PUCL Belletin Feb., 2001

The human rights controversy
-- By Chaman Lal

Human Rights - the rights relating to life, liberty, equality and dignity of the individual - are the very essence of the rule of law. Though evolved over the centuries through political, religious and cultural traditions of the civilized world, they derive their formal origin from the United Nationals Declaration of Human Rights (1948) and the International Covenants on Civil and Political Rights (1966) and Economic, Social and Cultural Rights (1966). They enjoy a special significance in the Indian context in that almost the entire gamut of these rights has been incorporated in the Constitution of India in the form of Fundamental Rights and the Directive Principles of State Policy.

It is a peculiarity of the Indian situation that the issue of Human Rights has come into public focus rather in a negative way. Human Rights have become a matter of public concern in view of increasing incidence of arbitrary arrest, illegal detention, custodial violence and other abuses of power resorted to by the law enforcement agencies especially in the States affected by terrorism and insurgency. The misgovernance reflected in the failure of the administration to ensure that the citizens enjoy the constitutionally guaranteed fundamental rights is found to be a crucial contributory factor in the growth of militancy in the country.

The entry of the Human Rights issue into public consciousness coincides with the growth of terrorist and separatist movements in Punjab and J & K in mid-80s and early -90s. The issue has also acquired importance due to the attempts of the US and other Western powers to link the international aid to the developing nations with their human rights record on the ground that the human rights situation in any country in today's world is not a domestic matter but the legitimate concern of the international community. The proliferation of the human rights NGOs and other groups especially in the areas affected by militancy in recent years has also added to the popularity of the subject.

Human rights groups perform an important public duty by highlighting and pleading the violations and pleading the violations of human rights of the citizens by the organs of the State. They strive to raise the awareness of the public about these rights and the responsibility of the administration particularly the police in the matter of their actual realization. By monitoring the human rights situation with fairness and objectivity, they also help in sensitizing the police about its duty to protect the human rights of the citizens.

With the establishment of the NHRC in 1993 the police leadership in India has come under great pressure to put its house in order and sensitize the rank and file observance of human rights.

The police organisations are seen vying with each other in running special training programmes Organising seminars and making films based on real case studies for educating and sensitizing their staff about their duty to uphold and protect the citizens rights. This new found craze for human rights is mostly found wanting in substance and is cynically described by the human rights activists as part of the fashion of the day which may better the look of the police without improving its performance. It is also observed, on the other hand that some human rights groups take their concerns to impracticable and absurd and misgivings in the minds of even well meaning police officers.

It is sad but true that the human rights NGOs and other groups are perceived as adversaries by the law enforcement agencies in India. Both the sides can be generally seen taking opposite and, at times, extreme positions on the question of human rights giving rise to an unseemly controversy.

The human rights NGOs hold that the law enforcement agencies should respect the human rights agencies of not only the law-abiding citizens but also the criminals including the terrorists and insurgents and follow the due process even while dealing with serious situations of internal security. The police, they insist must adhere to the fundamental principles of jurisprudence that emphasize the innocence of the accused till the contrary is proved against him. They hold that even that even the dreaded terrorists should be allowed to enjoy all the rights that our Constitution and procedural laws grant to the accused persons. They are not willing to accept the police argument that it is compelled to excised its brief and cross the legal boundaries because of the increasing inability of the criminal justice system to cope with the challenge of organised violence. They opposed the special laws and enactment, which give additional powers to police and security forces to fight militancy and argue that these challenges must be met by using the normal legal provisions. They brand special laws such as TADA, the Armed Forces (Special Powers) Act, The National Security Act, The Unlawful Assembly Act, The Disturbed Areas Act, etc, as draconian and black laws which violate the principles of liberal jurisprudences and natural justice and undermine the safeguards provided in the Constitution. They demand that all the domestic laws should conform to the norms and standards of the International Human Rights Instruments. They are not satisfied by the judicial pronouncement of their validity even by the Apex Court (TADA was held constitutionally valid by Supreme Court).

I wish to make it clear that while expressing the view point of the police and other law enforcement agencies, I am voicing the feelings of the competent and conscientious officers who respect the law, accept the limitations of their functions and powers and take every professional challenge seriously. This category excludes the vast majority if police officers who resent any restrictions on their powers and are easily given to circumvent the law to seek an easy and quick solution to their problems.

Rigid and somewhat extreme stand taken by most human rights groups inevitably brings them into conflict with the police leadership at various levels. The police officers find the human rights activists unappreciative of the ground realities, which have rendered the criminals unpunishable under the law because of a phenomenal rise in crime and the inadequacy of the criminal justice system to cope with the challenge for various reasons. They accuse them of a lack of sensitivity to the sufferings of the victims of crime and consider their exaggerated emphasis on human rights as a hindrance to their fight against militancy. They question the silence of the advocates of human rights about the horrible crimes like torture, murder, rape, and hostage taking resorted to by the secessionist militants sponsored and supported by inimical foreign powers. They honestly feel that human rights cannot be regarded more important than the survival of the very unity and integrity of the nation. They expect human rights groups to appreciate that the fight against terrorism is, in fact, a struggle for the protection of the rule law, which these groups claim to profess. They want them to understand that human rights cannot be enjoyed in an atmosphere of terror and intimidation. They are not willing to accord priority to the rights of a militant minority to kidnap, coerce, and kill over the right of the vast majority to leave in peace. In their commitment to the cause of public order, they wonder whether they should observe legal formalities and constitutional niceties towards those who have openly and definitely rejected the Indian Constitution and other laws. They feel aggrieved by the irony of the situation that whereas the terrorists' crimes are always taken for granted, the excesses of the security forces are invariably exaggerated and widely publicised. They find the concern of the western powers for the human rights to be selective and reports of the International human rights NGOs such as Amnesty International (AI) and Human Rights Watch (HRW) as unfair and biased against India. They sincerely believe that problems of terrorism and insurgency, like a malignant disease call for radical remedies. They do not entertain any doubt about the supremacy of the security of the State over the freedom of the Individual and firmly believe that the State has a Constitutional obligation to use its coercive authority to protect law abiding citizens from the violence perpetrated by the enemies of public order.

My experience in Punjab and the North East tells me that the cause of an adversarial relationship between police and the genuine NGOs (there is no dearth of fake NGOs in any field of our public life) is not a clash of values but a lack of understanding about each other's role and difficulties. I firmly believe that it is possible for the two to bridge their differences and work unitedly for the cause of Human Rights. I sincerely believe that the NGOs need to give a practical orientation to their approach in the light of the contextual realities to facilitate actual realization of the basic human rights instead of striving hopelessly for an ideal situation. They would do well to shed their prejudices against the police and security forces based on a limited experience of individual cases.

It would be useful to view the human rights violations separately for the normal times and in extra ordinary situations such as terrorism and insurgency. There can be no justification for any lapses of action or conduct on the part of the law enforcement personnel in normal situations, which can be tackled effectively by a firm and important enforcement of law on day-to-day basis. Human Rights groups are well with in their rights to take up cases of arbitrary arrest, illegal detention, custodial violence and other abuses of power without any reservation and pursue them relentlessly involving the media in a proper way.

Human Rights violations in situations of terrorism and insurgency call for a careful handling. Though no violation, big or small should be condoned, each cases has to be viewed in the overall operational context to find out whether the act was deliberate and malafide or it was accidental and bonafide. This would help in determining the gravity of the laps and deciding commensurate punishment. The human right activists can very well appreciate the compulsions and constraints under which the police and security forces have to work in situations which compel use of force including the fire power. It is impossible to conceive a situation where such force is used and no one gets hurt. It needs to be realized that in situations where the security forces are deliberately attacked by the militants in the thickly populated areas in order to provoke a retaliatory fire, it is impossible to ensure full protection of innocent civilians and total avoidance of collateral damages.

The natural instinct of a soldier to fire back in the direction of the actual attack is something that needs to be appreciated. Though the inconvenience and hardship caused to be appreciated. Though the inconvenience and hardship caused to the general population in the anti terrorist measures like an able and effective Commander can minimize search and cordon operations considerably, it can not be avoided totally. The investigation of terrorist crimes will always involve a vigorous questioning of a large number of suspects, many of who may ultimately turn out to be innocent. The police and security forces cannot help being harsh with those who provide food and shelter to the militants even though such help may be prompted by the fear of gun rather than sympathy to the militants cause.

The human rights groups should honestly review their opposition to the special laws and enactments whose necessity in fighting terrorism has been acknowledged by the western democracies, some of whom have enacted more stringent laws than even our TADA. Their insistence that the national laws must satisfy the norms of international human rights instruments betrays a tragic lack of regard for the complexity of the Indian Constitution. A pluralist country of continental size engaged in the task of socio-economic transformation through democratic methods in the face of militant threats of varying intensity cannot accept blindly what is dictated by the western powers with no appreciation of its development and security concerns. It should be remembered that India has ratified the International Covenants on civil and political rights and social economic and cultural rights by expressing it reservation that "self determination" expressed as the basic right of all peoples in these Covenants would apply only to the people under the foreign domination and not to sovereign independent States. There may be many more reservations of equally strong validity to India's situation.

Human right activists should try to dispel the police perception of their partiality towards the law breakers by talking an equally condemnatory stand against the killing of innocent persons including policemen and their familie3s by the terrorist.

The police leadership at all levels of command has to accept the fact that observance of human right is mandated by law and there is no choice in the matter of achieving their objectives by following lawful methods and legal practices. The custodians of law cannot be allowed to become its transgressors under a mistaken belief that they are serving the larger interest of the society as a whole. It is their responsibility to ensure that the men placed in their charge entertain no doubts and misgivings on this count and they are motivated to act professionally in conformity with the law. They are free to use all the legal powers available under the law-normal as well as special in exercising their authority to make the enemies of public order realize that violence has no chance of succeeding. They can ask for more powers if they find the challenge to be beyond the reach of the existing laws. However, such demands will receive favorable response only if they enjoy the confidence and support of the civil society. They can earn it only by professional competence and high standards of character and integrity. They must understand that they may also be deprived of the extra powers given to them for dealing with an extra ordinary situation if they are found guilty of abusing them instead of employing them for right purposes. The withdrawal of TADA can be cited as an example in this connection.

The police should free itself of the mindset that the human rights groups are adversaries acting in league with the terrorists and militants. It should acknowledge the importance and hazards of the role assumed by the human right activists by choice and show respect to their commitment and determination to an extraordinary cause. It is in the ultimate interest of the police to make itself accessible and open to the human rights groups, take their views and observations with due serious ness and intimate suitable action on complaints of violations received from them. Their initiative in establishing an understanding with the human rights groups is bound to evoke a matching response and lead to the evolution of a mutually beneficial alliance for promoting the cause of human rights.

The ultimate success of police in fight against militancy depends on the scrupulous adherence of its leadership to the eternal principle that good ends can be achieved only by good means and any compromise on this point in order to make some immediate short term gains is bound to harm the long term permanent interests of the organisation. It must be understood that custodial violence - the widely prevalent form of human rights violations considered, as a short cut to success by police has invariably proved counter productive. It exposes its perpetrators to legal action and punishment, which cannot be taken lightly in view of the growing trend in the judicial pronouncements to make the guilty officials liable for payment of compensation to the victims. It has a sure effect of brutalizing the rank and file, alienating the police from the public and eroding the faith of the citizens in the system. Custodial violence with its most ugly manifestation in the form of extra judicial killings in fake encounters is the greatest obstacle in the way of integrating the police system into the fabric of a democratic society.

The World Conference on Human Rights, 1993 held in Vienna has acknowledged the inter dependence of democracy, development and respect for human rights. It has unequivocally condemned terrorism regardless of its motivations and forms of manifestation as a threat to territorial integrity, political stability and economic well being of nations states. It has categorically described terrorism as a destroyer of human rights and fundamental freedoms and called for international co-operation to fight the menace of terrorism. With this, the argument of one man's terrorist being another man's freedom fighter has lost all its validity. The human rights groups are expected to take not of this development and perceive the terrorists as the enemies of mankind rather than freedom fighters or social reformers.

While the U.N declaration of human rights is considered a land mark in the evolution of the concept of human rights, the Vienna Declaration passed by the World Conference on Human Rights (1993) is an important milestone in the refinement of the concept of human rights in tune with the contextual realities of the modern world. By affirming the observance of human rights in a 'just and balance', the Declaration has recognised the gravity of the challenges confronting the developing democracies which are highly vulnerable to threats from various forms of terrorism particularly the trans-border terrorism sponsored by inimical foreign powers.

It is this emphasis on just and balanced behaviour that can effectively resolve the current dilemma confronting the both the law enforcement agencies and the human rights groups in our country and put an end to the unnecessary controversy around human rights.

PUCL Bulletin, 2001

 

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