INDIAN AUTHORITIES CONTINUE TO DETAIN INDEFINITELY HUMAN

UNCLAS SECTION 01 OF 05 KOLKATA 000167

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PHUM KWMN PGOV SOCI PTER IN
SUBJECT: INDIAN AUTHORITIES CONTINUE TO DETAIN INDEFINITELY HUMAN
RIGHTS ADVOCATE IROM SHARMILA



1. (SBU) Summary: On May 11 Manipuri human rights activist
Irom Sharmila was summoned to New Delhi to face charges of
attempted suicide stemming from her six-year hunger strike
against the Armed Forces Special Powers Act (AFSPA). Sharmila
has been protesting the continued human rights violations
committed by the India armed forces under the AFSPA. Normally
based in Manipur, she had taken her protest to New Delhi in
October 2006 and remained there until March 2007. Returning to
Manipur on March 6, she was taken into judicial custody pending
the charges of attempted suicide filed in the New Delhi courts.
The AFSPA permits security forces to "shoot to kill" any
suspects with impunity and has facilitated serious human rights
abuses, including extrajudicial killings, "disappearance," rape
and torture by granting sweeping powers to the security forces
in "disturbed" areas of large parts of Northeast India. Human
rights activists allege that hundreds have been killed,
mutilated and women raped in "militarized" Manipur under the
cover of this law since its inception in 1958.


2. (SBU) Summary Continued: In November 2004, the Justice
Jeevan Reddy Committee conducted a review of the act following
protests over the rape and killing of Thangjam Manorama by the
Assam Rifles in Manipur. The Committee's recommendations
included repeal of the act and inclusion of new provisions in
the existing Unlawful Activities (Prevention) Act (ULPA) to
maintain a balance between counter-insurgency efforts and the
protection of human rights. The recommendations were not
accepted by the Central government. As Sharmila's detention
indicates, officials continue to deny the protection of
fundamental human rights in the Northeast, and can do so because
the region remains outside of the national and international
consciousness. Such a policy, however, undermines long-term
prospects for peace and security in the region. End Summary.

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Irom Sharmila's 6-year Hunger Strike

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3. (U) Irom Sharmila, selected for the South Korean Gwangju
Prize for Human Rights on May 2, has been on a hunger strike for
more than six years to protest human rights abuses in Manipur
and to demand the repeal of the draconian AFSPA. Sharmila began
her fast on November 2, 2000 following the killing of 10
civilians at Malom, near the state capital of Imphal, by Assam
Rifles personnel acting under the authority of the AFSPA. She
has been arrested, hospitalized and force fed through nasal
tubes for much of the past six years. Sharmila has been in
judicial custody for the punishable offense of attempt to commit
suicide under Section 309 of the Indian Penal Code (IPC).
Sharmila's hospital room where she is confined in Imphal is
treated as an extension of the state prison. Every year a new
First Information Report (FIR) is filed against her, because
legally she cannot be detained for her offense for more than a
year and should be released. The state police have not filed
formal charges against her.


4. (U) On October 4, 2006, the day after she was released and
before the state could file another FIR, Sharmila went to New
Delhi to continue her hunger-strike and to conduct her protest
in the national capital. New Delhi police immediately arrested
her under Section 309 of the IPC and kept her under police
custody. She was admitted to hospital due to her deteriorating
health. Following an appeal by Sharmila's lawyers, New Delhi
High Court passed an order allowing her to return to Manipur if
her health permitted. On March 6, Sharmila returned to Manipur
and was rearrested and hospitalized. Meanwhile, Delhi police
filed a charge-sheet on her case and submitted a report to the
court. Summoned back to New Delhi, Sharmila appeared before the
Additional Chief Metropolitan Magistrate on May 11. She was
released on bail and the New Delhi court directed that she may
have to appear again as required. On May 13, Sharmila returned
to Imphal and continues to be held under detention by the
Manipur police in a secure ward of the government hospital.


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5. (SBU) Sharmila said she returned to Imphal with the hope
that the AFSPA would be repealed, as was assured by a number of
state political leaders prior to the state assembly elections in
February. However on March 19, a resolution by opposition
legislators urging the GOI to repeal the act was defeated in the
Manipur Assembly. Congress Chief Minister Okram Ibobi Singh
told the Assembly that due to the deteriorating law and order
situation the state, the Manipur government had to retain the
act and did so with the support of the Central government. He
said the AFSPA would be repealed if the situation in Manipur
improved, and reiterated that the state government alone could
not tackle the insurgency problem.

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The AFSPA -- Killings, Rape, Torture, and Illegal Detention

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6. (SBU) The AFSPA, a law utilized in "disturbed areas,"
including large parts of Northeast India and Kashmir, has
facilitated serious human rights abuses, including extrajudicial
executions, disappearances, rape and torture, by granting the
security forces sweeping powers. The AFSPA permits security
forces to make warrantless arrests and gives them authorization
to shoot to kill even when members of the security forces are
not in danger. One of the chief complaints against the AFSPA is
that it allows security forces to act with impunity as no person
can initiate legal proceedings against members of the armed
forces for actions taken under the AFSPA without first receiving
permission from the Central Government.


7. (SBU) The AFSPA has its roots in a British colonial
ordinance, called the Armed Forces (Special Powers) Ordinance
promulgated in 1942 to suppress the "Quit India Movement." The
act itself began as the Armed Forces (Assam and Manipur) Special
Powers Ordinance, 1958 that came into force in May 1958, and was
passed by Parliament in September that year. The act remains in
force for one year and is renewed annually. In 1972, the AFSPA
was amended to confer the power to declare an area as
"disturbed" to the Governor, who represents the Center in each
state (this power was previously vested in the state government)
and permits lower enlisted, rather than just officers, the
authority to decide on the use of deadly force. The amendment
also extended the AFSPA to other states in the Northeast. The
same law was introduced in Jammu and Kashmir in December 1990.


8. (SBU) According to the AFSPA, "if the Governor~is of the
opinion that the whole or any part of the State of Assam or the
Union Territory of Manipur, as the case may be, is in such a
disturbed or dangerous condition that the use of armed forces in
aid of the civil powers is necessary, he may, by notification in
the Official Gazette, declare the whole or any part of the State
or Union territory to be a disturbed area.

"Any commissioned officer, warrant officer, non commissioned
officer or any other person of equivalent rank in the Armed
Forces may, in a disturbed area,

(a) if he is of opinion that it is necessary so to do for the
maintenance of public order, after giving such due warning as he
may consider necessary, fire upon or otherwise use force, even
to the causing of death, against any person who is acting in
contravention of any law or order for the time being in force in
the disturbed area prohibiting the assembly of five or more
persons or the carrying of weapons or of things capable of being
used as weapons or of fire-arms, ammunition or explosive
substances;

(b) if he is of opinion that it is necessary so to do, destroy
any arms dump, prepared or fortified position or shelter from
which armed attacks are made or are likely to be made or are
attempted to be made, or any structure used as a training camp
for armed volunteers or utilized as a hide-out by armed gangs or

KOLKATA 00000167 003 OF 005


absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a
cognizable offense or against whom a reasonable suspicion exists
that he has committed or is about to commit a cognizable offence
and may use such force as may be necessary to effect the arrest;
(d) enter and search without warrant any premises to make any
such arrest as aforesaid or to recover any person believed to be
wrongfully restrained or any arms, ammunition or explosive
substances believed to be unlawfully kept in such premises and
may for that purpose use such force as may be necessary.

"Any person arrested and taken into custody under this act shall
be made over to the officer-in-charge of the nearest police
station with the least possible delay, together with a report of
the circumstances occasioning the arrest. No prosecution, suit
or other legal proceeding shall be instituted, except with the
previous sanction of the Central Government against any person
in respect of anything done or purported to be done in exercise
of the powers conferred by this Act."


9. (SBU) The AFSPA has had a significant negative impact on the
human rights situation in Manipur. Human rights activists claim
that hundreds have been killed, mutilated and raped in Manipur
under cover of the AFSPA. In 2007 alone, there have already
been a number of alleged human rights violations as compiled by
the Manipur based NGO Human Rights Alert:

-- On January 31, four male villagers were digging in the church
campus of Khoken village. Ten village girls were helping remove
the dirt. Two Assam Rifles personnel entered the campus and
opened fire without warning, on suspicion that the villagers
were insurgents. Three villagers were injured. Subsequently,
additional Assam Rifles personnel came to the church campus and
took the injured villagers to Imphal. Villager Henpu Singsit,
who had been shot in the chest, died on the way to the hospital.


-- On February 2, an "encounter" took place between the Indian
Border Security Force (BSF) at Mayai Leikai, Heirok and cadres
of the proscribed People's Liberation Army (PLA). The BSF
entered the house of Wairokpam Ibosana the next day and forced
the family and neighbors to sit outside for questioning.
Ibosana was singled out and accused of sheltering underground
PLA cadres. He was beaten severely and taken to the BSF camp
and later handed to the local police.

-- On February 8, Ashangbam Shyamchand and his friends were shot
at by police commandos while they were shopping at Lamlai Bazar.
Shyamchand was killed and 14 local youths were picked up from
the area by police commandos and detained in custody.

-- On March 13, Nengneikim Haokip was attacked by a soldier
while she was washing clothes at a spring and raped after she
lost consciousness. She later lodged a complaint at an Assam
Rifles post at Kotlien. The next day, villagers captured the
accused soldier, but he fled to the Assam Rifles post.
Approximatley 200 women surrounded the post demanding the rapist
be handed over to them. Security personnel attacked and beat
the protestors.

-- March 25-26, Assam Rifles personnel entered the house of
Elangbam Dhanabir and assaulted him. He was taken away without
an arrest warrant. Later, he was handed over to the Thoubal
Police Station and charged with being a member of the United
National Liberation Front (UNLF).

-- On April 6, three youths riding a motorcycle were chased and
shot at by a police paramilitary team on duty at Kwakeithel
market, presumably on suspicion that they were insurgents. When
local women rushed towards the victims, the police fired blanks
to disperse them. Later, police issued a statement that the
three youths were killed in self defense as they had thrown hand
grenades at the police pursuing them. A citizen's Joint Action
Committee submitted a memorandum to the Chief Minster demanding
a judicial inquiry, termination of the services of the

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commandos, and compensatory payment to the victims' families.

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A Failed Challenge and Demands for Repeal

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10. (SBU) In November 1997, in response to a legal challenge to
the AFSPA, the Supreme Court upheld the constitutional validity
of the AFSPA. The court ruled that the powers given to the army
were not "arbitrary" or "unreasonable" and that they did not
violate the provisions of the Indian Constitution. However, it
ruled that the declaration of an area as "disturbed" should be
reviewed every six months. On the subject of "prosecution, suit
or other legal proceeding" of army personnel subject to
"sanction" of government permission, the court noted, "We are
of the view that since the order of the central government
refusing or granting the sanction . . . is subject to judicial
review, the central government shall pass an order giving
reasons." The court also ruled that safeguards in the form of a
list of "Dos & Don'ts" for security forces are legally binding.


11. (SBU) For decades, human rights groups and women's
organizations in Northeast India protested the continuing human
rights abuses and demanded that the AFSPA be repealed. These
protests increased following the July 2004 sexual assault and
death in custody of Thangjam Manorama in Manipur. The outrage
resulting from Manorama's killing was channeled through a
coalition of 32 civil society organizations in Manipur called
the Apunba Lup, and manifested itself in "naked protests" by
Manipuri women rallying disrobed in public and self-immolation
by some youths. The Act was withdrawn from the limited area of
the Imphal municipal district as a result.


12. (SBU) Buoyed by their success, human rights activists
nationwide began calling for the AFSPA's general repeal on the
grounds that it violated international standards on human
rights. Further, they alleged that there had been an inadequate
debate in Parliament when the act was initially introduced.
These protests lead to the creation of the Justice Jeevan Reddy
Committee to review the AFSPA.

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The Justice Jeevan Reddy Committee Report

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13. (SBU) In November 2004, the Center appointed the
five-member Justice Jeevan Reddy Committee to review the
provisions and application of the AFSPA. The Committee held
hearings and invited comments from individuals, organizations,
institutions and non-governmental organizations. The
Committee's report pointed out that although it is the
government's duty to protect the nation from internal
disturbance, the Central Government had an obligation to respect
the "fundamental rights guaranteed by the Constitution."
Significantly, the Committee's report recommended the repeal of
the AFSPA, saying it was "a symbol of oppression, an object of
hate and an instrument of discrimination and highhandedness. It
may be necessary for the army to remain while the act should go,
and therefore an appropriate legal mechanism has to be devised
to ensure protection of rights."


14. (SBU) The Committee recommended insertion of appropriate
provisions into the existing Unlawful Activities (Prevention)
Act (ULPA),1967 (amended in 2004) as a replacement for the
AFSPA, noting that, "The ULPA defines "terrorism" in terms which
encompass and cover the activities of insurgent organizations in
the Northeast. It is designed to ban unlawful organizations,
curb terrorist activities and the funding of terrorism, as well
as investigation, trial and punishment of persons indulging in
terrorist acts. After the proposed amendments, ULPA would be
more comprehensive and ensure that persons apprehended by the
armed forces would be handed over immediately to the nearest

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police station and would be tried in accordance with the
procedural laws."


15. (SBU) Because the ULPA does not contain any provision
specifying the powers, duties and procedures relevant to
deployment of armed forces, the Committee recommended creation
of a "Grievances Cell" as a mechanism for ensuring
accountability of the armed forces, and noted that "There have
been a large number of "disappearances" without warrants and
deaths and injuries. Information should be provided on the
whereabouts of missing persons within 24 hours." The Committee
also recommended specific time and jurisdictional limits on
armed forces presence and operations that could be reviewed and
renewed periodically. All of these changes could have been done
by amendment to the existing ULPA law.


16. (SBU) COMMENT: The fact that Indian officials can detain
award-winning human rights advocate Sharmila indefinitely, with
no reaction from the international community, is an indication
of how the deplorable human rights situation in India's
Northeast is hidden from general awareness. The perpetuation of
the AFSPA, even when found by the Reddy Commission to violate
the "fundamental rights guaranteed by the [Indian]
Constitution," also demonstrates the lack of serious debate
about the AFSPA and lack of commitment by the GOI to protecting
basic human rights in Manipur and the region. Ironically, the
AFSPA's purported justification, of preserving security in the
Manipur, is actually undermined by its indiscriminate use. The
enforcement of the AFSPA over five decades has failed to curb
insurgency in the Northeast and has instead intensified local
feelings of alienation and discrimination in the affected areas.
Insurgent groups in the region have been able to capitalize on
this popular discontent to further their own goals, including
criminal activities such as extortion and kidnapping, knowing
that the populace does not trust the security forces. The GOI
should repeal the AFSPA not just in the interest of retaining
its pretense of being concerned about basic human rights but
also in the interest of effectively responding to the
insurgencies fueled by the resentment of AFSPA abuses.
JARDINE