Dr Asangba Tzudir
The “state of necessity” has once again necessitated the further extension of AFSPA for another 6 months, and various Naga organizations have called for repealing AFSPA. In the context of the Naga political issue, the Global Naga Forum has also reiterated that the “removal of AFSPA is a necessary precursor to a peaceful, honourable, and just resolution of the Indo-Naga political issue. The extension of the Disturbed Area Act is a contradiction to the ongoing peace process. It is simply a farce to talk about peace or political settlement through the application of such a militarised act. The peace process therefore is already conditioned.
While AFSPA is been tagged as a “legal fiction”, a pertinent question still remains – what is the condition/s for an area/s to be declared as “disturbed”? “If, in relation to any state or Union territory to which this act extends, the Governor of the State or the Administrator of that Union territory or the Central Government, in either case, if of the opinion that the whole or any part of such state of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of Armed Forces in aid of the Civil power is necessary.” The contentious nature of an area to be declared as disturbed is solely based on “opinion” as the Act suggests, and thereby the promulgation of an area as “disturbed” is simply based on “opinion” and not on the merit of the fact. It has become a normalised condition today.
What is really appalling is the understanding of law on which acts like AFSPA and Disturbed Area Act is built and legitimated. Further imposition of the disturbed area for AFSPA to be in place only attests how certain laws in the name of exceptions 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’ 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.
While the States are supposed to promote constitutional and democratic values, the reality presents a stark contrast between theory and practice in a constitutional democracy where the sovereign power of the State can claim constitutional sanction to perpetrate, indefinitely, a regime that violates human rights. Such envisioning mode of state action seriously undermines constitutional values, human dignity, fraternity, nation’s unity and integrity. It also presses upon an underlying ‘exception’ which accounts for the existence of a realm of human life that is not subjected to law and thereby becomes a mechanism to ‘capture’ life within the sovereign control.
The Supreme Court judgment that the Army cannot use ‘excessive force’ and that there is no concept of absolute immunity from trial by a criminal court if any Army Officer has committed an offence may come as a blow. However, such judgment should provide the catalytic impetus to push for repealing AFSPA as a ‘necessary condition’ to bring an end to impunity and to restore the peace that’s so long been ‘disturbed.’
One is made to wonder how a civilized nation can still legitimate such controversial laws in the name of ‘exception’ notwithstanding the aberrant human condition. Considering the very nature of the law and its associated lawlessness, it is not that Nagaland is disturbed, rather AFSPA that is disturbed.
(Dr Asangba Tzudir writes a weekly guest editorial for The Morung Express. Comments can be mailed to asangtz@gmail.com)
