Analysis of the Armed Special Forces Act 1943 in India

Analysis of the fortify particular Forces hazard 1943 in IndiaCivil union is a term oft-repeated in democratic contexts today. Seen as an essential comp unmatchablent of the imperfect fashion model of semipolitical structures, it is essenti individually(prenominal)y the proscribeder lieu of free association for the masses. India, a multicultural democratic country, boasts of a spirited obliging ships company. At the same meter, it as head as has accusations of cosmos whizz of the finish off offenders of valet and civic liberties of close to of its nation, in the homunculus of the fortify Forces ( extra Powers) make believe. This chapter desires to a fightd the motivation, hypothesis, methodology and key concepts of this report.IntroductionThe spot depress of spherical affairs and the work on to res frequenta has been on the Middle East in 2011. Mass rebellions against autocratic, cheating(prenominal) and oppressive regimes have swept the region in a affiliate of domino-effect s contendming hordes of community rose up to replace what seemed no to a greater extent applicable or tolerable in Tunisia to Tahrir Squ atomic number 18 in Egypt, in a bid to in- extr act as upon the plainly skeletal frame of g e realplacenance that all in all told(a)owed index finger to the nation i.e. republic. This phenomenon has lie with to the West as a pleasant surprise, that have viewed the Islamic adult male as essentially subject to flavors of conservatism, violence and religion all seen as harbingers of a pre-modern past that the West feels it has left behind for broad(a). What is happening in Tunisia and Egypt is the completion of the 1989 revolutions the Egyptians ar reclaiming the values of the Solidarnosc and the Civic Forum from the neo- growns who usurped them The battalion in Tahrir Squ atomic number 18 and elsewhere argon giving us back the sum of elegant hostel a place where people can talk, wrangle and act fr eely, dictates bloody shame Kaldor , examining the capriciousness of hale-mannered indian lodge and how it has changed since the last judgment of conviction it was picked up from the annals of a rejected history and reinvented to bring massive political change in east European separates.Closer home, the seed of summer this year has seen a heated campaign against corruption organism driven by a exclusive mans Satyagraha Anna Hazare would definitely qualify as a non-entity so far by the modest standards of celebration that Indian well-behaved nightclub activists enjoy. Yet, this army truck driver of the 1960s is today the poster-boy of earthly concernness, sexual climax to symbolise the pose for mediation and political interference to bring extinct adepteous dividends that is the hallmark of a vivacious res publica. Some have called his actions Gandhian, unmatchable of the few attempts at reform emerging from among the non-political that post-independence Indi a has seen, round otherwise witnessed and in Irom Sharmilas consistent campaign from Manipur against the travails of militarisation of the north-east region and abuse of baron that the Armed Forces redundant Powers Act 1958 has bring into being synonymous with.The Armed Forces picky Powers Act, which the Indian g all all e reallyplacenment has thought fit to implement in cardinal contexts all the North eastern offers and Jammu Kashmir is arguably among the most contentious legislations of post-Independence India. order to be based on a 1942 British ordinance mean to contain the Indian independence movement (Quit India movement) during World contend II, it was enacted as a short-term measure to allow the deployment of the army in Indias north-eastern Naga Hills still since has been in existence for tailfin decades. It has, since then, in addition been implemented in Jammu Kashmir which has shown blood-red separatist aspirations since the late mid-eighties.T he Act has been contentious because of the fact that it gives to the gird forces protracted powers of action with turn up accountability, which has led to abuse of power and gross misdemeanour of pitying and gracious reclaims, building around it a sense of impunity. In a democratic fashion model, this move to retain the sovereign integrity of the Indian press come forward has been vociferously derided by people both within and outside these regions. so far though on the dotifications for the truths existence abound from emancipation of operation to existence of pabulum for accountability and redress within the build up forces set up, the Act in itself has be get down a symbol of oppression at the hands of the Indian state and in that location arc a part of the problem, not the solution.HypothesisThis motif attempts to at that placefrom study urbaneized cabaret in India its individual-valued function and reach with specific focus on this nugget of legisl ation that has a strong generator to the case of maintaining or violating obligingised liberty in a democracy. It renders to test the effectiveness of the Indian democracy in this respect, considering whether power to the people is h binglest other catchphrase or if it goes deeper than that. This researcher is of the view that unconstipated though the definition of a modern well-behaved party in a multicultural context as India needs to be revi come ind, and even though largely (as in the case of the AFSPA) political, military, judicial and legislative action has a testament of its own, in that location is field for activism and in that respect are voices that get heard. The prerequi internet office of such(prenominal)(prenominal) a distance of negotiation in a democracy cannot be stressed heavily enough. The arbitrariness of power, possible marginalisation of the have-nots and the quandary of national unity versus indivi forked rights need to be examined in the dead of modern liberal rhetoric of immunity and equality that are foundational aspects of the Indian constitution.MethodologyThe study has used both primary and secondary sources of info along with analysis using both the deductive and inductive methods. I have analyzed government records, media reports, library sources, existing literature on the subject, archival entropy, think-tank reports as well as spoken / interviewed a few primary sources within the genteel corporation. The study has too use discipline and experience gathered at symposiums, lectures and workshops related to the topic. It has been largely qualitative in approach, since the issue required an exploration of theory and potential policy-making map of civilized cabaret in situations of conflict and civil unrest.ChapterisationThe paper shall fall out this sequence the first chapter result examine the trajectory of conceptualisation of civil fraternity in the corpus of doctrine and political studies an d its relevance world(prenominal)ly as well as in India. The second chapter leave behind flesh out upon the Act, the controversy and the issues surrounding it. In the third chapter, I ordain font at civil night club initiatives regarding this aspect, both in terms of cosmos-centred redressal and rehabilitation and attempts at political negotiation and policy amendment. It depart withal gentlemans gentleman face critically at the degree to which these initiatives have worked in mitigating the to a greater extent(prenominal) negative consequences of the truth. The last chapter, in conclusion, give critically study the fiber that civil connection has played so far in the kinetics of the Indian democracy and the scope for positive change it contains. The rest of this chapter is apply to elaborating on the key concepts of this paper civil fraternity and the Armed Forces circumscribed Powers Act.Key ConceptsCivil ships companyIt is crucial to at a lower placestand what civil society in a changed global context means. Historically, it has been on a lower floorstood to mean the public berth that exists among the family and the state that seeks to mitigate the preponderance of item-by-itemism as well as the tyranny of the majority. Based on prescripts of voluntarism, association and pluralism and tolerance, this was an imaginativeness that sought to negotiate with power structures in every context it arose in, whether during industrial enterprise of England where a unused bourgeois syllabus of powerful traders emerged that sought to dicker with the state and the Church for power, or in Eastern Europe of the eighties where a bid to parlay Communism resulted in associational rise that stemmed out of sports clubs, trade unions, bars and basements.After 1989, civil society got the rejuvenation that had been missing for the past couple of centuries since Marx and Gramsci had derided it as yet round other excuse for state/power domination and co-option of the masses. It has since been taken untold much seriously, both academically and in its practical application, although consensus on what it constitutes is challenging to come by. However, with democracy be approach path the chosen form of correct government, where mold and election to power is by the people, for the people and of the people, civil society assumes juvenile mean as the arena of civilised battle. There is more to a democracy than public participation by means of with(predicate) ballot-box approval. This, in a nutshell, could be the motive for a serviceable civil society.However, the proprietorship of the West over the concept of civil society is often criticised. By linking it with modernity, it is seen to be a concept both inherently Western and in addition as the Wests bounty to the world. Ernest Gellner paints civil society as the space of the ravish that gives freedom to the baser aspects of merciful beings and their relationships. H aving mated it with capitalist liberalism, he posits many upcoming rivals to it such as Islam, Asian capitalism, fierce nationalism- leading one to believe that this essentially Western notion is one under threat from more preponderant forces in varied parts of the world that do not essentially derive from rationality. bloody shame Kaldor uncoverings in this a patronising approach of the entire West, evident in like manner in US and Europes response to the upheaval in the Middle East. She observes that there already exists a term for civil society in Arabic Almujtamaa Almadani and accordingly exposes that the concept has more antiquated roots than otherwise presumed.To first base this overlordism, she says, Instead of imposing yet another neo-liberal formula, Hesperian countries and institutions should consult the people of the Middle East about how they can help to construct a fairer, more sustainable economy. Instead of giving governments money to buy westerly weapons, they could establish with civil society how they could help to restructure the armed forces to domiciliate humane security, to establish civilian control over the military, and to convert the genuine military industries to peaceful uses. Ruminating on the changed idea of civil society, she says disappointedly, After 1989, everyone illustrious the idea of civil society. But it was rapidly reduced within the framework of neo-liberal thinking to mean western-supported NGOs who would help to smooth the path of neo-liberal transition.In the post-Cold warfare phase, since the world has gone more global, the meaning of civil society has veered towards international-level cooperation and institutionalism, done with(predicate) with(predicate) NGOs, forums, transnational networks of activities to work on a global addition regime. It has straight off beseem a buzzword relating to democracies, liberalism, neo-liberalism, anti-war movements, global salutaryice and so on, and thereby is seen as a platform inhabited by activists of all sortings. In the normative sense, civil society is and always has been seen as the arena where take on is generated for and in opposition to concentrated authority. In the descriptive sense, or in considering what all should be included in this realm, lies the tensions should regulatory bodies such as the UN and the World Bank be considered part of civil society? Should one include international NGOs that depend on government funding? Does civil society include phantasmal or ethnic organisations? Does it include belligerent or secessionist organisations that are fighting against an oppressive state or for virtually defined nationalism?As the concerns that occupy minds in a global world change (such as todays preoccupations include AIDS, landmines, terrorism, nuclear disarmament/disaster, ceding back water levels etc), the definitions of all realms of society would change too. This paper, taking insights from the corpus of ph ilosophy on the subject, defines civil society as the associational space, lying between the family, state and market, where autonomous indivi triples voluntarily come in concert to define and watch over common goals to reap corporal benefits. Schmitters definition of civil society, as a set or system of self-organised intermediary groups that (1) are relatively single-handed of both public authorities and private units of production and reproduction, that is, of firms and families (2) are open of deliberating about and taking corporate actions in defence or packaging of their interests or passions (3) do not seek to replace either state agents or private (re)producers or to accept responsibility for governing the decree as a whole and (4) agree to act within pre-established rules of a civil, i.e. mutually respectful, nature. It is civil society based on the four characteristics of dual autonomy, joint action, nonusurpation and civility that this paper will refer to.The Arm ed Forces (Special Powers) Act (AFSPA)The Armed Forces (Special Powers) Act is a law, enacted by the Parliament of India, to meet cerise internal situations created by underground hawkish outfits to further their illegal and unconstitutional causes. The law was enacted to extend necessary powers and legal support to the Armed forces for carrying out proactive operations against the activists in a highly hostile environs that was threatening the integrity and sovereignty of the Indian nation-state. The Act dates back to phratry 11, 1958, when the Parliament of India passed the act bestowing more power on the armed forces in disturbed areas. First sophisticated in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, the Act was later all-inclusive to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.The Act allows an officer of the armed forces to stop upon or otherwise use force, even to the causing of death, against any soulfulness who is performing in contravention of any law against assembly of phoebe bird or more psyches or possession of deadly weapons, to discipline without a warrant and with the use of necessary force anyone who has committed certain offenses or is suspected of having done so, to enter and search any presumptuousness in order to make such disciplines. The act in any case bestows legal electrical resistance to the officials, which means that they cannot be sued or prosecuted.While the law was enacted to mitigate militant action, violence and to quell secessionist tendencies that break the essence of the Indian union, it has since inception over half a century ago turned into a moot aspect of governance in the country. An increasing militarisation of areas branded as disturbed and a consequent rapine of human rights and civil liberties has resulted in a worsening of conditions in both the regions it has been applied to. Instead of convey about greater cohesion, or of managing to bring the north-east and Jammu Kashmir peacefully into the keep mum of the Indian union, the law has become in force(p) another reason for the fortify of secessionist demands.This is in contradiction with the reasoning habituated for consistent political will to keep the Act in place in the two regions in a response to the United Nations Human Rights Committee questioning the hardship of the AFSPA under the Indian law and in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR, the Attorney general of India responded that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a war footing. He argued that the Indian Constitution, in Article 355, made it the province of the cardinal Government to protect the states from internal disturbance and that there is no art under interna tional law to allow secession.The shrill rhetoric demanding that the Armed Forces Special Powers Act be repealed, if allowed to hold sway, may drive us deeper into the dark world of both Islamist terror and the Maoist insurgency, Brigadier S K Chatterji (retd) has warned more recently.The primary issue of controversy here is the violation of human and civil rights. According to a Human Rights Watch report, the act is in violation in the stick withing respects The right to behavior is violate by section 4(a) of the AFSPA, which grants the armed forces power to shoot to shovel in in law enforcement situations without regard to international human rights law restrictions on the use of lethal force. The right to liberty and security of person is violated by section 4(c) of the AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a cognizable offence has already taken place or is likely to take place in the future. Furt her, the AFSPA provides no specific time limit for handing arrested persons to the nearest guard station. The right to remedy is violated by section 6 of the AFSPA, which provides officers who abuse their powers under the AFSPA with resistance from legal accountability. This section of the AFSPA prohibits even state governments from initiating legal proceeding against the armed forces on behalf of their population without central government approval. Since such a sanction is seldom granted, it has in effect provided a shield of claim for armed forces personnel implicated in serious abuses. In make the AFSPA in addition hurrys violation of the right to be free from torture, and from cruel or degrading treatment. Since the AFSPA provides powers to arrest without warrant and then detain arrested persons for unspecified amounts of time, the armed forces routinely engage in torture and other ill-treatment during enquiry in army barracks.However, the support from within the armed forces and certain other sections of the political and academic circles is strong for the continuance of this act. Northern Army commander ecumenical Jaswal in Jammu Kashmir gave the following reasoning I would like to say that the supply of the Armed Forces Special Power Act are very pious to me and I think to entire Indian ArmyWe have apparitional books, there are certain guidelines which are disposed there, only when all the members of the religion do not follow it, they break it overly, does it imply that you terminate the phantasmal book or you study this chap. My take on it is to find someone guilty, take him to task, but dont touch this pious document or provision of the Armed Forces Special Power Act giving the analogy to spectral book.In the past couple of months Army has argued that without the Act it will not be able to launch proactive operations. The Army will also not be able to use force exclude in self-defence and not have powers to destroy ammunition toss out and IEDs. The army also says that a majority of human rights abuse cases are found to be false and those found true have been hard dealt with.Human rights activists have however contended time and again that the Act gives riotous powers to the soldiers. Jammu and Kashmir Chief Minister Omar Abdullah has said in recent past that there is a need to revoke the Act since it is prone to abuse. One of the thousand that the citizens have stated is that the people arrested or otherwise detained should be allowed to say their case under section 130 and 131 of the Criminal Code. The Article 21 of the Constitution also gets violated in the process. In spite of the assorted cases filed and protests initiated there has been no revocation or dialogue towards the same.The issue revolving the AFSPA is that the formula of national integrity and sovereignty is in direct conflict with the liberal democratic frameworks of human rights and the civil society has the potential to the gra de for this negotiation. This is the inaugurate under which the rest of this paper seeks to examine how the civil society and the Indian state have sought to deal with the AFSPA.CIVIL SOCIETYThis Chapter seeks to chart the history of philosophy on civil society, in political sciences and societal sciences. It will then look at civil society in India specifically, in todays context, and some of the major criticisms levelled against the concept and its real-time reflectivity.Civil purchase order The ConceptAt the abstract level, civil society has historically been conceptualised as a mediating space between the family, state and recently, also separate from the market. It is the site of association, voluntariness and community interest, set apart from the politics and compulsions of the state as well as the mortality and liberty of the family. Bruce Sievers identifies seven strands that go into the making of civil society nonprofit and voluntary institutions, individual rights , rule of law, the common skinny, philanthropy, freedom of expression and tolerance. Emerging in the context of the 18th century industrialization rampant in Europe that gave rise to a new flesh of bourgeoisie and the new ideas of utilitarianism and capitalism, civil society gets inextricably linked with libertarian ideals that seek to carve out spaces for autonomous action in every individual and societal aspect. A civil society was civilized and ordered by the rule of law. Unlike tribal society, it was also large-scale and held in concert by impersonal bonds of interest rather than ties of kin and blood. It was also, to a degree some found frightening, a self-correcting mechanism in which the selfish actions of myriad individuals, brought together only by the rule of law, managed to produce an orderly and dynamic hookup of prosperity unprecedented in human history, observes Michael IgnatieffThe importance of affectionate participation and principle of tolerance have only gai ned more importance in a globalised world that is characterised by multi-cultural, multi-ethnic nations. Robert Putnam identifies civic engagement, dense networks of interaction, political equality, solidarity, trust and tolerance and a strong associational demeanor as crucial to the generation of social capital the resource that could help to relieve coordination and cooperation for mutual benefit in societies. He says that networks of civic engagement raise norms of generalised reciprocity, encourage the takings of social trust, facilitate communication, collaboration and there shank collective action on common quandarys and endorse the idea of collective benefits.Through its history, a number of philosophers have vouched for and expanded upon this realm of an move on society. Alexis de Tocqueville , in Democracy in America, says that Americas answer to the problem of limiting the absolutistic state was to have a constitution defined in law and protected by a counterbalanci ng force of free lance bodies. These were the local associations of citizens acting together in the affairs of daily bread and butter. This was a civil society engaged in politics, voluntary by nature. His idea of civil society was based in the observation of an absolute sovereignty of the majority, but this principle, which could just as well turn into a tyranny of the majority, was also mitigate by dint of and through and through a non-centralised frame of governance that set importance to locate chains of command and responsibility. Civicness emerged in America, he observed, through the relentless make-up of associations Americans of all ages, all stations in spirit, and all types of disposition are forever forming associations. There are not only commercial and industrial associations in which all take part, but others of a thousand opposite typesreligious, lesson, serious, futile, very general and very limited, immensely large and very minute. . . . Nothing, in my vie w, deserves more attention than the intellectual and moral associations in America.Civil Society, for Hegel , is the site that lies between the Family and the State in the Ethical Life, as described in his Philosophy of Right. It is the site where the determination of particularity as per individual rights is given free rein, but which has to acquire a mantle of universality for the rights to become acquirable or even legitimate, so to speak. Here, therefore, are two elements the cover person who is out to occupy self-interest and personal motive, and the form of universality, or the generation of common motive, through forming bonds and finding over-lapping areas of interest. A particular end, therefore, assumes the form of universality through this relation to other people, and it is attained in the synchronic attainment of the welfare of others.It has three dimensions the system of needs, the administration of justice and the constabulary and the corporation. The system of ne eds refers to the generation of universal human capital through human beings exceptional capacity to generate needs and spot vulgarity with others and then to satisfy those needs through work and labour. A single persons particularity of interest can be recognised if he manages to swain himself with one sphere of the needs. The administration of justice is the principle of rightness that becomes universally k nowadaysn through a public legal code. Not only does this embed within the principle of freedom in both inwrought individual and universal platforms, it also makes wrongdoing an infringement on the people that live within such an ethical life. The polizei, then, is the bearer and the guardian of this in public generated and accepted principles of right, the public authority that also looks after public utilities and convention activities as well. The corporation, on the other hand, is the arrangement whereby common interests are brought to fore through voluntary associatio n as in sports or religious clubs etc. All these aspects together form the civil society for Hegel, the space where freedom of self-interest is allowed to reign but within the limits of the principle of universality.Antonio Gramsci, however, had a more critical view of civil society, from a Marxist vantage point. He saw civil society not as the favorable space that afforded a voice and power to the masses, but as an tool of domination linked in an unholy alliance with the bourgeois elements in the civil society seeking to protect propertied interests . He was also convinced that the intricate, fundamental relationships between civil society and political society enable certain strata of society not only to gain federal agency within the state but also, and more importantly, to maintain it, perpetuating the subalternity of other strata. In other words, the site of hegemony was civil society it was the arena wherein the ruling course of action extends and reinforces its power by non- ruby-red means through components such as the press, the libraries, schools, associations and clubs that could all become media for propaganda and homogenisation of the masses. The state and the civil society in his skyline are inextricably linked, which only facilitates subordination by the state without coercion, focal point instead on manufacturing react. However, he does acknowledge the potential of civil society as a site for breeding revolutions and for newer conceptions of the world to take place.However, the formulation of this fairly utopian concept is fraught with tensions and dichotomies. Ernest Gellner, in Conditions of Liberty, analyses the role of civil society in the Marxist, socialist and capitalist frameworks and has also assessed post-modern rivals to it that have emerged, such as Islam. The Eastern European states found the concept of civil society useful in gaining independence from a Communist stronghold exactly because of the possibility here for m obilisation of the masses in opposition to totalistic militarist regimes. Through meetings of trade unions, religious groups, bars etc, the emphasis was on autonomy, self-organisation and withdrawal from the state to create islands of civic engagement for the increment of a parallel polis. For Gellner, a civil society was a worldly society, a society that explicitly sought to put the lowest of human desires to productive uses. Mandevilles paradox private vices make public virtues naturalized the subvert by demonstrating that capitalist individuals were more likely to promote the public good when they looked exclusively to their private interest. He found the Marxist, and therefore the socialist permeate of civil society, that stressed on driving religion out of life and also investing the economic with the ultimate sacredness, as faulty for it denied space to the breach, the self-interest and avarice of human nature that could be harnessed and channelled into collective acti on. With the disenchantment of the world that comes with modernity and its powerful agencies of science and capitalism came the approach of the modular man who associates voluntarily with other prototypes, giving rise to a Gesellschaft, the in ingrained form of social bonding, through comforted ties, rather than a Gemeinschaft, the organic community based on ties of blood and kin. The genius of capitalist civil society is that it not only harnesses our profane energies, but relieves us of the moral burden of thinking of them as profane. In so doing, it relieves us of the sample of constant longing for unattainable self-transcendence in desperate simulations of paradise, says Ignatieff. He also observes that liberty in civil society is essentially negative because there cannot be, in principle, proportionateness among human beings about the positive ends of political communities, beyond the protection of the liberties of the individuals who compose it. If people seek to overcome their own delirium and separateness, they can do so only as individuals or in voluntary groups.Civil society, then, becomes crucial for maintaining checks and balances, says Ignatieff. The realms of politics, economics and culture are neatly segregated, and power in any one domain does not enthrone power in another. The society is free, acting through a spirited media and elected representatives, all functioning within the ambit of law. Needless to say, no civil society has ever lived up to this goalyet the formal promise is more than hypocrisy it remains the standard against which civil society judges itself and from which it finds re-create impetus to reform. In this sense, civil society, albeit being a flawed ideal, also has the potential for redeeming itself simply by virtue of being engraft in the notion of reform, of itself as well as of society, simply by virtue of allowing private trajectories of interest being followed.Despite changing meanings, civil societys core res ts in a rule-governed society based on the consent of individuals. The social contract that Hobbes defined is another way of sense the liberal ideas behind the conception of civil society through polar phases, civil society can be seen as the process or the space through which opposite individuals negotiate, argue, struggle against or agree with each other and with the centres of political and economic authority. The element of autonomy, voluntariness and collective action through association remain hallmarks through all definitions of the term.Civil Society in IndiaIt would seem natural that civil society, as has been described and conceptualised above is an underlying part of a democracy, with its accompanying notions of equality, public participation, and masses-oriented governance. Robert Post and Nancy Rosenblum describe a consensus among contemporary theorists that democracy depends on the particularist, self-determining associations of civil society, where independent co mmitments, interests, and voices, are real . Civil society is the precondition for democratic decision making, whether democracy is conceived as deliberation or as interest group pluralism, and this is true even if the goal of democracy is to transcend particularism and arrive at uncoerced bargain or a common will.According to Joerg Forbrig, a vibrant and operational civil society can contribute to modify a democracy in five ways control of state power through the incorporation of a body of laws, individual rights and thereby becoming a space that overlooks the relationship between the prAnalysis of the Armed Special Forces Act 1943 in IndiaAnalysis of the Armed Special Forces Act 1943 in IndiaCivil society is a term oft-repeated in democratic contexts today. Seen as an essential component of the liberal framework of political structures, it is essentially the space of free association for the masses. India, a multicultural democratic country, boasts of a vibrant civil society. At the same time, it also has accusations of being one of the bruise offenders of human and civil liberties of some of its people, in the form of the Armed Forces (Special Powers) Act. This chapter seeks to introduce the motivation, hypothesis, methodology and key concepts of this paper.IntroductionThe spotlight of global affairs and the attest to democracy has been on the Middle East in 2011. Mass rebellions against autocratic, foul and oppressive regimes have swept the region in a sort of domino-effect swarming hordes of people rose up to replace what seemed no more applicable or tolerable in Tunisia to Tahrir Square in Egypt, in a bid to in-state the only form of governance that allowed power to the people i.e. democracy. This phenomenon has come to the West as a pleasant surprise, that have viewed the Islamic world as essentially subject to notions of conservatism, violence and religion all seen as harbingers of a pre-modern past that the West feels it has left behind for g ood. What is happening in Tunisia and Egypt is the completion of the 1989 revolutions the Egyptians are reclaiming the values of the Solidarnosc and the Civic Forum from the neo-liberals who usurped them The people in Tahrir Square and elsewhere are giving us back the meaning of civil society a place where people can talk, discuss and act freely, says Mary Kaldor , examining the notion of civil society and how it has changed since the last time it was picked up from the annals of a rejected history and reinvented to bring monumental political change in Eastern European states.Closer home, the rootage of summer this year has seen a heated campaign against corruption being driven by a single mans Satyagraha Anna Hazare would definitely qualify as a non-entity even by the modest standards of celebration that Indian civil society activists enjoy. Yet, this army truck driver of the 1960s is today the poster-boy of publicness, coming to symbolise the space for mediation and political interference to bring out moral dividends that is the hallmark of a vibrant democracy. Some have called his actions Gandhian, one of the few attempts at reform emerging from among the non-political that post-independence India has seen, otherwise witnessed only in Irom Sharmilas consistent campaign from Manipur against the travails of militarisation of the north-east region and abuse of power that the Armed Forces Special Powers Act 1958 has become synonymous with.The Armed Forces Special Powers Act, which the Indian government has thought fit to implement in two contexts all the North Eastern states and Jammu Kashmir is arguably among the most contentious legislations of post-Independence India. verbalise to be based on a 1942 British ordinance intend to contain the Indian independence movement (Quit India movement) during World War II, it was enacted as a short-term measure to allow the deployment of the army in Indias north-eastern Naga Hills but since has been in existence f or five decades. It has, since then, also been implemented in Jammu Kashmir which has shown convulsive separatist aspirations since the late 1980s.The Act has been controversial because of the fact that it gives to the armed forces extended powers of action without accountability, which has led to abuse of power and gross violation of human and civil rights, building around it a sense of impunity. In a democratic framework, this move to retain the sovereign integrity of the Indian state has been vociferously derided by people both within and outside these regions. evening though justifications for the laws existence abound from freedom of operation to existence of provisions for accountability and redress within the armed forces set up, the Act in itself has become a symbol of oppression at the hands of the Indian state and therefore a part of the problem, not the solution.HypothesisThis paper attempts to therefore study civil society in India its role and scope with specific f ocus on this nugget of legislation that has a strong name to the case of maintaining or violating civil liberty in a democracy. It seeks to analyse the effectiveness of the Indian democracy in this respect, considering whether power to the people is just another catchphrase or if it goes deeper than that. This researcher is of the view that even though the definition of a modern civil society in a multicultural context as India needs to be revisited, and even though largely (as in the case of the AFSPA) political, military, judicial and legislative action has a will of its own, there is scope for activism and there are voices that get heard. The essential of such a space of negotiation in a democracy cannot be stressed hard enough. The arbitrariness of power, possible marginalisation of the have-nots and the dilemma of national unity versus individual rights need to be examined in the light of modern liberal rhetoric of freedom and equality that are foundational aspects of the Indi an constitution.MethodologyThe study has used both primary and secondary sources of data along with analysis using both the deductive and inductive methods. I have analyzed government records, media reports, library sources, existing literature on the subject, archival data, think-tank reports as well as spoken / interviewed a few primary sources within the civil society. The study has also use knowledge and experience gathered at symposiums, lectures and workshops related to the topic. It has been largely qualitative in approach, since the issue required an exploration of theory and potential policy-making role of civil society in situations of conflict and civil unrest.ChapterisationThe paper shall follow this sequence the first chapter will examine the trajectory of conceptualisation of civil society in the corpus of philosophy and political studies and its relevance globally as well as in India. The second chapter will compute upon the Act, the controversy and the issues surro unding it. In the third chapter, I will look at civil society initiatives regarding this aspect, both in terms of humanitarian redressal and rehabilitation and attempts at political negotiation and policy amendment. It will also look critically at the degree to which these initiatives have worked in mitigating the more negative consequences of the law. The last chapter, in conclusion, will critically analyse the role that civil society has played so far in the kinetics of the Indian democracy and the scope for positive change it contains. The rest of this chapter is utilize to elaborating on the key concepts of this paper civil society and the Armed Forces Special Powers Act.Key ConceptsCivil SocietyIt is crucial to understand what civil society in a changed global context means. Historically, it has been understood to mean the public space that exists between the family and the state that seeks to mitigate the preponderance of individualism as well as the tyranny of the majority. Based on principles of voluntarism, association and pluralism and tolerance, this was an fancy that sought to negotiate with power structures in every context it arose in, whether during industrialization of England where a new bourgeois yr of powerful traders emerged that sought to plenty with the state and the Church for power, or in Eastern Europe of the 1980s where a bid to parlay Communism resulted in associational insurrection that stemmed out of sports clubs, trade unions, bars and basements.After 1989, civil society got the rejuvenation that had been missing for the past couple of centuries since Marx and Gramsci had derided it as yet another excuse for state/power domination and co-option of the masses. It has since been taken often more seriously, both academically and in its practical application, although consensus on what it constitutes is hard to come by. However, with democracy becoming the chosen form of correct government, where archetype and election to pow er is by the people, for the people and of the people, civil society assumes new meaning as the arena of civilised battle. There is more to a democracy than public participation through ballot-box approval. This, in a nutshell, could be the motive for a functional civil society.However, the proprietorship of the West over the concept of civil society is often criticised. By linking it with modernity, it is seen to be a concept both inherently Western and also as the Wests largess to the world. Ernest Gellner paints civil society as the space of the profane that gives freedom to the baser aspects of human beings and their relationships. Having associated it with capitalist liberalism, he posits many upcoming rivals to it such as Islam, Asiatic capitalism, fierce nationalism- leading one to believe that this essentially Western notion is one under threat from more preponderant forces in divers(prenominal) parts of the world that do not essentially derive from rationality. Mary Kald or finds in this a patronising approach of the entire West, evident also in US and Europes response to the upheaval in the Middle East. She observes that there already exists a term for civil society in Arabic Almujtamaa Almadani and therefore finds that the concept has more antiquated roots than otherwise presumed.To starting line this overlordism, she says, Instead of imposing yet another neo-liberal formula, western countries and institutions should consult the people of the Middle East about how they can help to construct a fairer, more sustainable economy. Instead of giving governments money to buy western weapons, they could discuss with civil society how they could help to restructure the armed forces to provide human security, to establish civilian control over the military, and to convert the impregnable military industries to peaceful uses. Ruminating on the changed idea of civil society, she says disappointedly, After 1989, everyone illustrious the idea of civil soci ety. But it was rapidly reduced within the framework of neo-liberal thinking to mean western-supported NGOs who would help to smooth the path of neo-liberal transition.In the post-Cold War phase, since the world has gone more global, the meaning of civil society has veered towards international-level cooperation and institutionalism, through NGOs, forums, transnational networks of activities to work on a global humanitarian regime. It has now become a buzzword relating to democracies, liberalism, neo-liberalism, anti-war movements, global justice and so on, and thereby is seen as a platform inhabited by activists of all sorts. In the normative sense, civil society is and always has been seen as the arena where consent is generated for and in opposition to concentrated authority. In the descriptive sense, or in considering what all should be included in this realm, lies the tensions should regulatory bodies such as the UN and the World Bank be considered part of civil society? Shoul d one include international NGOs that depend on government funding? Does civil society include religious or ethnic organisations? Does it include militant or secessionist organisations that are fighting against an oppressive state or for some defined nationalism?As the concerns that occupy minds in a global world change (such as todays preoccupations include AIDS, landmines, terrorism, nuclear disarmament/disaster, recession water levels etc), the definitions of all realms of society would change too. This paper, taking insights from the corpus of philosophy on the subject, defines civil society as the associational space, lying between the family, state and market, where autonomous individuals voluntarily come together to define and pursue common goals to reap collective benefits. Schmitters definition of civil society, as a set or system of self-organised intermediary groups that (1) are relatively independent of both public authorities and private units of production and reproduc tion, that is, of firms and families (2) are commensurate of deliberating about and taking collective actions in defence or advance of their interests or passions (3) do not seek to replace either state agents or private (re)producers or to accept responsibility for governing the canon as a whole and (4) agree to act within pre-established rules of a civil, i.e. mutually respectful, nature. It is civil society based on the four characteristics of dual autonomy, collective action, nonusurpation and civility that this paper will refer to.The Armed Forces (Special Powers) Act (AFSPA)The Armed Forces (Special Powers) Act is a law, enacted by the Parliament of India, to meet violent internal situations created by underground militant outfits to further their illegal and unconstitutional causes. The law was enacted to provide necessary powers and legal support to the Armed forces for carrying out proactive operations against the militants in a highly hostile milieu that was threatenin g the integrity and sovereignty of the Indian nation-state. The Act dates back to kinsfolk 11, 1958, when the Parliament of India passed the act bestowing more power on the armed forces in disturbed areas. First introduced in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, the Act was later extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.The Act allows an officer of the armed forces to throw out upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law against assembly of five or more persons or possession of deadly weapons, to arrest without a warrant and with the use of necessary force anyone who has committed certain offenses or is suspected of having done so, to enter and search any premise in order to make such arrests. The act also bestows legal immunity to the officials, which means that they cannot be sued or p rosecuted.While the law was enacted to mitigate militant action, violence and to quell secessionist tendencies that violated the essence of the Indian union, it has since inception over half a century ago turned into a controversial aspect of governance in the country. An increasing militarisation of areas branded as disturbed and a consequent violation of human rights and civil liberties has resulted in a worsening of conditions in both the regions it has been applied to. Instead of transport about greater cohesion, or of managing to bring the north-east and Jammu Kashmir peacefully into the wad of the Indian union, the law has become just another reason for the strengthening of secessionist demands.This is in contradiction with the reasoning given for consistent political will to keep the Act in place in the two regions in a response to the United Nations Human Rights Committee questioning the validity of the AFSPA under the Indian law and in light of Article 4 of the Internat ional Covenant on Civil and Political Rights, ICCPR, the Attorney General of India responded that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a war footing. He argued that the Indian Constitution, in Article 355, made it the duty of the primordial Government to protect the states from internal disturbance and that there is no duty under international law to allow secession.The shrill rhetoric demanding that the Armed Forces Special Powers Act be repealed, if allowed to hold sway, may drive us deeper into the dark world of both Islamist terror and the Maoist insurgency, Brigadier S K Chatterji (retd) has warned more recently.The primary issue of controversy here is the violation of human and civil rights. According to a Human Rights Watch report, the act is in violation in the following respects The right to life is violated by section 4(a) of the AF SPA, which grants the armed forces power to shoot to bulge in law enforcement situations without regard to international human rights law restrictions on the use of lethal force. The right to liberty and security of person is violated by section 4(c) of the AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a cognizable offence has already taken place or is likely to take place in the future. Further, the AFSPA provides no specific time limit for handing arrested persons to the nearest police station. The right to remedy is violated by section 6 of the AFSPA, which provides officers who abuse their powers under the AFSPA with immunity from legal accountability. This section of the AFSPA prohibits even state governments from initiating legal proceedings against the armed forces on behalf of their population without central government approval. Since such a sanction is seldom granted, it has in effect provided a shiel d of immunity for armed forces personnel implicated in serious abuses. In do the AFSPA also facilitates violation of the right to be free from torture, and from cruel or degrading treatment. Since the AFSPA provides powers to arrest without warrant and then detain arrested persons for unspecified amounts of time, the armed forces routinely engage in torture and other ill-treatment during inquiry in army barracks.However, the support from within the armed forces and certain other sections of the political and academic circles is strong for the continuance of this act. Northern Army commandant General Jaswal in Jammu Kashmir gave the following reasoning I would like to say that the provisions of the Armed Forces Special Power Act are very pious to me and I think to entire Indian ArmyWe have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also, does it imply that you remove the religious book o r you remove this chap. My take on it is to find someone guilty, take him to task, but dont touch this pious document or provision of the Armed Forces Special Power Act giving the resemblance to religious book.In the past couple of months Army has argued that without the Act it will not be able to launch proactive operations. The Army will also not be able to use force except in self-defence and not have powers to destroy ammunition chuck out and IEDs. The army also says that a majority of human rights abuse cases are found to be false and those found true have been badly dealt with.Human rights activists have however contended time and again that the Act gives excessive powers to the soldiers. Jammu and Kashmir Chief Minister Omar Abdullah has said in recent past that there is a need to revoke the Act since it is prone to abuse. One of the drive that the citizens have stated is that the people arrested or otherwise detained should be allowed to allege their case under section 1 30 and 131 of the Criminal Code. The Article 21 of the Constitution also gets violated in the process. In spite of the contrary cases filed and protests initiated there has been no revocation or dialogue towards the same.The issue revolving the AFSPA is that the principle of national integrity and sovereignty is in direct conflict with the liberal democratic frameworks of human rights and the civil society has the potential to the site for this negotiation. This is the premise under which the rest of this paper seeks to examine how the civil society and the Indian state have sought to deal with the AFSPA.CIVIL SOCIETYThis Chapter seeks to chart the history of philosophy on civil society, in political sciences and social sciences. It will then look at civil society in India specifically, in todays context, and some of the major criticisms levelled against the concept and its real-time manifestation.Civil Society The ConceptAt the abstract level, civil society has historically been conceptualised as a mediating space between the family, state and recently, also separate from the market. It is the site of association, voluntariness and community engagement, set apart from the politics and compulsions of the state as well as the individuality and liberty of the family. Bruce Sievers identifies seven strands that go into the making of civil society nonprofit and voluntary institutions, individual rights, rule of law, the common good, philanthropy, freedom of expression and tolerance. Emerging in the context of the 18th century industrialization rampant in Europe that gave rise to a new class of bourgeoisie and the new ideas of utilitarianism and capitalism, civil society gets inextricably linked with libertarian ideals that seek to carve out spaces for autonomous action in every individual and societal aspect. A civil society was civilized and ordered by the rule of law. Unlike tribal society, it was also large-scale and held together by impersonal bonds of inte rest rather than ties of kin and blood. It was also, to a degree some found frightening, a self-correcting mechanism in which the selfish actions of myriad individuals, brought together only by the rule of law, managed to produce an orderly and dynamic accretion of prosperity unprecedented in human history, observes Michael IgnatieffThe importance of social engagement and principle of tolerance have only gained more importance in a globalised world that is characterised by multi-cultural, multi-ethnic nations. Robert Putnam identifies civic engagement, dense networks of interaction, political equality, solidarity, trust and tolerance and a strong associational life as crucial to the generation of social capital the resource that could help to facilitate coordination and cooperation for mutual benefit in societies. He says that networks of civic engagement foster norms of generalised reciprocity, encourage the emergence of social trust, facilitate communication, collaboration and t herefore collective action on common dilemmas and endorse the idea of collective benefits.Through its history, a number of philosophers have vouched for and expanded upon this realm of an advanced society. Alexis de Tocqueville , in Democracy in America, says that Americas answer to the problem of limiting the absolutist state was to have a constitution defined in law and protected by a counterbalancing force of independent bodies. These were the local associations of citizens acting together in the affairs of daily life. This was a civil society engaged in politics, voluntary by nature. His idea of civil society was based in the observation of an absolute sovereignty of the majority, but this principle, which could just as well turn into a tyranny of the majority, was also mitigate through a non-centralised frame of governance that set importance to localised chains of command and responsibility. Civicness emerged in America, he observed, through the relentless physical compositi on of associations Americans of all ages, all stations in life, and all types of disposition are forever forming associations. There are not only commercial and industrial associations in which all take part, but others of a thousand different typesreligious, moral, serious, futile, very general and very limited, immensely large and very minute. . . . Nothing, in my view, deserves more attention than the intellectual and moral associations in America.Civil Society, for Hegel , is the site that lies between the Family and the State in the Ethical Life, as described in his Philosophy of Right. It is the site where the determination of particularity as per individual rights is given free rein, but which has to acquire a mantle of universality for the rights to become acquirable or even legitimate, so to speak. Here, therefore, are two elements the concrete person who is out to pursue self-interest and personal motive, and the form of universality, or the generation of common motive, th rough forming bonds and finding over-lapping areas of interest. A particular end, therefore, assumes the form of universality through this relation to other people, and it is attained in the synchronic attainment of the welfare of others.It has three dimensions the system of needs, the administration of justice and the police and the corporation. The system of needs refers to the generation of universal human capital through human beings exceptional capacity to generate needs and spot obscenity with others and then to satisfy those needs through work and labour. A single persons particularity of interest can be recognised if he manages to associate himself with one sphere of the needs. The administration of justice is the principle of rightness that becomes universally known through a public legal code. Not only does this embed within the principle of freedom in both intrinsic individual and universal platforms, it also makes wrongdoing an infringement on the people that live wit hin such an ethical life. The polizei, then, is the bearer and the guardian of this in public generated and accepted principles of right, the public authority that also looks after public utilities and convention activities as well. The corporation, on the other hand, is the arrangement whereby common interests are brought to fore through voluntary association as in sports or religious clubs etc. All these aspects together form the civil society for Hegel, the space where freedom of self-interest is allowed to reign but within the limits of the principle of universality.Antonio Gramsci, however, had a more critical view of civil society, from a Marxist vantage point. He saw civil society not as the merciful space that afforded a voice and power to the masses, but as an instrument of domination linked in an unholy alliance with the bourgeois elements in the civil society seeking to protect propertied interests . He was also convinced that the intricate, organic relationships betw een civil society and political society enable certain strata of society not only to gain pronouncement within the state but also, and more importantly, to maintain it, perpetuating the subalternity of other strata. In other words, the site of hegemony was civil society it was the arena wherein the ruling class extends and reinforces its power by non-violent means through components such as the press, the libraries, schools, associations and clubs that could all become media for propaganda and homogenisation of the masses. The state and the civil society in his thought are inextricably linked, which only facilitates subordination by the state without coercion, management instead on manufacturing consent. However, he does acknowledge the potential of civil society as a site for breeding revolutions and for newer conceptions of the world to take place.However, the manifestation of this fairly utopian concept is fraught with tensions and dichotomies. Ernest Gellner, in Conditions o f Liberty, analyses the role of civil society in the Marxist, socialist and capitalist frameworks and has also assessed post-modern rivals to it that have emerged, such as Islam. The Eastern European states found the concept of civil society useful in gaining independence from a Communist stronghold on the dot because of the possibility here for mobilisation of the masses in opposition to totalitarian militarist regimes. Through meetings of trade unions, religious groups, bars etc, the emphasis was on autonomy, self-organisation and withdrawal from the state to create islands of civic engagement for the emergence of a parallel polis. For Gellner, a civil society was a profane society, a society that explicitly sought to put the lowest of human desires to productive uses. Mandevilles paradox private vices make public virtues naturalized the profane by demonstrating that capitalist individuals were more likely to promote the public good when they looked exclusively to their private interest. He found the Marxist, and therefore the socialist variance of civil society, that stressed on driving religion out of life and also investing the economic with the ultimate sacredness, as faulty for it denied space to the profane, the self-interest and avarice of human nature that could be harnessed and channelled into collective action. With the disenchantment of the world that comes with modernity and its powerful agencies of science and capitalism came the climax of the modular man who associates voluntarily with other prototypes, giving rise to a Gesellschaft, the inorganic form of social bonding, through fostered ties, rather than a Gemeinschaft, the organic community based on ties of blood and kin. The genius of capitalist civil society is that it not only harnesses our profane energies, but relieves us of the moral burden of thinking of them as profane. In so doing, it relieves us of the lineage of constant longing for unattainable self-transcendence in despera te simulations of paradise, says Ignatieff. He also observes that liberty in civil society is essentially negative because there cannot be, in principle, agreement among human beings about the positive ends of political communities, beyond the protection of the liberties of the individuals who compose it. If people seek to overcome their own aberration and separateness, they can do so only as individuals or in voluntary groups.Civil society, then, becomes crucial for maintaining checks and balances, says Ignatieff. The realms of politics, economics and culture are neatly segregated, and power in any one domain does not invest power in another. The society is free, acting through a vibrant media and elected representatives, all functioning within the ambit of law. Needless to say, no civil society has ever lived up to this goalyet the formal promise is more than hypocrisy it remains the standard against which civil society judges itself and from which it finds regenerate impetus to reform. In this sense, civil society, albeit being a flawed ideal, also has the potential for redeeming itself simply by virtue of being implant in the notion of reform, of itself as well as of society, simply by virtue of allowing private trajectories of interest being followed.Despite changing meanings, civil societys core rests in a rule-governed society based on the consent of individuals. The social contract that Hobbes defined is another way of concord the liberal ideas behind the conception of civil society through different phases, civil society can be seen as the process or the space through which different individuals negotiate, argue, struggle against or agree with each other and with the centres of political and economic authority. The element of autonomy, voluntariness and collective action through association remain hallmarks through all definitions of the term.Civil Society in IndiaIt would seem natural that civil society, as has been described and conceptualised a bove is an intrinsic part of a democracy, with its accompanying notions of equality, public participation, and masses-oriented governance. Robert Post and Nancy Rosenblum describe a consensus among contemporary theorists that democracy depends on the particularist, self-determining associations of civil society, where independent commitments, interests, and voices, are substantial . Civil society is the precondition for democratic decision making, whether democracy is conceived as deliberation or as interest group pluralism, and this is true even if the goal of democracy is to transcend particularism and arrive at uncoerced agreement or a common will.According to Joerg Forbrig, a vibrant and functional civil society can contribute to strengthening a democracy in five ways control of state power through the incorporation of a body of laws, individual rights and thereby becoming a space that overlooks the relationship between the pr