Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-25T22:20:36.515Z Has data issue: false hasContentIssue false
  • English
  • Français

Judging the Troops: Exceptional Security Measures and Judicial Impact in India

Published online by Cambridge University Press:  30 May 2019

Surabhi Chopra Open the ORCID record for Surabhi Chopra [Opens in a new window]
Get access Rights & Permissions [Opens in a new window]

Abstract

This Article examines a controversial national security measure: the use of the armed forces within domestic borders. Military policing blurs the boundaries between crime and war, and tends to entail greater use of force against individuals. It has received relatively little academic attention but deserves to be better understood. No democratic state has relied on military policing for longer than India. And within India, no region has been subject to military policing for as long as the northeastern state of Manipur. I analyze how military policing in Manipur has fostered abuse by the armed forces, which in turn has prompted litigation and judicial innovation. Based on my analysis, I critique dominant theories about the state’s exceptional security powers. I advance two main claims. First, exceptional powers rarely remain exceptional; they eventually become the norm. Once deployed, these powers persist, and the license they provide seeps into broader habits of governance. Second, once normalized, exceptional powers become more vulnerable to judicial intervention. Judges become unwilling to accept the government’s argument that these powers are always and only used to fight pressing threats. These powers eventually become a routine subject of judicial review. Even once judicial review becomes routine, however, judges tend to be more willing to help victims of abuse than to punish abusers.

Type
Articles
Information
Law & Social Inquiry , Volume 44 , Issue 3 , August 2019 , pp. 555 - 585
Copyright
© 2019 American Bar Foundation 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

REFERENCES

Abel, Richard L. Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994. New York: Routledge, 1995.Google Scholar
Ackerman, Bruce. “The Emergency Constitution.” Yale Law Journal 113, no. 4 (2004):1029–91.CrossRefGoogle Scholar
Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press, 2005.Google Scholar
Amnesty International. India: Official Sanction for Killings in Manipur. London: Amnesty International, 1997.Google Scholar
Amnesty International. Denied: Failures in Accountability for Human Rights Violations by Security Force Personnel in Jammu and Kashmir. London: Amnesty International, 2015.Google Scholar
Aretxaga, Begonia. “Playing Terrorist: Ghastly Plots and Ghostly State.” Journal of Spanish Cultural Studies 1, no. 1 (2000): 43–58.CrossRefGoogle Scholar
Bhuwania, Anuj. Courting the People: Public Interest Litigation in Post-Emergency India. Cambridge, UK: Cambridge University Press, 2016.CrossRefGoogle Scholar
Brass, Paul R. The Politics of India since Independence. Cambridge, UK: Cambridge University Press, 1990.Google Scholar
Chandhoke, Neera. “A State of One’s Own: Secessionism and Federalism in India.” Crisis States Programme Working Papers Series No. 80. London: Development Studies Institute, London School of Economics and Political Science, 2006.Google Scholar
Chesterman, Simon. “Deny Everything: Intelligence Activities and the Rule of Law in Times of Crisis.” In Emergencies and the Limits of Legality. Edited by Ramraj, Victor. V., 314–34. New York: Cambridge University Press, 2008.CrossRefGoogle Scholar
Chopra, Surabhi. “Dealing with Dangerous Women: Sexual Assault Under Cover of National Security Laws in India.” Boston University Law Journal 34, no. 2 (2016): 319–54.Google Scholar
Civil Society Coalition on Human Rights in Manipur and the United Nations. Manipur: A Memorandum of Extrajudicial, Arbitrary or Summary Executions [submitted to Christof Heyns, United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions]. Imphal, Manipur, 2012.Google Scholar
Cohen, Stanley. “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past.” Law & Social Inquiry 20, no. 1 (1995): 7–50.CrossRefGoogle Scholar
Dershowitz, Alan. “Tortured Reasoning”. In Torture: A Collection. Edited by Levinson, Sanford, 257–80. Oxford, UK: Oxford University Press, 2004.Google Scholar
Duschinski, Haley. “Reproducing Regimes of Impunity: Fake Encounters and the Informalization of Everyday Violence in Kashmir Valley.” Cultural Studies 24, no. 1 (2010): 110–32.CrossRefGoogle Scholar
Duschinski, Haley. “Destiny Effects: Militarization, State Power, and Punitive Containment in Kashmir Valley.” Anthropological Quarterly 82, no. 2 (2009): 691–717.CrossRefGoogle Scholar
Feldman, Leonard. “The Banality of Emergency: On the Time and Space of ‘Political Necessity.’” In Sovereignty, Emergency, Legality. Edited by Sarat, Austin, 136–64. Cambridge, UK: Cambridge University Press, 2010.CrossRefGoogle Scholar
Forster, Christine M., and Jivan, Vedna. “Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience.” Asian Journal of Comparative Law 3, no. 1 (2008): 1–32.CrossRefGoogle Scholar
Galanter, Marc. “The Radiating Effects of Courts.” In Empirical Theories About Courts. Edited by Boyum, Keith O. and Mather, Lynn, 121–45. New Orleans: Quid Pro Books, 1983.Google Scholar
Government of Manipur, Home Department. Notification No. 7/20/67-POL 1 (Pt), September 8, 1980. Manipur Gazette Extraordinary No. 183, September 10, 1980. Imphal: Government of Manipur, 1980.Google Scholar
Gordon, Avery F. “Abu Ghraib: Imprisonment and the War on Terror.” Race & Class 48, no. 1 (2006): 42–59.CrossRefGoogle Scholar
Gross, Oren. “Extra-Legality and the Ethic of Political Responsibility.” In Emergencies and the Limits of Legality. Edited by Ramraj, Victor V., 60–94. Cambridge, UK: Cambridge University Press, 2008.CrossRefGoogle Scholar
Hassan, M. Sajjad. “Explaining Manipur’s Breakdown and Mizoram’s Peace: The State and Identities in North East India.” Crisis States Programme Working Papers Series No. 79. London: Development Studies Institute, London School of Economics and Political Science, 2006.Google Scholar
Head, Michael, and Mann, Scott. Domestic Deployment of the Armed Forces: Military Powers, Law and Human Rights. Abingdon, VA: Routledge, Taylor and Francis, 2009.Google Scholar
Human Rights Watch. Getting Away with Murder 50 Years of the Armed Forces (Special Powers) Act. New York: Human Rights Watch, 2008a.Google Scholar
Human Rights Watch. “These Fellows Must Be Eliminated”: Relentless Violence and Impunity in Manipur. New York: Human Rights Watch, 2008b.Google Scholar
Ignatieff, Michael. Political Ethics in an Age of Terror: The Lesser Evil. Princeton, NJ: Princeton University Press, 2005.Google Scholar
Imphal Free Press. “Government Announces ‘Ex Gratia Payment’ Money Released to Gauhati High Court.” March 13, 2015. https://www.ifp.co.in/page/items/25690/defence-ministry-releases-rs-10-lakhs-ex-gratia-for-manoramas-mother-as-per-supreme-court-order.Google Scholar
Lazar, Nomi Claire. “Must Exceptionalism Prove the Rule? An Angle on Emergency Government in the History of Political Thought.” Politics and Society, 34, no. 2 (2006): 245–75.CrossRefGoogle Scholar
Loader, Ian, and Walker, Neil. Civilizing Security. Cambridge, UK: Cambridge University Press, 2007.CrossRefGoogle Scholar
Manecksha, Freny. “Shroud of Impunity.” India Together. December 10, 2011. Oorvani Media, http://www.indiatogether.org/afspa-human-rights.Google Scholar
Mbembé, Achille, and Meintjes, Libby. “Necropolitics.” Public Culture 15, no. 1 (2003): 11–40.CrossRefGoogle Scholar
McCann, Michael W. “Reform Litigation in Trial.” Law & Social Inquiry. 17, no. 4 (1992): 740–41.CrossRefGoogle Scholar
Ministry of Home Affairs. Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958. New Delhi: Government of India, 2005.Google Scholar
Omar, Imtiaz. Emergency Powers and the Courts in India and Pakistan. Leiden, Netherlands: Martinus Nijhoff Publishers, 2002.Google Scholar
REDRESS, Asian Human Rights Commission, and Human Rights Alert. The Armed Forces (Special Powers) Act, 1958 in Manipur and Other States of the Northeast of India: Sanctioning Repression in Violation of India’s Human Rights Obligations. London; Hong Kong; Imphal, India: REDRESS; Asian Human Rights Commission; Human Rights Alert, 2011.Google Scholar
Response by Minister of State for Home Affairs. Response of the Minister of State for Home Affairs to Unstarred Question No. 224 Regarding the Scope of the AFSPA in Manipur During Proceedings of the Monsoon Session of the Sixteenth Lok Sabha. July 21, 2015. New Delhi: Lok Sabha, 2015.Google Scholar
Sanders, Francine. “Brown v. Board of Education: An Empirical Reexamination of Its Effects on Federal District Courts.” Law & Society Review 29, no. 4 (1995): 731–56.CrossRefGoogle Scholar
Sanford, Victoria. “The ‘Grey Zone’ of Justice: NGOs and Rule of Law in Postwar Guatemala.” Journal of Human Rights 2, no. 3 (2003): 393–405.CrossRefGoogle Scholar
Sathe, S.P. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Delhi: Oxford University Press, 2002.Google Scholar
Scheppele, Kim Lane. “Legal and Extralegal Emergencies.” In The Oxford Handbook of Law and Politics. Edited by Caldeira, Gregory A., Daniel Kelemen, R., and Whittington, Keith E., 165–86. Oxford, UK: Oxford University Press, 2008.Google Scholar
Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press, 1922, 2005.Google Scholar
Schultz, David, and Gottlieb, Stephen E.. “Legal Functionalism and Social Change: A Reassessment of Rosenberg’s ‘The Hollow Hope: Can Courts Bring About Social Change?’” Journal of Law and Politics 12, no. 63 (1996): 63–91.Google Scholar
Singh, Ujjwal Kumar. The State, Democracy and Anti-Terror Laws in India. New Delhi: Routledge, 2007.Google Scholar
Singh, C. Upendra. 2004. 2004 Report of the Commission of the Judicial Inquiry (Manorama Death Inquiry Commission). http://www.hrln.org/hrln/images/stories/pdf/report-of-commission-of-the-judicial-inquiry-manorama-death.pdf.Google Scholar
South Asia Human Rights Documentation Centre. Armed Forces Special Powers Act: A Study in National Security Tyranny. New Delhi: South Asia Human Rights Documentation Centre, 1995.Google Scholar
Srivastava, Devyani. “Rights-Based Critique of AFSPA.” In Armed Forces Special Powers Act: The Debate. Edited by Chadha, Vivek, 64–78. New Delhi: Institute for Defence Studies and Analyses, 2012.Google Scholar
Thiruvengadam, Arun K. “Swallowing a Bitter PIL? Reflections on Progressive Strategies for Public Interest Litigation in India.” In Transformative Constitutionalism: Comparing the APEX Courts in Brazil, India and South Africa. Edited by Vilhena, Oscar, Baxi, Upendra, and Viljoen, Frans, 519–31. Pretoria, South Africa: Pretoria University Press, 2013.Google Scholar
United Nations Human Rights Committee. Concluding Observations of the Human Rights Committee: India, Considerations of Reports Submitted by State Parties under Article 40 of the Covenant. CCPR/C/79/Add.81. Geneva: United Nations, August, 4, 1997.Google Scholar
Varuhas, Jason N.E. Damages and Human Rights. Oxford, UK: Hart Publishing, 2016.Google Scholar
Yoo, John. Memorandum for Alberto R. Gonzales Re: Authority for Use of Military Force to Combat Terrorist Activities within the United States. Washington D.C.: U.S. Department of Justice, October 23, 2001.Google Scholar

CASES CITED

ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 [SC].Google Scholar
Extra Judicial Execution Victim Families Association v. India, WP (Civil) No. 250/07 (Sup. Ct. India July 8, 2016).Google Scholar
Gaingamliu Zemei v. India, 2010 (4) GLT 215.Google Scholar
General Officer Commanding v. Central Bureau of Investigation, AIR 2012 SC 1890.Google Scholar
Kangujam Ongbi Thoibi Devi v. Manipur, 1999 Cri LJ 3584.Google Scholar
Khumanthem Ongbi Pangabam Ningol Ibemhal Devi v. Manipur, 2006 Cri LJ 1166.Google Scholar
Khungdom Manisana Singh v. India, MANU/MN/0078/20.Google Scholar
Kinjinbou Liangmei v. India, 1999 ACJ 1236.Google Scholar
Kiutaliu. v. India, (2011) 6 GLR 87.Google Scholar
Kusumkamini Singha v. India, 1999 (2) GLT 361.Google Scholar
Lt. Col. Karamveer Singh v. Jammu and Kashmir, W.P. (Cri) 42/2018 (Sup. Ct. India Feb. 12, 2018.Google Scholar
Manipur Baptist Convention v. India, (1988) 1 GLR 433.Google Scholar
Naga People’s Movement of Human Rights v. India, AIR 1998 SC 432 (1997) (India).Google Scholar
Naosam Ningol Chandam Ongbi Nungshitombi Devi v. Rishang Keishing, Chief Minister of Manipur, 1983 Cri LJ 574.Google Scholar
Rudul Sah v. Bihar, AIR1983 SC 1086.Google Scholar
S. Kahaowon v. India, 2007 (1) GLT 26.Google Scholar
Sebastian M. Hongray v. India, AIR 1984 SC 571.Google Scholar
Sebastian M. Hongray v. India, 1984 SCR (3) 544.Google Scholar
Thokchom Ningol Kangujam Ongbi Thoibi Devi v. General Officer Commanding, 1983 Cri LJ 574.Google Scholar
Union of India v. State of Manipur, 2008 Cri LJ 32.Google Scholar

STATUTES CITED

The Army Act 1950, Act No. 46 of 1950 (INDIA CODE)Google Scholar
Armed Forces (Special Powers) Act, 1958, Act No. 28 of 1958 (INDIA CODE).Google Scholar
The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983, Act No. 34 of 1983 (INDIA CODE).Google Scholar
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Act No. 21 of 1990 (INDIA CODE).Google Scholar
Armed Forces (Special Powers) Ordinance, No. 41 of 1942.Google Scholar
Code of Civil Procedure Act, 1908, Act No. 5 of 1908 (INDIA CODE).Google Scholar
Code of Criminal Procedure Act, 1973, Act No. 2 of 1973 (INDIA CODE).Google Scholar

JUDICIAL INQUIRIES CITED

Ningthoujam Ongbi Sunibala Devi v. Government of India, Judicial Enquiry No. 12 of 2011, Writ Petition (C) No. 75 of 2008, Gauhati High Court, May 14, 2012.Google Scholar
Ngangbam Ongbi Kamalini Devi v. Government of Manipur, Judicial Enquiry No. 10 of 2010, Writ Petition (Criminal) No. 27 of 2010, Gauhati High Court, May 28, 2012.Google Scholar
Mutum Ongbi Ibecha Devi v. Government of Manipur, Judicial Enquiry No. 3 of 2010, Writ Petition (Criminal) No.27 of 2009, Gauhati High Court, June 8, 2012.Google Scholar
Mutum Ongbi Roni Devi v. Government of Manipur, Judicial Enquiry No. 4 of 2010, Writ Petition (Criminal) No. 26 of 2009, Gauhati High Court, June 8, 2012.Google Scholar
Garamjan Bibi v. Government of Manipur, Judicial Inquiry No. 4 of 2010, Writ Petition (Criminal) No. 49 of 2009, Gauhati High Court, July 31, 2012.Google Scholar