AFSPA A Law Review 2

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AFSPA, 1958 - A Law Review
— Emergency Unproclaimed —
Part 2

By: Dr. Naorem Sanajaoba *

EMERGENCY UNPROCLAIMED

MPs opposed the the invocation of unproclaimed emergency through the backdoor. MP Mahanty opposed the bill,- "It has to be conceded that there are enough materials to show that there is an emergency. But the Energency provisions of the Constitution have been invoked without the President declaring an Emergency."
[LSD,p1401].

In similar vein MP Dr Krishnaswami opposed the bill,- " This is a state of affairs that can be brought about only by a Proclamation of Emergency promulgated under article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the state not warranted by the Constitution."
[LSD,p.1406]

He further argued,- " I suggest,here, the unconstitutionality is so patent that we are justified in requesting the Chair to rule that the measure is ultra vires."
[LSD,p.1409]

The state and security forces have also been conditioned to demoniacal-law-dependency so much so that the state feels deeply vulnerable without resorting to unproclaimed emergency and special power laws. It is comparable euphemistically to the addicts' drug dependency.

The decision-makers in the state and security forces have evolved a different short of hyper-subjective perception in regard to the unresolved political question of historical importance. The distorted perceptions are indicated by the following official projections:

The security forces are fighting low-intensity war against ANEs (Anti National Elements, as they are known to the army - the insurgents (ANE for enemy) ;
In aid of the civil authority, the forces assume the power for internal security management on par with defence against external aggression:
The forces use military power so as to quick-fix the fault lines, inherited from colonial history;
The armed forces need additional empowerment like the AFSPA and other concomitant draconian laws in order to maintain public order - extra judicial power for execution of any suspected citizen under section 4 of the AFSPA and virtual immunity from prosecution under section 6 of the same statute ;
In doing so, the forces should not be dragged into allegations of human rights-violations while the forces have their own court-martial system;
The forces, deployed by the third largest army in the world against a few hundreds of politically motivated secessionists can not be considered to have been deployed in excess of the requirement of military necessity;
Human rights violations are not atrocities, 4 but a modest inconvenience, to be born by the civilian population: These violations are considered a military necessity to keep India in tact.

The reasons had espoused the same set of strong arguments, advanced at the time of enactment and invocation of the colonial Armed forces Special Powers Ordinance in 1942 by the imperial power, who desired the British to keep the empire in tact.

The obvious contradiction lies in the fact that the justification for colonization or, re-colonization through colonial statute after the lapse of the colonialism is totally absurd and false. The demoniacal colonial law had to exist in order to sustain NSGT colony and conversely, the invocation of colonial statute proves that the colony survives after the British left India in 1947. -

The central issue, which resulted to insurgency or, national liberation movement - as it has been known to the insurgents or, in the parlance of universal de-colonization, is the historical legacy and a deep structure political question, which should not be addressed to legitimize the draconian law and the army, who had been given additional empowerment for extra-judicial execution under the AFSPA.

The issue has been misconceived as 'law and order' or, at most 'internal security' issue, whereas it bears the intrinsic essence of de-colonization and national liberation war- euphemistically, known as secessionism. The issue remains very deep and the fault lines are profound. The sustenance of the issue for more than four decades itself indicates that human eights violations and the twisted perceptions are merely symptoms of the malaise.

The Annual Report of Home Ministry, Government of India 1996-97 reports about the state most affected by insurgent activities of various militant groups. The union government, has therefore, arranged for talks with a Nagaland outfit since 1997.

The available evidence, the demand-structure, the historical facts and the pattern of union government's response to the political issue make it amply clear that the decades-old political violence, as espoused by the insurgents or liberation army of the NSGT, has been a consequence of unresolved political question from the time of Indian Independence.

Historical evidence very clearly stipulates that -

Manipur and Tripura had been annexed to the Indian political fold, after two years of Indian independence;
Assam became a part of British India not by her choice but by the choice of Burma and British, which signed the Treaty of Yandaboo in 1826;
the ethnic tribes which remained in the excluded hill areas of Assam fused themselves in the last five decades into nationhood, and claimed independence prior to the passage of Indian Independence Act 1947, and
British-created India has been a totally different entity from the original Indian nation that continued for centuries in the Gangetic basin - the Aryabrata.

The British-created India has been a deliberate political creation, unlike the homogenous Indian nation, based on Aryabrata. The issue is, therefore, not secession, but about fixing the NGST region to India by hammer and tongs - coercive mechanisms.

The accords, reached and breached between national groups and the government during the last five decades, being purely political issues in all sense of the term, exclude the wide arms of the apex court or, human rights commissions or, the instruments of the civil government like the army. Since 1997, the union government has initiated political moves by holding dialogue with one of the liberation outfits of Nagaland. Even after 9 years of talks, no result has so far emerged.

The human right violations following the invocation of special demoniacal laws and state repression for nearly half-a-century has been inextricably associated with the political question.

The issue, therefore, stands for the closest political scrutiny ; however, the enactment of special laws, invocation of half-a-century old emergency laws without formal declaration of emergency have to be assessed on the basis of 'rule of law' and accepted standards civilized jurisprudence.

Read Part 1 | Read Part 2 | Read Part 3 | Read Part 4 | Read Part 5 | Read Part 6 | Read Part 7 | Read Part 8 |

* Dr. Naorem Sanajaoba is a Professor and Dean of Law Faculty at the Gauhati University, Asom. The author is a human rights defender and a social activist in the NE region of India for more than 4 (four) decades and is a reknown author of several internationally distributed books on human rights, humanitarian laws, among others. The author can be contacted at [email protected] . This article was first webcasted on November 18th, 2006 and updated subsequently in later days.

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