Author: Shri Prem Shankar Jha
Publications: The Outlook
Dated: September 17, 2001
There is something disturbing about
the ease with which debate on vital issues of nation-building, whose outcome
could well decide whether India survives and prospers in future years,
gets sidetracked into irrelevancy or loses its focus. A prime example is
the controversy over Union home minister L.K. Advani's decision to extend
some form of amnesty to policemen who stand accused of committing crimes
or violating human rights while on duty in insurgency-ridden areas. Liberals
and human rights activists have banded together to denounce the move on
the grounds that it will undermine the rule of law, encourage even more
assaults on civil liberties, and take India another step down the road
to a police state.
They maintain that there is already
a plethora of acts in the statute books, such as the Disturbed Areas Act,
the Army (special powers) Act and the Public Safety Act in Kashmir, that
give far too much immunity against prosecution to the forces. These have
severely undermined the accountability of their actions, and encouraged
a variety of excesses that have tarnished and undermined Indian democracy,
further alienating the people in insurgency-affected areas.
These fears are well founded and
the arguments against increasing the security forces' freedom from accountability
are irrefutable. But the entire debate has become sidetracked and no longer
addresses the specific problem that Advani is trying to resolve. That problem
is how to protect more than five hundred policemen in Punjab, facing prosecution
now because the courts there have admitted cases against them by relatives
of those whom the police incarcerated or tortured during the struggle against
terrorism in the state. This was possible because of a mismatch in central
and state laws that resulted in Punjab Police not enjoying the same degree
of legal immunity as the army and the BSF.
The issues we should therefore be
debating are: first, should the policemen concerned be prosecuted now for
acts allegedly committed a decade or more ago during the fight against
insurgency? Second, if not, then what form should the additional immunity
take; and third, how can this extension of immunity be prevented from further
reducing the accountability of the security forces for abuses of power
in their dealings with civilians in the affected areas?
On the first issue, the extreme
liberal position articulated by Justice M.N. Venkatachalaiah, ex-NHRC chairman,
during the launch of Arun Shourie's book on September 3-that the defence
of human rights has to take precedence over the need to maintain territorial
integrity of the state-is simply untenable. The state has a duty to respect
the rights not only of insurgents but also the citizens who have not taken
up arms, invariably the former's first victims.
In Punjab, the militants killed
some 20,000 civilians, with 61 per cent of their victims being Sikhs, for
whose "liberation" they were, ostensibly, fighting. In Kashmir, 37 per
cent of the 31,000 people killed in the past 12 years have been civilians
killed by the militants, 88 per cent of whom have been Muslims. Any action
born of concern for the human rights of insurgents that puts the general
populace at greater risk is therefore counterproductive and unjust.
Human rights activists have tended
to dismiss this defence on the grounds that insurgents are driven to take
up arms by the tyranny of the State. But while this may be true elsewhere,
it can hardly be said of India where the ballot is a readily available
alternative to the bullet. This was the case in Punjab and is also true
of Kashmir despite the fact that except in 1977 and 1983, elections have
seldom been fair.
The fact is that while one may not
approve of the methods it used, Punjab Police did crush an insurgency and
maintained the territorial integrity of the country. Even its choice of
methods was constrained by the fact that the insurgents had targeted the
administration and the judiciary and paralysed both-so much so that the
government could not convict the assassins of Sant Harchand Singh Longowal
despite their having killed him in full view of more than five hundred
people-and that the insurgents had targeted and killed almost two hundred
members of the policemen's families. To prosecute them now would ensure
that no policeman anywhere in the country will take up this onerous duty
again.
Advani can't therefore be faulted
for attempting to remove the lacuna that has permitted the prosecution
of Punjab Police personnel. Where he and the home ministry are going wrong
is in not announcing parallel measures to increase accountability of the
forces for actions that cannot by any stretch of imagination be considered
a part of their duties. If they don't do this, the measures they are contemplating
now will embolden members of the security forces in Kashmir and Assam to
commit crimes against the people at will. The right way to do this is give
existing inquiry procedures within the security forces more teeth, making
them transparent. Not only should an internal inquiry be mandatory when
there is a death in custody or during an 'encounter', but the inquiry should
be open to at least the victim's relatives and the press, and should involve
at least one outside person of high repute in the investigation and adjudication.
If the home ministry is not prepared for this, then it would be better
to let the present law stay unchanged.