Dialogue October-December, 2009 , Volume 11 No. 2
The Armed Forces Special Powers Act.
E.N. Rammohan*
On the 11th of July 2004, the personnel of the Assam Rifles picked up a young woman from her house in Thoubal district at about 2300 hours. Her house was searched but nothing was found. The Assam Rifles personnel then arrested her and left after leaving an arrest memo stating that they had not found anything incriminating. The next morning her body was found on a nearby hillock with several bullet injuries around her waist and abdomen. The local people who found her body naturally thought that she had been raped. This was followed by the extraordinary spectacle of a group of middle aged and elderly women leading a march to the gate of the Assam Rifles and disrobing themselves demanding that they should be raped. The valley then exploded in a violent agitation that lasted more than a month. Regrettably the reaction from the centre was most unsympathetic. The statements made by some senior officials were particularly insensitive. One stated that the lady, Thangjom Manorama was a PLA cadre and she was an explosives expert and several security personnel had been hurt and killed by her explosive devices. This seemed to imply that her killing was justified.
Section 5 of the AFSPA states that when a person is arrested, he/she must be handed over to the nearest police station with the least possible delay. It need not be added that when a person dies in custody, the body must be produced to the police who will then arrange to have the inquest done by a magistrate. The crucial question here was why did not the Assam Rifles personnel hand over the body of Thangjom Manorama to the police? This omission leads an independent observer to the conclusion that there was some foul play.
The most insensitive reaction to the incident and the subsequent agitation were the comments from several central sources that the demonstration by the middle aged and elderly women was organised by a particular insurgent group and all the ladies were from a village dominated by that group. This was an insult to the Meira Paibis (torch bearers) an ancient organisation of the Meithei women. The agitation was not a flash in the pan. It was the result of a series of incidents in which persons were picked up and eliminated by the security forces. The killing of Thangjom Manorama was like a long burning fuse that finally detonated.
As expected, the Central Government referred the issue to a committee to discuss the issue with the people of Manipur and probably other states of the Northeast and recommend actions to the government to make the Act more human.
What is the AFSPA and what were the reasons why this act was legislated in Nagaland, Mizoram, Manipur, Assam and Tripura and later in Punjab and Kashmir? The act was legislated to help the armed forces of the Union that includes the Army, Navy, Air Force and all Paramilitary Forces of the Union operating in insurgency prone areas. Under the Criminal Procedure Code, it is only the police who can arrest a person suspected of committing a cognizable offence and search a house in which stolen property is suspected to be kept without a warrant. Insurgents operate in the hinterland where there are no police stations. When the armed forces operate in the interior areas, it is not possible to take policemen along with them always. This is why the clause in the act that the persons arrested by the armed forces should be produced in the nearest police station with the least possible delay. In all the insurgencies in India in the Northeast, Punjab and Kashmir, regrettably the police was sidelined from the beginning of the insurgency and the Army and the Paramilitary forces deployed never learned to trust the local police. The solid exception was in the Punjab when K.P.S. Gill was the Director General of Police and kept the police in the forefront of the counterinsurgency operations. The crux of the problem lies in the distrust of the local police by the Armed Forces. It is this that leads to excesses.
The second factor is what has been laid down in a famous pamphlet on guerilla warfare written by Carlos Marighella of an obscure guerilla group that operated in Uruguay called the Tupamaros. This pamphlet was called Mini Manual of the Urban Guerilla. The pamphlet details how the urban guerilla should operate. It suggested that in a crowded urban environment, a lone guerilla has to lob a grenade at a foot or vehicle patrol from a by lane and run away. The grenade would cause casualties and grievous injuries to the personnel of the foot or vehicle patrol. The immediate reaction of the remaining security personnel would be to open fire in the direction from which the grenade was probably thrown. Innocent civilians would be in the line of fire and some would die and many would be injured as a result of the firing. The lone guerilla that had thrown the grenade from the safety of a bylane would long since have fled the scene and would be in a safe house. The civilians and the press would naturally blame the armed forces patrol for killing and injuring innocent civilians. The guerilla group would reap the harvest of their operation when the funeral of the innocent civilians killed took place. Young relatives of the injured and dead would sign up to join the insurgent group to avenge the atrocities of the armed forces. I have seen this happen repeatedly in Kashmir when I operated as the Inspector General Border Security Force there in 1993-95. The answer lies in good fire control and leadership. Regrettably there is a school among Armed forces who believe that reacting to such a situation and killing and injuring innocent civilians is the correct action in such a situation! Their logic is that the civilians should learn to respect the Armed forces and force the insurgents not to throw grenades or fire at them.
Nine out of ten times, the Armed Forces patrols or convoys get ambushed because of their own carelessness. Why should they take out their anger on innocent people because of their carelessness or lack of alertness resulting in their getting ambushed? The following are recorded instances of such incidents in Manipur.
Heirangoithing massacre. A volleyball match was being played between the BSF and the Manipur Rifles at Heirangoithing on the outskirts of Imphal on 14 March 1984. There were about 3000 spectators. A detachment of CRPF was on security duty for the match. They should have frisked the spectators and cordoned them before the match started. After that they should have remained with rifles in ready position looking outwards during the match. Obviously they took it easy and were watching the match. Some insurgents taking advantage of the carelessness of the security detachment mingled with the crowd, fired on the CRPF boys, killed one, injured five and snatched 3 SLRs and retreated. Seeing the injured and the dead, the remaining CRPF personnel fired on the crowd indiscriminately in anger and panic, killing 13 and injuring 36 civilians. The commission of inquiry held that the CRPF had fired in rage and frustration after the militants had retreated.
CRPF firing at RMC Hospital. On 2 January 1995, 2 sections of CRPF were guarding some of their colleagues admitted in the hospital. At 0700 hours some militants fired on a CRPF constable Yousef who was washing himself in the toilet injuring him grievously. The militants had struck when the CRPF guard was down. In the morning hours one sentry should have stood behind the sandbagged sentry post with his rifle in ready position. Well after the militants had retreated, the CRPF opened fire in sheer rage killing a medical student from Arunachal and 9 others. This was the conclusion of the inquiry commission.
The Tonsen Lamkhai massacre. On 3 October 1999 an insurgent group ambushed a CRPF convoy at Tomsen Lamkhai in Thoubal district killing 7 personnel. The force returned the fire and killed one militant. Minutes after the ambush, the CRPF stopped a bus carrying polling personnel, forced some of the polling staff to get down, lined up 7 of them and shot them. They later claimed that they were killed in the crossfire.
The Malom killings. On 2 November 2000, an Assam Rifles party was returning from Nambol, when a bomb buried in the berm was detonated as their vehicle crossed injuring some personnel. The site of the explosion was opposite the Imphal airport. A party of the Assam Rifles inside the airport rushed out on hearing the explosion. They saw a party of 10 civilians who were waiting for a bus in the bus-shelter nearby. They lined them up and shot them. The group included a woman and her two nephews. They claimed later that they were killed in the cross firing. There was only the bomb explosion. There was no firing by insurgents on the Assam Rifles vehicle. A young woman Irom Sharmila from Malom has been on a fast since then to have the AFSP Act repealed. She has been force fed for the last eight years.
In each of these cases, no one has been punished for the brutal excesses. The officer who was in charge of each of these detachments should have been punished for not controlling his men. In each of these cases the firing was done in rage and frustration at failure and lack of alertness of the detachment. The regrettable part is that there is a school in the Armed Forces who feel that such actions are justified! They explain that this kind of reaction will teach a lesson to the insurgents not to trifle with the Armed Forces. I was told this several times when I operated in the Northeast and in Kashmir. Each time I retorted that this kind of behaviour had exactly the reverse effect. They would hate the force that did this and would continue to hit that force again and again. And the members of the public would cooperate with the militants in taking revenge on a force that behaved in this indisciplined manner.
In this connection I give the example of an illustrious Army Officer-Lt. Gen. V.K. Nayyar. As Maj. General commanding the 8 Mountain Division in Nagaland, Manipur in 1979, he had deployed his troops in Manipur when the PLA, and PREPAK, two revolutionary insurgent groups were operating in the Imphal valley and in the hills of Manipur. Gen. Nayyar had passed strict instructions that any insurgent arrested by his troops should be brought to Kangla Fort in the heart of Imphal where he had his Tac. HQs. He had located a unit of the local Police Station there. On arrival the police unit located there had to inform the wife or the parents of the arrested insurgent. They were allowed to come and meet the arrested insurgent. If a weapon was recovered from him, this was shown to his relations and he was handed over in Police custody. If there was no evidence of his involvement, he was handed over to his relations by the Police.
Gen. Nayyar was held in the highest esteem by the people of Manipur. It was during his tenure that Bisheshar, the chief of the PLA was captured and the PLA and PREPAK were controlled. There were no complaints of the Army killing captured insurgents or shooting at random and killing civilians. Later, Gen. Nayyar was posted as the Governor of Manipur. The people of the Valley and the Hills held him in high regard. Gen. Nayyar resigned as Governor, well before his term because of political interference in his functioning.
In January 2000, as Director General of the Border Security Force, I was asked to deploy BSF in Manipur to retake 4 subdivisions that had been under the control of militant groups for more than 2 years. We deployed one battalion from Nambol to Churachandpur for road opening duties. In the previous year there had been 21 ambushes on this section of the road. I visited the location of each of the company posts from Nambol to Churachandpur and met the local people and briefed the officers and men. I warned them to be alert as they were in the midst of insurgent country. Hidden eyes were watching them all the time to see the moment when they would slacken. That was when they would strike. I had also warned them that if they were slack and they were ambushed, they should not take it out on innocent civilians. It is to the credit of the officers and men of the 5 companies that during the course of the year, they were caught off guard twice only but on both occasions they held their cool and refused to give vent to their anger by firing on innocent civilians. In one case where they lost a boy, the villagers from where the militants had fired came to the post the next day, condoled the death of the constable and told them that they were grateful to the force for their restraint. They said that the force that was there before, had suffered several firings by the militants and on each occasion they had descended on the village and beaten up the people indiscriminately. The village promised never to allow militants to enter their village. For the whole year after that there was not a single firing/attack on the post.
The above two examples gives the answer to this problem of torture, custodial deaths and wanton killing of innocent bystanders as in the examples of the Manorama incident, the Heirangoithing massacre, the Tonsen-Lamkhai massacre and the Malom killings. In each of these cases it was a failure of leadership. Each of the officers who were in charge should have been severely punished for their failure to control their troops.
The issue is very simple. In any insurgent situation, the police must operate with every detachment of the Armed Forces. Regrettably the Armed Forces rarely trust the local police in such insurgent conditions. It is for the Police leadership to liaise with the Armed Forces and operate together. There are the same safeguards in section 197 of the Criminal Procedure Code for Central Government personnel as in the AFSP Act. I am quite clear in my mind that the AFSP Act is quite unnecessary. A prolonged Commission was not required to discover this.
It will be clear from the above that removal of the AFSP Act is not going to lead to a cessation of the kind of reactions by the Para Military forces or the Army. In this connection I would like to comment about the British methodology in Counter Insurgency operations. In all the classic Counter Insurgency operations that the British Army was involved in Malaya, Kenya, Cyprus and above all in Northern Ireland, the army operated under the Police. When a platoon or a company moved out on an operation in the countryside or in an urban area, the Police was present along with the Army. If some excesses were committed by the Army the Police would bear witness to that. In India, regrettably, the Army or the Paramilitary Border Security Force operates independently. If they do something wrong, there are no witnesses to the misdemeanor. They do not like to operate with the Police mainly because the Police cannot be trusted. Also we have the detestable practice of committed bureaucracy, where the police will not do anything unless the political leadership approves it. For example if an insurgent has a political connection, the police will not arrest him unless the matter is cleared by the political leadership. The Army naturally will have none of this. There is also the problem of the sympathies of the Police with regional insurgent groups. The Army will naturally not pander to this. If you want the Army to operate with the Police we must therefore disentangle the Police from the Politicians. If this is done it will also bring considerable professionalism into the Police.
There is also one more factor that holds back professional policing. This is the separation of the Judiciary from the Executive. You will see that in every insurgency particularly in the Northeast and in Kashmir, the judiciary folds up in an insurgent situation. The Government resorts to special detention laws like the National Security Act under which arrested militants are detained for two years. In Kashmir, the Army and BSF seized more than 10000 weapons in each year of the Insurgency. Under the Terrorist and Disruptive Activities act (TADA) there should have been 10,000 convictions for illegal possession of a weapon in each year. The punishment for possession of a weapon illegally was life imprisonment under the TADA. Not a single case was sent up for trial!
The professional answer to our problem is as follows:-
The Army and Police should operate together in an insurgency.
The Police should be detached from the clutches of the Political
leadership.
The courts should normally function in an insurgent situation. To
prevent the temptation of partisan functioning, the judiciary must
be made an All India Service and local persons should not be
posted in the insurgent affected districts. There should be special
courts with day to day hearing to quickly dispose off cases.
Do or will our political leadership agree to this?