AFSPA: the darker side of Indian democracy

SANJIB BARUAH

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Could you briefly summarize the main features of the Armed Forces Special Powers Act: What is the act, and where does it apply?

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.

 

You have written in the past that the AFSPA is a form of ‘routine emergency’. How do the powers conferred on state by the AFSPA compare to the Emergency of 1975-77, and to President’s Rule?

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.

There are important implications of undeclared or de facto emergency rule. It is not accidental that in debates in UN human rights forums Indian officials have claimed that AFSPA is outside the jurisdiction of the emergency clause of the International Covenant of Civil and Political Rights (ICCPR) since it is not legally based in the Constitution’s emergency provisions. State parties to the ICCPR commit themselves to certain restraints in responding to a ‘public emergency’. India has ratified the ICCPR. So its Human Rights Committee, as far back as 1997, had expressed dismay that ‘some parts of India have remained subject to declaration as disturbed areas over many years.’ In effect, said its report, India uses emergency powers for extended periods without the legally binding restraints spelt out by the ICCPR.1 However, the same year, a ruling of the Supreme Court of India that held AFSPA constitutional, stipulated that a ‘disturbed area’ declaration can only be for a limited duration; it called for periodic review of a declaration after every six months. But the ruling has had no practical effect. The state of Assam, for instance, has been a ‘disturbed area’ continuously since November 1990. The most recent six-month extension was announced in November 2016.

 

Would you say that the Armed Forces Special Powers Act is a sign of authoritarianism? What are its authoritarian features?

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’.2 She failed.

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.3 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.’4

 

You have written in the past that the AFSPA is simply a ‘dusted off’ version of the Armed Forces Special Powers Ordinance of 1942, passed by the colonial government. Can you explain why a democratic government adopted the same ordinance?

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. 5 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.6

We can certainly say in retrospect that Nehru underestimated the built-in institutional inertia of the postcolonial state. In the case of AFSPA, we see its effects in terms of the nuts and bolts of the law-making process. Rather than writing a new law to meet the actual exigencies of the situation in the Naga Hills, someone found it easier to recycle an ordinance used to suppress the Quit India movement.

Nari Rustomji of the ICS describes the terrible turn of events in the Naga Hills as ‘a ghastly tragedy… with civilized and intelligent human beings at the helm of the administration.’ He was Advisor to the Governor of Assam on Tribal Affairs – a position that included the oversight of the Naga areas at that time. Rustomji blames the decision squarely on ‘the tradition of decision making by precedent inherent in the administrative processes and inherited from the predecessor government. It was generally assumed during the early years of Independence, that the British technique of dealing with a situation was necessarily the correct technique, forgetting that the circumstances of the situation might be entirely different and necessitate a totally different approach.’7

A number of historical factors came into play. We often forget – or at least ignore – the fact that the colonial territories that postcolonial national elites inherited in the last century were often quite fragmented. The imperial space of British colonial India included not only areas under direct rule, but also those under various forms of indirect rule. The political-legal structure of the frontier province of Assam paralleled that of another frontier province of the British Indian Empire: the North West Frontier Province [NWFP], now in Pakistan. Both Assam and the NWFP had ‘settled districts’ and indirectly ruled areas. Among the indirectly rules areas of what is now Northeast India there were Native States, Excluded and Partially Excluded Areas and Tribal Areas. Sikkim was not even a part of India. It was a part of British Imperial India’s informal empire in the Himalayas – a Protectorate, like Nepal and Bhutan. When it came to some of the indirectly ruled Tribal Areas, British colonial rulers had little interest in extending modern governmental institutions to them; occasional military expeditions to teach the tribesmen a lesson was considered adequate. This history most likely, played a role in the disastrous decision to respond to the Naga rebellion with full military force.

 

The AFSPA, first legislated in 1958, has been retained by successive governments led by political parties with very different social bases and political ideologies despite civic resistance and international criticism. Why do political parties from across the spectrum support the continuation of this law?

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’?9 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.

 

How would you respond to the argument that the AFSPA – or AFSPA-like laws – are a necessary response to insurgency? How else could a democracy respond to insurgency?

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.10

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.11

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.

 

Why, in your assessment, did Irom Sharmila, whose hunger strike has been so important as a symbol of resistance to the AFSPA, do so poorly when she switched from protest to participation in elections?

You are right about Sharmila having been a symbol of resistance. But it is equally important to remember that throughout the sixteen years of her hunger strike, Indian state authorities refused to recognize her fast as an act of political resistance. Instead they charged her of attempted suicide and put her under consecutive periods of preventive arrest. She was force-fed at a hospital with her hospital room legally labelled a ‘sub-jail.’ The violence of state sovereignty was exercised on her body on humanitarian grounds, in the name of the state’s responsibility to provide care and custody to a wayward citizen bent on causing grievous self-harm. Perhaps her hunger strike and the forced-feeding she endured – the daily enactment of state violence on her body – stopped AFSPA from becoming as routinized as say, the Frontier Regulations of the colonial era, a tool of pacification that the colonial administrator could not do without.

It is true that Sharmila became an iconic figure. But it is equally true that most Indians did not take much interest in her cause. Hers was mostly a long and lonely battle. The coverage of Sharmila in the Indian media, as Manipuri historian Yengkhom Jilangamba points out, often ‘left the cause of her struggle – the repeal of the AFSPA – as secondary.’12 But the foundation of Sharmila’s appeal in Manipur was that people could relate to her politics of situated knowledge, her situated democratic imagination. She passionately believes with all her being that a self-respecting democracy has no business forcing citizens to live with a law like AFSPA. The conviction grew out of seeing the law at work in Manipur, a quintessentially AFSPA-state; her fellow citizens had no trouble relating to it. This Sharmila spoke truth to power.

But Sharmila, the wannabe politician, is another matter. Manipur has overwhelmingly rejected that Sharmila. Jilangamba convincingly explains why. It has to do with the deep crisis of legitimacy of representative institutions in Manipur, where ‘the operative word "representative" should be understood,’ writes Jilangamba, ‘as agent, courier, or envoy, rather than someone representing the people… Elected representatives who form the state government exist at the benevolence of the powers that be in New Delhi.’ Sharmila thought she might be able to bring change by becoming the state’s chief minister. But the representative institutions are so hollowed out that those who sided with her struggle for sixteen years were skeptical: a few good individuals, they concluded, can’t change this hopelessly corrupt, compromised and ‘well-guarded system’.13

 

What are the prospects you see for a critique or a repeal of the act to emerge from within India’s democratic framework?

At least in the short run, I am inclined to agree with Sharmila’s considered conclusion that in the foreseeable future, no government in India will repeal AFSPA. Of course, there have always been spatial variations in the application of the full force of AFSPA. The May 2015 announcement of AFSPA being withdrawn from Tripura is a development of that sort. Tripura’s circumstances are somewhat unique, related to its post-Partition demography; its peace may be less durable than it might seem. Its decision on AFSPA is unlikely to have much bearing on the rest of the region.

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.

 

* Reflections in response to a series of questions posed by Kanchan Chandra. 10 April 2017.

** In a number of my responses I draw upon a previously published essay, ‘Routine Emergencies: India’s Armed Forces Special Powers Act’, in Aparna Sundar and Nandini Sundar (eds.), Civil Wars in South Asia: State, Sovereignty, Development. Sage Publications, New Delhi, 2014, pp.189-211. Readers may wish to consult that article for elaboration of some of the points I make here.

Footnotes:

1. 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

2. Michael Biggs, ‘When Costs are Beneficial: Protest as Communicative Suffering’, Sociology Working Papers, no. 2003/04, University of Oxford.

3. Dolly Kikon, ‘The Predicament of Justice: Fifty Years of Armed Forces Special Powers Act in India’, Contemporary South Asia 17(3), September 2009, pp. 271-282.

4. ‘Kaziranga: The Park that Shoots People to Protect Rhinos’, BBC News, 10 February 2017. http://www.bbc.com/news/world-south-asia-38909512

5. Sudipta Kaviraj, ‘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/

6. Cited in Arudra Burra, ‘The Cobwebs of Imperial Rule’, Seminar 615, November 2010, p. 81.

7. Nari Rustomji, Imperilled Frontiers: India’s North-Eastern Borderlands. Oxford University Press, New Delhi, 1983, pp. 31-32.

8. Government of India, Ministry of Home Affairs, Report of the Committee to Review the Armed Forces Special Powers Act, 1958, 2005, p. 79.

9. Anuradha Bhasin Jamwal, ‘Politics of Human Rights Abuses’, Kashmir Times (Srinagar), 26 April 2009.

10. Bethany Lacina, ‘Does Counterinsurgency Theory Apply in Northeast India?’ India Review 6(3), July-September 2007, pp. 165-183.

11. Ibid., p. 165.

12. Yengkhom Jilangamba, ‘Sharmila and the Forgotten Genealogy of Violence in Manipur’, Economic and Political Weekly 51(36), 3 September 2016, p. 15.

13. Ibid., p. 18.

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