INDIA: Judgments cannot replace good governance

| by Bijo Francis
( A statement issued by the Asian Human Rights Commission )

( May 24, 2012, Hong Kong/ New Delhi, Sri Lanka Guardian) India will be evaluated at the United Nations' Universal Periodic Review in Geneva, Switzerland today. The three countries (Troika) involved in the review are Kuwait, Mauritius and Mexico. That these countries have worse records of human rights in comparison to the country they would collectively review suggests how firmly, and perhaps blindly, such processes are at the UN. Yet the UPR may still be considered beneficial because it at least presents recurring opportunity at the UN for human rights organisations to flag their concerns about the country under review.

India has submitted its National Report to the UPR Working Group, which is available here. Other documents concerning India relevant to the UPR process are also available here.

"Incidents left inadequately investigated due to the absence of an independent investigating agency in the country and the unwillingness of the government to create one has resulted in gross human rights abuses wherever this draconian law is in use."

The national report places overwhelming emphasis upon the jurisprudence developed by the Supreme Court on human rights. In page 3 of the report, the government claims that the Court has initiated a "revolutionary interpretative evolution" of fundamental rights in India. It is true. What is false, however, is the affirmation that the Court's initiative is "fully supported by the [g]overnment". The evolution of the Court's interpretation of Article 21 of the Constitution encompasses the right to housing, against forced eviction, right to education, clean environment and against forced labour proves that on each occasion someone had to approach the Court seeking its assistance and writ jurisdiction to 'direct' the government concerned toward what that government had to do. Each one of these cases highlight the failure of the state to fulfil its duties. The Court has also reiterated its authority to review both legislative and executive actions. Within the Constitutional architecture, the government is legally compelled to obey with the Court's directives. Essentially, the government's 'concessionary' claim that it has 'fully supported' the Court's directives possess no inherent merit.

The absence of honesty in the government's claim as to its compliance of the Court's directives is visible from facts on the ground. The first case cited by the government is the Naga People's Movement for Human Rights (petitioners) against Union of India and others (respondents) reported in All India Reporter Supreme Court 431. The Court was called upon to decide the constitutional vires of the Armed Forces (Special Powers) Act, 1958 in this occasion. While maintaining that the central government had adequate powers to enact the law now held to have had the worse impact on the protection of human rights, the Court drew comparison from the Reserve Forces Act, 1980 of the United Kingdom where the government is empowered to "call upon" its reserve forces when there is a threat to the security of the nation. The Court failed to recognise, however, that the conditions in the United Kingdom (UK) and India are vastly different. The UK could afford to have legislation such as the Reserve Forces Act because its justice institutions are far superior to those of India (in terms of transparency, accountability, resources dedicated to training, solid theoretical and philosophical foundation and an infinitely less corrupt bureaucracy), both then and now. The Court however could not be blamed in totality for this serious omission and disparity since it had not been requested to consider the misuse of the law in the infringement of human rights as it happened then and continues now.

Despite this, jurisprudential wisdom at the time warranted the Court to impose 10 'dos and don'ts', none of which has been followed since then. Given knowledge of the cases of human rights violations available today, one could argue that the Court failed to critically appreciate the nature of the threat the AFSPA was supposed to help diminish, the population upon which the law is thrust upon and the possibility of enforcing discipline upon the armed units which would be protected by the impunity provided them by the law. Today, AFSPA has not merely failed to reduce or contain this violence, but has instead inflamed it. The populations in places throughout India where this law is enforced have further alienated themselves from the national mainstream – this is also due to the discrimination practiced against them by the rest of the country. The number of human rights abuses committed by armed units under the protection of this Act as documented by numerous NGOs and civil society organisations is alarmingly high. This has substantially contributed to the considerable lack of discipline within the country's armed units.

Incidents left inadequately investigated due to the absence of an independent investigating agency in the country and the unwillingness of the government to create one has resulted in gross human rights abuses wherever this draconian law is in use. The unmarked mass graves in the state of Jammu and Kashmir, the countless cases of rape, torture, enforced disappearances and extrajudicial executions reported from states like Manipur stares balefully in the face of the Supreme Court's jurisprudential piety in issuing some obviously ineffective dos and don'ts while deciding the Naga People's case.

They are of such nature that it is worth reproducing here. 1. Action … (b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO. (c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities. (d) As far as possible co-opt representative of local civil administration during the raid. 2. Action during Operation (a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning. (b) Arrest only those who have committed cognizable offence or who are about to commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence. (c) Ensure that troop under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities. (d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only. 3. Action after operation (a) After arrest prepare a list of the persons so arrested. (b) Handover the arrested persons to the nearest Police Station with least possible delay. (c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest. (d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. The least possible delay may be 2-3 hours extendable to 24 hours or so depending upon particular case. (e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession. (f) All such arms, ammunition, stores, etc. should be handed over to the police State along with the seizure memo. (g) Obtain receipt of persons arms/ammunition, stores etc. so handed over to the police. (h) Make record of the area where operation is launched having the date and time and the persons participating in such raid. (i) Make a record of the commander and other officers/JCOs/NCOs forming part of such force. (k) Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death. 4. Dealing with Civil Court (a) Directions of the High Court/Supreme Court should be promptly attended to. (b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid. (c) Answer questions of the court politely ad with dignity. (d) Maintain detailed record of the entire operation correctly and explicitly.

Don'ts 1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest Police Station. 2. Do not use any force after having arrested a person except when he is trying to escape. 3. Do not use third degree methods to extract information or to extract confession or other involvement in unlawful activities. 4. After arrest of a person by the member of the Armed forces, he shall not be interrogated by the member of the armed force. 5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities. 6. Do not tamper with official records. 7. The Armed Forces shall not take back person after he is handed over to civil police.

That the judicial logic behind these directions has failed, and miserably so, is proved by the D. K. Basu (petitioner) against State of West Bengal and others (respondents) reported in All India Reporter Supreme Court, 610. Ironically, the government has cited this case as well in its report to showcase the prowess of the safeguards provided by the judiciary to protect fundamental rights in India. The Court's intervention in this case was due to the repeated instances of blatant violations of prescribed procedures and fundamental by the state police. The argument that the legal guarantees even civilian police fail to provide in peaceful environments and times would be provided by armed units operating in hostile environments is naivety and nothing short of laughable. The present quality of life in places where the AFSPA is enforced is proof of this. That the Supreme Court of India has declared AFSPA constitutional in 1988 should not be an excuse for the government to review, and, if necessary, repeal it.

The government has claimed that it is considering a domestic law against torture. It is true that the law was passed in the Lok Sabha in 2010. The importance the members of the Lok Sabha attributed to this law and informed nature of the debate is apparent from the long discussion on the law in the Lok Sabha. Most members complained in jest that holding them back in the parliament at 9.30 pm is torture and requested that the law be quickly passed. The 625 words-long Bill that failed to even properly define the term 'torture' has today been placed in the Rajya Sabha's deep freezer for the past two years following a review by the Parliamentary Select Committee. Even the members of the parliament do not know the fate of the Bill. No government worthy of its mandate would go to an international body like the UN and state that even though the government is still not serious about this law, "the Supreme Court of India, through its judgments, has … laid down exacting standards on this issue". This statement about the Court laying down exacting standards is false. There is simply no such judgment.

The court has dealt with this issue on several occasions, most importantly in Kishore Singh (petitioner) against the State of Rajastan and on others (respondents) when the court said "...[n]othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights". This case is reported in 1981 All India Reporter, Supreme Court 625. Yet torture has not been defined as it is understood in international law. Neither does the offense carry significance particular to crimes against humanity that warrants serious investigation and prosecution. That the D. K. Basu case came 16 years since the Kishore Singh case proves this. Torture is endemic in India and there are painfully few means to change this reality at the moment.

The accolades showered upon the National Human Rights Commission by the government in its report need to be viewed with exceptional caution. Mr. K. G. Balakrishnan, who bears a tainted image concerning his integrity as a judge, heads the NHRC. This was reflected in the NHRC's own consultative process for the UPR. Many consultations were held where members of the army, human rights defenders and victims were invited to the same room. Then the human rights defenders and victims of rights abuses were asked to depose against the army, which they did not due to fear of reprisals. The very same insensitivity of the NHRC while adjudicating claims has attracted criticism so much so that during the accreditation review process the NHRC underwent in 2011, a considerable number of Indian human rights organisations appealed to the International Coordination Committee for NHRIs to degrade the NHRC from its 'A' status. The lobby did not succeed, yet it was one of the most embarrassing moments for the NHRC in its entire history. That the NHRC received near to 100,000 complaints is no surprise owing to the poor human rights standards in India. Admittedly, expecting the NHRC to deal with so many complaints with the present limited infrastructure itself is injustice. That the NHRC disposed off 87,568 cases in two years itself shows the quality of adjudication. This means that, excluding holidays, the NHRC has the unique capacity to adjudicate about 300 cases in each working day. This poses troubling questions about the quality of the adjudication being dealt out.

It is true that State Human Rights Commissions are constituted in 20 states. However, fewer than five among these twenty states possess adequate infrastructure for day-today functioning; these include independent Commissioners. Many Commissions have ceased to function as appointments to office-bearing positions critical to the commissions' operations have not made. That the NHRC has resorted to monetary compensation instead of proper resolution of the cases/grievances suggests that a meagre USD6020 has been used to "buy off" 583 victims. This fails to bring the investigations to the heart of the matter, where institutional failures have occurred and where systemic abuses of human rights have become the norm.

Similar claims made by the government concerning child rights, the right to food and the right to equality are equally questionable. That 42 percent of the children below the age of five in India are severely malnourished places India lower in living standards than all countries in Sub-Saharan Africa. It is not a record that speaks well of any government that 42 percent of its future population might not even live their life to the fullest that already they have suffered substantial and permanent physiological damage that will prevent them from developing their intellectual and physical capacities. For a country to plan an estimated USD40.44 billion outlay not to have means to rescue its children from acute poverty lacks logic. The Supreme Court of India cannot supplement the provision of nutrition with its empty judgments.

Worse still are the accusations laid upon country's civil society by its government in a report concerning the Maoist issue. The government has placed the responsibility upon the civil society organisations to urge the Maoists to join the national mainstream. The question that needs to be asked is which side of the national main stream, whether the increasing number of rich upper middle class or the 42 percent who are destined to starve to death in the coming years that the Maoists are being asked to join. Indeed the country's civil society bears some of the responsibility to urge violent political forces to resort to democratic ways of participation. However this is not possible without the government undertaking to address the root cause of the rebellion. Legislations like the Chhattisgarh Special Public Security Act, 2005 or private militias like the Salwa Judum – which the Supreme Court of India has also held illegal but the government continues to promote – provide no answer to the Maoist concern. If Maoism was the answer to Stalin's snubbing of China, what it fuels today in India is criminal neglect by the government of its people. The answer to this concern lies partially with the government, and it is the honesty, sincerity and humility of that admission which is lacking in the government's report.

The UPR, which will be completed today, will not address any of these concerns. It will remain a reduced space for the country's civil society to articulate and debate concerns about the people of India and their interests. What is required is action by the government on the ground. That would not come about through the government's voluntary pledge to the Human Rights Council or from the government's treaty obligations to international conventions and covenants. Neither can the administrative writ of a government, even supplemented by court judgements, result in improvement of the human rights conditions. In India, well-intentioned but hollow and ultimately ineffective judgements remain a desperately inadequate substitute for the good governance that will systematically and sustainably improve the mechanisms protecting human rights and standards of living.