AFSPA has no place in a constitutional democracy

Updated on Dec 15, 2021 08:25 PM IST

It is now past time to repeal AFSPA and restore a semblance of the rule of law to the landscape of our constitutional democracy

Mon: Relatives and locals during the funeral of the 13 people who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021. (PTI Photo)(PTI12_06_2021_000213A) (PTI) PREMIUM
Mon: Relatives and locals during the funeral of the 13 people who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021. (PTI Photo)(PTI12_06_2021_000213A) (PTI)
ByGautam Bhatia

Last week, the shooting — and killing — of numerous civilians in Nagaland, in what turned out to be a botched military operation, has occupied the centre of national attention. The killings have turned attention back to the Armed Forces Special Powers Act (AFSPA), which is currently in force in many parts of the country.

AFSPA was originally enacted in 1958, and is almost as old as the Republic. The law was modelled on colonial British legislation, that had been enacted to suppress protests during the Quit India movement. At its heart, AFSPA blurs two functions that, in a constitutional democracy, should be kept separate and distinct: Military operations against foreign aggressors, and policing within a nation’s borders. It does so by empowering state governors or the central government to declare specific areas as “Disturbed Areas”. Once an area is declared a “Disturbed Area”, the Constitution — and ordinary laws — effectively stand suspended, and are substituted by an effective military regime. Under AFSPA, armed forces can fire upon citizens, destroy property, and arrest people without a warrant — all actions that are clothed with legal immunity, with very few exceptions.

The killings in Nagaland are not an isolated instance: In the history of AFSPA — which has been overwhelmingly deployed in the states in the Northeast (with variants of the law being deployed in Punjab and Jammu and Kashmir) — there have been many reports of extra-judicial killings (the most notorious being the Malom massacre), enforced disappearances, and custodial torture, which have gone un-investigated and unpunished.

The most common justification trotted out to defend AFSPA is that it is born out of State necessity, in order to effectively govern restive regions where the civilian forces of law and order have been found wanting. There are, however, several problems with this argument.

The first is the cynical manner in which it is deployed. In the history of the Republic, public violence has not been restricted to the geographical peripheries of the Indian nation-State. It is not every response to violence, however, that is met with the heavy hand of military rule. This is not, of course, a call for the imposition of AFSPA everywhere in the country; but rather, a clear indication of how — when the State wants — it can use less repressive and more constitutional means to address the problem of violence.

The second is that in its six-decade history, there is no evidence to show that military rule helps to end the cycle of violence, or to bring about a just peace. If anything, the evidence is to the contrary: As pointed out by multiple expert reports, including those headed by former judges of the Supreme Court (SC), the imposition of AFSPA fuels cycles of violence, and leads to a vicious circle where the response to violence is greater repression, which then engenders more violence, which — in turn — calls forth even more repressive responses in order to deal with it. This cycle of violence cannot be broken by any actor other than the State, which has the power to determine how it chooses to respond in any given situation.

Third — and at a more principled level — AFSPA entrenches a “state of exception” into our constitutional democracy, and severely damages the rule of law. It is generally accepted that in the life of a nation, there may occur temporary emergencies (such as a declared war with another State), where normal rules need to be suspended. However, the very point of an “emergency” — as the name suggests — is that it is a tool of the last resort, to be deployed when the gravity of the situation demands it, when no other option is possible, and that too for as short a time as possible, and with accountability. AFSPA, however, fulfils none of these requirements: It has turned into a tool of first resort, to be deployed with impunity, without accountability, and it has become a near-permanent feature in the places where it has been imposed. This effectively puts such places under a regime of “permanent emergency rule”, and makes a mockery of the Constitution’s guarantees of civil rights and equal protection before the law.

In 1996, in one of its most ignominious decisions, the SC upheld the constitutional validity of AFSPA, including all its departures from the basic principles of the rule of law. While expressing anguish about its “abuse”, the Court nonetheless washed its hands of the matter, failing to understand that the issue is not “abuse”, but use – the use that is baked into AFSPA’s draconian provisions. The Nagaland killings show that we are still living with the consequences of that decision. It is now past time to repeal AFSPA and restore a semblance of the rule of law to the landscape of our constitutional democracy.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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