When the government does not follow the direction of the Supreme Court and extend the “disturbed area” beyond six months, it becomes a travesty to claim that government upholds the rule of law.
By Thokchom Ghanakumar
When the Australian government cancelled the visa of a famous tennis player Novak Djokovic, they must not have thought that the time difference of two hours and sixteen minutes could have been considered as an aberration by the court. This discrepancy was all the court needed to quash the decision of the government. As per the record, he was informed at 5:20 am on 6th January 2022 that he had until 8:30 am to give his comments in response to the notice given by the government on the cancellation of his visa application. Instead, the government denied him proper time for consultation and his comment was sought at 6:14 am. Quashing the decision of the government, the court reasoned that the government officials failed to give valid notice of the intention to cancel the visa and was held unreasonable under such circumstances.
This incident which took place 8000kms away from Manipur may seem irrelevant to us, but it has shown that the decisions and actions of the state will be scrutinised at the highest order. Especially in Manipur, where law and rules becomes just another fancy word, this incident reminds us the real value of the rule of law, which the democratic government must follow. Simply speaking, rule of law neither means the “rule” nor a “law”. It is a doctrine of state political morality of securing a balance between the rights and powers between individuals, and between individuals and the State in any free and civil society. Or in other terms, rule of law implies that what is applicable to you will be equally applicable to me. Without doubt, the State makes the law, but the State itself is equally bound to follow the law.
How do we then assess the recent notification dated 8th December 2021 of “disturbed area” by the Home Department, Government of Manipur? It notified the extension of “disturbed area” under AFSPA in the entire state of Manipur excluding Imphal Municipal Area with retrospective effect for a year. The notification clearly violates the Supreme Court’s direction of a periodic review by the executive every six months on the declaration of “disturbed area”. It is not only the defiance of court’s order which is concerning. But the overeagerly actualization of implementing the de facto emergency powers beyond the mandated period of six months by the elected government of Manipur is worrisome for the following reasons.
First, the purpose of the administrative law is to make constitutional governance public centric and the State incrementally ethical. In this case, the notification not only violates the Supreme Court’s direction but unethically goes against the sentimental and democratic demands of the public, considering the violence suffered by the people and denial of access to justice under AFSPA in the region.
Second, such action demonstrates the willingness of our “people’s representatives” to toe the line according to the quintessential Delhi’s administrative discourse and practice, which reduces the issue of democratic rights of the people into the realm of ordinary public order policing. It transfers the de facto authority of the civil power to the armed forces in the name of aiding civil powers. It is questionable, as without any concrete procedure, how the state government is coordinating with the armed forces to aid the civil power.
Third, AFSPA not only imposes armed forces over civil administration but muddles emergency provisions as a part of daily activities in the region. This protracted normalization of the “state of exception” has eroded the democratic practices in civic activities, and the aftermath is the fatigue seen in the application of the rule of law as an inalienable doctrine of democratic governance. Befittingly, this notification symbolizes not only the protracted imposition of AFSPA in Manipur, but also the corrosion of the value of the rule of law in Manipur. Not only it has forced the people to endure this vicious cycle of killings, but has anesthetized the masses and the blatant violations of rules and norms by their representatives are now considered normal.
Fourth, where the rule of law is practiced, in substance and in spirit, the government will carefully exhibit that any decisions and actions are within the limits of the constitution and follows the rule of law. Besides, the world has moved beyond the standard definition of the rule of law as a negation of arbitrariness by the State. The International Commission of Jurists, also known as the Delhi Declaration, 1959 mandates creating conditions for the fulfilment of individual’s development of personality and protection of dignity by creating political, social, economic and cultural conditions as an important element of the rule of law. What we are experiencing in Manipur is that we are forced to limit ourselves to fend for our civil and political rights only. The State-centric, security obsessed policy of considering AFSPA as the only solution in fighting insurgencies has encapsulated the region where fundamental rights granted by the Indian Constitution are made contingent to the opinion of the armed forces. Because of this, people are deprived of those necessary conditions required for the individual development of personality and dignity mentioned above. Further, within a democratic structure in India, AFSPA creates two opposing regimes of democracy and non-democracy and facilitates a zone of exception governed by armed forces which enjoys complete impunity.
When the government does not follow the direction of the Supreme Court and extend the “disturbed area” beyond six months, it becomes a travesty to claim that government upholds the rule of law. In Djokovic’s case, the time difference of two hours and sixteen minutes could be reasoned as a threshold for examining whether the government’s decision was reasonable or not. What threshold should we consider to assess the decision making of the Manipur government as being unreasonable? Expecting the common people to know such criteria that are deprived of the conditions for their individual development of personality and dignity, and whose right to life and personal liberty are dependent on the opinion of the armed forces will be a mockery of their mundane suffering. I hope the representatives of these people who sit in power, must have thought about it. But what is clear is that the rule of law doesn’t mean that government can make rules and laws without any limits or accountability.
(Thokchom Ghanakumar is a PhD candidate at the Jawaharlal Nehru Univserity, New Delhi)