Photo for representational purpose.The dismissal by a five-judge bench of the Supreme Court of an appeal by the Central government for recall of an earlier ruling by a smaller bench of the same court in the case of 1,528 alleged fake encounter killings in Manipur will go down as a landmark ruling. It has profound implications for the future of counter-insurgency strategies. If the government takes the judgment positively, it can be seen as anticipation of a special force fit for the purpose, armed and trained like the army, but attuned to doing civil duty and being answerable to the civil court of law.

The outline of such a force was quite distinctly visible in the dialectic between the government’s curative petition and the wording of its dismissal by the Supreme Court bench. Very briefly, the petition argued that the matter was urgent as the morale of the forces would drop if they were subject to investigation by the local police after every incident. The stress was on the need to give the army the freedom to use whatever means in its command to tackle what was described as “war-like” situations — and since threats of war were being tackled, the army’s actions should not be open to judicial review.

The judgment rejected the argument that “war-like” situations warrant a free hand to the army, noting that “democracy would be in danger” if the armed forces were permitted to kill citizens on the mere suspicion that they were enemies of the state. It was categorical that there would be “no absolute immunity” from legal prosecution for armed forces personnel on counter-insurgency duties if they are suspected to have caused deaths by the use of excessive and disproportionate force.

The intriguing phrase here is “war-like situation”, which is supposed to warrant the use of the military, which then deals with the situation as if in a war zone. The ambiguity of the term “war-like” speaks of a peculiar dilemma of the Indian state. On the one hand, the insurgency situations in Kashmir and the Northeast are being portrayed as akin to war, but because of the legal implications of calling them wars, the government refers to these problems as merely law and order issues, and therefore, a matter for domestic law to tackle.

The problem is, if this was war, it would imply a conflict of states, thereby giving the insurgents a status that all states would normally avoid. Moreover, if this was war, rules of war, such as the Geneva Conventions and the Hague Conventions, would be deemed applicable, again a prospect no state would concede to. From the government’s point of view, insurgency is therefore definitely not “war”, the noun, but “war-like”, the adjective. But would such semantic acrobatics warrant the use of unaccounted force, as in war? The Supreme Court has said no, urging, instead, all stakeholders “to find a lasting and peaceful solution to the festering problem.”

International combat laws did attempt to take care of this grey area created by “non-international armed conflicts” when the Geneva Conventions Protocol II was conceived of in 1977. The protocol is aimed at bringing violence by non-state forces under the purview of international humanitarian laws. Here, too, because of what are deemed compromises to national sovereignties, few states with internal conflicts have ratified it. India, too, though a signatory to the Geneva Conventions of 1949, refused to sign this additional protocol. The ambiguity as to whether insurgencies are “wars”, or merely law and order problems, remains. The use of the military in civil unrest situations, as is being done under the Armed Forces Special Powers Act (AFSPA), also remains controversial.

This ambiguity is what perhaps anticipates a new special counterinsurgency force, with combat capabilities of the military, but answerable to civil law for their action. In many ways, the Manipur police commandos, a unit responsible for a great number of the alleged 1,528 fake encounter killings, is one such entity. Although they are not covered by the AFSPA, they still came to be affected by the climate of impunity introduced by prolonged exposure to the AFSPA.

Before the July 2009 photo expose by Tehelka magazine on how a captured former insurgent, Chongkham Sanjit, was eliminated in broad daylight, reporters of local dailies in Imphal would vouch that there were practically daily body counts of suspects killed by the government forces, often police commandos. Some even have frightening anecdotal stories of how they may have saved some would-be encounter
victims.

In those days, commandos were wont to calling up newspaper offices to send someone to cover encounter sites where alleged insurgents had just been shot. On some occasions, some reporters were too punctual and reached the spot before the encounter happened, and the police had to be content with “capturing” the suspects. Those were also the days when gallantry awards for government forces in Manipur were the highest. After the Sanjit killing expose, and the judicial probe that followed, everything quietened down, suddenly. Practically no more encounters, much fewer gallantry awards, and surprisingly less insurgent activities too.

There is no doubt the police can be as brutal, or more brutal, than the military. But the difference is, the police is accountable to the same law as its victims, therefore, the victims do not feel completely powerless. The Sanjit case has demonstrated how much this one attribute can be a check on the impunity of the forces. A disciplined special police force to meet violent challenges to the state may therefore be the answer to easing the military out of counter-insurgency responsibilities.

The terrifying case of 1,528 alleged fake encounter deaths in Manipur is a consequence of allowing a lapse of this accountability. As Amartya Sen cautions in The Argumentative Indian, consequences can make victory pyrrhic and meaningless, and so, though Krishna convinced Arjuna as to why evil must be fought and eliminated, Arjuna’s fears of the consequences cannot be ignored.