Afspa: The Darker Side Of Indian Democracy

The Armed Forces Special Powers Act (AFSPA) allows the government to declare an entire state or a part of a state a ‘disturbed area’. Such a notification implies that the area in the words of the text of the law, ‘is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers is necessary.’ Once an area is declared ‘disturbed’, members of the armed forces can make preventive arrests, search premises without warrant, and even shoot and kill civilians, while engaging in the task of restoring and maintaining public order. Legal proceedings against members of the armed forces require the prior approval of the central government, a provision of the law that is seen as de facto immunity against prosecution.

AFSPA was adopted by the Indian Parliament in 1958 during the early days of the Naga rebellion; it originally applied to what was then the state of Assam and the Union Territory of Manipur. It has since been amended a number of times to accommodate the names of the new states of Northeast India created since then. Two other laws with the same name were enacted later: in 1983 for Punjab and Chandigarh and in 1990 for Jammu and Kashmir.

AFSPA is not based in the Constitution’s Emergency Provisions (Part XVIII, Articles 352-360). The Emergency of 1975-77 and President’s Rule have their legal basis in that part of the Constitution. A disturbed area declaration – and the sweeping powers that the armed forces acquire – has obvious similarities with emergencies or states of exception, including martial law and the state of siege. It is, therefore, useful to look at AFSPA through the lenses of the jurisprudence of emergency. All democratic constitutions have emergency provisions; they define an emergency, and lay out governmental powers and restraints during emergencies. Obviously, fundamental freedoms are effectively suspended in a ‘disturbed area’. But since it happens under the authority of AFSPA, it is not subject to the usual restraints of a constitutional emergency. Since the temporal limits governing constitutional emergencies do not apply, a state can be under AFSPA for years – even decades – on end. The AFSPA regime, in that sense, is a form of undeclared emergency rule.

If state violence, repression and impunity are among the defining features of authoritarian rule, AFSPA surely is a piece of authoritarian legislation par excellence. Some of the most repressive methods in the repertoire of counter-insurgency, such as village regrouping, were used against Nagas and Mizos; and AFSPA provided legal cover. For those on the receiving end of AFSPA, living in a ‘disturbed area’ is no less nightmarish today than it was in the 1950s and 1960s. This is the message Irom Sharmila tried to convey to decision-makers in Delhi and to the rest of India through her 16-year long hunger-strike – an extraordinary act of ‘communicative suffering’.

AFSPA has been in force in many parts of Northeast India for a long time. There are intended and unintended consequences of this – some extremely damaging to the culture of democracy. Consider an episode recounted by anthropologist Dolly Kikon. It involves a security force that no one intended to include in the meaning of ‘armed forces’ under AFSPA: the Central Industrial Security Force (CISF). It is designed to protect the country’s economic infrastructure, including airports. In 2007, its personnel shot and killed a person in an area of Assam where it was responsible for guarding oil installations. The incident did not occur at any of the structures secured by the CISF. AFSPA was not explicitly invoked. But the CISF, while defending its action, said it had to be extra vigilant because of the region’s poor security conditions. The incident was later explained as a case of ‘mistaken identity’. Local citizens initially protested the killing; but soon family members accepted monetary compensation and the public mood changed; people wanted to move on and leave the incident behind. AFSPA creates ‘different expectations and concepts of justice’, observes Kikon. If she is right, even the Kaziranga National Park’s newly acquired reputation as ‘the park that shoots people to protect rhinos’ is perhaps not unrelated. According to a BBC report, that brought the ire of the Indian authorities upon the reporter, the park’s rangers have ‘the kind of powers to shoot and kill normally only conferred on armed forces policing civil unrest.’

It has to do with the double inheritance of the postcolonial state, as Sudipta Kaviraj once put it: it being a successor to both the colonial state and the Indian national movement. AFSPA is, of course, only one of the many coercive laws in India with roots in the colonial era. Jawaharlal Nehru and his generation of leaders – who fought British colonial rule, wrote the Constitution, and was part of the national government when laws like AFSPA were adopted – were aware of this contradictory inheritance; and they gave it some thought. Thus in 1951, during the debate in Parliament on the Constitution’s First Amendment Bill that expanded the government’s power to limit press freedom, Nehru accused the bill’s opponents of not having ‘faith in ourselves, in our Parliament or our assemblies.’ He said his critics did not trust democracy.

The history of AFSPA in Northeast India is now almost as long as the history of the Republic. There is a remarkable continuity of policy from Jawaharlal Nehru to Narendra Modi. AFSPA’s beginnings were in the Nehru era; many see it as the golden era of Indian democracy. By the time Irom Sharmila came to the conclusion that no government in New Delhi will ever concede to her demand of repealing AFSPA – and ended her sixteen-year hunger strike – Narendra Modi was prime minister. Civil protests in AFSPA states, and criticism by rights groups – domestic and international – have moved the needle, but ever so slightly.

In 2004, the abduction, suspected rape and murder of a young woman, Thangjam Manorama, sparked off a powerful protest movement in Manipur demanding the repeal of AFSPA. The Manmohan Singh-led first UPA government in response, appointed a committee headed by former Supreme Court Judge, B.P. Jeevan Reddy to review AFSPA: perhaps the most significant move to date towards changing the status quo on AFSPA. The committee was asked to consider whether to amend AFSPA – and bring it in line with the government’s human rights obligations and commitments – or to replace it with ‘a more humane’ law. In its report in June 2005, the committee recommended the repeal of AFSPA, and the incorporation of some of its key provisions into the Unlawful Activities Prevention Act (UAPA). In addition, it recommended a few reforms such as creating grievance cells in districts where the army operates to ‘ensure public confidence in the process of detention and arrest.’8 The Centre sat on the report for a while in the face of a strong push from the security establishment not to accept any of its recommendations. In March 2015, the Ministry of Home Affairs recommended to the Cabinet Committee on Security, headed by Prime Minister Modi, to reject the report.

In 2009, the idea of revoking or amending AFSPA in Jammu and Kashmir was actively debated. It was provoked by widespread anti-AFSPA protests against fake encounters – cold-blooded murder of innocent civilians framed as deaths of ‘insurgents’ in fictional encounters with security forces. Responding to the public anger, the then Chief Minister Omar Abdullah suggested that AFSPA would be revoked or amended when the situation improves. Kashmiri commentator Anuradha Bhasin Jamwal, however, asked rhetorically: ‘Since when does he or any establishment in Jammu and Kashmir have the autonomy to deal with something that Centre imposes’?Military generals and BJP politicians – then in opposition – were sharply critical of Abdullah. People who talk of the dilution or withdrawal of AFSPA, said the then army chief, and now BJP Union minister, V.K. Singh, do it for political gains. To consider modifying AFSPA or withdrawing troops from Jammu and Kashmir, said BJP leader L.K. Advani, is to surrender to Islamabad: its ‘strategy of breaking India’s unity.’ Even though no one had suggested withdrawing Indian troops from Jammu and Kashmir, the fact that the BJP leader saw it as being related to ideas about reforming AFSPA is significant. Not surprisingly, in the face of such strong and emotive political opposition, the talk of revoking or amending AFSPA in Jammu and Kashmir dissolved into thin air.

What these developments have in common is the critical role played by one set of special interests in determining the eventual outcome of the discussions. Our political leaders at the top seem unwilling to go against the wishes and preferences of the security establishment. This can’t be good for the culture of our democracy.

I am not convinced that AFSPA is primarily a response to insurgency, that once insurgency is over – I am not even sure what that means any more – AFSPA will be gone. It will be hard to explain the long life of AFSPA in Northeast India in terms of any clear and imminent danger emanating from insurgency. While there have been some influential insurgent groups, the vast majority of armed groups routinely referred to as insurgents do not constitute insurgency in any serious analytical sense. Scholars who study insurgency and armed conflicts comparatively have long known that the idea of a mass-based insurgency – the focus of conventional counter-insurgency theory – bears no relationship to the so-called insurgencies of Northeast India.

Even when an armed group may have sovereign statehood on its list of political demands, the challenge it poses has very little in common with the guerrilla warfare envisaged in the canonical works on counter-insurgency. The resilience of armed groups in Northeast India is not because of the advantages traditionally associated with guerilla groups. They thrive by taking advantage of the imperfections in the rule of law; they maintain ties with mainstream actors in politics and business, and engage in strategic violence.

The reason AFSPA has been around for all these years in Northeast India may have more to do with the logic of path-dependency – an inability on the part of our state institutions to break away from past habits. A ‘disturbed area’ declaration is very rarely a response to what anyone can reasonably call a challenge to the authority of the Indian state. It is designed to provide utmost flexibility to the security forces in its operations against ‘insurgent groups’ – big and small. That a decision that effectively suspends fundamental freedoms can be made so casually in a democracy has just not been part of the conversation; at least not in non-AFSPA states.

I find it interesting that while the story line about Northeast India is changing in significant ways, there is not much talk about repealing AFSPA. There is, to be sure, among citizens. But in the ‘peace talks’ currently underway to end various armed conflicts in the region – including the Naga talks – the repeal of AFSPA does not figure high on the list of priorities of either side. Official India now likes to re-imagine the region as India’s ‘gateway to the East’ and a ‘land-bridge to Southeast Asia.’ Many see great potential for the region’s prosperity in building cross-border economic ties with Southeast Asia. But unfortunately, there is no evidence thus far that our policy elites can imagine a future Northeast India without AFSPA.

References:

• Bethany, Lacina, ‘Does Counterinsurgency Theory Apply in Northeast India?’ India Review 6(3), July-September 2007, pp. 165-183.
• Biggs,Michael, ‘When Costs are Beneficial: Protest as Communicative Suffering’, Sociology Working Papers, no. 2003/04, University of Oxford.
• Burra, Arudra ,‘The Cobwebs of Imperial Rule’, Seminar 615, November 2010.
• Government of India, Ministry of Home Affairs, Report of the Committee to Review the Armed Forces Special Powers Act, 1958, 2005.
• Jamwal, Anuradha, ‘Politics of Human Rights Abuses’, Kashmir Times (Srinagar), 26 April 2009.
• Kaviraj, Sudipta, ‘The Post-colonial State: The Special Case of India’, Critical Encounters, Posted on 19 January 2009, https://criticalencounters.net/2009/01/19/the-post-colonial-state-sudipta-kaviraj/
• ‘Kaziranga: The Park that Shoots People to Protect Rhinos’, BBC News, 10 February 2017. http://www.bbc.com/news/world-south-asia-38909512
• Kikon, Dolly, ‘The Predicament of Justice: Fifty Years of Armed Forces Special Powers Act in India’, Contemporary South Asia 17(3), September 2009, pp.75-81
• Yengkhom Jilangamba, ‘Sharmila and the Forgotten Genealogy of Violence in Manipur’, Economic and Political Weekly 51(36), 3 September 2016, p. 15.
• United Nations, Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: India.’ 4 August 1997. https://www.hrw.org/reports/1999/india/India994-21.htm