It is more than clear now that a timely and satisfactory resolution of the case of 1528 fake encounter killings in Manipur in counterinsurgency operations by the Army, Police and Central Paramilitary Forces, is not going to be easy. Inspite of two stiff directives from the Supreme Court to lodge First Information Reports, FIRs, on 42 of these cases currently being investigated by the Special Investigation Team, SIT of the Central Bureau of Investigation, SIB, there seems to be little or no progress. Obviously, the CBI is running into hurdles or else has developed cold feet. Insider reports say the premier investigative agency has so far managed to file only 12 FIRs but these were not against the perpetrators of the alleged fake encounters but against the victims, therefore virtually an endorsement of the original FIRs filed by the police in these cases. What exactly is happening can only be a matter of speculation and conjecture, but some of the difficulties seem obvious. For one, it is difficult not to believe there would be political pressures on the investigators to go slow or even to make the investigations ineffectual. It is everybody’s knowledge there are some very high stake players as would be in any situation of prolonged violent civil strife in which the State was pitted against militant challengers to its authority. The world has seen many civil wars in the past, and it has always been difficult, if not impossible, arbitrating justice at the end of them. As in all these cases, the Indian State’s excuse has been, and still would be, that the State was protecting itself and therefore justified in resorting to extreme means. In all likelihood, intuitively, as part of the establishment themselves, some or many amongst the investigators too would be sympathetic to this argument, complicating the matter of justice delivery even further.
Understandable as this outlook is, nothing can be more false from the standpoint of constitutional law of a working democracy. The social contract that keeps a democratic society healthy and working is for everybody to place their faith in the law that is institutionalized in the constitution, and if any law needs to be changed or dropped, it against has to be by the prescribed procedures of the same constitutional law. The democratic constitution is an institution which can alter itself as per institutionally established will of its people. The faith is also only if everybody, including the State and its machineries, keep by the standard set by the constitution, will democracy work and democratic justice, and peace that is its reward, become the norm. By this constitutional law and by the democratic jurisprudence anywhere in the free world, killing in custody without trial by a competent court, is crime. Since insurgency is a law and order problem by the Indian State’s own insistence, there can be no other way than for its constitution law to arbiter any matter arising out of it. If on the other hand, this was to be treated as war, then international laws that define acceptable conducts of war, would come to apply, and though custodial killing would still be considered war crimes, there would differences in the acceptable standards of violent means used.
Crimes of civil wars have always been difficult to arbiter in history. But there have been exemplary approaches, and none so magnanimous and effective than in South Africa, all thanks to some enlightened leadership, most of all that of Nelson Mandela. The Nobel Prize for Peace winner came out with the notion of a “Truth and Reconciliation Commission” to first establish the truth of all the crimes committed, and for those who are genuinely remorseful think of a new retributory norm informed by forgiveness. Another great South African, Bishop Desmond Tutu, 15 years Mandela’s junior, in his book “No Future Without Forgiveness” describes Mandela’s justice as “restorative justice” and not “retributive justice” for the latter in the aftermath of severe and violent civil wars would tear apart the societies even further. Restorative justice on the other hand is served “when efforts are being made to work for healing, for forgiveness and for reconciliation.” This does not however mean war crimes will be forgiven just because the criminals confess. But it does mean their penalties will be more moderate and humane. In some ways, we have seen how “Truth and Reconciliation” works in the manner the public were willing to forgive the hard core killer, head constable Th. Herojit, all because he found remorse and publicly confessed the wrongs he did. He will remain a criminal in the eye of the law for all he did, but morally he has been absolved to a great degree in the eye of the ordinary people, of the revulsion he would have been burdened with had he not repented. The Supreme Court has in this case indicated it is aware of the moral dilemma this case would be torn by, and has even suggested an approach based on “Truth and Reconciliation”. The CBi hence should take the cue, and for now work to establish the truth first. Leave the penalty to the Supreme Court pronounces, if any is found to deserve it, but this will likely be informed by the spirit of Mandela. There probably is no other way. There is however one more foreseeable problem. Truth and reconciliation represents a mellowing down of animosity, and the need to buy lasting peace through forgiveness at the end of a violent internal strife. In Manipur’s case, the strife is far from over yet.