Most democracies have, in their statute books, ‘extraordinary laws’ that are enacted to deal with ‘contingencies’. As instruments of the state, these laws seek to restrict or suspend or deny, ostensibly as temporary measures, the civil liberty of the individual citizens. These laws are against the spirit and principles of democracy insofar as the idea of the individual’s dignity and his or her civil liberty is central to the ideals of democracy. But the undemocratic spirit of these laws is sought to be justified by claiming that these laws are ‘temporary measures’ to deal with certain ‘extraordinary’ situations.
However, these laws tend to traverse a trajectory that makes them permanent rather than temporary. A classic example is the Armed Forces Special Powers (Assam and Manipur) Act 1958, which was amended as the Armed Forces Special Powers Act in 1972. This act was enacted as a ‘temporary measure’ for a ‘few months’ to deal with the ‘armed revolt’ that erupted in the Tuensang region in the then North Eastern Frontiers Agency (the present day Arunachal Pradesh) and the Naga hills of the undivided Assam in the mid 1950s. However, it has come to be a part of the statute book of the largest democracy and a reified manifestation of its politics for the last forty-seven years!
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 terms of real political conduct, it is a dilemma of deciding which interests should get precedence over others. 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.
This choice is not necessarily rooted in the rationales specific to the exigencies of a given ‘extraordinary’ situation for which a given legislation is being effected. It can be a part of a politics that gets constituted through the choices people have made over a period of time. For instance, the rationale for such a choice was articulated even during the making of the Constitution for India. In what could be considered a prophetic articulation that anticipated all the rationales behind the notorious ‘extraordinary laws’ that the post-colonial India would enact, Pandit Lakshmi Kanta Maitra, a member of the Constituent Assembly, put forth his argument on what he called ‘high reasons of state’. While seeking to retain the provision on ‘preventive detention’, he had this to say,
Preventive detention…is a very important question involving an important principle…I am one of those who have systematically opposed the preventive detention in any shape or form in the past…(but) the situation is now completely changed…we are going to start a new state of our own, an absolutely independent State, and…the Union Government must be armed with certain powers which can be used by it…for the interests of the State itself…now we have got our own State, our own Government elected by the people…There is no danger of civil liberties being trampled under ruthlessly and carelessly as it has been done in the past under the British Rule. If…some persons were found by the Government, on reliable information, out to create mischief that would…be detrimental to the best interests of the Dominion…do you think that the Government should sit quiet and not move in the matter, simply because there has been no overt act on their behalf which would bring them under the clutches of the law? There may be fifth columnists who may be secretly working…they may be in pay of a foreign Government…therefore it is not a question of civil liberties being in danger; it is a question of high reasons of State, and reasons of State should take precedence over everything.
It was indeed a remarkable statement that signified the psychology that was to inhabit the post-colonial state in South Asia: 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’. It was the psychology that would be played out time and again in the post-colonial period. Over a period of time, as it inhabits the body-politic of the state inherited from the colonial masters, the psychology gradually acquires a paranoid character: a grandiose sense of self with its corresponding persecutory thoughts.
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’. Free from the wretched colonial dispensation, post-colonial India has become Mahan (Great) — as in the slogan of Mera Bharat Mahan, My Great India. Yet it is also simultaneously an India that is sensed as the ‘ ‘besieged’ us’. 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’. This political paranoia works in tandem with what Partha Chatterjee called the ‘old forms of the new state’ not only to produce the draconian ‘extraordinary laws’ but also a politics that subverts the basic fabric of society and polity in South Asia. 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).
The AFSPA: Disguised War
The AFSPA is no ordinary ‘extraordinary law’. Far from being informed by the principles of the normal civil and criminal jurisprudence, its premise is based on the principles of war. The section 3 of the AFSPA, which introduces the Act as an instrument that allows the ‘military forces’ to enter the domestic space ‘in aid of civil power’, is only a thinly disguised legal fiction that seeks to obfuscate the real nature of the Act. A cursory reading, leave alone a perusal, of the Act will unmistakably show that the AFSPA seeks to supplant rather then supplement civil authority by an illicit military ethos and regime. It is this character that sets the AFSPA apart from the rest of all other notorious ‘extraordinary laws’ in India.
The military character of the Act is reflected in more ways than one. To begin with, the AFSPA allows the ‘use of armed forces’ defined as ‘military forces, the air forces operating as land forces’ and ‘any other armed forces’ of ‘the Union’ (Section 3) within the domestic space. Section 2 (c) of the Act also clearly shows the close affinity between the AFSPA and those laws governing the military, such as the Army Act (1950). It reads, ‘all other words and expressions used herein but not defined in the Air Force Act, 1950, or the Army Act 1950, shall have the meaning respectively assigned to them in those Acts.’
For the AFSPA to come into force, all that is required is that a territory (a state of the Indian Union, a centrally administered territory, or any part thereof) be described as ‘disturbed’. Subsequent amendments to the act have expanded the scope of the AFSPA to its application in any location, anywhere in India. This has led to its being invoked in Punjab in the 1980s, and in Kashmir, where it has been in operation from the early 1990s till today.
Under the AFSPA, as in declaring a war, once an area is declared as ‘disturbed’, the personnel of the armed forces simultaneously acquire powers to use ‘force as may be necessary’, based on their ‘opinion’ and ‘suspicion’, to effect ‘arrest without warrant’ or ‘fire upon or otherwise use force, even to causing death’ (Section 4) within that area. Given the hierarchical command structure of the military, and simultaneity of acquiring these powers with the declaration of the area as ‘disturbed’, a power that can only be exercised by the personnel under their commanding officers, to say that the act is ‘in aid of civil power’ makes no theoretical or practical sense.
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’. Free from the wretched colonial dispensation, post-colonial India has become Mahan (Great) — as in the slogan of Mera Bharat Mahan, My Great India. Yet it is also simultaneously an India that is sensed as the ‘ ‘besieged’ us’. 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’. This political paranoia works in tandem with what Partha Chatterjee called the ‘old forms of the new state’ not only to produce the draconian ‘extraordinary laws’ but also a politics that subverts the basic fabric of society and polity in South Asia. 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’.
The nature of these powers conferred upon the armed forces is quite in tune with the military paradigm and business of war. For instance, unlike the assumption of innocence of an ‘accused’ or ‘suspect’ (until he or she is proved guilty) in normal criminal law, a significant measure that protects a citizen, the hostile intention of the inhabitants of the space that is rendered ‘disturbed’ by the simple fact of the declaration of the AFSPA is taken for granted by the military personnel. As the act does not derive its rationale from the principles of normal criminal and civil jurisprudence, one does not need separate bodies or agencies to take decision and execute those decisions. Thus, as in war, the ‘opinion’ and ‘suspicion’ of the commanding officer of a military formation (commissioned, junior commissioned or non-commissioned officer in the military) serves as the basis for exercising the powers to ‘fire upon or otherwise use force’, which he thinks is ‘necessary’. Correspondingly, these powers can also be exercised for acts that ‘likely to be made’ or ‘about to [be] commit[ted]’ (Section 4)!
In all other laws, including the various preventive detention and anti-terrorist legislations that have come and gone or stayed in the course of Indian judicial history (the forces of law and order can (or could) at the most, detain without trial, for varying lengths of time. However, the AFSPA gives the armed forces personnel an additional and crucial item of power: to shoot to kill, or to destroy property, on the basis of a mere suspicion. Here, there is not even the necessity of the elaborate staging and retrospective narrative devices associated with the production of an ‘encounter’. The AFSPA empowers the armed forces to do away with the legal fiction of the ‘encounter’ and to act as judge, prosecutor and executioner all at once, and often in the course of an instant.
Indeed, unlike the other ‘extraordinary laws’ that are meant for law enforcing agencies such as the police, the AFSPA is unencumbered by numerous qualifications, elaborate procedures and conditions. Thus, the ‘bare act’ of the AFSPA does not exceed more than six sections, and is contained in a single page in print form. Perhaps, it is only the requirement to disguise an unpalatable proposition of declaring war against itself that necessitates the Government of India to use a little more words in the AFSPA than what could have been the case if it were to declare a war against another State!
The war mentality that informed the AFSPA also rendered the civilian or non-combatant casualties at the hands of the armed forces as instances of ‘collateral damage’, rather than crimes committed by the personnel. Thus, without any or least moral compunction, most cases are explained away as unintentional acts on the part of the armed forces operating under the AFSPA, or at the most a few cases that could not be brushed aside are forced to be explained as ‘rare’ and ‘unfortunate’ instances of ‘abuses’ of the Act. Subsequently, the problem is, so goes the argument, not the law itself but its ‘implementation’. However, it has to be noted that the numerous cases of massacre or violence in the so-called ‘crossfire’ or ‘excesses’ of the armed forces are not examples of the ‘abuse’ of but the ‘use’ of the AFSPA. An Act which is framed with the principles of war and to be operated by the military forces with the power to use ‘necessary force’ even to ‘causing death’ or to destroy property or detained people ‘without warrant’, all based on the ‘suspicion’ and ‘opinion’ of the personnel of the armed forces, the death and destruction caused by their actions under (or ‘purported be done’ under) the AFSPA can only be the results of the ‘use’ rather than the ‘abuse’ of the power conferred on them by the Act. Indeed, to see these as ‘abuses’ or ‘excesses’ under the AFSPA is to obfuscate the fact that, theoretically and practically, the AFSPA amounts to a disguised declaration of war and that the human casualties—personnel of the armed forces, combatants of the non-state forces or insurgents, and civilians—are results of the ongoing disguised war.
This obfuscation of the real nature of the AFSPA circumvents people from interrogating the crucial issues on moral, political, economic and socio-psychological aspects of the war. Indeed, right from its inception in 1958, the disguised character of the war declared under the AFSPA was meant to circumvent any form of democratic accountability from within and without. Unfortunately, it has been fairly successful in that endeavour. For instance, the Government of India has been able to wage a war for decades on a section of its own population without drawing the attention of the citizens from the rest of the country as well as from the international community. If it were to invoke the ‘emergency’ provisions of the Indian Constitution by saying that the ‘national integrity’ of the Indian state is under threat and therefore the military have to be called in, it would have meant political and democratic accountability to the whole process. Indeed, such a prospect would have forced the people of this country to understand the nature of the situation that remains ‘extraordinary’ for decades, and also the real nature of this ‘extraordinary law’ beyond its stated claim as a legitimate response to a situation whose temporally specific qualities, by definition, make it an ‘extraordinary situation’. In short, the disguised war encourages the majority of the democrats and citizens of this country to remain innocent (or to fake innocence) about the decades-old embedded disorder implicated in the war, which the military engages with its own citizens branded as the ‘enemy within’, and the casualties of war that go hand-in-hand with the democratic facade represented by elections to constitute legislative organs of the state and the judiciary that performs its democratic task, albeit its impotency to act independently against the executive arm, the armed forces of the state under the AFSPA!
Moreover, it is also a disguised war in which the military cannot be held accountable by international conventions on war. Indeed, the military is in a sense freer than it would be if it were actually in an alien territory. The Geneva Conventions of 1949, to which India is a signatory, specify the limits of military action in the event of war. Section 4 of the Convention clearly prohibits the military from taking the life of civilians, non-combatants or even of combatants who have laid down arms. It furnishes detailed guidelines for detention of non-combatants; it goes on to prohibit collective punishments, and damage to property, explicitly forbids the military forces from interfering with the work of medical and religious personnel, and details the ways in which military forces are to deal with women and children, including a stringent prohibition on rape or any conduct detrimental to the dignity of women and children. Such instruments known as the ‘Articles of War’ govern the Indian armed forces.
However, these instruments are for the declared wars and conflicts of the ‘international’ kinds. Even though there are international conventions that regulate ‘non-international conflict’ such as the Additional Second Protocol of the Geneva Conventions, enacted in 1977, the AFSPA enables to wage an internal war without legally admitting it. Moreover, India is not a signatory to the Additional Protocol of 1977. Thus, while the AFSPA amounts to a de facto declaration of war, it allows the armed forces to act as if they were, de jure, not in a war situation. To all intents and purposes the armed forces act as if they are at war, but at the same time they are not bound by the international laws that govern the conduct of war.
The impunity under the AFSPA goes far deeper than these international conventions. Even under the jurisdiction of the Indian state, where its proclaimed democratic institutions seek to ensure protection of its citizens against the abuses of power by the agencies of the state or one citizen against another, the impunity is already granted to the personnel of the armed forces by the Act itself. For instance, that the acts committed by the executive arm of the state (the armed forces) under the ambit of this tacit declaration of war cannot be challenged by those who bear the brunt of the AFSPA in a court of law is clearly stated in Section 6 of the Act, which reads:
No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government in respect of anything done or purported to be done in exercise of the powers conferred by this Act.
Sadly, neither members of the Indian Parliament, when they voted on the Armed Forces (Assam and Manipur) Special Powers Bill in 1958; and again in 1972, (when an amendment was brought in to make the AFSPA more stringent, and when the power to promulgate AFSPA was vested in the central government) nor, the President of India (when he signed it into law) or the Supreme Court (when it upheld the ‘constitutionality’ of the Act in 1997) considered even for a moment that Section 6, apart from granting impunity to the members of the armed forces in the ‘disturbed areas’, also constitutes an effective challenge to the principle of the separation of powers that are vital to the checks and balances inherent in any functioning democracy, or of federalism.
What this section does is to elevate the military arm of the executive above judicial and legislative scrutiny in a way that gives complete carte blanche to the State vis-à-vis a population that can have no legal protection, recourse or relief against the armed forces. It makes it impossible even for the regional government to initiate any action against anything done under AFSPA, and reduces it to nothing other than ‘proconsuls’ of the tyranny of indirect central rule. Not only does Section 6 of the AFSPA subvert the principles of judicial remedy and independence, but it also echoes the convenient legal fiction of the 'extraterritoriality' principle that Imperial powers invoke when they seek to protect their soldiers fighting wars on their behalf in distant lands.
In effect, it brings to bear one legal regime for people in the states and territories affected by the AFSPA, and another for the rest of India. The consequent legal inequalities that obtain between a ‘citizen’ of India who happens to live in Manipur and a ‘citizen’ of India who happens to live in, say, New Delhi, amount to a chasm so wide as to render the concepts of ‘Indian citizenship’ or ‘equality before the law’ devoid of substance. Indeed, the differential mapping of the territory and its inhabitants is crucial in understanding the political assumptions that gave birth and nurture the AFSPA.
State: Its Imagination of Spaces and Rationale for Violence
Most people, including critiques of the Act, tend to think in terms of ‘law and order’ while looking at the AFSPA. And as a result, not only does the debate tend to be caught up in the legality of the Act but the real nature of the Act—its military premise and principles of war—often gets diluted. For instance, the critics of the Act lament that the authority to form opinion and arrive at the decision to exercise the powers under the Act is given to the non-commissioned officers rather than the commissioned officers. However, the issue here is not about which rank in the police hierarchy should deem to be qualified to have the authority to order the use of force while policing. It is war, and wars are not fought only with the battalions and the brigades but also with smaller military formations such as the sections and the platoons. The non-commissioned officer of the Indian army who commands the smallest military formation (i.e., a section) is more than equipped and qualified to form ‘opinion’ and take decisions to carry out the ‘necessary’ actions in the battlefield. Moreover, it is a ‘low intensity war’ that does not involve the movements of a large number of troops and military hardware. In such a war situation, the role of the smallest formation of the Indian army (i.e., a section) is of crucial importance, and the powers enumerated in Section 4 of the AFSPA are in tune with the requirements of such a situation.
The full legal and political import of the Act will come to light only when we unravel the obfuscated premise of the AFSPA, i.e., it is an instrument of war for the military. As long as policing and war are treated as synonymous aspects of the executive arm of the State, the full import of the legal and political implications of the Act will remain murky and continue to threaten the people and the polity. Therefore, unraveling the real premise has to acknowledge certain cardinal dimensions implicated in the military involvement as legitimized by the AFSPA. For instance, the AFSPA produces legal complications, such as those born out of the gap between the normal criminal and civil laws (e.g., Criminal Procedure Code and Constitutional provisions) and the military laws (e.g., the Army Act, 1950). And, politically, the legitimization of military involvement in the domestic affairs of the State indicates serious ailments of a democratic polity. Most importantly, it also reproduces and re-enforces the divisive character of ‘imagining’ (in Anderson’s sense of the expression) the ‘Indian nation’. These implications shall begin to unfold when we look at the way the modern state maps its spaces and rationalizes its violence within those spaces.
The modern State, as an institution, positions itself as the only legitimate authority that has the absolute prerogative to use violence. Both in theory and practice, this is the sine-qua-non for any State to exist. Under an autocratic sovereign monarch or an authoritarian/ dictatorial regime, the coercive violence of the State becomes the dominant feature. The republican and democratic ideals seek to mediate and control the State’s claim and capacity to use (coercive) violence. It does so by shifting the sovereignty and kratia (power) to the demos (people) from the ruler. In the liberal democratic sense, this shift is carried out and justified by positioning the idea of a sovereign individual capable of making rational choices as the a-priori fact of life. Subsequently, principles to protect this idea itself and the interests of this individual, including protection from violence of the State are pursued both intellectually and politically. The UN Human Rights Charter or the Fundamental Rights guaranteed by the Indian Constitution to its citizens are examples of those principles.
One crucial aspect of the effort to domesticate the violence of the State is the refashioning of its basic instrument of exercising (coercive) violence: the soldiers of the State. In pre-modern States, the soldiers used to play a dual role of enforcing the authority of the ruler on his or her subjects and conducting wars to expand or defend the suzerainty of the ruler. However, in most modern States, this instrument of coercion and violence is bifurcated into two broad categories, namely, the police and the military, and both are placed under the command of the demos through their representatives. While the police are used to enforce law and order within the State, the military is left to deal with the business of war and to defend the State from external aggression.
Thus, the operational principles for the policemen are framed keeping in mind the space where citizens reside, while those of the military are framed keeping in mind spaces where (the foreign) enemy resides. The space where the policemen operate, i.e., the domestic space, is a highly differentiated space. For instance, its inhabitants, i.e., the citizens, are conceptualized as normal, abnormal (insane), adult and minor, criminals, etc and their acts and intents are judged accordingly. Even the act of killing someone is differentiated in terms of culpable or non-culpable homicide. The institutional structures with which and within which the police operates are also horizontally organized as in executive, judiciary, legislature, fourth estate, etc. Therefore, statutory principles lay down elaborate conditions (e.g., the assumption of innocence till guilt is proven in a court of law, the principle of using ‘minimal force’ when it is necessary, etc) for any agency of the State to deal with its highly differentiated domestic space. In short, the republican and democratic principles and institutions seek to protect the citizens from the violence of the State within the domestic space of the State.
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