Democracies & Repression: Using the Law for Increased Domestic Coercive Capacity

While there is strong evidence that autocratic states use the law to augment domestic political authority, do democracies do the same? In this paper, I identify how democratic states acquire greater repressive power through legal instruments, particularly in postcolonial contexts. I outline three plausible reasons why democracies take recourse to the law to increase their coercive powers. First, as a socialized act of democratic norms and liberal ideals that believe in the rule of law. The belief that laws matter means that legal legitimacy is required to enact coercion within a state’s boundaries. Second, as a means of upholding their commitments to international human rights laws. Unlawful repression could trigger backlash from an international audience. Third, as a shield to sustain their democratic credentials while being able to use force with impunity. Rule of law can serve as a signal of a deliberative democratic process even if the content of the laws are undemocratic. I leverage unique archival data on India’s counterinsurgency law to test these mechanisms. Specifically, I investigate the ministerial files on the Armed Forces (Special Powers) Act (AFSPA) and the parliamentary debates around them. Through process tracing of sequential internal communications between government ministries from 1947 to 1971 and public debates on AFSPA (1947-1990), I find strong evidence for centralizing and increasing the repressive power of the state while not wanting to appear overtly authoritarian. The third mechanism, therefore, finds the strongest corroboration. My case study shows how drawing on legal and political data from postcolonial states can shed light on the nature of democracies around the world.