Our world is engulfed in conflict, with as few as only 10 countries that can be consideredconflict-free as of 2016.1 While conflict has disastrous consequences for both men andwomen, women and girls are disparately affected. This is corroborated by statistical evidencewhich shows that women and children constitute majority of the victims, refugees andinternally displaced persons of contemporary armed conflict. Armed conflict exacerbatesexisting cultures of discrimination and violence against women, and leads to womenbecoming primary targets of gender-based violence (hereinafter referred to as GBV),particularly sexual violence and exploitation. This includes torture, rape, mass rape, sexualslavery, trafficking, etc. 2 GBV has become a characteristic of armed conflicts across theglobe, and is used as a means of torture, humiliation or spreading terror. In the past fewdecades, there has been growing acknowledgment of the differential impact of conflict onmen and women, with the situation of countries like Afghanistan, Burundi, and theDemocratic Republic of Congo, etc. bringing the international community's attention to thisissue.3
In 2000, the United Nations Security Council took cognisance of this by adopting the historicResolution 13254. This along with several subsequent resolutions has not only recognised thespecific vulnerabilities of women, but has also called for States to end impunity for gender-based crimes in armed conflicts. Unfortunately, while India has condemned conflict-relatedsexual violence in other nations5, it has failed to comply with the provisions of theseResolutions at the domestic front. Conflict-related sexual violence perpetrated by both Stateand non-State actors is rampant in conflict zones in India. The state of Manipur is a prime example of this situation. The ongoing conflict over the question of ethno-nationalism andself-determination involving the Indian state forces and insurgent or non-state armed groupshas led to several human rights violations, especially sexual violence against women. 6
1 The Asian Age, Only 10 countries in the world are truly at peace, November 8 2016
This paper focuses on the sexual violence perpetrated by state actors in Manipur and thespecial conditions of impunity provided to them under the Armed Forces (Special Powers)Act, 1958 7(hereinafter referred to as AFSPA), and highlights the need to repeal the Act.
The Conflict: Genesis, State response and AFSPA
Manipur is a small state in Northeast India, with a population of 2.8 million, comprising ofpeople belonging to diverse ethnic, linguistic and religious groups. Embroiled in an armedconflict for the past six decades, it is one of the most highly militarised regions is India, withover 1,00,000 troops of the Indian armed forces deployed there to combat 60 armed ethnicgroups. 8 The origins of this conflict can be traced back to Manipur's merger with the IndianUnion in 1949. The merger was perceived as 'forceful' and a 'violation of the right to self-determination' by large sections of the Manipuri population as the Merger Agreement wassigned by King Bodhachandra without consulting the newly formed legislature of Manipur. 9The discontent of the people was soon expressed in the form of insurgent movements.Several other complex factors intertwine as the causal factors of the conflict in Manipur.These include poor governance, neglect of the Northeast by the Central Government,economic exploitation, high levels of unemployment among the youth, ethnic conflictbetween the Nagas, Meiteis and Kukis, etc. 10As the Naga insurgent movement, whichspearheaded the movement for self-determination in the Northeast spilled over into Manipur,the Indian government responded by imposing the Armed Forces (Assam and Manipur)Special Powers Act in 1958.
6 M. Yurreisem, State Violence against Women in Conflict Zones: A Study of Manipur
7 Ministry of Home Affairs, "Armed Forces (Special Powers) Act, 1958," http://www.mha.nic.in/acts- rules/armed_forces_special_powers_act1958.pdf
8 Binalakshmi Nepram, Manipur violence: Why the protest and what are the demands, The Indian Express, 6 September 2015
9 Human Rights Watch, These Fellows Must be Eliminated, available at http://www.hrw.org/reports/2008/india0908/3.htm
10 Brig Sushil Kumar Sharma, Ethnic Conflict and Harmonization: A Study of Manipur, Vivekanada International Foundation, 2016
AFSPA is a colonial era policy, originally imposed as an Ordinance in 1942 by the British toquell the Quit India Movement. The Ordinance re-enacted in the Northeast in 1958 was soonrepealed and passed as an Act for Assam and Manipur. After the reorganisation of theNortheast in 1971, AFSPA was amended and extended to Tripura, Meghalaya, Mizoram andArunachal Pradesh. Human rights advocates across the world have deemed the Act asdraconian, anti-people and anti-democratic as it bestows extraordinary powers on the armedforces.
The Act is applicable to areas notified as 'disturbed' by the Governor of the State or Centralgovernment11. There are no clear specifications for this declaration, nor can it be subjected tojudicial review. The sweeping powers provided by the Act allow commissioned, non-commission or warrant officers, or any other person of equivalent rank in the Armed Forcesto fire upon and use force even to the extent of causing death; arrest without warrant on meresuspicion; enter any premises for search and seizure; detain individuals without any specifiedtime limit; and other such sweeping powers12. It also provides for complete impunity byprohibiting any prosecution, suit or legal proceeding against any armed forces personnelwithout prior sanction from the Central government, which is seldom granted13. Theprovisions and impunity provided by the Act have led to gross human rights violations,including sexual violence against women by the armed forces in the State of Manipur.
Sexual violence, impunity and impending justice
Six decades of conflict and imposition of AFSPA have resulted in numerous cases of humanrights violations in Manipur. It has fostered a climate where incidents of extra-judicialkillings, sudden disappearances, torture and sexual violence by state forces have becomecommonplace.
Sexual violence is defined as "any sexual act, attempt to obtain a sexual act, or other actdirected against a person's sexuality using coercion, by any person regardless of theirrelationship to the victim, in any setting." It includes rape, sexual harassment, forcedprostitution and trafficking, etc. 14 While numerous cases of sexual abuse and rape by security personnel have been reported in Manipur, it is important to note that these may only be the tipof the iceberg, given the high levels of underreporting due to social structures, social stigma,social norms regarding female chastity, fear of being shunned or ostracized and overallclimate of impunity. 15
11 AFSPA, section 3
12 Ibid., section 4,5
13 Ibid., section 6
The systematic misuse of power to commit acts of human rights violations and sexual abuseis conspicuous in various counter insurgency operations. Operation Bluebird (1987) was onesuch operation launched by the Indian army in the surrounding 30 villages of Oinam Village,Senapati district with the ostensible aim of catching Naga rebels and recovering theammunition that they had looted. However, during the three month long operation the armyunleashed horrors on the villagers such as rape, murder, arson, illegal detention and torture.16According to reports, 3 women were raped, several others were sexually molested by thearmed forces and 2 pregnant women were abused and forced to give birth in public view.
Operation All Clear (2004), Operation Tornado (2005) and Operation Dragnet (2006) are alsocharacterised by similar cases of rape and molestation, killings and torture.Other important cases include the rape of 19 year old Miss Rose, who was gang raped byBorder Security Force (BSF) officers in front of her fellow villagers who were kept atgunpoint; the rape of 24 year old Miss Angai from Grihang village who was beaten, stripped,gang raped and had sticks inserted in her vagina by a group of 95 Bn. Border Security Forcepersonnel for 3 continuous days from 3-5 March, 1974. 17 The memorandum, Manipur: Perilsof War and Womanhood 18submitted to Rashida Manjoo, Special Rapporteur on 'Violenceagainst Women, Its Causes and Consequences', consists of detailed documentation and listsof rape cases perpetrated by the Indian security personnel in Manipur from 1974-2013.
A case that horrified the entire nation was the brutal rape and custodial killing of 32 year oldThangjam Manorama alias Henthoi by 17th Assam Rifles personnel on 11 July 2004. Semenstains found on her sarong by Central Forensic Science Laboratory, knife wounds on her thigh and gunshot wounds on her genitalia indicated towards evidence of rape and its coverup.19 A commission headed by Justice Upendra Singh was set up to enquire into the case,however the report was not made public for a decade and the Assam Rifles challenged thevalidity of the commission by invoking AFSPA. The report also concluded that the evidencesuggested rape. 20 This case sparked outrage and protests across Manipur against the sexualviolence perpetrated by state forces and demanding the repeal of AFSPA. The most pertinentof these protests was the naked protest by 12 elderly women, called Meira Paibis or 'Mothersof Manipur' at the Assam Rifles headquarters on 15 July, 2004. These women stripped downthere clothes and held up banners saying "Come Indian Army Rape Us".21
14 UN World Health Organization (WHO), World report on violence and health, 2002, ISBN 92 4 154561 5
15 HRLN, Manipur in the Shadow of AFSPA, Independent People's Tribunal Report on Human rights violations in Manipur
16Amnesty International, "Operation Bluebird" A case study of torture and extrajudicial killings in Manipur, 31 October 1990
17 Dr. Nunglekpam Premi Devi, Warfare or Welfare: Women in the shadows of Armed Forces Special Powers Act 1958 and assessing the call to repeal it
18 The Civil Society Coalition on Human Rights in Manipur and United Nations, Manipur: Perils of War and Womanhood
Numerous such incidents of rape and sexual abuse perpetrated by the Indian armed personnelhave occurred in Manipur, with only a small fraction of them being reported and very fewcases actually going to trial due to the impunity provided to the armed forces under AFSPA.This has created a vicious cycle of fear and violence in Manipur, where justice is still elusive.
Call for the repeal of AFSPA
The countless cases of excesses by the armed forces sanctioned by AFSPA have led severaljudicial commissions, human rights activists, organisations to condemn the act and call for itsrepeal. The constitutionality of AFSPA was first challenged in the Supreme Court in 1980 bythe Human Rights Forum, and later by The Naga People's Movement for Human Rights andthe People's Union for Democratic Rights in 1982. In 1997, a five-member bench headed byJustice J.S Verma upheld AFSPA in its final verdict22, but ruled that the army should followcertain "Do's and Don'ts" issued by the army authorities. However, the continuance of theexcesses proved that these do's and don'ts were inadequate to protect human rights in theabsence of stringent enforcement and review measures.
The outburst of protests after Manorama's rape and execution in 2004 led to Prime MinisterManmohan Singh setting up a five-member Committee to Review AFSPA, headed by JusticeJeevan Reddy23. The report, which was not made public, was leaked and recommended the Act be repealed stating that the act had become 'symbol of oppression, an object of hate andan instrument of discrimination and high handedness.'
20Krishnadas Ramgopal,Manorama Mercilessly tortured, The Hindu, 14 November 2014
21Manipur mothers vow to continue fight till AFSPA is withdrawn, The Indian Express, 9 March 2017
22 Naga Peoples Movement for Human Rights Vs. Union of India 1997
Other commissions that have recommended its repeal include the Second AdministrativeReforms Commission headed by Veerappa Moily, appointed by the president of India in200724; The High Level Committee on Status of Women set up by the UPA government in201325 and the Justice Verma Committee. 26 The Verma Committee Report stated that AFSPAlegitimized impunity for systematic sexual violence and provided recommendations withregard to conflict-related sexual abuse by armed forces. These included bringing sexualviolence against women by members of armed forces under the purview of ordinary criminallaw, reorientation of training of armed personnel, witness protection.27 However, none ofthese recommendations were considered in the legal amendments that followed.
The argument put forward by the Government against the demand for the repeal of AFSPA isthat the Act is essential to counter the insurgency movements in Manipur. In July 2016, in acase regarding 1,528 cases of extra judicial deaths in Manipur,, the Supreme Court held thatpersonnel cannot claim absolute immunity if any death was found to be "unjustified" andshould refrain from using excessive force.28 In response, the army said that local factors led tobias against them in the judicial probe into these cases. Attorney General Mukul Rohtagistated that since the army was working in difficult circumstances in Manipur, it "cannot bedisbelieved." 29 He also claimed that if not reconsidered, the Court's decision would hamperthe army's functioning and 'lower the morale' of armed personnel. This was in tandem withthe government's usual stance on the AFSPA debate, which is to state reasons of nationalsecurity and countering insurgency to retain such a draconian act.
Asian Centre on Human Rights noted in a report that AFSPA has not managed to contain theconflict in Manipur, let alone resolve it as the number of armed insurgent groups, the death toll of civilians, and the reports of human rights abuses continues to be on the rise. Also, itargues that there is no need for AFSPA to continue as certain laws such as The UnlawfulActivities (Prevention) Act, 1967, exist which are adequate to deal with such conflict zones. 30
23 Government of India, Ministry of Home Affairs, Report of the Committee to Review the Armed Forces Special Powers Act, 1958, 2005
24 R. Suryamurthy, "Moily Panel for Repeal of AFSPA," The Tribune, June 26, 2007
25 Abantika Ghosh, Committee on women wants AFSPA repealed, The Indian Express, 17 July 2015
26 Report of the Committee on Amendments to Criminal Law, 2013
27 Ibid., chapter 5, Other Offences Against Women
28 Extra Judicial Execution Victim Families Association (EEVFAM) v UoI ,W.P. (Crl.) No. 129/2012
29 Judicial probes on Manipur encounters "biased": Army to Supreme Court, The Indian Express, 19 April 2017
Sanjib Baruah has described AFSPA regime as an 'undeclared emergency rule'31, as eventhough the provisions of AFSPA are similar to that of an emergency it is not subject to therestraints of the emergency provisions in our Constitution, such as a time limit and restrictionon the curtailment of fundamental rights. While looking at the legality of AFSPA, severallegal scholars are of the view that it violates the fundamental rights guaranteed by ourconstitution. The provisions under AFSPA clearly violate Article 14, 21, 22 and 32 of theIndian Constitution which pertain to life, liberty, equality etc.32 It also violates internationaltreaties and conventions that India has signed, including International Covenant on Civil andPolitical Rights (ICCPR).
Several national and international human rights bodies to which India is a party, havereviewed AFSPA and recommended its repeal. These bodies include the Committee onElimination of Racial Discrimination (CERD) Committee, CEDAW Committee, UnitedNations Human Rights Special Rapporteurs (UNSR-VAW) and (UNSR-EJE), UN HumanRights Committee, Amnesty International, Asian Legal Resource Centre, Human Rights LawNetwork, Human Rights Watch, and many others. 33
In India, several activists have raised their voice against AFSPA and the atrocities that it haspermitted, and urged for its immediate repeal. These include Irom Charu Sharmila, who wason a hunger strike for 16 years demanding the repeal of AFSPA, Binalakshmi Nepram, UmaChakravarti and several others. Over 1,500 feminist activists, advocates, academicians,students and women's rights organizations including Mary John, Suneetha Dhar, KamlaBhasin, Nivedita Menon, All India Democratic Women's Association (AIDWA), SaheliWomen's Resource Centre, Women Against Sexual Violence and State Repression, All IndiaStudents Association (AISA) and Labia - An LBT Collective, Indira Jaising, Vrinda Grover and many more signed a petition to the President of India demanding immediate repeal ofAFSPA.The campaign was also endorsed by international feminist advocates such as AngelaDavis, Eve Ensler and Charlotte Bunch.34
30 ACHR, The AFSPA: Lawless law enforcement according to the law, 5 January 2005.
31 Sanjib Baruah, "AFSPA The Darker Side of Indian Democracy", Seminar 693, May 2017
32 Institute for Defence Studies and Analysis, Armed Forces Special Powers Act The Debate; International Journal for Legal Developments and Allied Studies, Armed Forces (Special Powers) Act,1958 : A legal analysis
33 The Civil Society Coalition on Human Rights in Manipur and United Nations, Manipur: Perils of War and Womanhood;
Despite the massive resistance against AFSPA, the government of India has failed to repealthe Act. The Act reflects a failure of our democratic as well as justice system, as it permitsviolations of basic fundamental rights such as right to life and right to constitutional remedy.The well-documented cases, countless reports, and overwhelming evidence show that armedforces in Manipur have committed and continue to commit sexual violence against thewomen of Manipur. The impunity provided to the perpetrators, the government's insistenceon its necessity, and blatant denial of members of the armed forces sexually abusing womenin Manipur, shows the Government's indifference to the need of safety for women in ourcountry and how sexual violence against women in conflict zones is seen as merely collateraldamage. AFSPA was meant to control the law and order situation in Manipur, however it hasnot been able to do so in the past six decades and instead leads to further violence,militarisation, oppression and perpetuation of physical and sexual violence by armed forces.It has created a vicious cycle in which women are disproportionately affected and manyManipuri women have become distrustful of the Indian government and the army. There is anurgent need to repeal AFSPA from Manipur as no person, whether a civilian, governmentofficial, member of the armed force or militant should be considered above the law in ademocracy, and the actions of armed personnel in the name of security of the nation shouldnot be at the expense of the rights of women.
The way forward
Today, there is worldwide acknowledgement of the gendered nature of armed conflict andhow women and girls are disproportionately impacted by it. The first step towards resolvingthe problem of conflict-related sexual violence in Manipur and other conflict zones in India isinstitutional recognition of such violence perpetrated by armed forces. The government needsto take cognisance of the unsurmountable evidence and acknowledge that these violations area reality. There is a need to address the conflict in Manipur by understanding the political,social and historical context of the conflict through peaceful methods such as dialogue, rather than military force. The Justice Verma Committee's recommendations35 regarding AFSPAand conflict-related sexual violence such as bringing sexual assault by armed personal underthe purview of ordinary criminal law, review of the continuance of AFSPA, witnessprotection for complainants of sexual assault by armed personnel, appointing commissionersfor ensuring women's safety in conflict zones, etc. must be included in new legislationsregarding gender-based violence in conflict zones. Bringing an end to conflict-related sexualviolence would also require steps taken at the grass root level towards empowering womenand ensuring equality between men and women. This would include gender-sensitisation inschool curriculums, military training and other institutional programmes; increasingparticipation of women in legislative, judicial and executive roles, etc. There also needs to begreater inclusion of women in conflict resolution and peacebuilding as research has shownthat women's participation and inclusion increases the efficiency of humanitarian assistance.36Sexual violence against women cannot continue to be seen as an inevitable by-product ofconflict and the government needs to take adequate measures to ensure the safety of womenin such zones in order to uphold its commitment to democracy.
35 Report of the Committee on Amendments to Criminal Law, 2013 36 http://www.unwomen.org/en/news/in-focus/women-peace-security/2015