The recent civilian killings of 14 Nagas of Oting village has created massive outrage amongst the public, for valid reasons. The said incident, which supposedly took place over “mistaken identity,” has raised several questions about the constitutionality of the Armed Forces (Special Powers) Act, 1958 (AFSPA).
The AFSPA was originally brought into force in the year 1958 under the Congress regime, to tackle widespread insurgency in the North-East. Three decades later, AFSPA was also imposed in Kashmir, which was classified as a "disturbed area" in 1990. Post-independence, the Indian State found it necessary to bring into force anti-terror statutes to maintain law and order and to largely suppress secessionist ideologies in certain areas. While evaluating post-independence anti-terror statutes, one sees similar trends in The Prevention of Terrorism (Repeal) Act, 2004 (POTA) and the Terrorist and Disruptive Activities (Prevention) Act,1987 (TADA) being used to curb labour movements organized by Maoist-Leninist groups in Uttar Pradesh and Jharkhand.
The AFSPA particularly equips the Armed Forces with sweeping powers, allowing them to detain individuals and even open fire and on mere grounds of suspicion. Section 4 of AFSPA reads that “any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may", among other things, “fire upon or otherwise use force, even to the causing of death" against any person who violates law or order in a supposedly "disturbed area" as per Section 3 of the Act. AFSPA also allows officers to “destroy" any structure or shelter from which armed attacks are made or are likely to be made or are attempted to be made, based on the “opinion that it is necessary so to do".
However, there is very little statistical evidence to suggest that the legislation has been able to tackle insurgency in the region during the last few decades. Manipur, for instance, has been earmarked a "disturbed area" as per Section 3 of the AFSPA for a prolonged period of 60 years. This has largely allowed for extra-judicial killings to take place in the region, under the pretext of maintaining "public order." Firstly, the declaration of a region as a "disturbed area" is based on ambivalent political decisions. As it is, the Armed Forces enjoy blanket immunities for any acts of aggression committed by them under the AFSPA regime, under the pretext of furthering national security.
Over the years, the said anti-terror law has given way for several excesses by the Armed Forces while raising serious concerns over human rights violations in their usage. Although the AFSPA was brought into existence to address situations of insurgency, it has largely been abused by State agencies without a caveat, against minorities and made use of during peace time. It is wholly unclear as to why the paramilitary forces have been deployed in the said region for such a prolonged period, despite the presence of the local police. The said statute has remained in force despite the severe lack of accountability that it brings with it. While it might be argued that force is a necessary evil to tackle situations of terrorism and insurgency, it has to be manifestly acknowledged that the instrument that was brought in for the protection of people are threatening their very existence.
Jurisprudence on AFSPA
The Supreme Court has often been termed as the custodian and guarantor of people’s rights. However, it has provided little to no relief by way of judicial intervention on the issue of military excesses. The Supreme court in Naga People’s Movement of Human Rights v Union of India (1998) upheld the constitutionality of the AFSPA and laid down a few safeguards concerning arrest and detention. The apex court restricted itself to deliberating on the constitutionality of the act rather than addressing its draconian nature and the lack of accountability thereof.
The petitioner in the said case argued that the conditions persisting in the area are similar to an ‘armed rebellion’ which would therefore attract the Emergency powers enshrined under Articles 352 to 356 of the Constitution. The Court, however, rejected the contention, holding that such a situation would not fall within the scope of armed rebellion and therefore would not attract Article 352 of the Constitution, given that it can be tackled with army deployment. By allowing for impunity of the Armed Forces for the excesses committed by them under the Act, the Court eventually validated ‘military supremacy’. As Hillyard argues, the judiciary in such instances becomes rather complicit in the ‘violence of jurisprudence’ and that the State becomes instrumental in fostering the state of violence.
Legislative Intervention
More importantly, the AFSPA has been kept alive and kicking despite recommendations and parliamentary debates advising its repeal. Over the years, several committees such as Justice Jeevan Reddy Committee (2004), the Justice JS Verma Committee (2012) and the Justice Santosh Hegde Committee (2013) have deliberated on extra-judicial killings in the North-East and largely made findings to the effect that the AFSPA has not been able to achieve its objective of maintaining law and order in the region, and that the statute has given way for human rights violations. The Justice Jeevan Reddy Committee particularly, submitted a report recommending the repeal of AFSPA and suggesting amendments to the Unlawful Activities (Prevention) Act, 1967. However, these exercises proved futile, since the Committees’ recommendations were never implemented.
Constitutional Validity
It might be pertinent to note that the Constitution provides for adequate safeguards by granting the State several powers to curb freedom and liberty on the declaration of a state of Emergency. However, what the constitutional framework does not permit is the operation of such Emergency powers during normalcy. Constitutional experts have often argued that anti-terror laws must not be allowed to operate within the ‘state of exception’ (as termed by Nazi-era philosopher Carl Schmit), whereby the State is permitted to transcend the rule of law under exceptional circumstances for the larger public good. Although the State allows for anti-terror laws to operate contrary to the rule of law in extraordinary situations, it is allowed to do so only within the constitutional safeguards set forth in Article 22(7), as envisioned by our drafters.
In other words, draconian anti-terror laws such as the AFSPA operating during normalcy, outside the scope of this provision, would mean that they do not have the constitutional mandate to infringe upon the freedom and liberty of individuals. Moreover, the sustained use of anti-terror statutes such as the AFSPA severely undermines the right to life and dignity provided for under Articles 19 and 21 of the Indian Constitution. While the Constitution allows for freedom of speech and expression and civil liberty, anti-terror laws such as the AFSPA continue to uproot these very rights.
The Way Forward
Thus, the State must evaluate the effects of draconian counter-terrorism policies on civil liberties, while keenly acknowledging that they undermine the promise of constitutional morality. Allowing for the state of exception to become the new norm would mean that democracy becomes a mere illusion. In order to preserve the trust of minorities in the institution of democracy, the State must give effect to constitutional morality as envisioned by Dr BR Ambedkar, thereby considering the existence of minorities such as the Nagas equally important to that of other citizens.
There is an immediate need to decolonize our statutory corpus, so as to eliminate laws that create a culture of terror under the guise of controlling it. Not only has the AFSPA stripped the local communities of the North-East of their basic human dignity, but it has also been the reason for the sprouting of radicals which allows for the vicious circle of terrorism to persist. As we mourn General Bipin Rawat's death celebrating him as a national martyr, we must mourn the unhallowed death of the 14 Nagas with the same reverence.
On her conversation with the Nagas, Suchitra Vijayan in her book Midnight’s Borders transcribes,
"...what do we talk about after sundown with our neighbours? Exchange notes on our dead - my family lost three, yours lost four."
History certainly owes the people of the North-East an apology for the step-motherly treatment meted out to them over the last few decades and the first step to treating them with dignity is by repealing the AFSPA.
Sithara Sarangan is and advocate practicing at the Madras High Court.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.