Dr Naorem Sanajaoba, Professor and Dean of Law Faculty, Gauhati University, Asom, India
Extrajudicial executions and other naked human rights violations have been a fact of life in the northeastern states of India for the last five decades. The state has rationalized these abuses through enactment and enforcement of laws like the Armed Forces (Special Powers) Act of 1958 (AFSPA).
The AFSPA¡¦s predecessor, the Armed Forces (Special Powers) Ordinance of 1942, was enacted to neutralize the quit-India movement. It was used exclusively to further the objectives of colonialism. The 1942 ordinance, however, in fact expedited and facilitated the passage of the Indian Independence Act in 1947. The 1958 law inherits the same powerful political potency. This can be seen in the fact that the AFSPA was introduced in 1958 to quell an ethnic uprising in the Naga Hills of Assam. Yet over four decades it has created a chain-reaction, starting from the small chain of hills into a conflagration over all of the seven northeastern states.
An unproclaimed emergency
Parliament did not fully apply its mind to the passage of the statute in 1958. The law, which took on emergency status, was enacted without formal declaration of emergency, as Home Minister GB Pant saw it passed as a short term measure, after only three hours of debate. When the parliament briefly discussed the purpose of invoking the law in Manipur and the Naga Hills, members of parliament from those areas resisted its passage.
Like addicts dependent on a drug, the state and security forces have become so conditioned by their dependency on this unproclaimed emergency law that they feel deeply vulnerable without it. So the act goes on and on in perpetuity. Similarly, the perceptions of decision makers about the situation in the northeast have been distorted and rationalised by their addiction into the following:
1. The security forces are fighting a low-intensity war against ¡§anti-national elements¡¨, as they are known to the army.
2. The security forces have assumed powers for internal security management on par with defence against external aggression to aid the civil authorities.
3. The security forces use military power to quick-fix the fault lines left by our colonial history.
4. The security forces need the AFSPA and other draconian laws in order to maintain public order.
5. The security forces should not be dragged into allegations of human rights violations as they have their own court martial system.
6. The numbers of security forces deployed are not excessive, although they constitute a sizeable part of the third-largest army in the world against a few hundred politically-motivated secessionists.
7. Human rights violations are not atrocities; they are a modest inconvenience to be borne by the civilian population, which are necessary to keep India intact.
In fact, these reasons are much the same as the arguments advanced when the 1942 ordinance was enacted in order to keep the British Empire intact. The irony lies in the use of the same justifications to re-colonize after the end of colonialism. Just as the earlier law was used to keep a colony in tow, the latter one does nothing other than to show that colonialism has survived in India even after the withdrawal of the British in 1947.
The problems of the northeast have been misconceived as ¡§law and order¡¨ problems when in fact they are a consequence of unresolved political questions emanating from the time of independence. Manipur and Tripura were annexed to India only some two years after independence was proclaimed, while Assam became a part of British India not by choice but as a result of the Treaty of Yandaboo signed between the British and Ava kingdom in 1826. Accords between nationalist groups and the government during the last five decades have been highly restrictive, excluding any role for the higher judiciary, human rights commissions or executive agencies, even the army. As a result they have yielded little: dialogue since 1997 with one of the secessionist outfits in Nagaland has brought no result after nine years.
Human rights obligations ignored
The government¡¦s obligation to abide by the International Bill of Rights arises out of constitutional requirements, customary international law, India¡¦s common law background, state practices and, above all, the union government¡¦s signature and ratification of the two key international covenants in 1979. These can be identified as follows.
1. Articles 253, 51, 246 and schedule VII list I items 10-15, among others, of the Constitution of India.
2. Fundamental rights under chapter III of the constitution, which can no longer be suspended even during a situation of emergency, following the 44th amendment.
3. Article 21, compounded with articles 14 and 19 of the constitution, which have been placed as a special class of mini-code, especially after the construction of the ¡¥due process of law¡¦ meaning the ¡¥procedure duly established by law¡¦.
4. The rule of law, democracy and judicial review are basic features of the constitution, unlike peripheral and unsustainable special laws, which do not conform to the basic tenets of the rule of law.
5. The Supreme Court of India¡¦s endorsement of the human rights covenants of the United Nations in the process of evolving ¡¥human rights jurisprudence¡¦ in several landmark public interest litigation cases, and by incorporation as part of particular fundamental rights as in PUCL v. Union of India (1977; 2 JT 3/1/1), among others.
6. State practices since India¡¦s becoming a member of the United Nations in 1945, two years before independence.
7. General and customary international law as followed by the comity of nations, of which India is an inseparable part.
As a party to the International Covenant on Civil and Political Rights, the government of India is required to report periodically to the UN Human Rights Committee. It has so far submitted three reports. The fourth report was due to be submitted in 2001, yet up to now it has not been. This delay reflects its utter neglect of its obligations under the covenant. Notwithstanding, the committee as far back as 1991 found section 4 of the AFSPA and other sections too to be incompatible with articles 6, 9 and 14 of the covenant.
Beyond the above, international humanitarian law stipulates universal standards which even in the event of violations do not lose their legitimacy.
1. The Geneva Conventions of 1949, alongside the domestic Geneva Convention Act 1960, render all international humanitarian laws applicable to India and its forces.
2. The protection of life, liberty and property of civilians and hors de combat is non-derogable under common article 3 of the Conventions and the two Protocols. The International Court of Justice also endorsed these rights as jus cogens under customary international law (Nicaragua v. USA, 1986).
3. Non-combatants, injured civilians and wounded or captured insurgents in the northeast are fully protected under domestic law (see Martens clause). The Supreme Court has laid down guidelines on the same (NPMHR v. Union of India, 27 November 1997, paras. 56-58).
4. Insurgents and national liberation movements have also been admitted into international humanitarian law, especially since the decolonization movements of the 1960s. They too are bound by the same standards.
The maintenance of public order and tranquility is within the ambit of the Criminal Procedure Code, section 129 of which provides for the dispersal of an assembly by the use of civil force, and section 130 of which for the use of armed forces. This law is adequate to mobilize armed forces where required to restore order. The AFSPA is an additional, highly repressive feature of military control of the northeast.
The Supreme Court should see the AFSPA be struck down as it is incompatible with both international human rights and humanitarian laws and the domestic provisions that follow from these. However, the Supreme Court instead upheld the statute on 27 November 1997 and only by overlooking the gross human rights violations that have occurred under its provisions since 1958, India¡¦s obligations under the Geneva Conventions and International Bill of Rights, and the basic fact that the Constitution does not envisage long-term deployment of the armed forces in civilian areas.
The 1997 judgment failed to refute criticism that the powers exercised under the AFSPA violate the constitution and international laws to which India is bound. It failed to clarify as to how the provisions of the law that allow for security forces to fire upon persons and cause death on the order of even a non-commissioned officer with the slightest suspicion of an offence do not amount to the legalisation of extrajudicial execution.
In the 60-page judgment, the constitutional bench, headed by the Chief Justice, J S Verma, observed that the parliament could enact the impugned statute through the power conferred under article 248 read with list 1, entry 2, entry 97 and entry 2A, inserted after the 42nd Constitutional amendment. The verdict demonstrates an extreme technical formalism which is at the same time of the crudest positivist kind, totally devoid of the notions of public justice that are now supposed to be part of our civilization.
No civilized jurisprudence would justify this permission given to the security forces to kill citizens. The Supreme Court has thus far failed in its duty to the people of the northeast. In this it also failed to consider the recommendation of the National Human Rights Commission of the year earlier that the law be repealed; likewise, the government has itself failed to comply with this recommendation. In this, the commission has been joined by numerous other domestic and international human rights groups, which have denounced and called for the withdrawal of the law, or at least introduce minimum safeguards.
Procedure established by law & gross injustice
Article 21 of the Constitution of India states that, ¡§No person shall be deprived of his life or personal liberty except according to procedure established by law.¡¨ This provision is intrinsically not an enabling law but a disabling law. It cannot and should not be construed so as to mean that one¡¦s life should be taken away, by the state simply enacting a new law. A full bench of the Supreme Court should therefore review the 1997 judgment.
The sharp difference between an enabling law and disabling law can be best understood by looking at how ¡¥procedure established by law¡¦ has been construed as one of the easiest methods to commit gross injustice, and even genocide. The attempted extermination of the Jews by the Third Reich was performed by observing constitutionality and a legal procedure, including the Nuremberg laws of 1936. The path for later laws and regulations was laid open by the Emergency Presidential Decree of 1933, under article 48 of the then-constitution. A subsequent law of the same year established a special court for trial of cases of ¡§insidious attacks against the government¡¨.
Like the Third Reich, the Indian parliament acted intra vires the constitution by opening the way for killing through ¡¥procedure established by law¡¦. However, the Supreme Court is usually prompt to strike down statutes or executive actions that are contrary to the constitution, either suo moto or in the normal course of hearings. Somehow it did take such a strong interest in writ petition nos. 5328 of 1980 and 550, 9229 and 9230 of 1982, among seven submitted to the court which challenged the constitutionality of the statute: it only decided upon them, without the sought-after result, in 1997.
So how should ¡¥procedure established by law¡¦ under article 21of the Constitution of India be understood? Justice Fazal (in the minority, but saner than the majority) in Gopalan v. State of Madras (1950 SCR, p. 180) stated that the word ¡¥established¡¦ suggests ¡§certain principles of justice which inhere in every civilized system of law¡¨; the absence of ¡¥due process¡¦ in article 21 still cannot lead to arbitrary use of procedure. The majority judgment in Menaka Gandhi v. Union of India (AIR 1978, SC 597, p. 622) made it amply clear that whatever procedure is prescribed by statute it ¡§cannot be arbitrary, unfair or unreasonable¡¨. So procedural ¡¥due process¡¦ has been constructed out of that upon which article 21 is silent.
By a creative interpretation of article 21, Justice PN Bhagwati enlarged the sweep of the procedure. In his words:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Art. 14 like and omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be ¡¥right and just and fair¡¦ and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art, 21 would not be satisfied.
The meaning of the right to life under article 21 has been progressively and more affirmatively interpreted by the Supreme Court in subsequent public interest cases. ¡¥Reasonableness¡¦ has been widened to the extent of saving the life from arbitrary deprivation, and statutes forestall the slightest tinge of arbitrariness even in the common sense.
Above all, human rights jurisprudence to which all state agencies subscribe by virtue of the International Bill of Rights and jus cogens unequivocally censures extrajudicial executions and other such brutalities. Nonetheless, the Supreme Court of India has overlooked the reasonableness aspect of the statute and wantonly upheld the AFSPA. It is time for a review of its decision.
The Armed Forces (Special Powers) Act of 1958 violates vital provisions of international covenants, the Constitution of India and the principles established under the rule of law by centuries of jurisprudence. It ought to be removed from the statute book once and for all. The deep political and national questions that characterize the turmoil in the northeast, Manipur in particular, deserve equal political and national attention. In the meantime, global human rights standards should not be compromised on one pretext or another: there is no room for abdication of state responsibility for what is happening in the northeast.
