GENDER BASED SEXUAL VIOLENCE IN NORTH

EASTERN CONFLICT ZONE OF INDIA:

UNDERSTANDING INSTITUTIONAL IMPUNITY

Dissertation submitted in part fulfilment for the requirement of the Degree of

LL.M.

Submitted by: Supervised by:

ADITYA RAWAT DR. VINOD KUMAR

NATIONAL LAW UNIVERSITY

DELHI (INDIA)

2019
 GENDER BASED SEXUAL VIOLENCE IN NORTH
EASTERN CONFLICT ZONE OF INDIA:
UNDERSTANDING INSTITUTIONAL IMPUNITY

Dissertation submitted in part fulfilment for the requirement of the Degree of

LL.M.

Submitted by: Supervised by:

ADITYA RAWAT DR. VINOD KUMAR

NATIONAL LAW UNIVERSITY

DELHI (INDIA)

2019
 DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “Gender Based Sexual Violence in North
Eastern Conflict Zone of India: Understanding Institutional Impunity” submitted at is
the outcome of my own work carried out under the supervision of Dr. Vinod Kumar,
Associate Professor, National Law University, Delhi.

I further declare that to the best of my knowledge the dissertation does not contain any part of
work which has been submitted for the award of any degree either in this University, or any
other institutions without proper citation.

Aditya Rawat (07LLM18)

National Law University, Delhi

Place: New Delhi

Date: 21-05-2019

ii
 CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. Dissertation entitled “Gender Based

Sexual Violence in North Eastern Conflict Zone of India: Understanding Institutional

Impunity” submitted by Mr. Aditya Rawat at National Law University, Delhi is a bona

fide record of his original work carried out under my supervision. To the best of my

knowledge and belief, the dissertation: (i) embodied the work of the candidate himself; (ii)

has duly been completed; and (iii) is up to the standard both in respect of contents and

language for being referred to the examiner.

Dr. Vinod Kumar

Associate Professor,

National Law University, Delhi

Place: New Delhi

Date: 21-05-2019

iii
 ACKNOWLEDGMENT
First and foremost, I would like to thank my mentor and Supervisor – Dr. Vinod Kumar for
his immense guidance and support during the research and writing of this dissertation. I am
extremely grateful to him for introducing me to this research area and providing me with the
opportunities and encouragement to further my understanding of the complexities and
particularities of this topic.

I am highly indebted to the faculty and administration of NLU Delhi in general for providing
me with the resources – both material and immaterial, as well as the opportunities to hone my
research skills without which this dissertation would not have been made possible. In this
regard, I am also thankful to the library team for making the resource-based infrastructure
accessible and creating an environment that greatly encouraged me in this endeavour.

I would like to take this opportunity to express my gratitude for all those people who
supported in my odyssey from Deloitte to LLM. Global leadership of Deloitte especially my
mentors, Kim Danbee, Ritesh Mohanty, Carrie Bowker, Kathleen Maloney and colleagues
like Ankita Padhi & Behnusch Abdolrahimi provided me with impetus to look beyond my
cabin and inspired me to fulfil my academic aspirations. Strength that I drew from them is
beyond my vocabulary of gratitude.

On similar note, I feel highly indebted to all my course mates in NLU Delhi. Divyanshu
Chaudhary, Ankit Kaushik, Subhashini Narayanan, Aakanksha Mishra, Anam Mackay and
Bedhpriya Lahiri went out of their way in assisting and providing feedback for the work.

I would also like to thank my parents and my siblings. Without their continual support and
understanding, the outcomes of this dissertation would not be the same.

Last but not the least, I would like to dedicate my dissertation to all defenders of human
rights and all those who are resisting against impunity.

Aditya Rawat (07 LLM18)

iv
 LIST OF ABBREVIATIONS

ABSU All Bodo Students Union

AFSPA Armed Forces (Special Powers) Act
AGP Assam Gono Shangram Parishad
BAC Bodoland Autonomous Council
BSF Border Security Forces
CEDAW Committee on the Elimination of Discrimination against Women
CHRC -JGU Centre for Human Rights Studies, OP Jindal Global University
CRPF Central Reserve Police Force
DGP Director General of Police
EEVFAM Extrajudicial Execution Victim Families Association, Manipur
EPW Economic and Political Weekly
FIR First Information Report
GBSV Gender Based Sexual Violence
HC High Court
HRA Human Rights Alert
HRLN Human Rights Law Network
ICC International Criminal Court
ICJ International Court of Justice
ICL International Criminal Law
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for Yugoslavia
J&K Jammu and Kashmir
KCP Kangleipak Communist Party
KNF Kuki National Front
LTTE Liberation Tigers of Tamil Eelam
MHA Ministry of Home Affairs
MISA Maintenance of internal security Act, 1971
MoU Memorandum of Understanding

v
NDFB National Democratic Front of Boroland
NER North Eastern Region
NIA National Investigative Agency
NIAC Non-International Armed Conflict
NNC Nagalim National Council
NSA National Security Act of 2008
NSCN-IM National Socialist Council of Nagalim (Issac-Muivah)
PIL Public Interest Litigation
PLA People's Liberation Army
POTA Prevention of Terrorism Act, 2002
PREPAK The People's Revolutionary Party of Kangleipak
RIMS Regional Institute of Medical Science, Imphal
SATP South Asia Terrorism Portal
SHRC State Human Rights Commission
SVI Sexual Violence and Impunity
TADA Terrorist and Disruptive Activities (Prevention) Act
UAPA Unlawful Activities (Prevention) Act
UIP Understanding Impunity Project
ULFA United Liberation Front of Assam
UNESCO United Nations Educational, Scientific and Cultural Organization
UNHRC The United Nations Human Rights Council
UNLF United National Liberation Front
UNSC United Nations Security Council
UNSCR United Nations Security Council Resolutions
VAWW-NE Asia-Japan Women's Resource Center Violence against Women in War-
Network. Japan

vi
 LIST OF CASES

1 A.K. Roy V. Union of India, AIR 1982 SC 710

2 AK Gopalan V. State of Madras 1950 SCR 88.
3 Col. Jagmohan Singh and Ors. Vs. The State of Manipur and Ors. AIR 2006 Gau 33.
4 Extra Judicial Exec. Victim Families Association & Anr. Vs. Union of India and Ors.
W/P (Criminal) 125554 of 2018.
5 G.N. Saibaba Vs. State of Maharashtra And Ors. MANU/MH/0702/2019.
6 Haradhan Saha V. State of West Bengal AIR 1974 SC 2154
7 Kartar Singh V. State of Punjab (1994) 3 SCC 569.
8 Manipur Baptist Convention and Anr. Vs. Union of India and Ors. (1988)1GLR433
9 Naga Peoples Movement for Human Rights (NPMHR) Vs. Union of India and Ors.
(1988)1GLR139
10 Naga’s People Movement of Human Rights V. Union of India AIR 1998 SC 431
11 Niloy Dutta V. Dist. Magistrate and Ors. 1991 CriLJ 2933
12 People’s Union for Civil Liberties and Another Vs. Union of India (2004) SCC 580
13 The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial
Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 22 February 2001.
14 The Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal
Tribunal for the former Yugoslavia (ICTY), 15 July 1999.
15 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International
Criminal Tribunal for Rwanda (ICTR).
16 The Prosecutor v. Mikaeli Muhimana (Judgement and Sentence), ICTR- 95-1B-
T, International Criminal Tribunal for Rwanda (ICTR), 28 April 2005.

vii
 LIST OF TABLES

Table Number Caption Page Number

3.1 Terrorist, Insurgent and Extremist Groups in 29
NER.
4.1 Constitutional adjudication on Security 49
Legislations

viii
 LIST OF FIGURES

Figure Number Caption Page Number

1.1 A comfort woman statue sitting in front of the 10
Japanese Embassy in Seoul.
1.2 Conflict map of South Asia 16

3.2 Proposed map of Nagalim (NSCN-IM) 36

3.3 British Province of Assam 38

4.2 Nude Protest by mothers of Manipur 53

ix
 TABLE OF CONTENTS
TITLE Page Number
DECLARATION BY THE CANDIDATE ii
CERTIFICATE OF SUPERVISOR iii
ACKNOWLEDGMENT iv
LIST OF ABBREVIATIONS v
LIST OF CASES vii
LIST OF TABLES viii
LIST OF FIGURES ix
TABLE OF CONTENTS x
INTRODUCTION 1

CONTEXT AND GENERAL BACKGROUND 1

LITERATURE REVIEW 3
STRUCTURAL LAYOUT 6
OBJECTIVE 7
METHODOLOGY 7
SCOPE AND CHALLENGES 8
PART I – CONTEMPORARY INTERNATIONAL 9

LEGAL FRAMEWORK AND GBSV IN INTERNAL

CONFLICTS IN SOUTH ASIA
1.1 International Regime Before Breakdown of Yugoslavia 9
1.2 Post 1990 And Current International Criminal Law (ICL) 11
Jurisprudence
1.2.1 ICTY, ICTR AND Establishment of Rome Statute 12
1.2.2 International Regime In 21st Century 13
1.2.3 Principle of Reparation 15
1.3 Brief Overview of Contemporary Armed Conflicts in South Asia And 15
Distinct Nature of These Conflicts
1.4 Concluding Remark on Part I 18
PART II UNDERSTANDING IMPUNITY IN INDIA: 19

CONCEPT AND OVERVIEW OF SECURITY

x
LEGISLATIONS IN INDIA
2.1 Meaning of Impunity 19
2.2 Impunity in India 20
2.2.1 Colonial Precursors 20
2.2.2 Early Security Legislations Post-Independence 21
2.2.3 AFSPA 21
2.2.4 TADA and Subsequently POTA 24
2.2.5 UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 25
2.2.6 MISA AND NATIONAL SECURITY ACT, 1980 26
2.3 Concluding Remarks on Part II 26
PART III - GENDER BASED GBSV (GBSV) IN NORTH EASTERN 28
CONFLICT ZONE OF INDIA
3.1 Introduction to NER And Overview of Conflicts 28
3.2 MANIPUR 30
3.2.1 Case Study of Thangjam Manorama (GBSV-1) 31
3.2.2 Case Study of Sanjita Devi case (GBSV-II) 33
3.2.3 Case Study of Maibam Naobi Chanu (GBSV-III) 33
3.2.4 Some other pertinent Case Studies (GBSV IV & V) 34
3.3 NAGALAND 34
3.3.1 Case Study of Rose (GBSV VI) 36
3.3.2 Oinam case (GBSV VII) 37
3.4 ASSAM 37
3.4.1 Case Study of Snehalata Duara (GBSV VIII) 40
3.4.2 Case Study of Roshmi Bora (GBSV IX) 41
3.4.3 Case Study of Karbi Anglong minor rape (GBSV X) 41
3.4.5 Some other Case Studies (GBSV XI & XII) 41
3.5 CONCLUSION 42
PART IV – CONFRONTING GBSV AND INSTITUTIONAL 43
IMPUNITY IN CONFLICT ZONES (CAUSES AND CRITICISM
OF INDIAN ENGAGEMENT)
4.1 – CAUSES 43
4.1.1 GBSV as political and cultural tactic of war 43

xi
 4.1.2 Silence/ Silencing of GBSV in conflict zones 44
4.1.3 Normalization of GBSV in Conflict Zones 45
4.1.4 Gender Inequality and Patriarchy 45
4.1.5 Contesting Ideologies and Politics: We Versus Other 46
4.2 - Analysis of India’s Engagement with GBSV And Impunity 48
4.2.1 Failure of legal and constitutional framework to respond to 48
GBSV in conflict zones
4.2.2 Reparation in Regimes of Impunity 50
4.2.3 Politics of Nationality 51
4.2.4 Lack of Women Participation 51
4.2.5 Resistance against GBSV and militarization in North East 51
4.2.6 Sexual Violence of men and children 54
CONCLUSION AND RECOMMENDATIONS 55
BIBLIOGRAPHY 59
BOOKS 59
STATUTES/ LEGISLATIONS/ TREATY 60
REPORTS /COMMITTEE 62
ARTICLES/ JOURNALS 63
NEWSPAPER/ MAGAZINES/ INTERNET SOURCES 64

xii
 INTRODUCTION

CONTEXT AND GENERAL BACKGROUND

The concluding scene in Saddat Hassan Manto‘s ―Thanda Ghost‖ wherein protagonist Ishwar
Singh is about to die from a dagger attack (Kirpan) by his wife Kulwant, confesses that he
participated in rioting in post partition communal violence and on one such attack on a
Muslim house, killed 6 men and abducted the ‗beautiful‘ female with intention to rape her.
While he was raping her, he figured that she was dead and he was raping a cold meat.1 This
fictional writing is a crude reflection of how culture of rape during periods of conflict is
synonymous with victor takes the spoils. It reflects a larger societal acceptance that classifies
rape as an ―inevitable by-product of war, random acts of few renegades or mere collateral
damage‖.2 Women on either frontier of both newly constituted nations (India and Pakistan)
faced brutalities caused by deadly combination of religion and anger of retribution. 3 Sexual
Violence is an integral part of partition pertaining literature. Ironically, more than 70 years
later and injustice done to them was never redressed and never brought to forums of justice.

Gender-based Sexual Violence (hereafter referred as GBSV) are historic weapons of warfare
and are one of the defining characteristics of any armed conflict. GBSV in conflict zones has
often been referred as ―history‘s greatest silences‖.4 It is a shame that women & children have
become eternal victims of GBSV, in the hands of men in conflicts that men starts and
humanity endures.5 At the onset, it becomes important to point out that GBSV is not
exclusive to domain of armed conflict zones. In India, GBSV is prevalent in almost all forms
of conflicts. Sexual atrocities committed in partition is a trademark example of communal
conflict. Similarly, recent Khairlanji atrocity resonates that GBSV is widespread in caste
conflicts. In Khairlanji, Dalit mother and daughter were stripped, paraded naked, raped and

1
SADDAT HASSAN MANTO, MANTO: SELECTED SHORT STORIES (2012).
2
Bharat H Desai & Balraj K Sidhu, Sexual Violence in Conflict Zones – A challenge for international law LLI
EPW 15 (2017).
3
Id.
4
UN Women, Addressing Conflict related Sexual Violence – An Analytical Inventory of Peacekeeping Practice
14 (2012).
5
Chile Eboe-Osuji, The International Law and Sexual Violence in Armed Conflicts Brill (2012).
https://www.jstor.org/stable/10.1163/j.ctt1w76w29.6.

1|Page
later killed by mob. It was followed by victory procession and dumping of the bodies in
canal.6

For the purpose of dissertation, my primary focus would be to critically study GBSV in North
Eastern conflict zone of India and endorsement of institutional impunity. For the
aforementioned purpose, identified conflict zones are: Manipur, Nagaland, and Assam. I am
analysing GBSV in light of institutional impunity as a counter insurgency methodology by
state and how such institutional impunity measures are endorsed by constitution in spite of
direct contradiction of constitutional norms of Indian modern state. Most of the case studies
covered revolved around GBSV perpetuated by State Actors (Army). Though, GBSV from
the belligerents is also discussed in brief.

6
ANAND TELTUMBDE, KHAIRLANJI: A STRANGE AND BITTER CROP (Navayana Publications, New
Delhi 2008).

2|Page
LITERATURE REVIEW

Diverse contemporary literature pertaining to GBSV and conflict zones was analysed for
purpose of this dissertation. I have classified my literature review under following headings
and will be mentioning prominent works under them.

 GBSV in International Legal Regime.

 Impunity and GBSV in India.
 Understanding NER Region.

GBSV in International Legal Regime

International jurisprudence was done through comprehensive analysis of literature developed

before and post breakdown of Yugoslavia. Analysis of Tribunals‘ jurisprudence especially
ICTY, ICTR, Statute of ICC formed integral part of understanding sexual violence in 21st
Century conflicts. Meron’s work (1993) is of utmost importance to understand rape as a
crime under IHL framework especially because it laid down fallacies in contemporary IHL
during mass ethnic violence in Bosnian War.7

Office of the Special Representative of the Secretary General on Sexual Violence in

conflict is playing pivotal role in jurisprudence pertaining to GBSV and their work on it is
worth admiration. Their reports have led to leading UNSC resolutions on the topic and are
leading source of GBSV discourse in conflict ridden societies.8 Other reports and declarations
(Vienna declaration, Beijing Declaration, etc.) are also insightful for engaging with the
subject.

Factfinding report on comfort women prepared by ICJ Jurists (1994) shifted the lens
from contemporary gender tones to silence prevailing over long overdue injustice and helpful
to gauge the deafening stance of governments in silencing and normalizing sexual violence as
a collateral damage in conflicts.9

Similarly, S.E. Merry’s work (2006) engages with how transnational norms of human rights
in light of sexual violence are interpreted and received in municipal jurisprudence. She has
confronted tensions between global and local justice. The literature is helpful because this

7
Theodore Meron, Rape as a crime under International Humanitarian Law 87 American Journal of
International Law 424-428 (1993).
8
U N Security General, Conflict Related Sexual Violence: Report of the UN Secretary General S/2019/280
(March 29, 2019).
9
Ustinia Dolgopal & Snehal Paranjape, Comfort Women: An unfinished ordeal – Report of a mission ICJ
Geneva (1994).

3|Page
tension is at focal point of my dissertation especially when dimension of impunity enters into
picture.10

Impunity and GBSV in India

For understanding impunity in India, celebrated book by Late Kannibaran (2004) is a good
starting point.11 The books take you through the odyssey of development of impunity from
colonial times to modern nation of India. Though the work is of utmost significance to
understand the meaning and development of impunity especially with regard to preventive
detention and Anti-terrorist laws. The book lacks literature on interplay between GBSV and
Impunity which shows dearth of acknowledgment of the offence in Indian system.
Considering that the literature covered almost all other aspect of human rights and effect of
impunity on it, one can‘t help but wonder as to why Kannibaran shied away from writing
about GBSV. Her daughter‘s work, Women and Law (2014) is a significant contributor in
corpus of Feminine jurisprudence and gives us a different perspective of looking at GBSV
through feminist jurisprudence.12

Second remarkable contribution in field of impunity was done by Ram Narayan Kumar. His
field work (UIP Project) and academic work on impunity is praise worthy. The project
manifested in form of book edited by Navsharan Singh and Patrick Hoening in 2014
which is of great help for my dissertation. Especially empirical work done by the team is
noteworthy and takes discourse over GBSV outside realm of law in book and amidst
pragmatic reality of culture of impunity.13

Feminist Jurisprudence over GBSV in India is a refreshing look at the topic and contributions
of Urvashi Butalia and Uma Chakravarthy are noteworthy. Literature coming out of
Urvashi Butalia’s Zubaan publications (since early 2000s) are one of the most insightful
work done on GBSV and extremely beneficial starting point for anyone who wants to
understand sexual violence and impunity in India.14 Similarly her project SVI supported by

10
SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE (OXFORD UNIVERSITY
PRESS, 2006).
11
K.G. KANNIBARAN, THE WAGES OF IMPUNITY: POWER, JUSTICE AND HUMAN RIGHTS (Orient
Longman 2004).
12
KALPANA KANNIBARAN, WOMEN AND LAW: CRITICAL FEMINIST PERSPECTIVES (Sage
Publications, 2014).
13
PATRICK HOENING & NAVSHARAN SINGH, LANDSCAPES OF FEAR - UNDERSTANDING
IMPUNITY IN INDIA (Zubaan Publications, 2014).
14
PREETI GILL (ED.), THE PERIPHERAL CENTRE: VOICES FROM INDIA‘S NORTH-EAST (Zubaan
Publications 2010).

4|Page
IRDC came up with literature which was done on case study basis and examined the GBSV
in great details.15

For purpose of understanding impunity, I also went through constitutional adjudications

pertaining to special security legislations, cases wherein human rights violations were pitted
against State security questions. Jurisprudence over the topic is an important source of
literature because it helped me to analyse the fallacies in contemporary legal and policy
framework in India.

Understanding GBSV in NER Region

For purpose of understanding political landscape and developments of insurgency in NER, I

have relied heavily on literature of Sanjib Baruah. Sanjib Baruah is widely respected
authority on NER. The beauty of his work lies on the fact it is quite invigorating in its attempt
to not only understand the complexities of NER but also seek out for pragmatic solutions.
Some of other noteworthy works on North East politics are done by Appadurai (2006),
Jaswant Singh (1984), etc. 16

For understanding interplay between impunity and GBSV in NER, I have relied heavily on
case studies, reports of independent organizations, Special Rapporteur of UN Reports, HRLN
critique of special legislations in NER, etc.

It will be not fair to comment that there is a dearth of contemporary literature on GBSV in
Conflict zones of India. However, literature coming out of NER is scarce in spite of impunity
expressing itself in most brutal form. It was not until iconic ‗Meira Phabies‘ naked march
and Irom Sharmila‘s hunger strike that compelled the academicians and feminist activists to
explore the avenue of NER and its plight with lot of scholarly lacuna still present in study of
NER as a conflict zone.

15
ESSAR BATOOL ET AL, DO YOU REMEMBER KUNAN POSHPORA? (Zubaan Publications 2016)
16
Arjun Appadarai, Disjunction and Difference in THE POST COLONIAL STUDY READER 468-470 (2006); Jaswant
Singh, Assam's Crisis of Citizenship: An Examination of Political Errors 24 Asian Survey 1056 (1984).

5|Page
STRUCTURAL LAYOUT

The dissertation is broadly classified into IV parts (excluding introduction and conclusion).
Part I talks about development of International Legal regime in light of GBSV in conflict
zones from World War II to post Balkan war. Some of pertinent international instruments
discussed in it are UNSC Resolutions on Sexual Violence, CEDAW etc; International
Tribunals and Statutes such as ICTY, ICTR & ICC. The Part concludes with brief overview
of contemporary armed conflicts in South Asia and gendered overtones of such conflicts and
how such conflicts are distinct from other armed conflicts in Africa, eastern Europe, etc.

The second part engages with concept of institutional impunity and its development in
modern state of India. It is followed by examination of special security legislations in India
(AFSPA, TADA, POTA, NIA, etc) and criticism of contemporary regime of security
legislations in their endorsement of culture of impunity.

The third part analyses instances of GBSV and institutional impunity to perpetrators in North
East (NER). For purpose of understanding the conflict in North Eastern India, I intend to
historicize the conflict and study the gender tones of it.

GBSV is looked through twelve case studies featuring some of prominent cases such as -
Rose- rape of a minor girt, Operation ‗Oinom‘, Thangjam Manorama, Sanjita Devi, Roshmi
Barua, Snehalata Duara, etc. to elucidate the lack of accountability on part of institutions and
illusive justice.

The fourth part summarizes causality of GBSV and culture of impunity (GBSV as a political
and cultural tool of war, contesting ideologies, normalization of sexual offences in conflict
zones, etc.). In the latter half, I will engage with criticism of contemporary Indian legal and
policy framework of impunity from point of view of Indian judiciary, Constitutionalism, lack
of recognition of role of women in conflict, resistance movements, etc.

The last part is conclusions and recommendations drawn on based of study of GBSV and
conflict zones in India. It is divided under three disciplines – recommendations pertaining to
legal framework, policy driven recommendations and social frame work based
recommendations.

6|Page
OBJECTIVE

The primary objective of this study is to go on a quest of understanding different facets of

GBSV in conflict zones and why it remains a neglected crime in spite of international
awakening towards it. Secondly, the study is intended to examine nuances of existing
institutional impunity and overtly gender tones of such impunity which is a facet of manifest
injustice. And Lastly, is it possible to develop further or enhance municipal jurisprudence in
India to curb sexual atrocities in internal conflicts and combat institutional impunity; hence
deterring against such violence in future and better protection of women?

Rationale behind my objective is twofold: (i) Constitutional endorsement of such impunity is

against the constitutional values of Indian modern state and (ii) is against the foundational
idea of dignity and respect as envisioned by global human rights‘ regime.

The above arguments are identifiable in the rationales in the remarks of Senator Joseph R
Biden Jr (as he then was), introducing a 1993 US Senate Judiciary Committee report on
reforms of existing rape laws in country.

―The knowledge that society and its criminal justice system offer no real protection has the
potential to victimize all women, forcing them to remain in abusive family situations, or to
circumscribe their activities, to accept limitations on how they conduct their lives, because of
fear. The stakes are high. If we do not succeed, we risk the faith of over half our citizens in
the ability—and the willingness—of our criminal justice system to protect them. And, what is
worse, we condemn future generations to accept not only the possibility of violence but the
reality of lives too often limited by the fear of violence‖.17

METHODOLOGY

The methodology adopted for the current study is Case Law Ethnography. It allowed me to
remove the veneer of legal discourse and attempts to build upon an argument that gender
violence in the conflict zones remains a marginalised area of concern in mainstream political
discourse.

SCOPE AND CHALLENGES

17
Judiciary Committee (US Senate), The Response to Rape: Detours on the Road to Equal Justice 103 Congress
1993.

7|Page
The landscape which I selected for my dissertation is of conflict zone of North-East Region
of India. In the proposed study, I would be analysing the voyage of gender violence incidents
which was allegedly perpetuated by the armed forces (cases concerning GBSV by
belligerents are also mentioned) and how institutional impunity given by special legislations
have earmarked the injustice committed.

Challenges

At the onset, it becomes important to state down the shortcomings of my enquiry. First and
foremost, familiarity with the concept of GBSV in NER is based on secondary resource and
available literature. Secondly, informative value of the case studies (GBSV I to GBSV XII) is
uneven. Some of the cases entered judicial discourse and hence information pertaining to
them are of sound nature. However, most of the cases are based on secondary data sources
and contain only skeletal information. Reason for including them is to acknowledge
ambiguity pertaining to their narratives and provide a platform to think about reporting of
those incidents. Thirdly, the study is conducted through intersection of legal regime and
human rights regime. Other disciplines integral to the study especially social, political
science, anthropology, etc. are merely touched upon. Lastly, alternative solutions are of
suggestive measure based on pragmatic failure of our legal system and constitution to address
the issue. I own that use of dissertation as an advocacy tool is very limited.

8|Page
PART I – CONTEMPORARY INTERNATIONAL LEGAL
FRAMEWORK AND GBSV IN INTERNAL CONFLICTS IN
SOUTH ASIA.

1.1 INTERNATIONAL REGIME BEFORE BREAKDOWN OF

YUGOSLAVIA

It is disheartening to note that sexual atrocities committed during World War II didn‘t receive
due recognition in tribunals (often criticised as victor‘s justice) which were constituted to fix
accountability of waging war. Rape was neither mentioned in Nuremberg Charter nor was it
prosecuted in Tribunal. No Nazis were prosecuted for rape under the Nuremberg Tribunal.
Control Council Law No. 10 expressly stated rape as a war-crimes but no one was prosecuted
for it.18 Similarly, Allied forces were given absolute impunity in waning days of the war. It is
estimated that around 100,000 women in Berlin and two million on German territory were
raped with impunity by members of the Red Army as it advanced on Berlin at the end of
World War II.19 Coming closer to our homeland, sexual atrocities done in second Sino-
Japanese war (Nanking Raping) was not only gruesome but reflective of how institutional
impunity can result in such brutalities. It is no surprise that it took 70 years and extra
governmental organization (VAWW-NE) to agitate against Japan to acknowledge
responsibility for mass rape and sexual slavery (―Comfort Women‖) during Imperial military
activity in World War II.20 The silence and denial of Japan speaks volumes of indifference to
the manifest injustice which happened in World War II.

18
Control Council Law No. 10, 145, Art II[1(b)]. https://www.legal-tools.org/doc/ffda62/pdf/.
19
Lucy Ash, The rape of Berlin, BBC News Berlin (2015). https://www.bbc.com/news/magazine-32529679.
20
Christine M. Chinkin, Women‘s International Tribunal on Japanese Military Sexual Slavery 95 American
Journal of International Law 335-341 (2001).

9|Page
 Fig 1.1 A comfort woman statue sitting in front of the Japanese Embassy in Seoul.

South Korea led the resistance on Japan‘s denial and constructed a statue (famously known as
Comfort Girl Statue) in front of Japanese embassy in Seoul. Similar comfort women statutes
were erected in San Francisco (USA), Hongkong, Manilla (Philippines) etc. In December of
2015, Japan entered into an agreement with South Korea. It agreed to acknowledge and
express regret for its role and provide 8.3 Million US$ to carry out joint functions for
addressing issues of comfort women. I am not going into intricacies of whether such
agreement is justified but my emphasis is on the aspect of struggle pertaining to mere
acknowledgment of incident over last 70 years.21

When we talk about armed conflicts, IHL supplemented by rules of customary humanitarian
law remain the relevant frame of reference for regulating behaviour in armed conflict.
Unfortunately, IHL regime vaguely considers sexual offences. Under a broad construction,
one of the first war instrument, Lieber Instructions gave capital punishment for rape.22 Article
46 of Hague Regulations (1907) if given broadest of interpretation would encompasses
rape.23 Post-World War II instruments, Geneva Conventions (1949) and Additional Protocols
I & II didn‘t provide tailored response to GBSV even after evident sexual atrocities
committed in it. GBSV is implicitly prohibited under Geneva conventions and protocols

21
Office of the High Commissioner (UNHR), Japan / S. Korea: ―The long-awaited apology to ‗comfort women‘
victims are yet to come‖ – UN rights experts Geneva (2016).
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17209&LangID=E.
22
Francis Lieber, Instructions for the Government of Armies of the United States in the Field, Art. 44, originally
published as U.S. WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE, GENERAL ORDERS No. 100
(Apr. 24, 1863), reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds.,
3d rev. ed. 1988).
23
"Family honour and rights, the lives of persons, and private property, as well as religious convictions and
practice must be respected." Convention Respecting the Laws and Customs of War on Land, with Annex of
Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [Hague Convention No. IV].

10 | P a g e
through ‗grave breaches‘ principle.24 With introduction of Protocol 2, regime entered space of
non-international armed conflicts (NIAC). Under grave breach philosophy, States are obliged
to search for and prosecute any individual who is alleged to have committed or ordered a
grave breach, regardless of the nationality of the suspect or victim or where the crime
occurred.25 One of oft quoted contention about failure of Geneva conventions in countering
GBSV lies in fact that GBSV was not considered specific crime and ignoring the concept of
bodily integrity reinforces that GBSV was considered a collateral damage.26 However, nature
of conflict (should be armed conflict in legal sense) and nationality conflicts became
prominent post world war 2 days and exposed the lacuna of protective provisions of IHL with
regard to GBSV in them. It is often argued that universal jurisdiction is a contentious concept
and that it has significant limitations in practical application.27

1.2 POST 1990 AND CURRENT INTERNATIONAL CRIMINAL LAW

(ICL) JURISPRUDENCE

Turning point for conflict related GBSV came in late 1990s post disintegration of
Yugoslavia. The disintegration was earmarked with sexual atrocities committed. It is reported
that Balkan conflict resulted in more than 1,100 instances of GBSV.28 It was a chosen policy
instrument in ethnic cleansing employed by Serbian forces during Bosnian war. It was a
defining moment and direct challenge was posited to International community to recognise
GBSV in war as a specific form of torture and pushed for setting up redressal forms for
punishing the perpetrators. It stirred the international community vis-à-vis the issue and gave
rise to regime of International Criminal Law (ICL).

Similarly, recordings of ample ad hoc international tribunals established for atrocities

committed in Rwandan Genocide clearly brings out a case for rape as genocide. Some of the

24
Common Article 3, Art. 27 of Fourth Geneva Convention, 1949; Articles 75(2) & 76 – Additional Protocol I
(1977) and Article 4 of Additional Protocol II (1979).
25
Arts 49 and 50 Geneva Convention I, Arts 50 and 51 Geneva Convention II, Arts 129 and 130 Geneva
Convention III, Arts 146 and 147 Geneva Convention IV (1949).
26
J. Gardam, Women and the Law of Armed Conflict: Why the Silence? 46 International and Comparative
Law Quarterly 55 (1997).
27
International Security Department & International Law Programme Meeting Summary, Sexual Violence in
Conflict: What use is the Law? Chatham House (2015),
https://www.chathamhouse.org/sites/default/files/field/field_document/20150123SexualViolence.pdf
28
UN Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993) [Contains text of the Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991], S/25704, (1993).

11 | P a g e
judgments coming out of tribunals engaged with jurisprudence over GBSV and are important
leading instruments for study (link between rape and ethnic cleansing; sexual enslavement
and rape as crimes against humanity, etc.).29 Some of the important events/ resolutions/
treaties showing development of policy pertaining to GBSV is briefly summarised below:

1.2.1 ICTY, ICTR and establishment of Rome Statute

As part of its response to conflict in former Yugoslavia, Security Council passed a resolution
and expressly stated about incidents of systematic rape of Muslim women in Bosnia and
Herzegovina. Yugoslav Commission in interim report stated that rape should be priority areas
of concern in ongoing investigations. In 1993, tribunal was constituted to establish
accountability and prosecute those suspected of committing violations of IHL. It was here
that for first time rape was included as a specific crime against humanity. 30 Since the
establishment of Tribunal, 78 individuals, or 48% of the 161 accused, had charges of GBSV
included in their indictments and as of latest data, 32 individuals have been convicted for
crimes of GBSV.31 Tadić became the first international war trial for GBSV against men.32

Similar to ICTY, genocide in Rwanda resulted in establishment of ICTR. It is estimated that

around million people were massacred by Hutu extremists.33 The ICTR is the first ever
international tribunal to deliver verdicts in relation to genocide. ICTR recognised rape as one
of forms of Genocide.

Adopted in 1998, the Rome Statute was one of the first international treaties to extensively
address conflict-related SGBV as crimes against humanity, war crimes and, in some
instances, genocide.34 One important thing to note is that in spite of it becoming active in

29
For example, See cases such as The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-
T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998.
https://www.refworld.org/cases,ICTR,40278fbb4.html; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and
Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 22 February 2001, https://www.refworld.org/cases,ICTY,3ae6b7560.html and The
Prosecutor v. Mikaeli Muhimana (Judgement and Sentence), ICTR- 95-1B-T, International Criminal Tribunal
for Rwanda (ICTR), 28 April 2005, available at: https://www.refworld.org/cases,ICTR,429c29694.html.
30
Statute of the International Tribunal for the Former Yugoslavia, Art. V(g), 1993.
http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (Accessed on April 12, 2019).
31
UN ICTY, In Numbers (As of September 2016). Detailed empirical statistics available on:
http://www.icty.org/en/features/crimes-sexual-violence/in-numbers (Accessed on April 12, 2019).
32
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 15 July 1999, https://www.refworld.org/cases,ICTY,40277f504.html.
33
UN ICTR, The Genocide. Available at: http://unictr.irmct.org/en/genocide (Accessed on April 12, 2019).
34
G.A. Res, Rome Statute of the International Criminal Court (17 July 1998).

12 | P a g e
2002, there has not been a single indictment wherein sexual offence was recognised in spite
of empirical statistics stating that there were numerous incidents of GBSV in conflict zones.

1.2.2 International Regime in 21st Century

UN Security Council Resolutions 1325(2000), 1612(2005), 1820 (2008), 1983 (2011)

Antonio Gueteres in his recent speech has congratulated endeavours of UNSC in the past two
decades emphasizing on accountability for perpetrators and services for survivors of GBSV
in conflict zones.35

The first landmark resolution by UNSC regarding GBSV was Resolution 1325 on Women,
Peace and Security.36 It emphasised on increased participation of women and the
incorporation of gender perspectives in all UN peace and security efforts. It urged states to
put an end to impunity.37

Security resolution in 2008 (UNSCR 1820) noted how GBSV is used as a ―tactic of war to
humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a
community or an ethnic group; and that GBSV perpetrated in this manner may in some
instances persist after the cessation of hostilities‖.38 The resolution was first of its own kind
to completely focus on GBSV on civilians in conflict zones. The resolution stressed upon
exclusion of GBSV crimes from amnesty provisions in the context of conflict resolution
processes and like earlier resolution stressed on institutional impunity (Para 4).39 The
subsequent follow-up resolutions, 1888 (2009), 1889 (2009), 1960 (2010), have focused on
preventing and responding to conflict-related GBSV.

In its recent resolutions, the Security Council has indicated that acts of sexual and gender-
based violence can be used as a tactic of terrorism (Resolution 2242 adopted in 2015) and has
also established the nexus between trafficking, GBSV, terrorism and transnational organised
crime (Resolution 2331 adopted in 2016).

CEDAW General Recommendation 30

35
Antonio Gueteres (UNSG) extract from speech on, Remarks at event on Conflict related and Gender-Based
Violence (2019), https://www.un.org/sg/en/content/sg/speeches/2019-02-25/remarks-conflict-related-and-
gender-based-violence.
36
UN SC Res. 1325 (Oct 30, 2000).
37
Id.
38
UN SC Res. 1820 (June 19, 2008).
39
Id.

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In 2013, the Committee on the Elimination of Discrimination against Women (CEDAW) has
adopted general recommendation 30, which provides authoritative guidance to parties to the
Convention on legislative, policy and other appropriate measures to protect, respect and fulfil
women‘s human rights in situations of conflict and instability. In General recommendation
No. 35 on gender-based violence against women, (updating general recommendation No. 19),
CEDAW recalls that gender-based violence against women and girls constitutes
discrimination under the Convention and therefore engages all obligations of which results
from both the acts or omissions of both the State or State actors, on the one hand, and non-
State actors, on the other. CEDAW buttress implementation of the Security Council
resolutions on Women, Peace and Security, as the concerns expressed therein all find
correspondence in substantive articles of the Convention.

The CEDAW General recommendation 30 was an important milestone in realisation of

gender perspective in conflict zones.40 One of the most significant recommendation was
expansive definition of conflicts which brings under ambit conflicts not falling under
umbrella of international humanitarian laws. Why is it important in our context lies in the
reluctance on part of south Asian countries to acknowledge ‗conflicts‘ within their respective
territories. An extract to elucidate expanded scope is quoted as below:

―The general recommendation covers the application of the Convention to conflict

prevention, international and non-international armed conflicts, situations of foreign
occupation, as well as other forms of occupation and the post-conflict phase. In
addition, the recommendation covers other situations of concern, such as internal
disturbances, protracted and low-intensity civil strife, political strife, ethnic and
communal violence, states of emergency and suppression of mass uprisings, war
against terrorism and organized crime, that may not necessarily be classified as armed
conflict under international humanitarian law and which result in serious violations of
women‘s rights and are of particular concern to the Committee‖.41

On 20 July 2018, the UN SRSG on GBSV in Conflict and the CEDAW Committee signed a
Framework of Cooperation – the first of its kind – to reaffirm common commitments to
promote and protect the rights of women and girls affected by conflict-related GBSV. This
will be done, in particular, through establishing a joint programme of work; advancing

40
CEDAW, General recommendation No. 30 on women in conflict prevention, conflict and post-conflict
situations (Nov 1 2013).
41
Id.

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national-level implementation of human rights standards on the protection of women and
girls affected by GBSV; and cooperating in the conduct of research and collection of data to
ensure accountability and compliance of Member States with the obligations under
International law.

1.2.3 Principle of Reparation: Reparation is generally understood as making amends for

violation committed by member states. UN General Assembly adopted Basic Principles and
Guidelines on the right to a remedy and Reparations for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Laws
(hereafter referred as Principles and Guidelines) in 2005.42 The principles lay down
guidelines for victims and policy measures that states can implement for reparation. It is
significant because it lays down dual responsibility on state to provide relief for the harm
suffered and also provides result that addresses the claims. Under International regime,
reparation refers to measures that may be utilised to redress the various types of harms that
victims suffered as a consequence of crime. Reparation is an important aspect of justice in
case of GBSV in conflict zones wherein the victims‘ rights are grossly violated.

1.3 Brief overview of contemporary armed conflicts in South Asia and

distinct nature of these conflicts.

Coming close to our homeland – contemporary conflicts in South Asia are predominately
internal with sub-nationalist contesting identities at the core of it. It was recently commented
in Thomas Park‘s book that some of conflicts in South Asia are longest internal conflicts
averaging at around 45 years per struggle.43 It is pertinent to understand distinct nature of
south Asian conflicts to understand gender nature of the conflict. It was argued by Seema
Kazi in her article that internal conflicts around the globe is based on the outcome of state
weakened by war or disintegrating nation state but in case of subcontinent, internal conflicts
are of distinct nature in a way that conflicts are caused within so called stable Governments.44
The similar view was taken by Rita Manchanda in her work stating that, ―Instead of
42
G.A. Res. 60/ 35 (19 April 2005), https://www.refworld.org/docid/3deb2ca54.html.
43
THOMAS PARKS, NAT COLLETTA & BEN OPPENHEIM, THE CONTESTED CORNERS OF ASIA—
SUB NATIONAL CONFLICT AND INTATIONAL DEVELOPMENT ASSISTANCE (2013).
44
Seema Kazi, Law, Gender and Governance in Kashmir in KASHMIR- HISTORY, POLITICS,
REPRESENTATION (Chitralekha Zutshi ed., 2017).

15 | P a g e
politically negotiating with people‘s demands for power sharing or alleviating social and
economic injustices, the regime response is to treat them militarily as potential challenges to
the authority of the state‖.45 In the last two or three decades, there have been over 26
conflicts in Asia.

Fig 1.2 Conflict map of South Asia

Some of the prominent ones are the conflicts in the Chittagong Hill Tracts, Southern
Thailand, Kashmir, the various states in Northeast India and in Myanmar, Baluchistan, North
and North East Sri Lanka, Aceh, Mindanao and Bougainville.46 According to the Uppsala
conflict data program number of people killed in internal conflicts in Asia over period of last
3 decades is more than number of casualties in all other conflicts combined. As per the report,
India alone has seen 54,965 deaths through ongoing conflicts in last 3 decades.47

45
Rita Manchanda, Redefining and Feminizing Security: Making a difference in Security Policies 36 EPW 4100
(2001).
46
Roshmi Goswami, The Price of ‗Revolution‘: Who determines? Who Pays? Women combatants and
Sympathizers in North-east India in FAULT LINES OF HISTORY: THE INDIA PAPERS (Uma Chakravarti
(ed., 2016).
47
The Uppsala Conflict Data Program (UCDP) is the world‘s main provider of data on organized violence and
the oldest ongoing data collection project for civil war, with a history of almost 40 years. Its definition of armed

16 | P a g e
Unfortunately, victims of such conflict are predominantly civilian. For example, civil war in
Sri Lanka which lasted for more than two decades resulted in reported death of around
100,000 people during its course. Eventually civil war ended with defeat of LTTE in May
2009 but Sri Lankan Government has been heavily criticised for mass human rights violation
for suppressing the belligerents.48 In India, internal armed conflict is a stark reality and an
issue which is present in every landscape of Indian territory.

Like other contemporary conflicts, South Asian conflicts also have immense gendered
overtones. One important thing to note is that GBSV in south Asian conflicts has not been
discussed and accepted as it has been done in Western civilizations and remain marginalized.
There is an uncanny silence on the issue. For example, Bangladesh War Crimes Tribunal of
2009 set up to investigate the suspects for war crimes and genocide committed by Pakistan
army in 1971 by Pakistani army and their local contributors makes no mention of rape,
despite its widely acknowledged occurrence and even after spoken of by some survivors.
Similarly, there were numerous incidents of sexual atrocities in civil war of Sri Lanka. The
war was fought for more than 2 decades and eventually ended in 2009. However,
accountability of GBSV post conflict is minimal. Sri Lankan State made bold promises to
UNHRC regarding accountability of war crimes in 2015 but transitional justice in Sri Lanka
remains in moribund situation. The latest annual Grave Crimes Abstract of the Sri Lankan
Police recorded 2,036 complaints of rape and no convictions.49

Coming to our home country, it is evident that sexual atrocities are integral component of
India‘s fight against itself. GBSV in Kashmir valley during peak of insurgency tells some
horrifying tales and culture of impunity is entrenched deep in disturbed areas.

Critical analysis of existing jurisprudence on GBSV is a relatively new area of scholarship in

the region and explains dearth of institutional accountability regarding it. Many non-
governmental and human rights organizations took upon themselves to represent voices of
victims of impunity. Two projects which questioned this discourse and is worthy of
admiration are: UIP (Understanding Impunity Project) which was a brainchild of late human
rights activist, Ram Narayan Kumar and SVI (Sexual Violence and Impunity) project

conflict has become the global standard of how conflicts are systematically defined and studied. For statistics on
India, it is available on: http://ucdp.uu.se/#/country/750
48
LTTE- Liberation Tigers of Tamil Eelam, popularly called as Tamil Tigers; formed by Vellupillai
Prabhakaran which played pivotal role in civil war starting from 1983.
49
Office of the special Representative of the Secretary General on Sexual Violence in Conflict, Sri Lanka
(2018). https://www.un.org/sexualviolenceinconflict/countries/sri-lanka/.

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supported by the IRDC and coordinated by Zubaan. It is working on deepening understanding
on GBSV and impunity in South Asia through various models such as workshops, model
papers, etc.

1.4 Concluding remark on Part I

International regime on sexual violence saw a dramatic engagement post Bosnian war. Rape
is getting discussed not only as a tool of war but also as an instrument of genocide and crime
against humanity. Jurisprudence developed by tribunals (ICTY, ICTR) while addressing rape
are pioneer in a way they engage with the crime. A landmark example of it would be
Akayeshu decision. It was a first major decision regarding GBSV in conflict zones and
expanded definition of rape from non-consensual penile-vaginal coitus to include physical
invasion of sexual nature under coercive nature and done as a systematic attack on civilian
population.50 The mentioned decision is also landmark because of its incorporation of
principle of command Responsibility in GBSV jurisprudence.

On the contrary, recent history and political developments in South Asian countries post
world War 2 has witnessed alarmingly increase in GBSV. Two of the important countries i.e.
India and Pakistan have set up foundations of their democratic life at the expense of silence
over GBSV during partition. On similar grounds, even origin of Bangladesh is rooted in
widescale sexual violence.

Unfortunately, exponential increase in GBSV had been directly proportional to legal

impunity to perpetrators (mainly security forces and insurgent groups). Our system showed
stiff resistance to learning from advancements in other parts of world owing to multiple
reasons. Though it would not be wrong to comment that statist project of territorial integrity
has been in direct collision course with GBSV committed in conflict zones. It is need of hour
that we concern ourselves with legal silence over issues of acceptance of impunity, GBSV,
normalisation of it, lack of accountability, etc. Some of these themes are persistent in my
study in later part of this dissertation.

50
Navsharan Singh & Urvashi Butalia, Challenging Impunity on Sexual Violence in South Asia: Beginning a
discussion 47 EPW 58-63 (2012).

18 | P a g e
 PART II UNDERSTANDING IMPUNITY IN INDIA –
CONCEPT AND OVERVIEW OF SECURITY LEGISLATIONS
IN INDIA

2.1 Meaning of Impunity

State Impunity is not a novel concept. Its origin is as old as origin of violence and power. The
battle between rights and exercise of power has a long history. Nations have historically
suppressed its dissent through such means. It is no surprise that institutional violence is one
of key premise for modern liberal nations.

Charges such as waging war against state, conspiracy, etc. are known tools of institutional
impunity rendering the other political ideology as crime. It becomes apparent in cases of
secession or separatist movements. Kannibaran pointed that once other political idea is
narrated as a crime, subversion of law begins and it acts as justification for violence.51

UN Commission for Human Rights defines impunity as - ―Impunity means the impossibility,
de jure or de facto, of bringing the perpetrators of violations to account - whether in
criminal, civil, administrative or disciplinary proceedings - since they are not subject to any
inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced
to appropriate penalties, and to making reparations to their victims‖.52

In other words, it can be said that impunity allows perpetrators ‗absolute‘ freedom to inflict
harm, loss and violation without fear of any legal consequences. Definition provide us with
certain keywords in laying down ambit for legal dimension and is helpful to that extent.
However, it doesn‘t account for other forms of manifest injustice that impunity gives birth to.
It moulds itself in various forms depending on context through which one is looking at. To
elucidate, Parekh in his work gave an interesting concept of impunity wherein he explained it

51
KANNIBARAN, Supra Note 11, at 10.
52
United Nations Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of
Human Rights through Action to Combat Impunity. E/CN.4/2005/102/Add.1, https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?OpenElement.

19 | P a g e
in terms of ―institutionalized humiliation‖.53 Concept of institutionalized humiliation is
pertinent when discussing impunity in GBSV. It is important to note that Impunity not only
encourages entrenched forms of violence but also breeds atrocities and suppression based on
other identity markers such as race, caste, class and gender.

Some authors have written on a historical dimension of impunity in India to bring out
coherent landscape for discussing impunity in contemporary times. Late Kannibaran work on
impunity is of great significance. He has drawn corollary of how security measures during
British times are precursor to contemporary security laws in India.54 I am following the
similar trajectory to understand the concept of Institutional impunity in India.

2.2 IMPUNITY IN INDIA

2.2.1 Colonial Precursors

India has largely inherited the colonial legal system after independence. Ironically, same
colonial legal system was used to suppress freedom struggles. Article 395 repealed legislative
enactments such as Government of India Act, 1935, etc. but retained some notorious
enactments (Example, Seditious meetings Act).55 Law Commission in its 5th report (1957)
stated that there are around 258 colonial enactments applicable in India and recommended its
repeal.56 In 1960, repealing act was passed by legislature.

Some of colonial repressive enactments that provided impunity to state institutions to repress
any form of dissent were: Bengal Regulation III of 1818 (It empowered the state to arrest
anyone for defence or maintenance of public order without giving the person recourse to
judicial proceedings), Defence of India Act, 1915 (It was enacted during world war I and
gave immense power to state institutions of curtailing the liberty of citizens during time of
emergency), etc.

53
BHIKU PAREKH, Logic of Humiliation in HUMILIATION: CLAIMS AND CONTEXT 23-40 (Gopal Guru
ed., Oxford University Press 2009).
54
KANNIBARAN, Supra Note 11, at 88-89.
55
Prevention of Seditious Meetings Act, 1917.
56
Law Commission Report No. 5 on British Statutes Applicable in India (1957).

20 | P a g e
In 1919, the British government enacted the Rowlatt Acts of 1919 that allowed confinement
of a suspect without trial.57 Often quoted Motilal Nehru‘s address to Congress vis-à-vis
Rowlatt Act speaks volume about dangers of institutional impunity and is of great help in
understanding the concept:

―But Repression and terrorism have never yet killed the life of a nation, they but increase the
disaffection and drive it underground to pursue an unhealthy course, breaking out
occasionally into crimes of violence. And this brings further repression and so the vicious
circle goes on. No one can but deplore violence and political crime. But let us not forget that
this is the direct outcome of continued repression. It is due to the perversity of the executive
which blinds itself to the causes of the discontent and, like a mad bull, goes about attacking
all who dare stand up against it‖.58

Rowlatt act is embedded in memory of Indian freedom movement as one of immediate cause
for Jallianwala Bagh massacre.

2.2.2 Early Security Legislations Post-Independence

One of the first such enactment post-independence was state enactment, Madras Suppression
of Disturbances Act. It was introduced to curtail Communist movement. The enactment was
also adopted by Andhra Pradesh in 1961. The act notified the disturbed areas and gave
license to suppress the resistance. The first preventive detention rule was Preventive
Detention Act of 1950.

2.2.3 AFSPA

When we talk about impunity in India, AFSPA lies at the heart of it. Going by the black letter
origin of it, it was firmly rooted in the colonial past and is a classic example of Mignolo‘s de-
colonial shift wherein colonial hierarchies of abuse have continued in era of post-
colonialism.59 AFSPA was used in Naga disturbed areas of Assam for the first time in 1958.60
During its enactment, then Home Minister GB Pant stated it to be a temporary legislation to
be repealed as soon as peace is restored in the state. Unfortunately, the legislation has been in

57
Anarchical and Revolutionary Crimes Act of 1919 (Rowlatt Act).
58
Id.
59
W.D. MIGNOLO, Delinking: The Rhetoric of Modernity, the logic of Coloniality and the grammar of De-
coloniality, in GLOBALIZATION AND THE DECOLONIAL OPTION 303-368 (W.D. Mignolo & Arturo
Escobar ed., Abingdon UK 2010).
60
Armed Forces (Special Powers) Act, 28 of 1958.

21 | P a g e
force since then and extended to other north eastern state and other disturbed areas of India.61
It is already 60 years old and a version of it is in effect (in addition to several NER) in Jammu
and Kashmir.62 The special legislation shields security forces from arrest and criminal
prosecution through provisions of statutory impunity. The Act grants extraordinary powers
to any military officer, including any commissioned officer, warrant officer, non-
commissioned officer and any other person of equivalent rank in the military forces, to use
lethal force if deemed necessary, arrest without a warrant using ‗such force as may be
necessary‘ including kill, enter and search any premise again without a warrant and on mere
suspicion.63 That a very high risk of abuse is inherent in such powers that are formulated very
broadly and in very vague language is obvious enough but the Act contains no effective
safeguards to protect rights.

A cursory reading of the act would elucidate the vagueness with which security personnel are
provided unbridled power and impunity. For example, one of the most controversial
provision that prevents any prosecution against security personnel in disturbed areas without
prior sanction of the legislation is quoted as below which is a clear and cut example of pith of
this act. Section 6 states, ―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‖.64

Supreme Court upheld the validity of AFSPA in Naga‘s People Movement of Human Rights
case.65 The court engaged with procedural requirement to mark its touchstone of legitimacy
and resorted to legal quibbling rather than engaging with it in terms of human rights
discourse. AFSPA had been under strict criticism from various quarters including UN but the
country has retained it citing security reasons.

The committee headed by former Supreme Court Judge, Jeevan Reddy was constituted by
then UPA Government to review functioning of AFSPA and its implication on 50-year-old
armed conflict in NER. Committee did an interactive survey with relevant actors in NER
(victims, human right committees, army officers, people‘s organizations) and there was a
general consensus that AFSPA has failed in containing insurgency and has given unbridled
impunity to armed forces which often manifested itself in form of grave human rights

61
Armed Forces (Punjab and Chandigarh) Special Powers Act (Act No. 34 of 1983).
62
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.
63
Id. at 60.
64
Id. at 60 – Section 6.
65
Naga‘s People Movement of Human Rights V. Union of India AIR 1998 SC 431.

22 | P a g e
violations. Committee suggested its repeal and incorporate the necessary provisions in UAPA
but the recommendation in itself was critiqued on many grounds. Kannibaran commented
that such a course would be an eyewash since it is not the name of AFSPA that should be
repealed, they want to get rid of what it stands for.66

UN Special Rapporteur, Christoph Heyns bluntly commented that provisions like AFSPA
should not have any role in democracy. It violates International legal norms and is against
principles of humanity.67

AFSPA was at the forefront of mainstream discourse again when Verma Committee report
came out. Verma committee was constituted post Delhi gang rape in 2012 to bring out
amendments in criminal law pertaining to rape.68 They touched upon the issue of rape
committed by armed professionals and listed down several recommendations. I have
summarised some of them below which are directly related to GBSV and AFSPA.

 GBSV by armed professional must be brought under ambit of general criminal law.
 Appointment of special commissioner for women‘s security and safety in all areas of
conflict in country. Special Commissioners should have jurisdiction to monitor/ start
action for redress and criminal prosecution in all cases of GBSV against women by
armed personnel.
 Care must be taken to ensure safety of female detainee and general law regarding
detention of women should be strictly followed.
 Imminent need to review the continuance of AFSPA and AFSPA like regulations in
conflict areas of India.

Committee also suggested amendment of AFSPA (Section 6 governing Prosecution of armed

professionals). Proposed amendment is reiterated below:
―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. Provided that, no
sanction shall be required if the person has been accused of committing an offence under
Section 354, Section 354A, Section 354B, Section 354C, Section 376(1), Section 376(2),

66
K.G. KANNIBARAN, Will AFSPA go the POTA way? in MANIPUR IN THE SHADOWS OF AFSPA 256-
259 (Harsh Dobhal ed., HRLN 2010).
67
Aarti Dhar, U.N. asks India to repeal AFSPA The Hindu (March 21, 2012).
68
COMMITTEE ON AMENDMENTS OF CRIMINAL LAW, REPORT OF THE COMMITTEE ON
AMENDMENTS OF CRIMINAL LAW 2013.

23 | P a g e
Section 376(3), Section 376A, Section 376B, Section 376C, Section 376D, Section 376D or
Section 376E of the Indian Penal Code, 1860‖.69
Another important principle that Verma Committee suggested for containing impunity was
Principle of Command Responsibility (Proposed addition of section 376F). 70 The principle
was well established norm in International Criminal regime pertaining to GBSV in conflict
zones. As suspected suggestion met stiff resistance from security forces.71

Unfortunately, the recommendations never saw light of the day and was conveniently ignored
leaving AFSPA still active in conflict zones of India and lacuna of legislative protection for
victims of GBSV in insurgency affected regions of India.

2.2.4 TADA and subsequently POTA

In 1984, TAAA was enacted by the parliament. The legislations allowed establishment of
special courts to take cognizance of terrorism related offences in areas designated by Central
Government as ―terrorist affected‖ for specified time period. It acted as a precursor to much
more notorious act, TADA which was incorporated post assassination of Indira Gandhi.
TADA went ahead and increased the applicability and became nationwide anti-terrorist law.
It was of general applicability. Moreover, it departed significantly from criminal
jurisprudence which resulted in wide scale institutional impunity and human right abuses
from police forces. For example, TADA allowed admissibility of confession made to police
officers.72 Sikhs post anti Sikh riots faced the brunt of this legislation and there was manifest
injustice and human rights abuses in façade of curbing legislation and same had been
evidenced empirically in the human rights watch report on Punjab. 73 Again questions
pertaining to its constitutionality was brought before Supreme Court and The Court upheld its
validity.74

69
Id. at 68, 466.
70
Id. at 68, 458.
71
Verma commission report draws armed forces' fire, The Times of India (Jan 25, 2013).
72
Section 15(1), TADA, 1987: Certain confessions made to police officers to be taken into consideration. —
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this
section, a confession made by a person before a police officer not lower in rank than a Superintendent of police
and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound
tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person [or
co-accused, abettor or conspirator] for an offence under this Act or rules made there under:
[Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the
accused].
73
Human Rights Watch, Punjab in Crisis (August 1, 1991).
74
Kartar Singh V. State of Punjab (1994) 3 SCC 569.

24 | P a g e
TADA was replaced by POTA. POTA (Prevention of Terrorism Act), 2002 has often been
criticised for draconian and unconstitutional. However, it was held to be constitutional by
Hon‘ble Supreme Court.75 One of often quoted passage from the judgment which observed
that fight against terrorism is not a regular criminal justice endeavour and in spite of terrorism
being a criminal act, it is much more than mere criminality.76 POTA has often found support
from the institutions stating that sole purpose of the legislation is to curb the menace of
terrorism and capability of its misuse is restricted through inbuilt mechanisms but one can
only lament looking at the wide abyss between law on paper and law in reality.

It is a recurring theme in any humanitarian laws discourse whether we really need special
legislations and many academicians have engaged with the concept especially in light of its
impact on human rights. For example, Prof. Ranbir Singh in his article while supporting need
of special anti-terrorist laws stated that such review of institutional mechanisms and
protection is essential to ensure that human rights are protected and does not inadvertently
extend to criminal intent and operations.77

2.2.5 Unlawful Activities (Prevention) Act, 1967

UAPA in its origin was not envisioned to be anti-terrorist law. It originated to deal with
activities against integrity and sovereignty of state. Like AFSPA, Disturbed Areas Act – it
also fell under ambit of conflict related legislative enactment. It became the main anti-
terrorist legislation as an aftermath of Mumbai Terror attacks and repeal of POTA. This was
done through its amendment.78 Government also created a special administrative body for
addressing the issues (National Investigation Agency). 79 The act has been criticised on many
avenues and most of criticism around its vague nature and how it fails to address multi-
dimensional nature of terrorism.80 As anticipated, UAPA has been misused rampantly. GN
Saibaba‘s case is a primary example that elucidate it as a breeding ground for injustice.81 On
similar note, another recent example of Bhima- Koregaon case has brought forward similar
constitutional questions over legislative enactments. Former Judge, B.N. Srikrishna in one of

75
People‘s Union for Civil Liberties and Another Vs. Union of India (2004) SCC 580; MANU/SC/1036/2003.
76
Id. at 584.
77
Prof. (Dr.) Ranbir Singh, Critique of recent legislations on terrorism in India from Human Rights Perspective
– Do We Need Special Laws? 8 Journal of the National Human Rights Commission, India 7-30 (2009).
78
UAPA Amendment Act 35 of 2008.
79
National Investigation Agency Act, Act No. 34 of 2008.
80
Ravi Nair, The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes 44 EPW 10
(2009).
81
G.N. Saibaba Vs. State of Maharashtra And Ors. MANU/MH/0702/2019.

25 | P a g e
interviews commented that lenient recourse taken by court on questions of validity of Anti-
terrorist laws require a different take.82

2.2.6 MISA and National Security Act, 1980

MISA came into existence especially in an attempt to curtail political dissent. It gave
immense authority to executives for preventive detention, search and seizure without a wire,
wiretapping, etc.

Constitutional validity of MISA was challenged in Haradhan Saha case and court upheld it
constitutionality.83 MISA was repealed in 1977 and it was those 3 years wherein India didn‘t
have any preventive detention law. NSA was enacted in 1980.84 If we put it simply, the act
empowers Centre/State Government to detain a person to prevent him from acting in any
manner prejudicial to national security. Since its enactment, it had been in discourse for
encouraging culture of impunity and suppressing revered fundamental rights of citizens
whenever State felt that citizen‘s visions is not in sync with hegemonic vision of leaders.85 Its
validity was also upheld by Court.86 Two recent cases under NSA which gathered lot of
media attention and are evident of how state actors can use legislative framework to suppress
dissent are (i) UP‘s selective detention of Muslims for communal clash and (ii) case of
Manipuri journalist who was arrested for posting online against ruling party in Manipur and
Prime Minister.87

2.3 CONCLUDING REMARKS ON PART II

Legislative and Constitutional Framework in India has given ample breeding ground for
prosperity of immunity. Justice Mukherjea‘s comment on preventive detention does well to
emphasis on inherent flaw in our constitutional fabric when it confronts liberty vis-à-vis
political dissent. He stated –

82
Sonam Saigal, Constitutionality of UAPA must be challenged The Hindu (June 14, 2018),
https://www.thehindu.com/news/cities/mumbai/constitutionality-of-uapa-must-be-
challenged/article24157327.ece.
83
Haradhan Saha V. State of West Bengal AIR 1974 SC 2154.
84
National Security Act, 1980.
85
For details, see Niloy Dutta V. Dist. Magistrate and Ors. 1991 CriLJ 2933.
86
A.K. Roy V. Union of India, AIR 1982 SC 710.
87
Neha Dixit, In Runup to 2019, NSA is the latest weapon against Muslims in UP, The Wire (September 10,
2018), https://thewire.in/rights/in-adityanaths-up-the-national-security-act-is-latest-weapon-against-muslims. &
Manu Sebastien, Manipur Journalist‘s Detention Under NSA for Facebook posts Against PM and CM Quashed
by HC, LIVE LAW (April 8, 2019), https://www.livelaw.in/news-updates/manipur-journalists-detention-under-
nsa-for-facebook-posts-against-pm-cm-quashed-by-hc-read-judgment-144138.

26 | P a g e
―Detention in such form is unknown in America. It was resorted to in England only during
war time but no country in the world that I am aware of has made this an integral part of
their Constitution as has been done in India. This is undoubtedly unfortunate, but it is not our
business to speculate on questions of policy or to attempt to explore the reasons which led the
representatives of our people to make such a drastic provision in the Constitution itself, which
cannot but be regarded as a most unwholesome encroachment upon the liberties of the
people‖.88

All categories of security legislations i.e. Preventive Detention Laws, Counter Insurgency
laws, Disturbed areas legislation and Anti - Terrorism laws are dipped in ink of impunity and
Constitutional adjudication has often resulted in legitimising the impunity provided by them.
Returning back to Motilal Nehru‘s analogy regarding security laws as a mad bull.
Unfortunately, imagery of that statement resonates with contemporary impunity as well. In
Next part, I will be engaging with how Institutional Impunity when coupled with armed
conflict creates a breeding ground for GBSV.

88
AK Gopalan V. State of Madras 1950 SCR 88.

27 | P a g e
 PART III
Gender Based GBSV (GBSV) in North Eastern Conflict Zone of
India

3.1 INTRODUCTION TO NER AND OVERVIEW OF CONFLICTS

Studying conflicts in North Eastern Region (henceforth referred to as NER) of India is a
complex issue at hand. NER came under the control of British East India Company in 1826
after Anglo-Burmese war resulting in (i) withdrawal of claims of Ava (Burmese) King over
principality of Assam and its dependencies and Cachar & Jyntia states and (ii) recognition of
Gambhir Singh as king of Manipur. Though the relationship was much more complex
especially relationship of hilly Nagas with Manipuri kingdom. 89 Similarly, relationship
between Ahom Kingdom and Nagas during precolonial times was also very complex and had
been a subject of academic discourse (Under linguistic discipline, dialect of ‗Nagamese‘
speaks volumes about precolonial interrelationship).90 At this junction, it becomes important
to note that NER India as we know today is different from region under colonial times.

The region is generally understood to have eight states - Arunachal Pradesh, Assam,
Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura (many scholars does not
include Sikkim as part of NER since it is not contiguous with rest of NER- it is separated by
West Bengal and Bhutan from rest of NER).91 The expression North-east India entered
mainstream Indian discourse in 1972 after change in the political and administrative map in
late 1960s and early 1970s.92 Preeti Gill in introduction of her edited work pointed out that
the attribute of lumping seven or eight disparate states as North-East in itself is meaningless
and inappropriate.93

Engaging with conflict in NER involves multi-dimensional and inter-disciplinary approach.

A recent World Bank report stated that region is a ‗a victim of a low-level equilibrium where
poverty and lack of development (compared with the remainder of India and other Southeast

89
Sanjib Baruah, Confronting Constructionism: Ending India‘s Naga War 40(3) Journal of Peace Research 321
(2003).
90
Nagamese is a pidginized and consequently creolized form of Assamese and used as a lingua franca among
various Naga communities having distinct languages.
91
S.K. CHAUBE, HILL POLITICS IN NORTH-EAST INDIA (IIIrd ed. Orient Black Swan Publications 2012).
92
Id.
93
PREETI GILL (ED.), THE PERIPHERAL CENTRE: VOICES FROM INDIA‘S NORTH-EAST (Zubaan
Publications 2010).

28 | P a g e
Asian nations) lead to civil conflict, lack of belief in political leadership and government,
and, therefore, to a politically unstable situation. This, in turn, leads to further barriers in
poverty reduction, accelerated development, and growth‘.94

As of recent report by SATP (South Asia Terrorism Portal) there are around 158 insurgent
groups in the region and each state has more than one such groups. Groups have different
goals and contradicting ideologies (Some of groups are of ethnic nature - Kuki National Front
(KNF), Karbi National Volunteers, etc. whereas some militia groups have nationhood as their
goal - National Socialist Council of Nagalim (NSCN-IM) which is one of significant militia
organization spearheading insurgency in NER).

Proscribed Active Inactive Ceasefire Total

groups Groups Groups Conglomer
ates

Arunachal Pradesh - 2 4 - 6

Assam 3 4 36 14 58

Manipur 6 6 24 6 42

Meghalaya - 1 7 5 13

Mizoram - - 1 1 2

Nagaland 1 4 2 3 10

Tripura 2 25 1 28

NER 12 17 99 30 158

Figure 3.1 Terrorist, Insurgent and Extremist Groups in NER.

Sometimes conflicting nature and ideology further aggravates the violence in the region. For
example, violence in Nellia village (discussed in detail later). It is pertinent to engage with

94
World Bank report, Development and Growth in Northeast India: The Natural Resources, Water, and
Environment Nexus – STRATEGY REPORT World Bank (2007). Available online at:
http://siteresources.worldbank.org/INTSAREGTOPWATRES/FeatureStories/21702969/NortheastStrategyRepo
rt_20-3-08.pdf.

29 | P a g e
diversity of conflicts within NER to understand the context of Gender based violence. One
striking example of such conflicting ideology would be regarding much debated AFSPA. The
act had been in place in NER from last 6 decades. It is an established fact that people in
general are opposed to the draconian nature of impunity but there is another significant
portion of population (Example, targeted ethnic minority of settlers) which look upon
security forces as a security provider. Similarly, elections are held regularly and
representatives are sent to the parliament from the region which further indicates that
democracy and armed rebellion intersect in complex ways in the region. 95 As Baruah pointed
in his paper, some violent conflicts arose post ceasefire agreements between militia factions
and security forces.96

Gender tone of the conflict is evident and women have generally borne the brunt of this
ongoing conflict in every form wherein their bodies became the site of battle with
innumerable instances of atrocities and brutality. It was rightly commented by Roshmi
Goswami in her paper that study of GBSV in conflict zones of NER has an extra component
that requires deeper understanding along with factors such as gender discrimination,
patriarchal domination, etc. The additional contributory component in the context is social,
cultural and economic marginalization of peripheries by the centre.97

For purpose of this dissertation, I am looking at GBSV in Manipur, Nagaland and Assam.

3.2 MANIPUR
Manipur was an independent princely state before British defeated them in 1891. Manipur
under suzerainty of British was ruled as a princely state. On 11 August, 1947 Manipur‘s King
signed the instrument of accession with Indian government assigning defence,
communication and foreign affairs to the Government of India and India‘s leaders promised
preservation of Manipur‘s autonomy. In 1948, elected legislature of state was selected and
king was reduced to constitutional monarchy. In September 1949, king was made to sign
merger agreement. Consequently, Manipur lost its autonomy, its elected ministers were
dissolved and Indian contingent was appointed to run the state.98 The merger was never

95
Id. at 89 - 35.
96
Sanjib Baruah, Northeast India: Beyond Counterinsurgency and Developmentalism in THE PERIPHERAL
CENTRE: VOICES FROM INDIA‘S NORTH-EAST (Preeti Gill Ed., Zubaan Publications 2010).
97
Roshmi Goswami, The Price of ‗Revolution‘: Who determines? Who Pays? Women combatants and
Sympathizers in North-east India in FAULT LINES OF HISTORY: THE INDIA PAPERS (Uma Chakravarti
Ed., Zubaan Publishers 2016).
98
Agreement between Governor General of India and the Maharajah of Manipur, "Merger of Manipur with
India,‖ September 21,1949.

30 | P a g e
brought to popular and participative ratification of elected state representatives. It was
directly governed by New Delhi until January 21, 1972, when it became a state with the right
to elect its own legislative assembly. The merger and stripping of Manipur‘s autonomy
through fraudulent means has been the persistent theme of politics and conflict over the
course of last seven decades.99 The first armed opposition group in Manipur, the United
National Liberation Front (UNLF) was formed in 1964. Thereafter many Meiteis dominated
armed groups were established with similar objectives of independence. Some of the
prominent ones are: The People's Revolutionary Party of Kangleipak (PREPAK) in 1977;
The People's Liberation Army (PLA) in 1978 and The Kangleipak Communist Party (KCP)
in 1980.

3.2.1 Case Study of Thangjam Manorama (GBSV-1): The narrative pertaining to facts and
circumstances leading to the death of Thangjam Manorama varies contrastingly between
State institutions on one hand and academicians & eye witnesses on other hand. To
understand the complexity of the issue, I am engaging with both perspectives to gauge the
case study.

The narrative of the state institution can be captured from writ petition (C) No. 5817 of 2004
which was filed by Assam Rifles challenging the authority of state government to constitute
an inquiry on armed forces in areas under AFSPA and High Courts‘ order regarding the
same.100 The facts as illustrated in order are briefly stated below.

Security personnel of 17 Assam Rifles received conclusive intel that Km. Thangjam
Manorama, a corporal in a banned organization PLA (People‘s Liberation Front) was in
vicinity of Bamon Kampu area of Imphal. The forces strongly believed that Manorama was
instrumental in variety of insurgent operations against the people of state of Manipur. The
Assam Rifles team stationed at Singjamei decided to carry an operation as a pre-emptive
measure. It was believed that Manorama was in possession of valuable intelligence materials.
Post-midnight on July 11, 2004 mobile vehicle check post was informed by intelligence
report that she is in her residence at Banian Kampu Mayie Lekai. The operation was started
and around 3 A.M. house of Manorama was cordoned and the team entered her house. After
the identification was confirmed, the personnel arrested her to hand her over to the nearest
police station along with incriminating evidences for offences against the state. During the

99
Jiten Yumnam & Phulindro Konsam, Militarization and Impunity in Manipur, 5(no. 6) Asian Legal Resource
Centre, 2 (2006).
100
Col. Jagmohan Singh and Ors. Vs. The State of Manipur and Ors. AIR 2006 Gau 33.

31 | P a g e
raid - radio set and hand grenade was captured from her. It was also stated that Manorama
told them about a comrade, lady cadre named Ruby who had AK-56 in her possession and
was staying in Nambol area which was near her place. The team decided to search for the
alleged Rupa. Manorama misled them to several different places and it was during this
pursuit when Manorama tried to flee in pretext of call of nature. When patrol party saw her
running, they followed and head commander fired an aerial shot as a warning shot but
Manorama didn‘t stop and later fired towards her leg. Consequently, she sustained bullet
injuries and died.

Narrative of Scholars/ witnesses/ newspaper is stated as below:

Post-midnight of June 11, 2004, patrol team of 17 Assam rifles cordoned the house of
Manorama and entered the house. They started searching every corner of house in pursuit of
finding incriminating evidences to show that Manorama belonged to the banned organization.
When they didn‘t find anything, they woke all the family members present in the house. Gun
was pointed at Manorama‘s mother and asked about whereabouts of Manorama. When
Manorama came outside of her room, she was caught hold of and dragged outside the house.
Her brother, Mr. Dorendo Singh tried resisting and was allegedly beaten up by the personnel.
The family members were asked to go to the courtyard in back and around 3:30 AM they
were informed that Manorama will be taken into custody. The arrest memo was issued and no
claims certificate was forcefully obtained from Manorama‘s mother and elder brother. No
Claims‘ Certificate is a procedural requirement which states that the family does not have any
claims against army for searching the house and they did not misbehave with anyone in the
family.

Around 5:30 AM, Manorama‘s bullet ridden body was found near Ngariyan Maring,
approximately 5 KMs away from her home. The body had scratch marks, gashing wound in
her right thigh and gunshot wounds in her genitals. Injuries gave rise to the theory that she
had been raped before shot dead and gunshots in her genitals was an attempt to destroy the
evidence.101

After the discovery of body next day, her brother filed a police report in Irilbung Police
Station. After FIR was registered, post mortem was conducted in Regional Institute of
Medical Science (RIMS), Imphal. After post mortem police wanted to hand over the body to

101
Rabi Bannerjee, Body of lies The Week (October 28, 2018),
https://www.theweek.in/theweek/cover/2018/10/20/body-of-lies.html.

32 | P a g e
family but they declined to accept it as a show of resilience and until involved perpetrators
are punished. Later the body was ordered to be cremated by police officials.

The event gained lot of media attention and consequently, Manipur Government was coerced
to institute a judicial inquiry commission. The commission was given one month to give its
finding. The commission headed by Upendra Singh summoned all actors involved but
summons to 17 Assam Rifles was declined on one pretext or other (Example, involved
officers are posted elsewhere). Justice Upendra Singh issued arrest warrant against alleged
perpetrators and instructed the DGP Manipur to execute the warrant. The army filed a writ
petition in the high court challenging the impugned order and maintainability of the judicial
inquiry using the safeguard guaranteed to them under AFSPA.102 The Army also asked for
the stay in proceedings of the judicial inquiry commission since its legality was in question.
The High court in its interim order dated August 28, 2004 refused to stay the proceeding but
instructed that commission‘s report shall not be made public meanwhile without leave of the
court.

The final report by Upendra Singh Commission was submitted to Manipur Government on
November 22, 2004. The court vide its order dated June 23, 2005 found that the state
government does not have administrative control over the armed forces and asked the central
government to follow up on the commission report. The express exclusion of state
government from activities of armed forces mutilated the powers of state government to look
into human rights violations conducted by armed forces.103 The order was challenged by state
government and relatives of Manorama. It is highly unfortunate that the findings of Upendra
Singh‘s report are still not public because of the court order. The public outcry over the
manifest injustice resulted in formation of Jeevan Reddy Committee but the findings and
recommendations have not been incorporated anywhere and justice seems an elusive promise
till date.

3.2.2 Case Study of Sanjita Devi case (GBSV-II): The 15-year-old girl from Jiribam of
Imphal East committed suicide after she was raped by army personnel of 12 Grenadiers in
October 4, 2003. It is alleged that the incident happened in Jiribam house when girl went to
drop lunch for her father who used to work there. Two personnel followed her and raped her
by turns at gunpoint. The army conducted a court of inquiry into the case. But nothing came

102
Id. at 100.
103
Id. at 100.

33 | P a g e
of it.104 The incident was confirmed by Upendra Singh commission report on Manorama rape
and murder case.

3.2.3 Case Study of Maibam Naobi Chanu (GBSV-III): Naobi was known to be girlfriend
of Bikash (alleged terrorist) and after killing him, police raided his house on day of his
funeral and after identifying Naobi, she was beaten up and dragged by hair. She was
blindfolded and dumped into a gypsy. the beating continued and personnel tore her clothes
and molested her throughout. If she passed out, they would splash water on her.105

Her arrest received a lot of attention and villagers staged protest against her arrest. After two
days of her arrest when she was produced in court, magistrate released her citing lack of
evidence of her association with prohibited organization.

Later, Manipur government suspended five police commandos and transferred the
superintendent of police for the alleged torture of Maibam Naobi. A judicial inquiry by S.P.
Rajkhowa, a retired High Court judge, was ordered. Although his report was submitted to the
state government in August 2006, it has yet to be made public.106

3.2.4 Some other pertinent Case Studies (GBSV IV & V) On 1 August, 1996 Arubi Devi
(pseudonym) was sexually assaulted by personnel of Jawans of 2 Maharashtra Regiment. The
incident took place in front of her family and consequently had her womb removed owing to
injuries. Meira Phabies filed FIR on her behalf. Both Jawans were court martialled and
sentenced to 10 years‘ imprisonment. In 2003, Arubi went to High Court and prayed for
monetary compensation because the incident resulted in ostracism from her own family.
Husband deserted her and often ridicules her, calling her names and blaming her for losing
chastity. In 2008, HC ordered payment in the amount of Rs. 2 lakh INR.107

Similarly, Khundra (pseudonym) was sexually assaulted by 3 armed professionals in front of

her family. She was disrobed and beaten up. The incident was reported in local newspaper
but no recourse to justice was taken by her. She says-

104
TNN, Report confirms rape by another jawan The Times of India (January 17, 2005)
https://timesofindia.indiatimes.com/india/Report-confirms-rape-by-another-jawan/articleshow/993207.cms
105
Naobi freed, recounts sordid tale, The Sangai Express (March 2, 2006), http://www.e-
pao.net/epRelatedNews.asp?heading=3&src=030306.
106
Report of Human Rights Watch India, these fellows must be eliminated (September, 2008).
https://www.hrw.org/report/2008/09/29/these-fellows-must-be-eliminated/relentless-violence-and-impunity-
manipur#_ftn148.
107
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 673.

34 | P a g e
 ―Pain and anger well up inside me from time to time. I feel disgusted, but what to do? They
have the power and they have the guns. I think we had better stay silent‖.108

3.3 NAGALAND

Nagaland‘s agitation predates Indian independence and Naga National Movement (Nagalim)
is homogeneous in a way that it is endorsed by almost all Naga population in spite of which
faction or armed resistance group they support. With advent of British colonialism, Nagalim
was administratively fractured and forces were used to do it. Anglo Naga history is filled with
blood bath (1845-1880). There were around 10 violent expeditions and an uprising by
Agname Nagas wherein they were able to seize military base camp in Kohima. That was a
last military encounter during British colony. Taking a very superficial demarcation, Nagalim
during that time was divided under two regions: British district (South Eastern Part) & Free
Nagaland Territory (North Eastern Part).

With regard to India, conflict came with the independence of India. The primary agitation
was against incorporation of Naga inhabited regions in India. Leaders even went to meet
Gandhi in New Delhi and got assurance from him that India would not force incorporation.
Nagalim declared its independence on August 14, 1947 (one day before India) and
communicated the same to India and UNO through cable.

In 1951 Naga National Council conducted a plebiscite wherein they travelled to far villages
and collected thumbprints to show resistance against incorporation in Indian state. It was
followed by armed resistance in 1950s. AFSPA was enacted in 1958 and was initially
designed to deal with disturbed conditions in areas that were referred to Naha inhabited areas
of Assam and Manipur (before formation of state of Nagaland in 1963). Thereafter a
compromise in form of 16 point agreement was reached which resulted in creation of a
separate state of Nagaland. However, it is widely contested that creation of a state was
compromise on Naga sovereignty. There have been several attempts of mitigating the conflict
over last 4 decades and several insurgent groups independently into ceasefire agreement with
Government of India. One of the most prominent organization, NSCN IM (Isak- Muivah)
entered on 1997. Another prominent group (NSCN-K) entered but the agreement was broken
post attack on military convoy in 2015. However, the intention behind such ceasefire
agreements have also been questioned on ground of marginalising the rival factions. An

108
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 675.

35 | P a g e
example of that would be recent accord which was called by Prime Minister as a historic
peace accord between NSCN IM and Government of India.109

Baruah points out that one of significant impetus of creating Naga collective identity was
mass conversion to Christianity.110 Today, Christianity is an essential part of Naga identity
and finds expression in Nagalim‘s Preamble.111 More than fifty percent of conversions was
done post-colonial era. Political Scientists view it as a show of cultural resistance to Indian
mainland. It would be unfair to categorise Naga as a community having a linguistic unity
(Example, Kukis).

Fig 3.2 Proposed map of Nagalim (NSCN-IM)

3.3.1 Case Study of Rose (GBSV VI) One of the first incident of sexual atrocities that
received global attention was rape case of a teenager named Rose Ningshen. Miss Rose was a
Tangkhul girl belonging to Ngapuram Khullen village in Ukhrul district.112 On the fateful
night of March 4, 1974, Border Security Forces (BSF) Team came to the village in search of
NAGA insurgents. The team singled out 3 females to help them assist in setting up the
temporary accommodation in the house of village elder. Two officers asked the other two
females to fetch them something and when rape was alone in the house, they gang raped her.
Two days later, she committed suicide. Before committing suicide, she wrote a note

109
Sanjib Baruah, A Pseudo Peace Indian Express (August 11, 2015).
:https://indianexpress.com/article/opinion/columns/a-pseudo-peace/.
110
BARUAH, Supra Note 89.
111
Nagalim- the voice of Naga people, ‗The Preamble‘. Available online at:
http://www.Nagalimvoice.com/preamble/.
112
Tangkhuls are one of the major Naga ethnicities based around district of Ukhrul district in Manipur. The
community was one of major ethnicity in participation of Naga insurgency.

36 | P a g e
addressed to her younger brother. The letter was written in Tangkhul dialect. The excerpts
from the letter is available online.113 The family buried her in their garden but a week later
police team came and dug up the body for conducting post mortem. It is alleged that Rose‘s
family is yet to receive any post mortem examination report till today.114 Villagers on 2013
collected money and set up a memorial stone at her graveyard.115

3.3.2 Oinam case (GBSV VII): On July 1987 Assam Rifles was attacked in Oinam village
by NSCM resulting in death of 9 soldiers and large amount of ammunitions was taken by
militants. Army launched Operation Bluebird in Oinam and adjoining villages. It is alleged
that operation was accompanied with mass scale GBSV and human rights violation. In one
case before Guwahati HC, it was contested that armed forces are sexually exploiting and
extracted forced labour from womenfolk.116 The court took cognizance and held that there is
a possibility of sexual exploitation but did not pass any judgment for prosecuting the
perpetrators. It still awaits judgment. Similarly, another petition was filed for setting up
commission for fact finding of alleged atrocities committed by army in their operation. High
Court declined the plea.117

3.4 ASSAM
Overview of conflict Assamese (pronunciation is more like Axomese wherein x has a sound
similar to ―ch‖ sounds in German language) are often termed as disasters of nation building
process. J.B. Fuller in his work commented that the province of Assam is a museum of
nationalities.118 Assam is a multi-ethnic place and as Baruah points out in his book, Assam‘s
multi ethnicity is at the heart of many of its political and cultural conflicts.119

Assam as we know today differs significantly from Assam of pre-Colonial times and as a
British province (see Fig. 3.3). It came under British rule in 1826 through Yandabo Treaty

113
On March 4, 1974 a Naga girl was raped by the Indian armies. This is the touching letter she wrote to her
boyfriend before she committed suicide MORUNG June 14, 2014. Available online at:
http://morung.com/articles/march-4-1974-Naga-girl-raped-indian-armies-touching-letter-wrote-boyfriend-
committed-suicide/612.
114
Revisiting rape victim Rose Ningshen 43 years later The Sangai Express (May 12, 2017). Available online at:
http://e-pao.net/GP.asp?src=1..130517.may17.
115
Id.
116
Manipur Baptist Convention and Anr. Vs. Union of India and Ors. (1988)1GLR433.
117
Naga Peoples Movement For Human Rights (NPMHR) Vs. Union of India and Ors. (1988)1GLR139.
118
Fuller‘s introduction written for MAJOR A. PLAYFAIR, THE GAROS XIII (London, 1909)
119
SANJIB BARUAH, INDIA AGAINST ITSELF Preface xvii (Oxford University Press, 1999).

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(discussed earlier on Page XX). British rule allowed political incorporation of Ahom
kingdom into a Pan Indian imperial formation and for some time Assam was ruled by British
as an extension of Bengal. It became a colonial province in 1874. The British province of
Assam comprised - present day state of Assam, Sylhet district (became part of East Pakistan
during partition and currently part of Bangladesh), hills surrounding the plains of Assam
(which today would constitute states of Arunachal Pradesh, Meghalaya, Mizoram, and
Nagaland). Important thing to note over here is that constitution of Assam province was done
with intention of administrative convenience without considering cultural/historical
heterogeneity prevailing in the area which was also cause of stiff resistance (Example,
Angamai Nagas - discussed earlier). In other words, multi ethnicity of Assam owes its origin
to colonial geography.

Fig 3.3 British province of Assam

1950s-1970s saw dilution and reorganization of Assam especially through identity conflicts
resulting in shrinking of its geography (Creation of separate states of Nagaland, Meghalaya
and Arunachal Pradesh).120 First major violent conflict post-independence took place in 1960-
61s and again in 1972, called ‗Language Riots‘ regarding official status of Assamese
language. In 1972, Guwahati University decided to implement Assamese as a language in
undergraduate programs. The insurgency in Assam began in late 1970s. In 1979, Assam Gono

120
For criticism of this division, read SANJIB BARUAH, INDIA AGAINST ITSELF) Pp.91-114. (Oxford
University Press, 1999) (2010).

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Shangram Parishad after by-election controversy in Mangladoi constituency started the
campaign against admission and enfranchising of foreigners. It was followed by boycott of
the parliamentary elections of 1979 (elections were cancelled in 12 out of 14 constituencies
of Assam). It took the violent turn in early 1980s and estimate 3000 Muslim of Bengali
descent were killed around the State elections of 1983. Dr. Bhupen Hazarika‘s testimonial
ballad, ―Juye pura tirasir‖ is filled with empathy for a state wherein elections were forced in
spite of violence. State election was unsuccessful with voting as low as .38 percent in some
constituencies.121 Nellie incident became trademark marker of ethnic conflict in Assam.
According to official estimate, 1383 persons were killed in that massacre. It was allegedly
committed by members of Tiwa (earlier known as Lalung) against Bengali settlers (especially
immigrants from Bangladesh) who had lost much of their traditional lands to immigrants
from East Bengal. Similar violent incident took place in Gohpur. However, in Gohpur Bodos
and ethnic Assamese fought each other. Central Government tried striking a chord by signing
the Assam accord in 1985. The election of 1985 saw installation of AGP Government. AGP
was formed by student leaders of Assam Movements. Primary agreement in accord was
person who illegally entered the state of Assam between 1966 and 1971 would be
disenfranchised for 10 years and immigrants who came after march 1971 would be
deported.122 However, non-implementation of accord and decline in AGP‘s popularity
resulted in rise of radical separatist militant organization, ULFA. ULFA was founded in 1979
with a goal to restore glory of Ahom kingdom. It didn‘t restrict itself to immigration issue
which was epicentre of Assam movement. Non implementation of Assam accord became
primary arsenal for ULFA‘s stance and for them, relationship with Delhi was of colonial
nature (Important thing to note is that counter insurgency in Assam was around the same time
when another big insurgency was taking place in Kashmir). Drawing corollary between them
can be helpful because their sub national sentiments arose from hinterland treatment by New
Delhi. ULFA was also notorious for extorting capital (especially from tea industry) in form of
tax. ULFA performed certain social operations (trials of people involved in drugs, corruption,
etc.) and some big corporations (such as TATA) actively engaged with ULFA which further
legitimised its position as a representative of Assamese people. It actively collaborated with
other insurgent actors having same vision and officially signed MoU with them in 1990.

121
Jaswant Singh, Assam's Crisis of Citizenship: An Examination of Political Errors 24 Asian Survey 1056
(1984).
122
Assam Accord, India - Leaders of Assam movement (AGP), Clause 5 Foreigners Issue, Aug. 15, 1985.
Available at: https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses.

39 | P a g e
In 1990, Central Government launched a counter insurgency operation called, ‗Operation
Bhajrang‘. However, many commentators argue that the operation failed and gave more
impetus to ULFA‘s mysticism.123 Operation Bhajrang was followed by another counter
insurgency operation called ‗Operation Rhino‘ and was suspended amidst negotiation
between government and ULFA. In 1996 AGP returned to power and Rhino was relaunched
after killing of government officials by ULFA. The operation was successful in a way that
many top ULFA officials went into exile. Even though the insurgency to an extent has been
contained in 21st century, the political landscape of Assam is highly unstable.

At this juncture it becomes impertinent to state another conflict (Bodoland) within

geographical territory of Assam. Bodos are considered one of the earliest settlers in Ahom
Kingdom and historically raising their voices for development of community. The All Bodo
Students Union (ABSU) was formed in 1967 to represent the Bodo cause. It was only in early
1980s that it gained prominence under leadership of Upendranth Brahma. Militant
organization, BSF came into force on 1989. An accord was signed on February 20, 1993,
between the Government of India, the Government of Assam and Bodo leaders, creating the
Bodoland Autonomous Council (BAC) within Assam. However, since Bodo villages are not
contiguous, the demarcation of the jurisdiction of the BAC has remained a problem. Both the
NDFB and the BLTF have condemned the Bodo Accord, and have, since the mid-1990s,
been engaged in a campaign of violence directed against other ethnic groups within ‗Bodo
areas. Large scale attacks were carried out against Santhal tribal in May 1996, displacing tens
of thousands of people. A second wave of attacks in May 1998 displaced another couple of
thousand Santhals. The Santhals and other non-Bodo communities have also begun to arm
themselves and fight back. This has resulted in significant displacement of the Bodo
population from areas where they are a minority.

3.4.1 Case Study of Snehalata Duara (GBSV VIII): The details pertaining to this
horrendous incident are based on narratives from eyewitnesses since this incident from
peripheries never gathered enough media attention and hence never entered mainstream
GBSV discourse in conflict zones. Snehalata Duara alias Lipika Phukan alias Deepila was an
8-month pregnant lady who was brutally gang raped and killed during/ around the time of
Operation all clear by Indian army personnel in December 2003. Operation All Clear was
launched by Royal Bhutanese Army assisted by Indian Army to flush out militant camps in
Indo Burmese border. It was mostly an aerial attack and approximately 30 camps were caught
123
BARUAH, Supra Note 119 at 155.

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off guard. Many of inhabitants were women and children but no one was spared. Narratives
differ as to when it happened but most of the conjectures point that Deepila and her husband
were picked up by Indian army and tortured mercilessly. Deepila was raped and days later her
mutilated decomposed body was found which bore evidence to torture meted to her.

3.4(ii) Case Study of Roshmi Bora (GBSV IX): In case of Assam, GBSV is not only
perpetrated only by armed forces but there had been numerous incidents wherein belligerents
committed rape and other sexual atrocities on civilians and remarkably such heinous crimes
have remained marginalised in Assam no matter who is the perpetrator. One such horrific
example is a case of Roshmi Bora. Roshmi was a 16-year-old minor from Raidingia, Nagaon.
She was abducted, raped and later killed by local ULFA members in 1998. It is believed that
she rejected the overtures of local ULFA boys and declined to follow the diktat issued by
them which forbid dance performances on any Bollywood songs and wearing of Indian dress.

She was once visited in her home by Indian army to congratulate on her performance and
allegedly this irked ULFA fraternity and they believed her to be informer of India. She was
abducted from her home and was never found.

3.4.3 Case Study of Karbi Anglong minor rape (GBSV X): On April 6, 2015 army
personnel allegedly raped a minor girl and also molested her mother and grandmother. The
incident took place in village of Sarthe Tokbi. It is alleged that army men took the minor into
forest and when her mother and grandmother tried to rescue her, they were also raped by
‗Jawaans‘. Villagers reported the crime and a FIR was filed in the Dokmoka police station on
April 8. Though no further action was taken but its denial irked the community. Thousands of
people from Karbi Anglong protested outside the Dokmoka Army camp and protest turned
violent when police started firing which further snowballed into a state wide ‗bandh‘ headed
by PCC.

3.4(iv) Some other Case Studies (GBSV XI & XII) In 1998, Shandini was raped by armed
forces in her village in Nalbari district. Her husband filed a complaint but later withdrew it
because they were threatened that army will file a counter case for defamation and the
survivors couldn‘t afford and found it too embarrassing to confront the judicial discourse. In
2007, search and cordon operation were conducted by CRP in collaboration with Indian
Army in a village in Dibrugarh. Some personnel went to another village and raped Purnima
while holding her husband to a gun point. They raped her on turns and she fainted. Villagers
took her to near police station to file a complaint but police refused to record it and army

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denied its involvement and one of their arguments was that rape was done by ULFA since
their uniform is similar to Indian army. She was not even given her medical reports. There
was an inquiry set up by SHRC but until now no compensation or reparation is given for the
GBSV committed against her.

3.5 Conclusion

Above mentioned case studies (12 case studies from three states) raises some pertinent
questions. Before concluding this chapter, I will briefly list down themes which are persistent
across all case laws. Firstly, GBSV is an integral part of any armed conflict. The purpose of
engaging with three conflict was to further the argument that change in nature of conflict i.e.
ethnic, cultural, demographic, contesting nationalities, etc. does not mitigate GBSV.
Secondly, whenever perpetrators are armed forces, the entire state machinery have
aggressively rebutted the claims through various modalities (an attempt to tarnish military‘s
image, GBSV committed by insurgents in guise of armed forces, etc.). Lastly and more
importantly, Legal framework (in form of legislative enactments, constitutionalism and
Judicial review) have sided with State Institute on face of such manifest injustice. Even
landmark cases such as of Manorama which stirred the conscience of nation faced procedural
resistance of legal framework.

In Next part, I will engage with some of questions that are raised by such incidents and
analyse why‘s of GBSV in conflict zones.

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 PART IV – Confronting GBSV and Institutional Impunity in
Conflict Zones (Causes and Criticism of Indian engagement).

4.1 – CAUSES

4.1.1 GBSV as political and cultural tactic of war: One of primary causes for widespread
GBSV in contemporary conflicts is its usage as a tactic of war and form of reprisal.
International fraternity has recognised GBSV as a tactic of war, employed to humiliate,
dominate, instil fear and disperse (forcibly relocate) civilian communities or ethnic group (as
was evident in Bosnian war). Uma Chakravarti in her paper blatantly criticised routine
typecasting of such violence especially in nation making. She used the term off inscribing
nation upon women‘s body.124 It is often asked whether such incidents are spontaneous
consequence or was it a well thought out strategy to curtail the insurgency. Answer to that
question will vary depending on the cases. Let us take two aforementioned examples from
Manipur. In case of Manorama, dubious circumstances in which she was apprehended and
bullet wounds in her genitals are evident that the perpetrators wanted to punish her for
participation in insurgency and put up her as an example for consequences of fighting against
state. On other hand, sexual assault of Naobi is reflective of a more spontaneous aftermath
because her alleged boyfriend killed officers of Indian army and Army wanted to take
humiliating revenge for loss of its officers.

Irrespective of immediate cause of such horrendous incidents, rape had been used as a potent
weapon to coerce people into submission. It is considered as a retribution for belligerent‘s
―collective crime‖. Normative usage of GBSV as a weapon of conflict in India is an
established ground. Let us take example from another ongoing conflict in India (Kashmir).
Infamous mass rape in Konan Poshpora has become a metaphor for impunity enjoyed by
army in J&K. In Konan & Poshpora, search and cordon operation were conducted by army in
February 21, 1991. Male villagers were taken to the makeshift interrogation centre and
women left behind were brutally raped by army men. Ghastly nature of the incident can be
elucidated that mother and daughters, minors, pregnant women and women as old as 65 were
raped in front of family members. The case was dismissed in 1991 owing to prosecution‘s

124
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 54.

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report and was reopened in 2013 but as we write today, not a single perpetrator faced trial.
Survivors are still waiting for some sort of justice in spite of acknowledgment by state
government. It is one of many instances wherein Army used GBSV for reprising and
humiliating sub nationalist aspirations. Part of then DGP of Kashmir (DGP JN Saxena)‘s
interview is reiterated below which shows the extent to which GBSV is considered as a tool
of war.125

―Interviewer: Why is it that the maximum number of rapes and other atrocities has
taken place in Kupwara?

DGP Saxena: Because it is badly infested (with terrorists) area. Udhar to jahaan pair
maariye wahaan arms milte hain (Wherever you set foot over there, you will find
arms).‖

In other words, State institutions felt it justified to rape 30 village women because it was
thought the village was sympathetic to militants. Seema Kazi in her paper stated that abuse of
Kashmiri women was not only politic weapon but also a cultural weapon to ‗inflict collective
dishonour on Kashmiri Muslim men.‘126

4.1.2 Silence/ Silencing of GBSV in conflict zones: This part of my assessment of ―why‖
revolves around silence. When we talk about GBSV in conflict zones, there is a deafening
silence. Cursory reading of testimonies of survivors in UIP project headed by Ram Narayan
Kumar will serve as a chilling reminder of how silence has become a tool for gross
violations. In one of interviews, survivor commented, ―Pain and anger well up inside me
from time to time. I feel disgusted, but what to do? They have the power and they have the
guns. I think we better stay silent‖.127

Silence manifests itself in many forms. There are instances that survivor makes a conscience
choice of abstinence from knocking door of judiciary. GBSV in partition is a glaring example
of it. Bhutalia comments that ―a resounding silence surrounds the question of women and
partition‖.128

125
Crisis and credibility: report of the Press Council of India, January and July 1991 (Lancer Publications
1991).
126
Seema Kazi, Between Democracy and Nation, Gender and Militarization in Kashmir New Delhi Women
Unlimited 155 (2009).
127
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 675.
128
Urvashi Bhutalia, Community, State and Gender: On Women‘s Agency during Partition, 28(17) EPW 12
(1993).

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Second expression of silence is when it is done by state institutions to preserve its own
legitimacy (denial, subversion of criminal justice system, etc.). Silence in GBSV and
endorsement of it contributes in creating a lasting culture of impunity. In majority of cases
mentioned in part III, entire state machinery and other relevant actors collude in silencing the
survivors.

With regard to NER conflict, silences against occupation is a norm. Yes, the silence is
conditioned based on power on other side. Fear of GBSV is lived in the subtlest form every
day by NER women. Information regarding GBSV in conflict zones is hard to come by. It is
submerged under many layers of silence and taboo. And there is a deafening silence on part
of institutions alleged of it. It is remarkable that not even a single armed professional has ever
been prosecuted for sexual atrocities in so called disturbed areas of India. Now that leaves us
with a lacuna of information on many fronts. Questions such as to why do soldiers rape? Are
only answered in theory. It brings me to my important argument that unless alleged
perpetrators are engaged, educated and made aware about it or an attempt is made to
understand their impetus behind committing such grave injustice is taken into consideration,
any discourse pertaining to GBSV in conflict zone will remain incomplete.

Under the leadership of Urvasi Bhutalia, project was started by IDRC to look at GBSV and
impunity in South Asia. One of primary objectives of project was to study the increasing
silence about GBSV even when its incidence has increased in recent conflicts.

4.1.3 Normalization of GBSV in Conflict Zones: Normalization directly flows from silence.
Historically we have accepted it as a collateral damage of conflict zones and spoils of war.
Taking cue from the mentioned case studies, most of sexual offences are not even reported.

Most worrisome development in NER conflicts is that all actors (State and Non-State) have
vested interest in continued violence leading to the perpetual state of siege. It will not be
wrong to comment that there are sections of stakeholders who are benefitting from this
industry of insurgency and unfortunately it is reaped at the cost of violence and survivors of
GBSV are peripheral figures within hierarchy of victims in conflict.

4.1.4 Gender Inequality and Patriarchy: Structural patriarchal norms endorsed by

structural violence is one of primary causes of GBSV. In a recent Security Council Open
date, 28 percent of member states emphasised on gender inequality as a root cause for GBSV.
Countries such as Belgium, France, Ghana, Vietnam, etc. strongly asserted that unless gender

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inequality is not addressed, GBSV in conflicts can‘t be substantially prevented.129 Resolution
2467 strongly identifies it as a cause of GBSV. Furthermore, the Secretary-General‘s
report articulates that while the UN approaches SVIC from an operational and technical
perspectives, it ―remains essential to recognize and tackle gender inequality as the root cause
and driver of GBSV, including in times of war and peace‖. In order to honestly address root
causes of why GBSV in conflict occurs in the first place, it is critical to dissect the ways in
which women‘s human rights are denied, watered down, and criminalized around the world,
in varying degrees in the home countries of these Member States.

Incidents of GBSV is deeply embedded within Indian patriarchy and as Dr Yakin Erturk
stated ―militarized environments empower both public and private patriarchy‖.130

4.1.5 Contesting Ideologies and Politics: We Versus Other

One of important factors for violence lies in the conflicting narratives and ideologies.
Insurgency in NER region can‘t be understood through same lens of secession struggles as in
other part. It is a mix of sub-nationality, ethnicity, immigrant-settler conflicts as has been
discussed in previous part. It is important to acknowledge that such competing claims by their
very nature are bound to be violent. Two themes are persistent across counter insurgency
operations by army in NER (i) It is ‗We versus Other‘ struggle - NER was and will always be
other and (ii) suffering of victims of violence are largely ignored in political narratives.
Interplay between both factors plays critical role in GBSV. The pursuit of justice becomes
difficult because state institutions in collaboration with each other are determined to
disbelieve that GBSV can be committed by army men who are safeguarding our territory.

Let us take example of Manorama‘s case. I have presented earlier both narratives and one can
see how both narratives differ drastically. As per Army, there was no GBSV involved and the
team followed due process when she tried running. It was aggressively reiterated that she was
a member of banned organisation. Such declaration lies at the central of my point. This
narrative leads us to believe that she was a terrorist and not a defenceless civilian who was
result of unlawful killing and rape. This narrative is in direct contradiction with narratives of
fact-finding teams, witnesses, family and inquiry commission. In such scenarios, Judiciary
have tendency to accept at face value the accounts given by state actors. Upendra commission
constituted post Manorama case repeatedly stated that army professionals did not even turn
129
Security Council Open Debate: Sexual Violence in Conflict, April 2019.http://peacewomen.org/security-
council/security-council-open-debate-sexual-violence-conflict-april-2019.
130
https://himalmag.com/autonomy-siege/.

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up for commission questionings and instead filed a case questioning the legitimacy of the
commission. It was because of this intervention that commission‘s report never went public.
A sceptical look at the Court‘s decision to direct MHA to take decision on publication of
Commissions‘ report was an attempt to maintain narrative of how defence forces are working
tirelessly to upheld security of the state and killing was done in due accordance with law of a
terrorist.

To complicate the matters is diversity of claims in insurgency in north east. Memories of

Nellia incident stands out wherein all forms of violence was perpetrated against a Bengali
Muslim community and some of incidents of GBSV was chilling. The argument that I am
proposing over here is that war and GBSV perpetrated run deeper than institutional us versus
them struggle.

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4.2 - ANALYSIS OF INDIA’S ENGAGEMENT WITH GBSV AND IMPUNITY

4.2.1 Failure of legal and constitutional framework to respond to GBSV in conflict

zones: Indian Constitutionalism often revere the concept of liberty and rule of law. Judiciary
has often taken upon itself to restore fundamental principles through various modalities such
as strong form of judicial review, transformative constitutionalism, PIL. Indian constitution
framers reiterated it many times that an individual lies at the heart of constitution and
fundamental rights are conscience of the constitution.131 The hagiographical accounts of
constitutional fabric and recent constitutional adjudication is witness to reactionary
interpretation theory.

However, the same revered rule of law facilitates use of ghastly and disproportionate violence
for governance and to justify war. Under disguise of expressions like ‗law and order‘, ‗public
order‘ and ‗state security‘ impunity is protected by legal framework. When rights of a citizen
with competing concept of nation comes into picture, Constitution and its interpreter have
often sacrificed the individual rights in claim of territorial sovereignty. P.B. Mehta while
critiquing Judicial sovereignty commented that the court has a relatively weak record when it
comes to questioning executive action in cases of preventive detention.132 One can‘t but
lament the fact that adjudication over rights of people in conflict zones is a typical ―modus
vivendi‖ approach to preserve its own legitimacy.

Intellectual rigour exhibited by courts in rights discourse usually take a backseat when
dealing with right to life and liberty in context of security legislations. Majority of
legislations which endorses impunity faced constitutionality challenges. Unfortunately, court
has never struck down any one of them. It is problematic that Supreme Court doesn‘t find
these legislations as contradictions to constitution. It goes on to show that national security is
given utmost importance by judiciary even at the cost of fundamental rights of its own
citizens. Upholding its validity has provided a bedrock for impunity to survive and flourish.
The journey of AFSPA from a temporary provision to an enactment which has its legitimacy
given by highest court of law indicates how impunity has become ―undeclared rights‖ of
security forces. Uma Chakaravaty pointed that now such emergency provisions has

131
GLANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION (1999).
132
P.B. Mehta, The Rise of Judicial Sovereignty 18 Journal of Democracy 70-83 (2007).

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transitioned to a right which is claimed by the army as an integral part of combating
secession.133

133
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 54.

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 Case Law Year Legislation Judicial pronouncement
Challenged on its validity

Haradhan Saha V. State of West 1974 MISA Upheld

Bengal
A.K. Roy V. Union of India 1982 NSA Upheld
Kartar Singh V. State of Punjab 1994 TADA Upheld
Naga‘s People Movement of 1998 AFSPA Upheld
Human Rights V. Union of India
People‘s Union for Civil Liberties 2004 POTA Upheld
and Another Vs. Union of India
4.1 Constitutional adjudication on Security Legislations

Coming to the GBSV discourse in Indian Legal framework, it was and still is highly ignored.
Not only GBSV in conflict zones, but also GBSV in riots or a spontaneous civil strife merely
finds its way to justice. Only few of the incidents make it to the public domain (In case of
NER, it becomes further marginalised due to multitudinous factors). Those which enter
mainstream (Let us say for example, Manorama‘s case, Konan Poshpora, etc.) through wide
reporting and fact finding are still awaiting justice and perpetrators have enjoyed immunity
under AFSPA or other local variants.

On similar premise, criminal justice system in India has failed consistently to address the
claims of victims of GBSV. Circling back to Manorama‘s case, the focus of investigation in
its investigation was cause of death. The investigation did not put importance on preceding
sexual assault. It is lamented that criminology in India hasn‘t established GBSV as an
expression of assault especially in conflict situations. It is a matter of regret that there are
only 4 Central Forensic Science Laboratories in country – Delhi, Chandigarh, Hyderabad and
Kolkata. There is not a single such infrastructure in disturbed areas of India wherein such
incidents are occurring on a daily basis.

Legal framework and Constitutionalism in India have assisted in strengthening culture of

impunity. Most of the contemporary writings on GBSV have concentrated on Institutional
impunity and this is where I would like to take a step ahead. As we can see from afore
mentioned causes, the culture of impunity is ‗too deep rooted, too sedimented, too
internalised and too normalised and too banal‘ for any legal discourse to be ever sufficient

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for redressal.134 We need to rethink impunity outside the realm of formal impunity
(through special legislations or constitutional legitimacy). We should be more concerned
about culture of impunity. None of the special legislations formally indemnify acts of
violence by personnel. Dolly Kilkon in her writings commented that AFSPA should not be
looked as a mere legal enactment but as a culture (AFSPA culture in scenario of GBSV
would guarantee perpetrators protection).135

To engage with atrocities committed in conflict zones, it‘s very important that voices from
peripheries are heard in public domain even if they are not addressed in legal discourse. An
astounding example of it from NER comes in form of resistance movements by women in
NER (discussed in later part of this chapter).

4.2.3 Reparation in Regimes of Impunity: Harm suffered by victims in GBSV is not only
immediate but of perennial nature. The incident has overwhelming scar on their lives. As
discussed in case studies, victims often feel social stigma and are forced to lead a life of an
outcast for no fault of theirs. They are rejected by their families and abandoned by husband.
Arubi (GBSV - IV) who was sexually assaulted in front of her husband lives with the stigma.
She is ridiculed, beaten and treated like an animal by her husband. It is a reminder of shame
that was brought upon his family. In case of Sanjita (GBSV - II) she committed suicide after
the incident. Similarly, Naobi (GBSV - III) used to live in her parental home in Thoubal
district but subsequently moved due to fear of life and persecution from the security forces.
As of now, she is living in an undisclosed location in Imphal.

Unfortunately, our legal system has no reparation methodology for them. In some cases,
monetary compensation was awarded to silence the victim (Arubi). Dubious attempt of
compensation was done in case of Konan Poshpora victims. Once PIL was filed in 2013, 39
of the 40 named survivors in the case received 100,000 INR as a compensation but there was
no formal record for it. It becomes evident that compensation is an instrument of impunity
and a tool for silencing the victim.136 Throwing away of money without any acknowledgment
defeats the purpose of reparation.

134
PATRICK HOENING & NAVSHARAN SINGH, Supra Note 13 at 54.
135
Dolly Kikon, The Predicament of Justice: 50 years of the Armed Forces Special Protection Act in India, 17
Contemporary South Asia 271-282 (2009).
136
Navsharan Singh, Thinking Reparation in Context of Impunity in LANDSCAPES OF FEAR -
UNDERSTANDING IMPUNITY IN INDIA 312 (Patrick Hoening & Navsharan Singh ed, Zubaan
publications, 2014).

51 | P a g e
For victims of GBSV, restoration of dignity can be proclaimed as most prominent form of
reparation. Also, we need deeper understanding of harm of such incidents from perspective of
individual and community.

Adding insult to suffering is adversarial set up. Delays in administrative and legal process
have really killed the spirit of redressal.

4.2.3 Politics of Nationality: Concept of nation building has often been critiqued and it is
evident that all national projects are contingent and contested. Particularly in landscape of
North Eastern region, it has been an avoidable victim of statist project with some resistance
even older than origin of Indian modern state.

As discussed in earlier part of this chapter, contesting ideologies have further the GBSV but
one can‘t lament and point that the way centre dealt with peripheries have only exaggerated
the conflict situation in NER. Sanjib Baruah while critiquing Assam‘s territorial division and
creation of new states stated that if policy of creating new states out of Assam was to contain
and pre-empt separatist insurgencies, the policy has remarkably failed. 137 In the same work,
he points out that one of primary political causes of instability in NER is ambivalent
federalism of India which fails on all characteristic components of federal structural
definitions.138

Looking at the political engagement of centre with NER, it appears dubious that Centre is
using morality in its politics especially looking at the amount of force and violence used to
suppress the insurgency coupled with institutional impunity.

4.2.4 Lack of Women Participation: It is a known fact that women‘s role in conflict
situations has often been side-lined especially in sub-continent countries due to existing
patriarchal norms. In India, women‘s contribution in conflict often found itself in peripheries
of any political discourse concerning conflict. In spite of growing consensus in international
community regarding women‘s role, Indian polity has blatantly overlooked the role in the
peace process in the region, both at the formal and informal levels. This has led to series of
social resistance coming straight out of women from NER who were tired to bear the brunt of
war and null acknowledgment from both state and non-state actors.

137
SANJIB BARUAH, INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY 200
(Oxford University Press, 1999).
138
Id.

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4.2.5 Resistance against GBSV and militarization in North East: Women resistance
against militarization and institutional impunity garnished intense momentum in starting 21 st
century and two significant unique protests that stirred the mainstream political discourse in
North Eastern states were: Irom Sharmila‘s fast and ―Indian Army Rape us‖ naked march of
Meira Phaibies. Both of them are distinguished protests and are evident of extreme steps that
women have taken to have their voices heard. Both of them are discussed briefly below.
Before proceeding with them, it is important to acknowledge that women‘s resistance in north
east against oppression had always been important facet of its political engagement. One of
the prominent freedom fighters was Rani Gaidinliu. She along with her master, Haipou
Jadonang fought against oppression by the British empire. She was arrested and was in prison
for almost 15 years. Prominent Political leaders like Nehru condemned her arrest and it was
him who gave her the title of ‗Rani‘. She was instrumental in mobilising women to join army
of Heraka community, called Riphen.139 She combined politics with spirituality to pose a
challenge against British empire. Post-independence, she played pivotal role in countering
Naga nationalist ideas endorsed by NNC.140 Under her leadership, Heraka gained popularity
amongst cognate tribes such as Zeme, Liangmai, Rongmei Nagas and Npui collectively
called, Zeliangrong. In spite of her efforts, most of Naga population converted into
Christianity. Though cultural revivalism of indigenous Heraka speaks volume about her
credentials as a political and spiritual protagonist in north east India.

Irom Sharmila‘s ‗satyagraphic‘ fast: The beauty of this resistance lies in the methodology and
philosophy engrained in it. It was a Maloom massacre of November 2000 which enraged the
young Irom. In the mentioned incident, Assam Rifles killed eight people sitting in the bus
station under the counter insurgency operations. Irom was intensely disturbed by the news
and decided to fast up to death until draconian legislation of AFSPA is repealed from the
state. She told her mother and took her blessings and along with famous Meira Phabies‘
activist Mongol Devi went to Maloom, massacre site and sat for public fast. She was arrested
and for one decade, she was mostly under judicial detention and the state has declared her as
a habitual offender. She has been on fast for 10 years and has been forcibly fed through nasal
tube. Her focal point remains repealing of AFSPA so that normalcy can be restored in
Manipur and also questioned the development façade of state government.

139
Ajailiu Niumai, Rani Gaidinliu: The Iconic Women of North East India, 25 Indian Journal of Gender Studies,
351 (2018).
140
Id.

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Irom has tied her political protest with her seeking self-purification. In one of her interviews
she stated that, ―I have not succeeded so far in my aim. It means that I have to purify myself.
God is experimenting with me. I have to cleanse myself first‖.141 The significance of this one-
person protest can be symbolically adjudged by the fact that she has become the face of
resistance against militarization in north east. She has gathered international support. For
example, UNESCO‘s Commission for Human Rights has supported her and condemned
Indian government. Many national and international organizations have showed solidarity
with her. For example, the people of Gwangju, South Korea, awarded her the prestigious
Gwangju Human Rights Award in May 2007.142

Another equally disturbing resistance movement that has become the poster of women
resistance against AFSPA is naked protest of Meira Phabies. Brutal nature of rape and
murder of Manorama incited the fire of women activists and 12 women protested nude in
front of Kangla fort in Imphal on July 15th i.e. after 4 days of the alleged offence. Kangla fort
was used as a station for Assam rifles and is also a symbolic representation of rich Manipuri
heritage. Such protest in India was unprecedented and it broke the shackles of all gender
norms and patriarchal nature of Indian society.

Fig 4.2 Nude Protest by mothers of Manipur

141
Interview of Irom Sharmila with Deepti Mehrotra in RML Hospital, New Delhi (March 2, 2007).
142
The Gwangju Prize for Human Rights is an award given by the South Korean May 18 Memorial
Foundation to recognize individuals, groups or institutions in Korea and abroad that have contributed in
promoting and advancing human rights, democracy and peace through their work. The award is intended to
commemorate the spirit of the May 1980 Gwangju Democratization Movement.

54 | P a g e
Shouting ‗Indian Army, Rape Us, Take Our Flesh‘ was a spirited challenge to the security
forces, an expose of crimes committed in secrecy. Everybody ‗knew‘ security forces had
committed rape, yet the State refused to acknowledge culpability.143

4.2.6 Sexual Violence of men and children: This is something which I call peripheries
within peripheries. Academic discourse over GBSV in India has normally exhausted all its
energy in GSV of women. However, rape and sexual assault of men and children in form of
torture is not an unheard concept but as of now there is little to no literature and even
contemporary policy framers have not really thought about these marginal victims. Reason
for pointing this lacuna is widespread form of torture which are utterly sexual of nature
directed against male or children. Everyone is aware of interrogation methodologies wherein
a captured terrorist/ insurgent is marched naked in the whole of neighbourhood, alien object
inserted in his anus, scrotum balls are chopped off, electrolocation of penis, etc. At first, this
might look like scenes from some cinema capturing essence of torture of inmates but one
can‘t deny that this representation though dramatic are not entirely fictitious. Taking support
from case studies conducted under UIP Project shows multiple instances of torture in form of
sexual assault against male members.

143
Deepti Mehrotra, Restoring order in Manipur – The Drama of Contemporary Women‘s protests in THE
PERIPHERAL CENTRE VOICES FROM INDIA‘S NORTH-EAST (Preeti Gill Ed., Zubaan Publications
2010).

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 CONCLUSION AND RECOMMENDATIONS

GBSV in NER illustrate the gendered overtones of India‘s undeclared war to maintain its
territorial sovereignty and an extent to which impunity has become an undeclared right of
these forces.144 Such cases exemplify contemptuous attitude of Government toward women‘s
bodily and sexual integrity. Another striking evidence which aggressively elucidate
government‘s stance on conflict zones is refusal of recommendation of Verma Committee.
The said committee was instituted by the Central Government post Delhi gang rape and
recommended that security forces be brought under the purview of general criminal forum
instead of martial laws in cases of GBSV.

Justice in GBSV remain an elusive promise for survivors. Most of the survivors are not
hopeful of any justice but they are fighting for it. As it was stated by one of the survivors of
Konan Poshpora in her interview, ―We knew that if we remained silent, they would do it
again, if not in our village then somewhere else‖.

As a concluding remark, I would like to state that GBSV in conflict zones needs immediate
attention. We need to shift the lens through which we are taking steps. The only way of
campaigning against impunity would be a multipronged approach having legal reasoning,
political analysis and anthropological inputs. Therefore, I have divided my conclusion under
three disciplines and how a makeover is required with respect to them. I must point out that
these measures can‘t work in isolation and requires entrenched incorporation amongst
themselves.

LEGAL REFORMS

As argued in previous part, our legal framework and intervention with regard to GBSV in
conflict zones have been of complete abstinence and devoid of intention to sustain rule of
law. We require a complete makeover when it comes to legal framework governing GBSV in
conflict zones.

144
In 2009 two young women, Asiya and Neelofar, were raped and murdered in the town of Shopian. It was
suspected that rape and murder was done by security personnel and some eye witnesses substantiated the
allegation stating that they heard screams in a police vehicle. The case gathered lot of international media and
state was criticised heavily for the way investigation was conducted in lieu of protecting the security personnel
from prosecution. It was one of important factors for electoral loss of Omar Abdullah headed NC in state
elections of 2015.

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Repeal of AFSPA: Do we really need it? What are we sacrificing in pretext of providing
unfettered impunity to armed forces and whether armed forces can‘t work without it? These
are some questions which require immediate intervention. Repeal of AFSPA may not end the
violence but can be a contributing factor for deterrence. It will dissuade personals from
resorting to unnecessary violence. The repeal will also bring back some fundamental rights
(Right to truth and Right to Repairment) One of prominent step that state can take is to bring
security personnel under the purview of general criminal jurisprudence vis-à-vis rape and
sexual offences. There is an urgent need to diminish the line between perpetrators in civilian
attire and perpetrators in uniform.

Ratification of all outstanding international human rights instruments- India is not party
to and have not signed the Rome statute and other human rights conventions such as Torture
Convention (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment). It is important that India ratifies to them because these instruments run at the
core of issues of GBSV in conflict zones and ratifying to them would provide policy impetus
to Indian Government.

Incorporation of principle of proportionality in adjudication concerning Conflict zones:

The idea of ―national security‖ taking precedence over human rights need to be revisited.
Constitutional adjudications in India have safeguarded individual autonomy and integrity to
an extent. However, we need to carry forward the vision to situations when individual rights
are pitted against security issues of the nation.

Principle of Command Responsibility: We should take inspiration from ICTR‘s

adjudication in Akayeshu case. Principle was also recommended by Verma committee in its
report and it is high time when we should look at GBSV as more than just an act of violence
of an astray or undisciplined army men. There are conclusive evidences that such acts are
related with methodology of warfare and therefore if onus is put on the commanding officer,
the accountability of such offence is bound to get uplifted.

POLTICAL AND SOCIAL DIMENSION

Principle of Reparation The general meaning of reparation is understood to be making

amends. Stover & Weinstein in their work commented that reparations are ―the physical
embodiment of a society‘s recognition of, and remorse and atonement for, harms

57 | P a g e
inflicted‖.145 As established in previous chapter, reparation policy in India is restricted to
monetary compensation and gender aspect of it is completely missing. Political framework
needs to incorporate reparation while addressing GBSV victims. This can be done through
multiple methodologies Many countries such as Guatemala, Peru, Morocco, Sierra Leone,
etc. have reparation programs inclusive of GBSV as a crime.146

Recently there was a joint press release by four organizations – Human Rights Alert (HRA),
Extrajudicial Execution Victim Families Association, Manipur (EEVFAM), Centre for
Human Rights Studies, OP Jindal Global University (JGU) and Centre for Study of Social
Exclusion and Inclusive Policy (Manipur University) urging the immediate need for
establishment of ―truth commission‖.147

Recognition of women‘s role in conflict: It is pertinent to acknowledge women‘s role in the

peace process in the region, both at the formal and informal levels. It is strongly urged that
Indian state and insurgents conform to and conform to UNSCR 1325 along with Resolutions
1820, 1888, 1889, 1960, 2106 and 2122 and to come up with domestic policies for
incorporation of this progressive UN provision towards women‘s participation in peace
processes also emphasised by CEDAW CO 2014.148

ROLE OF SOCIAL MOVEMENTS/ HUMAN RIGHTS ORGANIZATION AND

MEDIA It is important to bring the voices and plight of survivors of GBSV from peripheries
to the mainstream and women‘s movements play critical role in doing so. One of the success
stories of 21st century is women movement for justice of Korean comfort women. After 50-60
years of silence suffering, aggressive women movements and coordinated efforts between
national/ international women‘s movements and human rights organization culminated in
establishment of Women‘s International Tribunal on Japanese Military Sexual Slavery.

It is need of an hour that resistance movements against gross violence and impunity should be
coordinated. It is widely acknowledged that movements in India face a coordination
challenges due to multitude of factors. Coordinated campaigns across the regions are nascent
phenomenon. Arundhati Roy pointed in one of such conventions against human rights abuses

145
ERIC STOVER & HARVEY M. WEINSTEIN, MY NEIGHBOR MY ENEMY: JUSTICE AND
COMMUNITY IN THE AFTERMATH OF MASS ATROCITY 122 (Cambridge University Press 2004).
146
Office of the United Nations High Commissioner for Human Rights, Rule of Law tools for Post-Conflict
States HR/PUB/08/1 (2008).
147
Truth Commissions needed in Manipur for justice to victims‘ The Morung Express (April 15, 2019).
http://morungexpress.com/truth-commission-needed-in-manipur-for-justice-to-victims/
148
ANURITA K HAZARIKA & SHEETAL SHARMA, ARMED STRUGGLE, IDENTITY AND THE
STATE: EXPERIENCES OF WOMEN IN CONFLICT SITUATIONS IN ASSAM, INDIA (2014).

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in Kashmir that people resisting against abuse should form a ―tactical, political and
intellectual alliances‖ or else they will end up like a fish swimming in a wall with strong
walls and exhaust their resources.

One important thing in social discipline is regarding role of Press in bringing the voices in
public discourse. While I was reading a book on Konan-Poshpora, there was an interview of
one of young lawyer activist who filed and restarted case after 2 decades in 2013. She said
that one of reasons that inspired her to take action was that if entire country can stand against
Delhi gang rape and make justice system accountable for it, why can‘t that be done for
Kashmiri women?149 Afterall, Kashmir as Indians contest is integral part of it. Similar
analogy can be drawn with respect to NER women. Why can‘t their plights be addressed in a
same way a plight of metropolis victim is considered.

Recently there was a Netflix series based on Delhi gang rape. One thing that stands out is that
everyone is mainstream discourse is aware of the incident and remembers it. It is etched in
our memory as an epochal event that shaped feminine jurisprudence and initiated evolution of
rape laws. What about the innumerable events and horrendous incidents that happened in
NER? No mainstream media has ever gone beyond meta narratives to understand
complexities associated with politics of NER and widely prevalent GBSV.

Maybe it is time that we force ourselves to remember those atrocities committed in NER for
better future engagement with NER pertaining issues.

I would like to conclude my project with an interview of one of survivors which brings
forward need to remember and fight for justice.

―In the deep, dark depths of oppression,

Remembrance is what we hold on to‖.

- Survivor

______________________________________________________________________

149
ESSAR BATOOL ET AL, Supra Note 15 at (xiv).

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