A. Bimol Akoijam“This is a lawless law”, so asserted Laishram Achaw, MP from Manipur while the Armed Forces Special Powers Bill was debated on the floor of Lok Sabha on 18th August, 1958. The implied paradox of a “law” which is marked by a “law-less” character is something that has systematically created and nurtured the violent and grotesque life in the state. And it is also this paradox that escapes from the dominant legal criticism of the Act.
Indeed, AFSPA as a “lawless law” is a “legal fiction”. It is a “fiction” that camouflages a political act which normalizes “rule by decision” by the executive rather than “rule of law” characterized by the imperatives of normative and institutional mechanisms of a constitutional order. That AFSPA is a matter of politics (and its concomitant approaches or policies towards certain kind of issues, people and place) is that which has hardly been acknowledged by the dominant legal criticisms, particularly by the human rights lobby. Even when the political appears, which it does on and off, it has either been a fleeting appearance or something that is being articulated halfheartedly and without much conviction as a secondary concern.
It is does not surprise one that with its political premise or character by and large remaining unrecognized, even at the height of the agitation against the “Act” in Manipur in the early part of the last decade, it could not become a political issue during elections. And consequently, this “legal fiction” continues to subvert the normative and institutional mechanisms of a civilized democratic order.
State of Exception: AFSPA as a Legal FictionHistorically speaking, the present AFSPA came into being as an executive ordinance on 22nd May 1958. For that matter, its precedent incarnations, such as during Quit India Movement in 1942 or during the colossal violence that marked the partition of South Asia, were also ordinances issued by the executive. This historicity of the “Act” tells us that it is an “exception” to the established norms and institutional mechanisms, and as an “exception” it is supposed to be a temporary measure. In other words, it was a (temporary) response to meet certain “extraordinary” situation which could not be dealt with under the established juridico-constitutional norms/mechanisms.
Like all “exceptions”, it has necessita legem non habet (necessity has no law) as its primary guiding principle. In this sense, therefore, it is a measure that carries the paradox of being a “legal measure that cannot have a legal form”. It is this paradox that one sees in Laishram Achaw’s remark on the “Act” as a “lawless law”.
Therefore, one must address what, why and wherefore of such an “exception” has become a “norm”. Such an engagement is bound to bring the fact that AFSPA is a basically a “state of exception” which has been use as “normal” paradigm of governing certain kind of people and place in the post-colonial Indian State. Needless to say, only such a realization can frontally confront the political character of the “Act” beneath the “legal fiction”.
AFSPA: Decisionism and Paradigm for Governing the “Other” AFSPA was born out of a decision, though rooted in the constitutional power given to the executive; it is a decision of the “sovereign” who “decides on the state of exception”. Here it must be noted that this “sovereign” is ideationally rooted in the “we, the people” and institutionally speaking the “executive” of the Indian State (read, Government of India).
It is this “decision” of the sovereign that is written all over the “Act”. As it has been noted, its originary moment (its origin and originating essence) itself is based on an executive decision. Beyond that, when to deploy the military under this act (by invoking the “Act”) and that under the “Act” one needs a prior sanction from the executive to initiate any legal proceeding against the acts committed agencies of the state (Section 6 of AFSPA)—all point to the “decision” of the executive.
This decision of the executive is that which allows the military to be deployed in the “internal affairs” of the state as a means of maintaining “law and order”. Any upright professional soldier would certainly understand that such activities are not their jobs. Incidentally, a two star general, a field commander, has publically admitted as much in a recent seminar held at Manipur University on civil-military relation.
Strange as it may seem, both the Supreme Court Judgement of 1997 and Reddy Committee have insisted that the military is trained for fighting the enemy, not to deal with its own citizens, and therefore the “prolonged military” deployment should not be done. It is another matter that these observations came in despite the fact the military has been deployed for decades under this “Act”. In fact, Supreme Court judgment categorically insisted that there is “no” material on record to show that the ‘disturbed” condition where the “Act” has been invoked is due to “armed rebellion”! Indeed, it can be argued that the failure of the legislative oversight function on 18th August, 1958 when the Bill was passed in the Parliament was complimented by a judicial pronouncement in 1997.
Incidentally, no one seems to be interested to find out as to what “material” will constitute evidence for “armed rebellion”. Perhaps it is precisely because it is not a main concern of “human rights” in the conventional sense as it has been used. But then, the Act has been invoked to deal with certain phenomenon which has been referred to as insurgency etc. It goes without saying that such a question is a political question which has not been raised as it should be in the context of the struggle against AFSPA.
Thus, having not been politically confronted, the decision of the executive to use “state of exception” and juridical decision to privilege the executive by giving such a means has allowed the erosion of the basic normative and institutional mechanism in the state over the years. That the elected representatives have often been humiliated and that even a privilege motion against the army personal raised the then Leader of the Opposition Mr. O Joy some years ago did not have the teeth to make the army personnel accountable or that during “Operation Blue Bird” (1987), the civilian authority was reportedly undermined by the military—all these cases point towards the systemic subversion of the normal normative and institutional mechanisms of a democratic order.
In fact, the other side of such subversion is militarism, a “phenomenon by which a nation’s armed services come to put their institutional preservation ahead of achieving national security or even commitment to the integrity of the government structure of which they are a part”. Such a militarism has become a reality is shown by the fact that the Reddy Committee report was not even placed or made public, leave alone followed up or implemented, reportedly due to objection raised by the military.
It has been argued that “American network of (military) bases is not a sign of military preparedness but of militarism”. In a similar sense, it seems more than clear that decades of military deployment under this Act is a reminder of a militarism which serves as a reminder of a “presence” more than “combating” insurgency per se in the region. The armed forces reminder of the “presence” of the Indian State (part of which is seen not only through operations or patrolling but building schools, sport-grounds, running health care camps and giving recognition to citizens for their public service etc). In fact, the “state of exception” and its concomitant militarism form the paradigm of governing the “other” who are somehow could not be “integrated” into the “national body” that marks the Indian State.
Herein lies the basic challenge of the struggle against AFSPA: to bring the political premise or character of AFSPA upfront.
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