Attorney General's arguments before the UN Committee. Even if the North East is a "disturbed area" there is no justification for the human rights abuses being carried out by the military in the region.
The Body of Principles on Detention or Imprisonment was passed by UN General Assembly resolution no. 43/173, on 9 December 1988. This body of principles applies to all persons under any form of detention. It further strengthens several of the points raised under both Indian and international law.
Principle 10 states that "Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of the charges against him." The armed forces are not obliged to provide this information under the AFSPA. Moreover, under principle 14, "A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive [information] promptly in a language which he understands". Since the armed forces stationed in the North East are foreign to the region they are unable to comply with this principle. Under principle 32 the right to habeas corpus must be absolutely guaranteed.
The Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions adopted by Economic and Social Council also offer guidance for the use of force. Principle 3 says, "Governments shall prohibit orders from superior officers or public authorities authorizing or inciting other person to carry out any such extra-legal, arbitrary or summary executions. All persons shall have the right and the duty to defy such orders. Training of law enforcement officials shall emphasize the above provisions." The armed forces operating in the North East should therefore not follow the excessive power to shoot to kill granted in the AFSPA.
International Humanitarian Law
The four Geneva Conventions of 1949 along with the two optional protocols, constitute the body of international humanitarian law. These provisions are suited to human rights protection in times of armed conflict. Under these conventions the International Committee of the Red Cross (ICRC) is given access to all international conflicts. In non-international armed conflicts, the ICRC can only offer its services.
The ICRC's mandate in the context of non-international armed struggle is based on Protocol II to the Geneva Conventions. However, India has not signed either protocol to the Geneva Conventions. Nevertheless, the ICRC can offer its services in such a conflict based on Article 3, paragraph 2, common to the four Geneva Conventions of 1949 ("an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict"). When the ICRC offers its services in such a situation, a state does not have to accept them, or consider it an interference in its internal affairs. However, "in situations of internal disturbance, the rules of international humanitarian law can only be invoked by analogy."
C) COMPARATIVE LAW STANDARDS
The British armed forces presence in Northern Ireland is an apt comparison to the Indian military presence in the North East. The British carry out arrests under the Northern Ireland (Emergency Provisions) Act or the Prevention of Terrorism (Temporary Provisions) Act. When detainees were held for seven days without charge the European Court of Human Rights found this to be in violation of the European Human Rights Covenant.
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5. CONCLUSIONS
The Supreme Court of India reached a low for its lack of enforcement of fundamental rights in the Jabalpur case of 1975. The country was in a state of emergency and the high courts had concluded that although the executive could restrict certain rights, people could still file habeas corpus claims. The Supreme Court rejected this conclusion and said the high court judges had substituted their suspicion of the executive for "frank and unreserved acception of the proclamation of emergency." Noted Legal luminary, H M Seervai notes that this shows the lack of judicial detachment. Indeed, it exemplifies a deference to the executive which leaves the people with no enforcement of their constitutional rights. Jabalpur has since been deemed an incorrect decision, but it remains an apt example of the judiciary's submission to the executive.
The Supreme Court has avoided a Constitutional review for over 9 years, the amount of time the principal case has been pending. The Court is not displaying any judicial activism on this Act. The Lok Sabha in the 1958 debate acknowledged that if the AFSPA were unconstitutional, it would be for the Supreme Court to determine. The deference of the Delhi High Court to the legislature in the Indrajit case also demonstrates a lack of judicial independence.
The Basic Principles on the Independence of the Judiciary was adopted by the seventh UN Congress on the Prevention of Crime and the Treatment of Offenders and was also adopted by the UN General Assembly. Principle 2 of this document says, "The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressure, threats or interferences, direct or indirect, from any quarter or for any reason." The Indian judicial system is not subject to direct interference. It seems to function independently, but under the surface it is possible to discern indirect pressure. For example, the practice of appointing retired judges to commissions may well influence judges while they are on the bench. There may not be direct pressure to render decisions favorable to the executive, but certainly a judge who has "towed the government line" is more likely to be appointed by that same government to a position of prominence upon retirement.
Moreover, there is an absence of creative legal thinking. When the Guwahati High Court was presented with international law argument in People's Union for Democratic Rights, the court ignored it. Justice Raghuvir said in a personal interview that the court could not use international law. If the government has signed an international convention like the ICCPR which requires the government to guarantee rights to its citizens, how can these be enforced if the judiciary does not turn to the text of the convention in its rendering of decisions? The courts are not turning to the spirit of the law which guarantees the fundamental right to life to all people and as a result violations of human rights go unchecked.
The UN Special Rapporteur on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, Mr Param Cumaraswamy, stated in the 51st Session of the Commission on Human Rights on 10 February 1995, at the United Nations in Geneva that," The power of judicial review is vital for the protection of the rule of law." He also quoted from Mr L M Singhvi's 1985 report that "the strength of legal institutions is a form of insurance for the rule of law and for the observance of human rights and fundamental freedoms and for preventing the denial and miscarriage of justice."
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6. RECOMMENDATIONS
The only way to guarantee that the human rights abuses perpetrated by the armed forces in the North East cease is to both repeal the AFSPA and remove the military from playing a civil role in the area. Indeed with 50% of the military forces in India acting in a domestic role, through internal security duties, there is a serious question as to whether the civil authority's role is being usurped. As long as the local police are not relied on they will not be able to assume their proper role in law enforcement. The continued presence of the military forces prevents the police force from carrying out its functions. This also perpetuates the justification for the AFSPA.
Among the recommendations made by the Working Group on Arbitrary Detention, from 1994 was the statement that "Governments which have been maintaining states of emergency in force for many years should lift them, limit their effects or review the custodial measures that affect many persons, and in particular should apply the principle of proportionality rigorously."
The National Human Rights Commission is now reviewing the AFSPA. Hopefully, the NHRC will find that the AFSPA is unconstitutional and will submit this finding to the Supreme Court to influence its review of the pending cases. However, the NHRC has a very limited role. In past cases, the Supreme Court has not welcomed such intervention by the NHRC. This was evident when the NHRC attempted to intervene in the hearing against the Terrorist and Disruptive Activities (Prevention) Act (TADA).
If the AFSPA is not repealed, it must at a bare minimum comply with international law and Indian law standards. This means the powers to shoot to kill under section 4(a) must be unequivocally revoked. Arrests must be made with warrants and no force should be allowed in the search and seizure procedures. Section 5 should clearly state that persons arrested under the Act are to be handed over to the police within twenty-four hours. Section 6 should be completely repealed so that individuals who suffer abuses at the hands of the security forces may prosecute their abusers.
Moreover, the definition of key phrases, especially "disturbed area" must be clarified. The declaration that an area is disturbed should not be left to the subjective opinion of the Central or State Government. It should have an objective standard which is judicially reviewable. Moreover, the declaration that an area is disturbed should be for a specified amount of time, no longer than six months. Such a declaration should not persist without legislative review.
Armed forces should not be allowed to arrest or carry out any procedure on suspicion alone. All their actions should have an objective basis so that they are judicially reviewable. This will also assist those who file suit against the security forces.
All personnel acting in a law enforcement capacity should be trained according to the UN Code of Conduct for law enforcement personnel. The instructions and training given to the armed forces should be available to the public. Complete transparency should be established so that a public accountability is rendered possible.
Having the armed forces comply with the Indian CrPC would also be a bare minimum. The CrPC itself does not fully comply with international human rights standards, so making the AFSPA comply on its face with the CrPC provisions for the use of minimal force, arrest, search and seizure would only be a rudimentary step in reducing the abuses committed under the AFSPA.
If the Indian Government truly believes that the only way to handle the governance of the North Eastern states is through force, then it must allow the ICRC to intervene. This can only have a calming influence. Acceptance of ICRC services would demonstrate that the fighting parties want to bring an end to the violence. The ICRC's involvement could help protect the residents of the North East who are currently trapped in the middle between insurgents and the military.
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PUCL, August 2004
[Published in PUCL Bulletin, September 2004]
Repeal Armed Forces Special Power act
-- By Pushkar Raj and Mahipal Singh, PUCL-Delhi, 13 August 2004
The ongoing agitation in Manipur for the repeal of AFSPA, started in the wake of alleged torture, arrest, rape and killing of Manorama Devi by personnel of the 17th Assam Rifles, is gaining more and more support of the people of Manipur, notwithstanding the partial withdrawal of the Act by the state government.
Manorama Devi’s killing once again exemplifies how the unrestricted powers granted by the Act to the armed forces are misused with impunity. The UPA government which claims that it is in favour of the repeal of the Act, also wants to bring in another Act in its place whenever AFSPA is withdrawn and it is very much doubtful that the said Act will not be as draconian as the present one. The history of MISA, TADA, POTA and AFSPA is enough to prove that all of them have been blatantly misused by governments to gag opposition and by police and armed forces to torture, arrest and kill innocent people and to deprive people of their civil liberties against the spirit of fundamental rights as enumerated in the Constitution of India and Human Rights as enumerated under the Universal Declaration of Human Rights, 1948 by the UN and the two Covenants that followed it and to which the country is a signatory.
Besides, that the central government does not seem to be in a hurry to withdraw AFSPA from the North Eastern states, or even the Assam Rifles from Manipur, is clear from the statements of Union Home Minister, Sh. Shivraj Patil who said that there is no unanimity in the state on the question of withdrawal of the AFSPA, since “many say that this law should be continued,” as reported by the press, and also as per the statement of Defence Minister Pranab Mukherjee on August 10, 2004 that there was no move to withdraw Assam Rifles from Manipur and that the Armed Forces (Special Powers) Act would continue to be in vogue in the troubled state. The intentions of the central government are also clear from the fact that first it wants to bring in another Act in its place for which it proposes to bring a bill before Parliament in its monsoon session.
It is absurd to say that ‘many people’ from Manipur ‘suggest that this law should be continued’ as it would virtually mean that the Vice-Chancellor of Manipur University along with the faculty members who sat on a dharna in Imphal on August 10, the students, women, nurses are all waging a movement not against the removal of Assam Rifles personnel and AFSPA from the state but for continuing them there so that tortures, arrests, rapes and killings of innocent people continue there. That the personnel of the armed forces posted there treat the Commissions of Enquiry and the rule of law with contempt is clear from the fact that Col. Jagmohan Singh, Commandant of 17th Assam Rifles and the four other witnesses from the same force, who were to appear before the Upendra Commission enquiring into the death of Manorama did not think it necessary to appear before it. The unlimited powers and immunity from being prosecuted granted to them under the AFSPA has made personnel of these forces arrogant to the extent of becoming a law unto themselves.
In the light of the popular demand of the repeal of AFSPA and for the restoration of the human rights and civil liberties of the people of all the North-Eastern states where this act is in force, including Manipur, People’s Union for Civil Liberties Delhi supports the peaceful movement of the people of Manipur and other North-Eastern states to secure their democratic rights and fundamental freedoms and demands that:-
The Central Government should give permission to the local police, as required under Section 7 of the AFSPA, to file a case against the alleged rapists and killers of Manorama Devi. Pending enquiry into the allegations by the enquiry commissions, Assam Rifles should be shifted from Manipur. The family of Manorama Devi should be adequately compensated.
Along with POTA, Armed Forces (Special Powers) Act should also be repealed immediately and cases instituted under them and allegations of misuse should be enquired into by review committees within a specified period and innocent people should be provided relief and compensation by the government and those found guilty of misuse should be punished.
The government should build an atmosphere of confidence and talk to all concerned parties for a political and peaceful solution of the problems facing the North-Eastern states with an open mind, without any preconditions, within the framework of the Constitution of India and all such groups should also reciprocate
An analysis of Armed Forces Special Powers Act, 1958
-- By The Asian Centre for Human Rights
[Also see, Repeal Armed Forces Special Power act -- By Pushkar Raj and Mahipal Singh, PUCL-Delhi, 13 August 2004. Click
The AFSPA: Lawless law enforcement according to the law?, ACHR, 5 January 2005. Click
Review of AFSPA: Too Little, Too Late, ACHR, 3 November 2004. Click ]
(AFSPA, much maligned law, is a piece that stands out because of its misuse and because of the provisions that give the security forces powers that go against the basic principles of rule of law. The Asian Centre for Human Rights has brought out a comprehensive reader on it. We bring excerpts from the Publication – Chief Editor)
Introduction
“An effective international strategy to counter terrorism should use human rights as its unifying framework. The suggestion that human rights violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends. International human rights and humanitarian law define the boundaries of permissible political and military conduct. A reckless approach towards human life and liberty undermines counter-terrorism measures”. - Mary Robinson, the United Nations High Commissioner for Human Rights in her report to the 58th session of the United Nations Commission on Human Rights.1
It took an unusual form of protest by some members of the Meira Paibis, women activists, who stripped in front of the Kangla Fort, then headquarter of the Assam Rifles on 15 July 2004, followed by an equally unprecedented civil disobedience movement in Manipur never seen in independent India to establish the Committee to Review (hereinafter referred to as “Review Committee”) the Armed Forces Special Powers Act (AFSPA), 1958 on 8 December 2004. The protests were against the alleged extrajudicial execution of Ms Thangjam Manorama Devi on the night of 11 July 2004 by the Assam Rifles personnel and the withdrawal of the AFSPA.
The AFSPA empowers the representative of the Central government, the governor to subsume the powers of the State government to declare “undefined” disturbed areas. It also empowers the non-commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without any verification, to conduct search and seizure without warrant and to shoot even to the causing of death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the Central government. While introducing the AFSPA on 18 August 1958, the government accepted it as an emergency measure and it was supposed to have remained in operation only for one year.
The demand of the populace affected by the AFSPA either to completely withdraw or substantively review the Act is matched by the demand for its retention by the armed forces and the hawks. A section of the Apunba Lup, a congregation of 32 civil society organisations of Manipur leading the civil disobedience movement, called for a “public curfew” on 27 December 2004, the day members of the Review Committee reached Imphal, to press its demand for complete repeal of the AFSPA. Other members of the Apunba Lup and the family members of Manorama Devi, however, submitted their representations to the Review Committee. Immediately after the visit of the Review Committee to Manipur, General Officer Commanding in Chief (Eastern Region), Lt General Arvind Sharma in his first press conference at Kolkata on 3 January 2005 stated that the provisions of the AFSPA is “absolutely essential” to tackle insurgency in the country. “I am afraid that without the AFSPA, the Army will not be able to function in insurgency situations... Without the Act, we will be a reactive” -stated Lt General Sharma.2
The mushrooming of the non-State actors and violations of the international humanitarian laws by these groups are realities of the North East India. “There is no doubt that States have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice”.3 However, that does not give the State the right to take away the right to life in an intentional and unlawful way or violate human rights guaranteed under the constitution and international law. The AFSPA has become the main symbol of repression because of its sheer misuse as demonstrated in the various case studies of last few years provided in this study. In addition, a few armed opposition groups were also initially created by State agencies as a part of the counter-insurgency operations and these groups, later on, became Frankenstein monsters.4
There is no doubt that the armed forces operate in difficult and trying circumstances in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, if the law enforcement personnel stoop to the same level as the non-State actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-State actors whom the government calls “terrorists”.
This representation, submitted to the Review Committee, provides an analysis of the illegality of the provisions of the AFSPA, the abuse of these provisions and therefore the need for its review and specific recommendations. It also contains documents on national, regional and international human rights standards to ensure that amended the provisions of the AFSPA are “in consonance with the obligations of the Government towards protection of Human Rights”. As Manipur has been the epicentre of the movement against the AFSPA, the case studies are cited mainly from Manipur. – Suhas Chakma, Director
Executive Summary
“... there (Assam and Manipur), they (certain misguided sections of the Nagas, in the words of Mr. Pant) are indulging in -arson, murder, loot, dacoity etc. So it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively wherever such problem arises hereafter, it has been considered necessary to introduce this Bill.” - then Home Minister G B Pant while introducing the Armed Forces Special Powers Bill on 18 August 1958.
“In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and difficulties in those areas, especially in those which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-divisions of Kohima and Mokokchung. In such a situation, I do not like that the officers should be invested with special powers. Recently, such an incident took place in the Headquarters of the North Cachar and Mikir Hills District. Instead of rounding (up) the hostile Nagas, some military personnel trespassed into the houses of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house breaking…… How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only severe the right of the people and harass innocent folk and deteriorate the situation.”- Mr. Laishram Achaw Singh, MP from Inner Manipur Parliamentary Constituency while objecting to the AFSP Bill.5
Modelled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the Armed Forces Special Powers Act of 1958 (AFSPA) was initially supposed to have remained in operation for one year to tackle the Naga problem. However, after 45 years of imposition of the AFSPA, the Naga problem is far from resolved. The government of India and Naga armed opposition groups - both Issac-Muivah and Kaplang factions of the National Socialist Council of Nagaland - have been engaged in a peace process since July 1997. The peace process stresses the axiom that political problems cannot be resolved by merely terming it as law and order problems - “arson, murder, loot, dacoity” - crimes which are more associated with mainland India’s Uttar Pradesh, Bihar and Madhya Pradesh.
There is no doubt that a large number of armed opposition groups operate in Manipur and elsewhere in the North East and that they have been responsible for gross human rights abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and contributes to a vicious cycle of violence. The unusual form of demonstrations by some members of the Meira Paibis who stripped themselves in front of the Kangla Fort on 15 July 2004 was an act of desperation to protest against the systematic denial of access to justice even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to life. The third preambular paragraph of the Universal Declaration of Human Rights - “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” - is prophetic about such situations.
A reckless approach towards human life and liberty in the last 45 years under the AFPSA has been counter-productive and caused alienation of the people in the North East. The review of the AFSPA is overdue for many reasons.
First, the AFSPA has manifestly failed to contain, let alone resolve, all insurgency problems in the North East. When the AFSPA was imposed on 8 September 1980, there were only four armed opposition groups in Manipur - the United National Liberation Front, People’s Revolutionary Party of Kangleipak, People’s Liberation Army, and National Socialist Council of Nagaland. However, today there are over two dozens armed opposition groups including the Kanglei Yaol Kanba Lup, People’s United Liberation Front, North East Minority Peoples Front, Islamic National Front, Islamic Revolutionary Front, United Islamic Liberation Army, Kuki National Army, Kuki National Front, Kuki Revolutionary Army, Zomi Revolutionary Army and the United Kuki Liberation Front, among others.
Second, there are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition The AFSPA: Lawless law enforcement according to the law? groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities (Prevention Act), 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.
Third, the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of criminal justice system in any civilized society. First, it provides special powers which tantamount to awarding heavier penalty to the suspects than convicted persons would get under normal court, a clear violation of the cardinal principle of criminal justice system - nullum crimen, nulla poena sine lege.6 Second, non-application of due process of law makes the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to the armed forces under Section 6 of the AFSPA which makes its mandatory to seek prior permission of the Central government to initiate any legal proceedings, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous.
Though, there is no need for retention of the AFSPA, the Review Committee appears to have already decided to retain the AFSPA with some amendments. It has called for representation on whether it should recommend to the government of India to “(i) amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (ii) replace the Act by a more humane legislation.” Both the proposals have the same end - the retention of the Act.
In order to uphold the supremacy of the judiciary and primacy of the rule of law, the Review Committee must ensure that the judgements of the Supreme Court of India and opinions of international bodies including the United Nations Human Rights Committee on the AFSPA are incorporated in the amended AFSPA. Leaving it to the armed forces to respect “Do’s and Don’ts” issued by the army authorities as naively espoused by the Supreme Court of India in its controversial judgment on the constitutional validity of the AFSPA and to the courts to decide “case by case basis” have proved to be inadequate, ineffective and counter productive because of continued violations of human rights.
Extrajudicial Executions for Maintenance of Public Order
Since Manipur has been declared as a “disturbed area” on 8 September 1980, according to Manipur Chief Minister Lbobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.35
In practice, there are hundreds of armed encounters each year. Not every armed encounter is questioned. However, when people, whether innocent civilians, suspects or members of armed oppositions groups are captured from their houses or villages and routinely killed in fake encounters, allegations of extrajudicial killings surface. Yet, there has been little or no documentary evidence to prove that the victims were indeed arrested as no arrest memo is issued, not to mention about evidence to prove subsequent extrajudicial executions.
However, the extrajudicial execution of Ms Thangjam Manorama Devi has both exceptional as well as routine aspects.
It is exceptional because unlike hundreds of other arrests, the Assam Rifles personnel issued an arrest warrant. Havildar (General Duty) Suresh Kumar (No. 173355) of the 17th Assam Rifles signed the arrest memo. Rifleman T Lotha (No. 173916) and Rifleman Ajit Singh (No. 173491) signed as witnesses. The arrest memo stated that Ms Manorama Devi was arrested as a suspected member of the Peoples Liberation Army and they recovered nothing from her and that she was healthy at the time of her arrest.36
The recovery of Manorama’s dead body from Ngariyan Mapao Maring village on the morning of 12 July 2004 with telltale signs of brutal torture all over her body is a routine matter.37
Prior to the inquiry into the death of Manorama Devi, Justice Upendra conducted over half a dozen similar inquiries. Justice Upendra Commission as required under normal law of the land summoned the concerned Assam Rifles personnel to depose as mere witness since they had signed the arrest warrant for Manorama. The fact that the Assam Rifles questioned the jurisdiction of the Upendra Commission of Inquiry on the ground that the State government had not taken prior permission from the Central government is nothing unusual either.
Impunity to the Armed Forces
Under Section 6 of the Armed Forces Special Powers Act, “No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.”101
This provision violates India’s treaty obligation under Article 2(3) of the ICCPR according to which:
“Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies.”
What is more worrying is the fact that Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code102 (Cr.P.C.) amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of the Cr P.C. has made section 6 of the AFSPA redundant. If the Central government were to give permission under section 197 of the Cr P.C., there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extra-judicial executions in her report to the 57th session of the United Nations Commission on Human Rights:
“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ....., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post-conflict peace-building efforts include effective measures to end the culture of impunity and protect the rule of law.”103
While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government’s fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.104
In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”.
There are adequate legal guarantees for preventing vexatious and frivolous actions. However, by making it mandatory to seek prior permission of the Central government to initiate any legal proceedings against the armed forces, the Executive has expressed its lack of faith in the judiciary of the country.
Abuses by the Armed Opposition Groups
1. Background on the Armed Opposition Groups in Manipur
Manipur literally meaning “A jeweled land” came under the British Rule as a Princely State after the defeat in the Anglo-Manipuri War of 1891. After independence of India in 1947, the Princely State of Manipur was merged in the Indian Union on 15 October 1949 and became a full-fledged State of India on the 21 January 1972.
Manipur was recognized as a state in 1972, nine years after Nagaland was created out of Assam in 1963. The Manipuri language was included in the Eight Schedule of the Constitution of India in 1992 after a prolong struggle.
Manipur is not only about the Meiteis who profess Vaisnavites Hinduism. It is also home to about 30 different tribes who profess Christianity. Some of the larger tribes include Nagas, Kukis, Paites, Thadous, Simtes, Vaipheis, Raltes, Gangtes and Hmars. Unlike the Meiteis, who occupy the Imphal Valley and constitute a little over 50% of the total population, the other tribes inhabit the surrounding hill districts.
The Meitei armed opposition groups were mainly based in Imphal valley although the Kuki Movement for Human Rights alleged that they have strengthened their bases in hilly areas.
The first armed opposition group, United National Liberation Front (UNLF), was formed on 24 November 1964 by Samarendra Singh demanding independence from India. Since then many armed opposition groups led by Meiteis were established with similar objectives. The People’s Revolutionary Party of Kangleipak (PREPAK) was formed in 1977. The People’s Liberation Army (PLA) was formed in 1978. The Kangleipak Communist Party (KCP) was formed in 1980. As an off-shoot of UNLF, Kanglei Yaol Kanba Lup (KYKL) was formed in 1990s. All the Meitei armed opposition groups reportedly function presently under the banner of Manipur People’s Liberation Front (MPLF).112
After a series of clashes between Meiteis and the Pangals, the Manipuri muslims, in May, 1993 which led to the killings of 97 persons, a number of new outfits such as People’s United Liberation Front (PULF), North East Minority Peoples Front (NEMPF), Islamic National Front, Islamic Revolutionary Front (IRF) and United Islamic Liberation Army (UILA) were formed.
Of the 40 Naga sub-tribes in the North East, there are over 20 Naga tribes in Manipur particularly in Ukhrul, Senapati, Chandel and Tamenglong districts. Both factions of the National Socialist Council of Nagaland, the Issac-Muivah and Kaplang factions are active in Manipur. The Naga armed opposition groups demand independence of Naga inhabited areas. In the negotiation between the government of India and the NSCN (I-M), the issue of “Greater Nagaland” consisting of the Naga inhabited areas in Assam, Arunachal Pradesh, Manipur and Nagaland has figured.
The Meiteis, the State government of Manipur and the Meitei armed opposition groups oppose the inclusion of the Naga inhabited areas into the so called Greater Nagaland. The extension of the cease-fire agreement between the National Socialist Council of Nagaland and the government of India into Manipur led to protest and the burning of the Manipur State assembly in June 2001. The State Government of Manipur however withdrew the ban on the NSCN on 30 November 2002.113
The conflicts between the Nagas and the Kukis since 1992 led to emergence of a number of Kuki armed opposition groups such as Kuki National Army (KNA), Kuki National Front (KNF), Kuki Revolutionary Army (KRA), Zomi Revolutionary Army (ZRA) and the United Kuki Liberation Front. Most of these Kuki outfits are demanding a “separate homeland” within the Indian union.
Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.114
2. Executions by the Armed Opposition Groups
The armed opposition groups have been responsible for torture, extrajudicial executions, hostage taking, extortions and blatant violations of the provisions of International Humanitarian Laws. The victims include innocent civilians, alleged police informers and corrupt officials or simply inability to pay extortion money.
The people of Manipur are caught in a vicious cycle. The nexus between the political leaders and armed opposition groups is a public knowledge in Manipur. The extortion, euphemistically called as taxes by the armed opposition groups, is also public knowledge and often collected under the noses of the administration. Across the highways both the security forces and armed opposition groups extort from innocent people as well as businessmen.
The armed opposition groups reportedly collect taxes from sources - meaning a government official from a particular department has to collect the extortion money, euphemistically called “taxes” on behalf of the armed opposition groups who then distribute it among themselves. All government officials including the senior most officials allegedly pay taxes. In a rare incident, in June 2004, the State government accorded sanction for prosecution of two employees of the All India Radio, Imphal who are accused of collecting illegal “taxes” from fellow employees on behalf of three separate underground organisations under the Unlawful Activities (Prevention) Act. The two men, Meisnam Achou Singh, 56, of Keisampat Mutum Leirak, a programme executive, and Hijam Homendro Singh, 57, of Kongpal Khaidem Leikai, an accountant, allegedly collected a total of Rs. 3,34,310 from 122 fellow employees at the rate of 1% of basic pay, and paid the same to activists of the underground UNLF, PREPAK and KYKL during the year 2000.115
The situation of the Kukis exemplies the plight of the civilians. According to the Kuki Movement for Human Rights armed opposition groups forcibly stay in their villages, mix themselves with the civil population, use the civilians as human shields against the security forces. The villagers are used for sentry day and night on rotation as well as for cooking and carrying supplies needed by them. All paths are mined (land mine) thereby making free movement difficult both human being and domestic animals. The people also have to give food. When the security forces find the members of the armed opposition groups, the villagers are subjected to atrocities for informing the security forces. If the security forces come to know about the presence of the armed opposition groups, the villagers are once again blamed for proving shelter and support.116
Excerpts from the Supreme Court Judgement on Armed Forces Special Powers Act
SUPREME COURT OF INDIA on Armed Forces (Special Powers) Act, 1958 Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84
Naga People’s Movement of Human Rights, etc. - Petitioner vs. Union of India - Respondent
Before J.S. Verma, CJI and other four Judges 27 November, 1997
Operative Part of the Judgement (Relevant extracts) 74. In the light of the above discussion we arrive at the following conclusions:
(1) Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in List I by the Forty Second Amendment of the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It is not a law in respect of maintenance of public order falling under Entry I and List II.
(2) The expression ‘in aid of the civil power” in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State.
(3) The word ‘aid” postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function.
(4) The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power of a State does not include within its ambit the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State. The armed forces of the Union would operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of armed forces is effectively dealt with and normalcy is restored.
(5) The Central Act does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.
(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.
(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a ‘disturbed area”. For declaring an area as a ‘disturbed area” under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.
(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.
(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.
(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution.
(12) The provision contained in Sections 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Central Act.
(13) The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution.
(14) While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.
(17) The provisions of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.
(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.
(19) While exercising the power conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of ‘Do’s and Don’ts” issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.
(20) The instructions contained in the list of ‘Do’s and Don’ts” shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated July 4, 1991 in Civil Appeal No. 2551 of 1991.
(21) A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act.
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