AFSPA And The Violence It Produces: Is It Time For Its Repeal?

The recent bloodshed at Oting, Nagaland, is an ominous reminder of the unbridled violence that has vulgarised the State바카라�s claim over 바카라�legitimate use of physical force바카라�. We all know that the capacity to exercise violence is at the heart of the State as an institution. It is something that enables it to sustain itself. Police, as an instrument to 바카라�preserve order바카라�, exercises that force. We encounter it in our quotidian world바카라�from fighting crimes to regulating traffic or controlling crowds and maintaining order, it exercises that power to restrain and discipline. But none embodies the ultimate expressions of that corporal might of the State as the military does. As a war machine, it is specifically trained and maintained to destroy and kill. Since the military has that vital capability to use physical violence, it can also institute and/or re-institute the State itself. Military coup or coup d바카라�état is a reminder of that potential. That is why, the military as an 바카라�apolitical바카라� institution is not only idealised but it is also restricted from involvement in the internal affairs of the State.

The adage, 바카라�Julius Caesar crossing the Rubicon in 49 BC was the beginning of the end of the Roman Republic바카라� is a historical signpost that speaks of how the military could transform the very character of the State. Incidentally, Gandhi knew of this intimate connection between violence and the State, and the military as its embodiment. Thus, 바카라�India of my dreams바카라�, he said, would be a country with the 바카라�smallest army imaginable바카라�. Yet, not only does India maintain one of the largest military forces in the world today, but in defiance of the traditions of keeping the military away from involving in the domestic politics and affairs, the Indian State crossed its own Rubicon way back in 1958 when it specifically enacted the notorious Armed Forces (Special Powers) Act바카라�popularly called AFSPA바카라�for India바카라�s Northeast. This was followed by two versions of the same in 1983 (for Chandigarh and Punjab) and 1990 (for J&K).

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This piece of legislation, which was inaugurated on May 22, 1958, as a presidential ordinance, was an incarnation of a similar one used by the colonial British against the Quit India Movement in 1942. Unlike many 바카라�special바카라� laws, AFSPA enables the military to get involved as an instrument of administration. And as expected of the military, it is done with the power to destroy and kill. It also empowers to engage in pre-emptive strikes against places from where 바카라�armed attacks are likely to be made바카라� or fire upon people, incl­uding 바카라�causing of death바카라�, for carrying not only 바카라�firearms바카라� or 바카라�weapons바카라� but also 바카라�things capable of being used as weapons바카라�, including on the basis of 바카라�suspicion바카라�! Such powers are expected and legitimate for the military. Once war is declared, it is an 바카라�either he or I바카라� situation; the intent of the other, the enemy, to harm you is a given. Hence, the powers endowed by AFSPA바카라�shoot to kill, destroying 바카라�arms dump바카라� or 바카라�fortified position바카라� or 바카라�shelter바카라�, including preemptive strikes바카라�are nothing unexpected, as far as military operations are concerned.

But then, there is no official declaration of war for the military to exercise these powers. In fact, while upholding the constitutionality of AFSPA in 1997, the Supreme Court observed that the 바카라�disturbed condition바카라� that the AFSPA invoked was not 바카라�due to armed rebellion바카라�. In that judgment, which is considered by many as one of the most regressive in the history of the highest court, the constitutional bench had insisted that the situation might not be of such a magnitude so as to say that it constituted a threat to national security. There is something deeply discriminatory and exclusionary바카라�even racist바카라�about this 바카라�disguised war바카라�. The Maoist insurgency in central India has been described as the 바카라�greatest security threat바카라�. Yet, proponents of AFSPA insist that this Act cannot be used in these areas as these (Maoists and people in areas affected by the unrest) are 바카라�our own people바카라�. Truly, AFSPA is meant for some people in some specific areas, beginning with India바카라�s Northeast, a region wherein, as some say, 바카라�Southeast Asia begins바카라�. The cultural-civilisational-and-racial markers are undeniable. But AFSPA is not officially seen as such. It is, as the Supreme Court insisted, to utilise the military 바카라�in aid of바카라� the civil authority to maintain 바카라�law and order바카라�. But, it insists, AFSPA is not like calling out the military to assist the civil authority to maintain public order under CrPC.

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It바카라�s worth reminding that given the enormity of the wealth and power of the state, especially its capacity to use physical force, there is a need to restrict such powers. This is what the 바카라�rule of law바카라� as 바카라�institutional restraints on power바카라� seeks to perform. For instance, in criminal jurisprudence, there are universally accepted ideas and concomitant practices that seek to defend a person who has been accused of committing a crime. Besides the separation of powers and responsibility between prosecutor, judge and executioner, the principle of the 바카라�presumption of innocence바카라� (that an accused shall be assumed to be innocent until proven otherwise in a court of law) and 바카라�fair trial바카라� (ideas that, among others, an accused shall have the right to get all the opportunity to defend herself/himself) are some of the known and well-established aspects of criminal jurisprudence. As one can see, the powers given to the military under AFSPA are not subjected to these familiar asp­ects of criminal jurisprudence. In fact, one cannot even prosecute any personnel until and unless it is sanctioned by the central government (Section 6, AFSPA). And, they are also not subjected to the Geneva Conventions as they are not at war.

Insofar as these familiar norms which seek to domesticate the violence of the State and war are withdrawn, AFSPA is an 바카라�exception바카라�, a condition wherein norms have been withdrawn. It바카라�s a 바카라�lawless law바카라�, as Laishram Achow, the then MP from Manipur, has termed it when it was introduced in the Lok Sabha on August 18, 1958. It was supposed to be a 바카라�temporary measure바카라�. But it has survived till date. In that, it바카라�s an exception that has been normalised and become a norm. Besides, AFSPA has become the embodiment of a prejudiced set of entrenched attitudes towards certain sections of the population, and their issues, in this country. Such prejudices have managed to defeat the voices against AFSPA, including the moral kind in the form of the longest fast in human history by Irom Sharmila. Former Union minister P. Chidambaram had termed it 바카라�obnoxious바카라� while former Prime Minister Manmohan Singh had hinted it of being an 바카라�inhuman바카라� act. Similarly, various international and national bodies have asked to repeal AFSPA, including by the Justice Jeevan Reddy Committee which was specifically instituted by the PMO in 2004.

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Just as this legal fiction survives to govern over the people as a prose, it has scripted numerous tragedies marked by blood and tears, a trail of murders, forced disappearances and sexual assaults바카라�mostly, if not almost all, without any trace of justice being delivered. The latest massacre at Oting reminds us of the intimacy between AFSPA and the violence that it produces. But whether it shall prick the conscience of those who have hitherto defended the legal fiction to finally scrape it or further strengthen through mutation to suit the 바카라�new frontiers of war바카라�, only time will tell. But the memory of Oting tragedy shall be etched deep in the inner psyche of those brutalised people to both inform and constitute who they are.

(This appeared in the print edition as "Violence of a Legal Fiction")

(Views expressed are personal)

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Angomcha Bimol Akoijam is an Associate Professor at the Centre for the Study of Social Systems, School of Social Sciences, JNU