Thursday, 18 August, 2022
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The real problem with AFSPA is how a normal law can bypass constitutional safeguards

India does not need to look far to see how military power can undermine constitutional orders.

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Among the many matters being debated in the ongoing Lok Sabha elections is the Armed Forces (Special Powers) Act (AFSPA), 1958. Although the contest over AFSPA is often reduced to a standard, tired one between security and liberty, the law raises serious constitutional concerns.

In AFPSA’s imagery, Indians citizens are enemies of the state, a fact tellingly revealed by the state’s defence before the Supreme Court that the law is necessary because it is being applied in war-like situations. This very construction of the state as an entity that is operating against the citizen is the antithesis of constitutionalism.

As per the existing legal framework, a governor or the central government can declare a region to be a disturbed area under Section 3 of AFPSA, and thereby empower the armed forces to exercise extraordinary powers in that region. In particular, Section 4 of the law allows the use of force, including the power to cause death, in certain situations in order to maintain public order. Such provisions exemplify the law’s departure from the core constitutional principle of civilian control over the armed forces.

Also read: On AFSPA, action must now shift from Supreme Court to Parliament

The AFPSA was upheld by the Supreme Court in a 1998 decision, which viewed the law primarily through the lens of legislative competence (that is, whether Parliament had the power to enact the law) and rights-based concerns. But there is a larger structural problem at the heart of the statute, namely its disruption of the place of military power under the Constitution. The problem here is the operation of war-like powers – that formally come into use by way of a declaration of an emergency – through an ordinary statute. In other words, the emergency-related safeguards in the Constitution are bypassed by achieving the same outcome through a normal law.

The 1998 verdict paid little attention to this feature of the statute and just focused on constitutionality. Rather than strike down AFPSA on this basis, it upheld the law and issued guidelines to prevent its abuse. More recently, however, the Supreme Court has studied the law with greater care. It examined the on-ground reality in a series of orders passed between 2013 and 2016, during which time it established a commission to review extra-judicial killings in Manipur. The report found that in the six cases that were examined, not a single victim had been killed by “any true encounter with the police or security forces”. Simply put, the guidelines that had accompanied the 1998 verdict were unrealized in practice.

Taking note of the situation that prevailed in reality, the Supreme Court observed that even though the Constitution did allow for the deployment of the armed forces to aid civil forces, such deployment could only occur for a temporary period until a situation of normalcy was restored. It could not take place for an indefinite period. The permanent deployment of armed forces could not be interpreted as an assistance to civil forces: it would be the birth of an entirely different kind of state. Here the court acknowledged that emergency-type situations are different, and AFPSA could not claim the leeway that they provide.

Also read: Army officers are asked about AFSPA in tests, they know its gravity

As the court understood, the key point is that the situation in places like Manipur is, for purposes, an “internal disturbance”. It was not a war where the Army could play a central and long-term role. In these post-2013 decisions, the court has made it clear that any alleged use of excessive or retaliatory force must be thoroughly investigated and that army personnel did not benefit from absolute immunity.

The extra-judicial killings that have been the subject of the court’s attention in recent years may well be carefully investigated. But the problem with the AFPSA is elemental and does not arise merely from its implementation. The Supreme Court’s recent emphasis on the “internal disturbance” benchmark as specified in the Constitution may well subsequently allow it to impose temporal limitations on the use of the AFPSA, and thereby limit the 1998 ruling.

India does not need to look far to see how military power can undermine constitutional orders.

The author is a Junior Fellow at the Harvard Society of Fellows and co-editor of the Oxford Handbook of the Indian Constitution.

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  1. Why should a soldier expose himself to be prosecuted for his actions in an area declared ‘Disturbed Area’ by the Govt & ordered him to act in a hostile environment? In these areas under pressure from the terrorists, the civilian eye witnesses to the incident are not prepared to come up & give evidence in favour of the soldier. On the contrary, they are threatened & forced to give evidences against him. If there is a problem giving AFSPA powers to a soldier, act with the local police which has those powers. Choice is that of the Govt. You can’t have the cake & eat it too.

  2. The whole tenor of this blog is that of someone who THEORISES. Yes, from the premises of ‘Harward’ Societies of Fellows (Ah! We are very exalted!) military power being subordinate to civil power looks to be the correct form. Even the military thinks and says so. But even in theory the relation of superior-subordinate does not apply at the point of delivery. Armed forces come into play after the civilian agencies have given up. Any Army officer would love to have the appropriate Magistrate give the order to use force. But where are the civilian officers? Snug and smug in their offices. So there. Armed forces do not want any part of this.

    Long running of AFSPA is because civilians in Delhi do not wish to go to the ground and get their records dirty. Neither do the NGOs. The brunt is felt by the people in uniform whether olive green or khaki. They hold the can for Indian Democracy.

  3. AFSPA goes beyond the law and constitutionality, the domain of the Supreme Court. For that matter, orders of the apex court itself in matters related to this law have not always been accorded the respect they deserve. It goes to the heart of how we wish the Indian state to be ordered. Whether the state governs with the consent of citizens or against their express wishes. A steady increase in the size of paramilitary forces. Custodial deaths on a scale that does not befit a democracy. Routine misuse of the law on sedition, now proposed to be strengthened, to send a shiver down the spine. A plaster cast is needed for a few weeks, to allow a broken bone to mend and heal. If AFSPA is in force for fifty years in Manipur, what does that tell us about the political process. Or Kashmir. Not just Arundhati Roy, all of us should worry about where things are headed.

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