Armed Forces (Special Powers) Act: Normalising Abnormalcy

Democracy is derived from the Greek words “demos” meaning people and “kratos” for power. Thus, converting to “power of the people” or governance based on the people’s will. The democracies across the globe exist in numerous structures. Each follows the definition to a fluctuating degree. The variability provides a definition contrary to autocracy or monarchy as a superior substitute. Democracies are a more prominent form of government globally however it was not always so. Political theories of Tocqueville, Madison etc. developed other forms of democracy namely the liberal and constitutional forms. The origination was not as an activity of unlimited power by the majority. Madison thus pointed out that “in this kind of democracy, rights of political and ideological opposition as well as minority rights are an important means to correct laws and majority rule”. Therefore, constitutional democracy as expressed performs in a basic framework of rules or a grundnorm such as a Constitution and serves everyone’s interest, as against any prejudices to the minority. When these significant constituent elements are missing in a democracy, it is sufficient to label them as ochlocracy or mobocracy in the words of Aristotle or Hegel. These components appear to be set out for an easy incorporation with the rule of law and order. Be that as it may, in building up the presumptions, outcomes, limitations, contingencies and significance of rule of law and democracy, some broad standards from traditional and contemporary legal, political and philosophical theories are to be examined. A conversation of these components needs to continue from a basic examination of a democratic system and its inadequacies.

The issues with democracy have been considered from its absolute starting point. A few objections alluded to the number and not the nature of the democracy. The relationship of the majority with the minority was quantitative while decisions of the majority assume a qualitative aspect. Plato censured democracy contending that the setup debilitates an administration by scattering power. This setup of the government is incapable of doing either good or bad. Aristotle, on the other hand, examined different types of government and sorted them as per their attractiveness. An especially evil form of government is one where the immediate and temporary will of the majority decides without a system of law and order. He additionally brought up the issue of “majority tyranny”. The majority were seen by Aristotle as uninformed and poor subsequently, incapable to rule. In any case, it would be possibly perilous assuming the majority were excluded from the exercise of power. In this manner, a center arrangement was proposed where the masses would select their representatives from a pool of suitable and fit persons. Likewise, John Stuart Mill was worried about keeping democracy away from turning into a rule of mediocrity. He was primarily worried about radical democracy which advanced “conformism and tyranny of public opinion threatening freedom of thinking”. Decisions of majority may not be the smartest and may affect the interests of the minority. Etymologically, rule of individuals is impossible as individuals vary in their perceptions and interests, and it is difficult to thus reach a dominant conception en masse. Ergo, democracy is generally significantly the rule of majority. Rather, it is the rule of a minority of representatives, similar in effect to an oligarchy.

Rule of law can be portrayed as the execution of a law passed by a public authority. In this postulation, law turns out to be the realm of the state, inferring its will and power from the state responsible for its implementation. This view is advanced by the state and prompts foundation of a lawful state. Nevertheless, a lawful way of thinking or philosophy doesn't support such a notion of law. Law's assessment is not possible only from the part of oligopoly of state power. A basic distance permits dissecting law on angles, for example, its substance or the universalisation of the standards set out by the law. The universality principle tracks down the central role in the way of thinking of Immanuel Kant. He sets out the straight out basic as a brilliant guideline that one ought not do to others what one would rather not be done to themselves. Imagining law as similarly and equally relevant to each person’s viewpoint is coordinated in the idea of law and order. Accordingly, rule of law incorporates viewpoints other than the positivist part of law. Further advancements to the parts of rule of law have been obtained from its cooperation with democracy in contemporary thought. Nasser Hussain in his book “The jurisprudence of emergency: colonialism and the rule of law” maintains that “the rule of law evokes a hermeneutic insularity, a ghostlike landscape where law rules and rules are law”.

Further advancements to the facets of rule of law have been obtained from its connection with democracy in contemporary ideas. Rule of Law is to incorporate “procedural guarantees, institutional setup and humanistic values”. It focuses upon removing biases and prejudices and absolutism with restricted power, giving proper status to an individual and maintaining judicial autonomy. The amalgamation of features of good governance and administration into the rule of law incorporates restorative means like an individual’s basic rights as a citizen and human and rights of minorities. There seems to be a convergence between democracy and rule of law at this juncture.

Rule of Law and Democracy have evolved equally in political thinking and ideas. Notwithstanding, priority is given to rule of law compared to democracy, for a democracy devoid of rule of law degenerates into an undemocratic structure such as rule of majority or majority tyranny. Rule of Law puts down legal principles over “interests of the state”. It likewise presumes in favour of the durable nature of the rights and obligations and that the rights acquired by the citizen are to be regarded. Constitutional democracy consolidates this scheme of rule of law. It limits the government in practicing its power. The relationships among governments and citizens are managed by binding their consensus with the performance of the government. Therefore, a conjoint existence of rule of law and majority rule become important. The administration of individuals confined by constitutionalism, managed and conditioned by rules, an autonomous judiciary and separation of powers. “Rule of law in its interface with democracy has to limit the majority’s rule within a framework of do’s and don’ts, including the rights of individuals as humans and minority rights.” The positivist idea of rule of law is a deficient assurance against the weaknesses of democracy as against majority tyranny. Rule of majority, regardless of whether acting in light for the legitimate concern of majority’s interests has to provide sufficient rationale within the structure of given limitations.

It is in this light that the special procedures such as Armed Forces Special Powers Act has to be analysed in the democratic context.

The Armed Forces Special Powers Act, 1958 has its history rooted in the colonial times and the present legislation is thus an offshoot of the British Indian Armed Forces (Special Powers) Ordinance, 1942. In 1942, when the Quit India Movement by Mahatma Gandhi was launched and had started gaining traction, the then Viceroy of India, Lord Linlithgow, declared emergency across British India and simultaneously, promulgated an ordinance to contain the movement. The preamble of the ordinance stated “WHEREAS an emergency has arisen which makes it necessary to confer certain special powers upon certain officers of the armed forces.” Further, where clause 2 of the Ordinance gave certain officers an additional power to use force even to the extent of causing death, clause 4 on the same hand, gave these officers an additional impunity against any prosecution. The present legislation of 1958, enacted by Jawaharlal Nehru’s government provides for a similar legal framework. AFSPA, which was implemented to tackle insurgency operations in Nagaland and subsequently, in other north-eastern states, has been a contentious piece of legislation because of the resultant human rights violations that has taken place including rapes, fake encounters, custodial torture, in the garb of preservation of law and order in the ‘disturbed areas’. The legislation is presently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh and 8 police station jurisdictional areas in Arunachal Pradesh bordering the state of Assam. In Jammu and Kashmir, a relevant but separate law namely Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.

After numerous endeavours to examine the constitutionality of the Act, the Honourable Supreme Court has upheld the legislation, despite the repeated clarion calls for its repeal, holding that it is within the ambit of the Parliament to enact such a legislation. In 1997, the Supreme Court held that there was a dire need to strengthen the Armed Forces of the Union when deployed in regions or territories that had been declared disturbed under AFSPA, and thus in the ruling of Naga People’s Movement of Human Rights case where the validity of the Armed Forces Special Powers Act was challenged, a five judge bench upheld the vires of the Act. The Court held that it was very well within the legislative competence of the Parliament to enact the law and thus upheld it since no provision of the Constitution was being violated. However, the Court further concluded that such deployment of armed forces could not be for a persistent period of time but only for a temporary course of time until normalcy was regained. It is in the said context that the discussion around normalcy and an emergent situation acquires ground. The enactment of the Act came into picture when the country was heavily dealing with insurgent activities and has been in the frame since then, vanishing the thin line between lawfulness and lawlessness lately.

Nasser Hussain in one of his books “The Jurisprudence of Emergency: Colonialism and Rule of Law” talks about extension of English law during colonial times to modern day states and the consequential development of western legality. He elucidates that the history of the British colonial state in India, from the right inception, was shaped by the perpetual questions of power and legitimacy. What we see in the present context of special procedures in light of the implementation of Armed Forces Special Powers Act are similarly complemented with persistent questions of the power of State to legitimize violence in the name of necessity in order to preserve rule of law. Nasser asserts that during colonial times “even the most seemingly arbitrary acts were to ensure the safety and stability of the colonial regime and were thus part of the legal sovereignty of the state itself.” Contemporary state of affairs in India, drawing upon this analysis is a clear extension and consolidation of the colonial emergency, if any.

A clarification for the state of affairs is given by Giorgio Agamben, naming it as “state of exception”. In his book “Homo Sacer: Sovereign Power and Bare Life”, he portrays life to be existing in two different capacities. One as the organic and biological life and other is simply life. Homo sacer is a person who exists in banishment in law. The individual deprived of natural and political lives, merely exists, dependent upon the state of exception of the sovereign with no political significance. Homo sacer is a peculiar depiction, akin to the victims of the persecution in Holocaust or the victims of Guantanamo Bay’s “enemy combatants”.

In his following work, Agamben traces the state of exception and its development as a contemporary establishment. The conceptualisation arrives from a decree of French constituent assembly in 1789. A ‘state of siege’ was distinguished from ‘state of peace’ where all the functions which the civilian authority was entrusted with to maintain internal policing and order were passed on to military commander who exercised those powers exclusively. Therefore, consistently, it was taken on during peacetime to keep everything under control during financial emergencies. The two components to take a note of, are that it has risen out of a revolutionary democratic government rather than from an absolutist one. Second that a narrative of war is maintained metaphorically to justify the continuation of such a state. This state of exception allows certain members of sovereign or certain authorities to place themselves above the law in certain conditions. Thus, as Agamben understands it, the state of exception is something which is other than or prior to law or is “essentially extrajudicial”. This is obvious in the underwritings of such exceptions provided by the Constitution.

In the Indian setting, this state of exception is generally most noticeable in cases under the Armed Forces (Special Powers) Act. Accordingly, the 1958 Act holds on in the existence of a Constitution as a state of exception. The scheme of the Act and judicial reaction in equivalence are reinforcing such perception.

However, Nasser Hussain’s essay on hyperlegality deliberates further upon the state of exception wherein Hussain maintains that norm and exception are continuum rather than being a binary. His understanding of emergency draws away from a more customary comprehension of emergency as a temporary reaction to a particular situation, like an assault or attack, through the transitory suspension of rights, for instance, suspension of fundamental rights, in Indian scenario to more complex but organizational changes, like introduction of new laws, increased classification or creation of special commissions or tribunals, et al. Thus, he points out that hyperlegality serves in a given political space through two mechanisms, controlled by the State, first being increased use of classification of persons under law, a clear fragmentation of people based on certain traits, and the second being setting up of special tribunals and commissions.

Talking about the first mechanism, Hussain observes that all law is animated by certain distinct categories such as criminal, citizen, and immigrant and even newer subcategories like enemy combatants, security threat immigrant, by invariably combining different qualities and conditions. This line of thinking draws heavily, if not absolutely, upon Hannah Arendt’s The Origins of Totalitarianism where she uses the term “race thinking”. However, Hussain steps ahead of this thought process to manifest the role of administration in such increased creation and use of classifications, commonly called the bureaucratic legalism. The state first declares emergency, and then puts up increased biases against a particular category of individuals. The people of north-eastern states have been falling victim to this categorization as “enemy combatants”, “insurgents”, and have thus been mishandled, to the extent of their executions and eliminations, referred to as “administrative liquidation” by the Honorable Supreme Court through Justice Jeevan Reddy in 1997.

Second mechanism operating in hyperlegality, as per Hussain, is special venues in law. The judgement of the Supreme Court in Extra-judicial Execution Victim Families Association case had directed the Central Bureau of Investigation to form a Special Investigation Team to look into the cases of encounter executions that had taken place in Manipur since the 1970s. It recognized the need for accountability of the armed forces for violation of human rights including those under the AFSPA. The court had further directed formulation of a Commission under the chairmanship of Justice Hegde to investigate 6 out of 1528 cases and find out if the encounters that took place were genuine or staged. The Hegde Commission submitted its report in 2013, and pointed out that after due enquiry in the said cases, it was found out that each of the 6 cases that it had enquired could not be comprehended as genuine encounter killings and had been wrongly passed off as such. Thus, even though Commissions have been appointed, and special venues have been created under law, continued legality and constitutionality of the legislation persistently poses a challenge to the most basic human and procedural rights of the people in the north-east states of the nation.