Issue 54 Vol III, December 31, 2007

M E D I A

Liberty and the Monster State-2
Chaitanya Kalbag

[Chaitanya Kalbag is an eminent journalist who has always made his mark wherever he went, India Today Reuters where he rose to  be the first Indian to be Asia head and more recently as editor in chief of the Hindustan Times.

As an investigative reporter, he had always his deep commitments for liberal humanistic values and stood by these whatever be the cost. His honesty, dedication and earnestness touch anyone who comes in contact with him. Recently he delivered 3rd Justice V.M. Tarkunde Memorial lecture in Delhi. We take the pleasure of sharing this lecture with our readers. It would be in three parts.]

Our Constitution is one of the most enlightened and well-drafted charters any nation could hope to possess. The Preamble, which sets out the principles of justice, liberty and equality, also defines fraternity as “assuring the dignity of the individual and the unity and integrity of the Nation”. Note that the individual is placed before the nation. And then we come to that shining jewel of individual rights, Article 21 of our Constitution. It is explicit in its language: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Justice P.N. Bhagwati, who championed public-interest litigation, set forth an important and liberal interpretation of individual liberty in Maneka Gandhi vs Union of India in 1978. “Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch.”

At another place the same judgment says: “The spirit of Man is at the root of Article 21. Absent liberty, other freedoms are frozen.” And then immediately adds: “Procedure  which  deals with the modalities  of  regulating, restricting  or even rejecting a fundamental  right  falling within Article 21 has to be fair, not foolish,  carefully designed  to  effectuate, not to  subvert,  the substantive right  itself….procedure must rule out anything  arbitrary, freakish  or  bizarre. What is fundamental is life and liberty. What is procedural is the manner of its exercise.  This quality of fairness in the process is emphasised by the strong word ‘establish’ which means ‘settled firmly', not wantonly or whimsically.”

But does this really happen?  Is the average man or woman given the opportunity by the authorities to seek fair trial, fair treatment, or fair judgment?

This year we celebrated 60 years of independence. The Directive Principles of State Policy set out the state’s obligations in admirably clear terms, conferring the right to an honourable livelihood on every Indian, along with the equality of economic opportunity, equality of compensation for men and women, education, a uniform civil code, and so on.

Last month Justice Rajendra Babu, the chairman of the National Human Rights Commission, spoke eloquently about rights and the individual when he said: “We realize that protection and promotion of civil or political rights is not enough as deprivation or disparities in economic, social and cultural areas, which are wide spread, have reduced large numbers of citizens to the margins of human existence.”

Justice Babu feels that the trust reposed by India’s citizens in the NHRC is reflected in the number of complaints it receives – and these have skyrocketed from 496 in 1993 to 82,233 in 2006.  Is it not a crying shame that we have 82,000 violations of human rights in the world’s largest democracy?

Statistics in India always beggar the imagination. NHRC statistics show as many as 44,000 children go missing in India every year. At least a quarter of them remain untraced. I am sure we have all heard of beggar factories where kidnapped children are maimed before being put to work by modern-day Fagins. What recourse does an abducted child have to help from a passing policeman? What sort of remedy can a grieving parent seek from the state machinery?

Children may be the most vulnerable among us, but they are certainly not the only ones. In the Punjab mass cremation case, the NHRC recommended compensation to the next of kin of 1,298 people whose bodies were cremated by the Punjab police. At least 195 of them had been killed and cremated while in the custody of the police.

An  anguished Supreme Court, in its order in D.K. Basu vs State of West Bengal, 1997, said: “Custodial death is perhaps one of the worst crimes in a civilized society…The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected…..If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become a law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. Does a citizen shed his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’.”

Look at the figures for our prisons. At the end of 2005 India had a total of 1,312 jails and they were designed to accommodate a quarter of a million prisoners.  In actual fact, there were nearly 360,000 prisoners and more than a quarter-million of them were undertrials, which means they may have already served their maximum possible sentence behind bars without ever being tried.

I was hard put to find any significant action taken by the NHRC in Kashmir except the celebrated case of the dead carpenter Abdul Rehman Paddar, who was passed off as a dreaded militant commander by the police.  The Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act confer extraordinary and sweeping powers on security personnel to arrest, detain, and even kill any person on mere suspicion that he or she might be up to no good.

The Kashmir act is based on the national Armed Forces Special Powers Act, itself modelled on legislation passed by India’s colonial rulers to suppress our independence movement.

Both the acts in force in Kashmir, as well as Sections 45 and 197 of the Criminal Procedure Code expressly state that no public servant, including police or paramilitary and army personnel, can be arrested or criminally prosecuted without the permission of the Government of India.  Such permission is almost never granted.  Please remember that the CrPC applies to every one of us across the length and breadth of India.

Unlike in the United States or Britain, military courts and their decisions are not subject to appeal in civilian courts in India. The Law Commission in 1999 apparently recommended setting up a civilian Armed Forces Appellate Tribunal but nothing has happened.

So we have clear and egregious examples of arbitrary and brutal action, like the encounter killings of five men suspected of involvement in the massacre of 36 Sikhs in Chattisinghpora in 2000 who were later found to have had no connection to the massacre, or the February 2006 killings of four boys playing cricket, or the July 2005 killing of three boys who had sneaked out at night to smoke a cigarette.

Human rights groups in Kashmir say more than 10,000 people have disappeared since 1989. Authorities concede that there might be up to 4,000 missing people.

All this is not to say that the government is wholly devoid of good intentions.  The Model Police Act of 2006 is now grinding its way through the nation's legislative process. What few citizens know in our vast nation is that we are still governed by the provisions of the repressive Police Act of 1861! That was just four years after the “First War of Independence” in 1857. So it took one hundred and forty-five years for India to begin to recognise that it needed a police Service (as the Bill states), not a police Force, and that it needed an Indian police service. Many experts have combed through the 2006 Bill and found that it does not improve much at all on the original Act – and that is how the police have looked upon the ordinary citizen, as guilty until proven innocent. But who is going to help them prove their innocence?

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