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The Human rights debate in India has remained mired in a handful of
slogans and postures completely divorced from ground realities. Almost
30,000 civilians and 5,000 security personnel have lost their lives to
terrorism and low intensity warfare. Millions have been pushed,
relentlessly, into poverty and destitution as violence saps the economy.
But the entire human rights debate is fashioned exclusively in terms of
a false dichotomy between human rights and the needs (and agencies) of
law enforcement, implying that the one must necessarily be compromised
if the other is to be secured.
Nothing could be farther from the truth. Internal peace and order are
preconditions of a workable civil society, and of the protection of all
the other rights of man. Without the first, the second is a fabrication
and a myth. In a situation of widespread terror, no rights and no
freedoms exist, irrespective of the political pretence or the judicial
make believe.
Unfortunately, the entire human rights platform in India has been
monopolised by an and legal formalism that is so blindly attached to
mechanical processes and procedures that it displays no concern
whatsoever for reality or for consequences. The new high-priesthood of
India would have us believe that as long as the interminable rites and
rituals of the judicial yagna are fulfilled, all the interests of
justice are served, all human rights secure-no matter how many people
are slaughtered in the streets-
Judicial institutions have failed consistently and abjectly in
situations of terror. The judiciary stubbornly insists that it is
procedurally correct in repeatedly enlarging terrorists and criminals on
bail. If they jump hail and murder people, that is not their
responsibility, for a man may not be incarcerated unless he is proven
guilty beyond doubt- a process that, in this country, usually takes
close to five years, and may take up to thirty. In terms of criminal
action and terrorist strife, this is an eternity and unqualified licence
to kill. So while the learned legal community is entertaining all
manners of possible doubts, the man whose 'freedom' they have upheld
goes out to commit murder.
The judge's conscience is clear. He has followed the letter of the law
and defended the supposed citadel of human rights. But what about the
rights of those who are murdered? We must accept the reality of
competing rights, and realise the necessity of making difficult moral
choices. We must seriously ask ourselves, whose rights are being
protected? Is the entire system being subverted to serve the ends of
criminals and terrorists?
It is argued that judicial decisions are bound strictly by the law. Yet,
we are witnessing, today, a jurisdictional rampage by the courts, and
the emergence of a jurisprudence of the 'legislative vacuum' which
supposedly empowers the judiciary to invent whatever rules and
procedures they please in the absence of what they unilaterally deem to
be an area of legislative weakness. If these theories can be used to
justify action against other branches of government, why can they not be
used to curb the depredations of individuals openly committed to the use
of lethal violence against the entire community? In any event, the
superior judiciary could certainly have advised the government and the
legislature to draw up suitable amendments to the law in order to
effectively contain terrorist elements. And it could have directly
initiated action to improve the functioning of the courts in situations
of low intensity warfare, so that decisions could be reached with in a
time frame that made some sense in such circumstances.
Why, for instance, could the superior judiciary not bring to account the
subordinate judiciary of Punjab who abandoned their duty to uphold the
laws and Constitution of the land through the decade of terror? Does
fear release everyone from all commitments and duties? Why is the same
criterion not applied to the security forces? In Punjab, while judges
enjoyed elaborate security, nearly 1,800 policemen sacrificed their
lives fighting terrorism. There can be no justification for the
abdication of responsibility by any branch of government in such
situations.
But the entire human rights debate has been cast into an adversarial
mould, with the police drawn out as the villains, and a variety of
self-appointed saviours 'defending' the larger society against them. In
this supposed confrontation, everyone is reduced to a false stereotype.
All policemen are brutal and corrupt. All human rights activists are
selfless and good. And all judges, since they have the title Honourable
Justice prefixed to their names, are by definition, honourable and
just. If we are really serious about human rights, we must devise and
legislate mechanisms and processes that effectively distinguish between
legitimate human rights concerns and the exploitation of this platform
for motives that are unconnected, and often in conflict, with such
concerns. If human rights are not to remain a convenient instrument for
criminals, terrorists and their front organisations to manipulate the
law and to undermine the institutions of democracy, the human rights
regime will have to be rationalised in view of emerging realities.
Low intensity warfare, terrorism and organised crime must be recognised
as situations of widespread breakdown of normal structures of
governance, and the need for powers, rights and legal processes distinct
from those that prevail in circumstances of peace and order must be
accepted. The powers, the range of extraordinary actions permitted and
the applicable legal criteria and processes in these circumstances
should be clearly defined and suitably legislated.
A radical reformation of internal security forces must be initiated,
creating the skills, knowledge, attitudes and infrastructure necessary
to confront these dangers.
The affiliations, functions and funding of so-called human rights
agencies and activists should be statutorily monitored and completely
transparent. Motivated campaigns of calumny and allegations of human
rights violation that defame individuals and institutions with no basis
in fact should be strictly punished.
A Constitutional Commission should be set up to examine the functioning
of judicial and administrative institutions in situations of widespread
terror to identify and punish the officers who fail to discharge their
constitutional obligations; and to take suitable action to ensure that
the criminal justice system does not collapse in the face of future
lawlessness.
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