Revisiting the Armed Forces Special Powers Act, 1958
- Part 1 -

Laishram Malem Mangal *

"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world"

-----------Preamble of the UDHR.

Historical Background

15th August (1947) is reminiscent of the joyous moment and celebration of freedom of India from colonial British. 15th August happily belongs to the mainland Indians. While 18th August (1958) decided the fate of racial minorities of the north eastern region. These two contradictory bold letter days will remain struck in golden pages of history each having opposing implications.

On 18th August 1958 the Armed Forces Special Powers Act 1958 (AFSPA) - the most controversial law in post-independence and post-colonial era, was enacted by the Indian parliament.

The Act was passed after discussing for only 3 hours and 4 hours in the Lok Sabha and Rajya Sabha respectively. Mr. G.B. Pant, then Union Home Minister justified the Act stating that it was necessary to contain law and order situation arising out of the Naga uprising in Assam and Manipur.

The then Deputy Speaker of the Lok Sabha, Mr. Hukkam Singh protesting against the law stated "It pains me that we have an occasion in this house to give our assent to a martial law which was forced on us by an ordinance… Why have they (Govt.) smuggled this legislation in this way? It is really a challenge to the concept of democracy and freedom that we have".[1]

Manipur MP L. Achou termed the Act as a black law. MP Mohanty (Dhenakanal) criticized the law for giving blanket powers to the armed forces.

It is worth mentioning that the then Viceroy and Governor General of British India - Lord Linlithgow suppressed the heightening freedom movement of India particularly the Quit India movement - by promulgating the Armed Forces Special Powers Ordinance 1942 (1942 Ordinance).

The AFSPA 1958 is strongly contested as the Indian reincarnation of the 1942 colonial law. A Xerox copy of the 1942 ordinance, AFSPA 1958 bears a more draconian and terrorized version.[2]

Thus, it is crystal clear that AFSPA 1958 is the successor of its 1942 colonial legislation and residue of the British regime. The demoniacal colonial law had to exist in order to sustain colony, the justification of which proves that colony survives.[3]

When the AFSPA was enacted in 1958 it was applied to Assam and Manipur only. By the 1972 Amendment, its application was extended to all the north eastern states viz. Assam, Manipur, Nagaland, Mizoram, Tripura, Meghalaya, Arunachal Pradesh (except Sikkim). Legal experts cannot fix with certainty whether the AFSPA would come under emergency law or preventive detention law; no doubt it is special security legislation.

The Act possesses multiple characteristics making it difficult to assign to a particular category. Whatsoever the nature of the Act, the Indian statute book has a history of incorporating many a law which curtailed basic fundamental freedoms of the individual. Immediately after the inauguration of the constitution, parliament enacted the Preventive Detention Act, 1950 [4] which gave rise to the infamous Gopalan case.[5]

Then was enacted the Maintenance of Internal Security Act, 1980 (MISA) which lasted till 1977. Thereafter, parliament enacted the National Security Act, 1980 (NSA) and still remains the prevailing law on preventive detention. Preventive detention laws do exist in other democracies like USA, UK, Canada, etc.

However, they resort to such laws only in war-time situations unlike the Indian state which had made it a permanent feature of governance in peace time or undeclared de facto emergency[6] in the north-east.

Could it be a by-product of having been a colonial subject under British regime for near 2 centuries which with the slightest doubt suggest that characteristics or ingredients of 'coloniality or repression' have been ingrained into the psyche and bone-marrow of the Indian ruling class? Post-independence AFSPA 1958 and NSA 1980 are concrete manifestations.

From a hypothetical legal premise, if the erstwhile British regime was questioned of its validity in the Indian sub-continent, their justifications whatsoever throughout history remains invalid. Neo-colonialism in post-colonial era must be a crime erga omnes - against everybody, against humanity and peace.[7]

The awakened and politically conscious Indian discontentment and subsequent rebellions compelled the British parliament to liquidate 'British India' from its global imperial map. India was not an exception to the treatment by British as a colonial subject.

Resorts to repressive and colonial measures like the Jallianwallah Bagh massacre resulting from the infamous Rowlatt Act, 1911 and suppression of Quit India movement by the 1942 Ordinance, among others, were colonial necessities.

The Rowlatt Act was used to suppressed political violence and sedition against the British.8 Yet, laws similar to Rowlatt Act outlived British colonial rule in India.[9] The Supreme Court has emphasized over time that the power of detention law (read NSA) being draconian power, it is tolerated in a free society, as a 'necessary evil'.[10]

If preventive detention laws like NSA is termed as draconian what could be termed of AFSPA - which deprives life at mere suspicion. Would Justice J.S. Verma obligedly termed AFSPA as a just, reasonable or non-oppressive law for the peoples of the north-east?[11]

To be continued.....

Authors Notes:
This is a paper presented at the Human Rights Day, 10th December, 2008 organized by the LMS Law College, Imphal on the theme "Human Rights, Law and Society". The topic of my paper is Revisiting the Armed Forces Special Powers Act, 1958.

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* Laishram Malem Mangal is a student at LMS Law College, Imphal and contributes to e-pao.net for the first time. The writer can be contacted at malem(dot)mangal(at)gmail(dot)com
This article was webcasted on July 06th, 2009.

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