The latest general elections and the ongoing process of forming a Central government provide an opportunity for introspection regarding India’s human rights record. The policies and practices “authorised” by the Indian state require reflection and reappraisal. The context of India, its framework and policies, shore up and determine many of its practices. The capitalistic model with its success in the West, until the recent collapse, was adopted by India with dramatic impact on its economic growth. However, the average improvement in the Indian economy actually increased the income inequality for the majority of those living in Bharat. While poverty based on headcounts has reduced, deprivation, defined as the disparity between base and mean consumption, has increased. The non-inclusive nature of India’s recent growth has resulted in development without social and distributive justice for the majority of Indians.
In many parts of the country, economic issues were complicated by a rising tide of violence. While many of these conflicts seem, on the surface, to have ideological or religious dimensions, their underlying cause is more often social and economic. For example, the deprivation of basic rights for large sections of the population and the gross disparity between the rich and the poor over a prolonged period of time lead to the disadvantaged becoming disillusioned with the democratic process. The Naxalite movement, with its philosophy of armed revolution spreading through many poor and deprived parts of India, is a clear indicator of such a trend.
Nevertheless, such conflicts are often viewed as problems of law and order. Consequently, all dissent with the government, even that related to free speech, association and ideology, is viewed as sedition. Such a world-view automatically recommends incarceration as the solution to deal with such situations. The police, who should enforce the letter and spirit of the law equally for all citizens, are more often seen as derelict in their duties, not upholding the law and directly violating human rights by discrimination, harassment or the use of excessive force. (The Gujarat pogrom demonstrated that the police was not merely indifferent but also complicit in the attacks on the minority community.) The lack of professionalism amongst members of its cadre and political control of the police force make them less than independent in protecting law-abiding citizens. India’s failure to ratify the U.N. Convention Against Torture even a decade after signing the treaty and to enact laws to prevent such forms of interrogation and treatment has worsened the situation. The absence of functional independence for the police force, the external interference in police work, the absence of an independent appointment and monitoring committee and the lack of legislation regarding police reform add to these problems. The charge of sedition, when brought up by the government and the police acting in unison, often results in a paralysis within the already slow judicial system.
The policies in existence have resulted in many practices being authorised by the Indian state which do not conform to international law or uphold the Constitution of the country. The lists include:
Pogroms: Twenty five years after the massacre of nearly 3,000 Sikhs in New Delhi, successive governments have failed to bring the perpetrators to justice. Most of the cases have been closed for lack of evidence. The majority of the police officers, who were charged with dereliction of duty and who provided protection to the attackers, have been exonerated.
The slow pace of judicial progress in the Gujarat massacres has resulted in delay in bringing the perpetrators to justice. The failure of the government to acknowledge its failings in protecting innocent people, the persistent internal displacement of those affected by the communal riots, the continued social and economic boycott of Muslims, the harassment of those fighting for fairness and the delay obtaining justice and reparations for the victims need urgent attention.
The displacement of Kashmiri Pundits in the 1990s and the more recent attacks on Christians in Orissa are further examples of human rights abuses. Little is being done to investigate these cases and rehabilitate displaced people living in camps.
Encounter deaths, enforced disappearances: Deaths of “suspected terrorists” in staged encounters with the police are common in many parts of the country. National security is often employed to cover up major human rights violations. The police personnel involved in such extra-judicial killings should be punished rather than rewarded. The enforced disappearances and the mass graves in Kashmir need urgent investigation.
Forced evictions and deaths to create Special Economic Zones: Singur, Nandigram, Kalinganagar, Jagatsinghpur, Lanjigarh, the Narmada and Chhattisgarh come to mind. The policy of setting up such facilities should be clearly preceded by a careful assessment on the impact on the local population and the rehabilitation of lives and livelihoods. The rights of the poor and those who will be displaced are probably even more important than the rights of the rich who drive development. The trickle-down effect of development is talked about in theory with little actual impact on the poor who are displaced by such development. One cannot fail to see the trend in judgments, from the highest courts in the land, being pro-rich under the guise of being pro-development and at the cost of the rights of the poor. The judicial system should not abandon the most vulnerable sections of Indian society.
Prisoners of conscience and human rights workers: Dr. Binayak Sen is a good example. He was fighting for social justice and for human rights and for vocalising the concerns of many and is, hence, considered a threat to national security by the Government of Chhattisgarh. He is still in prison, two years after his arrest, despite the failure of the state to produce any evidence of any crime. He and other such workers should be freed.
Laws which allow human rights violations: The Armed Forces Special Powers Act (1958), the Unlawful Activities Prevention Act (1967) and the Chhattisgarh Special Public Security Act (2006) are examples of legislation which grant de facto impunity to the security forces. These Acts compound the provisions of Sections of the Criminal Procedure Code (1973) which require prior government permission before starting legal proceedings against members of the armed forces and the police. These need to be reviewed and repealed as they grant unfettered powers, which are often prone to human rights violations and result in complete lack of accountability. India should ratify the U.N. Convention Against Torture, legislate against inhuman and degrading treatment and enforce it.
National Human Rights Commission: The commission requires a broader mandate, greater independence and empowerment to be able to conduct its own investigations and to enforce its decisions. The Protection of Human Rights Act (2006), which has further diluted its independence, will need to be changed.
Review the new anti-terror legislation: The broad definition of terrorism and membership of groups involved in such activities, the extension of police custody without charge and procedures of appeal need to be reviewed, keeping them in line with international standards for human rights.
Death penalty: Studies which have examined Supreme Court judgments on the death penalty suggest the abuse of law and procedures, and of arbitrariness and inconsistencies in the trial, investigation, sentencing and appeal in capital cases. Contrary to the belief that it is only applied in the rarest of rare cases, the death penalty is used disproportionately against the ethnic minorities, the poor, the marginalised and the disadvantaged, all of which are factors that argue for its abolition.
Human rights organisations, including Amnesty International, have been systematically studying these issues and have been recommending changes in policies and practice in India. The changes will require the acceptance of the principle that development has to be tempered with social justice, economic growth with inclusion. Human rights will have to receive high priority. It is mandatory that violence and terror be combated with the establishment of justice, especially for the poor and the marginalised. While the country’s security concerns are genuine and India has the moral and legal authority to protect its people, sole reliance on security measures, which often result in human rights abuses, will not achieve the goals of peace and prosperity. Indian policies should focus on social justice and on inclusive growth and development, which in the long term will provide greater security for all its people.
The Hindu – 20 May, 2009
(Dr. K.S. Jacob is on the faculty of the Christian Medical College, Vellore.)