AFSPA AS INDIA’S DEMOCRACY TEST

This article by Pradip Phanjoubam was originally published as an editorial in the Imphal Free Press, 21 Aug 2014

The extremely haughty manner in which the NDA government dismissed the finding of the Justice Hegde Commission which was mandated by the Supreme Court of India to look into the very serious allegations of fake encounters in Manipur is to say the least, alarming. It seems to confirm the widely held apprehension that under the new government headed by Prime Minister Narendra Modi, there is a real danger of the executive assuming too much asymmetrical power for itself, even those which should rightly belong to the judiciary and legislature. It may be recalled the Justice Santosh Hegde Commission had come out with the startling report that of the random cases of alleged fake encounters he picked up for examination during his enquiry, he discovered to his consternation all of the allegations had convincing evidences. To this the Centre simply said the procedures adopted by the Justice Hegde Commission for the enquiry was flawed. It also virtually said there had been no fake encounters in Manipur, and had there been even one, the responsible security personnel would not have gone unpunished, saying, as quoted in a report by The Times of India which appeared on August 17, that "the Union government shall not tolerate even one false encounter and shall not spare anyone guilty of false encounter, but at the same time, it is necessary to ensure that no innocent security personnel is harassed for an official act performed in good faith and without any mala fide intention." It may be recalled, the Santosh Hegde Commission was appointed on the direction of the apex court following a public interest litigation, PIL, filed by two NGOs, namely ‘Extra-Judicial Execution Victims Families Association of Manipur’ and ‘Human Rights Alert’ which alleged there had been at least 1,528 extra-judicial killings in the course of the last 30 years in Manipur.

The matter is alarming because the Centre’s reply was not in any way about providing counter evidences to prove the allegations wrong, employing prescribed procedures of democratic adjudication, but was more akin to simply issuing an official fiat which audaciously called a judicial commission flawed and its findings untenable. In other words, it is placing its own knowledge and understanding of a given grave criminal situation, arrived at from reports of its own executive functionaries, above those of a judicial commission. This is despite the fact that the writers of these executive reports are often the accused in the cases under scrutiny. How can an accused be made the judge of the case if justice deliverance is the objective of the entire exercise? A lot many intellectuals in the past had argued with optimism that India’s democracy has too many safeguards for any single party, much less individual, to endanger. Among these safeguards that they cited were the independent institutions of democracy, such as the judiciary and free media, and therefore this surprising trifling of a judicial probe’s findings must strike as disturbing to any believer in democratic India.

This is not to say all judicial probes must be held as sacrosanct. Behind the judiciary too are humans and as humans they are equally prone to mistakes, weaknesses, biases, incompetence, prejudices as anybody else, including not the least the men behind the executive. The opinions and verdicts of the judiciary too can be, and must be, challenged whenever they are seen not to be in the cause of ultimate justice, but there are accepted ways of making these challenges. Simply dismissing a judicial commission’s report as unacceptable must therefore be seen as an aggression on democracy itself. The Union government, or for that matter the State governments, are perfectly within their rights to defend any law they make, not just the Armed Forces Special Powers Act, AFSPA. The Centre does precisely this on this instance, justifying the AFSPA as an extraordinary means to counter an extraordinary situation. Some of the arguments may even be hard to refute. But the reminder we want to flag here is that in this defence, it cannot also be its own judge. Such a collapsing of powers into a single hand happens only in a dictatorship, and when this happens, all believers in the virtues of democracy have a right to ask if they are not being led into a dictatorship. The executive wields the guns of the State, but the sublime beauty of a democracy is that the power that flows out of the barrels of the State’s guns, is not in the sole control of the direct wielder of the guns, but jointly held as shared responsibility of the various pillars of democracy. This beauty is what is being shaken by the Centre’s unceremonious rebuff of the Judicial commission’s report.

It would however be unfair to level this allegation of the executive demolishing the other pillars of democracy to the NDA government alone. The UPA government under Prime Minister, Manmohan Singh was in many ways only marginally better. The Justice Jeevan Reddy Commission which recommended radical changes to the AFSPA, in particular making the AFSPA accountable to civil law by abolishing it and incorporating much of its provisions to the Unlawful Activities Prevention Act, UAPA, is just one prominent example. Although nothing was overtly stated to humiliate the commission and its findings, the UPA government too simply chose to kill it by ignoring and deliberately forgetting its existence altogether. Historically speaking, though it is too early to say anything for certain, we may not be altogether wrong to hazard the guess that the biggest challenge to Indian democracy may ultimately turn out to be how the nation and its rulers handle the AFSPA issue.

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