Analysis of the Armed Special Forces Act 1943 in India
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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.
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.
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.
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.
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.
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.
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 private and public, the state and society; interest mediation by virtue of civil society being an additional site where interest representation and mediation can be ensured; social integration through public debates, association and tolerant principles that encourage social cohesion; political socialisation, through the scope for moderation, cooperation, bargaining, and accommodation that individuals learn through associational forms in interaction; and finally the non-profit function or service provision that would be the goods and services provided by an overall social and political system.
All these functions have their constraints: state power could be overarching; the dichotomy of public or private interest to be prioritised could run into conflicts; social discord might continue if the nation-state is not built on tolerant pluralist principles; trade unions etc might be either ineffectual or over-empowered so as to threaten national integrity and finally, contractual and resource constraints could limit the service provision function of civil society. It could additionally become subject to political co-option, obscure decision-making as the existence of diverse multifarious actors could lead to loss of focus, social segregation as not all those represented might be able to use the facilities of civil society to their best advantage and no guarantee that the organisations or associations so involved would themselves have democratic procedures, goals and strategies.
One could trace the first forms of civil society in India to the panchayat system of governance that was representative, localised, voluntary and associational to a large extent. What followed in post-independent India was a socialist welfare state that gave primacy to state ownership of public goods and took upon itself the primary role of economic and social development of the country. Ranjita Mohanty feels that the powers this gave to the state - distribution of licenses, subsidies for the poor, control of the crime order said to be “the plaything of state functionaries” that have lifetime security, the huge amount of discretionary fund received by the Members of Parliament and Members of Legislatives Assembly to implement economic development programs in their constituencies illustrates this generalisation of the corruption - have all led to corruption of the system. The role of a civil society is thus essentialised, primarily as a ‘challenge to the state'
For Neera Chandhoke, “The crisis of representation runs deep; the informal politics that follows from the inability of either “traditional” or “new” political institutions to bring together diverse interests has rendered political life contingent and unpredictable. The lack of responsive political institutions able to give direction to politics leads to the privileging of all kinds of undesirable political practices, which concentrate not on civic but on ethnic modes of representation. The task of bringing together our disjointed political voices will necessarily fall upon the political party.” Entirely critical of any substantive role that civil society can play in a post-modern, post-colonial liberal democracy like India, she stresses that it is important to be wary of the assumption that civil society is either emancipated or abstracted from the ethos that permeates the economic or political spheres.
She finds eight reasons for this caution: the state is the enabler of the civil society, the pre-condition for the latter's existence, which is how even Hegel perceived it; secondly, there are limits to civil society autonomy, in that only means permitted by the sovereign state can be employed - both discourses and political action have to function within certain parameters; thirdly, civil society needs the state's support, both materially and for basic legitimacy; fourthly, civil society can be used against its own wish to garner unhealthy non-pluralist, intolerant manifestations such as the Hindutva nationalism that took the country by storm 1980s onwards; fifthly, civil society cannot be conceived as abstracted from power relationships because the individuals that are constituents of such are themselves saturated with the politics of agency and formalized codes of power; sixthly, civil society and the state are inextricably linked - the state has the power to condense and codify power in social formations by conferring primacy and fixity to some over others; seventhly, she finds a darker side to Putnam's conception of social capital - trust and reciprocity are not inherent to this seemingly benign space of association which can just as well be used to divide along caste, class, religious, ethnic lines as it seeks to build a tolerant coherence; and finally, it is also the defender of state power as the site for struggle between the forces that seek to violate and those that seek to protect the accepted codes of survival within the state.
At the heart of the civil society debate is the question of democratic agency, she says. Can “we the people” lead both markets and states towards societies where compassion and cooperation are governing values? We would like this to be the case, but she warns against seeing civil society as the sphere that would rise in opposition and equality to the state in doing so. Viewing it as a process of constant reinvention, discovery, discernment and not as a factor fixed in time and space as an alternative to the monopoly of power would be more helpful, she reckon
Partha Chatterjee, in his bid to sanitise the Indian mindset of colonial constructs, asks whether it would be worthwhile to keep aside the Western-inherited concept of civil society aside for a while and consider the imagination of a whole other sphere mediating between the civil society and the state. In doing so, he historicises the concept of civil society that came up in a certain context to deal with a Church and a State. He feels that a political society would be more suitable to the Indian or post-colonial context for the debilitating affairs of mediation and negotiation, rather than attempting to revise and adapt the concept of civil society from being benign sphere based in equality, liberty, autonomy, freedom of entry and exit etc. This political society would be characterised by mobilisations that would be violations of law, the violators of such law would demand welfare functions from the state as a matter of right, the rights so demanded would be collective rights for an entire imagined community and lastly, the agencies of the state would deal with such people not as components of civil society but as population groups deserving welfare. Such a conception of a political society is to a democracy, he feels, as what civil society was to modernity.
Thus, not only is it difficult to arrive at any one condensed notion of civil society and its description, it is equally important to note that the sphere is not as benign, wholesome and effective as the utopian ideal it is made out to be. Nevertheless, civil society activism might be seen as crucial, if only to ensure state accountability through greater political participation of the masses to accrue the collective benefits of civil rights. Radesh Tandon delineates three ways in which this role can be fulfilled: as the site for cohesion and representation of the various marginalised/minority identities in such a diverse polity; as movement that can influence public negotiation on ‘development issues' such a water, healthcare, education etc; and ensuring state accountability through tools such as the Right to Information law.
THE ARMED FORCES (SPECIAL POWERS) ACT
With so much controversy around it, it is crucial to examine what exactly is wrong with the AFSPA as legislation and in its implementation in the two areas that have been declared ‘disturbed'. Here, we also examine the attempts at correction and how political will has failed to generate either popular support or rectifying change for the law.
The Armed Forces (Special Powers) Act
The Armed Forces Special Powers Act was first brought into implementation on September 11, 1958, once a threat to national security was perceived from the Naga movement for self-determination and secession from the Indian state. Enacted as a short-term measure to allow the deployment of the army in India's north eastern Naga Hills, the AFSPA has been in existence for five decades. It has since been used throughout the north east and particularly in Assam, Nagaland, Tripura and Manipur. Indian officials have long argued for the continued use of the law by citing the need for the armed forces to have extraordinary powers to combat armed insurgents.. It has since been also applied to Punjab for a brief while in the early 1980s and then in Jammu & Kashmir July, 1990 onwards.
The premise for the intervention of the armed forces in internal matters is a declaration of the area as a ‘disturbed' one by the Governor, the state government or the Centre. What constitutes a disturbed area is not defined explicitly in the Act, except that it is one that has become a threat to public order and is out-of-control enough for the armed forces to step in. In both the north east and Jammu & Kashmir, the threats of militancy and separatism, as well as a perceived collusion with forces beyond state borders was seen to be enough reason for an all-encompassing law as this one to be drafted. “Contrary to public perception, the Naga National Movement did not begin as a violent armed struggle against the Indian government. It was non-violent, and did seek to make use of democratic means to plead its case. But instead of encouraging dialogue, the government enacted the Armed Forces (Special Powers) Act in 1958 through Parliament, going against the opinions of members that were from outside the Northeast... But the channels of democratic protest were closed by the government. It forced the movement to take up arms. It was almost as if it wasn't interested in dialogue; to keep open democratic spaces for dialogue,” says Nandita Haksar . The Act has since then become the chosen method of the Indian state to deal with any insurgent activity within borders since independence. Colonial continuities are often highlighted in both cases, since neither Manipur and Nagaland nor Jammu & Kashmir were directly under the rule of British India. Accession to the Indian union post-1947 was either through military manoeuvre (in Manipur) or under the premise of military assistance when the princely state of J&K was under threat from outside forces.
National security in the immediate aftermath of 1947 was also defined in terms of external threats from hostile neighbours - Pakistan, East & West, and China. Attempts at incorporation of these regions were also to buffer the Indian state from predatory actions by any of these countries and to keep trade routes open and convenient with East Asia. The scholar Udayon Mishra says that centralised power of India is repeatedly questioned in the north east of the country, where several ethnic groups live in 8 states. The same can be said of J&K where a largely Muslim population has demanded autonomy/separation from the Indian state due to lack of historical ties, but forceful appropriation into the Indian union.Mishra goes on to say that also questioned is its management of the problems of dissent and and political identity and the idea of one nation, with an emphasis on homogeneity. The fact that this enterprise is being undertaken at gun-point, using coercion instead of generating ‘consent' of the masses, as Antonio Gramsci put it, shows that the Indian state prefers the ‘short-cut' arm-twisting over nation-building. The issues with the Armed Forces Special Powers Act abound from forced militarisation, which is seen as undemocratic, and human rights and constitutional violation.
The Indian military security set-up is two-tier: the police forces under the auspices of the state government and that looks after internal, localised public order, and the armed forces of the nation, under the sway of the central government, that are deployed to protect the national borders from external threats. This is in keeping with the federal nature of the Indian state, with powers and jurisdictions divided between the state and the centre. The maintenance of public order is primarily the responsibility of the state governments, and to achieve this goal they have their own appropriate institutions and agencies.However, this principle of federalism also gets violated by the maintenance of paramilitary troops by the Centre, an ‘unusual' feature of Indian federalism according to Bhambri.This is justified by the Administrative Reforms Commission thus: “The Central Reserve Police and the Border Security Force are armed forces raised by the Union to meet the needs of the security of the country, both external and internal. In the circumstances, the use of the armed police forces of the Union in aid of the civil power of a state is perfectly constitutional. It is also clear that such aid can be provided at the request of the state government or suo moto. The question whether such aid is needed must obviously be a matter of judgement by the Centre.Bhambri finds this autonomy being exercised by the centre over state jurisdiction as a serious violation of the federal principle of the Indian constitution.
Bimol Akoijam and Th. Tarunkumar see the AFSPA as the force that has driven military action into militarism in the regions it has been applied, by virtue of a temporary arrangement leading to permanent settlement of the armed forces in the north-east especially for over 5 decades.They feel that it has worked to “supplant civil power” and not supplement it.From the moment of the forceful incorporation of the north-east, along with other princely states, into the Indian union till the present, when initial calls for self-determination have been complicated by years of neglect and marginalisation at the hands of the Indian state that has not given two hoots about development in the region, and the fact that the response to rebellion has been this oppressive measure. “AFSPA allows ‘use of armed forces' defined as ‘military forces and the air forces operating as land forces' and ‘any other armed forces'1 of ‘the Union' (Section 3) in the domestic space. Section 2 (c) of the Act also clearly shows the close affinity between AFSPA and those laws governing the military such as the Army Act (1950). It reads, ‘all other words and expressions used herein but not defined in the Air Force Act, 1950, or the Army Act 1950, shall have the meaning respectively assigned to them in those Acts',”they point out. They also say that the definition of ‘disturbed areas' is not clear, after which declaration the state is as good as at war with those it seeks to define as its own people, just as arbitrarily as it would be to go to war with another country. Finally, they say that the military character of the Act is reinforced by the presumption of a hostile nature of the said region and its people. The license to ‘shoot to kill' along with the immunity against prosecution provided to armed officers under the Act are provisions only seen before inter-state war, and seems to go beyond the call of maintaining public order.
Such power to the military within national borders has previously only implied either a ‘coup de etat' or a military dictatorship, points out Bhambri, adding that this new facet of military intervention in internal matters is a rather undemocratic phenomenon since there is already a police force deployed for this very purpose of maintaining public order. Akoijam and Tarunkumar state that this act has only culminated in an increasing sense of ‘otherness' on both sides, making the solution to national security an additional a part of the problem
Under the Indian Constitution, the AFSPA violates the following articles: (a) Article 21 - which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law."- is violated by section 4(a) of the AFSPA, which grants the armed forces the power to shoot to kill in law enforcement situations without regard to the restrictions of international human rights law on the use of lethal force ; (b) Article 14 - The right to equality - This article guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”; (c) Article 22- Protection against arrest and detention. Article 22 of the Indian Constitution provides protection against arrest and detention and under section 5 of the AFSPA, a person arrested must be handed over to the nearest police station with the least possible delay along with the circumstances occasioning such arrest but this has not been followed at all.
A G Noorani, a lawyer and activist who has been consistently criticising the government on this Act, wants his readers to “note the callousness” in the fact that the “amplitude of power is not limited”. He points out that provisions for maintenance of ‘public order' have already been made in the Criminal Procedure Code in sections 130 and 131, to be followed by the local police officers in cases of disruption
“Note the statutory injunction to “use as little force and do as little injury to person and property” as may be consistent with the necessity of the moment (Section 130(3)). Section 130 is the governing provision. Section 131 is ancillary to it.”Since these areas have the exceptional status of being ‘disturbed', they are also not under the regular jurisdiction of the Indian law, excepting them from the CrPC as well. This entails a lack of equality before law.
Contrasting this with Section 4 of the AFSPA, he is appalled at the freedom of laxity given within for members of the armed forces. “Section 4(a) of the Act is a statutory obscenity. It occurs in no statute anywhere in any democracy. It has been aptly called a “licence to kill”. Not only does it not enjoin restraint explicitly, but says that the powers may be used “even to the causing of death”. What meaning would this convey to the officer except a laxity, especially since Section 6 protects him for all legal proceedings except with the previous sanction of the central government? It ignores the officer's duty to respect the life of the citizen, omits this vital injunction and contains instead a carte blanche unheard of in any other statute in any other democracy.”
However, the most widespread alarm and criticism regarding the AFSPA is the violation of human rights and civil rights that it has entailed in the regions it has been applied. The extra-judicial powers allotted to even low-level officers of the Army have resulted in widespread accusations of loss of equality, life, liberty and subjection to murder, torture and rape of the people of these regions. One of the most high-profile cases was the arrest, rape and murder of Manorama Devi in Manipur in 2004, who was a supposed insurgent. Another is the standoff between the National Socialist Council of Nagaland and the Assam Rifles in ‘Operation Bluebird' in and around the village Oinam in 1987. Stories of abductions, disappearances, shootings, fake encounters abound, and the tales of torture in custody of the armed forces are terrible. Tehelka reports of how 11 teenage boys were forced to sodomise each other while in custody after being arrested for stone-pelting last year. “The recent killings of over a hundred people, mostly youth, in paramilitary CRPF and police firing, together with the fake encounter of three youths in Machil sector of Kupwara near the Line of Control by the army has, however, become a rallying point for all those who have been demanding inquiry into such missing, killed or tortured cases of their family members,” says the report.
According to the army's record, 1,514 complaints of alleged human rights violations were received in the past 20 years and 1,508 of them were investigated. Six cases were still being investigated. A total of 104 army officers, junior commissioned officers (JCOs) and other personnel posted in Jammu and Kashmir were found guilty of human rights violations and punished in the past 20 years. Of the total complaints received and investigated, only 35 cases were found to be true, the spokesperson said. About 97 per cent of the complaints were found to be false. Only 2.32 per cent of the complaints received with regard to charges against soldiers fighting the guerrillas in Kashmir were found to be true, an IANS report says
Recently, cables on torture in J&K under the AFSPA released by WikiLeaks said that ICRC staff told US diplomats of 177 visits to detention centres in the state and elsewhere in the country between 2002 and 2004 in which ICRC staff met 1,491 detainees and managed to interview 1,296 privately. According to the leaks, ICRC found that detainees were maltreated in 852 cases. A total of 171 described being beaten and 681 being subjected to six forms of torture. These included 498 on whom electricity had been used, 381 who had been suspended from the ceiling, 294 who had prison personnel sitting on a bar placed across their thighs, 181 whose legs had been stretched by being ‘split 180 degrees', 234 tortured with water and 302 ‘sexual' cases
The Human Rights Committee of 1997 appointed by the United Nations also declared that continuing reliance on special powers under legislation such as the Armed Forces (Special Powers) Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human rights violations, in particular with respect to articles 6 (right to life), 7 (protection from subjection to torture and degrading treatment), 9 (right to liberty and security) and 14 (equality before courts and tribunals) of the International Covenant on Civil and Political Rights, committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups.
In 1993, the Protection of Human Rights Act came into existence that sought to preserve the individual rights in keeping with international agreed standards. It provided for the setting up of a commission at both the central and state levels. The National Human Rights Commission has since been an active body, investigating and enquiring into cases brought before it by victims or persons in lieu of those who feel they've been violated. It too has reviewed the Armed Forces Special Powers Act in 2006 in light of consistent human rights violations brought to its notice in the past 13 years. While often its investigations concluded in the provision of compensation to affected families (of between Rs 50,000 and Rs 1,00,000), its actions are often not welcomed by even the judicial wing, since it is seen as some sort of an interfering body.
So is the case with the State Human Rights Commissions. “The [Jammu & Kashmir] SHRC's struggle for adequate facilities and resources is not a recent development. In its 1998-1999 report, it had complained of similar problems. Unfortunately, little seems to have changed. Over the past six years, in successive annual reports, the SHRC has consistently noted its difficulties in investigating reports in remote areas, such as Doda and parts of Rajouri, due to the simple fact that it does not have a vehicle capable of traversing rough terrain. Nor is it equipped with a video camera. Members of the SHRC are forced to perform onsite investigations themselves and generate descriptions of the situations... apart from the lack of physical resources, the SHRC is beset by a number of problems related to its powers and its autonomy, which have had a major impact on its functioning and credibility,” says an SAHRDC report.
The Commission is dependent on the state government for funding, has to refer cases reported to the Sub-inspector of the local police and is not taken seriously by the district magistrates. With right to judicial redressal for civilians under the AFSPA restrained till Central government has given the green light on any case, and the agency provided to the NHRC and SHRCs limited, the victims are left with no alternatives. It becomes a signifier of the lack of political will and the collusion of the powerful to keep the ‘have-nots' right there - under their thumbs - and the rhetoric of liberalism high in the mainstream.
Attempts at Correction
Political engagements in reviewing the Act, although few and far between, and largely non-serious, have been done. Chief among them has been the Justice Jeevan Reddy Committee that was appointed in 2004, when the Indian state came under pressure from both national and international circles to do something about the sense of impunity surrounding the Manorama Devi case in Manipur. "During the course of its work, the committee members met several individuals, organisations, parties, institutions and NGOs, which resulted in the report stating that "the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness." The report clearly stated that "It is highly desirable and advisable to repeal the Act altogether, without of course, losing sight of the overwhelming desire of an overwhelming majority of the [North East] region that the Army should remain (though the Act should go)."
The recommendations also included incorporating some of the provisions of the AFSPA into the Unlawful Activities (Prevention) Act, which was seen as some sort of “sleight of hand” where the objective notion of whether it was necessary to deploy armed forces in the ‘disturbed' area was transformed into a subjective one that took for granted this need and only contemplated upon the where and how of deployment. In any case, the recommendations were outrightly rejected by Defence Minister Pranab Mukherjee, nor was the report allowed to be published.
On April 3, 1995, the government of Nagaland constituted a one-man Commission of Enquiry with Justice D M Sen, retired judge of the Guwahati High Court, to probe into incidents of shooting, arson and rape by various paramilitary forces in Akhulato, Kohima and Mokokchung (all in Nagaland) occurring between December 1994 and March 1995.In the Kohima incident, on March 5, 1995, a tyre of a truck that was part of a convoy of 16 Rashtriya Rifles burst while passing through the capital of Nagaland. Rashtriya Rifles personnel mortar-shelled the town of Kohima, dragged people out of their houses, and killed them, claiming that the convoy had been attacked. The chilling findings of the Justice Sen Commission of Inquiry, that the paramilitary forces committed cold-blooded murder, arson and rape in the three incidents investigated, cannot be dismissed as baseless allegations by human rights groups. In the three unsolved murder cases, the Commission recommended that: (1) Ex-gratia compensation of Rs 2 lakh be given in each incident of murder and rape; (2) The alleged crimes be investigated and tried under the Army Act; and (3) A technical commission be set up to assess damage to property.
The National Human Rights Commission too has attempted at making recommendations for better implementation of the AFSPA. In 2003, it issued revised guidelines pertaining to custody of those arrested and deaths occurring in encounters. “In 2003, revised guidelines of the Commission have been issued and it was emphasised that the States must send intimation to the Commission of all cases of deaths arising out of police encounters. The Commission also recommended the modified procedure to be followed by State Govts. In all cases of deaths, in the course of police action, and it was made clear that where the police officer belonging to the same police station are members of the encounter party, whose action resulted in deaths, such cases be handed over for investigation to some other independent investigating agency, such as State CBCID, and whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by the State CBCID. A Magisterial Inquiry must invariably be held in all cases of deaths which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry,” it says in a report.
More recently, with Kashmir exploding out of wrath and the intifada being triggered in the summer of 2010, Home Minister P Chidambaram, on September 25, 2010 proposed an 8-point strategy to engage the Kashmir's people at all levels, including sustained dialogue with all sections of society and government, asking the J&K government to release all youth detained or arrested for stone-pelting, asking the J&K government to call unified command meeting, review forces' deployment, consider fewer bunkers and checkpoints, review areas notified as ‘disturbed areas', among others . The meeting did not discuss the Armed Forces Special Powers Act's application in the state, however, saying that decisions such as these are to be taken by the unified command after their review is done. The team of interlocutors was therefore set up to engage with civil and political society in Kashmir, and their first set of recommendations included lifting the AFSPA from selective areas. G K Pillai's statement about considering 25% reduction in troops stationed in Kashmir also came around this time. Whether this was a move to buy time or if this was actually under consideration is irrelevant because there has been no move on that front since.
Voices within the army and political circles, however, continue to support the Act. The Ministry of Defence and Army Chief General V K Singh have both stressed on the need to retain the law in both the areas. While Home Minister P Chidambaram recently promised to review it (and it is on the agenda of the appointed interlocutors to Kashmir), the Army chief feels it a necessary legislation in order to ensure freedom and effectiveness of operation in countering militancy and insurgency . Home Minister G B Pant, in 1958, sought to justify the application of the law by saying that it was to maintain public order in very limited, neatly defined areas and was a temporary arrangement. Today, the threats seem to have multiplied - not only is Kashmir on fire and national security under threat according to those in power, but now militancy is being aided and abetted from beyond borders with Pakistan being complicit in the Islamic fundamentalist separatism that has the state in its grip. Whether it is paranoia or just the headiness of power, the Act has enough supporters from mainland India that cannot possibly empathise with the on-the-ground situation in either of the regions.
Perceived internal threats, according to Margaret Blanchard , often have created far greater repressive reactions than when the nation is at war. The fears that such threats engender appear similar across borders, as are the responses to them around the globe. These stances include: a lack of confidence in the good sense of the nation's people; limited access to information due to excessive government secrecy; government control of the ideas that people are allowed to receive; surveillance of dissidents; reliance on repressive legislation; and a firm belief that the preservation of government is the most important value in society. In the implementation of the AFSPA, all these trepidations are vis
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