Why Repressive Laws?
The contemporary world is experiencing many unusual movements including the so-called terrorist acts emanating from worldwide unrest. There is an intense debate on these eruptions and ways and means to deal with this rapidly changing alarming global context. The central anxiety regarding these movements is that those who are questioning or challenging the system are armed and do believe in using force to win their point. The state maintains that the ordinary laws meant for regulating the public affairs are not adequate as most of these laws assume a normal society with citizens whose conduct is broadly in conformity with the laws of the land. In fact it is widely believed, certainly with an element of truth that the laws arise from consensus, if not individual consent of every citizen. The state being responsible for governance derives its power from the laws of the land. Every law confers powers on the State but also limits the power so that power does not become tyrannical. The laws also define the rights and freedoms of citizenry through which their relation with the state is determined. It has been the worldwide experience that it is in the very nature of the state to transgress the limits of the law. In case of citizens at least some sections of the citizenry, there is a tendency to use freedoms to the extent of challenging the very legitimacy of the state. It is, therefore, a civilisational question that how a balance is struck between these two powerful tendencies without abandoning the project of transformation of the human society into a more equitable, peaceful, fair, just and humane global order.
The jurisprudential equilibrium rests not only on the nature of the state which is dependent on quality and character of the rulers but also on the levels of contentment, quality of life, the nature of social institutions and instruments of civil society in mediating the relationships in the society. However, it has been the human experience that the “equilibrium” is never everlasting. It is always open to challenge and therefore, the possibility of disequilibrium. It is not that the restlessness in the society is new to human experience. It has always existed in one form or the other; what distinguishes the contemporary means of expressions of restlessness are the levels of force and forms of violence.
The invention of fire arms and their widespread availability in the global market brought in altogether new challenges to the system maintenance. One of the significant but anticipated fallouts of these trends has been end of the state monopoly of force (which distinguishes the State from other institutions). In liberal theory the origin of the state is conjectured as a product of social contract arrived at through the consent of the individuals. The contract was necessary as relations between human beings were mediated through force and it was that arbitrary force in the state of nature that was brought under the regulation of law. It also maintains that every human being is endowed with reason and since reason is superior to raw emotions and uncultivated impulses it has been possible to arrive at the acceptance of supremacy of law.
It is also postulated that human beings enjoyed unrestrained freedom in the state of nature. Surrendering part of the freedom was a component of the contract. This surrender was in exchange for security. Thus guaranteeing right to security, in a way, has come to define the basic function of the state. It is precisely for these reasons that the state has been given the power to use the force but the force can and should be used only in a way that the procedure mandates. The procedure is evolved in pursuance of the objectives for which the state came into being. Therefore, the essence of any law should necessarily be the concern for the right to life and security of every individual. And every law is an expression of that part of human nature, which privileges the security over unrestrained freedom (Paine 1954).
The question that maintenance of law and order rests on mere passing of laws is problematic. Many liberal scholars interpret law as an end in itself. But it is a part of the historical process that the state in its evolution assumed several responsibilities which were perhaps not envisaged when it originated. These new responsibilities were neither a drift nor negation of its purpose. On the contrary it was more an affirmation of its role in the sense that for maintenance of order there are certain prerequisites such as minimum standard or quality of life. It is common sense that where there is widespread deprivation, there cannot be order. It is juridical ambition to expect a hungry man to be a law abiding citizen.
There have to be ways and means through which people should be able to earn their livelihood to start with and opening and widening up of opportunities to improve their quality of life or what Amartya Sen conceptualised as “endowments and capabilities” (Sen 1999). If such conditions are not created, it is not only that the individual violates the law but the law cannot be enforced because of its poor moral and material base. In fact, Karl Marx argued almost one and half centuries back that equality before the law without equality in concrete existence is juridical illusion (Marx and Engels 1846). This reality calls for “welfarism” and greater equality which become a part of the governance warranting passing of several laws for transformation of the society. It is in this process that the very notion of rights has got enlarged. If the state does not work in this direction there are bound to be eruptions outside the formal legal framework.
As the very notion of the nation state in the developing world is in the process of stabilisation, the global market forces backed by the brutal force of the United States (US) and crude economic forces of the World Bank and International Monetary Fund are compelling these emerging states to fall in line (Chomsky and Herman 1979). A sovereign state and global economic order are contradiction in terms; for societies at different stages of development and enormous cultural diversities and styles of life are being pushed or dragged into the global order or what has come to be described as structural adjustment resulting in ruptures which are evident in different parts of the world: As economic processes are calling for a borderless world, the reactions are also bound to be on a global scale. The uncertainty and discomfort with the new world order reached a point where nobody is able to anticipate which part of the world would be hit at what point of time. It could be New York, Lahore, London or Mumbai. These violent acts of those members of the world who are not able to adjust or those who are rejecting the model are put in the broad category called “terrorism”.
Different Perspectives on Repressive Laws
There are, however, other equally powerful expressions characterised by varied nomenclature – insurgency, extremism, ethnicism, separatism, or Naxalism. The way the state treated Naxalite movement is one of the standing testimonies to the lopsided approach. Every political party in India at one time or the other openly held that it was a socio-economic problem but dealt with it as law and order once the parties came to power. The question under debate is: how and why the nation state has been reacting and responding the way it did to these growing threats to its legitimacy? The way they handled these critical challenges is a sad reflection of the nature of the Indian state. While all the dimensions of this phenomenon need deeper probing.
It would be useful to discuss the origin and changing contours of terrorism, and the way terrorism is interpreted and responded to by the state. Broadly there are two approaches; one is contextualist and the other is confrontationalist.
The contextualists maintain that the origins of the outbursts lie not inside the outbursts but outside the historical and socio-economic processes. They assume that an average human being craves to live an orderly, peaceful and (given the proper conditions and opportunities) a meaningful life. It is this search for order, peace, identity and avenues for creative expression that are at the root of most of the problems. There are a number of ways through which human beings could be divided, deprived and alienated. These undesirable processes could continuously be overcome, if only the mainstream political processes strive towards a responsive and sensitive political system. It is the drift of mainstream politics from the democratic and transformative visions that can be one of the important causes for immediate provocation for protest which can grow into frightful violence. As the violence grows quite often the initial causes are lost sight of and rulers get engrossed with the violence per se and take recourse to different forms of force to deal with the otherwise complex socio-political situation. It is in this process that the outbursts get aggravated into a chronic problem of law and order. The contextualists hold that those dealing with such situations should get into deeper processes and find historical alternative possibilities of dealing with the situation more through imaginative and creative political action than use of brute force.
The confrontationalist approach, on the contrary, maintains that human beings are basically peace loving and therefore prefer an orderly life. But there are always misconceived causes espoused by the misled and crime-prone individuals and groups whose sole purpose is to disturb the social order as that is the only way they know how to express themselves. Such individuals or groups are not amenable to reason. Since the law is rooted in human reason, such rational ordinary laws cannot deal with explosive situations. They argue that these “distortions” should be put down with an iron hand. This is the dominant political view in India and the Bharatiya Janata Party (BJP) represents this view forcefully and this is one party which keeps on reiterating the need for most repressive laws without even an iota of doubt in the effectiveness of those methods. They dismiss attempts at reasoning out the movements as useless, if not a dangerous exercise. They go one step forward and maintain that contextualists are indirect associates and abettors of violence and disorder. It is this logic that lends support to repressive laws. The supporters make use of any quantum of force and the state agencies endorse any level of arbitrary exercise of power. Every law, however repressive it could be, contains elements of reason and built-in restraint.
No law can ever confer infinite power on the state agencies to straight away extinguish the life of even the worst terrorist. For that could be negation of its basic purpose. However, in the course of encountering these movements or violent expressions, the state agencies in most parts of the world have come not to conform to any legal limitations. The confrontationalists lend the necessary support to such arbitrary actions not sanctioned by the law. The state not willing to see the other side enacts law after law empowering itself with repressive and arbitrary power and also takes a very lenient view of all those actions outside the law that the state agencies indulge in. The extra judicial killings or encounters which have almost become systemic represent such serious perversion in the state behaviour.
There is also a new phenomenon of cross border terrorism. There could be several causes for it. In a globalising world order, the states unable to respond to the internal demands can shift the crisis to the neighbouring countries and generate mass fear to divert the public attention. Once a state succeeds in mobilising the public opinion and shifts “the causes” for internal crisis to external adversaries, it becomes difficult for the people to put pressure on their government for solving the basic problems. There are also several instances where nations are at loggerheads with each other for various historical reasons continuously breeding violence. They under this pretext maintain that violence cannot be dealt by the ordinary municipal laws and enact repressive laws which are used not only against the external enemy but internal dissent. Thus cross border terrorism contributes in a large measure to arbitrary exercise of power against ones own citizens.
The Indian Experience
It is in this backdrop one can look at the laws that have been enacted in India as a part of dealing with an “extraordinary situation”, called terrorism as India is one nation which confronts wide-ranging challenges which have come to assume the so called “terrorist forms”. How these challenges are dealt with and what are the implications for human rights can be a useful exercise. If one looks at the history of legislation on terrorism or disturbance, there was the Preventive Detention Act at the advent of independence followed by the Punjab Security Act 1955, Assam Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur) Special Powers Act, 1958. In the 1960s and 1970s there were two major acts passed in each decade and in the 1980s there were five acts and in the 1990s there were two acts. There are about 20 to 30 repressive acts passed either at the central or the state levels. Of all these four legislations, Armed Forces Special Powers Act, is selected for a critical examination as it has been not only extensively used or misused but has had far-reaching impact on the overall democratic structure and liberties and freedoms of the Indian citizens.
The Armed Forces (Assam and Manipur) Special Powers Act- 1958
This is one of the earliest repressive laws (after Preventive Detention) to be introduced in post-independence India. This is a reflection on several emerging developments and trends in building the nation state, primarily on Indian independence which was certainly a landmark in the evolution of democratic governance as it was a movement that challenged the colonial and imperial forces for their undemocratic and exploitative stranglehold over the subcontinent and challenged the legal and moral basis of their repressive laws like the Rowlat Act. Having fought against such laws, that the rulers in free India should bring a law not qualitatively different from colonial laws in the very first decade after independence is not a promising beginning for democratic India.
This specific law was enacted to deal with the north-eastern region whose process of integration with the Indian state remains an unfinished task. This also shows that problems of territorial and national integration, instead of being solved as a part of the National Freedom Movement, have been left to the wisdom of the post-independent State. That the Indian government had no satisfactory solution to such problems is evident from its responses which lacked political content. North-eastern India has been particularly problematic as certain parts have been claiming autonomy, if not, cessation from the Indian union. As there were rebellious armed assertions, there was the Armed Forces Special Powers Act, 1958 to deal with the problem. The Act states that it is to:
enable certain special powers to be conferred upon the members of the Armed Forces in disturbed areas in the State of Assam and the Union Territory of Manipur.
The Act further states:
if the Governor of Assam or the Chief Commissioner of Manipur is of the opinion that the whole or any part of the State of Assam or the Union Territory of Manipur as the case may be, is in such a disturbed or dangerous condition that the use of Armed Forces in aid of the civil power is necessary, he may, by notification of the official Gazette declare the whole or any part to be disturbed area.
The Act confers the power to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces to:
fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or the order, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary.
It also empowers these officers for “prohibiting the assembly of five or more persons, or carrying of weapons or the things capable of being used as weapons or fire-arms, ammunition or explosive substances”. The Act also gives the power to the armed forces to:
arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.
In addition, the armed forces have the power to enter and search without warrant any premises, to make any arrest, recover any person to be wrongfully restrained or confined. The Act guarantees impunity to the armed forces that no prosecution, writ or other legal proceedings shall be instituted except with the previous sanction of the central government against any person in respect of anything done or purported to be done in exercise of these powers conferred by this Act. The only check that is provided in the Act is that any person arrested and taken into custody under this Act shall be handed over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances, occasioning the arrest.
After almost one and half decades in 1972 the Act was amended not to contain or tame the arbitrary powers but to extend the Act in addition to the states of Assam and Manipur, to Meghalaya, Nagaland and Tripura and the union territories of Arunachal Pradesh and Mizoram and in 1983 the Armed Forces (Punjab and Chandigarh) Special Powers Act was enacted.8 This Act enlarges the scope of the power of armed forces such as “seize any property reasonably suspected to be stolen property” and added an additional provision:
stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognisable offence or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him and may for that purpose use such force as may be necessary to effect such a stoppage, search or seizure as the case may be.
This Act also extends the ambit of search to include “powers to break open locks of any door, almirah, safebox, cupboard, drawer, package or any other thing, if the key is withheld”.
With regard to the impunity, while the earlier Act mentioned protection of persons acting under the Act, this Act adds “protection of persons acting in good faith”.
In 1990 the Armed Forces (Jammu Kashmir) Special Powers Act was enforced in Kashmir. The Act further enlarged the notion of disturbed areas and dangerous conditions so as to include:
activities involving terrorist acts directed towards overawing the government established as by law or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people and further enlarged it by adding activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about secession of a part of the territory of India from the union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India.
After five decades of the Act being in force, there was a massive protest from ordinary people in the north-east and there were once an incident of six women in Manipur walking without robes towards the Raj Bhavan in protest against the arbitrary use of the Act by the armed forces. This troubled the conscience of the nation to an extent that the prime minister promised to review, if not repeal the Act. In fact in one of the interactions between the officers of the armed forces and civil rights activists facilitated by the National Human Rights Commission, the then army chief, Shankar Roy Choudhary, did observe that the armed forces should not be drawn into internal civilian conflicts and also was inclined to critically relook at the Armed Forces Special Powers Act.
The question one has to ask is: why did not the Act and its amendments produce the desired impact? There has been no review on the ineffectiveness or failure of the Act to realise its intended purpose! Nor was there an attempt to critically look at the violation of the rights of innocent people by the state agencies. The armed forces hardly realise that they have been posted to sensitive areas to win over the people and not to defeat them. For the defeated can never identify emotionally with a nation state which treated them as adversaries and not as citizens for a long time. It is sad that Parliament never asked the executive this searching question. In the absence of a critical review, the life of the acts go on getting extended conferring more arbitrary powers and enlarging the territorial jurisdiction of the act. This uncritical and mechanical extension and expansion of powers reach a logical limit leading to public protest by ordinary innocent people. The governments which are not reflective and creative neither retrospect nor reflect on the long-term impact of mechanical approach and end up in a vicious cycle: this cycle is nowhere more evident than the subsequent enactment of repressive laws.