The draconian Armed Forces (Special Powers) Act, 1958 which allows the military to kill or maim anybody without repercussions has been withdrawn in twenty-three, seven, and six districts of Assam, Nagaland, and Manipur respectively. The military has often been accused of misusing the immunity granted to it under this Act to kill innocent civilians whose ethnicity, culture, and language are markedly different from the rest of India.
In just six sections, (the seventh section has been repealed), this law deifies the armed forces, conferring upon them the power of life and death over a population of 30 million or close to 220 ethnic groups. Like the equally draconian Unlawful Activities (Prevention) Act, 1967, which is itself unlawful, the AFSPA should be amended or repealed. The difference between these two laws is that UAPA enumerates terrorist organisations which are active in India and goes into minute details in the three schedules whereas the AFSPA is generalised without schedules. Both the AFSPA and the UAPA highlight the fact that law and justice may sometimes be antithetical.
In December 2021, the death of 15 tribals, six of them coal miners “mistaken” for extremists and a soldier over 24 hours of rioting also threatened to bring an ignominious end to the 24-year-old Naga peace process besides undoing the military-civilian ties built over the last two decades.
Amit Shah, despite the ignominy heaped upon him by the Opposition leaders, has taken the initiative to resolve the imbroglio prevailing in the north-east. He has worked according to a three-fold plan of ending all disputes, ushering in economic progress, and taking the region’s contribution to GDP back to its pre-independence levels. This is why the agreement signed in the presence of Amit Shah between the chief ministers of Assam and Meghalaya to resolve their 50-year-old boundary dispute appears to be a watershed because the AFSPA was withdrawn in some districts just two days after this accord.
What is equally significant is the jump in the Lok Sabha’s productivity during its monsoon session last year with 18 bills being passed with each of them being discussed for an average of just 34 minutes, raising questions as to whether we really are the world’s largest democracy or a flawed democracy as Democracy Index published by the Economic Intelligence Unit has alleged. The emerging trend is to pass a Bill through a voice vote instead of ensuring the physical numbers to record the total number of votes.
The Essential Defence Services Bill, 2021 prohibits strikes, lockouts, and lay-offs in units comprising the defence industry. There is no doubt the security of India overrides the right to protest which may be the reason why this Bill was passed after 12 minutes of discussion. The Insolvency and Bankruptcy Code (Amendment) Bill, 2021 was passed after just five minutes of debate but not one bill was referred to any parliamentary committee through which Parliament carries out its work.
But all legislation is a product of the government’s policies with which the Supreme Court will not interfere unless there is a flagrant violation of the fundamental rights guaranteed in Part III of the Constitution. The judiciary’s logic is that those who are elected but not selected, know best what is good for the nation. After all, they have the funds and the expertise that the judiciary lacks.
This is why law needs to be debated before it is passed. If not, the motives of the government become suspect because democracy is what the majority claims it is. Never mind the minorities and the dissenters who can be branded as anti-nationals. After the Supreme Court stayed the three contentious farm laws which saw the massing of millions of farmers at Delhi’s Singhu boundary and elsewhere, these laws were repealed in just eight minutes. It took only three minutes in the Lok Sabha and five minutes in the Rajya Sabha to pass the Farm Laws (Repeal) Bill, 2021, ignoring the need for a vital debate on how the laws were enacted without a debate.
The hapless citizen is caught in a bind between Parliament on one hand and the judiciary on the other which refuses to strike down an errant law like the AFSPA or the UAPA. The judiciary sees these laws as vital to protect India’s security, public order, sovereignty, and integrity. The indisputable fact that these laws violate individual freedom is seen as a necessary evil that must subsume the paramountcy of state sovereignty.
What is overlooked is the fact the average MP does not have the resources to conduct in-depth research on any Bill before it is converted into an Act of Parliament. This is because an MP is paid Rs. 40,000 per month to hire a legislative assistant who may not have a basic LL.B degree. On the other hand, judges of the 24 high courts and the Supreme Court get law interns who willingly spend long hours on research to aspire for a certificate from the judge which they will use to get into top-notch law firms.
Unlike the United Kingdom, where the Prime Minister is mandated to reply to questions from their MPs in their House of Commons, every Wednesday, from 12 p.m. to 12.30 p.m., our Prime is never subjected to such indignities. The British Prime Minister may not be aware of the questions which he will face. These probing questions are asked in a raucous tone to evoke hesitant replies. In sharp contrast, it is not mandatory for Indian Prime Ministers to be physical present during the sessions of Parliament. In any case, the work of Parliament is conducted through its 24 committees making the presence of the Prime Minister in Parliament redundant.
This is why we need a drastic revamp of our legislative process to ensure tough MPs like Mahua Moitra ask tough questions to the Prime Minister before contentious laws like the farm bills are enacted and repealed without questions being asked. While the judiciary shrugs its shoulders, democracy is anarchy in disguise. Where there is no anarchy, there is no accountability.
(Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay High Court)