AFSPA: a legacy of colonial constitutionalism

by Sanjib Baruah
The Imphal Free Press
Nov 30 2010

WHAT is the state of the republic on its sixty-first year? No assessment can be complete without consideration of the Armed Forces Special Powers Act (AFSPA), a law that has its roots in the legal framework of colonial constitutionalism inherited at independence, and is at odds with the democratic rights enshrined in the 1950 Constitution. It has been in force for fifty-two years in Northeast India, and in Jammu and Kashmir for twenty.1 Its controversial provisions are well known. In areas declared ‘disturbed’ under the act, the armed forces can make preventive arrests, search premises without warrant, and shoot and kill civilians. The judicial enforcement of fundamental rights is effectively suspended: court proceedings are made contingent upon the central government’s prior approval.



Northeast India and Jammu and Kashmir have seen powerful protests against the AFSPA. However, in the country as a whole the law has had a relatively smooth sailing. The public is either uninterested, or they appear to acquiesce to the government’s claim that these are circumstances where security must trump liberty. Courts and expert bodies have been far too willing to hide behind the ambiguity in the idea of the rule of law between the rule of substantive principles, and the notion that any governmental action conforms to the rule of law so long as it has formal legal sanction.

The AFSPA permits a localized form of indefinite emergency rule; but since it is not called that it is not subjected to the limits that democratic constitutionalism seeks to impose on emergencies. The AFSPA is a legacy of the ‘routinised use of constitutional, emergency-like executive authority’ that along with explicit emergency powers were among the tools in the hands of the British colonial state to establish executive supremacy over ‘the limited space established for democratic participation’ during the decades before India’s independence.2 It is no accident that our neighbours Pakistan and Bangladesh – also successor states of British colonial India – both have some version of the AFSPA.

The story of how democratic India has made its peace with this law raises troubling questions about our postcolonial constitutional culture. A revamped version of an ordinance issued in 1942 during World War II to deal with the Quit India Movement, the AFSPA appeared on the scene relatively early in the history of the republic. It became law in 1958 when Jawaharlal Nehru was prime minister, a time that many view as the golden age of the republic. It provided the legal framework for the armed forces to engage in counter-insurgency operations against Naga rebels. Northeast India today has not one, but multiple ‘insurgencies’ – including ragtag armed bands that stretch the standard meaning of the term. The law is now in force not only in the areas where it was originally introduced – described at that time as the Naga-inhabited areas of Assam and Manipur – but it has been extended to the rest of Northeast India as well.

What is problematic about the AFSPA is not only the actual violation of rights that occur in ‘disturbed areas’. No less troubling to constitutional democrats is the fact that once the AFSPA is in force – as it is in all Northeast Indian states – the government through a simple notification can declare any area, the entire state, or parts of the state, as ‘disturbed’ without any public debate. The deployment of the armed forces, the suspension of fundamental freedoms and the ‘special powers’ of the armed forces can immediately come into play. An area can remain ‘disturbed’ for years on end.

Official India treats the AFSPA as normal and routine. Thus the latest annual report of the Home Ministry describes the ‘disturbed areas’ under the AFSPA simply under ‘Steps taken by government to deal with the situation in the North Eastern Region.’ The summary of the security situation preceding that discussion states that ‘a number of states in the region have been witnessing various forms of insurgency, together with ethnic and communal violence/tensions in some cases.’3

As this rather loose use of the term insurgency makes apparent, most armed conflicts in Northeast India are not mass-based rural insurgencies that challenge state power – the focus of conventional counter-insurgency theory. Many militant groups are quite unexceptional in terms of military capacity, political constituencies, or ideological appeal. There are of course, significant exceptions to this. But the resilience of numerous small militias points to fundamental structural weaknesses of the Indian state that our political class seems unwilling to acknowledge. These armed groups survive by taking advantage of the imperfections in the rule of law and maintaining ties with mainstream actors in politics and business.4 These are not exactly characteristics traditionally associated with powerful guerrilla groups.

Among the ‘disturbed areas’ listed in the Home Ministry’s report, some are in states that the same report describes as having had either no violence or very limited violence.5 Even in Mizoram, a state that our officials often describe as an island of peace in the region, and where there has not been anything that can be called an insurgency for more than two decades, the AFSPA remains in force as a ‘sleeping act’6 in Indian bureaucratic parlance. When it comes to governing Northeast India, viewed as a ‘frontier’ by colonial administrators, the prevailing assumption seems to be that the executive branch needs the flexibility to be able to declare any area as ‘disturbed’ and use force without having to worry about the fundamental rights of citizens.

Since these powers are not thought of as emergency powers, the question of justification does not come up. The persistence of the AFSPA then testifies to a state that is strong in coercive capacity, but commands much less governance capacity. At least in Northeast India, it is hard to argue that the Indian state is what political scientists would call a strong state. The flexibility vis-à-vis decisions to use coercion and suspend democratic rights that the AFSPA embodies compensates for the lack of those elements of governance capacity associated with strong states.

The AFSPA has become so normalized that many Indian officials find criticisms made from a democratic rights and accountability perspective utterly incomprehensible. They accuse critics of being misinformed: allegedly they confuse the fact of the AFSPA being in effect, with areas actually declared ‘disturbed’ under the AFSPA. Thus the Governor of Mizoram, a retired military general, said in 2007, ‘It is really surprising that the people have been talking of this Act being applicable in whole of North East. Nothing could be more untruthful and damaging than this. The AFSPA is only applicable in parts of Manipur, parts of Assam and Nagaland. It is not applicable to other states of North Eastern Region.’

It appears quite obvious to this official that the Indian Army’s internal mechanisms are adequate to prevent human rights violations. Challenges by human rights groups are only attempts to damage the reputation of the armed forces. It is a fallacy, says the Mizoram Governor, that the armed forces use the AFSPA indiscriminately. ‘If it was so, there would have been a total revolt against such forces… The strength of the armed forces is in its discipline. Each action is investigated and any violation of rules is swiftly punished within a few months.’7 It is rare to find a responsible high official in a democracy defend with such passion the case for military self-regulation as a remedy for human rights violations.

Neither the Indian Parliament, nor the Supreme Court, and not even the Jeevan Reddy Committee (2004-05) appointed by the Government of India to review the AFSPA have bothered to carefully examine whether the challenges that the government faces really require the extraordinary emergency powers of the AFSPA. In its 1997 ruling on the AFSPA, the Supreme Court did not consider the actual working of the AFSPA, and the evidence of human rights violations presented by the petitioners. The court addressed the question of the AFSPA’s constitutionality very narrowly, asking only whether the Indian Parliament had the competence to make that law: an extraordinarily thin conception of the rule of law. Human rights violations were not considered relevant to deciding the issue.

As a critique of the ruling by the People’s Union for Democratic Rights (PUDR) put it, in pronouncing the AFSPA constitutional, the court did not deal with ‘the basic fact that the Constitution does not envisage long term deployment of the armed forces in civilian areas and considers any armed forces deployment harmful to the democratic fabric.’ Nor did it inquire whether the actual use of armed forces amounts to providing assistance to civil power. It left out of its consideration empirical evidence showing that the role of the armed forces in ‘disturbed areas’ extends well beyond that of assisting the civil administration. There are ‘dozens of incidents’, according to the PUDR, ‘of collectors, superintendents of police, ministers and other high officials of the civil administration being themselves stopped at gun point from entering areas falling within their own work jurisdiction.’8

The Reddy Committee defined its mandate rather modestly: to find a middle ground between the ‘security of the nation, which is of paramount importance’ and the rights of citizens. Its report acknowledged that ‘there have been a large number of cases where those taken away without warrants have “disappeared”, or ended up dead or badly injured,’ and proposed grievance cells in districts where the army operates. It recommended the repeal of the AFSPA, but also the incorporation of key provisions into another law, the Unlawful Activities Prevention Act (UAPA). In effect it proposed a significant reform with one hand, and took it away with the other. The stated goal of this self-contradictory recommendation, quite incredibly, was to help ‘erase the feeling of discrimination and alienation’ among the people of Northeast India.9 However, even these modest recommendations were not accepted by the government because of the dogged opposition of India’s security establishment.

Unlike the nation-wide Emergency of 1975-76 that was rationalized in constitutional terms by a supposed existential threat to the state, the government has not found necessary to try and justify the AFSPA in terms of any existential threat to the nation or the state. Apparently two technicalities have been enough to satisfy our legislators and opinion-makers: (a) the AFSPA does not invoke the Constitution’s emergency provisions, and (b) the armed forces ‘assist’ and do not supplant civil powers. However, multilateral human rights bodies have not been as easily persuaded. It is hard for objective observers to see why the AFSPA does not amount to an undeclared localized emergency regime.

In 1997, referring to the AFSPA, the Human Rights Committee established under the International Covenant of Civil and Political Rights (ICCPR), to which India is a signatory, expressed its dismay that ‘some parts of India have remained subject to declaration as disturbed areas over many years.’ India, in effect, said the report, uses emergency powers for extended periods without following procedures spelt out in a Covenant.10 The reference is to Article 4 of the ICCPR that says, in times of ‘public emergency which threatens the life of the nation,’ states may take measures ‘derogating from their obligations… to the extent strictly required by the exigencies of the situation.’11

In defending the Indian position, our officials have been careful not to claim that the challenges it faces in Northeast India meet the Covenant’s test of a ‘public emergency which threatens the life of the nation’ or that the ‘exigencies of the situation’ require that the security forces have those special powers. Theirs is a circular argument: the AFSPA and the legal immunities for security forces are necessary so long as there are situations that, in the government’s view, require the intervention of the armed forces.

India has steadfastly opposed the monitoring of the AFSPA regime by multilateral human rights institutions. As recently as March 2009, the United Nations High Commissioner for Human Rights, Navanethem Pillay took up the case of the AFSPA with Indian officials during her visit to New Delhi. Not surprisingly, she failed to get any assurance that the government would review the AFSPA regime. When Pillay raised the question of the misuse of the AFSPA, according to a senior Home Ministry official, ‘she was politely but firmly told that the AFSPA is not applicable throughout the country. It is only effective in areas where terrorists operate.’ The news report in the Indian Express was headlined ‘Govt. Snubs UN Official on AFSPA, Human Rights’ betraying a sense of pride and satisfaction that the government of a resurgent and confident India is able to resist the demands of the multilateral human rights body.12

How does one make sense of the long life and the public support for the AFSPA in our constitutional democracy? In 1958, political authorities of the nascent republic did not come upon the idea of the AFSPA or designed it fresh in response to the specificities of the challenge presented by the Naga rebellion. A bureaucracy following its standard operating procedures simply dusted off a colonial era ordinance. The colonial style counter-insurgency campaign that the legislation empowered remains an enduring source of bitterness and mistrust among the Nagas.

Policy-makers later came to regret those operations. As Nari Rustomji of the Indian Civil Service, who held a number of key positions during that time puts it:

It may well be asked how such a ghastly tragedy could have been enacted at all with civilized and intelligent human beings at the helm of the administration. Part of the blame may be ascribed to 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.13

The decision to introduce the AFSPA can only be understood in the context of the resilience in postcolonial India of (a) the legal framework of colonial constitutionalism where emergency and emergency-like powers had a predominant role,14 (b) imperial policing practices especially the use of the military to assist civil power, and (c) in the specific context of Northeast India, administrative habits associated with the imperatives of what colonial officials unabashedly called the pacification of a ‘frontier’.15

During colonial rule, army units were routinely used to augment the law enforcement capacity of civil administrators, when police personnel could not contain local ‘disturbances’. This practice continues in postcolonial India, Pakistan and Bangladesh. In certain situations, the aid to civil power by the army could even turn into the imposition of martial law, and a military commander could temporarily be in charge of an area instead of a civil administrator.

These policing practices differ radically from that of the ideal-typical modern democratic state that distinguishes internal from external security, and the police from the military. As sociologist Anthony Giddens puts it, in modern societies while all forms of law are backed by the threat of the use of violence, ‘the sanction of the use of violence is quite indirect and attenuated. Moreover, military power on the whole tends to become rather distinct from policing power, the one turned “externally”, and the other pointed “internally”.’16

In making the case for the AFSPA, the Reddy Committee’s report unwittingly alludes to the resilience of imperial policing practices. It points out that in certain situations the provisions of the Indian Criminal Procedure Code (CPC) regarding the use of armed forces to aid civil power may be insufficient, making a law more comprehensive than the CPC necessary. The AFSPA, in its view, fits that bill.

The CPC, it points out, deals with the use of armed forces to disperse unlawful assemblies and the procedure to be followed by the armed forces while doing that. Those provisions are ‘meant to meet situations where an unlawful assembly endangers the public security’ such as a communal riot. In such a situation the authority of the state is not challenged. However, that is not the case with the ‘insurgencies’ in the Northeast. To the Reddy Committee, this difference, apparently, makes the case for the AFSPA self-evident. The report spells out the difference between the two situations as follows, though it would hardly strike most readers as a persuasive argument for the AFSPA.

Such situations must be distinguished from those arising in the North Eastern states like Manipur, Nagaland or Assam where the militants not only challenge the authority of the State but by their composition, strength, aims and objectives present a problem which is spread over a large geographical area and is long term in nature. In situations of the latter kind, the provisions of the Criminal Procedure Code would not be adequate. A permanent legal provision would be required which permits the army and the other Central forces to operate over an extended area and time period – of course, consistent with the rights and interests of the citizens and the security of the State.17

Many postcolonial nations were ‘born in crucibles of violence’, in the words of a historian of Africa. During the last days of the British Empire, especially the period after World War II, Caroline Elkins reminds us, there were as many as 30 British counter-insurgency operations. Among them were the wars in Palestine, Malaya, Kenya, Cyprus and Northern Ireland. None of them were ‘low intensity’ operations; they were protracted operations where ‘Britain routinely found itself in violation of international human rights and labor accords, carrying out such policies as mass detention without trial, torture, forced labour, extrajudicial hangings, scorched earth, food denial campaigns, and the like.’ India became independent before those counter-insurgency operations were in full swing. However, there is ample evidence that like most former colonies, it too inherited ‘a host of institutions and laws that repressed political opposition and populist participation.’18

The AFSPA is part of that dark legacy. It is significant that our neighbours, Pakistan and Bangladesh, both retain some version of the Armed Forces (Special Powers) Ordinance of 1942 on which the Indian AFSPA is based. Indeed the Bangladeshi version is still called the Armed Forces (Special Powers) Ordinance, 1942. Like the Indian amendments to the AFSPA that have had to keep up with the names of new states in Northeast India, an amendment to the Bangladeshi ordinance has had to accommodate the break-up of Pakistan and the emergence of independent Bangladesh in 1971. A footnote to the official version of the Bangladeshi ordinance now states, ‘Throughout this Ordinance, the word “Bangladesh” was substituted for the word “Pakistan”.19

During the anti-colonial resistance the Indian National Congress was sharply critical of the coercive apparatuses of the colonial state. But after independence, it abandoned the agenda of reforming those institutions. As a result ‘the legal institutions and coercive apparatuses of the state remained similar to the last stage of colonial rule to the disappointment of those who expected a radical overhaul of the state.’20 The AFSPA belongs firmly to that part of our postcolonial history.

While our political class has made its peace with this legacy, those who have lived under the AFSPA have put up a formidable challenge. In many parts of Northeast India, as the Jeevan Reddy Committee discovered, the AFSPA has become ‘a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.’21 These attitudes towards a law that is a remnant of ‘the nastier aspects of late British imperialism’22 among those who have had the misfortune of living under it would not have surprised our freedom fighters.

Irom Sharmila’s fast-unto-death against the AFSPA in a prison in far-away Imphal recently entered its eleventh year. She is in jail on the charge of attempted suicide, where the barbaric practice of forcible feedings has kept her alive. On the republic’s sixty-first year the country’s common future demands that we try and understand why to many of our fellow citizens the ‘anti-colonial utopias’ of our freedom fighters seem to have ‘withered into postcolonial nightmares.’23 This is the least we can do in response to Sharmila’s compelling ‘corporeal challenge’ to the ‘discursive practices of power.’24

___________________________________________________

1. This essay however, is focused only on Northeast India – in the pre-2003 sense that excludes Sikkim – and not on Jammu and Kashmir.
2. Anil Kalhan, ‘Constitution and “Extra-constitution”: Emergency Powers in Post-colonial Pakistan and India’, in Victor V. Ramraj and Arun K. Thiruvengadam (eds.), Emergency Powers in Asia: Exploring the Limits of Legality. Cambridge University Press, 2010, pp. 92, 117.
3. Ministry of Home Affairs, Annual Report, 2008-09, pp. 10-13. http://www.mha.nic.in/pdfs/AR(E)0809.pdf. Accessed 29 January 2010.
4. Bethany Lacina, ‘Rethinking Delhi’s Northeast India Policy: Why Neither Counter-Insurgency nor Winning Hearts and Minds is the Way Forward’, in Sanjib Baruah (ed.), Beyond Counter-Insurgency: Breaking the Impasse in Northeast India. Oxford University Press, New Delhi, 2009, pp. 329-42 and ‘Does Counterinsurgency Theory Apply in Northeast India?’ India Review 6(3) July-September 2007, pp. 165-183.
5. Ministry of Home Affairs, Annual Report, 2008-09, pp. 10-13.
6. The Home Secretary of Mizoram in response to the Jeevan Reddy Committee’s inquiry said that in Mizoram the AFSPA was ‘a sleeping Act’. He also said that this law had left a scar on the minds of all sections of the people of Mizoram. Government of India, Ministry of Home Affairs, Report of the Committee to Review the Armed Forces Special Powers Act, 1958, 2005, p. 144. Available on http://www.hindu.com/nic/afa/ (Accessed 3 September 2010).
7. M.M. Lakhera, ‘North East Security’, Website of the Government of Mizoram, Department of Information and Public Relations, 10 September 2007. http://dipr. mizoram. gov.inindex.php?option=com_ content& task=view& id=2447&Itemid=103 (Accessed 19 September 2010).
8. People’s Union for Democratic Rights, An Illusion of Justice: Supreme Court Judgement on the Armed Forces (Special Powers) Act, Delhi, 1998.
9. Report of the Committee to Review the Armed Forces Special Powers Act, pp. 75-79, op cit.
10. United Nations, Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: India’. 04/08/97. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?OpenDocument
11. United Nations, ‘International Covenant on Civil and Political Rights’, 1966. Website of the Office of the United Nations High Commissioner for Human Rights. http://www. ohchr.org/english/law/ccpr.htm (Accessed February 28 2007).
12. ‘Govt. Snubs UN Official on AFSPA, Human Rights,’ Indian Express, 24 March 2009.
13. Nari Rustomji, Imperilled Frontiers: India’s North-Eastern Borderlands. Oxford University Press, New Delhi, 1983, pp. 31-32.
14. Kalhan, ‘Constitution and “Extraconstitu-tion”,’ p. 116, op cit.
15. I do not develop the third point – the legacy of the pacification of a frontier – in this essay.
16. Anthony Giddens, The Nation State and Violence. Polity Press, Cambridge, 1985, p. 16.
17. Report of the Committee to Review the Armed Forces Special Powers Act, 2005,
18. Caroline Elkins, ‘Colonial Counterinsurgencies: Britain’s Past and America’s Present’, Centerpiece (Newsletter of the Weatherhead Center for International Affairs, Harvard University) 20(3) Fall, 2006. http://www.wcfia. harvard.edu/misc/publications/centerpiece/fall06_vol20_no3/feature_elkins.html
19. Government of Bangladesh, Website of the Ministry of Law, Justice and Parliamentary Affairs, ‘Laws of Bangladesh’. http://bdlaws.gov.bd/pdf/196___.pdf. Accessed 29 January 2010.
20. Sudipta Kaviraj, ‘The Post-colonial State: The Special Case of India’, Critical Encounters (Web Journal), 2009. http://criticalencounters.wordpress.com/2009/01/19/the-post-colonial-state-sudipta-kaviraj/
21. Report of the Committee to Review the Armed Forces Special Powers Act, p. 75.
22. Paul Kennedy, cited in Elkins, ‘Colonial Counterinsurgencies’, op cit.
23. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment. Duke University Press, Durham, 2004, p. 2.
24. Kyra Landzelius, ‘Hunger Strikes: The Dramaturgy of Starvation Politics’, in Diederik Aerts (ed.), Einstein Meets Magritte: Science, Nature, Human Action and Society, Volume VIII: Man and Nature: A World in Transition. Kluwer Academic Publishers, Dordrecht, The Netherlands, 1999, p. 83.

This article appeared in the November 2010 issue of Seminar (New Delhi).

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