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Nagaland Civilian Killings: AFSPA Is An Archaic Law That Has No Place In Modern India

Nagaland has remained on the boil since December 4th when six civilians were killed by the Army in a botched operation. The incident had occurred in the Mon district and has since led to the death of 14 people in total, 13 of whom were members of the Konyak Tribe.

Photo credit: Chingkap Konyak I Source: Eastmojo.com

The Armed Forces Special Powers Act (AFSPA) 1958 has motivated resistance ever since it was implemented in areas designated as 'disturbed'. AFSPA allows for armed forces to be conferred with 'special powers', in any region designated as a 'disturbed area', either by the Centre or the Governor of a state or the Administrator of a Union Territory. Section 3 of the Act says this power can be invoked when a part of a state/UT or even the whole state/UT "is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary".


AFSPA is an archaic law that has no space in modern India. It reinstates the “state of exception” that has its roots in Ancient Rome where human rights were subordinate to state power. The Italian Philosopher Giorgio Agamben in his book The State of Exception makes an argument that exception has become the rule in modern governmentality in areas deemed “disturbed”. For many, this argument might sound like an exaggeration but it is not without merit. “Exception” to put it simply is the suspension of law or the declaration of exception that introduces a juridical void where what is lawful and unlawful becomes indistinguishable.


In Ancient Rome this type of law was called Iustitium. The Roman Law also has this concept called the homo sacer, where a condemned person can be killed by anyone and the act won't be constituted as murder. But this condemned person in a sovereign ban cannot be used for sacrificial purpose. This sovereign ban introduces the concept of bare life, a life without legal rights, a life that is bare naked. Now this description of exception will automatically trigger colonial governmentality or rather the prerogative right of colonial government to declare exception to discipline the colonized. In order to link this practice of power to more contemporary events which people can identify, we can cite the Nazi Auschwitz camp and USA Patriot Act that reduce life to a “bare naked” form with no legal recourse. AFSPA 1958 is one such exceptional power. Although the Supreme Court has ruled in 2016 that the Army should not be provided legal immunity for killings, the recent incident suggests that it has no practical implications. Now why the death of 14 civilians is not constituted as murder can be better understood from Agamben’s theorization of exception. Agamben argues that exception has to be understood as in executing the suspension law. In other words, in “exception” the military are executing the suspension of laws that define what is legal, what is extrajudicial or what is murder. This juridical void is what characterizes exception.


Agamben’s theorization of exception fits well in understanding the firing incident at Oting. The incident does not follow proper juridical framework. Except for an FIR, there has been no arrest or legal proceeding.


The Nagaland government has formed a Special Investigation Team (SIT) to probe the incident. The Nagaland police has also filed an FIR. The Army has declared that it is investigating the incident “at the highest level”, while expressing deep regret and ordering a Court of Inquiry. The findings of such investigations have little or no silver lining. This only highlights the juridical void that the state of exception introduces. As for the suspension of law and military's 'force of law' taking precedence, the conduct of the military is self explanatory. The fact that the military didn't not take the local police and local law enforcement body into confidence only further highlights military rule over civil laws.


The firing incident at Oting also brings to light what Michel Foucault calls "the politics of truth". Foucault posits that every society has its own regime of truth the decides which discourse is acceptable and true, and which is unacceptable and false. The mechanism in this case that enables the distinction between what is true over false is the government. Unless there is a situation where indigenous lives are treated at par with non-indigenous ones, there is no hope for justice. The only discourse available is to campaign for factual news reporting, which even Foucault as an activist would himself do. Perhaps this parrhesia or fearless speech by the survivor would help to weigh in to help discipline the state and its mechanisms of power.


About the author: Boniface Gaigulung Kamei is a Research Scholar at the University of Hyderabad.

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