Take the jungle to the law

The AFSPA should make any democrat shudder. Not many democracies in the world allow armed forces to ‘‘fire upon or otherwise use force, even to the extent of causing death’’ and then give legal immunity to those accused of excesses, leaving no room for an independent investigation. Whether or not charges of human rights violations by the armed forces are true, there can be little doubt that the AFSPA creates conditions for abuse.

The signs on how the Reddy panel is going about its task are mixed. On the one hand chairman Reddy has promised that the panel ‘‘will try to do the right thing’’ keeping ‘‘the interest of society and people’s democratic and human rights’’ in mind. On the other hand statements to the press by Reddy and his colleagues suggest that they are hoping to find a focal point for defining public interest among the views expressed by various interested parties such as the Army, the bureaucracy and civil society groups. The panel appears to be less inclined to freshly deliberate on the need for this extraordinary piece of coercive legislation.

Panel members have told the press of their surprise about the misconceptions about the AFSPA among citizens. In Tripura the panel found that people spoke to them about cases involving the Tripura State Rifles and not the Indian Army. Members of the panel have said that they have encountered three sets of views on the AFSPA: first, that the Act should be repealed and the Army should return to the barracks; second that the Army should stay but the AFSPA itself be replaced with another legislation more sensitive to human rights concerns; and third, that the Army should stay, with some modification of the AFSPA. Apparently the political leadership of the northeastern states prefers that the AFSPA remain in force because they find the armed forces to be more effective than the state police. Panel members have not divulged the views of the Assam Rifles, but these are not hard to guess. The Assam Rifles defends the AFSPA and rejects accusations of human rights violations.

Views expressed by so-called civil society circles are also unlikely to be uniform. Manipur’s hill districts, where the AFSPA has been in force for much longer, were relatively quiet during the unrest in the Imphal Valley. According to some news reports, Naga villagers in Senapati district—with what at best can be called the active encouragement of the Assam Rifles—demonstrated in favour of the AFSPA with placards such as ‘Assam Rifles, Friend of the Hill People’, and ‘Save our Souls, Assam Rifles, Protect our Lives’.

Why should not the Reddy panel simply side with sectors that support continuation of the AFSPA in some form? Because the issues that are being raised about the AFSPA are of a higher order than those that permit policy-making by canvassing the views of interested parties. Especially since the costs of the AFSPA are borne only by those living in particular areas where the AFSPA is enforced, canvassing views would be a rather unfortunate basis for making policy. Furthermore, the legitimacy crisis of democratic institutions in Manipur—as highlighted by last year’s protests—is real. While deliberative democracies should try to persuade citizens about the rationale of all laws, they have to try especially hard when it comes to laws that take away liberties that are foundational to democracy. That task is urgent in North-east India where the credibility of democratic institutions today is in short supply.

The Reddy panel can serve a useful function by addressing the question of whether the AFSPA meets the test of what Michael Ignatieff calls a ‘‘lesser evil’’ that democracies may sometimes have to choose. In the life of a democracy, Ignatieff writes, there may be times when ‘‘rights may have to bow to security’’. But there have to be extremely good reasons and there must be clear, specific and transparent limitations on the abridgment of rights. Even if the defence of democracy may sometimes require actions that depart from democracy’s commitments to dignity, the use of coercion has to be always morally problematic.

Ignatieff proposes a few rigorous tests that laws proposing coercive measures must pass before they are accepted. The dignity test would preclude cruel and unusual punishment, torture, extra-judicial execution etc. The conservative test would ensure that a departure from due process standards is indeed necessary. The effectiveness test would ask if the coercive measures would make citizens more or less secure. The last resort test would ensure that new coercive measures are adopted only after less coercive measures are tried and have failed. Such measures would also have to pass the test of open adversarial review by legislative and judicial bodies. He also proposes a test on whether the measures meet the international obligations of government. The Reddy panel could put the AFSPA to these tests.

Even after society chooses the path of the lesser evil, after extremely careful deliberation to ensure that the use of coercion meets these exacting standards, it cannot stick to that path indefinitely. When for instance one hears arguments for ‘‘destroying a village in order to save it’’, says Ignatieff, it may be a sign that there is a slippage from the lesser to the greater evil. When that happens society has no choice but to admit mistakes and reverse course. The Reddy panel might consider whether such a moment has not already arrived in the North-east.

Sanjib Baruah is Visiting Professor, Centre for Policy Research, New Delhi. He is the author of Durable Disorder: Understanding the Politics of Northeast India