Immunity to Armed Forces continues

Fighting an ordinary criminal is provided for under a system of criminal justice while prosecuting an armed police for his crime of rape became legally impossible, besides being socially and politically impossible. Justice Verma Commission addressed the issue and suggested removing this immunity and bringing the criminals in 'uniform' within the general system of criminal justice. Binalakshmi of Manipur Women Gun Survivor Network says that it around 90 per cent of casualties in Armed Conflict situations are civilians, most of them are women and children. Women have been threatened, raped and murdered (Human Rights Watch 1998). In most cases, rape is used as a weapon of war and a tool of political repression (Human Rights Watch 1998). Rape and sexual assault of women in situations of conflict have been viewed as the spoils of the war rather than as illegitimate acts that violate humanitarian law. Human Rights Watch investigations in the former Yugoslavia, Peru, Kashmir and Somalia have revealed that rape and sexual assault of women are an integral part of conflict, whether internal or international in scope. (United Nations 1994). Rape routinely serves a strategic function and acts as a tool for achieving specific military or political objectives. Far from being an isolated sexual or private act unrelated to state agents' violent attacks on others, rape often occurs alongside other politically motivated acts of violence. Raping by security forces most often happen during crackdowns, cordon-and-search operations, during which men are held for identification in parks or school yards while security forces search their homes. 125 women were murdered, 1,430 raped while 143 others subjected to dowry-related harassment in the state from April 2009 to January 2010. Thangjam Manorama alias Henthoi (32) was picked up on 11 July 2004, brutally tortured & killed by members of 17 Assam Rifles stationed in Manipur. When under the people's pressure the State Government ordered inquiry into the rape and murder of Manorama, the Assam Rifles initially assured cooperation with inquiry but later challenged the state action as illegal, before the Guwahati High Court. The Guwahati High Court on June 23, 2005 held that State Government had no authority to institute such commission against the central armed forces, under the provisions of the Armed Forces Special Powers Act, but directed that reports of the Inquiry Commission should be submitted to the Ministry of Home Affairs (MHA) and the Union Home Secretary should examine the report and subsequently take up actions against any personnel of Assam Rifles if found guilty. Amitava Roy and B. D. Agarwal, JJ, of Guwahati High Court on August 31, 2010 allowed the State Government to open and act upon an inquiry report on killing and rape of Manorama. Perhaps the AFSP Act is 'the procedure established by law', and hence no violation of Article 21! We are great federation where State files a Writ Petition against Center against killing & raping of its citizen and still fails to book criminals in uniform. Tragedy indeed. Shocking protest of 12 brave women shook the country. In the past decade, 20 instances of rape and sexual assault by security forces have been reported, but without single conviction. They say such brazen rapes and assault are due to section 4 of AFSP Act. Colin Gonsalves said the rape of Manorama or that of Miss Rose (1974) Ahanjobi (1996), all protests state fade out in the end and things continue to remain just the same, unchanged. The Upendra Report on Manorama's killing remains sealed even now.

It is not just a case of total absence of 'secure' feeling for woman, but threatening insecurity writ large from the uniform forces that the state has to immediately remove and assure women in conflict areas that they are entitled to all the security and dignity that is afforded to citizens in any other part of our country. Justice J S Verma Commission has stated that it noticed that 'impunity for systematic or isolated sexual violence in the process of internal security duties was being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of India. There is a need for strong measures to ensure such security and dignity will go a long way not only to provide women in conflict areas their rightful entitlements, but also to restore confidence in the administration in such areas to mainstreaming'. Justice Verma suggested that Sexual violence against women by members of the armed forces must be brought under the purview of ordinary criminal law, secure the women complainants and witnesses and appointment of special statutory commissioners for women's safety and security in all areas of conflict in the country. The Report suggested amending S 6, Armed Forces (Special Powers) Act, 1958, which necessitates center's previous sanction for prosecuting uniform forces for rape or murder. Justice Verma suggested remove the need of previous sanction for crimes of sexual assault. He should have added other criminal offences including murder also. In the name of performing security duties these armed forces commit heinous sexual crimes against women and go legally scot free. This tragic violation of rule of law should be removed. But the 2013 Ordinance promulgated to amend the Criminal Law does not contain any thing to remove this immunity. There was a serious opposition to keep armed forces personnel under AFSPA Act out of ambit of the Ordinance for protection of women, but Defence Minister A. K. Antony assured that the government will take "ruthless" actions against such people, including armed forces personnel. On the controversial Armed Forces Special Powers Act, he sought to link the importance of the Act with the regional and global security situation and said no hasty decision could be taken on that. Thus it is still doubtful whether immunity from prosecution for rape still available to members of security forces. Which prevails, general criminal law or Special Powers of immunity? Rule of law or rape of law? (10.3.2013) The writer is Professor & Coordinator, Center for Media Law & Public Policy, NALSAR University, Hyderabad