“It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties,” said the Supreme Court of India in a 85-page judgement this week calling an end to impunity granted under the Armed Forces Special Powers Act.

 

Haven’t we heard this before? From the Parliament debate on Armed Forces Special Powers Act in 1958 (there was hardly a debate though) to SC hearing  in earlier cases to Justice Reddy Committee recommendations to the Justice Hedge Committee on fake encounters and National Human Rights Committee finding that almost all the cases brought before them of ‘fake encounters’ were indeed fake, the discourse on AFSPA has been one of consistent denial by the Indian state and the Indian Army of the catalogue of human right abuses the act has perpetrated.

 

The then minister of home affairs, G.B. Pant, explained the reason for the bill in the Lok Sabha:

 

This is a very simple measure. It only seeks to protect the steps that the armed forces might have to take in the disturbed areas. It is not possible over such a vast area to depute civil magistrates to accompany the armed forces, because it happens unexpectedly. They might intrude into any village and action has to be taken immediately.

 

It was not entirely without opposition that the bill was passed.

 

Dr Krishnasawmi (MP from Chingleput) had opposed it:

 

Sir, I submit that this Bill is out of order. The Bill contravenes the provision of the Constitution since it does not satisfy certain Constitutional requirements. It seeks to confer powers on Armed Forces and to take complete control in State of Assam when such areas have been declared as Disturbed Area….. This is a state of affairs that can be brought about only by a Promulgation of Emergency under Article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the State not warranted by the Constitution.

 

P.N. Sapru also opposed the bill in the Rajya Sabha and raised a very important issue of setting a time limit. Today the Act that is Emergency in nature has been in place over half a century.

 

My second criticism of this Bill is that it is a permanent measure and the law which it enacts is of a very, very drastic character, and it places that law permanently on the statute book. Now, a Bill of this character can be justified on ground of extreme necessity; I grant that, and I think in the particular case of Assam there is a necessity, but a necessity or an emergency or an emergent necessity cannot be a permanent thing. I mean to say that the situation in Assam will improve and improve in one or two or three years. Therefore, the Bill should not be enacted as a permanent measure. A time limit should be set …

 

The AFSPA states: ‘No prosecution, suit or other legal proceeding shall be instituted, except that the sanction of the Central Government.’ This, Surendra

 

Mohanty (MP for Dhenkanal) said, was in conflict with Article 32, and restricts that constitutional safeguard. ‘The rights conferred by this Part can be taken away only in an emergency.’ Mohanty debated vociferously against the unconstitutionality of the bill and asked, ‘How can we rush through the legislation with our eyes wide open when it has obviously this constitutional lacuna?’

 

The bill was passed in a voice vote, in spite of some opposition to the manner in which it was being passed. But the deputy speaker declared, ‘The ayes have it.’ The longest known internal emergency was thus put into place, by an Act that continues to be in force in most of the states in the northeast and in Jammu and Kashmir.

 

Justice for the victims was rare, and too late to be of any real help. In a historic ruling for the plaintiff, however, in Sebastian Hongray versus Union of India (AIR 1984 SC 1626), the Supreme Court directed the army to pay one lakh rupees to each of the widows of two men, a pastor and a teacher, who had disappeared after having been ‘picked up’ by soldiers of the 21st Sikh Regiment. The record of abuses after this ruling, though, demonstrate that it had little impact on the forces’ activities in the northeast.

 

Name after name, story after story, date after date. The sheer volume and horror of the stories is numbing.

 

I have reported such killings for years but when I wrote Blood On My Hands: Confessions of Staged Encounters in 2015, my motivation was to break the conspiracy of silence – to document the world of encounter killings with the voices of the victims and the perpetrators. The record of State-sponsored violence is generally the stories of the victims with textures. Many of those stories are a construct of feelings recounted as sensory experiences, and thus do not find mention in the judicial commission reports.

 

It is unlikely that the SC judgement will have any impact on the method of encounter killings because there is much more than what the bench observed; it is a sinister exchange in the bizarre interplay of power, politics and violence.

 

Kishalay Bhattacharjee is a senior journalist and author. His most recent book is Blood on my Hands: Confessions of Staged Encounters (Harper Collins 2015). The views expressed here are his own.  

Parts of this article have been excerpted from Blood On My Hands: Confessions of Staged Encounters (Harper Collins 2015)