CRIMINOLOGY AND ARMED FORCES SPECIAL POWERS ACTS, 1958

This article was written by Estheri Boro a student of Gujarat National Law University.

INTRODUCTION

When it comes to our country India, which is a very diversified country with its various languages and culture, it becomes very difficult to bring its citizen together who all come from a diverse background. The northeastern state is one such example. Even though they very much make themselves a part of India yet since there is such a vast difference in culture and tradition and this leads to the feeling of disconnection amongst the citizens of the north eastern region and the rest of the country. After Independence, The leaders of the country were able to convince the provinces to be included and be together and live peacefully as a single and whole country but when it came to the northeastern region, they failed miserably. The main reason can be traced to its physical and biological traits, which belonged completely to another country. For example, people from south India even though they have different culture and tradition as compared to the mainland India, yet still they have a distinct similarities and connection but when it comes to the northeastern region they differs from it.  So, since the leaders failed to convince them, there was a very high possibility that they would get together with the neighboring countries such as China, Burma, and Thailand etc. because of similarities in their culture, traditions and physical features. Huge protests were commencing in the area against the government of India and in order to curb such protest the government had to come up with a solution. This was in the mindset of the leaders of the country and hence came the existence of such Act.  Violence became the way of life in northeastern states of India. State administration became incapable to maintain its internal disturbance. The President promulgated armed Forces Special Powers Act on 11th September of 1958.  When it has to be looked at from the criminology perspective, it’s a hate-crime. What started as discrimination from one side, it ignited to a larger crime, which has lead to the death of thousands spanning more than 20 years of various violence and crimes. Theories of criminology can be applied in such heinous act provided by the government of India.

HISTORICAL BACKGROUND

At the beginning of the century, the inhabitants of the Naga Hills, which extend across the Indo-Burmese border, came together under the single banner of Naga National Council(NNC), aspiring for a common homeland and self-governance. The Naga leaders were adamantly against Indian rule over their people once the British pulled out of the region. Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Union or not. However, shortly after the British withdrew, independent India proclaimed the Naga Territory as part and parcel of the new Republic.[1] The NNC proclaimed Nagaland’s independence. In retaliation, Indian authorities arrested the Naga leaders. An armed struggle ensued and there were large casualties on either side. The Armed Forces Special Powers Act is the product of this tension. Similarly 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. In order to suppress the movement, the central govt. introduced AFSPA in 1990.

A few years into Indian independence, Jawaharlal Nehru, the first prime minister, faced his first insurgency in Naga districts of Assam, along the Burmese border. Baptist missionaries had converted a majority of the Nagas to Christianity and an educated leadership had emerged in the form of the Naga National Council. In the meetings between the Naga and the Indian leadership, Gandhi theoretically considered the possibility of Naga independence, but Nehru vehemently rejected the idea and offered the Nagas autonomy within India. In 1954, the Nagas began an insurgency for independence. India responded by sending in thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the rebellion. An intense cycle of violence followed. To further arm his counterinsurgents and provide them with legal protection, Nehru’s government passed the Armed Forces Special Powers Act (1958) in the Indian parliament. Now, Prime Minister Nehru echoed Churchill and Linlithgow as they had set about crushing the Quit India Movement with violence and legal protections of the Armed Forces Special Powers Ordinance. “No infirm government can function anywhere. Where there is violence, it has to be dealt with by government, whatever the reason for it may be,” Nehru told the Indian parliament. And Nehru’s soldiers in Nagaland mirrored the ruthlessness of the British forces in India. A reporter from England was told by the people living there that they had been beaten and tied up for hours without water; how they had been bound and hung downwards from beams to be flogged; how sons, brothers and fathers had been bayoneted to death.”[2] The discontent in the borderlands of Nehru’s India wasn’t limited to the Naga areas. Signs of trouble and disillusionment with being ruled by a bureaucrat from New Delhi were growing in the former princely state of Manipur, which had merged with India in 1949. In 1964, the year of Nehru’s death, a separatist militant group seeking independence from India, the United National Liberation Front, was formed in Manipur. India reacted to the centrifugal force by granting statehood to Manipur in 1972, which brought an elected local government and greater financial resources.[3] A few years later, inspired by Maoist ideas, some Manipuri rebels traveled to Lhasa and, with Chinese support, formed an insurgent group, the People’s Liberation Army, which sought Manipuri independence. Several smaller insurgent groups came into being. The number of persons killed in acts of violence went up from two in 1978 to 51 in 1981, according to the South Asian Terrorism Portal. India responded by declaring Manipur a “disturbed area” and imposed the Armed Forces Special Powers Act in late 1980. A brutal cycle of insurgency and counterinsurgency has continued ever since, claiming several thousand lives.

• Hate Crime

Hate crime is generally understood as crime and abuse that is motivated or shaped by prejudice or group hatred. This tends to include prejudice on the grounds of race, religion, ethnicity, gender, sexuality and disability. Hate crime is also referred to as targeted crime, bias crime and prejudice-related crime.[4] It has generally been accepted, however, that an offender need not actually ‘hate’ his or her victim in order to have committed a ‘hate crime’. ‘Hate’ has instead been conceptualized by most to mean ‘prejudice’. Firstly, how do we define prejudice in the criminal context, and

Secondly what prejudices are deserving of criminal attention? Defining prejudice can be extraordinarily difficult. Some prejudices may be viewed as positive, such as anti-fascist or anti-racist. Other prejudices are innocuous such as a dislike of the color green. However, certain prejudices are deemed to be wholly unacceptable and damaging to the social cohesiveness of society. These may include, amongst various other forms of prejudice, racism, homophobia, and anti-religious views. For a layman to understand let us put it in a simple example. One couple was shopping in a store where suddenly two men are attacking the girl. Then later on, they target her boyfriend. Even when the police came they did not stop and continued their act. Police later on declared the particular incident as a hate-crime because the victims were both black and the attackers were white men.[5] They had a strong resentment towards black people and thus lead to such commitment of crime. The act was done maybe because they needed money and were drunk but still another motivation for committing the crime is bias or hatred towards the black community, more commonly known as hate-crime which is referred to those offence that are committed due to perpetrator’s prejudiced or hostile attitudes toward a particular social group represented by the victim. A hate crime is comprised of at least two components – 1) the base criminal offence such as harassment, aggravated assault or even murder. 2) Evidence that the perpetrator’s actions are motivated by prejudiced against the group represented by the victim.[6]

• Applying theory on AFSPA

This act has come into existence due to the feeling of hate crime felt by the people of Northeast. Since the area is declared as a tribal area which indirectly points out that they aren’t that much developed as compared to the rest of the country in terms of mental ability in respect to intellectual and education and also because of physical appearances, the people of Northeast were made to feel like outsiders by the rest of the country. This was armed with many various incidences and such has led to the formation of resentment towards its fellow citizens. They started revolting and protesting against the country when asked to be part of it.  On the other hand, India didn’t let them become part of other country since such act would lead to decrease in the power of India in a lot of various reasons going from the area being decreased to various resources being lost. Then came the birth of this act.  The Act restricted their right to live and right to work and ample powers of dictatorship was given in the hands of the army and they powers were used arbitrarily. All this was too much for the people of the northeast and they came up with a more feeling of resentment towards the government, which has led to more aggravated protest and revolts.

• LABELLING THEORY

Howard Becker created labeling theory in 1963. Labeling theory takes the view that people become criminals when labeled as such and when they accept the label as a personal identity. Important concepts in labeling theory include primary and secondary deviance, retroactive and prospective labeling, as well as the importance of being stigmatized. Labeling theory stresses the idea that deviance is a relative term. Under this perspective, people become deviant not because of the act itself, but how people react to that act.[7] As part of this theory there are two types of deviance. Primary deviance refers to episodes of deviant behavior that many people participate in. Secondary deviance is when someone makes something out of that deviant behavior, which creates a negative social label that changes a person’s self-concept and social identity. We call this negative label a stigma. To illustrate this let us take an example of two married men on a business trip. Both men have an affair on the trip. But only one of the married men does get caught for cheating and words get back home to his wife and family back home.[8] He certainly isn’t the only married men to have an affair-the fact that he got caught is when secondary deviance sets in- when people start to ‘make something’ out of his behavior. It is quite possibly that the man who got caught will be labeled and develop a stigma as the result of his behavior. The man who did not get caught even though the act is same will not develop the same stigma because his act is unnoticed. The consequences are not because of the act itself, but because of someone finding out about his behavior and labeling him.

• Applying this theory to AFSPA

It would not be wrong if we say that the government of India and its citizen has labeled the people of Northeast.  There are various reasons for which such an act has been made. First of all, a person of northeast differs in physical appearances from the rest of the country. There is also high rate of crime incidents in the area. Not saying that the outsiders living there do not commit them. They themselves also indulge in crimes against their own people. In that area, most of the crimes committed are not of heinous in nature and are merely theft or robbery. Such acts are committed because of lack of development in the area, which leads to unavailability of opportunity for them to work for their survival and livelihood. This leads to ample poverty amongst them and also there is a high rise in the population. Since the area is very secluded, its development tends to be very difficult and needs more effort as compared to the other areas of the country. So survival instincts becomes into play and hence leads them to act in such a way that is detrimental to the society but is a need for them. Also, secondly, refugees coming from other countries like Bangladesh, Burma etc. tends to settle in the northeast states. They become part of the region by claiming that they have very much love for the place in their heart. So whenever the people of northeast commit an act they are easily identified because of their physical appearances. For example let us put a scenario where a group of people are committing an act of robbery. The group consists of people from Bihar, Uttar Pradesh, Maharashtra and a few from the northeast. If there ever comes a situation where theft is committed within the group itself, the people of northeast will be the first person to be targeted because the person whose things has been stolen knows that people from the northeast are having the habitual nature of stealing and robbery. He is stereotyping the other person and is labeling him to be a criminal due to his different physical features. Given a hypothetical situation where it is of the mindset that people from Bihar and northeast has the most common inbuilt nature of stealing, still, the northeast person will be the first one to be blamed at because it is a lot easier for others to distinguish him from the crowd and the person from Bihar will get away with it because it is difficult to determine whether he is a Bihari or not.

A stigma has been given to them because of their features. When they go out from their region to other states, they are labeled to be different by discriminating them. This discrimination happens because of stereotype. So, rest of the country already has their mindset that they are criminals and are in the habit of revolting and protesting. Even if they are thinking twice before committing a crime, they know that they are being labeled and there is not point to not commit the crime. Hence this thinking leads to more commitment of crime.

• CRIMES OF POWERFULS

Crimes of the powerful are those crimes committed by people who are in relatively strong legitimate economic and political positions in society. Critical criminologists have endeavored to broaden the narrow frame within which crime is often defined and considered, which has focused heavily on street, property, or ‘stranger’ crimes. Strands of critical criminology have sought to examine crimes and harms perpetrated not by the most disadvantaged in society but by those who hold significant social, economic or political power.[9] These ‘crimes of the powerful’ encompass a range of criminal or harmful activities.[10] Whole corporations and corporate elites or state bodies and state representatives may perpetrate them. Within the broad category of crimes of the powerful some critical criminologists would also include ‘family violence’, which may be founded on, for example, patriarchal ideological assumptions, and ‘hate crimes’, which may be founded on, for example, racist or homophobic ideological assumptions. Critical criminologists have endeavored to broaden the narrow frame within which crime[11] is often defined and considered, which has focused heavily on street, property, or ‘stranger’ crimes. Strands of critical criminology have sought to examine crimes and harms perpetrated not by the most disadvantaged in society but by those who hold significant social, economic or political power. These ‘crimes of the powerful’ encompass a range of criminal or harmful activities. Whole corporations and corporate elites or state bodies and state representatives may perpetrate them. Within the broad category of crimes of the powerful some critical criminologists would also include ‘family violence’, which may be founded on, for example, patriarchal ideological assumptions, and ‘hate crimes’, which may be founded on, for example, racist or homophobic ideological assumptions.[12]

• APPLYING THE THEORY

Here the theory per se does not fall perfectly with the Act but there are instances, which falls within the category. Here we can take the help of Minority being dominated by the majority. The armies are given power to control the protest and revolt within this area. So, if such power falls in the wrong hand it can lead to a disaster which in reality it really did and lead to death of thousands of women, children and men. [13]Armies who are enjoying such power and using it arbitrarily are committing heinous crimes without having anyone to answer to. This is due to that fact that the rest of the country was together and supporting the act, as they were economically, socially and financially stronger than the northeastern region.[14] If it was the other way round and had the northeast region given support from big politicians, such act would have never been made.

PRESENT SCENARIO OF AFSPA

AFSPA which is in force since a long time now, is on its peak in present scenario in regards to controversies. As it can not be ignored that this act brought peace in many areas and was very helpful for a long time in all these disturbed areas of North-East as well as Jammu and Kashmir and maybe it will be of same help in future but right now the conditions are a lot in bad condition and as the public living there and suffering can only tell how their life has gone miserable by this act we can not ignore those facts as well. Public is totally against this act as it is interfering in their lives and not only that there are many comments of AFSPA being in action because of political reasons and some are saying that politic parties want threat and fear in minds of people so that they can rule for longer period and for that military is the biggest help to them. In Northeast India as well as Jammu and Kashmir where AFSPA are mainly in action and regulations there are a number of deaths, encounters, suicides and other harms to the public against which the public is revolting.    The public in the areas where AFSPA is in action are criticizing it and are totally against the regulation. The main reason for such a criticism is their sufferings.[15] If seen from inside the area one can easily see how badly the civilians are being treated and not only this but the worse thing is that they are in such a miserable condition not because of some terrorist activities or foreign invasion but by the army of their own country.[16] And another thing is that their complaints and cries are not being heard over and no one is really caring about that and the reasons for such a dealing are political as well as authoritical as government itself do not want to end the powers given to the military in these areas as the military is saying that ending this power will halt their try to keep piece in the area. The public outcry against the AFSPA is fuelled by instances where the armed forces have misused the powers granted to them: custodial deaths and fake encounter killings, for instance. There are good reasons to believe that in the prevailing situation the act does provide the requisite latitude for such transgressions to occur.[17]

CONCLUSION

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 can not 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 no where 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 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 the government for the future of this act and the people is providing guarantee.

[1] http://law-projects.blogspot.in/2011/11/afspa-act-1958an-analysis.html

[2] Strategic Responses to Crime: Thinking Locally, Acting Globally by Melchor de Guzman, Aiedeo Mintie Das, Dilip K. Das

[3] http://www.lawctopus.com/academike/afspa-forces-1958/

[4] http://sydney.edu.au/law/criminology//ahcn/what_is_hatecrime.shtml

[5] Understanding Hate Crimes: Acts, Motives, Offenders, Victims, and Justice, by Carolyn Turpin-Petrosino

[6] http://exemplifier.org/The Issue of Human Security in Kashmir: AFSPA page 13

[7] http://www.firstpost.com/india/afspa-removed-tripura-18-years-imposed-gone-2266770.html

[8] http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html

[9] http://www.ficci.com/Sedocument/20228/India-Risk-Survey-2013.pdf

[10] Srivastava,Mihir. “The Siege Within: Goes On”. Tehelka. 2 Sept. 2006.

[11] http://www.greggbarak.com/whats_new_10.html

[12] http://ncrb.nic.in/CD-CII2011/Statistics2011.pdf

[13] http://www.open.edu/openlearn/society/crimes-the-powerful/content-section-2

[14] http://www.ukessays.com/services/example-essays/criminology/analysis-crimes-powerful.php

[15] http://law-projects.blogspot.in/2011/11/afspa-act-1958an-analysis.html

[16] Saadut. “AFSPA : Between political rhetoric and reality”. Speaking Mind. 30th October

[17] Raghavan, Srinath. “AFSPA is not worth it”. The Asian Age. Sep 23, 2010