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Defining act

Published : Oct 08, 2010 00:00 IST

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Manipur: The High Court lets the State government act on the inquiry report on the alleged rape and killing of Thangjam Manorama.

PROTESTS against the Armed Forces (Special Powers) Act, 1958, or AFSPA, have been gaining momentum in Manipur for a decade. Now, even as the debate over the dilution of the Act rages on in the country in the backdrop of the latest violence in Jammu and Kashmir, a judgment and order passed by the Gauhati High Court has put the spotlight on the anti-AFSPA movement in Manipur.

The August 31 judgment allows the Manipur government to act on the report of the Upendra Commission, the one-man judicial panel constituted to look into the alleged rape and killing of 32-year-old Thangjam Manorama while in custody of the Assam Rifles on the night of July 10-11, 2004. A judgment passed earlier by Justice D. Biswas, who constituted a single Bench of the court, had restrained the State government from dealing with the commission's report, which was kept in a sealed cover.

The State government appointed C. Upendra Singh, retired District and Sessions Judge, on July 12, 2004, under the Commissions of Inquiry Act, 1952, to investigate the facts and circumstances that led to the death of Manorama, to identify the responsibilities of the person/persons responsible for her death, and to recommend measures for preventing the recurrence of such incidents. After her bullet-ridden body was recovered, the Assam Rifles issued a statement saying that Manorama, alias Henthoi, a self-styled corporal of the insurgent outfit People's Liberation Army (PLA), had been gunned down while making a bid to escape by jumping off the vehicle that the force used. It further said that during interrogation she disclosed that she possessed an AK-47 rifle and was willing to take Assam Rifles personnel with her to recover it.

Anger over the alleged rape and killing of Manorama soon spilled over to the streets. A series of protests, demanding punishment to the guilty and the withdrawal of the AFSPA, engulfed the State. On July 15, 2004, a dozen Manipuri women walked naked to the historic Kangla Fort (which then housed the headquarters of the Assam Rifles) in protest, holding up banners with the slogans, Indian Army, rape us overtly and Rape us the way you did Manorama.

Indefinite curfews, firing of tear gas shells and rubber bullets, or crackdowns against agitation leaders under the National Security Act failed to curb the movement, spearheaded by Apunba Lup, an umbrella body of 32 organisations. The Okram Ibobi Singh government finally withdrew the disturbed area status of a 20-square-kilometre area falling in seven Assembly segments in Imphal municipal limits in order to render the AFSPA ineffective there. However, this failed to assuage public anger as the people refused to accept nothing short of the withdrawal of the AFSPA from the entire State.

The AFSPA has been in operation in Manipur since September 8, 1980, and is applicable to all the north-eastern States. It allows any commissioned or non-commissioned officer or any other person of equivalent rank from the armed forces to enter and search any premises without a warrant, arrest without a warrant and even fire upon or otherwise use force, even to the extent of causing death, against any person acting in contravention of any law in the notified disturbed area.

The Upendra Commission submitted its report to the Manipur government on November 22, 2004. Meanwhile, acting on a petition filed by the Assam Rifles, Justice Biswas held in his order of June 23, 2005, that the appointment of the commission by the State government was beyond its competence. The court ruled that the State of Manipur was not the appropriate government having administrative control over the armed forces deployed in the State and entitled to protection under Section 6 of the AFSPA. Section 6 says that without the sanction of the Centre, no legal proceedings can be instituted against the security forces.

However, the court directed the Manipur government to hand over the report of the inquiry commission to the Union government for scrutiny thereof and appropriate action against the 17 Assam Rifles personnel concerned, if so indicated therein. An interim order by the court had allowed the commission to complete its probe and submit its report but with a rider that the State government would not open the report without prior permission from the court.

On August 31, 2010, a Division Bench of the High Court comprising Justices Amitava Roy and B.D. Agarwal, which heard the case, stated in its order:

The impugned judgment and order is thus interfered with. The impugned notification dated 12.07.2004 is hereby adjudged legal and valid. The State of Manipur is left at liberty, if so advised, to deal with the report submitted by the Commission strictly in adherence with the provisions of the Act, 1952, and other relevant provisions of law pertaining thereto.

Writ petitions

The Division Bench's judgment came in the wake of appeals filed separately by the Assam Rifles, the Manipur government and the family members of Manorama against Justice Biswas' judgment. The appeal on behalf of the family members of Manorama was filed with the help of the Human Rights Law Network (Manipur).

The Assam Rifles, in its petition, questioned the authority of the State of Manipur to appoint a commission under the Commissions of Inquiry Act, 1952, to inquire into the alleged killing of Manorama. It sought to invoke the proceedings of the Upendra Commission inter alia on the grounds that the State was not the appropriate authority to constitute the same in view of Section 2 (a) (i) of the Act. It also challenged the proceedings of the commission on the grounds that under Section 6, no legal proceedings could be initiated against it without the sanction of the Central government.

The Assam Rifles also referred to an Army court of inquiry constituted on July 12, 2004, to look into the Manorama incident and complained that in spite of necessary summons neither the family members of the deceased nor any other civil witness had responded thereto. It also stated that the Army court of inquiry was awaiting the forensic report.

The Manipur government said that the commission had been validly constituted under the Act of 1952, and the same by no means could be seen as an encroachment on the power of the Union government. It asserted that no prior sanction from the Central government was essential as the commission's inquiry was not a legal proceeding within the meaning of Section 6 of the AFSPA.

The State government also maintained that it decided to have the facts and circumstances leading to the death of Manorama inquired into by the commission in the wake of large-scale protests and demonstrations which threatened to snowball into a serious crisis if prompt and appropriate action was not taken, and in response to its commitment to protect the rights and liberties of citizens. It explained that it did not seek to inquire into the powers and functions of the Assam Rifles. The State government dismissed the Assam Rifles' plea that the uproar over the incident was at the behest of extremist elements and apprised the court about the steps taken by it to provide adequate security to the Assam Rifles personnel who were required to appear before the commission.

Senior advocate Colin Gonsalves, assisted by advocate Meihoubam Rakesh, pleading on behalf of Manorama's family, insisted that as the alleged acts of rape and murder by Assam Rifles personnel were wholly unrelated to the deployment of any armed force of the Union, or the powers, jurisdiction, privilege and liabilities of the members thereof, but instead were gory instances of individual excesses, the challenge to the jurisdiction of the State of Manipur to constitute the commission to inquire into the incident was misconceived.

The judgment said: While asserting that the proceedings of the commission unerringly establish that Manorama Devi had been raped and shot at from a close range by some personnel of the Assam Rifles, acting with prior concert, Mr Gonsalves urged that the offending acts were palpably illegal and inhuman besides being in defilement of basic human dignity and rights. He contended that in the operation claimed to have been undertaken by the Assam Rifles, they had as well consciously flouted the imperatives to be observed as laid down in [a] plethora of decisions by the Apex Court and this court to ensure fairness in process in recognition to the basic human rights. To reinforce his arguments Mr Gonsalves placed reliance on the decision of the Apex Court in 1998 SCC 109 ( Naga People's Movement for Human Rights vs Union of India) and of Gauhati High Court in AIR Gau 81 ( Border Security Force vs State of Meghalaya and ors).

Assistant Solicitor General R. Sarma, who appeared on behalf of the Central government, opposed the State government's plea citing public order as a justification for the constitution of the commission. He said the notification declaring Manipur a disturbed area since 1980 belied the State's claim. He pointed out that the State government's omission to request the Central government to appoint a commission to inquire into the incident or to obtain sanction for the prosecution of the Assam Rifles personnel concerned demonstrated a lack of application on its part.

Referring to the affidavit-in-opposition filed by the Union of India, Sarma argued that in addition to the fact that no cooperation was extended to further the court of inquiry on the incident, a parallel process was initiated though the State was bereft of any power to do so.

The judgment reveals that the police investigation into the Manorama incident is not complete even after six years as the progress of the investigation, as disclosed in police reports, was stalled because of the non-cooperation of the Assam Rifles personnel.

Jeevan Reddy committee

Yielding to the uproar in Manipur over the Manorama incident, the Centre constituted a committee on November 19, 2004, to review the provisions of the AFSPA. The five-member committee, chaired by Justice B.P. Jeevan Reddy, retired judge of the Supreme Court, recommended in its report submitted to the Union government that the Act should be repealed.

It stated that the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. It is highly desirable and advisable to repeal this Act altogether without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that, an appropriate legal mechanism has to be devised.

The committee also recommended the insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1987, and expressed the view that a major consequence of the proposed course would be to erase the sense of alienation among the people of the north-eastern States and the feeling among them that they had been subjected to a draconian law.

The Central government has been sitting on the Jeevan Reddy Committee's report since it was submitted on June 6, 2005, as the Army is strongly opposed to the repeal of the Act. For the past 10 years the government has also remained indifferent to the indefinite fast by Irom Sharmila demanding the repeal of the AFSPA.

On September 11, the Indian Institute of Planning and Management conferred the Rabindranath Tagore Peace Award-2010 on Irom Sharmila, who has become a global icon of the movement for the protection of human rights and who, under judicial detention, continues to be nose-fed forcibly at the Jawaharlal Nehru Hospital in Imphal for refusing to end her fast unto death until the Act is withdrawn from the whole of Manipur. The award carries Rs.51 lakh in cash, a gold medal, a citation and a shawl.

The High Court judgment has raised questions regarding the Commissions of Inquiry Act as much as on the AFPSA. All eyes are now on the Manipur government to see how it will deal with the Upendra Commission report. After all, not just Manorama's family but all the people of the State, who have been waiting patiently for justice for more than six years, hope it will be another weapon to mount pressure on New Delhi to repeal the AFSPA.

(This story was published in the print edition of Frontline magazine dated Oct 08, 2010.)

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