The Legislative Apparatus Of Counterinsurgency

In March 1988, the Indian Parliament passed the 59th Amendment of the Constitution. This enabled the central government to extend President's Rule in the State beyond one year; to impose emergency on the ground of "internal disturbance," and to suspend Article 21 of the Constitution which guaranteed that no person shall be deprived of life and liberty except according to procedures established by law. The Union Government amended the Constitution in this way in spite of the fact that there was already in force special legislation which not only conflicted with the elemental principles of due process, but also eliminated the existing legal safeguards of free and fair trials.

Some of the legislation already in force included the Terrorist and Disruptive Activities (Prevention) Act of 1987, which allowed for the detention of a person on mere suspicion in a "disturbed area" and was applied in twenty-two of India's twenty-five states despite the fact that many could not be said to face a terrorist threat by any stretch of the imagination. TADA cases were heard in special courts by executive magistrates who were appointed centrally. The hearings were held in camera, and could be held in locations far removed from the disturbed area itself. In fact, the expedited system set up for TADA completely swamped the normal judicial system in many areas, Punjab foremost among them. In addition, the National Security Act of 1980 was amended in 1984 with specific reference to "the extremist and terrorist elements in the disturbed areas of Punjab and Chandigarh" and allowed for detention without charge or trial for one year in all parts of India and two years in Punjab. The Armed Forces (Punjab and Chandigarh) Special Powers Act also allowed the security forces to enter and search any premises and to arrest any person without warrant in Punjab and Chandigarh. Further, it allowed security forces to destroy any place on suspicion of being a terrorist hideout and to shoot to kill a suspected terrorist with immunity from prosecution.

Despite this already extant legislation, the 59th Amendment was passed in 1988 to constitutionally mandate suspension of the right to life where internal disturbances exist. Punjab then came under the Disturbed Areas Act in 1991. As reports of torture, rape, and killings of civilians rose, the Indian government matched this escalation with augmented legal capabilities to pursue the "war without quarter" with even greater impunity. It clearly placed eradication of the Sikh militancy as a higher priority than protection of the rights of the vast majority of politically uninvolved Sikhs. At the same time, it did not seriously attempt to negotiate with or talk to the separatist insurgents, or even to understand them as anything other than psychopathic criminals. The citizens of Punjab were caught in the vicious cat-and-mouse game played by the police and security forces, whose "catch and kill" strategies eventually did severely weaken the guerrilla organizations, but not without a heavy civilian toll - the extent of which is only now being fully brought to light.

By 1992 a large part of the Sikh population had lost faith in the democratic institutions of India. On the call of the Khalistani activists, the elections in that year were boycotted in almost all rural areas of Punjab. On the strength of the urban Hindu vote, a government came to power in Punjab which saw as its mandate the eradication of the Sikh independence movement at whatever cost.