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Analysis of the Armed Special Forces Act 1943 in India

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Published: Wed, 28 Feb 2018

Civil society is a term oft-repeated in democratic contexts today. Seen as an essential component of the liberal framework of political structures, it is essentially the space of free association for the masses. India, a multicultural democratic country, boasts of a vibrant civil society. At the same time, it also has accusations of being one of the worst offenders of human and civil liberties of some of its people, in the form of the Armed Forces (Special Powers) Act. This chapter seeks to introduce the motivation, hypothesis, methodology and key concepts of this paper.

Introduction

The spotlight of global affairs and the ‘march to democracy’ has been on the Middle East in 2011. Mass rebellions against autocratic, unjust and oppressive regimes have swept the region in a sort of domino-effect – swarming hordes of people rose up to replace what seemed no more applicable or tolerable in Tunisia to Tahrir Square in Egypt, in a bid to in-state the only form of governance that allowed ‘power to the people’ i.e. democracy. This phenomenon has come to the West as a pleasant surprise, that have viewed the Islamic world as essentially subject to notions of conservatism, violence and religion – all seen as harbingers of a pre-modern past that the West feels it has left behind for good. “What is happening in Tunisia and Egypt is the completion of the 1989 revolutions – the Egyptians are reclaiming the values of the Solidarnosc and the Civic Forum from the neo-liberals who usurped them… The people in Tahrir Square and elsewhere are giving us back the meaning of civil society – a place where people can talk, discuss and act freely,” says Mary Kaldor , examining the notion of civil society and how it has changed since the last time it was picked up from the annals of a rejected history and reinvented to bring monumental political change in Eastern European states.

Closer home, the beginning of summer this year has seen a heated campaign against corruption being driven by a single man’s Satyagraha – Anna Hazare would definitely qualify as a ‘non-entity’ even by the modest standards of celebration that Indian civil society activists enjoy. Yet, this army truck driver of the 1960s is today the poster-boy of ‘publicness’, coming to symbolise the space for mediation and political interference to bring out moral dividends that is the hallmark of a vibrant democracy. Some have called his actions ‘Gandhian’, one of the few attempts at reform emerging from among the non-political that post-independence India has seen, otherwise witnessed only in Irom Sharmila’s consistent campaign from Manipur against the travails of militarisation of the north-east region and abuse of power that the Armed Forces Special Powers Act 1958 has become synonymous with.

The Armed Forces Special Powers Act, which the Indian government has thought fit to implement in two contexts – all the North Eastern states and Jammu & Kashmir – is arguably among the most contentious legislations of post-Independence India. Said to be based on a 1942 British ordinance intended to contain the Indian independence movement (Quit India movement) during World War II, it was enacted as a short-term measure to allow the deployment of the army in India’s north-eastern Naga Hills but since has been in existence for five decades. It has, since then, also been implemented in Jammu & Kashmir which has shown violent separatist aspirations since the late 1980s.

The Act has been controversial because of the fact that it gives to the armed forces extended powers of action without accountability, which has led to abuse of power and gross violation of human and civil rights, building around it a sense of impunity. In a democratic framework, this move to retain the sovereign integrity of the Indian state has been vociferously derided by people both within and outside these regions. Even though justifications for the law’s existence abound from freedom of operation to existence of provisions for accountability and redress within the armed forces set up, the Act in itself has become a symbol of oppression at the hands of the Indian state and therefore a part of the problem, not the solution.

Hypothesis

This paper attempts to therefore study civil society in India – its role and scope – with specific focus on this nugget of legislation that has a strong reference to the case of maintaining or violating civil liberty in a democracy. It seeks to analyse the effectiveness of the Indian democracy in this respect, considering whether ‘power to the people’ is just another catchphrase or if it goes deeper than that. This researcher is of the view that even though the definition of a modern civil society in a multicultural context as India needs to be revisited, and even though largely (as in the case of the AFSPA) political, military, judicial and legislative action has a will of its own, there is scope for activism and there are voices that get heard. The necessity of such a space of negotiation in a democracy cannot be stressed hard enough. The arbitrariness of power, possible marginalisation of the ‘have-nots’ and the dilemma of national unity versus individual rights need to be examined in the light of modern liberal rhetoric of freedom and equality that are foundational aspects of the Indian constitution.

Methodology

The study has used both primary and secondary sources of data along with analysis using both the deductive and inductive methods. I have analyzed government records, media reports, library sources, existing literature on the subject, archival data, think-tank reports as well as spoken / interviewed a few primary sources within the civil society. The study has also use information and experience gathered at symposiums, lectures and workshops related to the topic. It has been largely qualitative in approach, since the issue required an exploration of theory and potential policy-making role of civil society in situations of conflict and civil unrest.

Chapterisation

The paper shall follow this sequence: the first chapter will examine the trajectory of conceptualisation of civil society in the corpus of philosophy and political studies and its relevance globally as well as in India. The second chapter will elaborate upon the Act, the controversy and the issues surrounding it. In the third chapter, I will look at civil society initiatives regarding this aspect, both in terms of humanitarian redressal and rehabilitation and attempts at political negotiation and policy amendment. It will also look critically at the degree to which these initiatives have worked in mitigating the more negative consequences of the law. The last chapter, in conclusion, will critically analyse the role that civil society has played so far in the dynamics of the Indian democracy and the scope for positive change it contains. The rest of this chapter is dedicated to elaborating on the key concepts of this paper: civil society and the Armed Forces Special Powers Act.

Key Concepts

Civil Society:

It is crucial to understand what civil society in a changed global context means. Historically, it has been understood to mean the public space that exists between the family and the state that seeks to mitigate the preponderance of individualism as well as the ‘tyranny of the majority’. Based on principles of voluntarism, association and pluralism and tolerance, this was an imagination that sought to negotiate with power structures in every context it arose in, whether during industrialisation of England where a new bourgeois class of powerful traders emerged that sought to bargain with the state and the Church for power, or in Eastern Europe of the 1980s where a bid to parlay Communism resulted in associational uprising that stemmed out of sports clubs, trade unions, bars and basements.

After 1989, civil society got the rejuvenation that had been missing for the past couple of centuries since Marx and Gramsci had derided it as yet another excuse for state/power domination and co-option of the masses. It has since been taken much more seriously, both academically and in its practical application, although consensus on what it constitutes is hard to come by. However, with democracy becoming the chosen form of ‘correct government’, where representation and election to power is ‘by the people, for the people and of the people’, civil society assumes new meaning as the arena of civilised battle. There is more to a democracy than public participation through ballot-box approval. This, in a nutshell, could be the motive for a functional civil society. 

However, the proprietorship of the West over the concept of civil society is often criticised. By linking it with modernity, it is seen to be a concept both inherently Western and also as the West’s boon to the world. Ernest Gellner paints civil society as the space of the profane that gives freedom to the baser aspects of human beings and their relationships. Having associated it with capitalist liberalism, he posits many upcoming rivals to it – such as Islam, Asiatic capitalism, fierce nationalism- leading one to believe that this essentially Western notion is one under threat from more preponderant forces in different parts of the world that do not essentially derive from rationality. Mary Kaldor finds in this a patronising approach of the entire West, evident also in US and Europe’s response to the upheaval in the Middle East. She observes that there already exists a term for civil society in Arabic – Almujtamaa Almadani – and therefore finds that the concept has more antiquated roots than otherwise presumed.

To offset this overlordism, she says, “Instead of imposing yet another neo-liberal formula, western countries and institutions should consult the people of the Middle East about how they can help to construct a fairer, more sustainable economy. Instead of giving governments money to buy western weapons, they could discuss with civil society how they could help to restructure the armed forces to provide human security, to establish civilian control over the military, and to convert the substantial military industries to peaceful uses.” Ruminating on the changed idea of civil society, she says disappointedly, “After 1989, everyone celebrated the idea of civil society. But it was rapidly reduced within the framework of neo-liberal thinking to mean western-supported NGOs who would help to smooth the path of neo-liberal transition.”

In the post-Cold War phase, since the world has gone more global, the meaning of civil society has veered towards international-level cooperation and institutionalism, through NGOs, forums, transnational networks of activities to work on a ‘global humanitarian regime’. It has now become a buzzword relating to democracies, liberalism, neo-liberalism, anti-war movements, global justice and so on, and thereby is seen as a platform inhabited by activists of all sorts. In the normative sense, civil society is and always has been seen as the arena where consent is generated for and in opposition to concentrated authority. In the descriptive sense, or in considering what all should be included in this realm, lies the tensions – should regulatory bodies such as the UN and the World Bank be considered part of civil society? Should one include international NGOs that depend on government funding? Does civil society include religious or ethnic organisations? Does it include militant or secessionist organisations that are fighting against an oppressive state or for some defined nationalism?

As the concerns that occupy minds in a global world change (such as today’s preoccupations include AIDS, landmines, terrorism, nuclear disarmament/disaster, receding water levels etc), the definitions of all realms of society would change too. This paper, taking insights from the corpus of philosophy on the subject, defines civil society as the associational space, lying between the family, state and market, where autonomous individuals voluntarily come together to define and pursue common goals to reap collective benefits. Schmitter’s definition of civil society, as a set or system of self-organised intermediary groups that: (1) are relatively independent of both public authorities and private units of production and reproduction, that is, of firms and families; (2) are capable of deliberating about and taking collective actions in defence or promotion of their interests or passions; (3) do not seek to replace either state agents or private (re)producers or to accept responsibility for governing the polity as a whole; and (4) agree to act within pre-established rules of a civil, i.e. mutually respectful, nature. It is civil society based on the four characteristics of dual autonomy, collective action, nonusurpation and civility that this paper will refer to.

The Armed Forces (Special Powers) Act (AFSPA):

The Armed Forces (Special Powers) Act is a law, enacted by the Parliament of India, to meet violent internal situations created by underground militant outfits to further their illegal and ‘unconstitutional’ causes. The law was enacted to provide necessary powers and legal support to the Armed forces for carrying out proactive operations against the militants in a highly hostile environment that was threatening the integrity and sovereignty of the Indian nation-state. The Act dates back to September 11, 1958, when the Parliament of India passed the act bestowing more power on the armed forces in “disturbed areas”. First introduced in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, the Act was later extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.

The Act allows an officer of the armed forces to fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law against assembly of five or more persons or possession of deadly weapons, to arrest without a warrant and with the use of necessary force anyone who has committed certain offenses or is suspected of having done so, to enter and search any premise in order to make such arrests. The act also bestows legal immunity to the officials, which means that they cannot be sued or prosecuted.

While the law was enacted to mitigate militant action, violence and to quell secessionist tendencies that violated the essence of the Indian union, it has since inception over half a century ago turned into a controversial aspect of governance in the country. An increasing militarisation of areas branded as ‘disturbed’ and a consequent violation of human rights and civil liberties has resulted in a worsening of conditions in both the regions it has been applied to. Instead of bringing about greater cohesion, or of managing to bring the north-east and Jammu & Kashmir peacefully into the fold of the Indian union, the law has become just another reason for the strengthening of secessionist demands.

This is in contradiction with the reasoning given for consistent political will to keep the Act in place in the two regions: in a response to the United Nations Human Rights Committee questioning the validity of the AFSPA under the Indian law and in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR, the Attorney General of India responded that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a “war footing.” He argued that the Indian Constitution, in Article 355, made it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession.“The shrill rhetoric demanding that the Armed Forces Special Powers Act be repealed, if allowed to hold sway, may drive us deeper into the dark world of both Islamist terror and the Maoist insurgency,” Brigadier S K Chatterji (retd) has warned more recently.

The primary issue of controversy here is the violation of human and civil rights. According to a Human Rights Watch report, the act is in violation in the following respects: The right to life is violated by section 4(a) of the AFSPA, which grants the armed forces power to shoot to kill in law enforcement situations without regard to international human rights law restrictions on the use of lethal force. The right to liberty and security of person is violated by section 4(c) of the AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a “cognizable offence” has already taken place or is likely to take place in the future. Further, the AFSPA provides no specific time limit for handing arrested persons to the nearest police station. The right to remedy is violated by section 6 of the AFSPA, which provides officers who abuse their powers under the AFSPA with immunity from legal accountability. This section of the AFSPA prohibits even state governments from initiating legal proceedings against the armed forces on behalf of their population without central government approval. Since such a sanction is seldom granted, it has in effect provided a shield of immunity for armed forces personnel implicated in serious abuses. In practice the AFSPA also facilitates violation of the right to be free from torture, and from cruel or degrading treatment. Since the AFSPA provides powers to arrest without warrant and then detain arrested persons for unspecified amounts of time, the armed forces routinely engage in torture and other ill-treatment during interrogation in army barracks.

However, the support from within the armed forces and certain other sections of the political and academic circles is strong for the continuance of this act. Northern Army Commander General Jaswal in Jammu & Kashmir gave the following reasoning: “I would like to say that the provisions of the Armed Forces Special Power Act are very pious to me and I think to entire Indian Army…We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also, does it imply that you remove the religious book or you remove this chap. My take on it is to find someone guilty, take him to task, but don’t touch this pious document or provision of the Armed Forces Special Power Act giving the similarity to religious book.”

In the past couple of months Army has argued that without the Act it will not be able to launch proactive operations. The Army will also not be able to use force except in self-defence and not have powers to destroy ammunition dumps and IEDs. The army also says that a majority of human rights abuse cases are found to be false and those found true have been severely dealt with.

Human rights activists have however contended time and again that the Act gives excessive powers to the soldiers. Jammu and Kashmir Chief Minister Omar Abdullah has said in recent past that there is a need to revoke the Act since it is prone to abuse. One of the grounds that the citizens have stated is that the people arrested or otherwise detained should be allowed to plead their case under section 130 and 131 of the Criminal Code. The Article 21 of the Constitution also gets violated in the process. In spite of the various cases filed and protests initiated there has been no revocation or dialogue towards the same.

The issue revolving the AFSPA is that the principle of national integrity and sovereignty is in direct conflict with the liberal democratic frameworks of human rights and the civil society has the potential to the site for this negotiation. This is the premise under which the rest of this paper seeks to examine how the civil society and the Indian state have sought to deal with the AFSPA.

CIVIL SOCIETY

This Chapter seeks to chart the history of philosophy on civil society, in political sciences and social sciences. It will then look at civil society in India specifically, in today’s context, and some of the major criticisms levelled against the concept and its real-time manifestation.

Civil Society: The Concept

At the abstract level, civil society has historically been conceptualised as a mediating space between the family, state and recently, also separate from the market. It is the site of association, voluntariness and community engagement, set apart from the politics and compulsions of the state as well as the individuality and liberty of the family. Bruce Sievers identifies seven strands that go into the making of civil society: nonprofit and voluntary institutions, individual rights, rule of law, the common good, philanthropy, freedom of expression and tolerance. Emerging in the context of the 18th century industrialisation rampant in Europe that gave rise to a new class of bourgeoisie and the new ideas of utilitarianism and capitalism, civil society gets inextricably linked with libertarian ideals that seek to carve out spaces for autonomous action in every individual and societal aspect.  “A ‘civil’ society was civilized and ordered by the rule of law. Unlike tribal society, it was also large-scale and held together by impersonal bonds of interest rather than ties of kin and blood. It was also, to a degree some found frightening, a self-correcting mechanism in which the selfish actions of myriad individuals, brought together only by the rule of law, managed to produce an orderly and dynamic accumulation of prosperity unprecedented in human history,” observes Michael Ignatieff

The importance of social engagement and principle of tolerance have only gained more importance in a globalised world that is characterised by multi-cultural, multi-ethnic nations. Robert Putnam identifies civic engagement, dense networks of interaction, political equality, solidarity, trust and tolerance and a strong associational life as crucial to the generation of ‘social capital’ – the resource that could help to facilitate coordination and cooperation for mutual benefit in societies. He says that networks of civic engagement foster norms of generalised reciprocity, encourage the emergence of social trust, facilitate communication, collaboration and therefore collective action on common dilemmas and endorse the idea of collective benefits.

Through its history, a number of philosophers have vouched for and expanded upon this realm of an advanced society. Alexis de Tocqueville , in Democracy in America, says that America’s answer to the problem of limiting the absolutist state was to have a constitution defined in law and protected by a counterbalancing force of independent bodies. These were the local associations of citizens acting together in the affairs of daily life. This was a civil society engaged in politics, voluntary by nature. His idea of civil society was based in the observation of an absolute sovereignty of the majority, but this principle, which could just as well turn into a tyranny of the majority, was also mitigated through a non-centralised frame of governance that set importance to localised chains of command and responsibility. Civicness emerged in America, he observed, through the relentless formation of associations: “Americans of all ages, all stations in life, and all types of disposition are forever forming associations. There are not only commercial and industrial associations in which all take part, but others of a thousand different types–religious, moral, serious, futile, very general and very limited, immensely large and very minute. . . . Nothing, in my view, deserves more attention than the intellectual and moral associations in America.”

Civil Society, for Hegel , is the site that lies between the Family and the State in the Ethical Life, as described in his Philosophy of Right. It is the site where the ‘determination of particularity’ as per individual rights is given free rein, but which has to acquire a mantle of universality for the rights to become acquirable or even legitimate, so to speak. Here, therefore, are two elements: the concrete person who is out to pursue self-interest and personal motive, and the form of universality, or the generation of common motive, through forming bonds and finding over-lapping areas of interest. A particular end, therefore, assumes the form of universality through this relation to other people, and it is attained in the simultaneous attainment of the welfare of others.

It has three dimensions: the system of needs, the administration of justice and the police and the corporation. The system of needs refers to the generation of ‘universal human capital’ through human beings’ exceptional capacity to generate needs and spot commonness with others and then to satisfy those needs through work and labour. A single person’s particularity of interest can be recognised if he manages to associate himself with one sphere of the needs. The administration of justice is the principle of rightness that becomes universally known through a public legal code. Not only does this embed within the principle of freedom in both subjective individual and universal platforms, it also makes wrongdoing an infringement on the people that live within such an ethical life. The polizei, then, is the bearer and the guardian of this publicly generated and accepted principles of right, the public authority that also looks after public utilities and regulation activities as well. The corporation, on the other hand, is the arrangement whereby common interests are brought to fore through voluntary association as in sports or religious clubs etc. All these aspects together form the civil society for Hegel, the space where freedom of self-interest is allowed to reign but within the limits of the principle of universality. 

Antonio Gramsci, however, had a more critical view of civil society, from a Marxist vantage point. He saw civil society not as the benign space that afforded a voice and power to the masses, but as an instrument of domination linked in an unholy alliance with the bourgeois elements in the civil society seeking to protect propertied interests . He was also convinced that the intricate, organic relationships between civil society and political society enable certain strata of society not only to gain dominance within the state but also, and more importantly, to maintain it, perpetuating the subalternity of other strata. In other words, the site of hegemony was civil society – it was the arena wherein the ruling class extends and reinforces its power by non-violent means through components such as the press, the libraries, schools, associations and clubs that could all become media for propaganda and homogenisation of the masses. The state and the civil society in his purview are inextricably linked, which only facilitates subordination by the state without coercion, focussing instead on ‘manufacturing consent’. However, he does acknowledge the potential of civil society as a site for breeding revolutions and for newer ‘conceptions of the world’ to take place.

However, the manifestation of this fairly utopian concept is fraught with tensions and dichotomies. Ernest Gellner, in Conditions of Liberty, analyses the role of civil society in the Marxist, socialist and capitalist frameworks and has also assessed post-modern rivals to it that have emerged, such as Islam. The Eastern European states found the concept of civil society useful in gaining independence from a Communist stronghold precisely because of the possibility here for mobilisation of the masses in opposition to totalitarian militarist regimes. Through meetings of trade unions, religious groups, bars etc, the emphasis was on autonomy, self-organisation and withdrawal from the state to create islands of civic engagement for the emergence of a ‘parallel polis’. For Gellner, a civil society was “a profane society, a society that explicitly sought to put the lowest of human desires to productive uses. Mandeville’s paradox — private vices make public virtues — naturalized the profane by demonstrating that “capitalist individuals were more likely to promote the public good when they looked exclusively to their private interest.” He found the Marxist, and therefore the socialist strain of civil society, that stressed on driving religion out of life and also investing the economic with the ultimate sacredness, as faulty for it denied space to the profane, the self-interest and avarice of human nature that could be harnessed and channelled into collective action. With the ‘disenchantment of the world’ that comes with modernity and its powerful agencies of science and capitalism came the advent of ‘the modular man’   who associates voluntarily with other prototypes, giving rise to a Gesellschaft, the inorganic form of social bonding, through fostered ties, rather than a Gemeinschaft, the organic community based on ties of blood and kin. “The genius of capitalist civil society is that it not only harnesses our profane energies, but relieves us of the moral burden of thinking of them as profane. In so doing, it relieves us of the strain of constant longing for unattainable self-transcendence in desperate simulations of paradise,” says Ignatieff. He also observes that liberty in civil society is essentially negative because there cannot be, in principle, agreement among human beings about the positive ends of political communities, beyond the protection of the liberties of the individuals who compose it. If people seek to overcome their own alienation and separateness, they can do so only as individuals or in voluntary groups.

Civil society, then, becomes crucial for maintaining checks and balances, says Ignatieff. The realms of politics, economics and culture are neatly segregated, and power in any one domain does not endow power in another. The society is free, acting through a vibrant media and elected representatives, all functioning within the ambit of law. “Needless to say, no civil society has ever lived up to this goal…yet the formal promise is more than hypocrisy: it remains the standard against which civil society judges itself and from which it finds renewed impetus to reform.” In this sense, civil society, albeit being a flawed ideal, also has the potential for redeeming itself simply by virtue of being embedded in the notion of reform, of itself as well as of society, simply by virtue of allowing private trajectories of interest being followed. 

Despite changing meanings, civil society’s core rests in a rule-governed society based on the consent of individuals. The ‘social contract’ that Hobbes defined is another way of understanding the liberal ideas behind the conception of civil society – through different phases, civil society can be seen as the process or the space through which different individuals negotiate, argue, struggle against or agree with each other and with the centres of political and economic authority. The element of autonomy, voluntariness and collective action through association remain hallmarks through all definitions of the term.

Civil Society in India:

It would seem natural that civil society, as has been described and conceptualised above is an integral part of a democracy, with its accompanying notions of equality, public participation, and masses-oriented governance. Robert Post and Nancy Rosenblum describe a consensus among contemporary theorists “that democracy depends on the particularist, self-determining associations of civil society, where independent commitments, interests, and voices, are developed …. Civil society is the precondition for democratic decision making, whether democracy is conceived as deliberation or as interest group pluralism, and this is true even if the goal of democracy is to transcend particularism and arrive at uncoerced agreement or a common will.”

According to Joerg Forbrig, a vibrant and functional civil society can contribute to strengthening a democracy in five ways: control of state power through the incorporation of a body of laws, individual rights and thereby becoming a space that overlooks the relationship between the pr


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