Repeal ‘AFSPA, 1958’ for a Humane, Internationalist Future

Gilbert Sebastian

“Sharmila Irom … has not eaten for almost 10 [now, 12] years.
She is too angry to eat ….
She is hungry for justice, not for food.”
– Andrew Buncombe (The Independent, 5 May 2010)

Armed Forces (Special Powers) Act, 1958 (henceforth, AFSPA) in India provides total legal immunity to officers of the armed forces (down to the level of a havildar) in the “disturbed areas” to shoot and kill anyone without attracting punishment, to arrest using violence and without warrant and allows unhindered entry into any premise. There cannot even be a First Information Report (FIR) filed in case of such killings except through prior sanction of the Union government; only a simple complaint can be filed. AFSPA, is by far, the most draconian Act in the country because the Act contravenes the spirit (although it adheres to the letter) of the Fundamental Right to Life as guaranteed under Article 21 of the Indian Constitution which says, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Notably, AFSPA is operational in the frontier regions where militant nationality movements go on against the Indian State, i.e., in Kashmir and parts of the north-east of India. The footages from real life on the reels of the documentary film, ‘AFSPA, 1958’ in the context of Manipur shocks the consciousness of any democratically-minded person. As Asit Das (2011) says, the Act is clearly used as an instrument of war and is, by no means, used for enhancing conviction rate. The operation of this single Act has led to thousands of murders, enforced disappearances (as in the case of the unmarked graves in Kashmir), tortures, rapes, etc.

AFSPA is an example of a ‘permanent’ law that was justified at the time of its enactment as merely shifting, under logistical compulsions, powers of ordinary policing to the army (Ujjwal Singh 2011). It may be borne in mind that police forces dealing with civilians are usually instructed to use the least amount of force whereas the military is trained to inflict the maximum lethal force. The term, ‘extraordinary law’ loses the meaning it denotes for a law that has been permanently operational in the country since 1958 except as a law which gives extraordinary powers to the armed forces. Initially enacted for use in the seven sister states of the north-east of India, the scope of the Act was extended to Jammu & Kashmir since 1990.

The empowering Supreme Court judgment in Naga Peoples’ Movement for Human Rights vs. Union of India, 1998 defined a “disturbed area” wherein the Act would be applicable. However, the basic structure of the draconian Act remains unaltered as yet. The judgment held that AFSPA, 1958, Section 3, does not confer any arbitrary or misguided power for declaring an area as a “disturbed area” for which there must exist a grave or dangerous situation of law and order on the basis of which the Governor of the State or Administrator of the Union Territory can form an opinion as such.

It has also been pointed out that AFSPA constitutes a clear violation of international law and of the United Nations International Covenant on Civil and Political Rights, 1966, ratified by India in 1979.

De-facto partial citizenship

The notion of universalism was somewhat absent under the caste-based feudal moral/legal order in India. The legal system was heavily at odds against the underprivileged castes and women. Even the formal – not substantive – notion of universalism in India was typically a contribution of the colonial rule. The Panchamas, the outcastes/untouchables (self-named as Dalits today) hardly enjoyed any of the benefits of citizenship. As part of the Hindu identity formation under the influence of colonial modernity, there has been a half-hearted attempt at their incorporation into the Hindu fold. The exclusionary process continues even today in a different manner whereby certain social sections are not permitted to enjoy full-fledged citizenship in the country. Today, AFSPA is used against the nationalities of Kashmir and parts of the north-east of India like Manipur, Nagaland and Assam. Especially with the rise of fascistic communalism, recurrent communal violence has taken place against Muslims and they find themselves overrepresented only in the Indian jails. Similarly, tribals have faced systematic eviction from their traditional habitats with the expansion of capitalist accumulation since colonial times. It may be argued that these social sections and others like migrant workers, fisher people, etc. enjoy only ‘partial citizenship de facto’ in our polity.

Distinction between Mainland and the Frontier

In order to understand the continued prevalence of AFSPA, 1958 in some parts of the country today, we need to draw a geo-political distinction between mainland and frontier. The frontier consists of whole geo-political regions, whose citizens are de-facto recognised as only incomplete citizens. There are ethnic/religious differences that mark them out from the mainland. What we refer to, in particular, are the national formations in Kashmir and large parts of the north-east of India. Both mainland and frontier are politically constructed geographical categories. The people of the mainland are considered as complete citizens of India in geo-political terms although there are gross aberrations which are not primarily of a geographical character in the case of social categories such as religious minorities, Dalits, Adivasis, migrant workers, etc. We also need to bear in mind that there is a possibility of interchange between parts of the mainland and parts of the frontier and so these are dynamic categories although stability rather than change is the primary characteristic of these geo-political categories.(1) To use the expression of Amartya Sen and Jean Dreze (2002), India is a “bastion of disparity”. The disparity between mainland and the frontier is a crucial one among these disparities.

It is true that the construction of a dominant Hindi nationality has been an ongoing hegemonic project of the Indian State in north India where Indo-Aryan dialects like Bhojpuri, Maithili, Braj bhasha, Haryanvi, Rajasthani, etc. are spoken. However, the acute class division and the extremely low levels of human development, by far, the lowest in the country, in several of these states (particularly, BIMARU states – Bihar, Madhya Pradesh, Rajasthan, Uttar Pradesh) remain significant barriers to this project.

An instructive example of the mainland-frontier distinction can be had in the case of the discussions in the media during 2009-10 whether the army and the air force should be deployed in the fight against the Maoists. Both the Chief of Army Staff, Mr. V. K. Singh and the Chief of Air Staff, Mr. P. V. Naik were against the idea of such a deployment on grounds that ‘they are our own citizens’. This draws a sharp contrast with the case of nationality movements in the frontier regions against whom army has been used and continues to be used. Moreover, AFSPA, the most draconian Act in the country and also the most hated Act in the frontiers, has been operational in these regions.

Over the decades after the transfer of power in 1947, untold atrocities have been committed by the armed forces of the Indian Union and State-sponsored militias on the peoples of the struggling nationalities on the frontiers of India. But opposition to such atrocities from the mainland India have been few and far between.(2) This is a far cry from Lenin’s advice to Communists and democrats from the dominant nationality (in this case, those from the mainland) that they should be categorical in their opposition to national oppression towards the subject nationalities. Even in India today, in fact, it is easy to distinguish democratic intellectuals from the others on the basis of their standpoint on the question of national oppression.

‘A Generalised State of Exception’

There is a substantial portion of the geographical/demographic terrain of India wherein there is, to use the concept used by Italian legal theorist, Georgio Agamben, ‘a generalised state of exception’ to the liberal democracy prevailing in the rest of the country. In government terminology, these are either the ‘backward regions’ (such as the central forest region) which are ‘Maoist-infested’, well within the mainland India or ‘frontier states’ meaning, states bordering the neighbouring countries where there are, often, insurgencies demanding self-determination. As the Maoist literature does, movements designate these as ‘struggle areas’ – arena of class struggles or nationality movements. The liberal democratic discourse of the ‘rule of law’ (nomos) is largely non-functional in these vast regions. The Fundamental Rights as guaranteed in the Constitution of India face blatant violation in these regions, where even the most basic one, the right to life, is violated with impunity on a large scale on a day to day basis. This “undemocratic exception” (Pothik Ghosh 2010) is not merely an exception or aberration but a generalised phenomenon. Crucially, anyone concerned about the future of democracy, human rights and the question of social transformation in this country, cannot overlook this phenomenon.

‘Rule of law’, Impunity and a Selectively Repressive State

Speaking of the system at large, unlike in most of the liberal democracies of the west, there is a vast terrain of exception to the rule of law in India. As Hannah Arendt (1951) says, the sought after goal here is ‘order’, rather than ‘law’. A patent example is the case of hundreds of extra-judicial killings of detenues that happen in the police lock-ups in India every year. In the heavily militarized regions of the country i.e., in regions where there are nationality movements or Maoist insurgency, ‘fake encounters’ by the Indian security forces are a rather common phenomenon. Counter-insurgency operations by the State, such as the Salwa Judum, have been carried out in blatant violation of all Constitutional and legal norms.

Despite the legal universalism formally prevailing, the rich and the powerful continue to enjoy impunity. The instances have been far too many: The high profile perpetrators of Gujarat carnage of 2002; the leader who opened up the pandora’s box of communal polarization in contemporary India and has been instrumental in the post-rath yatra riots in 1990; the leaders accused in the demolition of the Babri Masjid; the architects of the Salwa Judum in Chhattisgarh; those responsible for clandestine killing and cremating hundreds of young persons at Tarn Taran in the Punjab during the early 1990s; those responsible for the violent suppression Adivasi landless at Muthanga in Wayanad district in Kerala state, and of those who resisted corporate land grabs at Kalinga Nagar, Nandigram, Singur, etc.; those responsible for the trafficking of vulnerable sections of people which is a rising trend today; those employing children in hazardous occupations; etc.

It also needs mention that the Indian State has been selectively repressive against its adversaries who violate its canons. While being heavily repressive against Islamist extremists, nationality movements, and the Maoist movement, the Indian State has been quite lenient towards the criminal activities of the Shiv Sena and the Sangh Parivar.

Frontier Peoples in an Intersectional Analysis of the Indian State

Given the experience of AFSPA, how do we understand the Indian State under neo-liberal globalisation? Liberals of diverse shades have argued that with globalisation, the State had ‘retreated’ and the world had become ‘borderless’. However, it is apparent that the role of the State has heightened in India under neo-liberal globalisation in terms of its functions as an agency that is regulatory, repressive and a facilitator of unhindered accumulation (T.J. Byres 1997).

Marxists usually speak about the Class character of the State but it should be borne in mind that Class formations are not merely about class in the narrow sense of the term. There is need to reveal the broader Social character of the State in India. In the Indian context, Class needs to be viewed substantively in relation mainly to space, caste and gender. In this respect, intersectional analysis could be a very valuable analytical tool. Intersectional analysis as expounded by Nancy Fraser, et al has its origins in gender studies in the West since late 1960s that sought to understand experiences beyond gender alone. This approach has to do with how forms of oppression interrelate or intersect in multiple ways to create a system of oppression manifesting itself as exploitation, discrimination, violence, marginalisation, etc. It links various kinds of oppression which have to do with interrelated/overlapping/intersecting social categories. Speaking of the class/social character of the State, from the angle of intersectional analysis, could we not as well speak of the Indian State not only as pro-corporates and pro-landlords but also as [pro-mainlanders], pro-men, pro-upper castes, pro-non-tribals, pro-Hindus, etc.? (3) The deployment of military and the operation of AFSPA reveals the bias of the Indian State against frontier peoples.

Erosion of State Legitimacy and Repressive Legislations

How do we understand an apparently contradictory character of the legislative process in India whereby there is a co-existence of empowering and disempowering legislations? There have been a number of apparently pro-people legislations during the very period of neo-liberal reforms: National Rural Employment Guarantee Act (NREGA), 2005; Forest Rights Act, 2006; the Panchayats (Extension to Scheduled Areas) Act (PESA), 1996; the Right to Information Act 2005; the Prevention of Domestic Violence Act, 2005; Unorganised Sector Workers’ Social Security Act, 2005; The Constitution (108th Amendment) Bill, 2008 which seeks to grant 33 per cent reservation to women in parliament and elected assemblies; etc. These may be viewed as having been necessitated by the need for the neo-liberal State to generate popular consent or secure legitimacy, particularly from deprived classes and social identities and thereby maintain the hegemony of the ruling classes. Maintaining ‘hegemony’ in the Gramscian sense involves sustaining the moral and intellectual leadership of the dominant classes through generating consent rather than through coercion or force. As Bob Jessop (1982) says, it involves taking systematic account of popular interests and demands, making compromises on secondary issues, without sacrificing the fundamental long-run interests of the dominant group.

On the other hand, ‘the limited nature of consent’ leads to a weak basis for a political order, which comes to rely increasingly on force (A. S. Sassoon 1991). The gearing up of the repressive apparatus of the State under neo-liberalism through draconian legislations like Chhattisgarh Public Security Act, 2005 and Unlawful Activities (Prevention) Act, 2008 is worth mentioning in this context. Notably, however, AFSPA has continued to be the most draconian legislation among all these and has been prevailing in the country from the first decade of the existence of the Republic as a testimony of the distinction between the mainland and the frontiers. These draconian Acts have been operational especially in areas of militant struggles against the Indian State. The increasing ascendancy of the Hindutva fascist movement in India also should be seen in conjunction with the deepening crisis of legitimacy of the Indian State under neo-liberalism.

An insightful statement from the film, The Spiderman says, ‘The cunning warrior attacks neither the body, nor the mind but the heart.’ But how about the peoples living under the terror of AFSPA? If they are citizens, why are they treated this way? Apparently, the cynical and hawkish strategic analysts in the corridors of power in the Indian State have no long-term perspective for the integration of the frontier regions.

Self-determination and People’s Rights

A clarification on the notion of ‘People’s Rights’ by Manoranjan Mohanty (2011) can be useful in this context. The conventional discourse of ‘human rights’ has laid exclusive emphasis on civil liberties of individuals in particular, mostly as recognized by the State. The notion of ‘people’s rights’, on the other hand, entails a comprehensive notion of rights. It includes both civil liberties on the one hand and political, social, economic and cultural rights on the other. Rights are understood as “political affirmations in course of struggle”, irrespective of whether or not they have gained recognition from the State. Moreover, besides individual rights, people’s rights include the rights of collectivities and regions. [Regions, here, refers to the question of spatial equity and could include the notion of centre and periphery on the worldscale and also the nationalities question. One might recall Mao’s slogan, ‘Countries want independence, nations want liberation, people want revolution.’ It refers to independence from imperialism, liberation from national oppression and revolution by the broad masses of people and not certain deprived classes.]

On the contrary, the State in India, apparently, has no long-term policy vis-à-vis the frontier: It is basically a policy of ‘catch ‘em and hold ‘em’ as long as possible, for geo-political gains, for markets and resources. If, however, we want a lasting integration of the nationalities in India, South Asia and the world at large, it cannot be a vertical integration but a horizontal integration. An enduring unity cannot be a forced unity at the point of the gun but a voluntary union of states. As a Malayalam saying goes: ‘If you have a nose that would fly away when you sneeze, you should rather let it go!’

The right to self-determination of nationalities, including secession, was upheld by Marxist-Leninists since 1914 and ‘a person’s right to nationality’ by most liberals soon after the Second World War. Article 15 of the Universal Declaration of Human Rights of the United Nations in 1948 had upheld the individual’s ‘right to a nationality’ and the ‘right to change his nationality’. In India, the mainstream Marxists have given up on the right of nations to self-determination. Most liberals all across the world have given up on it, except in cases where they were granted under genocidal situations in little nationalities as in East Timor and South Sudan. Moreover, it is the experience of the 20th century that most nationalities that waged successful anti-colonial struggles succumbed to the indirect exploitation by neo-colonialism and thus the substantive content of self-determination was hollowed out. In spite of all these, rightly do the democrats uphold the right to self-determination, through means of a referendum, as the most democratic right on the question of the nationalities.

By distinction, ‘Repeal AFSPA’ is no revolutionary demand, no secessionist demand but a demand for basic human rights, a legitimate democratic demand against the undue privileges enjoyed by the Indian armed forces in the frontier regions, a demand for a democratic integration of the country, if it all, it could be made possible. But no doubt, it is a little step, but a significant one, for a long-lasting, durable unity, for the internationalist future of humanity. We salute the iron will of Ms. Irom Sharmila, the Manipuri poet in the 12th year of her hunger strike against AFSPA, the most draconian Act in the country and bow our heads in our respect for the struggling peoples in the frontiers of India.

Gilbert Sebastian (gilbertseb@gmail.com) is a post-doctoral researcher based at Centre for Development Studies, Thiruvananthapuram.

Notes:

(1) Remember that Tamil Nadu and Punjab, which were parts of the mainland had secessionist movements whereas Mizoram, which used to be part of the frontier, has been somewhat incorporated into the mainland.
(2) One important reason for this is the retraction of the mainstream left parties, CPI and CPI-M from the Leninist principle of self-determination of nationalities.
(3) Manoranjan Mohanty (personal communication). I have added what is in square brackets.