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Martial Law in India: the Deployment of Military Under the Armed Forces Special Powers Act, 1958

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\\jciprod01\productn\S\SWT\24-1\SWT104.txt unknown Seq: 1 12-MAR-18 7:17 MARTIAL LAW IN INDIA: THE DEPLOYMENT OF MILITARY UNDER THE ARMED FORCES SPECIAL POWERS ACT, 1958 Khagesh Gautam* ABSTRACT: The question for inquiry in this article is whether the key provi- sions of the Armed Forces Special Powers Act, 1958 (“AFSPA”), an Indian Parliamentary legislation, amount to a de facto proclamation of Martial Law in India. The constitutional validity of AFSPA has been upheld by a unanimous constitution bench of five judges of the Supreme Court of India. But the AFSPA has not yet been examined from the Martial Law perspective. In order to engage in this inquiry, this article briefly traces the development of the idea of Martial Law and argues that military acting independent of the control of civilian authorities is the most important feature of Martial Law. This article also argues that in order for a geographical area to be under Martial Law, there is no need to have a formal promulgation of the same. In other words, an area can be under Martial Law without formally be- ing so declared. They key feature to note is whether the military is acting independent of the civilian control or not. The AFSPA is then analyzed from this angle and it is concluded that when the AFSPA becomes applicable to any area in India, that area is under de facto Martial Law. The question of whether or not the Indian Constitution impliedly or expressly authorizes the proclamation of Martial Law is * Stone Scholar, LL.M. (Columbia); LL.B. (Delhi), Associate Professor of Law & Assis- tant Dean (Research and Publications); Assistant Director, Center on Public Law and Jurispru- dence, Assistant Director, Mooting and Advocacy Program, Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. The author can be reached at [email protected]. The author is grateful to Alexander Fischer, Sarbani Sen, Satya Prateek, Aditya Swarup and other faculty members and students of the Center on Public Law and Jurisprudence for their helpful comments and criticisms, and to Raunaq Jaiswal for excellent research assistance. All the errors remain that of the author. 117 \\jciprod01\productn\S\SWT\24-1\SWT104.txt unknown Seq: 2 12-MAR-18 7:17 118 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW [Vol. 24 a natural follow-up question that is left for future examination. How- ever, the Supreme Court’s decision upholding the constitutional va- lidity of the AFSPA is criticized on the ground that the Court should have recognized and called the AFSPA as what it truly is–a legisla- tion authorizing a de facto proclamation of Martial Law in India. I. INTRODUCTION .......................................... 118 R II. MARTIAL LAW .......................................... 120 R A. Inability of Civilian Authorities and Courts to Function Effectively–A Precondition for Martial Law................................................. 120 R B. Military Acting Independent of Civilian Authorities and Courts–A Consequence of Martial Law......... 126 R C. Military Acting-in-Aid of Civilian Authority v. Martial Law ........................................ 128 R III. DEPLOYMENT OF MILITARY UNDER THE ARMED FORCES SPECIAL POWERS ACT, 1958 ................... 132 R A. The Armed Forces Special Powers Act, 1958 ........ 132 R B. The Constitutionality of the Armed Forces Special Powers Act, 1958 ................................... 134 R C. De-Facto Proclamation of Martial Law under the AFSPA1 ............................................ 137 R D. The Facts Behind the De-Facto Proclamation of Martial Law under the AFSPA ..................... 140 R IV. CONCLUSION ............................................ 144 R I. INTRODUCTION Use of the military acting independent of local civilian authorities and courts for domestic law enforcement in a country that is commit- ted to democratic values and the ‘rule of law’ raises formidable ideo- logical challenges.1 Most pressing of these challenges arise in the context of the country’s military.2 The question for inquiry in this pa- per is whether the key provisions of the Armed Forces Special Powers Act, 1958 (“AFSPA”), an Indian Parliamentary legislation, amount to a de facto proclamation of Martial Law in India. The constitutional validity of the AFSPA has been upheld by a unanimous constitutional bench of five judges of the Supreme Court of India.3 But the AFSPA 1. Colm Campbell & Ita Connolly, A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew, 30 J.L. & SOC’Y 341, 342-43 (2003). 2. See id. at 346. 3. Naga People’s Movement of Human Rights v. Union of India, (1998) 85 AIR 431 (India). \\jciprod01\productn\S\SWT\24-1\SWT104.txt unknown Seq: 3 12-MAR-18 7:17 2018] MARTIAL LAW IN INDIA 119 has not yet been examined from the Martial Law perspective.4 In or- der to engage in this inquiry, this article briefly traces the develop- ment of the idea of Martial Law and argues that the military acting independent of the control of civilian authorities is the most important feature of Martial Law. This article also argues that in order for a geographical area to be under Martial Law, there is no need to have a formal promulgation of the same. In other words, an area can be under Martial Law without formally being so declared. The key fea- ture to note is whether the military is acting independent of civilian control. The AFSPA is then analyzed from this angle and it is con- cluded that when the AFSPA becomes applicable to any area in India, that area is under de facto Martial Law. The question of whether or not the Indian Constitution impliedly or expressly authorizes the proc- lamation of Martial Law, which is the natural follow-up question that arises from this inquiry, is left for future examination. However, the Supreme Court’s decision upholding the constitutional validity of the AFSPA is criticized on the ground that the Court should have recog- nized the AFSPA for what it truly is–a legislation authorizing a de facto proclamation of Martial Law in India. Part II argues that the most important feature of Martial Law is the military acting independent of civilian authority and control. When a geographical area is put under Martial Law, the military is called out and the military commander is under no legal obligation to take his orders from the civilian authority of the area. The military commander might be required to cooperate with the civilian authori- ties in the area, but he is allowed to make his own decisions. To that extent, the military acting independent of any civilian supervision clearly distinguishes an area under Martial Law from the military merely acting as an aid to civilian authority (where the military acts under the supervision and command of the civilian authority). Having identified this key feature of Martial Law in Part II, Part III then ap- plies this rule to the AFSPA. The Indian Parliament enacted the the AFSPA and, as previously mentioned, a constitutional bench of five judges of the Supreme Court of India unanimously upheld its constitu- tional validity.5 However, the AFSPA has never been examined, ei- ther academically or judicially, from the Martial Law angle. Part III discusses the key provisions of the AFSPA and the Supreme Court 4. Use of the AFSPA has been described as ‘martial law regime’ by only one commentator and that too was done in passing and without any detailed legal analysis that the subject de- serves. See Hiren Gohain, Post-Colonia Trauma?, 41 ECON. & POL. WKLY. 4537, 4537 (2006). 5. Naga People, (1998) 85 AIR at 431. \\jciprod01\productn\S\SWT\24-1\SWT104.txt unknown Seq: 4 12-MAR-18 7:17 120 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW [Vol. 24 decision that upheld the constitutionality of the AFSPA. After this, it applies the rule set out in Part II to the AFSPA and concludes that the ‘disturbed area notification’6 issued under the AFSPA that authorizes the calling out of the military to the disturbed area so notified is a de facto proclamation of Martial Law. Part IV concludes by briefly re- stating the key arguments made in the article. This paper concludes that the ‘disturbed area notification’ under the AFSPA amounts to a de facto proclamation of Martial Law and the Supreme Court should have recognized it and called it for what it truly was. Again, whether or not the Indian Constitution expressly or impliedly gives the author- ity to proclaim Martial Law is a natural follow-up question that arises from this discussion. This Paper leaves that inquiry for further exami- nation in the future. II. MARTIAL LAW A. Inability of Civilian Authorities and Courts to Function Effectively–A Precondition for Martial Law It has been understood for a long time now that Martial Law and Military Law are not the same things.7 Expounding the nature of Martial Law, Sir Matthew Hale in 17138 observed that Martial Law, owing to the circumstances that make it necessary, “in Truth and Re- ality [is] not Law, but something indulged rather than allowed as Law.”9 Sir Matthew also observed that the exercise of Martial Law, 6. Armed Forces (Special Powers) Act, No. 28 of 1958, INDIA CODE, § 3, http://in- diacode.nic.in (“Power to declare areas to be disturbed areas. If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or Administrator of that Union Territory, as the case may be, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Terri- tory to be a disturbed area.”), amended by Armed Forces (Assam Manipur) Special Powers (Amendment) Act, No.
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