Martial Law Compared With Emergency and With AFSPA

AFSPA. The armed forces are added to the civil power in a declared area, with powers to fire, destroy, arrest and search, and with a sanction requirement protecting them. The civil power continues, the arrested person goes to a police station and thence to a magistrate within twenty four hours, and article 226 is available.

Emergency. The Union may direct the States, Parliament may legislate on State subjects, article 19 may cease to restrict the State, and the enforcement of named rights other than articles 20 and 21 may be suspended. The administration continues and the courts sit.

Martial law. The military governs. There is no civil authority to aid and no court to apply to.

Two observations follow. The scale is one of who governs and who controls, not of how severe the powers are; AFSPA's power to fire causing death is in one sense more drastic than anything an emergency permits, and yet AFSPA is lower on the scale because the civil power and the courts remain. And each step is a step further from any legal control at the time, until at the end there is none.

Why India has never declared martial law

Four reasons, and this is the part of the answer that earns marks.

Because AFSPA does most of the work. Every practical thing a commander would want in a disturbed area, the power to fire, to destroy fortified positions, to arrest without warrant, to search without warrant, and protection from prosecution, is in section 4 and section 6 of that Act. What he does not get is the power to try civilians, and the power to displace the civil administration.

Because article 356 answers the political case. Where a State's government cannot function, the President assumes its functions and Parliament legislates for it, and the High Court is expressly preserved.

Because article 352 answers the national case. The federal overrides, the extension of the legislatures, article 358 and article 359 together give the Union what a national crisis requires.

And because martial law has no legal footing. Declaring it would put every officer at personal risk until Parliament indemnified him, and would put the Government in the position of asserting that the courts cannot sit, which is a very large assertion to make in a country with a functioning judiciary.

That last reason is the strongest, and it is the one a good answer emphasises: the absence of a constitutional power to declare martial law is not an oversight; it is the reason martial law is never used. A power that has to be justified afterwards, by proving that the courts could not sit, is a power nobody wants to exercise.

What India does instead

An answer should name the modern substitutes explicitly, because MU's question asks for the comparison and the substitutes are the point of it.

Deployment in aid of the civil power, under Entry 2A of List I and article 355, with AFSPA in the States to which it extends and a separate Act of 1990 for Jammu and Kashmir.

Preventive detention, under the National Security Act 1980 and the State Acts, which removes the persons without displacing the administration.

Special criminal legislation, worked in Module II, which alters the process without replacing the courts.

President's rule, where the failure is of the State Government rather than of order in the streets.

And the emergency provisions, where the threat is national.

Five instruments, each subject to some legal control, in place of one instrument subject to none.

The evaluation MU is really asking for

The comparison invites a judgment, and there are two positions.

That the Indian arrangement is better. Martial law is uncontrolled at the time and controlled only by an indemnity afterwards, which is no control at all. Five graded statutory and constitutional instruments, each with grounds, approval, time limits and judicial review, are a better answer to the same problem.

That it is worse in one respect. Because the instruments are permanent, they are used routinely. Martial law is so drastic that it is used once in a century; AFSPA has been in force in parts of the north east since 1958. A power that is never used is less dangerous than a power that is used every day, whatever their theoretical severity.

The reconciliation. The comparison is not between martial law and AFSPA as they stand, but between a State that has legal instruments for emergencies and one that does not. The first will use them and must therefore police them; the second will act outside the law when it must. The Indian choice is the right one, and its cost is that the policing has to be constant, which is the argument of [Exceptional Legislation and the Rule of Law: An Assessment].

A worked example

A district is in insurrection. The State asks the Union what may be done.

Option one: declare the area disturbed under section 3 of AFSPA, and deploy. The civil administration continues, arrested persons go to the police within the least possible delay so as to reach a magistrate in twenty four hours, only minimal force may be used, the do's and don'ts bind the troops, and article 226 is available.

Option two: a Proclamation under article 352, if the ground of armed rebellion is made out. The Union may direct the State, Parliament may legislate on public order, and an order under article 359 may suspend the enforcement of articles 14, 19 and 22, though never of articles 20 and 21.

Option three: President's rule, if the failure is of the State Government rather than of order as such.

Option four: martial law. No provision authorises it; every officer would act at personal risk; the Government would have to assert that the courts cannot sit; and Parliament would have to indemnify afterwards under article 34.

Which would be chosen? In practice the first, with the second if the disturbance is national in character. The fourth has never been chosen since 1950.

What it does NOT mean

AFSPA is not martial law. The armed forces act in aid of the civil power, which continues to function, and their acts are judicially controlled.

An emergency is not martial law. It operates within the Constitution and the courts sit.

Martial law is not more drastic in its individual powers. It is more drastic in that nothing controls it at the time.

And its non use is not an accident. It follows from the absence of any provision conferring it.

Quick revision

• Eight axes: source of power, who declares, ground, approval, civil administration, courts, control at the time, and control afterwards.
• The decisive axis is the courts: an emergency and AFSPA presuppose functioning courts, martial law presupposes that they cannot sit.
• The scale: ordinary law, AFSPA, emergency, martial law; each step is further from legal control at the time.
• Why martial law is never declared in India: AFSPA supplies the operational powers; art 356 answers the political case; art 352 answers the national case; and martial law has no legal footing, so every officer would act at personal risk pending an indemnity under art 34.
• The substitutes: deployment in aid of the civil power, preventive detention, special criminal legislation, President's rule, and the emergency provisions.
• The evaluation: graded controlled instruments are better than one uncontrolled one, at the cost that they are used routinely and must therefore be policed constantly.

Test yourself

1. Which single axis decides the comparison, and why? The courts: an emergency and AFSPA both presuppose that the courts are functioning, and martial law presupposes that they cannot sit, which is not a difference of degree but of kind.

2. Why is AFSPA not martial law, on authority? Because the armed forces act in aid of the civil power, and Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, holds that the word aid postulates the continued existence of the authority to be aided and that the armed forces may not supplant or act as a substitute for the civil power.

3. Give four reasons why martial law has never been declared in independent India. Because AFSPA supplies the operational powers; because article 356 meets the case of a failed State Government; because article 352 meets a national threat; and because martial law rests on no constitutional provision, so that officers would act at personal risk and the Government would have to assert that the courts cannot sit.

4. Name the five instruments India uses instead. Deployment of the armed forces in aid of the civil power under Entry 2A of List I and article 355, with AFSPA; preventive detention under the National Security Act 1980 and the State Acts; special criminal legislation; President's rule under article 356; and the emergency provisions of Part XVIII.

5. State the evaluation in one sentence each way. That graded instruments with grounds, approval, time limits and judicial review are a better answer than a power controlled only by a subsequent indemnity; and that because they are permanent they are used routinely, so that a power never used may in practice be less dangerous than one used every day.