Yes, ‘n’ how many times can a man turn his head, pretending he just doesn’t see? – Bob Dylan
The right to life forms the basis for all other rights to derive meaning, which is foundational for humanity to have a quality of life with dignity, respect and equity. This also means that no one, including the Government, has the authority to take your life. Rather the Government must take appropriate and adequate measures to protect, safeguard, and promote life to the extent that even an individual cannot possess the right to take away his or her own life.
Article 21 of the Indian Constitution says, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Therefore, this article secures two rights: Right to Life and Right to Personal Liberty, which cannot be suspended even in times of emergency. In the Maneka Gandhi versus the Union of India, 1978, case the Supreme Court ruled that the right to life and personal liberty of a person can be deprived by law on the condition that the procedure prescribed by that law is reasonable, fair, and just. It further clarified that the right to life does not merely mean animal existence. It held that all those aspects of life which go to make a human life meaningful, complete, and worth living will be included therein. Article 21 enshrines the right to a dignified life, and a number of rights are included within its ambit for the realization of a dignified life. The Supreme Court has described Article 21 as the “heart of fundamental rights.”
Despite these safeguards, the experiences of the Nagas and the North East has shown that the Armed Forces Special Powers Act, (AFSPA) 1958, which provides a wide range of powers including the power to “fire even to the extent of causing death” undermines the right to life, and the very tenets of human rights. By providing impunity from any legal proceeding for acts perpetrated under this Act, it has institutionalized human rights violations which further strengthen structural violence against Naga people.
According to the People’s Union for Democratic Rights (PUDR), the AFSPA “had a drastic effect on the daily life of the average citizen,” and created “a state of de facto abrogation of fundamental rights including the all important right to life,” and “liberty of the citizens.”
The Naga Peoples’ Movement for Human Rights (NPMHR), PUDR, Delhi, Human Rights Forum, Manipur among others filed writ petitions in the Supreme Court between 1980 and 1982 challenging the constitutional validity of AFSPA on the grounds of being violative of the fundamental rights to life, liberty, equality, freedom of speech and expression, assemble peaceably, move freely, practice any profession, protection against arbitrary arrest, and freedom of religion enshrined in Articles 21, 14, 19, 22, and 25 respectively of the Constitution. After 15 long years the Supreme Court finally heard the case in August 1997, and delivered the judgement in November where it upheld the Act and all its provisions as constitutional barring some changes.
Following the Supreme Court’s judgement, the PUDR published An Illusion of Justice: Supreme Court Judgement on the Armed Forces (Special Powers) Act. And in its critique, PUDR points out that “the hearing of the case starkly brought forth the basic difference of approach between those pleading for the striking down of this legislation and that adopted by the court.” It added that, “the court refused to go into the actual working of the Act and deemed it irrelevant for purposes of deciding its constitutionality. Proceeding on abstract constitutional principles divorced from life, about the permissible degree of infraction of the fundamental rights and presumption of bonafide exercise of power conferred, the court upheld the provisions of the Act with few caveats.” PUDR, however, argues that “the issue of constitutionality of the Act is intrinsically linked with the actual working of the Act. For, if in total contradiction to reality, it is to be presumed that the power conferred is exercised with the utmost regard for human rights, as the court has done, then the most draconian of laws can be upheld.”
When AFSPA was introduced by the Indian Parliament in 1958, as a response to the Naga national movement, the purpose of the Act, it said was to curb Naga ‘hostiles.’ Since then, it has only led to more ‘hostilities’ in the sub-continent, further complicating an already difficult and complex State-People relationship. The AFSPA has not only failed in its objective to curb “hostility,” but has undermined the Indian State’s democratic character, further demonstrating her reliance on the overarching use of force. This approach has been an effective tool used to generate deep fear and distrust, further deepening the sense of alienation and isolation between People and the State.
Marcus Franke quotes Roy Burman’s opinion that martial law has failed to combat insurgency and should be repealed, but says the Indian State refuses to do so due to their “ignorance, arrogance and the willingness to act irresponsibly out of political expediency.”
The experiences of living under the AFSPA reveal disrespect for human life, lack of critical imagination and depend on the assumption that the hammer is the only means available to address disagreements. Sadly, when the only tool is the hammer, everything else becomes the nail. From the perspective of the right to life, AFSPA cannot be considered to be a “reasonable, fair and just” legislation. In this regard, not only is AFSPA a piece of antiquated colonial legislation, but it is also anti-peace and anti-life.
The senseless killing of innocent civilians on December 4 in Oting further reaffirms the need for strong collective political will to repeal AFSPA. Strengthening the growth of India’s democratic values and principles can only take place when the AFSPA is systematically removed along with the culture of impunity that supports it.
