CHAPTER - 1

INTRODUCTION

The imperative theory of law is very well expounded by John Austin in the course

of his lectures at the University of London (later published in 1832 as a book

entitled The Province of Jurisprudence Determined). “A Law”, says Austin “is a

command which obliges a person or persons to a course of conduct”. Imperative

law means a rule which prescribes a general course of action imposed by some

authority which enforces it by superior power either by physical force or any other

form of compulsion. Law is thus an important part of the repressive machinery of

the state by which it ensures the obedience of its subjects. In this scheme of things,

in every modern state there will be some sovereign authority, issuing commands to

the subjects, backed up by the sanction of physical force which will necessarily be

brought to bear upon the recalcitrant subjects do not obey the commands. The

existence of a command and a sanction impose a duty upon the person to whom the

command is addressed, so that the command, duty and sanction are inseparably

connected terms.1

The project deals with how and why sovereign state has control over violence in

the state and what responsibilities and duties it has to protect the interests of the

individuals and the society and what limitations are actually imposed upon it. It

also focuses on how different authors of jurisprudence had different views

regarding a sovereign state creating a monopoly over violence in the state. Focus

would also be on the sovereignty over violence in a country like India. The

Researcher will also try to deal the acts prevailing concerning violence in the

country of India such as the Armed Forces (Special Powers) Act, 1958 in the state

1 P.S. Atchuten Pillai, “Jurisprudence and Legal Theory”, 3rd Edition, Eastern Book Company.Page | 1

of Jammu and Kashmir and the instances of violence after the Delhi Gang Rape

Case, the naxalites, the Telangana issue, etc.

LITERATURE REVIEW

BOOKS REFERRED:-

P.S. Atchuten Pillai, “Jurisprudence and Legal Theory”, 3rd Edition, Eastern

Book Company.

G. W. Paton, “A Textbook on Jurisprudence”, Fourth Edition, Oxford

University Press.

G. C. Venkata Subbarao, “Jurisprudence and Legal Theory”, Ninth Edition,

Eastern Book Company

ARTICLES REFERRED:-

Hobbes's Theory Of Sovereignty In Leviathan By James R. Hurtgen,

www.reasonpapers.com/pdf/05/rp_5_5.pdf last visited on 11th January,

2013.

Austin’s Command And Sovereignty Theory,

www.du.ac.in/fileadmin/DU/.../jurisprudence-1-tr-content.pdf last visited on

11th January, 2013.

Austin’s concept of sovereignty and its relevance in Indian Legal System

and in Indian Judiciary, http://legaljunction.blogspot.in/2011/05/austins-

concept-of-sovereignty-and-its_24.html last visited on 11th January, 2013.

Austin’s theory of Sovereignty in modern India and Pakistan,

http://www.legalserviceindia.com/article/l213-Austin's-theory-of-

Page | 2

Sovereignty-in-modern-India-and-Pakistan.html last visited on 11th January,

2013.

Politics as a Vocation by Max Weber, http://anthropos-lab.net/wp/wp-

content/uploads/2011/12/Weber-Politics-as-a-Vocation.pdf last visited on

11th January, 2013.

Hans Wimmer, The State’s Monopoly on Legitimate Violence. Violence in

History and in Contemporary World Society as Challenges to the State,

Available at http://homepage.univie.ac.at/johann.wimmer/Wimmer-

AkadWiss.pdf last visited on 21st January, 2013.

David Martin, The Violence within a Sovereign Decision, Available at

http://www.nyu.edu/pubs/anamesa/archive/spring_2008_violence/the-

violence-within-the-sovereign-decision.pdf last visited on 21st January,

2013.

RESEARCH TITLE

“A STUDY ON IMPERATIVE OF VIOLENCE AND SOVEREIGN’S

MONOPOLY OVER VIOLENCE”

RESEARCH AIM

To know the concept of sovereignty as explained by different authors in

jurisprudence and to know how a sovereign state creates a monopoly over the

violence happening in that particular state.

RESEARCH OBJECTIVE

Page | 3

To find out what are the responsibilities and duties of a sovereign state

against violence.

To find out the powers of a sovereign state over violence in the state.

To apply the relevant concept of monopoly of violence by the sovereign

state in the Indian context with respect to the AFSPA Act prevalent in the

state of Jammu and Kashmir and the other instances of violence in various

parts of the country.

RESEARCH HYPOTHESIS

The sovereign has a monopoly over violence in a state and in every state, there will

be some sovereign authority, issuing commands to the subjects, backed up by the

sanction of physical force. The main motive of imposing violence in the state by

the Sovereign is to maintain peace and harmony in the state and it is not for the

distress of the people.

RESEARCH QUESTIONS

How the sovereign exercises it powers of controlling over violence in the

state?

What theories did different authors or philosophers give regarding

imperative of violence in a state?

Does sovereign has an absolute monopoly over violence in the state or it is

subject to various provisions and conditions?

Page | 4

What are the different instances of violence and Acts against violence to

create a monopoly of violence by the sovereign in a country like India?

RESEARCH METHODOLOGY

The Project report is based on Doctrinal research carried out on the basis of

secondary sources. The researcher has developed the research problem in

consultation with Dr. Tarkesh Patel. Thereafter information was collected from the

library sources, online database, case studies and with reviews from the faculty

members.

The researcher has tried to analyze the scope of the powers of a sovereign state

over violence in that state. Also the researcher focuses on how the sovereign acts

and how it should act in situations where there is violence in the state which was

unnecessary or uncalled for.

RESEARCH SCOPE

The researcher has tried to briefly cover the theories of Social Contract, Hobbes

theory of sovereignty, Austin’s theory of sovereignty, Max Weber’s ideas about

violence in a sovereign state, etc. which helped him to get a clear view of

imperative of violence in a sovereign state.

CHAPTER – 2

Page | 5

VARIOUS DIMENSIONS OF VIOLENCE IN A SOVEREIGN

STATE

2.1 Theories relating to Sovereignty of a state

Austin’s theory of Sovereignty

The nature of sovereignty is explained by John Austin as follows: “If a determinate

human superior, not in the habit of obedience to a like superior, receive habitual

obedience from the bulk of a given society, that determinate superior is sovereign

in that society, and the society, including the superior, is a society political and

independent . . . . . . To that determinate superior the other members of the society

are subject; or on that superior the other members of the society are dependent. The

position of its other members towards the determinate superior is the state of

subjection or a state of dependence. The mutual relations which subsists between

that superior and them may be styled the relation of sovereign and subject, or the

relation of sovereignty and subjection.”2

In 1832 when Austin published his lectures titled ‘province of jurisprudence’ then

the concept of sovereignty reached to its climax. The theory of sovereignty mainly

depends upon his view of the nature of law. Law, according to Austin is a

‘’ command given by a superior to an inferior. From this definition of law he

develops his theory of sovereignty in the following words

“If a determinate human superior, not in the habit of obedience to a like superior,

receives habitual obedience, from the bulk of a given society, that determinate

2 Austin: Jurisprudence, Vol. I, p. 221.Page | 6

human superior is sovereign in that society, and that society (including the

superior) is a society political and independent.”

Austin’s doctrine of sovereign may be reducing to the following propositions:-

That there is, in every political and independent community, some person or

body of persons who exercise sovereign power.

That the sovereign is a determinate person or body of persons. That such a

determinate human superior must not himself obey any other higher

authority.

Therefore, In brief, Austin’s analysis of sovereignty embraces the existence of the

supreme power which is determinate, absolute illimitable, inalienable, indivisible

all-comprehensive and permanent. It is subject to no limitation or command by any

other superior.3

The key features of the theory of sovereignty propounded by Austin were that:4

a) Sovereign power is determinate.

b) Sovereign power is legally unlimited.

c) No de jure limitation.

d) Sovereign power is indivisible.

Hobbes’ Theory of Sovereignty

3 Austin’s concept of sovereignty and its relevance in Indian Legal System and in Indian

Judiciary,http://legaljunction.blogspot.in/2011/05/austins-concept-of-sovereignty-and-

its_24.html last visited on 11th January, 2013.4 G. C. Venkata Subbarao, Jurisprudence and Legal Theory, Ninth Edition, Eastern Book

Company, Pg. 41.Page | 7

Given that Hobbes began writing the Leviathan shortly after a civil war in England

broke out and was concluded,5 account for the stability of political authority was

arguably one of the primary directives of his theory of sovereignty. In fact, a want

of stability serves as one of the primary motivations for men to agree to enter into a

commonwealth.

This want of stability arises from Hobbes' account of the natural state of mankind,

which he depicts as a condition of a war as is of every man against everyman."6

Though men are naturally equal, Hobbes believes that self-preservation can only

be had by constant acquisition of property, thus creating the aforementioned state

of war and a life of man famously depicted as solitary, poor, nasty, brutish, and

short."7 In such a condition, there is no room for industry, commodious living, or

private property beyond what can be secured via one's own force. The fear of

death, coupled with the desire for commodious living are the passions that incline

men to peace."8

This inclination to peace will cause men to generate a commonwealth. As Hobbes

writes at the beginning of Part II of Leviathan, entitled “Of Commonwealth": men

willingly restrain themselves with foresight to getting themselves out from that

miserable condition of war, which is necessarily consequent . . . to the natural

passions of men, when there is no visible power to keep them in awe, and tie them

5 Thomas Hobbes. Leviathan. Ed. by Edwin Curley. Indianapolis: Hackett, 1994. isbn: 978-0-

87220-177-4, p. li.6 Ibid., p. 76. Hobbes, by war, refers to the constant disposition to enter into battle and not

necessarily fighting itself.

7 Ibid., p. 76.

8 Ibid., p. 78.Page | 8

by fear of punishment to the performance of their covenants and observation of

those laws of nature . . . .9;10

Men in the state of nature voluntarily make a \covenant of every man with every

man"11 in order to establish a commonwealth to preserve their peace. The

sovereign will serve as the common power to hold men in awe by the creation and

enforcement of civil laws. Such a common power is necessary because men their

own have no external judge in conflicts and being inherently biased to their

individual cause, will not hold to agreements made. By making this covenant, men

confer all their power and strength upon one man, or upon one assembly of men

[the sovereign], that may reduce all their wills, by plurality of voices, unto one

will. . . ."12 This bestowal of wills not only grants the sovereign supreme authority,

but also makes every subject (i.e. every man who entered the covenant) the author

of every action of the sovereign.

This last condition, which falls out of Hobbes' somewhat formal definition of a

covenant,13 serves as the source of stability and clarity of the sovereign's power.

Because every subject confers their will unto the sovereign's and agrees to abide by

his actions and rulings, the sovereign cannot be overthrown, cannot forfeit his

9 Hobbes, Leviathan, p. 106, emphasis added.10 While many laws of nature are discussed by Hobbes, the first two are the most fundamental:

to seek peace and to willingly give up personal liberty to the degree that other men will in

order to secure peace.

11 Hobbes, Leviathan, p. 109.

12 Ibid.13 Hobbes proceeds much more systematically than Locke. He considers himself the first man

to undertake a scientific study of politics and so proceeds in a “bottom-up" fashion, defining

basic terms and ideas and then deriving more complex ones from them. In this sense, clarity is

built directly into Hobbes' methodology.Page | 9

power, cannot be accused of acting unjustly by his subjects, cannot be punished by

his subjects, acts as judge of what is necessary for peace and defense, determines

when to wage war, and so on.14 Similarly, subjects have no right to private property

that excludes the sovereign.15 Because man without a common judge exists in a

constant state of war, only a sovereign as powerful as this can actually ensure

peace.

2.2 Instances of Violation by a sovereign state

The question of state failure and the potential for intervention raises larger

question: what effect does a state's failure have on its sovereignty? Is sovereignty a

right or a responsibility? The traditional philosophy of "sovereignty as a right", that

has held sway since the Treaty of Westphalia in 1648, has been that a country's

internal affairs are its own affair and that other states do not intervene unless it

threatens them, or breaches a treaty, or triggers an obligation of alliance. This is

illustrated by United States Secretary of State Robert Lansing who when declining

to pursue action against the leaders of Germany, Austria and Turkey at the

conclusion of World War I for what would now be known as "crimes against

humanity" said "the essence of sovereignty is the absence of responsibility".

Reflecting the view of the time he said sovereign leaders should be immune from

prosecution and that the United States could only judge those violations that were

committed against American persons or property.16

14 Hobbes, Leviathan, p. 110-115.

15 Ibid., p. 213.

16 Samantha Power, "a Problem from Hell" America and the Age of Genocide (London:

Flamingo, 2003).Page | 10

On the other hand, "sovereignty as a responsibility" requires that states provide the

appropriate standard of political goods and services to ensure the protection and

wellbeing of their citizens.17 If they refuse assistance there is a responsibility by the

international community to react. This creates a dual characteristic to sovereignty;

an internal component which relates to the state and its relationship to its people,

and an external component which manages the relationships between states.18

There are many other concepts of sovereignty between these two extremes. Robert

Jackson19 refers to positive and negative sovereignty and the concept of "quasi-

states". That is, states that lack the capacity to support themselves without outside

assistance, or to contribute to the international order but who are legally recognised

through membership of the United Nations. Stephen Krasner20 argues that the

Westphalian model of sovereignty based on the principles of autonomy and

territory, has never been an accurate description of many of the entities called

states, since breaches of the model have been an enduring characteristic of the

international environment because there is nothing to prevent them.

Afghanistan and Somalia have demonstrated the danger of ignoring failing or

failed states. Both became bases from which large scale terrorist attacks have been

launched. The question for the international community to establish is how is the

correct response to be determined, even if there is an agreement as to the nature of

the problem, and a realistic assessment of appropriate objectives. The adoption by

17 Francis Deng, Protecting the Dispossessed (Washington, DC: Brookings Institutions, 1993).18 Richard Herr, "The Concept of the 'Failed State': A Brobdingnagian View from Lilliput."

(paper presented at the Fourth Wellington Conference on World Affairs, Wellington, 5

December 2003).19 Robert H. Jackson, Quasi States: Sovereignty, International Relations, and the Third World

(Cambridge: Press Syndicate of the University of Cambridge, 1990).

20 Stephen D. Krasner, "Compromising Westphalia," International Security 20, no. 3 (1995).Page | 11

the international community of the concept of "state responsibility" facilitates a

model to identify where assistance is required.

Page | 12

CHAPTER – 3

ANALYSIS OF THE IMPERATIVE OF VIOLENCE

3.1 Powers and Duties of a Sovereign State

A responsibility of states is to deliver political goods – security, health and

education, economic opportunity, good governance, law and order, and

fundamental infrastructure requirements (transport and communications). States

fail when they are no longer willing or able to carry out these functions. One of the

problems in dealing with failed states is in defining exactly who and what they are.

State failure need not be reserved for cases of complete state collapse, either into

civil war or anarchy but can also be understood as a process involving the

weakening of a state’s capacity to meet its responsibilities. Taking this further it

may be beneficial to consider state failure as a spectrum which ranges from weak

or failing states through failed states to collapse or non-states. In this case a failed

state is one that meets a specific set of conditions and excludes states that only

meet some of the criteria which can then be classed as weak or failing states

depending on the extent of their decline21. By using a state's responsibilities a

model can be developed that enables states to be defined and categorized as weak,

failing or failed, so that the international community can determine which states no

longer meet their sovereign obligations and need support or intervention.

A state that lacks power is not sovereign. The normative notion of sovereignty

within today’s international system is greatly articulated by power holders. Such

understandings of state sovereignty enable contemptible acts of violence to be

21 Robert H. Dorff, "State Failure and Responding to It" (paper presented at the Annual

Convention of the International Studies Association, New Orleans, 2002).Page | 13

legitimatized. Powerful states prescribe legitimacy in the international system to a

great extent, which differs from other social relationships where legitimacy is

achieved, not imposed. Under this system, ethics, norms and even humanity itself

may be divorced from the act of legitimization as the sovereign defines procedure.

The sovereign institution of the state defines the parameters of life through

lawmaking, and the power of the state ensures its continuing existence. Agreat

inequality amongst supposedly sovereign states arises precisely at the injection

point of power into the notion of sovereignty, which explains how particular

conceptions and definitions of violence may come about and be unfairly

legitimized under the rubric of existing power relationships.22

The concept of state responsibility in refers to the responsibility of sovereign states

to deliver a range of political goods and services to its citizens. Rotberg has

identified a bundle of the most crucial political goods, roughly rank ordered, that

establishes a set of criteria according to which states may be judged strong, weak,

or failed.23 The state's most important function is the provision of security. This

means creating a safe and secure environment and developing legitimate and

effective security institutions. In particular, the state is required to prevent cross

border invasions and loss of territory; to eliminate domestic threats or attacks on

the national order; to prevent crime; and to enable its citizens to resolve their

disputes with the state and their fellow citizens. Another major political good is to

address the need to create legitimate effective political and administrative

22 David Martin, The Violence within a Sovereign Decision, Available at

http://www.nyu.edu/pubs/anamesa/archive/spring_2008_violence/the-violence-within-the-

sovereign-decision.pdf last visited on 21st January, 2013.23 Robert I Rotberg, "Failed States, Collapsed States, Weak States: Causes and Indicators," in

State Failure and State Weakness in a Time of Terror, ed. Robert I. Rotberg (Washington

D.C.: Brookings Institution, 2003).Page | 14

institutions and participatory processes and ensuring the active and open

participation of civil society in the formulation of the state's government and

policies. Other political goods supplied by states include medical and health care,

schools and educational instruction, roads, railways, harbours and other physical

infrastructure, money and banking system, a beneficial fiscal and institutional

context in which citizens can pursue personal entrepreneurial goals, and methods

of regulating the sharing of the environmental commons.24

What is required is a model based on quantitatively based indicators that enables

states to be classified strong, weak, or failed and ranked on a continuum of failure.

Although indicators of state failure are often underdeveloped and unreliable in

weak or failed states, it is possible to develop a model utilising indicators grouped

under the following classifications: Governance, Corruption, Economic, and Social

Wellbeing. It could be contended that these concepts of responsibilities are

essentially western in origin and a few states may argue that they are not applicable

to their situation.25

3.2 Sovereign Monopoly over Violence in a State

The monopoly on legitimate force or violence belongs to the essential elements of

modern statehood – so the scholarly consensus since Thomas Hobbes or at least

since Max Weber. In “Economy and Society” Weber defines the state as a political

organization whose “administrative staff successfully upholds the claim to the

monopoly on the legitimate use of physical force in the enforcement of its orders”.

24 Ibid.25 Ramesh Thakur, "Global Norms and International Humanitarian Law: An Asian

Perspective," International Review of the Red Cross, no. 841 (2001).Page | 15

This definition seems to be very clear, but sometimes it leads to

misunderstandings.

First of all, the use of force is not the sole and not even the normal means for the

modern state “to realize its orders”; it is only the ultima ratio if all other means are

not effective. The crucial point for Weber was the fact that the state cannot be

defined by its “ends” because there are almost no ends that states did not try to

realize in the course of history. Of all social institutions and all possible actors in

modern society, only the state is legitimated to use physical force as a “means”–

with the implication that all forms of non-state violence are illegitimate and have

therefore to be prosecuted and punished according to the penal law (Milanes 1999).

One of the misunderstandings concerns the question sometimes posed in

discussions: How can we speak of a “monopoly on violence” if there is so much

violence originating in society? Yes, there is an important difference between

monopolies in the economy where certain goods or services may be supplied by

only one company whereas the state hasn’t even a chance to monopolize the

ownership of arms, not to speak of innumerable devices that can be used in

exercising violence, for instance, knives. In other words, the state’s monopoly on

violence does not create a “society without violence”, because it is completely

impossible for the state to suppress all forms of violence. The term “monopoly”

refers only to the legitimate use of force or violence!26

Secondly, Weber speaks of a successful claim to the “monopoly” by the state. The

question here is: If the state cannot prevent all forms of violence and if therefore 26 Hans Wimmer, The State’s Monopoly on Legitimate Violence. Violence in History and in

Contemporary World Society as Challenges to the State, Available at

http://homepage.univie.ac.at/johann.wimmer/Wimmer-AkadWiss.pdf last visited on 21st

January, 2013.Page | 16

there exists a certain level of violence in any society, how can we determine

whether or not a state is successful in its claim (and another not)? The answer has

to concede ambiguity: “It depends”. It depends on the general level of violence in

society and on the effectiveness of the state in combating that level. For instance,

the state can be quite “helpless” facing a high level of criminality, especially in

cases of homicide or destruction of property, and the state can be ineffective in

combating alternative “security organisations” such as the mafia (Hess 1995),

guerrilla or other forms of “private armies”. If we look to Columbia we see all of

this and it is therefore correct to say that the state in Columbia is not successful in

its claim to uphold the monopoly on violence (and maybe has never been). But is

Columbia only an infamous exception in Latin America? How many countries on

the African continent can be classified as successful? Would we find a successful

state in Central Asia? – From the European perspective at least one thing could be

said about the monopoly on violence: The state is successful or effective in its

claim to uphold the monopoly as long as it does not ignore instances of violence,

or to put it the other way around, the state has to view every instance of violence as

a challenge. It must be a “case” in which something has to be done as a

consequence. Nevertheless, it is true that the monopoly is always somehow “a

matter of degree”.27

3.3 India as a Sovereign Monopoly State

In this part of the research an attempt has been made to analyze the existence of

sovereignty in modern India:28

27 Ibid.

28 Austin’s theory of Sovereignty in modern India and Pakistan, Available at

http://www.legalserviceindia.com/article/l213-Austin's-theory-of-Sovereignty-in-modern-Page | 17

1. Austin's notion that all laws come from the sovereign may be true theoretically,

and laws in our country (i.e. statue made laws at least) are a result of the act of the

politically superior that is the legislators but the same is not true practically as they

are not a reflection of the will of the superior in the real sense. Though many laws

come directly from the parliament, but they merely reflect the desire of these

politicians to maintain support of the major organized groups in the country and to

meet their interests satisfactorily. Under the conditions of the day the huge

combination of labor, capital, with their expert lobby sit in wealthy treasuries, any

group is able to compel recognition and secure desired legislation. Only the fact

that these groups are competing amongst themselves prevents the government from

becoming a helpless tool in their hands. Even then the grinding impact of

competing pressures upon the government requires political astuteness of a high

order to keep them satisfied and prevent the withdrawal of support in the next

elections. Thus we can say that Austin’s emphasis that sovereign is the main

stream of law is not just.

2. Austin postulates a political superior in a political society who is habitually

obeyed by the majority of the population. This means that sovereign is the highest

authority, the strongest authority in a political system. According to Austin

sovereign is the person who has the last word in a particular connection. But the

issue is that how can one determine the 'highest authority' in a democratic country

like India , to identify the strongest power would involve an investigation of a lot

of legal as well as well extra legal forces which determine how a state shall

operate. Who is the highest authority, is it the masses who choose the government,

India-and-Pakistan.html last visited on 21st January, 2013.

Page | 18

is the legislators who finally make laws, is it the judiciary that has the power to

strike down laws made by the parliament, is it the executive as laws that are

enforced are selected by administrators today, what they consider worthy of

implementing is duly enforced other laws are followed more in breach than in

obedience. Is it the constitution according to which all others are expected to act or

is it again the masse by whom the constitution has been formed? Who do we call

supreme. Besides these forces there are other socio - economic forces that have the

power to exert a lot of pressure to finally determine what laws are formulated and

most often have the final say.

3. Austin’s theory that law emanate only from the sovereign authority fails in India

as much as it would fail in other common law countries. There are various other

very important sources of law which cannot be ignored at all. His theory would fit

only one portion of law that is the law made by the legislative body. However, the

word law is of wilder amplitude and includes not only laws but bye-laws,

notifications, customs which are not made by the state. Another important category

that Austin does not include in his definition of law is Judge made laws, in this era

of judicial activism where judiciary does not only interpret law but also makes law

this category cannot be ignored. Principles of justice, equity, good conscience are

important principles that are always kept in mind while implementing any law

none of them.29

4. Similarly Austin's concept of unlimited and indivisible sovereignty is quite

inappropriate in the Indian set up or any democracy. The sovereign does not have

29 Austin’s concept of sovereignty and its relevance in Indian Legal System and in Indian

Judiciary, Available at http://legaljunction.blogspot.in/2011/05/austins-concept-of-

sovereignty-and-its_24.html last visited on 21st January, 2013Page | 19

the power to command anything that it desires. It is as much bound by rules and

regulation embodied in the constitution and other laws as any common man.

Legislature is bound by the constitution and in almost all cases court has the power

to decide whether an act done by the government is constitutional and hence valid

otherwise it can be struck down.

Application of Austin’s Principle in Indian Judiciary30

John Austin gave theory of sovereignty which consist too much emphasis over

command. In our Indian judicial system we can trace that criminal law and traffic

law contains command. These are the list of laws which are based in Austin’s

theory are as follows:-

Indian Penal Code (Act No. 45 of year 1860)

Code of Criminal Procedure Amendment Bill 2008

Unlawful Activities (prevention) Amendment Bill 2008

Motor Vehicle Act- 1988

All these laws are like the command given by the sovereign which is backed by

punishment.

CHAPTER – 4

AFSPA ACT AND ITS APPLICABILITY IN INDIA

In this part of the research project, the author would be mainly dealing with the

Armed Forces (Special Powers) Act (AFSPA), 1958 which is applied in many

parts of the country such as Jammu and Kashmir and North-eastern states like

Assam, Manipur etc.

30 Ibid.Page | 20

In the state of Jammu and Kashmir, the flawed elections of 1987, in which the

leaders of MUF (Muslim united front)had to face a fabricated defeat at the hands

of mainstream political parties, resulted in violent means of struggle for secession

from India. The massive militant uprising coupled with large scale infiltration of

cross border militants turned the situation volatile. Such violence was also seen in

the start of the century in areas like the Naga Hills (which extend across the Indo-

Burmese Border). The act was passed on 11 September 1958 by the parliament of

India to provide special legal security to the armed forces carrying out operations

in the troubled areas of Arunachal Pradesh, Assam, Meghalaya, Manipur,

Mizoram, Nagaland, Tripura.(seven sisters). However, in 1990 the act was

extended to the state of Jammu and Kashmir to confront the rising insurgency in

the area.

On 27 November 1997 the Supreme Court of India rendered its judgment in Naga

People’s Movement for Human Rights v. Union of India31. In this case the validity

of the Act was challenged by means of a writ petition before the Supreme Court of

India.

The petitioner alleged that the Act had violated constitutional provisions that

govern the procedure for issuing proclamations of emergency, and upset the

balance between the military and civilian and the union and state authorities. The

court rejected those contentions. It found that the parliament had been competent to

enact the Act and ruled that its various sections were compatible with the pertinent

provisions of the Indian constitution. In particular, the court held that the

application of the Act should not be equated with the proclamation of a state of

emergency, which led to it finding that the constitutional provisions governing

such proclamations had not been breached. The court further emphasised that the

31 1998 AIR 431.Page | 21

military forces had been deployed in the disturbed areas to assist the civilian

authorities. As these authorities continued to function even after the military’s

deployment, the court held that the constitutional balance between the

competencies of the military and the civilian authorities had not been upset.

Equally, the court found no violation of the constitutional balance of competencies

of the union and state authorities. What the court did not address was the

compatibility of the Act with India’s obligations under the ICCPR or other

international obligations. This is notwithstanding the general rule of Indian

constitutional law, confirmed by the Supreme Court in another case decided in

1997, that the courts must have regard to international conventions and norms

when interpreting domestic statutes32.

Many cases challenging the constituency of the AFSPA are still pending before the

Supreme Court. The only way to repeal this act is if the Supreme Court declares

AFSPA unconstitutional but surprisingly the Delhi high court found the AFSPA

conditional hence allowing the effect. The judiciary should repeal the AFSPA as it

is unconditional and end army rule in the northeast33.

The Right to life

Article 21 of the Indian Constitution states that “No person shall be deprived of his

life or her personal liberty except according to procedure established by law34".

32 Vishakha et al. v. State of Rajasthan et al., 1997 AIR 3011.33 http://ejp.icj.org/IMG/Babloo_Loitongbam.pdf Last visited on 21st January, 2013.

34 Article 21 of the Indian Constitution.Page | 22

Section 4(a) of the AFSPA grants armed personnel to shoot and kill. This is clearly

violating article 21 of our Constitution.

Protection against arrest n detention

Article 22 of our Constitution states:

1. “No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall he be denied

the right to consult, and to be defended by, a legal practitioner of his choice.

2. Every person who is arrested and detained in custody shall be produced before

the nearest magistrate within a period of twenty-four hours of such arrest excluding

the time necessary for the journey from the place of arrest to the court of the

magistrate and no such person shall be detained in custody beyond the said period

without the authority of a magistrate."35

These two sections of article 22 of the IC can be used to safeguard the people

arrested under the AFSPA.

Military’s immunity/lack of remedies

Members of the armed forces in the state of India are protected from arrest for

anything done within the line of official duty by section 45 of the CrPc (The Indian

35 Article 22 of the Indian Constitution.Page | 23

Criminal Procedure Code)36. Section 6 of the AFSPA provides then with absolute

immunity for all atrocities committed under the AFSPA37. The armed forces

personnel conduct themselves as being above the Law. When they are tried in

army courts, the people are not informed about the proceedings. The results of

many trials such as in the case where BSF and armed forces in Jammu and

Kashmir were punished for the abuses was not published stating that is would

endanger the lives of the soldiers by the NHRC.

The Army Act

The 1950 act was a revision of the 1911 Indian army act. The revision of this act

was to bridge the gap between the army and civil Laws as far as possible in the

matter of punishments of offences. Chapter 5 of the army act grants armed

personnel some privileges including immunity from attachments and arrest for debt

which gives the armed personnel even more freedom and makes them to be

irresponsible for their actions.

AFSPA in Manipur:

In Manipur, the Act has been a heart concern about human right violation in the

region. Its continued application has lead to numerous protests, notably the

longstanding hunger strike by Ms. Irom Chanu Sharmila. The “AFSP Act” focuses

on Manipur since this is one of the states of north- eastern India with the longest

history of military abusing its power under the Act and with a vibrant civil society

indefatigably denouncing those violations.

36 Section 45 of the Indian Criminal Procedure Code.37 Section 6 of the AFSPA.

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The judgement against the controversial Armed Forces Special Act, the Guwahati

High Court has authorised the state of Manipur to act on the report of the one man

commission in the alleged rape and killing of Manorama Devi by the Armed Force

in 2004. Sixed years after Manipur erupted with the defining image of anger

against killing and resistance to the armed force Act this judgement should be

crucial in understanding this act is meant to aid civil power and not to substitute it.

The AFSP Act grants extra ordinary powers to the military, including the power to

detain persons, used of lethal force38 and enter and search premises without

warrant. The Act grants the following power to39 military officers, including any

commissioned office and other of equivalent in the military forces.

The provision of the Act have been reportedly continued to be routinely applied in

practice. The overall practical effect of the Act has been the Defacto militarisation

of Manipur. Even the proponents of the Act have acknowledged the general

administration in Manipur is wholly dependent on the security forces.40

Action taken pursuant to the Act reportedly led to 260 killings in 2009 alone.41 The

military also widely used its power to detain persons. As held in the number of

judgement, those arrested pursuant to the Act remained in the military custody

without being brought before judge for a prolonged period of time.42 Several cases

court found that person who has been arrested by military under the Act

38 Section 4 of the AFSPA Act.

39 Section 4 (a) of the AFSPA Act.40 A Kamboj Manipuri and Armed Forces (Special Power) Act 1958, in 28 strategic analysis

(2004),at 618.

41 Interview with K.S Subramaniam, a retired I.P.S officer, in the Times of India (21 Dec 2009).42 CLAHRO V. PL Kukrety,(1988) 2GLR 137; Bacha Bora V. State of Assam, (1991) 2GLR

49.Page | 25

disappeared subsequently,43 which suggest that they have become victims of

enforced disappearances.

AFSPA in Nagaland

The inhabitants of the Naga Hills, which extended across the Indo-Burmese border,

came together under the single banner of Naga National Council (NNC), aspiring

for common homeland and self-governance. In 1929, the NNC petition the Simon

Commission, the Nagas Leaders were against the Indian rule over the people since

India got independence. Mahatma Gandhi publicly announced that the Nagas have

right to be independent as he believe in non-violence.

Under the Hydari Agreement signed between NNC and British Administration,

Nagaland was granted protection status for ten years, after which Nagas would

decide whether they should stay Union or not. However, shortly after the British

withdrew, independent India proclaimed the Naga territory as part of India

Republic.

The NNC proclaimed Nagaland’s independence. In relation, Indian authorities

arrested the Nagas Leaders. An armed struggled ensued and there were large

causalities on the other side. The Armed Force Special Power Act is the product of

this tension.

In 1975, some Nagas leaders held talk with the Goverment of India which result in

what is known as the Shillong Accord. The Nagas Leaders who did not agree with

the Shillong Accord formed the National Socialist Council of Nagaland (NSCN)

and continued to fight for what they call “naga sovereignty.”

AFSPA in Mizoram

In the Lushai hills in early sixties a famine broke out .A relief team cried out for

help from the Goverment of India. The relief team organised themselves into Mizo

43 Nungshitombi V. CM of Manipur, (1982), 1GLR 756.Page | 26

National Front (MNF) and called for armed struggled “to liberate Mizoram from

Colonialism.”In Feb. 1996 armed militant group captured the town of Aizawl and

took possession on all Goverment Offices. It took about one week to recapture the

town. The Army responded viciously with air raids. This is the only place where

the Indian Security Force bombed its owned civilians.

The Armed Forces compelled people to leave their homes and dumped them on the

road sides to set up new villages, so that the armed forces could be able to control

them better. In 1986, the Mizo Accord was signed between the MNF and the

Goverment of India. The MNF agreed to work with the Indian Constitution and to

renounce violence.

The Government of India primary interested in the North-East was strategic and so

was it response to problems. A series of repressive laws were passed by the

Goverment of India in order to deal with the uprising.

However, the AFSP Act is essentially an emergency legislation and therefore, by

definition, its, temporal scope of application should be limited and clearly defined.

The prolonged application of emergency legislation sustains, reinforces or even

creates the exceptional state that may justify emergencies, and has therefore

become the cause rather than the effect of the prevailing situation. Unsurprisingly,

the Act, that is the most visible legal manifestation of this undeclared state of

emergency, has been repeatedly condemned by various UN treaty bodies.

Situation in J&K

AFSPA, after its enactment in 1958 in north-eastern states was later extended to

the state of Jammu and Kashmir in 1990.

As already mentioned under AFSPA, security forces are given unrestricted powers,

once an area is declared disturbed, to carry out their operations; shoot, arrest and

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search in the name of ‘aiding civil power’ and ‘maintain civil order’. These powers

also provide unaccountability, since the security personnel are protected from

prosecution and legal proceedings for their actions until the Central Government

sanctions its approval.44

This legal immunity provided to these security personnel has had an opposite

effect on the common population of the state. The present Kashmir crisis is not

between militants and the forces, but has escalated to the present stage because of

unarmed civilians being hit by state-controlled bullets. The state police have also

been engaged in these moves, which has led the death toll in the Valley cross 100

last summers. One has no objection to AFSPA, granted that it is adhered to strictly,

is not abused and is not used by those not linked with army to target civilians

needlessly. Here, it may be pointed out that the army and police fall under two

different departments. So it needs to be scrutinized carefully, whether some

communication error has also led the J&K police assume that they also have the

authority under AFSPA to shoot as and when they sense a risk. Are they also

guaranteed legal immunity? Besides, one may draw attention to it be clearly laid

out that the army officers are granted legal immunity if and when they take action

in keeping with the AFSPA dictates. In other words, they are not above legal

immunity if they abuse and/or violate AFSPA by taking action not permitted by

it.45

The atrocities towards the common people, particularly against women by the

army personnel started soon after the AFSPA Act of 1990. I would like to quote an

instance of the early 90’s. In 1991, a remote village called Kunan Pashpora in

44 Singh, Ranbir and Kannibaran,Kalpana. “Changing the rule(s) of law: colonialism,

criminology,  and human rights in India.” Sage Publications India Pvt. Ltd. p.248. Print.45 Suhrawardy, Nilofar. “AFSPA and Kashmir Crisis”. The Milli Gazette. 1 Oct 2010. Print.

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Kashmir witnessed an all night terror raid on women, where some 30 women of the

village were raped. Kunan Pashpora has come to symbolize sexual violence against

Kashmiri women and therefore caught the attention of National and International

media. A two member women’s team including Amiya Rao, a senior and well

respected civil rights activist, visited Kashmir and demanded an enquiry into the

rapes at Kunan Pashpora. The Press Council of India sent an enquiry team, headed

by a respected male journalist B.G Verghese who had a good record of supporting

civil rights. Alas, when the report was made public he exonerated the army,

arguing that the allegations were fabricated and motivated in order to ‘defame’ the

army. The nation and the army became synonymous- the version of the army was

the version of the press and the sexual violence against women counted for little.46

Going further, one has no objection to AFSPA being strictly adhered to during

encounters with militants, any person or group being engaged in any action that is

considered as contravention of law and/or dangerous to the security of the region.

At this point, one is forced to recall the instance of Tufail Mattoo , the young

student who was killed on June 11. He was killed by a bullet from police. What

was his fault? Now, would it be fair to assume that police responsible for his death

should be guaranteed legal immunity? Even if his death had occurred from an army

officer’s fire, from what angle would the army officer have been allowed legal

immunity for this action? Tufail was not engaged in any activity that may be

considered as violation of the national law. Neither any army officer nor police

officer can be given legal immunity in case of Tufail’s death strictly in keeping

with dictates laid out by AFSPA. Tufail is not the only Kashmiri civilian who has

fallen victim to state-controlled bullets in recent weeks for no fault of his and for

46 Singh, Kumar Ujjwal. “Human rights and peace: ideas, laws, institutions and

movements”.Sage Publications India Pvt. Ltd.  p66. Print.Page | 29

reasons that do not suggest violation of the national law. Should this be allowed to

continue? Against this backdrop, Kashmiris’ anger seems fairly justified. Scores of

deaths have taken place when mourners were taking dead bodies for funeral

services on different occasions. The pent-up anger and agitation was displayed by

these mourners, at times, by shouting slogans. But give a thought, those were not

staged funeral ceremonies. Think of the grievance of people participating in the

same, reflecting on what were they heading for and angry at an innocent youth

being targeted needlessly. Should they have stayed back and not performed the

funeral services? Risking bullets and their lives, they were only playing a socially

responsible role. Perhaps, it is essential for the concerned authorities to clarify

whether such funeral services are viewed as violation of law and can army/police

officers shoot at the mourners in keeping with AFSPA.47

The presence of conflict enterprise in Kashmir is an old story. All the actors have

developed a deep vested interest in the continuation of the ugly conflict. While

everybody involved wants to have his pound of flesh, the common man suffers

endlessly. The diplomatic cables of American diplomats leaked by Wikileaks have

fully exposed the antics of all those involved in the messy situation of Kashmir;

hardly anybody has been left unscathed. Some security officials seek repeated

postings in the valley, what is there so lucrative in conflict-ridden Kashmir?

WikiLeaks solves the puzzle. “Security officers bribe their way into Kashmir

assignments that give access to lucrative civil affairs and logistics contracts.”

Earlier, the forces were involved in organizing ‘Bharat Darshan’ for students and

supplying commuters and furniture to the schools. From this year onwards, the

army has started organizing cricket tournaments in a big way. No harm if through

Sadbhavana operations it can win the hearts and minds of the local people.

47 Suhrawardy, Nilofar. “AFSPA and Kashmir Crisis”. The Milli Gazette. 1 Oct 2010. Print.Page | 30

However, wining hearts and minds amidst continued human rights violations is

impossible. Sadbhavana operations in theory might be a commendable thought; in

practice it has proved to be a goldmine of corruption. Nowadays, the army is busy

in ‘Awami Mulaqat’. Senior commanders, like politicians, address public

gatherings with the civilian bureaucracy in tow. This not only impinges upon the

role of the civilian government, through these shortcuts everlasting peace can

never prevail. What prevails is an eerie calm, described as ‘armed peace’ in

Kashmir.48

CHAPTER – 5

CONCLUSION AND SUGGESTIONS

This research project deals with the responsibility of a sovereign state, that is, the

extent to which states fulfill their requirement to provide political goods and

services to their citizens. By utilizing indicators grouped under the following

classifications: Governance; Corruption; Economic; and Social Wellbeing it is

possible to locate states on a continuum of state strength, based on state

responsibility, from strong through weak to fail. By adopting the concept of state

responsibility as the basis for defining the success or failure of states, it is

necessary to recognise that this has implications for the current conceptions of

sovereignty based on the classical conceptions of authority.

48 Syed, Firdous. “Why Army Officers want Kashmir Posting”. DNA. 28 Sept 2011. Web.

http://www.indianmilitarynews.wordpress.com. Retrieved on:- 27 Oct 2011

Page | 31

From this project the researcher come to conclude that Austin’s analysis of

sovereignty embraces the existence the supreme power which is determinate,

absolute, illimitable, all comprehensive and permanent. Researcher also made an

attempt to analyze Austin's notion of sovereignty and his proposed theories. His

theory of sovereignty did not seem to be applicable in modern day democracies

like India.

As the present condition of AFSPA is in a very bad condition full of controversies

and the movements being run against this act and the demand of a huge number of

people to repeal the act because it has made their lives miserable and in other sense

alienated them as they cannot feel it their own country as no country’s own army

brutally kill the innocent or rape the women of the country it is very difficult to say

about the future of this act but right now the end to this evil is nowhere to be seen

mainly because of political complications and other safety requirements the

government need to fulfill before repealing this act all of a sudden. The debates

taking place in the whole country regarding the demands for AFSPA

considerations are showing no fruit yet and people living in these north-eastern

areas as well as Jammu and Kashmir are still in dark and in no hope of getting their

future in light as the government by them does not seems to be their own now.

Although there is pressure being put on by UNO also for the repeal of the act and

central government is also concerned about this matter but still the implications

and complications of removing such an important act, based on the historical help

for the country, for the security of areas most prone to terrorist activities and

moreover nearer to the boarders and also the same act that helped us a lot in earlier

times to protect our country it does not seems to be quite possible for at least

another some long years which may worsen the conditions of the people over there

and may alienate more of them which is not healthy for a country, growing

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tremendously and gaining reputation in world on a large scale, like India. All we

need now is to see the welfare of the people of our country right now and no

political reasons and demand the repeal of this act. But in the end the future is not

in our hands and we can only hope for the best in future and there is only hope

right now as no surety or guarantee is being provided by the government for the

future of this act and the people.

The main motive of the state imposing violence in the country is and should

always be to maintain peace and harmony. The state should not use this to maintain

anarchy or to make things work in a arbitrary manner. The interest of the citizens

should be of prime importance and any action or step taken should be to maintain

the superiority of the principles of the sovereign state. Unlike the AFSPA Act

which has caused a lot of disharmony among the people and the army in the North-

Eastern states and Jammu & Kashmir and a lot of violent opposition from the

people of these states, some mechanism should be introduced which helps to calm

the anger and frustration of the people down and which actually helps to curb the

problems instead of increasing them with violence and aggression.

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