PUCL Bulletin, June 1992
and Human Rights
By V. M. Tarkunde
The arrest of Justice A. S. Bains on April 3, and his subsequent production in handcuffs before a magistrate, have exposed the arrogant highhandedness and utter lack of decency of the Punjab government and the police in that State. That a former High Court judge should be brought in handcuffs before a magistrate shows that the present Beant Singh government has not the least regard for civil liberties and human rights. The prestige of Justice Bains is not affected in the least on account of this incident; the loss in public image is only of the Punjab government and the Punjab police.
That the Punjab government has no regard for human rights is also brought home by the recent arrest of Badal, Tohra, and S.S. Mann while they were proceeding to present a memorandum in support of the demand for Khalistan to the UN Secretary-General, Mr. Ghali. The fact that the demand for Khalistan is quite unsupportable does not in any way justify the arrest of the three Sikh leaders. Their memorandum would reach the UN Secretary-General anyhow and it would get some unmerited importance because of the attempt made by the government to prevent its presentation. The incident merely served the purpose of demonstrating to the people in India and abroad that personal freedom has little value in Indian official circles.
No Indian is required to be told that the recent Amnesty International report on torture, rape and custodial deaths in India is factually correct. The Government of India resents the publication of the Amnesty International report not because it is untrue, but because it would affect its reputation in Western democracies. The Government of India is apparently more concerned with foreign rather that with Indian public opinion. The modern communication system, however has made the world much smaller than it used to be. The frequent violations of human rights in India cannot remain unnoticed for long by the rest of the world.
One of the reasons why human rights are frequently violated is the grant of arbitrary powers to the security forces by the 'black laws' such as the National Security Act. the TADA, the Armed Forces (Special Powers) Act etc. The National Security Act which provides for preventive detention, may be necessary in some cases in terrorists affected areas when witness are unwilling to come forward to give evidence, but even in such cases the Act must be used very sparingly and that too by responsible and highly placed officials. The other 'black laws' are not necessary even where terrorism prevails. Laws like the National Security Act and TADA have been, however, extended to areas which are free from insurgency.
The 'back laws', it must be added, are not the main reason for the more serious violations of human rights. The main reason is that the police quite frequently act beyond the bounds of law, even when the bounds are extended by the 'black laws'. No law authorises the police to torture suspects, to kill them in fake encounters or to humiliate women by rape, or by otherwise violating their modesty. No law authorises the police to open fire on peaceful processions or set whole villages on fire. Such atrocities are committed because the police know that nothing will happen to them if they violate the law. The superior police officers normally side with them, and so does the concerned government.
As is clear from the Amnesty International report, violations of human rights are as frequent in States which are free from terrorism as in the terrorist-affected states. The security forces are obviously not required to act illegally in order to meet the situation created by separatist and terrorist movements, since the 'black laws' have provided them with ample powers. What is not quite so obvious is that the frequent violations of human rights by the security forces strengthen the separatist movements by increasing the alienation of the people from the Indian nation. That is what is happening in Punjab as well as Kashmir in spite of the fact that terrorism is probably on the decline in both these states.
For several years now, terrorist gangs have been unpopular in Punjab, particularly in rural areas. That is because a large number of anti-social elements have joined these. But the unpopularity of the terrorists is over-shadowed by the unpopularity of the police and the government which employs them. Only two years back, the demand for Khalistan did not evoke any positive response in Punjab's rural areas. Now it is reported that the demand has become more popular. That appears to be the reason why even moderate Sikh leaders like Badal and Tohra have now begun to support the demand for Khalistan.
The reason for this deterioration is not only the frequent violation of human rights by the police but the fact that the vast arbitrary powers given to the police have corrupted many of them. It is reported that an increasing number of police person are engaged in extorting money from the public and even in looting. It is well known that many juniors and officers have acquired enormous wealth in Punjab. Consequently, the Khalistan demand has gained in popularity.
A similar development is taking place in the Kashmir valley. Kashmiri militants are losing public support because they also have started extorting money from the people. Correspondingly, the military and para-military forces have been more successful in curbing militancy. But the valley people remain as anti-India as they were in recent years. There also, the para-military forces are being corrupted by the arbitrary powers placed in their hands. One gets such reports from highly placed honest officers of the para-military forces.
One contributory cause of the anti-India stance of many people in Punjab and of almost all the people of the Kashmir Valley is the lack of any effort by the Government of India to adopt measures for winning back the affection of those who are alienated from India. That aspect of the matter is, however, beyond the scope of this article.
Curbing the excesses and atrocities of the security forces is thus necessary not only for the protection of human rights but also for maintaining the territorial integrity of the country. The central and state governments are either unwilling or unable to take any effective steps to keep the police and the para-military forces within the law. The Government of India was often requested to transfer the top police officers in Punjab to other states, but this has not been done. Whenever police atrocities were brought to the notice of either the state or the central government, they have almost invariably supported the version of the police.
The victims of police atrocities have in theory, the legal remedy of filing criminal complaints or civil suits against the erring police persons for appropriate relief. But such remedies are found to be useless. This is not only because litigation is time-consuming. The main reason is that the police are always in a position to terrorise witnesses and to prevent the true versions being established in criminal or civil cases. However, a more expeditious and relatively more efficacious remedy is now available as a result of a recent decision of the Supreme Court in Saheli vs Commissioner of Police, 1990 (1) SCC 422. The Supreme Court has held in this case that compensation can be ordered to be paid by the concerned government when its police causes bodily harm including battery, assault, false imprisonment, physical injury, and death. Whether the governments in India can be held liable of the torts committed by the police while discharging their duty of maintaining law and order was till recently a moot point. The doubt is resolved by the above decision. If the police arrest a person without any justification, even while purporting to act under the National Security Act or the TADA, or if they do not produce the arrested person before a magistrate within 24 hours, or if they deprive him/her of the opportunity to have legal advice, or if he/she is subjected to torture, he/she or a human rights organisations acting on his/her behalf can approach the High Court or the Supreme Court under Article 21 of the Constitution and seek compensation from the government for the wrongful act committed by its employees.
Similar action can of course be taken in cases of rape, custodial deaths, and fake encounters. If, as a result of such legal action, the state or central governments are required to give substantial compensation for police atrocities, they will have to take more effective steps to keep the police within the law. It is to be hoped that human rights organisations will take advantage of the above decision of the Supreme Court.
There is one aspect of the
arrest and attempted humiliation of Justice A.S. Bains which is most disturbing.
Although Justice Bains was arrested on April 3, and although the news about
his arrest and attempted humiliation was widely published in the rest of the
Indian press, the press in Punjab refrained from publishing the news till April
8. A committee of the Press Council of India has reported on how the freedom
of the Press is being curtailed in Punjab and in Jammu & Kashmir by the
pressure exercised by terrorist groups. It appears, however, that in both these
states as well as in several other Indian states the freedom of the press is
also being curtailed on account of the pressure exercised by the concerned governments,.
The silence of the Punjab press for five days after the arrest of Justice Bains
is an indication of such pressure. This matter deserves to be investigated by
a committee of the Press Council of India.
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