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The Tacit Tyrant - The growing atrocities committed in the name of protection of the State

The author, Parikshith Maliye, is a second year student at St. Joseph's College of Law, Bengaluru.

The constant anti-state activities have left a number of questions for us to answer, "How many innocent lives are lost? Who controls these anti-state actors from going rogue? And is it being done in a just, moral and legal manner?"

This article aims to bring awareness about the AFSPA and all the horrid provisions in it that are inhuman and amoral to begin with. It is an attempt to raise fundamental questions about this Act that commonly goes unnoticed.

The Armed Forces (Special Powers) Act, 1958 is a legislation that has been passed and enacted by the Parliament of India that enables the army to give its officers certain special powers in designated areas that are deemed to be disturbed or subject to constant internal disturbances. The whole idea behind this law was to ensure that a non-central or non-state entity can control the region. The Indian army will be deployed in certain areas that have been designated as “Disturbed” and this designation must only come from a recommendation to the central government by the state government although a new amendment to this Act allows even the central government to declare through ordinance an area as disturbed.

It is known that military personnel who are employed under any capacity for the military, are subjected to Martial Law and are not bound by any law apart from the same. This means that they are not subjected to the common laws of the land including the criminal legislations and the civil laws. There then arises a question “Are the armies supposed to operate with this sense of suzerainty over the commoners? Should they be held accountable for their actions?” This act was first promulgated by the British in the year 1942 to control the Quit India Movement that was at its peak. The British at this time were busy fighting the Germans and needed to control the colony and reduce the violence that was spreading. They enacted this act with the hopes that the army could bring some sort of normalcy to a relatively disturbed and conflict-ridden area. This is the reason that the army was given special powers and told to use them in any case that they deemed necessary. What is a little worrying is, the fact that the Indian government kept this act and considered it important and let it remain after Independence.

The government enacted 4 acts under the same lines and under the provisions of Article 355 of the Indian Constitution which provides that “It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution”. This article was added to ascertain the fact that India is and shall always remain a country where the Union owes protection to its sub-units of states. Using this Article as an umbrella to allow this legislation to pass shall remain as one of the most blatant and draconian uses of power in modern times. This is of course my opinion and isn’t necessarily bound to be true. The four main acts that have drawn inspiration from the British legislation are -

1. Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance

2. The Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance

3. The East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance

4. The United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance

It can be noted that these orders have been passed by way of ordinances and not by the Parliament passing this bill. These ordinances have been enacted in areas that are prone to Internal disturbances and are constantly engulfed in some conflict or another. The logic behind this act is that it will be used only in situations when there are internal disturbances or any form of external aggression. Whether this is actually the case or not is subject to much controversy. For instance, this Draconian law has been in effect in the erstwhile state of Jammu and Kashmir for the past 30 years. The Act gives special powers to military personnel or army officers and permit them to do any/all of the following -

• Fire upon a person who, in the officer’s apprehension is causing problems to maintenance of public order. This may even result in the death of the person.

• Destroy any hide-outs or barracks of anti-state actors who intend to disturb the peace of the area.

• Arrest individuals without warrants even on the mere apprehension that the said person may have or will in the future commit any wrongful act

• Enter any building, house or premise in order to make arrests or to restrain individuals

An essential provision of this which is fundamentally wrong is that the army officers receive legal immunity for their actions and no particular suit can be initiated against them. The army personnel must do any of those acts in good faith and such must be sanctioned by the Central government. Although in reality most of the inhumane acts done by the military aren’t actually sanctioned by the Central government. The Central Government also receives absolute immunity in determining what area comes under disturbed and what doesn’t. The judiciary which often acts as the Check for the Parliament and sometimes the Executive, is absolutely powerless in the matter and no judicial review can be filed regarding the decision of what constitutes as disturbed.

The concept of one or two state entities having almost supreme power over areas, is fundamentally wrong. We might proclaim ourselves as an Independent and truly democratic nation but, what’s to stop the Central government from applying this law to more areas than the ones it has applied it to already? Since there is no true check or balance to this authoritarian use of power, can we expect more areas to be deemed as “disturbed” which can then be used as an excuse to absolutely squash the uprisings against any ruling party? The AFSPA is one of the most dangerous laws that can be used for tyrannical purposes if it isn’t kept in check. It is important to remember that a constitutional provision once has enabled a ruling PM to successfully turn the country into a pseudo-dictatorship and run it according to her whims and fancies. The same can be applied for a mere legislation. This statement arises only because a legislation is often easy to change or amend as compared to the constitution. Therefore, will there be any future amendments to the AFSPA which will make this law even more horrid than it already is?

The army of any country has always posed a threat to the established political system of that country. This is because ever since the inception of a nation-state, armies have operated out of the laws of the land and have been subject to laws that they themselves create. This is why in modern democracies we have the armies being under the control of the executive (be it real or nominal in the case of India). But the existence of the AFSPA portrays that the executive may at times demand the army to do certain acts which were previously deemed immoral or illegal. Now when an act has been specially decriminalized for the army, how can we not expect them to make full use of the power? There have been countless atrocities that have been committed under the AFSPA that have destroyed countless lives, innocent and guilty. While some acts of the army have been in the nation’s interest we won’t really know which of these acts were legitimate and which ones weren’t. Information about army atrocities are often met with harsh criticism about how this information is disrespectful of the army and that they are laying down their lives for us. The aggrieved families and persons may not agree to call them heroes for the sole reason that they have been a subject of extreme misuse of power.

The AFSPA is not very popular and isn’t really known to a common man. This can be mainly because this law has been used in areas which are either perennially conflicted or those areas which are generally ignored by the people of the country. The law has so far been in constant use in the North-Eastern states of Nagaland, Manipur, Assam and parts of Arunachal Pradesh. These are states which don’t really get news coverage from the mainstream media and as a result are deprived of a voice to be heard. Relatively smaller than most states, the North-Eastern states have lesser representation in the Parliament too and their voice there too fades away. Another key state where this Law has been in effect is Jammu and Kashmir (erstwhile). This state has been commonly known as a region that is in perennial or never ending conflict and has been the home to so many instances of violence that goes both ways.

The fundamental reason why the “disturbed area” tag is slapped onto some states is mainly because of the growing anti-state elements in the region. ‘Fight fire by fire’ is a famous Ancient Roman philosophy which has more or less been adapted by the Indian governments regarding this matter. But it fails to qualify as a battle of equals because one side is clearly more powerful and ruthless than the other. The curbing of anti-state elements excuse has frankly been overused in these areas and we are now seeing the army take almost full policing control over them. We have often seen bloodshed and images of women or children being covered in blood, some of which even won the famed Pulitzer Prize! Some may say that this can be seen as collateral damage that occurs when the real anti-state elements are eventually wiped out, but the damage that it incurs on the innocents must be accounted for and the people responsible for the atrocities must pay, be it bureaucrats or politicians. The army personnel cannot be held under the laws of the land but must at least face some consequences even if it is under Martial Law.

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