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Selective Human Right

Selective Human Right

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.
 


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