AFSPA extension in Assam: Why has the state turned against itself?

One can understand chief minister Sarbananda Sonowal, who has invoked such a provision of law with all its legal and political fall-outs in a situation of fast losing credibility at the political front. Is it intended to contain the snowballing democratic protests from the state’s intellectuals, peasants and educated unemployed youth, which are apparently queering the pitch for the BJP’s one and a half year stint in Assam?

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Photo from The Statesman

An avoidable move?

The chilling effect on freedom of expression and arbitrary acts of counter-insurgency in a zone of “low intensity conflict” can often become a permanent scar, if the Army is called into civil and political conflicts. Low intensity conflict not amounting to “war against the state”, in its broadest and maximal sense, might not be considered a national security threat, as any reading between the lines would beseech such a caution to the powers-that-be. Threats to the nation-state cannot be a consideration by the administration of a provincial state, as such threats would willy-nilly involve the entire security apparatus of the nation.

Precisely these are what afflict the government and bureaucracy in Assam to rule in favour of the extension of the Armed Forces (Special Powers) Act, 1958, over the whole of Assam.

One can understand chief minister Sarbananda Sonowal, who has invoked such a provision of law with all its legal and political fall-outs in a situation of fast losing credibility at the political front. Is it intended to contain the snowballing democratic protests from the state’s intellectuals, peasants and educated unemployed youth, which are apparently queering the pitch for the BJP’s one and a half year stint in Assam?

The situation is further queered by the uncalled for controversy created by naming new colleges and schools after Deen Dayal Upadhaya, an ideological mentor of the ruling party. The total failure of the state administration in providing flood relief, arrest of peasant leader Akhil Gogoi on charges of sedition, rampant corruption involving ruling party allies and members are some of the perceived weakness of the state government.

Issues like the killing of innocent citizens by night vigilante groups in the Barak Valley on the apprehension that armed gangs would attack at night and take away documents that validate inclusion in the National Register of Citizenship is another failure. Rising insecurity among ordinary citizens, sharp religious polarisation and mob lynching compounded with flood, unemployment and growing resentment for policy failures of the regime, has created gross disorder and disturbed public life in Assam. Can the government fight these malaises of economic failure and trust deficit of the people by bringing in the AF (SP) Act?

Intelligence reports about possible protests against what is perceived as a biased NRC, to be published by December and increased chances of radicalisation along religious and ethnic lines constitute threats to national security. For the first time, a state government has imposed the Act, instead of the Centre, prompting many to question the move. By implication, the whole of Assam has been declared a “disturbed area”.

The timing of the Act further raised speculation whether it was intended to muzzle the voices of surrendered members of the United Liberation Front of Assam whose cadres were attacked in a shop in lower Assam’s Nowgong by accomplices of the shop owners. That resulted in massive condemnation of the increased spell of attacks on Assamese people by cliques supported by the ruling dispensation.

It looks like a diversionary tactic at one level — when the government fails, it creates conditions of insecurity and then uses coercive laws to suppress any dissent. At another level, it is more an anticipatory preventive measure. In both cases, a coercive law like the AF (SP) Act, as per the latest Supreme Court ruling by justices Madan B Lokur and Uday in the PIL filed by the Extra-judicial Victims’ Association of Manipur, cannot use excessive force with impunity.

Further, the constitutional principle of “reasonable restriction” applies to any the application of coercive laws like sedition and AF (SP) Act, as “life and liberty of people cannot be deprived without due process established by law”. In many such ways, AF(SP) Act violates fundamental rights of life and liberty, as the apex court pointed out in its latest landmark ruling that “living under the shadow of a gun that can be wielded with impunity is equally unsettling and demoralising” for citizens as well as for the Armed Forces.

One might recall the judicial inquiry report on torture and killing of Manorama Devi in Imphal by the Assam Rifles, which had pointed out that the security forces feel they can act with absolute impunity. The extension of the Act to the whole of Assam, already deeply polarised, would make vulnerable sections face a “demoralising effect” on their democratic engagement with the state. Indeed this also marks a lack of trust between the government and the citizen, which is avoidable and the newly elected government should have restrained itself from applying the controversial act.

From the legal angle, invoking the Act also implies a counter-insurgency measure against “enemy” of the state, as defined in 3(x) of the Army Act. When the peace processes are gaining momentum and dialogue need to be advanced with due diligence, a greater emphasis on an apparent counterinsurgency measure ends up creating an atmosphere of suspicion and animosity between the forces and nonstate actors. In a participatory democracy like ours, the AF (SP) Act runs the risk of creating larger rifts and increased intransigence among various sections of people. The recent incident of a pro-talks former insurgent threatening to rejoin insurgency paints a larger picture of an unresolved confrontation brewing within the apparent peaceful situation.

The pre-eminent logic that guides the re-imposition of the Act is the belief in the security paradigm that the Central and state government subscribe to. In case of Assam, the government has effectively been using one section of insurgents against another, thereby creating an ethnic divide over limited rights of autonomy. Could territorial control and construction of politically expedient social and cultural boundaries throttle organised dissent against a ruling dispensation? This also creates a condition for legitimising acts of violation of human rights by the security forces, which acts in tandem with political exigencies of wielding new social divisions as a necessary infrastructure of state power.

The recent nine-member unanimous Supreme Court judgment on the right to privacy made right to dissent a fundamental right under the right to life as enshrined in Article 19 of the Constitution. The Supreme Court decision on 124A of the IPC, imposing sedition charges indiscriminately on dissenters laid down the criterion that unless the so-called “seditious act” leads to incitement of violence and public disorder, an FIR or arrest can’t be done. Failure on the part of the state agencies to take note of these finer principles of law, creates a condition of mass insecurity, as their democratic rights are curbed without much reason.

Noted American scholar Daniel H Deudney’s landmark work on the state security doctrine argued that security concerns should not reflect the ideological concerns of the state and that the government should not be “navigating through the rear-view mirror”. This would mean that the state does not take a view of the future based on some past instances as such a broad view of security engulfs the state into widening conflicts. The purpose of the Act is limited to fighting counterinsurgency and hence its use in the present context may not augur well for citizens.

The writer is an associate professor of philosophy at the North Eastern Hill University, Shillong Vice Chairperson of Barak Human Rights Protection Committee (BHRPC)

The piece was first published in The Statesman on September 18, 2017 and it is re-published here for wider dissemination.

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