A Paradigmatic Exception
Dr Asangba Tzüdir
For over half a century, precisely 58 years, India’s North East has witnessed and still continues to witness the harsh realities of a hugely debated Act that seek to restrict, suspend, deny the civil liberty of the individual citizens, or even ‘shut down’ on mere suspicion.
The contentious AFSPA contravenes the spirit and principles of democracy that is central to the individual’s life, dignity, civil liberty and thereby peace. And very undemocratically, an act that came to be applied as a temporal measure has been in place for over fifty years and thereby transformed into a permanent ‘state of being’. Its prolonged imposition has rather brought in a state of lawlessness rather than a state of law.
Initiated through a ‘state of necessity’ as an exceptional paradigm, the GoI, in outright ‘disrespect’ to the ongoing peace process, has further extended the contentious ‘Disturbed Area’ to the whole state of Nagaland for a period of six months with effect from June 30, 2016 in exercise of the powers conferred by section 3 of the Armed Forces Special Powers Act 1958. Following which, the Naga civil societies have shown their resentment questioning the sincerity of the GoI in extending the Disturbed Area Act and terming it as a contradiction considering the ongoing peace process. It is simply a farce to talk about peace through the act of militarisation.
What is really appalling is the understanding of law on which acts like AFSPA and DAA is built and legitimated. Further imposition of the disturbed area for AFSPA to be in place only speaks volumes of how certain laws in the name of exception are conceptualised that only creates a state of ‘lawlessness’. What is the status of such a law that only creates lawlessness rather than a ‘state of law.’ It is just another ‘legal fiction.’ It is such legal fiction that creates a ‘state of necessity’ which promulgates an entire area as ‘disturbed.’ In German theory the ‘state of necessity’ is commonly known as “Ausnahmezustand” which is not a ‘state of law’ but a space without law or a ‘state of lawlessness’ where ‘necessity’ produces ‘extraordinary’ unlawful acts.
In the guise of aiding civil power, it rather takes away the rights and liberties of the citizens depressingly attested by the impunity of AFSPA which is a living testimony that is legitimated through an unlawful hand of the ‘sovereign’ and thereby killing within AFSPA has no legal implication or bearing.
Today, human rights practice has become so axiomatic that it is undoubtedly a rhetorically inflated claim regarding its presence considering the gross human rights violations through inhuman acts like AFSPA that contravenes with the very spirit and ethos of Human Rights. The changing democratic and legal fabric of the society we live in only dispiritingly attests the vulnerability of humans.
India as a democratic country is supposed to promote constitutional and democratic values, but the reality presents a stark contrast wherein the sovereign power of the State sanctions to perpetrate, indefinitely, a regime that violates human rights. It presses upon an underlying ‘exception’ which places human life within a realm that is not subjected to law and human security is under constant threat.
Nagas do not see themselves as living in a ‘disturbed’ or ‘dangerous’ land but Acts like AFSPA and DAA created through a paradigmatic exception is the one that is rather disturbing as well as dangerous. Within its underlying reality, it has also created a fear psychosis in the minds of the people through their act of militarisation and its associated implications.
If India is to reclaim its democratic ethos then it should begin by repealing AFSPA. Time is prudent for the Indian policy makers to re-examine the promulgation of Nagaland as ‘disturbed’ and ‘dangerous’ through a legal fiction called AFSPA. For above the ‘power of the sovereign’, there is humanity.
(Dr. Asangba Tzüdir is Editor with Heritage Publishing House. He writes a weekly guest editorial for the Morung Express. Comments can be mailed to asangtz@gmail.com)
