Governance through Extraordinary Powers: The Armed Forces Special Powers Act
One of the preferred modes of governance in Nagaland and Manipur for the Indian government in the last century was through extraordinary powers. AFSPA was a takeoff, with certain modifications, from the Armed Forces (Special Powers) Ordinance 1942 of British India. Only it is much harsher than the previous ordinance. In the previous ordinance, power to take action was authorized for an officer of the rank of captain but in this act power rests even with non-commissioned officers. Also the previous ordinance was meant for the whole of India unlike the present one. Protests escalated in the Naga Hills when the state promulgated the Assam Maintenance of Public Order (Autonomous District) Regulation Act in 1953. It was operative in the Naga Hills and Tuensang districts. The act empowered the governor to impose collective fines, prohibit public meetings and detain anybody without a warrant.8 While protests continued, those portions of the Naga Hill districts that formed parts of Assam were placed under military rule in 1955 on the basis of the recently formulated Assam Disturbed Area Act. The same year, NNC set up the “Federal Government of Nagaland”, which had a military wing. Before the year ended it was said that there were “nearly one security troop for every adult male Naga in the Naga Hills”.9 The 1958 AFSPA Act was meant for only the Naga Hills and parts of Manipur. But like the ordinance the AFSPA is meant to suppress civil society, curb dissent, and legitimize state violence. As one observer has maintained, “logic demanded that an India that fought against such powers would, when independent, get rid of such legislation. Events, however, have proved the contrary”.10
G.B. Pant, the then union home minister, introduced the bill stating that it was intended to quell “arson, murder, loot, dacoity etc. by certain misguided sections of the Nagas”. It was because of such violent actions of the Nagas that “it has become necessary to adopt effective measures for the protection of the people in those areas”. So it was in the name of the people that this bill was introduced, which gave the armed forces almost unlimited power over the lives of these same people. There were some members who cautioned against such blanket powers to the army but their voices were generally disregarded. The deputy speaker of the Lok Sabha criticized the government, stating, “It pains me that we have an occasion in this House to give our assent to martial law which was forced on us by an Ordinance … Why have they (the Congress government) smuggled this legislation in this way? It is really a challenge to the concept of democracy and freedom that we have.”11Among other critics, there were some that felt the “Parliament is giving its seal of approval to a legal monstrosity to quell another kind of monstrosity”.12 Even the Speaker asked the Home Minister:
Does the Honorable Minister feel that this is the procedure; he can shoot if it is a disturbed area, which is the procedure established by law? He can shoot [italics added]. Anybody can be killed or shot at, but is this procedure established by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of life by any commissioned officer, he can shoot [italics added].13
When the bill was being debated both the Members of Parliament (MP) from Manipur vehemently objected to it. Laishram Achaw Singh, MP from Inner Manipur Parliamentary Constituency, argued:
In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and difficulties in those areas, especially those which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-divisions of Kohima and Mokokchung. In such a situation, I do not like that the officers should be invested with special powers … This piece of legislation is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law and order position in these areas, if they declare some areas as disturbed areas, it would cause more repression, more misunderstanding and more of unnecessary persecutions in the tribal areas. This is a black law. This is also an act of provocation on the part of the Government. How can we imagine that these military officers should be allowed to shoot to kill and without warrant, arrest and search? This is a lawless law.14
Even after such ringing protest from MPs of the region the Armed Forces (Special Powers) Act (AFSPA) of 1958 was enacted after a mere three hours of debate in the Lok Sabha and four hours of debate in the Rajya Sabha. The act was meant to be in the statute books for only one year but it is operative even today. AFSPA of 1958 gave the state government the power to define any area as disturbed. Pant argued, when faced with the criticism that he was wresting power from the state governments, that he was actually increasing the powers of the state as by this act they had the power to summon the military whenever they wanted to do so. That this was hardly the case would become apparent when in 1972 this provision was changed. For then, the state government had the power to declare any area as disturbed. AFSPA is a prime example of how democracy legitimizes violence on people that it considers errant/deviant. The evolving history of this act will show how a state, by institutionalizing violence, securitizes a certain area and how that leads to the securitization of the whole region.
Among the many articles in AFSPA, there is one that says that anyone can be shot dead even on suspicion of being a terrorist by a commissioned member of the armed forces. A decade back a young woman named Irom Sharmila started a protest against this act by fasting unto death. Today, she is kept alive by force-feeding through the nose as the state can little afford another martyr with a history of non-violent protest that is the specialty of many women protestors in the region, be they Naga, Kuki or Meitei. The operation and history of the act demonstrates how women have suffered under this act and in the hands of the two patriarchies – the rebel and the armed forces.15 The act militarized the entire region of Northeast India, particularly Manipur and Nagaland. A result of this act is that it has caused an inflow of men working with the security structures of the government. Hence in many parts of Northeast India infrastructure work such as road-building for safe movement of troops necessitated the presence of skilled labor and technical hands and so it mostly attracted men. Also the inflow of security personnel in the region increased the share of male migrants. Such a situation affected the sex ratio negatively. It coincided with the growing violence against women in the region.
After almost half a century, AFSPA continues to occupy the centre stage of a bitter debate over its existence. Vociferous calls for its repeal from civil rights activists have been acknowledged by the Second Administrative Reforms Commission, which has recently recommended its repeal. As with previous recommendations of repeal, such as the Reddy Committee’s in 2005, government officials reacted with immediate and emphatic disapproval. They concede possibilities of improvement in the law but categorically reject its repeal.
One of the biggest debates on AFSPA was generated in 1997. Discussing the Supreme Court rulings on AFSPA in NPMHR v. Union of India in 1997, the Human Rights Features stated the following:
In the 1997 case Naga People’s Movement of Human Rights v. Union of India the Supreme Court upheld the constitutionality of the AFSPA but placed various checks on the armed forces’ exercise of power there under. Specifically, the Court rejected the petitioners’ argument that the AFSPA was unconstitutional because it transferred to the armed forces full power to maintain public order in a disturbed area whereas the Constitution only permits Parliament to enact laws relating to the ‘use of the Armed Forces in aid of civil power’.
But in rejecting this argument, the apex Court also held that the ‘in aid of civil power’ clause mandated the continued existence and relevance of the authority to be aided. Under the AFSPA, therefore, the armed forces cannot ‘supplant or act as a substitute’ for a State’s civilian authorities in the maintenance of public order, but are strictly required to act in cooperation with them. Accordingly, the Court understood the armed forces’ power under AFSPA Section 4(c) to arrest any person without a warrant for suspected commission of a cognizable offence in light of Section 5, which requires handing over the arrested person to the nearest police station with the ‘least possible delay’. The Court further stressed that the ‘least possible delay’ language of the AFSPA reflected the requirements of the Criminal Procedure Code (CrPC) and the Constitution, which mandate production of a detainee before the nearest Magistrate within 24 hours of arrest.
Similarly with respect to the search and seizure powers granted under Section 4(d) of the AFSPA, the Court interpreted the AFSPA to require the armed forces to transfer custody of seized property to local police forces. Furthermore, in conducting searches and seizures under Section 4(d), the armed forces were bound by relevant CrPC provisions that would otherwise bind civilian authorities….
Following the NPMHR ruling, the Gauhati High Court, which has jurisdiction over the conflict-prone Northeast States, has faithfully applied NPMHR’s reasoning to restrict the power of the armed forces to act independently of State authorities. For instance, the High Court held that the armed forces’ refusal to involve local police in an operation to track down suspected militants in Assam overstepped the bounds of the AFSPA. Similarly, the Court held that the armed forces’ failure to hand over arrested persons to local police authorities represented violations of the AFSPA. In such situations, the Gauhati High Court has insisted that the armed forces demonstrate adequate factual circumstances to justify non-compliance with the requirement of handing over custody to civilian authorities with the ‘least possible delay’.16
However, on 2 May 2007 in the Masooda Parveen v Union of India and Ors it was argued that:
It is Mr. Ganesh’s plea that despite the fact that police station Pampore was a stone’s throw away from village Chandhara, no effort had been made by the army to convey the information to the police at the earliest and the police had been called in only on the morning of 3rd February, 1998 after Regoo had been done to death. Mr. Ganesh has also placed reliance on the judgment of this Court in Naga People’s Movement of Human Rights vs. Union of India (1998) 2 SCC 109 to contend that while upholding the vires of the Armed Forces (J&K) Special powers Act, 1958, this Court had laid down certain guidelines which would mutatis mutandis apply to a search, seizure and arrest under the Act as well. He has pointed out that the basic principle which governed the exercise of authority under the Act was that the army was to act in aid of the civil power meaning thereby that the preeminence of the civil authority had in no way been diluted. He has, in particular, placed reliance on the specific conclusions drawn in paragraph 74 of the Report and has pointed out that this Court had clarified that the civil power continued to function even after the deployment of the armed forces.17
Not accepting these arguments the Supreme Court ruled that what the army did was very much within its authority and therefore no punitive measures were to be entertained. In the Thangjam Manorama case in 2005, the initial ruling of the Guwahati High Court was the following:
The State of Manipur is not the appropriate Government haying any administrative control over the armed forces deployed in the State. On the other hand, the members of the Armed Forces are entitled to protections as per provisions of Section 6 of the Act of 1958 which provide that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government. The Central Government being the appropriate Government and having absolute control over the armed forces deployed in a disturbed area has to deal with the report and take follow-up action as may be necessary in accordance with the provisions of law. Since the subject matter of dispute is a definite matter of public importance, the Union Government is required to take appropriate decision without least possible delay.
In the result, both the writ petitions are disposed of with direction to the State of Manipur to hand over the report to the Union Government in the Ministry of Home Affairs without delay. The Union Home Ministry, represented by the Secretary, will examine the report and pass orders/take appropriate action against the 17th Assam Rifles personnel, if any, indicted in the report without loss of time. The Union Home Ministry shall also take an immediate decision about publication of the report in tune with the citizens’ right to information. The people of Manipur seek justice and it should be done forthwith to restore their confidence in the Constitution and the laws.18
A ruling of the principal bench of the Guwahati High Court made on 31 August 2010 clearly said that the state government was competent to conduct an inquiry over the armed forces and the inquiry commission set up by the state government to probe the killing of Thangjam Manorama was legitimate. Hence, the state authority could take action against the accused army personnel. This ruling was followed by the Gauhati High Court ruling on 10 January 2011 in which a double bench of Gauhati High Court comprising of Chief Justice Madan Bhimarao Lokur and Justice Ashok Potsangbam issued a notice of motion regarding the case of Thangjam Manorama.19 It asked the Union of India and 17 Assam Riffles as to why Manorama was not handed over to civil custody. Assam Rifles filed a petition and took the case to the Supreme Court.
The AFSPA created a milieu of uncertainty, fear and violence within states and the specter of this violence hung over the mode of governance. Naga women argue that women are the greatest victim of this violence. Not just women from Nagaland but most women from Northeast India are of the opinion that AFSPA should be removed immediately. In Manipur, women launched a major campaign on this in 2004. In Nagaland, too, such a campaign is on though it is not as dramatic as the one in Manipur. The last few decisions of the courts and the government over AFSPA have demonstrated that there is a growing ambivalence about AFSPA and a realization that violence alone is not a solution to problems. The government, therefore, has changed its tenor and embarked on a program for the development of the people, particularly women. It was slowly taking up the cause of Naga women particularly because it found in the women strong supporters of the ceasefire. This was happening exactly at a time when the Indian government was opening itself up to the East through the Look East Policy, due to which peace in northeast was becoming a priority.
Government Policies and Strategies for Women
Side by side with governance through extraordinary laws and then beyond it continued a more civil form of governance as there was a growing realization that violence alone cannot solve a political problem. In the days of Look East it was becoming that much more essential to address issues of sovereignty by means other than violence. In its program for development the state looked upon women, particularly younger women, as both its audience and allies. The government constructed a plethora of policies and strategies in Nagaland towards empowerment of women which were both social and economic. A review of some of the social and political institutions in Nagaland will reveal the nature of gender mainstreaming in development initiatives. “Gender mainstreaming refers to the systematic examination of all general policies and measures, and taking into account their possible effects on the respective situation of men and women when defining and implementing them. This approach considers the promotion of gender equality as a question of promoting long-lasting changes in family structures, in institutional practices and it also concerns men and the whole of society.”20 Gender mainstreaming in development initiatives in post-conflict societies is considered an effective tool of non-traditional security approaches and sustainable approach in reconstruction. The participation of women in former political spaces is still negligible in Nagaland. The Indian Constitution guarantees the participation of women in electoral politics through the 73rd and 74th amendments passed in 1992 and 1993, whereby a total of 33 per cent of seats have been reserved for women candidates in Panchayati raj and municipal institutions. But often women civil society leaders look upon women politicians with suspicion. There is, therefore, a chasm in the women’s movement and the women representative of the Panchayati raj institutions (PRIs)
One of the newer innovations for getting support of the Naga women for the administration is the formation of the Department of Women’s Development. This department has entered into a partnership with apex women Hohos in all the districts. The partner NGOs have been instrumental in implementing various schemes of the department. The main thrust of the department was to encourage and strengthen women-centered self-help groups (SHGs). The Annual Administrative Report of 2011-2012 outlined the following as the primary focus of the department: 1. To better the socio-economic status of women; 2. To safeguard the rights of women; 3. To provide support services. A total outlay of Rs. 1,025 lakh has been provided by the state to implement ongoing programs of the department.21 Some of the activities which are in relation with the spirit of the Committee on the Elimination of Discrimination against Women (CEDAW) and UN Security Council Resolution 1325 include the formation of:
1. Nagaland State Commission for Women: This commission was created to safeguard women’s rights and to promote their empowerment through the Nagaland Women Commission Act, 2006. As per provisions of the relevant act, the commission, consisting of a chairperson and two members, was constituted in 2007-2008.
2. Nagaland State Social Welfare Board: A new scheme called Integrated Scheme for Women Empowerment of the board was launched to support SHGs.
3. Grant in Aid to NGOs: The department has worked out a system whereby it has partnered with the apex women’s organizations (Hohos) in each district. Under this partnership, selected NGOs are assisting the department in implementation, verification and supervision of the schemes and activities of the department. It closely coordinates with partner NGOs and assists them in their work on rehabilitation and support of women in difficult circumstances, including women in extreme poverty, destitute and deserted women, women in conflict situations, women affected by natural calamities, physically and mentally challenged women etc.
4. Financial assistance to destitute women: Destitute women are provided with a financial assistance of Rs 200 per month. In 2011-2012, 3,000 women received the financial assistance.
5. Establishment of rehabilitation-cum-support centre: The rehab-cum-support centre caters to the special needs of commercial sex workers, HIV Aids affected women, victims of sexual exploitation and marital violence, deserted women and victims of trafficking. The services being provided, include training in various trades and alternative livelihoods, free legal aid, counseling and spiritual guidance.
6. Implementation of acts: With the enforcement of The Protection of Women from Domestic Violence Act, 2005, the state government has approved the designation of EACs as protection officers and the Nagaland State Social Welfare Board as the service provider under the act. The Prodigal’s Home in Dimapur has been designated as the “state shelter home” to provide shelter and counseling to victims of domestic violence.
Most of these developmental programs started in 2004-2005 but at that time Naga women were still reeling from the effects of conflict. However, even in the midst of trying to cope with the effects of conflict they were articulating their desire for a better, more prosperous life.
*The paper is written by Paula Banerjee and Ishita Dey.
* Paula Banerjee is a Member of CRG and Associate Professor of Calcutta University. Ishita Dey is also a member of CRG and Ph.D. student of Delhi University.
*The paper was first published July 2012
(Courtesy: Mahanirban Calcutta Research Group- www.mcrg.ac.in)
8 Assam Maintenance of Public Order (Autonomous District) Regulation Act 1953, p.
9 B.N. Mullick, the head of Indian Intelligence Service, quoted in Luingam Luithui and Frans Welman, Naga History: Chronology of Recent Events, unpublished report circulated by The Naga International Support Centre, Amsterdam, 24 December 2002, p. 3, www.nagalim.nl
10 Khatoli Khala, The Armed Forces (Special Powers) Act and its Impact on Women in Nagaland (New Delhi, WISCOMP, March 2003) p. 25.
11 Deputy Speaker, Lok Sabha Debates, 18 August 1958.
12 Mohanty, Lok Sabha Debates, 18 August 1958.
13 Speaker, Lok Sabha Debates, 18 August 1958.
14 Laishram Achaw Singh, Lok Sabha Debates, 18 August 1958.
15 See Paula Banerjee, “Between Two Armed Patriarchies: Women in Assam and Nagaland,” Rita Manchanda ed. Beyond Victimhood to Agency: Women War and Peace in South Asia (Sage Publications, 2001).
16 Human Rights Features, http://www.hrdc.net/sahrdc/hrfeatures/HRF168.htm accessed on 12 F http://www.hrdc.net/sahrdc/hrfeatures/HRF168.htmebruahttp://www.hrdc.net/sahrdc/hrfeatures/HRF168. htmry 2012.
17Indian Kanoon – http://indiankanoon.org/doc/745885/ accessed on 15 February 2012.
18Col Jagmohan and Ors. V State of Manipur and Ors, http://www.indiankanoon.org/doc/38473/ accessed on 25 February 2012.
19Guwahati High Court serves notices to accused in Manorama rape and murder case, http://kanglaonline.com/2011/01/guwahati-high-court-serves-notices-to-accused-in-manorama-rape-andmurder-case/ accessed on 22 February 2012.
20 Myrium Gervais, “Experiences of Women During and After Violent Conflicts: Implications for Women in South Asia, in Shree Mullay and Jackie Kirk, eds. Women Building Peace Between India and Pakistan, (Anthem Critical Studies, Kolkata, 2007) p. 161
21 Annual Administrative Report 2012, Department of Women Development, Nagaland, Kohima, p1-p2.
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