Tag: Armed Forces (Special Powers) Act 1958

By Angomcha Bimol Akoijam

By and large, those who oppose the Armed Forces Special Powers Act continue to de-link or ignore the subversive political premise of the Act in their criticism against the same. Primarily driven by narrow juridical perspectives informed by Human Rights concerns, those who oppose the Act have allowed AFSPA to go on without facing a fundamental challenge to its foundation. As a consequence, the prospect of the Act going through a process of mutation to come back in another incarnation to continue the subversion of a civilized democratic life in the Northeast in general and Manipur in particular cannot be ruled out.

Rhetoric of a Merry-Go-Round

It’s worth remembering that not only AFSPA came as a product of a “decision” by the political executive (i.e., as an ordinance on 22nd May, 1958) but also subsequently escaped more or less unscathed from the “legislative oversight function” of a democratically constituted Parliament on 18 August, 1958. And finally, rather than returning the legislation to the Parliament again for reconsideration, the President readily gave his assent on the legislation, thus making it into a law on 11 September, 1958.

Finally, this “special” law, which, unlike many other “extraordinary” or “special” laws, specifically allows the deployment of the military forces in the “internal affairs” (or as it has been termed as “law and order”) of the State, survived the judicial scrutiny in 1997 as the Supreme Court upheld its “constitutionality”.

Incidentally, after having escaped all these processes, legislative, judicial and executive scrutiny, the Act did return to the political domain once more as a consequence of the upheaval in Manipur in 2004. And yet, the political premise of the Act has never been the primary concern of the protest against the Act.

Indeed, despite this historicity of the Act, strange as it may seem, even as we mark the anniversary of AFSPA, the day the Act became a law, or a “lawless law” (as the then MP from Manipur Laishram Achaw meaningfully called it), one might continue to hear the same legal arguments against the Act which were put up before the Supreme Court. And redundant arguments (e.g., the power to shoot has been given to Non Commission Officer, as if the power is given to a JCO or Commission Officer, it will be acceptable) are likely to be in the air once again. This being the case, the need to go to the basics must be emphasized once more.

Basic Questions

One basic issue that has been relegated, with serious consequences, has been the issue of what this Act is for? All legislations are to address some realities/phenomena in our real world. Acts on dowry, sati, child-marriage, for that matter the recent talk of Lok Pal, all are (about) legislations to address or fight realities of our life (the menace of dowry, sati, child-marriage or corruption). The discussions or debates on these legislations are not carried out by de-linking these realities. If so, what is that AFSPA is fundamentally seeking to address?

The Act addresses a reality in our real world, that is, armed insurgency which purportedly threatens the “national security” (i.e. undermining the territorial integrity and constitutional order of the Indian State). In Manipuri, that phenomenon is called “khutlai paiba lalhouba” (or “armed rebellion”; here it must be noted that “insurgency” is a synonym for “rebellion”).

How does one hope to discuss the Act by de-linking it from the purpose and reality of “armed rebellion” that it purportedly seeks to address? Indeed, have the familiar arguments on power being vested with the NCOs or for that matter even the infringement on the fundamental and sacrosanct “Right to Life” of the citizens ever reminded one of what is that the AFSPA is seeking to address or deal with this reality of our real world? None!

Interestingly, all this while, as the protestors are busy while barking at the “bare act” of AFSPA with their increasingly redundant legal arguments, the Government of India does not and will not de-link what it thinks the Act is addressing while thinking about AFSPA.

It is no wonder then that the protestors are not only least bothered about, if not oblivious of, the dubious and sinister politics that has given birth to, and sustained, this legal fiction called AFSPA over the years. While the Supreme Court Judgment categorically has insisted that the “disturbed condition” is not due to “armed rebellion” wherein the Act has been enforced or that the said “condition” does not constitute a threat to the “security of the nation”, the military and the political class continue to maintain otherwise.

If the Act is not addressing or not related to what the people know it as “khutlai paiba lalhouba” (or “armed rebellion”), what is that the Act is seeking to address? Having failed to address or remained ignorant of such basic question, many have failed to understand the Act itself. For instance, the violence which is being exercised by the State through AFSPA is fundamentally based on or derived from the violence to “institute order” rather than “violence to preserve order”. That AFSPA is a violence to institute “Indian-ness” or the Legitimacy of “Indian State” in specific areas and their inhabitants wherein the “Indian-ness” are problematic.

Indeed, it is not merely the ignorance of written words or documents, even the empirics have failed to draw the attention of many protestors to the real character of the Act. For instance, that the AFSPA has not been imposed in all those areas that have “armed insurgency” does not even allow many of these protestors to see the real nature of political violence invoked by the Act. Thus, having failed to understand the political premise of the Act, they do not adequately comprehend the fact that AFSPA has always been imposed wherein “Indian-ness” has become problematic for the Indian State (Northeast, Kashmir, and briefly Punjab), not in those areas wherein “Indian-ness” has not been seen as a problem, albeit affected by armed insurgency (i.e., leftist insurgency in “mainland” India). And consequently they continue to argue against AFSPA as if the Act is an instrument of maintaining “law and order”, a premise dubiously set up by those who impose and seek to sustain the subversion of this diabolical legal fiction.

Having failed to understand the nature of the political premise and its violence invoked by the AFSPA, most of these protestors have also failed to understand that the reason behind the use of the military forces (which has the ultimate physical force for the “institution of order”) rather than the police (which exercise the violence to preserve/main order) runs deeper than the issue of whether the police forces can handle the situation or not. That had it been a question of “law and order”, either the police forces would have been readied long time back for the job or the military would not have also objected to the restraints on power which are typically imposed on those who perform the duty of maintaining “law and order” under the normative and institutional imperatives of a democratic order.

Thus, the delinking of the political premise of the AFSPA has been a critical factor in allowing the subversion of a civilized democratic life under a legal fiction. Not only that, such an approach has also allowed the people to be a part of the denial and distortions of the nature of the historically rooted and contemporary socio-political issues that affect our collective life for decades. Consequently, our capacity to address and deal with our pathetic situation in an informed, honest, purposeful and realistic manner has also been seriously jeopardized. And it must go without saying that harping on narrowed legal arguments, resorting to rhetoric and proclaiming dubious knowledge of “ground reality” to hide one’s ignorance or dishonesty do not help much to fight against AFSPA and its political premise.

Read more / Original news source: http://kanglaonline.com/2011/09/afspa-tragedy-of-delinking-its-political-premise/