AFSPA is a demonstration of poverty of liberal imagination

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By Pradip Phanjoubam

The Armed Forces Special Powers Act 1958, has never been out of focus in any discussion of the problems of the Northeast region. Its continuance has indeed become what Georgio Agamben calls a permanent “State of Exception”, during which the civil rights of citizens or a section of citizens of a State are wilfully and severely curtailed by the State. The discussion on the issue time and again continue to leap into the front burner and the last of these was after reports by United Nations Special Rapporteur on Extra-judicial, summary or arbitrary executions, Christof Heyns and Special Rapporteur on Human Rights Defenders Margaret Sekaggya which derided in the strongest terms the continuance of this Act as a dark blemish on the democratic credentials of India. Following this, the then Union home minister, P Chidambaram, had even gone on record that a proposal for a reform of the Act is pending with the government. This promise, like so many other similar ones, however proved empty, or at best rendered toothless by the complex maze of political interests pulling the issue in different directions.

Even though there is a near consensus amongst rights conscious liberal civil society in the country that the Armed Forces Special Powers Act, AFSPA 1958, has outlived its utility, the liberal dilemma as to what must replace the Act continues. It must be added here that even those who think the Act must continue agree that it remains a choice because there is no other choice, and the sooner the conditions that led to the imposition of this draconian Act recedes, the AFSPA would die its natural death.

This argument is not easily refuted, for although the nature of the “extraordinary” situation that prompted the Act to be imposed may have acquired a new visage, there can be no denying the situation is still “extraordinary”. The important question for the liberal establishment then is, how would they propose this extraordinary situation to be tackled? Unless they are able to address this question in earnest and evolve a satisfactory answer, the hawks who believe there is no substitute to the AFSPA probably will continue to hold the upper hand. In this sense, the continuance of the AFSPA is not just about the triumph of illiberal dogmatism but equally of a profound liberal failure.

But before I go any deeper into what might be a credible liberal strategy, it would be unfair to simply make the pro-AFSPA argument appear legitimate without a challenge, even if it is by the poverty of liberal imagination. This is because there is a strong element of intellectual coercion in the proposition that the “stick” would disappear the moment the victim behaves. This coercive outlook is a manifestation of the state’s hegemony which says that everything must fall in line with the state’s vision and any serious dissent is at the risk of incurring its wrath.

The answer proposed to this by Italian thinker Antonio Gramsci is a “counter hegemony”. Some, (as for instance, Prasenjit Biswas and Chandan Suklabaidya in “Ethnic Life-Worlds in Northeast India” Sage) even go to the extent of arguing that insurgency of the northeast variety is, or at least was, in many ways, precisely this counter hegemony. All of us in the Northeast of course know how oppressive this counter hegemony too can get. But apart from everything else, this dialectic should serve as an eye opener.

Hegemony-counter hegemony, violence-counter violence… these binaries only confirm the cycle of oppression can go on and on. The coercion of the AFSPA hence has served to feed the counter coercive reactions of the insurgents and vice versa. Small wonder then, that after more than half a century, the situation in the Northeast is still “extraordinary” enough to “deserve” the AFSPA.

The liberal goal should hence be informed by a thirst to find a way to prevent a situation in which another 50 years later, another generation of commentators are left to repeat this dreary chant that the cycle of violence is destined to go on endlessly. The cycle must be broken somewhere, unfortunately this is not as simple as simply removing one side of the argument in this tense dialectic, for the counter argument, as we have just said, can be equally hegemonic.

This however is not an excuse for the continuance of AFSPA. One the other hand, this is a plea for a better liberal argument against the AFSPA. The question “what after the AFSPA?” in this sense is not plain rhetoric as many who dread political incorrectness might make it out to be. It is stark reality. The campaign for the end to AFSPA must continue, but alongside it, in equal earnest, must also be the effort to find a liberal answer to the question “what after AFSPA?” Perhaps the quest for this Holy Grail should be a grand and collaborative project of civil society and State.

Although on a much smaller scale, it is not as if such an effort has not been made in India. The Justice Jeevan Reddy Commission report is one such, but it appears this report will be shelved without officially sees light of day. I am not presuming the recommendations of this report are adequate. I am only saying such are the efforts which need to be made.

Curiously, nobody especially the State, does not want to call it a war situation either largely because war implies conflict between two States, making the unenviable paradox of using the military in a civil strife inevitable.

Making good laws is the answer:

But the issue of the state’s response to violent challenges to it is multidimensional and indeed the debate on the Armed Forces Special Powers Act, AFSPA, in Manipur is getting more and more curious on another count. Here we have a peculiar situation within the seven Assembly constituencies of Imphal East and West where the Act had been withdrawn in 2004 following the unprecedented public outrage over the alleged custodial rape and killing of Thangjam Manorama by the Assam Rifles.

And yet, if statistics since 2004 were to be considered, it is within this area that most of the state as well as non-State related violence have taken place. What is belied in the process is the widely held public belief that the violence endemic in the Manipur society is conditional to the existence of this draconian and hated piece of legislation drawn up in 1958 to contain insurgency in those regions of the Northeast declared “disturbed”. When the government took the decision to suspend the operation of the Act from the Imphal municipal area, the general belief was this was the beginning of the end of this Act, and the return of normalcy as a result. Experience however is telling a different story.

There is of course a big confusion in the minds of a great section of the public of Manipur. Many still fail to take cognizance that the AFSPA empowers only the Army and Central paramilitary forces, in particular the Assam Rifles, to take on civil responsibilities in fighting insurgency. While there may be little to legitimately object to this, what becomes dangerous is the legal impunity these excessive powers come with. Army and paramilitary personnel acting under the AFSPA are not open to normal legal redress mechanism of a democracy.

The police do not come under the AFSPA, but there are enough Acts giving it powers to deal with the any law and order situation. This confusion shows up every time somebody blames the AFSPA for police perpetrated atrocities such as the one at Khwairamband on July 23 in which an unarmed ex-militant was gun down in what is obviously a case of “fake encounter”.

In a remote way though, the arrogant sense of impunity of the police which has become so evident today in the state may be an unhealthy legacy rubbed on from what we may call the “culture of AFSPA” or a “climate of impunity”. The point I am making is, AFSPA or no AFSPA, the State can be brutal, and it will hit back militarily at anybody or any organisation which challenges it militarily. This being the case, it is not enough for Manipur to merely demand the repeal of the AFSPA and believe this will be the panacea of all the violence and consequent miseries it has been having to live with.

The best solution of course would be a political settlement which would resolve the core issues that have been the fuel behind the social unrests, of which insurgency has been the most radical form. But while this is pending, what is called for is, as Prime Minister Dr. Manmohan Singh once referred to as a “humane law”. This as we see it would be an Act that empowers the security agencies adequately to deal with the challenges at hand but are made fully accountable to the normal civil laws. If power corrupts, power without accountability can become monstrous. Manipur knows this too well having been forced by circumstance to tolerate it for decades.

I have always been consistent in the argument that there is no alternative for the State than to ultimately resort to answering violent challenges to its integrity and existence with violence, or “legitimate violence” as Max Weber called it. However this state violence will remain “legitimate” only if there are legal frameworks that define “legitimate violence” and its execution. This is why the focus of the debate should be concentrated on the processes and mechanisms for structuring these legal frameworks so as to humanise them, and not on the calls for an unconditional and unprepared removal altogether.

Removing the AFSPA without first thinking of something to replace it may be desirable in a utopian situation where peace has become a norm. But in a situation where violent challenges to the State continues, a state not adequately equipped with a suitable legal definition of “legitimate violence” can become extremely dangerous. For then, dictated by the primitive principle of survival that “necessity knows no law”, the State can be predicted to begin hitting back in a lawless vacuum through fiats and ordinances first, and then when the things get more desperate, fake encounters, covert assassinations and intimidations etc. Manipur arguably is in the midst of such a reality already.

Civil(ise) AFSPA

There is one more thought to be considered. The intriguing question as to the future of the military in a perfectly democratic world, where wars have become redundant, should not be left unanswered. On it may indeed hinge the answers to many of our most immediate and vexed issues. To briefly recap the proposition we made, let us recall the 2003 UNDP’s Human Development Report’s finding that no two countries where democracy has set deep roots have gone to war post World War II, implying that democracy other than being a political system which seeks to guarantee equitable power sharing between different sections of the society, is also turning out to be an effective conflict resolution mechanism.

This is extremely significant, considering the rate at which democracy as a political ideology is spreading. Its natural symmetry, resilience, and flexibility of its overall architecture which make it possible for it to adjust to varied idiosyncrasies of different societies and nations has made it almost an irresistible political phenomenon of the modern times. There is no gainsaying, in the not so distant future it may be the only ideology followed by practically all nations of the world. Allowances for regional variations would naturally remain, but in form only and not in substance. That is, fundamental values such as what Karl Popper famously noted: “Democracy is a system in which the people can change their leaders without the need for bloodshed,” would remain intact regardless of form.

Come to think of it, India too has not gone to any full scale war after the 1971 war with Pakistan for the liberation of Bangladesh. Kargil, was a limited skirmish although intense. If indeed 1971 was the last conventional war, then India has not fought a war for 41 years now. So despite occasional sabre rattling here and there, most of the time on petty diplomatic hiccups each of them suffers, not many believe any more there would be war a full scale war between these neighbours as well.

The fact also is, the military everywhere are also increasingly beginning to be called upon to aid civil administration in meeting challenges of internal unrests. India’s case would suffice to demonstrate this. In the last 41 years since the 1971 war, its military’s most serious engagements have been in meeting internal violent political uprisings in Kashmir, Northeast and now in the Maoist heartland. This being the case, it is time for India to begin thinking in terms of reinventing what everybody acknowledges to be one of the finest military forces in the world of 1.3 million well-trained fighting fit personnel.

The most aggressive and imperialistic nations, in particular the USA and Israel, still think of the right of belligerence (or the right to declare war on other nations) as still important. Other than them, in most other democratic countries, such as those in Western Europe, this reorientation of the military, working towards a convergent future with the police in acknowledgement of the new challenges before modern military, that of internal security and the new phenomenon of the non-territorial, theological, fundamentalist ideology driven terrorism, has begun. India too must prepare for such a process, for its future too, as we have argued, is headed towards a warless scenario but one dotted with pockets of internal strife. And in tackling internal strife, the language and instruments of wars must be toned down to come closer to civil law keeping measures.

The Armed Forces Special Powers Act, AFSPA, in this sense is a raw instrument of war. The Prime Minister, Dr. Manmohan Singh’s proposal years ago that it must be humanised, is an intuitive anticipation of the future scenario we just sketched. In tough insurgency situations, the Army has been and still is called upon to assist civil administration, and this being the case the AFSPA in its present avatar appears such an overkill. So then, civil(ise) the AFSPA and make it fit to enable future quasi-military policing.

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