Impunity in simple terms is "exemption from punishment or freedom from the injurious consequences of an action". Talking in terms of Indian Government and Armed Forces, impunity takes a totally different complexion, where State is systemically using immune Armed forces to suppress people's movements.
Since 1947, not even a single year has passed when Indian Government was not involved in, either an overt or covert armed conflict, with its very own people. Many such wars are being fought since independence and shortly after, for their right to self-determination in the north-eastern states, in the state of Jammu & Kashmir, and other armed conflict areas.
Countless cases of rights violations perpetrated by the armed forces who subsequently enjoy immunity from prosecution, are heard from these areas. One such prominent example is of Ms. Thangjam Chanu Manorama Devi of Manipur.
In the intervening night of 10th-11th July, 2004 Ms. Thangjam Chanu Manorama Devi was arrested by armed soldiers of Assam Rifles for interrogation and in the morning her dead body was found in mutilated condition. She was sexually assaulted, tortured in custody, and ultimately killed. It is not difficult to assume that such a heinous crime and act of inhumanity must have been taken cognizance of and the law of the land would have taken due course to punish the guilty. However, the reality is entirely different when we are dealing with the Armed Forces of the Indian Government. After 10 years of the incident, no prosecution has started. The contents of commission of inquiry report ordered by the state government were not made public as Army had gone in appeal against the State of Manipur questioning its powers to order such an enquiry.
Armed forces, paramilitary forces, and to a large extent state police forces in India enjoy a great deal of impunity or exemption from prosecution of acts done in furtherance of their official duty. While the logic behind such impunity seems to be legitimate, considering the kind of functions these forces perform. However, let us just pause and think what happens when this impunity is used to perpetrate violence with political motives to crush a rights or demands based struggle and to paralyse a people's movement. The nature of violence and the nature of impunity undergoes a drastic change in itself. The violence is not only an abrogation of fundamental civil and human rights, the torture is not only a means to force admission of the innocent for some crime he may have never done; but the violence, the torture becomes an instrument to oppress a legitimate demand, crush a valid struggle, and subjugate people. In the name of protecting the sovereignty, security, and integrity of the nation, a powerful and impermeable shield is provided to the Armed Forces of the Union (AFUs) which makes the concepts of rule of law, natural justice, and due process inoperative. That shield we find in the form of various legislations, executive actions (rather lack thereof), and even in judicial pronouncements.
Traditionally, the Armed Forces Special Powers Act (AFSPA) has been the impugned act and has been at the heart of opposition of people's movements in areas of armed conflict. Section 6 of the AFSPA provides immunity to Armed forces for their acts done in disturbed areas by requiring a compulsory sanction from the Central Government before instituting any legal proceeding. It is noteworthy that, Justice J.S. Verma Committee (2013) while looking into legal reforms related to violence against women observed that ‘impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the AFSPA’ and ‘women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country’. The Committee therefore recommended to review AFSPA and also suggested to 'take special care for the safety of complainants and witnesses in cases of sexual assault by armed personnel'. However the Central government discarded the important recommendations given by Justice Verma Committee related to the AFSPA.
If we trace the source of impunity we may find and interestingly so, that legal impunity by way of AFSPA is only one form of immunity enjoyed by the armed forces. Sections 70, 125 and 126, of the Army Act, and corresponding section of BSF Act, CRPF Act etc, also provide legal immunity to armed forces.
To add to the legislative shield, State action or inaction at most places has been instrumental in perpetuating the impunity of the armed forces. Central Government rarely agrees to sanction the demand of prosecuting Army officials in criminal courts. For example, out of 44 applications for grant of sanction for prosecution of members of the Indian Army, posted in Jammu and Kashmir during 1989-2011, 33 were rejected and 11 are still pending for determination. In Manipur, the Supreme Court in the year 2013 appointed a Special Investigation Tribunal (SIT) to investigate six cases of encounter deaths in the state. It has revealed that in the last 66 years, only three cases of complaints against Central Security Forces (CSF) were investigated. Even in those three cases, the details of action is not known. Such history of legal immunity against security forces has bred a culture of impunity which has percolated down to the state police forces.
In many parts of Central India where AFSPA is not promulgated, Central Security Forces(CSF) are carrying out operations against people's struggles for land, livelihood and resources. Security forces are perpetrating heinous crimes such as murder, rape, torture, forceful dislocation of villages, etc. against its own people in these areas in the name of ‘counter-insurgency’. After the Manorama Devi incident in 2004, AFSPA was de-notified in the Imphal Municipality area. However, Manipur Police Commando once carried out a broad daylight shooting at Kwairamband Bazar in the heart of Imphal on July 23, 2009. One Sanjit and another pregnant woman, Rabina was killed in this cold-blooded police action. The state government refused to take prompt action against errant police officers. Thus, we see that executive action/inaction perpetuates the impunity to the armed forces as well.
The role of judiciary in piercing the impunity shield is pathetic at best. There is an inexhaustible list of examples. In the case of disappearance of Y. Sanamacha Singh, a grade VIII student, by the Assam Rifles in 1998, the then Manipur government constituted an enquiry commission under the Commissions of Inquiry Act, 1952 to find out the truth about his disappearance. Subsequently, the Assam Rifles filed a petition in the Gauhati High Court, Imphal Bench seeking to quash the enquiry proceedings. Counsel for Assam Rifles Mr. N. Ibotombi Singh, argued that "the armed forces of the Union are performing extremely difficult functions in the disturbed areas and if they are subjected to harassment and humiliation at the hands of the State authority, the morale and confidence of the armed forces will get shattered. In the interest of the Nation and in the interest of the discipline and morale of the armed forces of the Union, it would be highly improper and inappropriate if the State Govt. is allowed to inquire into their functioning or the manner in which they are discharging their duties." Justice P.K. Sarkar appreciated the argument of the counsel and held that such enquiry commissions should not lead to the harassment and humiliation, or become a ground for lowering the morale and confidence of armed forces.
Such observations were also made in the case of Masooda Parveen vs Union of India (2007); Masooda Parveen, wife of Ghulam Mohi-uh-din Regoo who died in army custody, filed a petition seeking monetary compensation in the Supreme Court of India. The Supreme Court rejected the plea, agreed with the argument advanced by the Army’s Human Rights Cell that ‘any compensation awarded to his family would lower the morale of the security forces engaged in fighting militancy’.
Any reference to ‘morale and confidence’ of the armed forces is viewed from the nationalism angle, which is deeply engrossed in the minds of state agents and citizens alike. The notion is so misconceived that any barbaric act e.g., fake encounters, rapes and sexual torture, physical torture, forced disappearance, etc. are seen as collateral damage of army operations in maintaining 'national security and peace'.
The recent Pathribal judgement is quintessentially, an expression of exemption and licentiousness armed forces are allowed, even without the impugned AFSPA, Army Act, etc. In the case, in March 2000, unidentified gunmen massacred 36 Sikhs at Chittisinghpora in Anantnag district. Few days later, five persons from three villages in Pathribal were abducted and then killed in an alleged encounter. The FIR filed by the Army maintained that they had killed five “foreign militants” who had massacred the Sikhs. Later, protests were staged against the fake encounter where CRPF and SOG opened fire, killing eight people. The Chief Judicial Magistrate ordered an enquiry which concluded that the people killed were local civilians and were not “foreign militants”. Thereafter, case was transferred to CBI in 2003, which filed the report implicating guilty officers of 7 Rashtriya Rifles. Army moved to apex court to obtain stay and contended that district court has no jurisdiction to try military officials. Supreme Court upheld the supremacy of the choice of Army to conduct its own court-martial and not to let criminal justice courts interfere.
The judgement raised the Armed forces to a level of unquestionable authority by imputing presumption of good faith in their acts; and violated the basic principle of natural justice i.e., one cannot be a judge of his own cause, by upholding the right of army to prosecute its officials.
On one hand, the Government of India refuses to recognise these areas as armed conflict areas as defined by international humanitarian law (thereby denying the rights that civilians are entitled to in these areas). And on the other hand, it continues to deploy its forces with unimpeachable legal immunity to suppress people's struggles. Hence, people are at the losing end in all ways - denial of internationally acknowledged rights, gross violation of basic human rights, and continuous denial of justice.
Central to all these issues is the legal immunity that is provided to armed forces in these areas of armed conflict which aggravates the problem, to which there should be peaceful political resolution.
Dated: 7 July 2014