Life and death in the borderlands: Indian sovereignty and military impunity

The borderlands

The border regions of Kashmir and the northeast have long been subjected to the operation of Indian national security and counter-insurgency laws. In both areas, which may be described as roughly marking the eastern and the western ends of the Himalayas respectively, a massive Indian military presence and military laws have coexisted uneasily for decades with the formal structures of parliamentary democracy, ¹ raising questions about the nature of a democratic state that relies upon emergency laws as part of the normal administrative apparatus. ² Laws such as the Armed Forces (Special Powers) Act (AFSPA) give Indian military and paramilitary forces wide-ranging powers to search, arrest and kill, while shielding army personnel accused of human rights violations from prosecution. A hallmark of the military presence has been the persistence of large-scale abuses against the civilian population, on a scale that meets the legal definition of crimes against humanity. ³ This violence is not accidental, but a continuing and essential element of Indian control in these regions. Institutionalised lawlessness forms the bedrock of Indian control in both Kashmir and the northeast. ⁴ The military overshadows and dominates not only the civilian population, but also civil administration, the judiciary and elected state governments. Maintaining the form, if not the substance, of parliamentary democracy is nevertheless an important element of control, which is centred on the narrative of Indian rule as ‘democratic’.

These structures of power and control are crucial to understanding both the borderlands and the postcolonial Indian state and the sources and the nature of its claim to power. Comparing the different regions shows that the national security and counter-insurgency policies followed by the Indian state since 1947, in the northeast, Punjab and Kashmir, have been remarkably coherent and have faced little opposition from mainstream Indian democratic institutions. Such policies have been shaped, above all, by the perception of cultural difference – religious, linguistic, ethnic – as dangerous and somehow suspect. Religious and ethnic groups falling outside the ‘national mainstream’ have been viewed as potential or actual traitors to the post-independence task of ‘nation-building’. The experience of diverse minority groups thus falls within the context of a single political order, which has responded to challenges with armed force, seeking military solutions to political problems. ⁵

Equally important in shaping these policies is the notion that the nation’s borders must be defended at all costs. This leads to the belief that massive human rights abuses against the civilian population, a recurring feature of counter-insurgency operations in border regions, are a justifiable means of meeting the goal of maintaining the ‘territorial integrity of the nation’. These borders represent the residue of imperial conquests and alliances, which the newly independent nation inherited from the British colonial state. Yet, they are seen in the national imagination as reflecting the eternal, unchanging essence of India, even as their inhabitants are tagged variously as anti-national, ‘secessionist’, ‘traitor’ and ‘terrorist’. The imperative of territorial control thus supplants not only democratic rights, but also the principle of self-determination. The basic human right to self-determination is represented as an illegitimate demand for secession. The moment of independence was, thus, for the borderlands, the beginning of a new colonialism, this time in the name of the nation state, which, paradoxically, had just successfully concluded its own struggle for freedom from colonial rule. Gaikwad sums this up with feeling:

In the contemporary moment, however, the picture of a fluid and tolerant democratic India has become embedded in the national imagination, erasing the history of forceful and illegitimate appropriation of entire lands and communities … The production of such images conceals the status of the Northeast as newborn India’s very own quasi-colony. Calling it a quasi-colony acknowledges that this relationship is not commensurable with that of imperial Europe and her colonies. Yet, it is clear that there are definite similarities to colonialism in the dealings of postcolonial India with the Northeast. These include the politically nebulous claim to the Northeast; the various tropes that ‘mainland’ Indians draw on to construct people from the Northeast as fundamentally different, including ‘race’, ethnicity, religion, and language; the kinds of stereotypes circulated about the Northeast such as food habits, morality, and substance abuse; the denial of ‘coeval time’ to the predominantly tribal peoples of the Northeast, which ratifies the paternalism of the Indian state; the exploitation of the natural resources of the Northeast; and the violence that the state has sanctioned and legitimised over the years in the name of national territorial integrity and ‘peace’. ⁶

The extent to which the post-independence state saw itself as the inheritor of the British empire, its territories and its strategic concerns ⁷ can be seen most clearly in the borders. The consequences of these policies are only now beginning to be documented by ethnographers, human rights activists and journalists. Perhaps not surprisingly, ethnographers are overrepresented among those academics seeking to put the massive state violence in the borderlands in historical and analytical perspective. ⁸

Benedict Anderson’s thesis that nations are imagined communities has an important corollary, which must be recognised, albeit twenty-five years later: if the communities are imagined, so too are their borders. The highly militarised and contested South Asian borders are new features of the history of the region, ⁹ as are the borderlands they seek to define and contain. Kashmir and the northeast were transformed from cultural centres and hubs of economic, social and political linkages into isolated border regions of the newly independent nation, inhabited by ‘suspect communities’. In both Kashmir and Manipur, accession to India was controversial and contested. In Manipur, the Raja was coerced into signing the merger agreement in 1949 after being ‘sequestrated’ far from home and supporters. In Kashmir, the Instrument of Accession was signed by a deeply unpopular autocrat fleeing a democratic, popular uprising. Its very authenticity has been questioned by historians. ¹⁰ A plebiscite to determine the will of the people was promised by the Indian government and UN Security Council resolutions, but never held. Remembrance of these events, preserved in popular memory rather than in official and academic accounts, provided the justification for independence movements, fuelled by the abuses and repression of Indian rule.

The process of imagining and securing these entirely contingent borders has much to tell us about the workings of the Indian state and its democratic institutions. It allows us to measure the claims of the Indian state to be a secular, constitutional democracy against actual practice, and, through this practice, to explore the notions of sovereignty that are expressed and performed through the control of people and territory. It also provides an important corrective to academic perspectives, particularly in the field of international relations, which contrast ‘secular, democratic India’ with its neighbours, Pakistan and China, to their detriment.

AFSPA is only part of an arsenal of laws giving the military unlimited powers of search, arrest, seizure, destruction of houses and the right to shoot to kill to maintain public order, without civilian or judicial oversight. Similar laws, such as the Disturbed Areas Act, the Public Safety Act and anti-terrorism laws like the Terrorist and Disruptive Activities (Prevention) Act (the infamous TADA, in effect from 1985–1995) and the Prevention of Terrorism Act (POTA, in effect from 2002–2004), have also been used for detention without trial, closed trials, evidence given in police custody admissible, and so on. ¹¹ AFSPA is closely modelled on the Armed Forces (Special Powers) Ordinance promulgated by the British colonial government in 1942 to suppress the Quit India movement, a mass uprising that sought to throw off British rule through a series of popular protests. AFSPA was first used by the Indian government in 1958 to suppress the incipient Naga movement for independence and has, since then, been enforced in all the states of the northeast, Punjab and Kashmir.

The reliance on colonial legislation as a means of controlling recalcitrant populations has not waned over time; democratic standards have receded rather than strengthened, as the nation state has found a firmer footing politically, economically and strategically. This method of governance is, thus, neither an aberration nor an overspill from colonialism, but an essential element of Indian state power. While state power in this form is exercised openly in the borderlands, it remains the bedrock of the notion of sovereignty and can be called upon at any time to deal with perceived threats to the national interest. There has been very little opposition to the profoundly undemocratic provisions and operation of the AFSPA and similar laws. Neither parliament nor the free press has questioned AFSPA’s principles and its operation at the time when it was first enacted or after nearly sixty years of its operation. This raises fascinating questions about the nature of the ‘democratic consensus’ in postcolonial India.

The conditions in which AFSPA was enacted are recounted by a human rights activist from Manipur, Mr Babloo Loitongbam:

It was September 11, 1957, when the Home Minister of this country introduced a Bill – the Armed Forces Special Powers Bill – to deal with what he called the hostile Nagas indulging in dacoitry, robbery and arson and which gives the military forces of this country a blank cheque to do what they want. This was an exception to the rule of a democratic, sovereign, socialist republic and implemented to deal with a dissenting voice. This involved a very small section of society in the remotest corner of the country, on the border with Burma. It did not prick the conscience of the people … It took the Parliament about half an hour to make a decision on this: to give a blank cheque to the military to kill as many Nagas as possible. There were some dissenting voices in the Parliament, particularly from Manipur, who tried to make sense in the Parliament saying that this is martial law in a different form. They [said that they] had heard stories of tribal women going to the church and being raped and that this Bill will not help the country; it will only make the problems more complicated. But these voices were drowned out, and the Armed Forces Special Powers Act was passed. ¹²

The law was first used in Nagaland and parts of Assam state to deal with the Naga insurgency, then extended to Mizoram in 1960 when widespread protests followed a devastating famine. According to the 2009 Human Rights Law Network report on extrajudicial killings and enforced disappearances:

The first experiment came with the Nagas in the 1950s – the whole of the Naga hills were devastated. In the 1960s the present state of Mizoram came into the flames. This was the only place in the country [in which] the Indian Air Force aerially bombed villages in a brutal display of force. The 1970s came: Tripura, Manipur. The 1980s came: Assam Valley, and we see the whole Northeast burning in these last decades. And, this exception is increasing: the whole Northeast was an exception, Punjab became an exception in 1983, where a similar act was promulgated but it was never used (it was more the police than the army). Jammu and Kashmir became an exception when the problems started in the 1990s … If for some reason the policymakers think that it is through torturing, executing and disappearing people that dissent will be suppressed, they are sadly mistaken. ¹³

Specific cases presented in the following discussion illustrate the workings of the law and its impact on daily life across generations. These incidents are only illustrative and unfortunately not exhaustive; examples of the abuse of power and military violence can be multiplied endlessly. Their complete history will most likely never be written. The challenges posed to the law, in very different fashion, by two women, Irom Sharmila and Masooda Parveen, and the state’s response to these challenges underline the total power claimed by the law and upheld by the state, the army and the Indian judiciary. This claim to total power is the claim of power over both life and death.

Life

AFSPA was imposed in parts of Manipur in 1958, promulgated in all of Manipur in 1970 and enforced in the entire state in 1980. The conflict in Manipur is many-sided, with pro-independence groups fighting Indian forces and armed militias, identified with different ethnic groups, at odds with each other. This patchwork of conflict is the product of over a century of colonial and postcolonial domination. AFSPA and the system of military control it undergirds permeate every aspect of reality for the people, whose lives have come to be defined and constrained by the daily threat of violence by state forces. Torture, rape, disappearances, custodial killings are routine occurrences, with no recourse to law or justice. One testimony comes from a 14-year-old child tortured by Indian forces:

They kept on pouring water into my nostrils until the water came out in my ears; it felt warm inside my ears. Then they stamped on both my thighs while two persons held my feet while another man sat on my head … They touched the wires’ ends to my chest and gave me shocks three times. Each time I felt as if my whole body had contracted … I keep remembering how they used to beat me and see everything that happened to me vividly. ¹⁴

For Irom Sharmila, a Manipuri poet, the tipping point came on 1 November 2000. On that day, in the town of Malom, a roadside mine exploded as a military convoy drove past. In revenge, Indian troops gunned down ten civilians: people waiting at a bus stop, working in the nearby fields, passers-by. Irom Sharmila was visiting the town at that time and, as she told film-maker Kavita Joshi in an interview:

I had gone there [to Malom] to attend a meeting. The meeting was towards planning a peace rally that would be held in a few days. I was very shocked to see the dead bodies on the front pages of the newspapers. That strengthened me to step on this very threshold of death. Because there was no other means to stop further violations by the armed forces against innocent people. I thought then that the peace rally would be meaningless for me, unless I were to do something to change the situation.

The next day, she announced that she would take no more food or water until AFSPA was repealed. The Indian government has treated her hunger strike as a suicide attempt and placed her under arrest. She is force-fed twice daily through a nose tube. She is charged under Section 307 of the Indian penal code; the maximum sentence for an intended suicide is one year. Each year, for the past eleven years, she is released at the end of the one-year term and then re-arrested the next day. She is kept in solitary confinement in the hospital ward of JN Hospital in Imphal, the capital of Manipur. Treated as a high-security prisoner, she is allowed very few visitors; she has not seen her mother since the beginning of her fast. Visitors have to obtain extensive bureaucratic clearances to gain access. In December 2006, as soon as she was released, her brother and other supporters helped her to secretly travel to Delhi. They set up a roadside protest camp at Jantar Mantar, the site of many popular protests, in an effort to gain support for her cause. They were ignored by the Indian media. Two days later, she was back under arrest and in Imphal. After eleven years, she is gravely ill and weighs a mere 80 pounds.

Manipur has witnessed the full range of abuses associated with counter-insurgency: disappearances, torture, rape, random firing on civilians, mass arrests in ‘combing operations’. In 2004, the Indian government appointed a commission headed by former Supreme Court judge Jeevan Reddy to investigate the workings of AFSPA, following a series of protests that erupted after the kidnapping and killing of a young woman by the Assam Rifles. On 11 July 2004, 32-year-old Manorama Thangjam was arrested by a unit of the 17 Assam Rifles on suspicion of being a ‘guerilla sympathiser’. A few hours later, her mutilated body was found in a field by the roadside. She had been raped, tortured and killed, her lower body shredded with bullet wounds to cover evidence of rape. Mass protests were met with the standard responses: firing on crowds and large-scale arrests. Among the protesters was a small group of Manipuri women – mothers and grandmothers – who expressed their despair by stripping naked at the gates of the Assam Rifles’ headquarters in Imphal, asking the army to rape them and spare their daughters. Their banners bore the words: ‘Indian Army Rape Me’ and ‘Indian Army Take My Flesh’. They were arrested and detained for three months and accused of being guerilla sympathisers. L. Gyaneshori was one of the women who took part in the protest:

Manorama’s killing broke our hearts. We had campaigned for the arrest memo to protect people from torture after arrest. Yet, it did not stop the soldiers from raping and killing her. They mutilated her body and shot her in the vagina. We mothers were weeping, ‘Now our daughters can be raped. They can be subjected to such cruelty. Every girl is at risk.’ We shed our clothes and stood before the army. We said, ‘We mothers have come. Drink our blood. Eat our flesh. Maybe this way you can spare our daughters.’ But nothing has been done to punish those soldiers. The women of Manipur were disrobed by AFSPA. We are still naked. ¹⁵

The Manipur state government appointed a judicial commission headed by retired district judge C. Upendra Singh to investigate the killing of Manorama, but the soldiers charged with the crime refused to appear before the commission, arguing that it did not have any jurisdiction over members of the armed forces. ¹⁶ A writ petition filed by the Assam Rifles before the Gauhati High Court claimed immunity from prosecution under AFSPA. As Human Rights Watch reported:

The petition said that Assam Rifles operated in Manipur under the AFSPA, which provides under section 6 that ‘[n]o prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.’ The Upendra Commission, the Assam Rifles said, could be described as ‘other legal proceedings’. As no sanction from the central government had been obtained, the notification by the Manipur government setting up the commission was ‘null, void and of no legal effect’. While the petition was being considered, the Assam Rifles asked for a stay on the proceedings of the commission. ¹⁷

On 23 June 2005, the High Court’s final verdict found that the state government did not have any jurisdiction over members of the armed forces, but asked the central government to act upon the findings of the Upendra Commission. Both sides appealed the decision, the Assam Rifles arguing that the report should be set aside since the state government did not have jurisdiction over the armed forces. The results of an internal army inquiry have not been made public. In August 2010, the Gauhati High Court ruled that the Manipur state government could act on the basis of the Upendra Commission’s report. ¹⁸

Irom Sharmila continues her fast. Her words, circulated in fragments as they are received by supporters, make clear that her actions are carefully thought out and based on beliefs that will endure:

Our government keeps telling the insurgents to give up arms and move forward to non-violence. But in order to tell others to take the path of non-violence one has to first of all adopt the path of non-violence … There is a constant order by the government to kill anyone who is suspected of being an insurgent … Do we have anything to feel proud of while surviving in this land? Everywhere you see the emptiness and hollowness and subjugation. Are we made so differently by god that we as human do not deserve justice? … Every day I carry a flower in my pocket, I am very fond of flowers … Our ruler is so timid. ¹⁹

Her physical frailty is no measure of the challenge she poses to the rule of military law. Yet, apart from a few supporters, her story has left Indians indifferent, both to her fate and that of the Manipuris living under military rule. This indifference is only another facet of the attitudes towards tribal peoples of the northeast also expressed in the increasing racism, bigotry and violence meted out to those from the northeast living in Indian cities, their numbers now turning them into a visible minority. This prejudice constantly underlines the alienation of the region, an alienation that the national discourse seeks to erase by appropriating the borderlands through tropes of tourism, landscape and ethnicity, but which military rule and violence constantly rewrite.

Death

At the other end of the Himalayas, in Kashmir, the symmetry of the claim to total power is upheld in the affirmation of the right to kill. This right was clearly expressed and upheld in the judgement delivered by the Supreme Court of India in the case of Masooda Parveen v Union of India in 2007. ²⁰ The plaintiff is the widow of Ghulam Mohi-ud-din Regoo, a Kashmiri businessman and advocate in the Jammu and Kashmir High Court. In 1998, he was arrested by the Indian army, tortured and killed in custody. His broken body was left at the front door of his house. Masooda Parveen’s petition, which asked for compensation for the wrongful death of her husband, was summed up in the 2007 Supreme Court judgment:

On February 1, 1998 some surrendered militants along with a unit of the Army (17 Jat) reached my home in Chandhara at about 8.30 pm and searched the house but found nothing incriminating therein. But the army and government gunmen took my husband to the Lethapora Army Camp, the Headquarters of 17 Jat, and tortured him mercilessly leading to his death. Then explosives were tied to his body and detonated to camouflage the murder. ²¹

The army’s response, also summarised in the Supreme Court judgment, is remarkable for its callousness: the best interpretation that can be applied to its version of events is that Regoo was used as a human shield:

On the basis of intelligence provided to the Battalion, a patrol party from the Lethapora Army Camp had searched Regoo’s house at about 8.30 p.m. on 2nd February, 1998. Thereafter he been taken to the camp and interrogated on which he revealed that he was a Pakistani trained militant … he had offered to lead a patrol to a hideout. A patrol was deputed to move to the hideout accompanied by Regoo. He stopped the patrol 50 meters short of the hideout. After ensuring that he was not in a position to escape, Regoo was released with a direction to go forward. When he tried to create an opening, an explosion resulted leading to his death at about 2.30 a.m. on 3rd February, 1998.

In delivering its verdict, the Supreme Court began with a fine expression of Indian paternalism:

We cannot ignore the fact that many in Kashmir who have gone astray are Indian citizens and it is this situation which has led to this incident. We do appreciate that a fight against militancy is more a battle for the minds of such persons, than a victory by force of arms, which is pyrrhic and inevitably leads to no permanent solution. We cannot ignore that in this process some unfortunate incidents do occur which raise the ire of the civilian population, often exacerbating the situation, and the belief of being unduly targeted … in contrast of the law and order machinery that it is often in the dock and called upon to explain the steps they have taken in the course of what they rightly believe to be the nation’s fight. We however believe that the examination of a complaint, and the provision of an effective redressal mechanism preferably at the hands of the administration itself, or through a court of law if necessary, is perhaps one of the most important features of securing a psychological advantage … in an investigation of this kind, based only on affidavits, with a helpless and destitute widow on one side and the might of the state on the other, the search for the truth is decidedly unequal and the court must therefore tilt just a little in favour of the victims. ²²

Having proclaimed the need to ‘tilt just a little in favour of the victims’, the Supreme Court did so by finding that there was no need for the army to account for the death of Ghulam Mohi-ud-din Regoo in custody and that the army’s assertion that he was a militant (and a Pakistan Trained Militant, or PTM, at that) did not require proof and that the plaintiff had failed to establish Regoo’s innocence. Masooda’s petition was dismissed: ‘We have the army and police record pertaining to the incident which clearly shows that Regoo was indeed a militant and that the circumstances leading to his death were as put on record by the respondents. We thus find no merit in the petition. It is accordingly dismissed with order as to costs.’ She filed a review petition, but that too was dismissed. ²³ Ruling out civilian and judicial oversight of army operations in Kashmir, this judgment recognises with remarkable candour that military force is essential to the maintenance of Indian control over Kashmir.

The Indian military presence in Kashmir since 1989 has been estimated at over half a million, fighting insurgents who have never numbered more than 3,000. Military camps sprawl across urban and rural landscapes. Their outward façade consists of sandbag bunkers and razor wire, festooned with liquor bottles and cans to act as alarms, but Kashmiris are intimately familiar with the interiors as well. ‘They eat people there’, is how the camps were described to me once. Inside the camps are torture and interrogation centres, temples and orphanages. Built on commandeered land, sometimes incongruously housed in schools, playgrounds, hotels, guesthouses and cinemas, the camps are places of fear, controlling not only space, but also bodies. Checkpoints, armed soldiers, patrols and military convoys all demonstrate this control. Villages and towns are surrounded by razor wire, inhabitants need permission to travel outside the fences, to bring visitors in, to walk to their fields, to graze their animals, to gather firewood. Kashmiri civilians are cast as the suspects; they must carry identity cards at all times, are subject to search and arrest, crackdowns, blocked roads and official and ‘undeclared’ curfews. Military power is displayed and enacted through rituals of surveillance, ‘checking’, confrontation and impunity. This authority is randomly exercised: arbitrariness is an essential element of absolute power. A routine report in a Kashmiri newspaper described one such incident of the shooting of Kashmiri civilians by Indian troops in the border district of Kupwara in 2005. The villagers set out at dawn to fetch firewood from the neighbouring forest. A 14-year-old girl and her uncle were killed and several others injured. The incident was reported in a Srinagar-based newspaper:

Chaiyal Pati (Drugmulla), Aug 12: Residents of Chaiyal Pati village in Drugmulla sub-area of Kupwara district Saturday said soldiers of 33 Rashtriya Rifles murdered a 14-year-old girl and her uncle in the wee hours when they were walking, along with 11 other villagers, towards forest to fetch firewood. Seven bullets had punctured frail body of the girl and nine had riddled her uncle. Police has filed a case of murder against the 33 RR Unit of army on the basis of statement given by the eyewitnesses.

The victims are Rubeena, 14, daughter of Sanaullah Tantray, and her Uncle Ghulam Mohi-ud-Din Tantray, 37.

Eyewitness account

Rubeena’s 18-year-old brother Waheed Tantray said: ‘Mother woke me up and asked me to fetch firewood. I picked up an axe and walked out of the house. I hadn’t even washed my face. Outside I saw many villagers readying for the trip to forest. We walked in a line and I was the last person in the line. I paused near a stream and washed face and hastened to join them. As we were near the forest I heard a burst of fire and ducked. As I looked up in the direction of fire, I could see soldiers. Everybody had taken cover and when I stood up after some time, I saw two bodies lying on the ground and walked towards them. One was Rubeena’s, my liver [sic], and the other uncle Mohiuddin’s.’

Besides Rubeena and her uncle, there were nine other persons, three of them women, who were ambushed by the soldiers advantageously perched on the slopes of forest hill. The others survived. The survivors said they left the village for forest to fetch firewood at around 5.20 am and by the time they were near the forest, sun had risen. Army has made it mandatory for villagers to carry lanterns if they have to move out of their homes in the dark. If they don’t they risk being shot at. The survivors said soldiers didn’t fire warning shots.

Another survivor and eyewitness who wished to remain anonymous for fear of reprisal said, ‘We routinely go the forests and they have stopped us on many occasions in the past and after questioning allowed us to go inside the forest. Today they just fired at us.’ ²⁴

Using civilians for forced labour and as human shields is common practice, as a recent report in the same newspaper reveals:

From each hamlet of Mawer area (a mountainous area comprising of around fifty villages), a group of four or more civilians, depending on the population of village had to reach the main road, assemble at a spot identified by the troops and with the kerosene lantern in their hands had to wait for the army jawans to come. Once the army would reach near the group, civilians had to jump like monkeys to give satisfaction to army that they are not suicide bombers and then army people would come closer and conduct our body searches to ensure that they do not carry bombs. After this process the group of civilians had to start their duty, by taking long sticks in their hands to search the road and its peripheries for any landmines or IED planted by the militants. This search by civilians continued to the next locality where another group of villagers waited to take the ‘charge’ and the process continued till last village of Mawer area. After performing this hazardous ‘duty’ which normally took two hours, the said group of people had to surrender their identity cards at the nearest army checkpoint which were located at villages of Qalamabad, Maratgam, Choutipora, Langate & Haril. During this tormenting forced labour for the army, it would depend on ones good luck or the mood of the army jawans and the intention of the militants to ensure that how safe villagers remain throughout the day of their tormenting ‘duty’. After depositing the identity cards at the army checkpoints at daybreak, the villagers had to report at various posts, camps or at other spots of the area, where army would need their ‘services’. The villagers were required to construct bunkers, get illicit timber from forests, gather firewood, wash their clothes and clean their kitchens, construct roads for installations and do everything whatever was ordered by the army personnel. However, for maximum time of the day we had to be around the jawans’ bunkers to protect them from attacks from the militants. It was only in the evening that we were returned our identity cards and allowed to go back home. ²⁵

Forced labour also carries strong negative connotations in Kashmiri memory, as it was an essential element of the repressive and exploitative Dogra regime which preceded the Indian takeover in 1947. The Dogras were military adventurers from Jammu who had built up a patchwork kingdom (now known as the Indian state of Jammu and Kashmir) under the aegis of British colonialism. As a small Hindu minority ruling over a Muslim population, the Dogras sought to turn the majority into a dispossessed and powerless underclass. ²⁶ A movement for democratic and accountable government began in opposition to Dogra rule in the 1920s; most Kashmiris see the movement for freedom from India as a continuation of that struggle.

Another human-shield incident, this time involving teenage children, occurred in Daffpora, Budgam district, on 4 October 2003. A unit from the 35 Rashtriya Rifles launched a search operation in the village. Seven boys from two families were forced to accompany them to a house where militants were believed to be hiding. Among the boys were Ali Mohammed Reshi and Ghulam Mohammed Lone, both 16 years old. The search led to a gun battle with militants, in which the boys were used as human shields by the army. Ghulam Mohammed Lone was killed and Ali Mohammed Reshi was seriously injured, receiving bullet injuries to the stomach. The families filed petitions for compensation from the army in the District Court at Budgam. The army personnel, named only as Defendants 1 and 2 in the court documents, refused to appear before the court; their counsel asked the court to dismiss the petition ‘with cost’. Amid the denials and circular reasoning in the written statement presented on behalf of the defendants, one point stands out: ‘That the suit is not maintainable in view of Section 7 of the ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT – 1990 and Section 6 of the JAMMU AND KASHMIR DISTURBED AREAS ACT – 1997 as well.’

Sovereignty

Nearly fifty years after its inception, the absolute military powers conferred by AFSPA are upheld by the Supreme Court of India as an essential element of state power. AFSPA and other military laws are not the only legislation in independent India to have their source in colonial law. Whether this was due to oversight or precaution, the Indian penal code was not changed at independence, as the Human Rights Law Network has pointed out:

At Independence, all laws that had been passed by the colonial rulers were retained, including those that had been enacted to suppress the movement for Independence. In practice, therefore, the democratic vision of the Constitution retained all the armoury of state power and did not shift to a rights-based legal structure to support the fundamental rights of citizens under the Constitution … K.G. Kannabiran points out that, following Independence, the Indian elite adopted the practices of the former British rulers: ‘Governance … was a continuous process, and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of Independence was just an event which did not disturb continuity; it did not announce a change in the existing social order.’ ²⁷

Beyond the repressive military laws:

The Indian criminal justice system retains a number of draconian powers despite the Constitutional protections introduced in 1950 … Preventive detention, for example, which is prescribed by Section 151 of the CrPC, allows an officer to arrest a person without a warrant if it appears that he or she is designing to commit a cognisable offence. Article 22(3) excludes those detained under preventive detention legislation from the right to be informed of the grounds of arrest ‘as soon as may be’, the right to consult and be defended by a legal practitioner of their choice and to be presented before a magistrate within 24 hours – all of which are specific exceptions to the constitutional guarantees contained in Article[s] 22(1) and (2) of the Constitution.

While the Indian Constitution is a remarkable expression of liberal democratic values, the legal system remains firmly anchored in the colonial past. We are, thus, faced with the paradox of a newly independent state, styling itself as a ‘sovereign, democratic republic’, drawing upon colonial law premised upon the absolute power of the ruler to maintain control of its new citizens. At the same time, the façade of democratic government in the borderlands is no mere accident, but an essential element in the packaging of absolutist laws.

The Jeevan Reddy Commission’s report, finally released in 2006, recommended that AFSPA be repealed, but its provisions retained under other laws. Human rights activists justly warned against focusing too narrowly on one particular law, since there are a whole range of others which similarly serve to repress. Such laws have been shown time and again to violate international human rights standards and India’s treaty obligations under the UN’s International Covenant on Civil and Political Rights. As the evidence of abuse continues to unfold, with the discovery of mass graves in Kashmir, ²⁸ it becomes increasingly clear that a government that offers impunity to its armed forces cannot be relied upon to investigate and prosecute crimes carried out by these forces. It is time that the UN and the international community ended their longstanding and unprincipled policy of turning a blind eye to abuses carried out by the Indian state and began the process of creating an international criminal tribunal on Kashmir as a first step in the process of finding a political solution to the conflict.

Currently, the occasional rare criticism by the UN Human Rights Commission is dismissed by the Indian media and officials as encroaching on India’s sovereignty. ²⁹ Nearly all contemporary theorists agree that the sovereignty of states is limited or fragmented. International treaties and agreements, the operation of supranational and intergovernmental bodies, of multinational corporations, of the international human rights system act to check and modify sovereign power; 1948 trumps 1648. Other writers tell us that sovereignty is limited by challenges from below – by armed rebels, by popular movements and insurrections. The preceding discussion and the cases cited here reveal, on the contrary, an underlying notion of sovereignty perhaps even older than 1648, one whereby the ruler has absolute power over life and death. This version of sovereignty represents an absolute claim to power and, what is perhaps unique to the postmodern world, the means to realise it. Such means were lacking in pre-modern times when the divine right of rulers and the absolutist state claimed the total allegiance of their subjects.

The question of legitimacy is not conventionally raised in discussions of sovereignty, which is almost by definition legitimate authority. Extant definitions of sovereignty, even those that decry its outcomes, equate it to authority; that is, the legitimate exercise of power. The terminology and therefore the analysis remain state-centric and deprivilege those who would challenge state sovereignty by denying them even a vocabulary of dissent. It must, however, be asked now: what are the limits to sovereignty? Can they be challenged by those who refuse its power? How may these limits be theorised? How is its legitimacy to be defined or contested? As governments around the world begin to take on and exercise explicit powers of absolute sovereignty, it may well be time to reconsider its epistemological legitimacy and to define the limits beyond which it turns into tyranny. In the borderlands of South Asia, this is a matter of life and death.