By Prabhakar Sinha,
We have been devoting ample time to consider ways and means to strengthen the organisation, but not enough time to think of the ways and means to win popular support for our cause, i. e., protection and promotion of human rights which include democratic rights and civil liberties. In a democracy, the most effective means to compel a government to concede a demand is to create a strong public opinion in its favour. Political parties do not want to lose votes and are wary of antagonizing voters even on issues on which the voters, in their opinion, are wrong. For example, one may consider the absence of political will of the political parties to act to put an end to pernicious medieval diktats of ‘Khap Panchayats’. In sharp contrast, the political class acts identically in blatantly violating human rights of the people while swearing in their name. They believe that they can afford to do it because the number of votes they may lose by the violations are so few that they do not adversely affect their electoral fortune. In short, violation of human rights is almost a non-issue for the electorate and of very little concern to the political class. The attitude of the political class will remain unchanged unless the people react against these violations causing substantial loss of votes to the responsible parties.
Changing the mindset of the people is a daunting task even for very big organizations. For a small organisation like ours to so influence the mindset of the people as to make them fight for human rights is still more difficult. Undertaking this daunting task necessitates being analytical, introspective and innovative. We have to assess the human rights situation in the country, understand the cause/causes for the existing state and most importantly, consider the ways and means of achieving our objective. The human rights situation in the country has been growing worse since our independence and India becoming a Republic. There are people who would contest the assertion on the basis of the provisions of our constitution, which truly guarantees most of the human rights in the form of fundamental rights; but often as in this case, there is a vast difference between the appearance and the reality. Within weeks of the adoption of the constitution, The Preventive Detention Act, 1950 was passed. It continued till 1970 and was followed by the more draconian MISA (The Maintenance of Internal Security Act, 1971). MISA was repealed by the Janata Party government in 1977 but was followed by a more draconian NSA (The National Security Act, 1980). In 1984, TADA (The Terrorist and Disruptive (Prevention) Activities Act) was enacted. Following its repeal in the 90s of the last century, came POTA (The Prevention of Terrorism Act). Apart from these central laws, the states had been enacting equally or more draconian laws. As early as in 1967, The Unlawful Activities (Prevention) Act was passed though MISA, TADA and POTA were later almost unanimously condemned as being too draconian and were repealed. However, many of their pernicious provisions have been included in several other laws by amending them. In fact, most of the black laws enacted by the Indian State are blacker than even the Rowlett Act, which led to the nationwide protest and the massacre of the unarmed protesters at Jallianwala Bagh, in 1919. The most obnoxious feature of the these laws is that they can be misused/abused against just anyone in no way connected to the activities the law aims at preventing or punishing. Whereas they provide for impunity to the functionaries of the State who misuse/abuse the laws it absolves the State of the responsibility of compensating the innocent victims for the loss of their personal liberty and financial and other losses they might have suffered. These black laws are an addition to the other normal laws like The Police Act 1861, The I. P. C. 1860, The Criminal Procedure Act, The Prison Act 1998 and a slew of other laws enacted by the colonial government, which are oppressive enough to be a blot on a democracy.
The British government needed the draconian laws to maintain its hold on India and check the revolt by its people against their exploitation. But why should our democratic government need more draconian laws than even the previous colonial government? The democracies like the U.S.A., the U.K. or France with whom we identify ourselves do not need such laws to deal with their own people (though they may be held guilty of oppressing the people of other countries to maintain their hegemony). Why should India need them? The fact is that the Indian State has been arming itself with more and more draconian laws to suppress her own people rising against their exploitation and betrayal by the political class of the country. While the constitution unambiguously directs the State ‘to minimize the inequalities of incomes and eliminate the inequality of status, to ensure that ‘the operation of economic system does not result in the concentration of wealth and means of production to the common detriment and also to ensure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good (Art. 38 and Art. 39). The State has been doing the very opposite. The constitution also states that though the Directive Principles enshrined in the constitution shall not be enforceable by any court the principles ‘nevertheless are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Taking advantage of the provision that the Directive Principles cannot be enforced by any court, the political class chose to betray the constitution and the people of India by adopting the opposite course. The inequalities of incomes have been widening, the status of the poor has been reduced to almost that of a beggar while the rich have become the new Maharajas, Rajas, and Navabs according to their wealth. Betraying the constitution and the people, the economic system has been operated to ensure that wealth and means of production are concentrated in a few hands and the material resources of the community are used for the benefit of the rich rather than for ‘common good of the community’. The class of the rich has become so confident and aggressive that it has begun to show its cruel and ugly face. During a panel discussion (on Times Now) on the bill replacing the The Land Acquisition Act they vociferously stated that after passing The Food Security Bill and proposing to pass the bill on land acquisition the government should declare that India has chosen to become ‘Pink’ and a ‘Communistic State. They claimed sympathy for the poor and said they were not against them, but spoke in a manner as if the country belonged to India Inc. (the rich) and the poor of the country were beggars who have no rights and who only deserve to be given alms. The debate in which even the compere was aggressively pro-India Inc. was both sickening and revolting.
The State, which is bent upon looting and pauperizing the people to serve a handful of the rich is bound to anger the victims of this policy of plundering, and its victims are bound to give vent to their anger in numerous ways. In response, the pro-rich State is bound to enact more and more draconian laws to suppress them.
The expanding inequality in income and status of the people has emaciated our democracy and reduced India to an oligarchy of the rich masquerading as a democracy. Manmohan Singh (he is not the cause but only the effect of the emaciation) is the most damning proof of this development. Can one think of a nominated Prime Minister of the U.K. or think of the U.S.A. having a President unknown to the people. The Prime Minister or President of a real democracy is the leader of the nation and not a political non-entity ready to be a proxy for someone. The euphoria with which this disgraceful arrangement was received by the rich, the middle class and the media does not augur well for the future of democracy.
Where democracy itself is emaciated, human rights are in increasing peril.
We (PUCL) are not a political party which may think in terms of coming to power and changing the wrong policies pursued by the State and reversing the anti-democratic direction of the governance. We can only make the people aware of the wrongs being perpetrated against them and inspire them to fight for their human rights. It would also be unrealistic to think of fighting each case of violation of human rights and get the guilty punished. This task can be accomplished only if we, too, had the same manpower and vast resources which the State has in its possession. Just as any organisation cannot end corruption by fighting each incident of corruption, we cannot fight each incident of violation to prevent or check it. The solution lies in creating sufficient pressure of public opinion on the government to compel it to introduce effective measures in the law. Individual cases of violations have also to be taken up to create awareness and fighting spirit among the people and also to inspire confidence that fighting for the cause bears fruit.
The task of mobilizing support for human rights is extremely difficult because it is different from fighting for your own rights. People have been fighting against injustice done to them from times immemorial but have not hesitated in giving their opponents the same unjust treatment which they themselves had been receiving. There was a time when it was done in the spirit of a tooth for a tooth and an eye for an eye, and later under some other pretext. The Universal Declaration of Human Rights 1948 followed by several covenants and treaties is an attempt to reject the notion that human rights of a person can be violated under any pretext. It declares human rights to be universal and inalienable. The implication is that to have human rights, you need no qualification other than being a human being. By making it inalienable, it deprives the State of the right to take away human rights by enacting laws. It eliminates the notion of higher or lower status of individuals on the basis of talent, wealth, position or something else by recognizing the equality of inherent dignity of each person. But for the vast majority of Indians, they are only a dream not a reality. Our task is to inspire the people to fight to make that dream come true.
The human rights movement cannot win popular support unless the people think it concerns them. The State has succeeded to a great extent in persuading them to believe that ‘the Human Rights walas’ are for the terrorists, Maoists and the other violators of the law and not for them. It has also succeeded in creating the false and dangerous impression that human rights are against the national interest. They do not make categorical statements regarding it but resort to effective insinuation. There is little possibility of winning popular support unless the people consider the movement to be in their interest and are made to realize that human rights are not in conflict with the national interest but are in the interest of the overwhelming majority of the people to whom the country belongs.
The Aims and Objects enshrined in the PUCL constitution are meant to address the problem of the common man, but have not received due attention. It is time we think of the ways and means to achieve them. It is worthwhile to draw attention to some of them to show how relevant they are for the common man.
(2 j) To work for the reform of the judicial system so as to remove inordinate delays, reduce heavy expenses, and eliminate inequities.
(2 l) To oppose police excesses and use of third degree method.
(2 d) To work for the withdrawal and repeal of all repressive laws including preventive detention.
(2 k) To bring about prison reform.
(2 c) To undertake constant review of penal laws and criminal procedure with a view to bringing them in harmony with humane and liberal principles.
It is the common man who suffers the most from the judicial delays and heavy expenses in litigations. Justice has become unaffordable for an overwhelming majority of Indians. Consequently, they cannot get those, who kill, maim, rape and commit other crimes against them, punished. The police are bought by the criminals, the Public Prosecutors help the guilty for a price and actively aid miscarriage of justice. The poor continue to languish in jails for long periods even for minor offences because they do not have the money to pursue their cases for bail or for defending themselves.
It is again the poor who suffer the excesses committed by the police. They are often implicated in false cases at the behest of the influential persons who have the means to grease the palm of the police. The third degree method is meant only for the poor. It is never used against the rich, the politicians, the bureaucrats and other influential persons who are guilty of robbing the nation of billions of Rupees, though the poor are subjected to it even on the suspicion of picking someone’s pocket, stealing things even worth a few hundred or thousand rupees. It is never used against those who have stashed billions of black money in Swish banks. In fact, this practice continues only because its victims are too poor and helpless to fight this cruelty. We should fight to end this inhuman practice. Nobody, the rich or the poor, should be subjected to this inhuman and degrading treatment.
The excesses committed by the police take so many forms that they cannot be enumerated. Human rights organizations have raised their voice against killing in the police (including security forces’) custody and fake encounters, but no concerted effort appears to have been made against police firing on unarmed demonstrators resulting in death and injuries. The number of persons killed in such police firing far exceeds the number of persons killed in police custody and fake encounters. The wanton firing with impunity on unarmed processions is a blatant attack on the democratic right of the people to give vent to their anger and frustration. It is also unknown in any real democracy.
The most arbitrary and frequent use of Section 129 of The Criminal Procedure Code is a mockery of Art. 19 of the constitution, which guarantees civil liberties including the right to peaceful assembly and freedom of speech and expression. This fundamental right has been made subject to the whim of any junior police officer. Any Sub Inspector of police or an officer of a higher rank is empowered (under this section) to declare an assembly unlawful and use force to disperse it. He may use laathi, tear gas or open fire with impunity. He has the power to resort to firing and kill with impunity. He is not required to prove before a court of law that it was necessary for him to kill people to save his life even if he claims to have used the force in self-defence. In no case, can he be prosecuted for using force to disperse an unlawful assembly without the sanction of the government (S 132), which is almost never given. The same power has been given to a Commissioned officer of the Arms Forces (S 131). In this respect, it is identical with The Armed Forces (Special Powers) Act, but whereas voices have been raised against the AFSA, the more murderous provision of the Cr.P.C. remains unnoticed.
S 144 of the Cr.P.C. empowers a Magistrate to prohibit an assembly of people, which is in rampant use to prevent public meetings or processions. The use of this power depends on the subjective satisfaction of the authority and the people have no clue when and how they are used.
Those who replaced the colonial government after independence did not consider the ordinary laws framed by their predecessors oppressive and objectionable and allowed them to continue and used them against the people of free India as in the past. Thus, The Police Act 1861, The Indian Penal Code1860, The Prison Act 1898 and The Criminal Procedure Act 1898 were retained. In spite of the direction of the Supreme Court to amend the Police Act 1861, it has been retained with a few cosmetic changes. The penal code has been made more draconian by incorporating in them draconian measures from discredited laws like TADA, POTA etc. which had to be repealed because they were widely condemned. The Prison Act is in the process of undergoing some cosmetic changes, which are not likely to be put in practice.
The police have unbridled power to arrest without warrant (S 141 of Cr.P.C.) The provision has been so amended that it hardly makes any difference to the arbitrary power of the police and the security of the personal liberty of the people. The Cr.P.C. was amended in 1973 to make ‘bail the rule and jail an exception’. The ground reality is that the lower judiciary continues with the same old practice of refusing bail as if there had been no amendment. The law on bail (u/s 437 of Cr.P.C.) provides that bail may be refused if the court has reasonable ground for believing that the accused is guilty of an offence punishable with death sentence or imprisonment for life or if he has been accused of a cognizable offence and had been previously convicted of an offence punishable with death, imprisonment for life or seven years or more. He may be refused bail also if he had been convicted on two or more occasions of an offence punishable with imprisonment for three years or more. It has been further provided that bail may be given even to such accused if he is under sixteen years of age or is a woman or is sick or infirm. Apart from this, the court may grant bail to any of them for some special reason if he thinks it proper to do so. If the provision for bail is followed in letter and spirit very few would be remanded to judicial custody.
The first step towards working for ensuring the rule of law is to expose the hollowness of the claim that the rule of law exists in India. It does have a formal existence, but it fails a reality check. Our judiciary is independent, the constitution guarantees equality before the law and all are subject to the same laws and the same courts, but the ground reality is very different. The law is not applied in the same way. For instance, the benefit of the direction of the apex court, that normally no one should be handcuffed, is enjoyed only by the non-poor members of the society. The poor are openly handcuffed and made to walk from the jail to the court with a rope around their waist. Even the courts take no notice of this open contempt of the Supreme Court. Approaching the higher courts which alone have the power to enforce fundamental rights are beyond the means of 80% of our countrymen. Can the claim of the existence of the rule of law be acceptable in a country where the courts empowered to enforce the fundamental rights are beyond the reach of 80% or more of its population? In other words, the fundamental rights enshrined in the constitution are the prerogative of only 20 % or so of our people.
Should we not work to ensure that higher courts are brought within the reach of all so that all may enjoy their fundamental rights on equal footing with the others.
Similar is the state of the dignity of the individual. The dignity of the individual is inseparable from equality of his status. Ours is a society in which the status not only of the individual but also of an entire caste was determined by the caste in which one was born. Thus, inequality does not shock an Indian. Even those born in a lower caste in the hierarchy of castes, instead of asserting equality as a value, tend to assert their superior status when they occupy a position of power. The political class which has to transform the value of equality into a reality is itself unabashedly status conscious and is engaged in perpetuating inequality of status. Equality of the status of individuals is the very foundation of democracy. Indian democracy, which in practice rejects the ideal of the equality of individuals (while accepting it in principle) stands on a shaky ground.
To fight for the equality of the status of individuals is not a fight only for them but a fight for the survival of our democracy.
Why is that atrocities committed at such a massive scale do not arouse the people to rise and fight? The political class has succeeded in so dividing the people that they identify only with their own group and are indifferent to the plight of others. Thus, the tragedy of the tribal people of Chhattisgarh, Odisha and Jharkhand is perceived by others as their (the tribal people of these states) problem and a matter of indifference for others. No victim of atrocities receives support from others. This policy of divide and rule has been serving the interests of the ruling elite while the rest continue to bleed one by one.
The PUCL constitution does not speak of fighting for our democratic rights but significantly enjoins us to ‘uphold and promote by peaceful means civil liberties and democratic way of life throughout India’. Fighting for democratic way of life is different from fighting only for your own democratic rights. The black inhabitants of South Afrika suffered limitless atrocities perpetrated by the white rulers and fought tooth and nail for their rights, but when they won the battle and came to power, they did not settle accounts with their tormentors and adopted a truly democratic system in which both the Whites and the Blacks could live in peace and prosperity. Had they chosen to settle scores with the Whites, there would have been a bloodbath and no democracy.
These are some of the issues which must be taken up to win the people to support human rights. There are many more, which we expect the National Council members to suggest.
Human rights include a large number of economic, social and cultural rights, which have been accorded the same status as the civil and political rights. I have not mentioned them since I have not studied them in depth. The members who have studied them are welcome to make their suggestions.
It is not enough to identify the relevant issues, we also have to find the ways and means to reach the people. The mainstream media are not the means to reach the common man because their concerns are very different. Their interest in common man is very limited. In fact, most of them –print or electronic- are owned by the rich whose interest is in conflict with the interest of the common man. It is unrealistic to expect them to act against their own interest. The editor or the others working in the media have no independence or security of service, which make their personal opinion and concern almost irrelevant. Since they can be hired and fired by the owners, their personal views have to be subordinated to that of the their owners’. The media often uses a human rights issue just to keep an appearance. Media, which are admittedly a mere business to make money, and which are not ashamed of the practice of paid news (passing advertisement as news for money) cannot be expected to speak for those who have no money to pay.
However, there is no reason to lose heart. The media have horizontally a vast reach but vertically their reach is superficial. The Parliamentary election in 1977 was fought during the Emergency when the media were not free to report the excesses committed, yet the people threw Indira Gandhi out of power. They had no need of being told about the value of democracy. They went by their own experience. They knew what they had been deprived of. In course of time, the political class has successfully misled the people into believing that they are their masters. They have been vying with one another in making more attractive offers as if they are benevolent ‘Rajas’ blessing their subjects with gifts from their treasury. The people have not yet realized that the country belongs to them, and the treatment they have been receiving is, in fact, denial of their due rights and respect. The absence of that realization is the cause of their acquiescence in the contempt with which they continue to be treated. Once the realization of their power and position comes it would be impossible to deny them their rights. The need is to create that awareness which would make them an invincible force.
During the 1980s, the PUCL launched campaigns on important issues. One of them was against the TADA and another was against the 59th amendment of the constitution under which (Rajiv Gandhi’s) the government had amended Art 352 of the constitution (which deals with declaration of Emergency) to provide that an Emergency could be declared on the ground of internal disorder in any part of Punjab. As a result of the nationwide protest the amendment was repealed. Had the amendment remained, the government could have declared emergency in the whole or parts of Chhattisgarh, Odisha, Jharkhand, Manipur, J&K and Nagaland etc. Campaign is an effective tool in the hands of the people.
We should choose issues which concern the masses and launch a campaign for or against them. The issues which have been referred to from the PUCL constitution may be some of them. Police atrocity, use of third degree, judicial delays, unaffordable cost of justice and the denial of due respect to the common people are issues which concern almost the entire population. There may be many more such issues which need to be identified. The people will ultimately realise that we are speaking for them and the human rights movement is in their interest.
We may take the following steps to reach the people:
1. Preparing booklets and pamphlets/leaflets written in a simple language which may be intelligible to the literate among the masses.
2. Holding public meetings including corner meetings to reach the common man.
3. Organising peaceful demonstration and ‘Dharna’ to highlight the issues.
4. Making use of the media to the extent possible to publicise the issues. The mainstream newspapers have started the practice of devoting pages to cover the local news. They may prove useful for spreading our message.
5. Organising writing and sending of postcards to the concerned government/authorities.
6. Organising seminars to win the support of the middle class.
I have shared with you some of my thoughts and suggestions and urge the National Council to consider the ways and means to mobilize public opinion in favour of human rights.
(Writer is the National President of People’s Union of Civil Liberties (PUCL) and this is the text of inaugural speech delivered by him at the National Council Meeting, Mangalore on 14 September 2013.)