Rule of Law,Violence and Exception: Deciphering the Indian State in the Thangjam Manorama Inquiry Report

I. AFSPA, Manipur, and the Northeast

The Government of India introduced the AFSPA in 1958 primarily in response to the demands for self-determination in the Northeast. While a longer history of Northeast and its relationship to India is beyond the purview of this article, Sanjib Baruah captures it well when he writes: “The AFSPA was adopted by the Indian parliament in 1958 to provide legal support for the army operations against independentist Naga rebels.” ⁶ Rather than deal with the substantive demands of the peoples’ struggles, the state response has been closely linked to AFSPA. ⁷ Under this law, an area can be declared as a disturbed area if the conditions are considered dangerous or disturbed such that the civil power require the aid of military forces. ⁸ Once the area is declared as disturbed, the armed forces can shoot or use force, even if it causes death, against someone if the person does not follow the law or order such as prohibition of assembly of more than five persons or carrying of weapons. ⁹ The armed forces can also arrest (without warrant) someone for a cognizable offense or if there is reasonable suspicion that the person has committed or is going to commit such an offense. ¹⁰ The law also allows search without warrant under such conditions. And the law protects the soldiers from prosecution through an explicit provision under Section 6 by requiring sanction for legal action resulting in enduring impunity. ¹¹

Baruah has written extensively about the arbitrariness in declaring an area as disturbed sometimes extending to entire states despite the absence of any particular threat of insurgency. Referring to Nandini Sundar’s work, he notes that in the 1950s and 1960s, the AFSPA enabled the “village regroupings,” search operations and surveillance against the Naga and Mizo villagers. ¹² As Baruah puts it: “The goal appears to be to provide the utmost flexibility to the army in its operations against so-called ‘insurgent’ groups – big and small.” ¹³ Above all, the Act has been considered as an important tool for enabling “fake encounters” where the armed forces (and sometimes the police) claim that the militants were killed during an unexpected encounter and state forces apparently kill the militants in self-defense without any injuries to themselves. ¹⁴ While such encounters are not just restricted to the areas where AFSPA exist, the provision that allows lethal force to be used in disturbed areas and the sanction required to file a case against the forces involved in such incidents are definitely seen as creating a more permissible regime. The impunity related to encounters and AFSPA is visible in the ongoing case of the Indian Supreme Court that is inquiring into cases of 1,528 extrajudicial executions or fake encounters in Manipur. ¹⁵

Debates on AFSPA have often focused on its colonial aspects. First of all, the very origins of the law are a colonial innovation. AFSPA is based on ordinances that were deemed necessary during World War II by the British colonial powers. ¹⁶ Second, Baruah notes a long history of colonial policing strategy where armed units were sent to police civil disturbances, something that has allowed the AFSPA to be consistently legitimized even in postcolonial times. ¹⁷ Third, one can sometimes assume a colonial relationship between the Northeast and mainland India recalling the lack of response of the Indian government to the demands and aspirations of the Northeast. ¹⁸ Finally, Baruah notes the racialized treatment of Northeastern people in the mainland and the popular tropes that are used to discriminate against them thus reflecting a prominent colonial strategy in postcolonial times. ¹⁹ That has led to an argument that this law primarily represents colonial continuity reiterating the understanding of scholars such as Anil Kalhan et al who also point to other such colonial continuities in extraordinary laws related to terrorism. ²⁰ However, taking from Arudra Burra’s intervention in the essay “What’s Colonial about Colonial Laws?” I ask what exactly is colonial and postcolonial in the context of the Thangjam Manorama Inquiry Commission. ²¹ In other words, while acknowledging some colonial aspects of the law and how it operates in the Northeast in particular, I also point to the specifically postcolonial responses of the Indian state and its growing inability to contain the discourse on encounters and custodial deaths successfully.

II. Postcolonial Indian State: The Inquiry Report in the Thangjam Manorama Case

In this section, I analyze the Inquiry report focusing on the torture, sexual assault and death of Thangjam Manorama. While the focus of the article is on the Inquiry Commission in the Manorama case, it may be useful to recall the role that Inquiry reports can play more generally in state discourse. In a particularly memorable article, Shiv Visvanathan analyzes the Lentin Report headed by Judge Lentin of the Bombay High Court to investigate into 14 deaths in 1986 at the JJ hospital, Bombay due to contaminated glycerine. ²² Visvanathan compares the bureaucratic report written in 1988 to a Great Indian Novel. He writes that a report is “both a detective story and a sociologist’s investigation. It interrogates both the individual and the system.” ²³ Ultimately, however, he notes that the report ends in tragedy, since reports such as these start off as being “factual” and “normative” until they become pedagogic and “rituals of restoration.” ²⁴ As I discuss the Inquiry report on Thangjam Manorama’s case, we will see a number of similar elements, yet I suggest that the fact that it remained hidden for almost a decade points to the much more revelatory aspects of this report and its forced publicity due to a judicial intervention gives it a very different meaning, even beyond the explicit recommendations of the report.

The Thangjam Manorama Inquiry report was written by Upendra Singh, a retired district and sessions Judge (Manipur) in 2004 but was only released in 2014. ²⁵ The report is a strong indictment of the Assam Rifles for Manorama’s death clearly stating, “This is one of the most shocking custodial killing of a Manipuri village girl so savagely, that also after inhuman torture. The custodial death, according to Hon’ble Supreme Court of India, is perhaps one of the worst crimes in a civilized society governed by the Rule of Law.” ²⁶ Manorama was raped and killed in the Northeast region, within an AFSPA regime and the official narrative is similar to those used in “fake encounters” with even a deliberate attempt by the Assam Rifles to use the sanction provision mentioned in the AFSPA to bypass the judicial inquiry. Thus, AFSPA is central to the story of Thangjam Manorama’s life and death and any enquiry into the incident is expected to consider this law as linked to her death. However, as we shall observe, the otherwise revelatory report fails to consider the central role of the AFSPA even as it points to the procedural safeguards that have been violated in the particular case.

III. Hussain’s Insights on Colonial Rule of Law and Violence

I turn to Hussain’s book Jurisprudence of Emergency to emphasize two particular aspects – one that procedure becomes the colonial state’s way to respond to the need to introduce the rule of law even though in practice the procedures could be modified to suit the colonial needs; second, how his work exemplifies the tension of the colonial state with violence.

One of Hussain’s biggest contributions to understanding both colonial and postcolonial state and law is the constant tension between sovereignty as determined by necessity and the rule of law which represents some constraints on this power; or as Hussain puts it “the discourses of modern law that form the potential conflict between state power and legal authority, between what the state perceives as a necessary power for survival at certain moments and what the law makes available …” ⁴¹ For him such a tension exists in an accentuated manner in the colonial context but actually is constitutive of the modern thereby making emergency a “jurisprudential problem in understanding modern law and the state.” ⁴² Even though the colonial attempt to the rule of law came precisely to counter and replace the discourse of Oriental despotism, Hussain ultimately shows the constant need to “invent” the despotism while trying to differentiate it from “personal discretion” that played a role in colonial authority.

Utilizing Schmitt and Agamben, Hussain considers the close relationship between rule of law and the state of emergency by claiming that “… it would be an error to consider the state of emergency as categorically outside the rule of law.” ⁴³ Rather he thinks of it both as a juridical as well as a political power and that precisely makes it an enduring feature of colonial law and postcolonial law in general. Sovereignty is unlimited but submits to law in order to claim an unlimited authority making that relationship a persisting though difficult one. Drawing on Peter Fitzpatrick and more specifically Partha Chatterjee, Hussain is able to point to the role that “colonial difference” plays in understanding the formation and the limits of the rule of law. ⁴⁴

Here Hussain’s interventions become particularly pertinent in explaining how the British respond to both the need to enforce the rule of law by an emphasis on procedure. The colonial state tries to combine sovereignty (gained legitimacy through law) and governmentality – “… full of rules that hierarchicalize, bureaucratize, mediate, and channel power.” ⁴⁵ Hussain draws on David Scott’s work Refashioning Futures, arguing that although both sovereignty and governmentality do play a role in colonial rule, the racial distinction does make that experience different. ⁴⁶ Thus, debates on codification of the rule of law in India were ultimately resolved by emphasizing legal procedure over substance. As Hussain puts it, “Legal procedure was to be the ultimate answer to the question of what it meant to bring law to India. It was to be the form of a civilized despotism, for it would both declare to subjects that their identity, offenses, their grievances, all began and ended in the authority of the law, and would reflect the morality of publicity and process lacking in the authority of a native despotism.” ⁴⁷ An excellent example of such a procedural act indeed linked to liberty was the writ of habeas corpus which as Hussain brilliantly points out initially appears to be an oxymoron – a “writ of liberty” in a regime of conquest – but it is possible to understand it in the following way. While ultimately representing a way to question custody, initially it appears as a way to “secure their presence in custody.” ⁴⁸ The inconsistent use of writ in the colonial context (as in England) thus for Hussain is the logical culmination of the rule of law. As he eloquently puts it “To the extent that habeas is a protection from state power, the situation of emergency that allows for the suspension of that protection is deeply written into the logic of the rule of law.” ⁴⁹ Thus, a procedural form as a safeguard of liberty exists but is both inherently limited and more substantively constrained in a colonial context.

Hussain’s work also helps us understand the “problematic relation between law and violence” in the colonial context. ⁵⁰ A more prevalent narrative of colonial rule as exerting “dominance without hegemony” as Ranajit Guha puts it, has been extremely influential in analyzing the colonial state and also suggests a direct connection between the violence of the colonial and the postcolonial state. ⁵¹ Yet despite its dominance based on instruments of coercion and an ideology of “colonial difference,” one finds that the colonial state has to occasionally explain its relationship with violence especially with respect to the rule of law. Anupama Rao, in her discussion of the torture and death of Gunnoo (accused of robbing and drowning his five-year-old niece), notes that it was important for the colonial government to ensure an inquiry and initiate the punishment of the foujdar (official). ⁵² This act was essential for the colonial state because of its need to differentiate its own rule from the natives who were known to be “… associated with practices of physical mutilation and disfigurement understood to have been prevalent in Old Regime politics …” ⁵³ As Rao and Pierce explain, the problem of violence was the “paradox of colonial discipline.” ⁵⁴ Similarly, the famous Madras Commission Report on Torture that investigated the complaints of torture in 1855 was unusual in terms of its scope and emphasis. As I have argued earlier, two ways that the colonial state distanced itself from the systematic patterns of torture was to “first, the state ensured that torture was not seen … as being the result of a colonial policy. Second the perpetrators of torture were understood to be only those who enforce the law, in this case the native policemen.” ⁵⁵ More importantly, Anuj Bhuwania identifies the ideological need for the British to investigate into accounts of torture in order to maintain colonial rule while distancing themselves from the violence in their name. As he puts it: “… the use of violence to extract confessions was normalized in British minds and the colonial context erased, with the Europeans emerging as knights in shining armour, trying against all odds to humanize the Indians: somehow, to save them from themselves.” ⁵⁶

Hussain adds another dimension to this discussion by emphasizing the difficulty that excessive violence itself creates even in the context of martial law or as he puts it “contradictions in a colonial martial law” apparent in the Hunter Committee Inquiry into the Jallianwalla Bagh massacre in Punjab. ⁵⁷

In 1919, a British general, Reginald Dyer, ordered his troops to open fire on a peacefully protesting crowd. The 1,650 rounds that were fired with no warning killed at least 379 people and injured thousands according to official records. In describing the horrific nature of the Jallianwalla massacre in 1919, Hussain notes that although the attack was committed for the political imperative of continuing colonial rule, the British were not able to completely defend the “excessive force” committed by the General. ⁵⁸ This is because martial law represented an excellent example of how it is a legal issue but represents really the suspension of law or “law’s absence.” ⁵⁹ In that sense, it always requires a decision about necessity but which is always determined through rules though the rules themselves actually vary. As Hussain puts it “… a state of emergency not only requires a special law but threatens something fundamental about law in general that we must try to explicate.” ⁶⁰ There is a situation that necessitates it and required some explanation but needs an “impossible demand for precision of force …” though in a colonial situation, the violence absorbed could be higher and for a longer duration because of the racial difference. Martial law in that sense for Hussain – referring to Walter Benjamin – is really about “restoration of the general authority of the state.” ⁶¹ And yet this is precisely that cannot be accepted by the colonial state publicly in the Jallianwalla case report (Hunter Committee Majority Report) though it also cannot acknowledge General Dyer’s defense of the excessive violence as being required for creating the authority of the state.

In the colonial context, as Vinay Lal notes in the context of Hunter Committee Report on the “Crawling Order” that Dyer gave in response to the attack on a Missionary woman – Miss Sherwood, the Colonial Inquiry reports get the last word. ⁶² As he puts it: “It is not that colonialism does not allow the other to speak but rather that it reserves the last word for itself, reserving it by the process, as I have suggested, of constituting certain incidents as ‘events’ which are then inscribed into history.” ⁶³ In the postcolonial Lentin report, Visvanathan calls the Inquiry report a Great Indian Novel that is more “archives of democracy” than anything else. ⁶⁴ How does the Inquiry Commission report in the Thangjam Manorama case fare in terms of these characterizations? And more importantly, how does the Commission address questions of procedure and violence?

IV. Distinguishing the Colonial and the Postcolonial

Hussain argues that the tension between political exigency and the rule of law sometimes results in limits on justification of excessive violence in the colonial context; he also recognizes that despite a combination of sovereignty and governmentality in colonial rule, the rule of law remains mostly procedural than substantive because of racial hierarchy and colonial difference. Such insights would be, at first glance, compatible to a reading of the AFSPA operating in the Northeast as an example of colonial practices continuing in postcolonial contexts. Scholars have consequently attempted to understand the region and the introduction of the Act more in terms of state of exception where ordinary laws are suspended and instead laws such as the AFSPA operate with impunity against particular people challenging the mainland Indian state. ⁷⁴

Yet there is a distinct aspect of this postcolonial strategy, which just doesn’t fit the exception argument. As Baruah notes, “the paradigm of the state of exception that has come to dominate the study of emergencies, and informs the model of derogation spelt out in human rights treaties, is clearly at odds with the institutional practices that shape the AFSPA.” ⁷⁵ The Indian Constitution does have the provisions for the declaration of an emergency. While mostly it is used to declare emergency when there is an external aggression, there has been at least one instance when internal disturbances was used as a pretext to declare an emergency in 1975–77. Indeed, it was one of the more difficult periods of Indian politics and society since fundamental rights and liberties of citizens were completely undermined legally. ⁷⁶ Thus, a major argument in the legal discussion on the constitutionality of the AFSPA has been on why emergency provisions of the Indian Constitution have not been used in the Northeast instead of introducing this Act. The postcolonial state had a difficult role to play in this scenario because it could not admit this area could be declared under emergency either due to armed rebellion that threatens the security of the country (Article 352) ⁷⁷ or internal disturbance (Article 356) that allowed the President to take over the governance of a state. Instead, it had to come up with a different way to argue the constitutionality of the Act. Ultimately, the Act is justified under Article 355, and Entry 2A of List I of the Seventh Schedule to the Constitution that the Union Government can in the event of internal disturbance intervene in order to enable military aid to civil power as a way to justify the AFSPA. ⁷⁸

One of the reasons the postcolonial state may have resorted to this kind of reasoning is to avoid questions raised by obligations under the International Convention on Civil and Political Rights (ICCPR) which requires that public emergency be declared, exceptional and temporary and with safeguards (that the Indian Constitution also requires). The Indian government insists that the AFSPA doesn’t come under the emergency provision. ⁷⁹ As Baruah explains, “The AFSPA permits a localized form of indefinite emergency rule; but since it is not called that it is not subjected to the limits that democratic constitutionalism seeks to impose on emergencies.” ⁸⁰

Thus, following Baruah’s argument, and Nasser Hussain’s very creative use of the term “hyperlegality” in his essay on Guantanamo I argue that any attempt to analyze cases such as Thangjam Manorama’s and spaces such as the Northeast as examples of state of exception as many scholars have done does not actually address the complexity of the situation. ⁸¹ As Nasser Hussain notes, Guantanamo is more of a legal loophole than a “legal black hole.” Deploying the term “hyperlegality,” he explains, “It is empirically the case that what one witnesses in contemporary emergency is a proliferation of new laws and regulations passed in an ad hoc or tactical manner, administrative procedures, and the use of older laws and cases tweaked and transformed for newer purposes.” ⁸² Hussain helps us recognize that old-style suspensions on law for a brief period of time is not actually what is occurring in these spaces just as AFSPA is not a declaration of the martial law. Rather what you see is proliferation of classifications and procedures that represent hyperlegality.

Baruah quotes Hussain in explaining why the colonial strategy may fail in postcolonial contexts: “how feasible is a counterinsurgency strategy without the support of colonial institutions and practices?” ⁸³ This view assumes “a closed economy of transgression and punishment, disturbance and the restoration of order.” ⁸⁴ In the absence of such colonial continuity, the reading of the legal cases and reports in the postcolonial context may actually reflect a particular kind of tension that may be becoming more unsustainable over time. In other words, I ask whether the tension between a colonial strategy and postcolonial constitutional order that has to consistently confront the challenges posed by excessive violence have the ability of creating a fissure in the relationship between law and violence? I examine whether the explanations that have been previously given to sustain the defense of the AFSPA (for instance by the Supreme Court in its 1997 judgment upholding the constitutionality of the Act) are intentionally or unintentionally undermined by the Thangjam Manorama Report in 2004, the Jeevan Reddy Committee Report in 2005 and the 2016 judgment insisting on the need to inquire into fake encounters in Manipur. ⁸⁵

Despite the inability to consider the Act as similar to declaring an emergency, the state still needed to explain why exceptional powers were given to military forces in the disturbed areas and the routine powers within the criminal procedure code weren’t adequate. Thus, there are some interesting ways in which it acknowledges the internal disturbance and the presence of armed groups but simultaneously tries to contain the boundaries of the Act as not representing an emergency. For instance, the Jeevan Reddy Committee in 2005 notes,

It must be recognised, at the same time, that the deployment of armed forces or para military forces of the Union to restore public order in any part of the territory of India, or to protect a State from internal disturbance is, and ought to be, an exception and not the rule … the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve. Such exposure for long periods of time may well lead to the brutalisation of such forces – which is a danger to be particularly guarded against. ⁸⁶

And such a conceptualization about this Act as being an exception needs to be balanced with the Committee’s concern about the inadequacy of existing provisions of the Criminal Procedure Code to deal with disturbances to justify a permanent legal provision.

These are situations, which arise unexpectedly or on account of a sudden incident or event like the examples stated above {referring to riots}. Such situations must be distinguished from those arising in the North Eastern States like Manipur, Nagaland or Assam where the militants not only challenge the authority of the State but by their composition, strength, aims and objectives present a problem which is spread over a large geographical area and is long term in nature. In situations of the latter kind, the provisions of the Criminal Procedure Code would not be adequate. A permanent legal provision would be required which permits the army and the other Central forces to operate over an extended area and time period – of course, consistent with the rights and interests of the citizens and the security of the State. ⁸⁷

Thus, while acknowledging the use of armed forces should be an exception not a rule because of its danger of brutalisation, the report simultaneously notes the need for a permanent legal provision that is required to show the inadequacy of the existing criminal procedure provisions. ⁸⁸ Baruah calls it a circular argument “… that AFSPA and the legal immunities for armed forces are necessary so long as there are situations that, in the government’s judgment, require the ‘use of armed forces in aid of the civil powers.’” ⁸⁹

However, here I want to depart a little from both Hussain and Baruah to think about whether in the postcolonial context, this contestation between two versions of hyperlegality – one that accepts the logic of the national security regime allowing for unrestricted discretion and the other that constantly tried to bring it within the purview of constitutional protections – has the potential of unraveling over time at least at the level of the legal discourse. The 1997 judgment of the Court upholds the constitutionality and mostly the competence of the Union to introduce such a law even while accepting the integrity of the provisions such as Section 4 that gave wide-ranging powers to use force. As Kikon captures this conception more generally, “Under the AFSPA, the state legitimises lawlessness through legal decisions and establishes them as precedents.” ⁹⁰ By 2005, the Jeevan Reddy Committee is willing to acknowledge the need to repeal the Act even though it ends up recommending another extraordinary law – the Unlawful Activities Prevention Act – that has been the subject of much criticism. But the recommendation for repealing AFSPA, for the most part, is based on the argument that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.” ⁹¹ This language and legal moment reflects a strong rebuttal of the state narrative. In the Thangjam Manorama case, which is also the pretext for the Jeevan Reddy committee in 2005, you also see the two contestations of hyperlegality. The Assam Rifles emboldened by the impunity of national security regimes merely think that the classification of Manorama as a militant and justification of an encounter of her escaping alongside a sanction clause is adequate for the closure of the case. The Commission instead resists that by suggesting that procedurally the armed forces failed to follow the rules and regulations that emerge from the routine context such as the D K Basu case. In other words, even if the Thangjam Manorama report intended to focus only on procedural violations, it ended up undermining the arguments used in defending the AFSPA regime at least in this particular case.

The 2016 Supreme Court judgment also does not address the constitutionality of the Act but considers the extrajudicial executions committed in its name, and the Court is even willing to acknowledge that “(t)he deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period.” ⁹² Once again the skepticism of the Court is apparent here and in other parts of the judgment.

Even though national security legislations are allowed due to the preventive detention provisions of the Indian Constitution, the Courts have increasingly struggled with questions of excessive violence. ⁹³ And even with the most egregious Section 4 of the AFSPA allowing the use of force, the legal discourse consistently notes that it has to be minimal force. Indeed it is the challenge of combining civil and military power – use of constitutional and procedural mechanisms from ordinary criminal procedure code and the national security legislations – that make it a little difficult to sustain the excessive force. The language of state of exception and suspension of law sometimes takes away from both what is occurring in terms of legal practice but also in terms of the state’s own inability to separate the routine from the more exceptional contexts which is particularly relevant in the postcolonial context. Thus, while the exception is meant to capture a suspension of law or a threshold space both inside and outside that is difficult to demarcate, what is accommodated within the law and determined and contested procedurally is much more significant than what is captured by a state of exception formulation.

Thus, despite the limits of both the Jeevan Reddy Report and the Thangjam Manorama Report, the postcolonial state was hesitant to release both reports due to their intentional or unintentional undermining of the AFSPA legal regime. The former was leaked to a newspaper and the latter was only shared once the Court insisted. Furthermore, the AFSPA continues to be under attack in the ongoing Supreme Court case on encounters;

To this we may add that ordinarily our armed forces should not be used against our countrymen and women … If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are “enemy” not only the rule of law but our democracy would be in grave danger. ⁹⁴

Until the reality of tortures, fake encounters and custodial deaths in practice are challenged, and the extraordinary law repealed, the significance of such words is limited. What remains perhaps is recognition of the fissure in the legal discourse that at the very least indicates the postcolonial state’s more difficult relationship with rule of law, violence and the exception. Even though the Thangjam Manorama Inquiry Report was sought to be similar to a Great Indian Novel as the Lentin Report that Visvanathan writes about – to be tucked away as “archives of democracy,” it did not remain secret and in the process continues to unravel the state narrative on the excessive violence enabled by the AFSPA.