It’s only prudent to repeal this Act now. Study its record to strengthen the foundation of Indian democracy
As far back as 1776, Adam Smith in The Wealth of Nations reflected on the harmful effects of laws that “often continue in force long after the end of the circumstances that first gave rise to them and once made them reasonable”. In that passage, however, Smith didn’t consider laws that were not reasonable even in the circumstances in which they were made.
The Armed Forces Special Powers Act (AFSPA) is one such law. Since the full force of this onerous law comes into play only in “disturbed areas”, one must welcome the government’s announcement to reduce the number of such areas. But not to consider the repeal of this anachronistic law, which is now almost as old as the Republic, is a missed opportunity to reflect on why this law has or has not been successful, and to learn from this history and strengthen the foundation of our democracy.
AFSPA allows civilian authorities to call on the armed forces to come to the assistance of civil powers. Once a state — or a part of a state — is declared “disturbed” under this law, the armed forces can make preventive arrests, search premises without warrants, and even shoot and kill civilians. Legal action against those abusing these powers requires the prior approval of the central government — a feature that functions as de facto immunity from prosecution.
A disturbed area proclamation under AFSPA has uncanny similarities with emergencies or states of exception — including martial law and states of siege. Critics charge that it effectively suspends fundamental freedoms and creates a de facto emergency regime.
AFSPA was adopted in 1958 during the early days of the Naga uprising to apply to what was then the state of Assam and the union territory of Manipur. It is hard to believe that to contend with a small group of armed rebels in a remote infrastructure-poor region it was found necessary to have a law modelled on a colonial ordinance devised to tackle the Quit India Movement — the most serious challenge faced by British colonial rule since the rebellion of 1857, as the then Viceroy of India saw it. ThaThe counterinsurgency campaigns against the Nagas were counterproductive. The suffering brought by the forced displacements during village regrouping, for example, only broadened the support for the rebels. Senior government officials who knew the region well soon regretted the way such decisions were made. “It may well be asked how such a ghastly tragedy could have been enacted at all with civilised and intelligent human beings at the helm of the administration,” wrote Nari Rustomji of the Indian Civil Service, who held positions such as the chief secretary of Assam and adviser on tribal areas to the governor. During the Mizo uprising of the 1960s and 1970s what is now the state of Mizoram went through a similar devastating ordeal.
In the following decades, as new states were formed in Northeast India, AFSPA was amended to accommodate the names of those states.
Seven of the region’s eight states have been at the receiving end of AFSPA at one time or another.
Over the past six decades, AFSPA’s use has extended well beyond the actual conduct of counterinsurgency operations. Multiple state and non-state armed actors have operated under its shadow. For instance, in Assam in the 1990s, death squads — or “secret killers” as they were called — carried out a wave of extrajudicial killings. These could not have occurred without the cover provided by AFSPA’s disturbed area designation.
In 2012, the Extra Judicial Execution Victim Families Association of Manipur petitioned the Supreme Court to investigate as many as 1,528 cases of fake encounters that allegedly occurred in the state between 1979 and 2012. The Supreme Court appointed a three-member commission to inquire into the first six of the 1,528 cases in the petition so that it could be “fully satisfied about the truth of the allegations”. None of the small sample of six cases was found to be an actual “encounter”. Drawing on these findings, the Supreme Court bench decided that the allegations could not “be summarily rubbished”. Its interim judgment of July 2016 said that “there is some truth in the allegations, calling for a deeper probe”.
In the court’s view, AFSPA clearly provided the context for these killings. The practice of deploying the armed forces to assist civil power, the ruling stressed, is premised on the assumption that “normalcy would be restored within a reasonable period”. If the civil administration and the armed forces fail to achieve this, that “cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces”. That would be a mockery of “our democratic process” and “a travesty” of the constitutional distribution of powers between the Centre and the states, which provides the legal foundation for the practice.t such a law remains in force till this day does not speak well of our experiment with democracy.
This is not the only time the apex court has been critical of AFSPA. It is often forgotten that when it pronounced AFSPA constitutional in 1997, it also recommended some changes. Among them was the stipulation that a “disturbed area” designation be subjected to review every six months. In some parts of Northeast India, AFSPA is now routinely extended every six months. But there is little evidence that any meaningful review occurs at those times. A statement made by an Assam official in August 2018 when AFSPA was extended in the state for six months is illustrative. “The situation is peaceful,” said the state’s police chief casually, “but we will not take a decision on withdrawing AFSPA till the NRC exercise is over.”
Edmund Burke, a contemporary of Adam Smith, wrote of the circumstances in which the repeal of a law becomes necessary and appropriate. Since “laws, like houses, lean on one another”, he said, repealing a law can be difficult. But when a law’s “transgressions against common right and the ends of just government” are considerable, it is only prudent to abrogate and repeal that law. This is true of AFSPA.
Written by Sanjib Baruah
The writer is professor of Political Studies at Bard College, New York.
Source: Indian Express, 4/04/21
