By Arushi Garg

The Centre for Legal Philosophy and Justice Education at the NALSAR University of Law, conducted a discussion on the operationalisation of Emergency powers in India on 20th July, 2011. This discussion was conducted in the light of the Nandini Sundar decision, and was contrasted with the Naga Movement case (or the AFSPA case) that upheld the constitutionality of the Armed Forces (Special Powers) Act, 1954 (AFSPA). The discussion was moderated by Professor Amita Dhanda. The discussion commenced with a summary of both the judgments, and a brief analysis by LLM students from the University.

Much has been written and said about the decision on this blog and elsewhere. The link between military power and the Constitution has also been explored here. But a few points struck me as original, especially those that sought to juxtapose the two decisions.

The focus of the discussion was an iteration of the argument that was made (albeit rejected) in the AFSPA case. The legislative competence to regulate matters concerning public order  lies solely with the States. The Centre has attempted to usurp this power under the pretext of Article 355. It is essential to realize that Article 355 lies in a Chapter dealing with the Emergency powers of the Centre. What the Court in essence upheld in the AFSPA case was the invocation of Emergency powers, but without any of the constraints that have been provided in that Chapter, thus committing a fraud on the Constitution. While Entry 2A of List I of the Seventh Schedule allows for deploying central forced to “aid” the State, the flaw in AFSPA lies in the fact that  the State has not been given the power to refuse this aid—which makes the AFSPA a law imposed on the people of a State without involving or consulting them. In this sense the AFSPA is a law that seeks to govern without the consent of the governed.

What came out in many passionate responses was also the active and passive stereotyping of people who hail from the North-East as “the other.” It was disturbing to hear about how culturally and historically rich regions of the country have hardly been touched in most school curricula. While this educational bias is hard enough to deal with, it was worse still to hear about horror stories of prejudicial letters written by Vallabhai Patel to Nehru as far back as 1950, talking about how “The contact of these areas with us is by no means close and intimate. The people inhabiting these portions have no established loyalty or devotion to India.” This led to the suggestion of the possibility that the kind of Emergency provisions in operation were easier to uphold as constitutional in the AFSPA case because the areas in which they are being implemented are not “mainland India.”

But the key difference in the two cases lies in the fact that in Nandini Sundar the State was shirking its duty to protect the people by trying to outsource its obligations. The security of the people is the responsibility of the State, not some State-backed civilian militia and it is this abdication of responsibility that the Supreme Court refuses to condone.

So in both cases we see patently unconstitutional policies being challenged. In the AFSPA case however, the judges seem to be aware of the massive scope of abuse and choose to deliberately restrain themselves from striking the AFSPA down on that count through a medley of references to affidavits and directions. In Nandini Sunder, even when the Chhattisgarh government offers affidavits, the Supreme Court recognises their meaninglessness and insincerity for what it is.

The discussion also veered into the domain of what possible solutions could be implemented in the troubled AFSPA regions of the country. The problem there is in large part due to the deployment of the Army vis-a-vis the police force. The Army is trained to kill, the police is trained to control disorder. The institutional training of the Army goes to the use of force against enemies, not the citizens of their own country. It is unlikely that a solution that has failed continually for about sixty years will succeed anytime soon. Sadly, the permanence of it seems to have been assumed–no attempts have been made to even try and train the police between then and now.

Ultimately, however, it remains that the AFSPA is as much an attempt at legitimising arbitrariness as the deployment of the SPOs in Chhattisgarh was. As long as it continues, the disaffection of the people will remain a reality we cannot ignore.

(The writer is a student at NALSAR University of Law, Hyderabad)