are ‘temporary measures’
to deal with certain ‘extraordinary’ situations.
However, these laws tend to traverse a trajectory that
makes them permanent rather than temporary.
In principle, the transformation of the ‘extraordinary’
into the ‘ordinary’ is often seen as a contradiction
of democracy. However, abstract principles and ideals
of democracy do not exist or operate in a vacuum. As
a real praxis embedded in the realities of the modern
state, ‘extraordinary laws’ signify more
of a ‘dilemma’ of actual political conduct
rather than ‘contradiction’ of principles.
Political actors in the modern state have to deal with
contesting interests between the values of ‘national
integrity’ and security of the state, and those
of the individual’s dignity and civil liberty.
In most states, the choice is the one that justifies
the precedence of the state over that of the individual’s
dignity and his or her liberty.
The psychology that seems to inhabit
the post-colonial state in South Asia is that of a persecuted
self assuring itself that it would be different from
its former malevolent masters, a promised benevolent
self that felt the need to assert its new-found power,
after years of slavery under the colonial rule, to act
against the enemy, the ‘fifth columnists’.
Thus, the ‘fifth columnists’ have become
the insidious ‘enemy within’, primarily
in the form of the ‘suspected community’
and the ‘foreign Government’ has become
the ‘foreign hand’. With a paranoid theme
— a self being persecuted because others are jealous
of its greatness, India cannot simply ‘sit quiet’;
it has to be constantly on the alert against the ‘enemies’
even if there has been ‘no overt act on their
behalf’. Indeed, it is this psychology that forces
the post-colonial India to act, to borrow the title
of the book by Sanjiv Baruah, ‘against itself’.
Hardly seven years after India declared
itself as a democratic republic, the violent self-infliction
of the post-colonial Indian state officially began when
it legally sanctioned a disguised war on a section of
its population by camouflaging its military as an instrument
of restoring ‘law and order’ within the
state. That legal sanction is the Armed Forces Special
Powers Act (henceforth the AFSPA), which this case study
explores.
Issues raised:
| • |
Extraordinary
laws that have been enacted to ostensibly deal
with contingencies more often than not become
permanent and, by that implication, ordinary law |
| • |
These laws reflect a dilemma
of political conduct in deciding whether the state
should be given precedence over the individual
and the enactment of these laws demonstrate that
precedence is given to the former over the latter |
| • |
The rationale of choices
so made is a reflection of the politics that has
been given expression through the choices that
have been made through the years |
| • |
The psyche of the post-colonial
state in South Asia is one of a grandiose and
persecuted self assuring itself that it will be
different from its malevolent masters yet executing
draconian laws to ‘win the war’ against
the ‘enemy within’ |
| • |
The AFSPA inherently seeks
to supplant rather than supplement civil authority
with an illicit military ethos and regime |
| • |
The nature of the powers
conferred on military personnel by the Act is
similar to the powers conferred on them while
conducting the business of war. The hostile intention
of the inhabitants of the region is assumed to
be true and action can be taken by armed forces
for acts against the state as well in anticipation
of acts that may be carried out in the future |
| • |
The AFSPA collapses the roles
of the executive and the judiciary and arms the
military personnel with powers to perform both
roles |
| • |
An Act that is framed on
the principles of war will, in its implementation,
result in the kind of execution that it has in
the Northeast and other parts of India. This cannot
be explained away as amounting to collateral damage |
| • |
Not only does the disguised
nature of this ‘declaration of war’
prevent other citizens from interrogating the
basis of the Act but also excludes the military
from being held accountable by domestic law or
international conventions on war |
| • |
Gap between ordinary criminal
and civil laws on the one hand and military laws
on the other |
| • |
Legitimization of military
involvement in the domestic affairs of the State |
| • |
The nature and extent of
force that a threat in the Northeast was responded
to by the Indian State is a recognition of the
fact that the Northeast is considered to be an
alien space that requires the implementation of
extreme security measures and not a domestic space
where threats of a similar nature would elicit
a weaker response |
| • |
In the Northeast, the military
has usurped the functions of other State organs
like the judiciary and departments like public
works, health, education, etc |
| • |
The merger of Manipur with
India was justified as a strategic necessity as
Manipur was regarded as a border state and hence
a backward state. This logic permeates India’s
relations with all the Northeastern states. The
strategic necessity of the Northeast to India
is maintained by military force alone. |
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