August-September 2009 
Year 16    No.143
Civil Liberties


Overhauling the system  

The legal reforms initiated by India in the field of human rights have been half-hearted. There has been no genuine attempt at overhauling the legal system

BY SUHAS CHAKMA

Did India achieve independence from the colonial British? Yes. But it was also a mere transfer of power under the Indian Independence Act of 1947. While the British as the colonial master left, true democratisation reflecting the spirit of freedom never took place. Justice, liberty, equality and fraternity as enunciated in the Constitution of India could not be fully realised because of existing British laws or the reintroduction of many laws that had been repealed by the British. The Constitution gave the people liberty but it also gave the government the right to enact laws that allowed them to arrest and detain under provisions for preventive detention.

If there is one particular area that has seen no substantive reform in independent India, it is the sphere of legal reform, adoption of the Constitution of India notwithstanding. While several laws were enacted to regulate and govern the security forces, the police in India operated principally under the Police Act of 1861. The Constitution of India promised liberty but the Police Act gave the police unbridled powers to arrest any suspects and detain them for up to 24 hours. It is the police who interact with the citizenry first. Why the Constitution of India – rather than the plethora of laws enacted by the British to suppress the Indians – does not prevail is an issue that arises on a daily basis even today.

The legal reforms initiated by India in the field of human rights have been, at best, half-hearted. There has been no genuine attempt at overhauling the legal system.

One of the acts adopted by the British was the Criminal Tribes Act of 1871, a law that was patently racist. The British introduced this act, which negates the universally held belief that all human beings are born free and equal, to subjugate many of the Adivasi groups in India. It identified suspected culprits on the basis of their ethnic or tribal origin and people belonging to a notified tribal group were required to report to the police regularly.

In free India, before the Nagas took up arms in the late 1950s, the government led by Prime Minister Jawaharlal Nehru repealed the Criminal Tribes Act 1871, only to replace it with a similar law, the Habitual Offenders Act, in 1952. While the nomenclature may have changed, the basic thrust of the Criminal Tribes Act 1871 was preserved with the same devastating effect. Fifty-eight years after independence, the Government of India through a resolution dated March 14, 2005 constituted the National Commission for Denotified, Nomadic and Semi-Nomadic Tribes to study various developmental aspects of these tribes. If India is still studying the problems of these communities 58 years after independence, when their problems will be resolved is anybody’s guess.

In fact, after the Nagas resorted to rebellion, the Government of India reintroduced the Armed Forces (Special Powers) Ordinance of 1942 which the British had first introduced to quell civilian protest during the Quit India movement. The Armed Forces (Special Powers) Act [AFSPA] 1958, enacted with the aim of quelling the Naga insurgency, was intended to remain in the statute book for only a year. But 50 years later the AFSPA – which does not define any crime but de facto empowers a non-commissioned officer to mete out harsher punishment than the judiciary in case of unlawful assembly, on mere suspicion – remains in force in North-east India and in Jammu and Kashmir.

In the last few years three governmental committees – the Justice Jeevan Reddy Commission set up to review the AFSPA, the Administrative Reforms Commission headed by the current union law minister, Veerappa Moily, and the Working Group on confidence building measures in Jammu and Kashmir headed by the current vice-president of India, Hamid Ansari – have all but recommended the repeal of the act. Yet the Government of India has shown no inclination to do so.

It is often the marginalised groups and people living on the peripheries who are the targets of various repressive laws. In the 1960s Congress-led governments introduced a series of legislation – the Freedom of Religion Acts in Orissa (1967), Madhya Pradesh (1968) and Arunachal Pradesh (1978). Though these laws criminalised proselytisation by all groups, the aim was clearly not to prevent conversion to Hinduism. The targets were the tribals and the Dalits with the latter wanting emancipation from the repressive caste system. Very few of the tribal communities which owed allegiance to formal religion, including Hinduism, converted to Christianity even during the British period. It was mainly the animist groups who converted to Christianity. Nonetheless, not a single Hindu religious activist has ever been prosecuted for proselytisation despite rampant reconversion of tribals to Hinduism in these states. Although it was mainly the communal forces who took advantage of these repressive laws, the seeds were in fact planted by the so-called secular forces in the 1960s. More recently, the Himachal Pradesh Freedom of Religion Act was introduced in 2006 by a Congress government.

In the 1970s India saw a regression of rights and the imposition of many draconian laws. The high point of repression was the imposition of emergency and suspension of fundamental rights in 1975. Post-emergency, the first non-Congress government that came to power at the centre in 1977 did repeal the Maintenance of Internal Security Act (MISA) 1971 under which thousands of people had been wrongfully detained. But even this government took no other visible measures to reform the system or do away with other repressive laws.

As the centre sought to assume control over state governments, it dismissed the governments led by opposition parties from Andhra Pradesh (NT Rama Rao) to Jammu and Kashmir (Farooq Abdullah). In the mid-1980s it created armed groups to keep the Akalis in Punjab and the Asom Gana Parishad in Assam out of power. A spectre of insurgency which had hitherto been limited to the North-east soon engulfed other parts of India.

The Government of India enacted a number of repressive laws, including the Terrorist and Disruptive Activities (Prevention) Act (TADA: 1985 to 1995) and its reincarnation, the Prevention of Terrorism Act (POTA: 2002 to 2005), to quell these insurgencies. Human rights violations under these draconian laws have been well documented and are widely known. Once again it was the religious minorities and the tribals in Jharkhand who became the overwhelming and disproportionate victims of the TADA and POTA respectively.

In the 1990s, faced with increasing international criticism, India adopted the Protection of Human Rights Act 1993 under which national and state commissions were constituted for better protection of human rights. But once again the government kept the armed forces out of the purview of the National Human Rights Commission (NHRC). Though it has had limited success, the NHRC has been constrained by the lack of innovative interventions as well as a bureaucratic mind-set. Even though it exercises the powers of a civil court, it does not follow the principles of natural justice. The commission often pronounces decisions without giving complainants equal time, equal opportunity and equal access to documents. Today the NHRC is in a state of near collapse.

In order to make such commissions more effective, the Government of India amended Article 338 of the Constitution of India in 2003 to split the existing National Commission for Scheduled Castes and Scheduled Tribes into the National Commission for Scheduled Tribes (NCST) and the National Commission for Scheduled Castes (NCSC). The amended article also stipulated that the annual reports of these commissions be placed before Parliament together with the government’s action taken reports. However, since no action has been taken by the government, no annual report of these commissions has been made public to date. This is also true of the National Commission for Minorities.

Not surprisingly, the Parliamentary Standing Committee on the Welfare of Scheduled Castes and Scheduled Tribes, in its October 2008 report entitled ‘National Commission for the Scheduled Tribes (NCST) – its mandate and achievements – a review of its organisation and working’, was among those that recommended an amendment to clauses (6) and (7) of Article 338A of the Constitution so that the annual reports of the NCST are tabled in Parliament by the ministry of tribal affairs "within a prescribed time limit".

Today, 60 years after independence, India finds itself engaged in more protracted armed conflicts than ever before. Thirteen states are currently afflicted by the Naxalite movement; all seven states in the North-east continue to face low intensity armed conflicts while the benefits of democracy are being squandered by human rights violations in Jammu and Kashmir.

The present-day Naxalites are no longer the romanticists of the 1960s living in the backstreets of Kolkata who were extrajudicially executed by the Siddhartha Shankar Rays of West Bengal. Today’s Naxalites are based in densely forested and tropical areas and even the appointment of "tough cop" KPS Gill as adviser to the Chhattisgarh government has had no impact whatsoever in tackling the problem. The terrain in which the Naxalites operate in Chhattisgarh has little in common with the flatland of Punjab where Gill had encountered the Khalistan movement.

Neither the many peace processes nor the dozen or more ceasefire agreements in the North-east have had any positive impact in terms of peace and the rule of law. In fact, the ceasefire agreements have only been facilitating extortion by the armed opposition groups who brazenly carry out such extortions under the guise of a ceasefire. Unless ceasefire agreements are arrived at with the definite aim of finding political resolution, they are for all practical purposes tantamount to prolonging the insurgencies and the accumulation of wealth by insurgents, which will only come back to haunt India.

The defence ministry argues vociferously in favour of the Armed Forces (Special Powers) Act as an essential tool for the containment of insurgency. But there is no evidence whatsoever to suggest that the AFSPA has been effective in containing insurgency wherever it has been imposed. There are more armed groups in the North-east today than ever before. If the Kashmir valley is more peaceful today than it was in the 1990s, it is no thanks to the effectiveness of the military operations carried out under the AFSPA. In the post-9/11 period, among the armed opposition groups, it was the Kashmiri groups who were the worst affected. Pakistan now finds itself at war with those whom it had once glorified as freedom fighters and it has been under intense international pressure not to support the armed groups.

To effectively combat terror, there is a crying need for changes in perception, in mind-set and in action strategies. In the battle for hearts and minds, the state and its agencies must be seen as offering a better alternative to the armed groups. Acts like the AFSPA, which symbolise repression, must be repealed. The Government of India must treat human rights violations as serious criminal offences. Human rights violations can never be justified; they can never win hearts and minds, so necessary for the success of any counter-insurgency operation.

If the law is allowed to take its own course, if public officials, including personnel of the armed forces, are called to account for their acts of commission and omission, human rights violations will decrease significantly and this will undoubtedly help win the hearts and minds of the people.

In the 1990s kidnapping was virtually a cottage industry in the state of Bihar. But the strict enforcement of the law under Chief Minister Nitish Kumar has had a visible deterrent effect.

The question is whether the law enforcement personnel in India themselves respect or fear the law. Unfortunately, the regime of impunity has engendered the notion that they are above the law. Unless everyone is treated as equal before the law, unless the principle is established that no one enjoys impunity and nobody is above the law, there is no escape from the current abyss. India’s increasing conflicts show that half-hearted measures do not work.

(Suhas Chakma is the director, Asian Centre for Human Rights.)

 


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