A July Supreme Court Order Illustrates That Solutions to Issues with the AFSPA Can Only Come from the Government
On 29 August 2016, the government lifted a curfew that had been imposed in Kashmir in the wake of protests that followed the killing of the Hizbul Mujahideen commander, Burhan Wani, on 8 July. During the curfew, which lasted 51 days, Kashmir saw its most violent uprising since 2010. Protests were buoyed by reports of a brutal crackdown by security forces—hundreds of Kashmiris were injured or blinded by the use of pellet guns, and incidents such as the killing of a schoolteacher by security personnel on 18 August received national coverage. By the time the curfew was lifted, nearly 70 civilian deaths had been confirmed, and close to 10,000 people had been injured. But the respite was short-lived. By 1 September, curfew had been reinstated in all major towns in the valley.
A few days before it was first lifted, on 25 August, during his second visit to the state since protests began,the home minister Rajnath Singh had announced that an all-party delegation would soon visit Kashmir. A home ministry official later said that the delegation would leave on 4 September. On the eve of the visit, leaders from the Communist Party of India and the Communist Party of India-Marxistsuggested, among other things, that the government withdraw troops deployed under the Armed Forces (Special Powers) Act, or the AFSPA, from “civilian areas” in the state. The withdrawal did not occur. During the visit, separatist leaders refused to meet members of the delegation. When the visit concluded on 5 September, little headway had been made on the situation in the state. Currently, political resolution in the near future seems unlikely. It is safe to say that mutual distrust endures on all sides, and that the continued application of martial laws such as the AFSPA will further fuel resentment and fear among the people of Kashmir.
In the context of this political dialogue, with the AFSPA as background, it is useful to go back to an event of 8 July. The same day that Wani was killed, far away from Kashmir, the Supreme Court passed a detailed interim order—a preliminary order before the final judgment—in the Extra Judicial Execution Victim Families Association (EEVFAM) case, which arose out of a writ petition lodged by the EEVFAM in 2012. The case considers 1,528 instances of alleged extra-judicial killings by security forces, including the army, deployed in Manipur under the AFSPA. (Disclosure: between 2013 and 2014, I assisted the Amicus Curiae, an impartial advisor to the court, on this case). In the current context, the order makes for an instructive read.
In the order, a two-judge bench held that any use of excessive force by security forces is unlawful, even if they are deployed in disturbed areas under the AFSPA. It also stated that any alleged use of such force must be investigated by the state, while chiding it for having done so in a shoddy manner in the past. Many media reports highlighted the order for its strong stance on excessive force, and some celebrated the court’s remarks as putting an end to the impunity afforded to the armed forces under the AFSPA.
While that perception may stand, the order actually says little that has not been said before by courts. In fact, it is primarily an act of consolidation, where the court brought together jurisprudence evolved over many cases. Through it, the court has retraced its past finding upholding the constitutionality of AFSPA, and retraced the restrictions it imposed on the scope of its provisions. These include restrictions on Section 4, which outlines the scope of the army’s power to use force. The court also restated its resentment at the way in which the state investigates allegations of extra judicial killings and again lamented the feeble interventions of human-rights bodies such as the National Human Rights Commission.
The order does not delve deeper than it already has for solutions to many other problems of reconciling laws such as the AFSPA with basic democratic rights of Indian citizens—namely, to live a life of dignity and within the equal protection of law. Its focus on anguished rhetoric and reiteration suggest that the judiciary is constrained to pass further binding directions without seeming to overstep its mandate. The order begs a bigger question that confronts not only Manipur, but also Kashmir and parts of other states such as Chhattisgarh where troops continue to be deployed: what compels the state to continue to implement martial laws such as the AFSPA, even when they have proven contrary to our constitutional commitment to democratic values?
One can gauge the state’s commitment to using martial law as a policy tool in disturbed areas by tracing its position on the use of excessive or retaliatory force in disturbed areas during encounters or protests. The undeniable emphasis on retaining impunity for the armed forces is effectively captured in the EEVFAM order.
A seminal case for the Supreme Court’s findings on the AFSPA is the 1998 Naga People’s Movement case. To this day, the case represents the most comprehensive challenge to the constitutionality of AFSPA, and most of the legal principles cited in the EEVFAM order can be found in this judgment. In it, a five-judge bench of the Supreme Court upheld the AFSPA legislation but narrowed down the scope of Section 4, which empowers armed forces personnel deployed under the act to use force in a range of circumstances, even to the extent of causing death. Pointing to a list of do’s and don’t’s that the army had issued to guide conduct under the AFSPA, the Naga People’s ruling held that Section 4 did not contemplate arbitrary and unquestionable use of force, as argued by the state, but only minimal force for effective action.
Nearly eighteen years after that ruling, in the ongoing EEVFAM case, it appears that the state sensed an opportunity to circumvent the restriction imposed on it through the Naga People’s judgment. By expanding its argument beyond the AFSPA and averring to powers and duties of the security establishment under various other laws, the State sought loosening of these restrictions. Its legal team repeatedly pointed to provisions under the Army Act, the Code of Criminal Procedure (CrPC), the Indian Penal Code (IPC) and the Unlawful Activities Prevention Act (UAPA), citing instances that afford security personnel the discretion to use necessary force. The state quoted provisions such as Sections 99 to 106 of the IPC, which grant personnel the right of private defence, even to the extent of causing death, in the event that they perceive the threat of insurgency. It also argued that a warlike situation exists in Manipur where armed militant cadres operate as enemies of the state. All in all, the state contended that even beyond the pale of the powers under the AFSPA, which were considered in the Naga Peoples’ case, it was well within the powers of the security apparatus to retaliate with as much force as it saw fit. In it’s opinion, the degree and nature of force employed by security personnel to fulfil this “bounden duty”— a term captured in the interim order—could not be subject to judicial scrutiny.
The strategy backfired, and the state ended up with a broader illustration on why the use of excessive force by any security personnel is squarely prohibited.
In a few vaulting passages in the order, the court dismantled the state’s argument. Firstly, it found that there is neither a warlike situation in Manipur, nor is every suspect in a disturbed area an enemy of the state. Then, like it had in the Naga People’s case, it pointed to documents that require security personnel to refrain from using excessive force even against the enemy: the army’s guidelines, international treaties such the Geneva Conventions (a set of international protocols that prescribe humane rules to follow during war) and other international legal precedents. It also wondered about the grave consequences of killing Indian citizens and lamented that the armed forces were being used against our “countrymen and women.” The court found the state’s argument to be “far too sweeping,” and held that every allegation of use of excessive force would have to be met seriously. “In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire,” the court wrote in the order. “But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy.”
The state’s failed attempt to convince the court betrays a lack of moral and strategic sensitivity, which underpins its preference for muscular policies over democratic engagement with the population. Some concerns of the establishment that were contained in the order—such that an armed force operating in a disturbed area needs some “legal and logistic” protection—may not be unfounded. However, it is still perturbing to see how much more needs to be done in bringing cogency and accountability to laws such as the AFSPA. Inconsistencies and dead-ends continue to endure. In fact, some are reflected in the EEVFAM order.
For instance, while the court reprimands the state for shielding errant security personnel even in cases where investigation into encounters points to foul play, it is content with legal provisions in the AFSPA and the CrPC that give the government the final say in granting sanction for prosecution. The court also underscores the absurdity of re-notifying the AFSPA in Manipur indefinitely (a power that is implicit in Section 3, which allows it to declare areas as “disturbed areas”), but it does not tell us exactly how it proposes to exercise veto over this decision. Further, it lists the appalling findings of the Hegde Commission, which the court set up in 2013 to investigate six of the 1,528 cases of alleged extra judicial killings in Manipur, and which found that none of these cases seemed to be true encounters. But it does not elaborate on the problems that any investigative body will face: some of these cases are decades old, and those that are fresh are usually poorly investigated, leaving little in the way of good evidence that can withstand the judicial scrutiny of a criminal trial.
Such impediments, which come in the way of ensuring accountability, are bound to emerge in a complex judicial system where special laws such as the AFSPA interact with general laws such as the CrPC and the Evidence Act. With its limited mandate and inability to effect legislative changes or direct policy reform, the court cannot resolve them. It is hardly any wonder then, that its conclusions were mere reiterations of the Naga People’s judgment.
The fact remains that, so long as the need to impose the AFSPA sustains in the eyes of the administration, these issues will continue to reverberate and might even nullify the limited progress made by courts. Therefore, a comprehensive resolution must wind down to questioning the political wisdom of deploying the armed forces under the AFSPA and asking: does its incessant implementation, even in civic areas, serve the underlying objective of lasting security and reintegration in disturbed areas?
The debilitating impact of the AFSPA on affected communities and its various socio-legal implications, including, as the Manipur-based journalist Pradip Panjhoubam writes, the “culture of impunity” it has helped create, arewell-documented. Relentless application of such laws has helped create a perverse ecosystem of various human rights’ abuses, private arms dealing and drug trafficking. The cycle of militant violence and state reprisal has inflicted unimaginable horror on the civilian population. In Kashmir, an entire generation of politically and economically alienated youth—spurred on by excesses by security forces and mutinous opportunists—is responding with hapless violence aimed at thwarting the armed occupation and its poster child, the AFSPA. Meanwhile in Manipur, the notorious confession of a police commando named Herojit that he alone extra-judicially executed over 100 people, bears witness to the impunity martial law creates.
Taken together, these examples demonstrate that the use of laws such as AFSPA is more than simply a misguided policy tool which undercuts the need of politically sensitive solutions emphasising democratic values and tact; it is a corrosive model of governance. In that sense, it is more resilient, dangerous and counter-productive.
In the end, the strategic view that martial laws such as AFSPA have further alienated citizenry, created parallel political economies and distanced us from the twin objectives of lasting security and re-integration, must be the starting point of new policy formulations.
The case against the AFSPA, or legislation similar to it, is not a case against troop deployment in disturbed areas. It is a case against the nature and scope of such deployment, as well as the reasoning behind it. It is recognising that the implementation of such laws is based on a tardy assumption that deploying troops as means of controlling a cynical civilian population—in Kashmir or in Manipur—and granting these troops wide powers and extensive immunity, is our best bet to restore normalcy. It is really an attempt to create space for an alternative view, which could favour a nuanced mix of deploying the armed forces primarily along our borders, gradual retrenchment of troops from civic areas, and political engagement of disenchanted populations. Frankly, this is highly improbable in the current environment, which is dominated by a binary that either demonises the security forces in broad strokes or alienates the brutalised population that inhabits these regions.
In the meantime, as we wait for the final order in the EEVFAM case, it is important to remember that the Supreme Court is looking into 1,528 potential cases of extra-judicial killings. Here, the court is only seeking to establish a measure of accountability within the realm of the AFSPA. Having upheld the view that we must make space for laws such as the AFSPA in our democracy in the interest of national security, it can no longer reach beyond this realm. Whether we like it or not, it appears that solutions to the AFSPA conundrum will have to come from the political establishment.