SOCIOLOGICAL ANALYSIS OF AFSPA (By- Sama Zehra)
SOCIOLOGICAL
ANALYSIS OF AFSPA
Authored By- Sama Zehra ,
National Law University Delhi, 2022
AFSPA:
“where the law is splintered – neither suspended, nor firmly in place”
John de Carteau
in his “Practice of Everyday Life” examines how people of a particular
area alter their everyday lives/ activities in response to socio- political
developments. The author investigates how people individualize mass culture by
changing things like utilitarian products, street designs, laws and language to
maintain their daily routinized practices. The epitome of Carteau’s concept can
be found in the present-day Indian state, wherein emergency condition laws or
martial laws have been normalized and internalized in the colonial and
post-colonial legal regime. The heart of this research paper is to examine how
India has failed to ensure a “bare life” for individuals and to
understand the construction of people’s everyday life in response to
socio-economic struggles and suppression imposed by martial laws like AFSPA. In
the later part of the paper, the author has analyzed the functioning of various
structures of impunity, independently and in relation to each other and how it
has been used to veil the offences committed by the armed forces.
Baxi argues that the Indian legal system
comprises of two parallel criminal justice regimes, one is the “criminal
justice system” which strictly adheres to the due process rules and
emphasizes on rights of the accused, whereas the other model is the “Preventive
detention system”, which allows detention without any judicial oversight[1].
These two systems coexist, with the latter taking precedence lately. Often
announced as the powerful weapon against insurgency, this legal system has
produced a “door revolving detention system” which is weaponized by the
state to ensure, what they call “normalcy”, in conflict-prone areas.
Sugarcoated by terms of “public order”
and “national security”, numerous legislations have been implemented by
the state to erode and erase the historical legal sovereignty of places like
North-east and J&K. “Necessity” or “state of exception” is
the widespread political tool used for advocating such implementations, which
often is reasoned on conditions of “actual” or “presumed” crisis.
This condition eternalizes over time.
The condition of
necessity, as Agamben defines is a state of serious crisis or emergency where
juridical order is suspended and the sovereign has the authority to suspend
basic rights and norms. Schmitt argues that the state possesses the authority
of suspending the legal system and declaring a “state of exception” if
the country faces an existential crisis or threat. However, scholars such as
Agamben claim that “exception” has become “the dominant paradigm of
government in contemporary politics”[2].
Further, he regards the suspension of law as pivotal as it not only affects the
life of people as citizens but also as human beings. The key to Agamben’s conception lies around
the fact that the “state of exception” blurs the line between the “private”
and “public” life of an individual, thereby reducing their life into
what he calls “bare life”. At this stage, the sovereign exercises
complete control over humans, not only as “citizens” of state but to the extent
of acting on their natural life, therefore denying them their “right to live”.
During the
colonial period, numerous legislations were passed by the British, which
technically were bad in law and led to a huge public furore. Extraordinary laws
such as public safety act, preventive detention Act, Armed forces special
powers Act were the “ultimate weapons” in the state’s arsenal of
lawfare. Ironically, the same laws which were used to stifle dissent and
resentment of Indians, are now being employed by the Indian state with
negligible modifications, to accomplish exactly what the Britishers did, i.e.,
silence uproar.
Armed forces
special protection Act has been in place since 1950's in North-east and 1990’s
in J&K. Since its enactment, “AFSPA has been legally married to
democracy” and has worked alongside the “sovereign power” by creating
contentious “spaces of exception”.
This draconian
and colonial legislation continues to affect the everyday lives of people
living in these “highly contested” disturbed areas. It has been used as
a weapon of repression to curb insurgency and situations of “real” or
“presumed” emergency. Surprisingly,
the areas where “public order” is maintained by AFSPA, " the armed
forces are accused of committing world’s least known human rights abuses
however, the same remains veiled behind legal impunity provided by provisions
of the said legislation.
Sections 4 and 6
of AFSPA, in the name of “counter-terror operations” authorizes forces
with extensive powers and impunity for all crimes including rapes and gang
rapes. Section 4 allows the armed forces to “use force, even to extent of
causing death” if a person acts “in contravention of any law or order”. It
includes vague conditions such as “carrying of things capable of being used
as a weapon”, which has a high potential of being misused by the forces.
Incidents of rapes, assaults, kidnapping and torture have been reported and
continue to occur during army crackdowns in these “disturbed areas”. “Mission
to India” report by UNHRC in 2013 revealed that between 1993 to 2008, a total
of 2560 deaths were reported during police encounters, out of which 1224 were
regarded as fake encounters committed by CRPF, BSF and other forces acting
under the AFSPA[3].
Precisely, AFSPA
functions on an “assumption”, and on a mere assumption, army personnel can kill
and arrest a person, destroy any shelter, and search without a warrant.
With blanket
impunity granted under “maintaining public order” and “aiding civil
power”, forces have the authority to detain, arrest and question civilians
as well as use lethal force against public gatherings, with little or no
accountability. For e.g. According to the International Law of Protest, pellet
guns can only be used in “exceptionally rare” circumstances and should
be used in open spaces with the primary motive of dispersing violent crowds.
However, usage of pellet guns in conflict-prone areas like Kashmir is at apex,
and in contravention to the law, armed forces shoot directly at vital organs of
the person thereby, causing serious injuries to them. A 2010 report by
IndiaSpend revealed that since 2010, 27 people were killed and 139 were blinded
in Kashmir, the reason being the injuries caused by the supposedly “non-lethal”
pellet guns. Such impunities are a paradox to democratic principles and fasten
the oscillations between ordinary and special laws.
Since the 90’s,
emergency laws such as “AFSPA” and “J&K disturbed areas Act” have
been part of the legal armoury of the state and have successfully bolstered a
climate of political, moral & judicial impunity for large scale
infringement of human rights including, gang rapes, enforced disappearances,
extra-judicial killings and civilian massacre. The functioning of the army in
counterinsurgency duties is governed by Acts such as BSF 1968, CRPF Act 1949
and Army Act 1950, these legislations along with judicial precedents give
military courts the power to try any acts of military indiscipline, whether
committed on or off duty, in closed- door court martial proceedings begun at
the discretion of military officials. Section 9 of the Act states that the
police cannot initiate proceedings or arrest armed personnel suspected or
accused of committing abuses without the sanction of the federal government.
The section receives backing from sections 19 and 45 of CRPC. Such provisions
make it impossible for victims to prosecute their wrongdoers and thus create a
perpetual cycle of terror and uncertainty.
As McDuie Ra
rightly observed, “AFSPA enforces a state of exception that allows democracy
to be completely suspended & people of the region to be under complete
surveillance”[4].
The legislation has effectively turned Kashmir into a carceral grid and has
been successful in alienating people labelled as “political dissidents”
and forcing them “out of circulation”. John Reynolds in his “socio-historical
examination of permanent emergencies” analyzes how special powers have been
normalized in various legal systems and thereby concludes that “emergency
doctrine and the language of crisis have been purposefully deployed by the
security state to whittle away civil rights protections, to shrink the space
for political dissent and to erode anti- discriminatory norms”[5].
From the
international level AFSPA is viewed as a violation of basic human rights,
however, at the local level it is “part of everyday life”. The condition
of “permanent emergency” has been imposed by strategically weaponizing
legislations and targeting all those who question the legitimacy of the Indian
state. This state was attained by what Ranbir Samaddar calls “occupational
constitutionalism”, which was established by a dual process of establishing
authoritarian rule of India and undermining the “sovereign status” of
J&K. Duschinski and Ghosh argue that the historical legal sovereignty of
J&K has been obliterated by the Indian occupation and a new form of state
power- “occupation through perpetual emergency” has been legitimized by
the Indian constitution.
J&K has been
in a state of emergency since 1947 and the Indian state has since then failed
to maintain a “bare life” for the people of Kashmir. According to UN
OCHCR, “state of exception” has created a climate of pervasive and
sanctioned impunity in Kashmir which has, in turn led to large scale
extrajudicial killings, torture, arbitrary arrests, detentions, and sexual
violence by state forces. In a report to
UNHRC, Rashida Manjoo, UN special rapporteur on violence against women stated
that AFSPA, “allows for the overriding of due process rights and nurtures a
climate of impunity and a culture of both fear and resistance by citizens”. There
are innumerable examples where the army has misused and overused provisions of
this legislation for e.g.
·
In the year 2000, 5 Kashmiri village men were
abducted and brutally massacred by the paramilitary forces and they afterwards
blamed the militants for killing these people. The army men faced no repercussion
as their actions were shrouded by provisions of AFSPA.
·
In 2017,
a minor girl from Pattan, J&K was brought in for questioning about
whereabouts of her neighbor and during interrogation, was stripped naked then
raped and nearly killed. No FIR was filled, no case initiated.
Innumerable
brutalities by army either go unchecked or are ignored and not reported. The
irony is, in past 58 years only six army men who were involved in “Machil
encounter”, were punished with life sentence, no other army personnel has
ever been formally prosecuted for the sheer human right abuses committed by
them.
After analyzing
the situation in J&K in light of Agamben and Schmitt’s theory, we reach on
the irrefutable conclusion that AFSPA has eternalized the state of emergency in
J&K and has time and again, failed to ensure “bare life” of individuals.
AFSPA is a paradoxical instrument of security and downright aberration of
democracy.
AFSPA: AN
ULTIMATE SHIELD AGAINST PUNISHMENT
“Three army
men caught hold of me and 8-10 army men raped me in turns. They had huge
battery torches with them and they used them to see my naked body, while making
lewd remarks”.
One of the
survivors of the infamous “Kunan-poshpora gang rape” narrates her story
in the book “Do you remember Kunan Poshpora?”[6].
The night of Feb 23-24, 1991 turned out to be the most excruciating and
blackest night in the history of Kashmir. 4 units of Rajputana Rifles, 68
mountain brigades of Indian army visited the twin villages of kunan and
poshpora to conduct a search and cordon operation, they first ordered men to
come out of their houses and gather in a separate location. Thereafter, the
beastly sides of these barbarians were unleashed when they, “gagged the
mouths of the victims and committed forced gang rape against their will and
consent”, women as old as 60 and as young as 13 were raped in the same
room, including a pregnant woman. Moreover, men were also tortured by passing
electric current through their genitals. A month later, an FIR was registered
and the criminal process was set into motion. However, the investigation was
highly biased, improper and callously handled. Officials working on the case
were frequently transferred and changed. Medical examination of the victims
showed evidence of healing abrasions and sexual assault however, declaring all
this evidence as “baseless”, the case was labelled as “untraced”
and thereafter closed. During the hearing of the case before the J&K High
Court, the army shamelessly asserted that the incident was “a hoax orchestrated
by militant groups and part of a cleverly contrived strategy of psychological
warfare to discredit the security forces and to jeopardize counter-insurgency
operations”.
The night of Feb
23 has refused to end for 30 long years, a night that holds stories of
oppression, violence and injustice. The victims, despite long history of false
investigations, biased commissions, subversion of the judicial process and
brutal humiliation stand firm waiting for Justice. The Kunan Poshpora case not only demonstrates
the justification of human rights infringement in the name of “national
interest” and “counte- insurgency” but also the vicious structure of
impunity which pervades all the tiers of the criminal justice system of
Kashmir.
The “Thangjam Manorama rape and death case”
had a similar fate. Troops of 17th Assam Rifles brutally tortured
the victim in front of her family and to cover up the crime, she was shot
multiple times in her private parts. Later, rifles were planted in her house to
prove that Manorama belonged to a militant group. Interestingly, the security
forces in numerous cases, audaciously have justified the rape of the victims by
accusing the victims of being part of a “militant group” or “militant
sympathizers”, in raping them the armed forces are attempting to humiliate
and punish the whole community. Chenoy argues that “Rape, as a practice in
war zones, is embedded in the patriarchal construction of a woman’s body as a
symbol of the territory or ‘property’ of the enemy which has to be violated”[7] . Sadly,
many people living in mainland India see rape as part of “collateral damage”
to safeguard and secure the integrity and sovereignty of the nation.
The Kunan
poshpora incident became an excruciating example of what the armed forces are
capable of. In all such instances, the state machinery has sided with the
perpetrators. Professor William says ‘Rape in Kashmir is not the result of a
few undisciplined soldiers but rather an active strategy of Indian forces to
humiliate, intimidate and demoralize the Kashmiri people’. Be it the case
of Kunan poshpora, or Asiya- Nilofar or any case of mass rape in Kashmir, the
case is always discharged as “baseless”. A strong feeling of Deja-vu hit
Kashmiris when a PIL was filed in the J&K High court, demanding re-investigation
and re-opening of Kunan poshpora Case. The case was handled pitilessly and with
exactly the same degree of bias and prejudice as in 1991. Keeping up with the “culture
of Impunity” the case was quashed at the High Court and the investigative process
ordered by the subordinate judiciary was never completed. Till date the army
denies all accusations of rape and has vehemently argued that kunan poshpora
rape case is a “pre-planned politically motivated game against army” and
“statements of victims are stereotyped and like rotten stereo songs that
play rape all the time”[8].
The
institutional buildup around AFSPA, the range of laws and bi-laws shield armed
forces against punishment for the excesses committed by them. Although the text
of AFSPA does not grant immunity to armed forces against rape or sexual
assault, however, certain conditions have made ensuring justice in such cases a
vexed question. Section 7 of the legislation grants protection against
prosecution from “anything done…in exercise of the powers conferred”. These
“powers” include arrest without warrants, causing death and searches, however
the same cannot be misused and taken as a token of liberty to assault
residents. But armed personnel cannot be prosecuted without “prior sanction”
from the government. The Jammu and Kashmir Home Department responded to an RTI
request by an NGO by stating that “no sanction for prosecution has been
intimated by the Ministry of Home Affairs and Ministry of Defense to the State
Government from 1990-2011 under the J&K Armed Forces Special Powers Act”.
(Emphasis added). J. Verma committee
in its recommendations asserted that in cases of sexual violence, prior
sanction of government should not be required however, the suggestion is yet to
be adopted.
According to the
Army Act, 1950 all crimes committed by the army shall be tried in a court
martial. The decisive role of “Army Act” gains greater significance in
cases of conviction in these “disturbed areas”, as the process of trial has not
been detailed in AFSPA. This grey area was misused when in 2013 a review
petition was filed against a reinvestigation order on the mass rape case of
Kunan Poshpora. Rather than using provisions of AFSPA, Sec. 125 of the Army Act
was invoked which stated that “the competence of filing the final charge
sheet to decide whether the accused should be tried through court martial or
criminal court solely lies with the army”[9].
In a
well-documented case of mass rape in the area of Kangan, the police officials
straightforward denied filing the FIR because they didn’t want to “be an
annoyance to the army” despite the presence of affidavits which indicated
that the armed forces were charged with rape. In numerous cases, the judiciary
too has fallen into the circle of collusion with army. In 2003, a court martial
order was set aside by J&K High court against army captain, Ravaindar Singh
who was accused of committing rape of a mother-daughter duo in Banihal village
and was sentenced to rigorous imprisonment by the military court. Setting aside
the order, the army officer was released and declared “not-guilty”. This
appalling verdict was neither challenged by the court martial nor by the state.
The sovereign in
Kashmir has evaded its “democratic accountability”, and other arms of
the state i.e., the police and judiciary have efficiently colluded in abetting
oppression and derailing the justice delivery process. The army has been
successful in trivializing heinous crimes such as rapes, with aid of the
executive and judiciary. This pattern of trivializing cruel acts and systematic
sexual assaults by the army became evident when in 1993, A report by United
Nations revealed that 882 women were gang raped by security forces in Kashmir
in 1993 alone and government turned a blind eye toward this report. A similar
case of collusion was reflected in rape and murder case of “Asiya and
Nelofar”. All evidence indicated the
involvement of armed forces in the murder and rape of the victims however, the
state and police put up a phenomenal show to thwart the course of justice. CBI
and a judicial commission were set up, which sacked all arguments of rape and
dismissed the case as “death by drowning”. What is even more disgraceful
is the fact that all those who sided with women and resented the CBI findings
were charged with falsifying evidence, intimidating witnesses and acting under
the influence of “separatists”. It is due to such circumstances that
time and again, international organizations have pressured the Indian
government to bring offences committed by armed forces under the purview of
civilian courts. However, as of now, nothing has been done in this regard.
Military and
para-military forces evade the clutches of Law when all other state actors
collectively work in disrupting the process of justice. Introducing amendments
to AFSPA or even repealing the act would mean anything to the victims when the
whole structure of impunity is dismantled. In the past, numerous committees
have raised concerns regarding the misuse of AFSPA provisions however, the
issue of abetment by state actors (judiciary & executive) and the
significant role played by Army Act in obstructing justice has never been
raised. A paradigm shift is the need of the hour.
Conclusion
Mimicked
as a “necessity legislation” under the state of exception, AFSPA is leading to
a silent apocalypse. It has given rise to a culture of terror and militarised
societies where lives have been converted to a bare minimum and “citizens have
been stripped of their political determinations & reduced to pure natural
existence, totally at disposal of the sovereign”. AFSPA is as Agamben says, a
“legal form of what cannot have a legal form". It is a form of cultural
violence used by the sovereign to maintain and impose its legitimacy by
suppressing protest, and resentment and by violating the rights of individuals
which in turn raises the question: Whether AFSPA provides security and
protection to citizens or the state itself?
As
discussed throughout the paper, this legislation has been weaponized to put a
shroud over human rights violations, killings, rapes and other countless
offences committed by the security forces. According to AFSPA, every individual
living in these “razor-wired cities” is a potential suspect, anyone can
be frisked, stopped or even shot without any explanation or accountability.
Everyday Kashmiris are exposed to unmediated authority & power, with
everyone reduced to the position of “killable”.
AFSPA
still remains a vexed issue. The government not only turned a blind eye towards
16 yearlong fast of Irom Sharmila but also to innumerable testimonies of human
rights infringement. Evidently, all cases related to crimes committed by
security forces have received negligible importance by the judiciary. What
actually encourages this “culture of impunity” is the complex structure of
collusion created by the state actors. AFSPA,
which is legitimised by the state of "permanent emergency", is
not just an extraordinary suspension of rights, but it is also incorporated
into the logic of postcolonial India's occupational constitutionalism.
BIBLIOGRAPHY:
Legislations:
·
Armed
forces special protection Act, 1958
·
Arms
Act , 1959
Articles
·
Upendra
Baxi, “Crisis of the Indian legal system” (1982)
·
Davide
Giordanengo, “the state of exception” (2016) < https://www.e-ir.info/2016/06/21/the-state-of-exception/> accessed 2May 2022.
·
McDuie
Ra, “Fifth year disturbance: armed forces special powers Act &
exceptionalism in South Asian periphery” (2009) 17 CSA, 255.
·
Amit
Ranjan, A gender critique of AFSPA: security for whom? (2015) SAGE
·
[1]Ayesha pervez, Sexual violence & culture of impunity in
Kashmir, (2014) 49 (Economic & political weekly) 10
·
Madhav
khosla,
“The real problem with AFSPA is how a normal law can bypass constitutional
safeguards”(2019) https://theprint.in/opinion/the-real-problem-with-afspa-is-how-a-normal-law-can-bypass-constitutional-safeguards/221299/
accessed by May 2, 2022.
·
Duschinski & Shrimoyee, “Constituting
the occupation: preventive detention and permanent emergency in Kashmir”
(2017) the journal of legal pluralism and unofficial law.
Reports:
UNHRC, “Mission to India” , jan 2011
Books:
·
Reynolds, Empire emergency &
international laws, (Cambridge University Press 2018
·
Esar
and ors., Do you remember kunan poshpora? , ( Zubaan, 2016)