Review of Challenges to Civil Rights Guarantees in India

The State and Citizenship | Mona Das | The Book Review, October 2012


South Asian Human Rights Documentation Centre| Oxford University Press, New Delhi, 2012, pp. 283


Rights delineate relationship between the State and the individual hence; they are some sort of parameters to determine the nature of any State. Individual and group rights, including a gamut of second generation rights called civil and political rights, when guaranteed by a State serve as milestones to mark democratization of society. Advocacy for protection of Civil Rights, in the present era of hegemonic discourses on cross-border terrorism, insurgency, everyday commonplace security threats, is more complex than ever before.

Rights are the smallest price that a Nation State is more than willing to pay in return for security and peace. In this context the book under review is an attempt to empower citizens of India through dissemination of information and educating them on civil rights, as admitted in the preface to the book which quotes Francis Bacon’s aphorism ‘Foreknowledge itself is power’.

Neatly divided into nine exhaustive chapters covering various aspects of civil rights the book has an interesting mix of old and new issues as well as issues which in the commonsensical understanding of civil rights may have been neglected. It covers a whole range of themes starting from the most obvious violations like those relating to preventive detention acts, extrajudicial killings, counter-terrorism and human rights, AFSPA, moving on to issues like narcoanalysis, death penalty, video-conferencing, anti- conversion laws which may not appear as violations of civil rights at all.

The chapters are complete packages on the themes discussed; issues are placed in a historical context, which then leads to pointing out violations inherent in the text of law, judicial pronouncements that have further impinged on civil rights by way of interpretation, implementation related violations, followed by evaluation in the backdrop of international laws related to the theme.

The book begins with a discussion on laws authorizing preventive detentions.

Preventive detention ‘while premised on the value of precautionary state action ....(it) has been operating at the cost to the values of individual liberty, due process and sacrosanct protection under the law.’ The journey of preventive detention as a piece of legislation has been traced to the British East India Company Act, 1784 followed by a host of other laws of the colonial era. However, even in Independent India preventive detention was not only incorporated in the law books but it has become ‘a law enforcement tool rather than an extraordinary measure to be applied only during an emergency or during national crisis that is of limited duration.’ The chapter refers to the Constituent Assembly debates on preventive detention; various state and national laws on it; issues of judicial oversight and limitations on the judiciary are substantive and interesting.

Extra-judicial killings or encounter killings or what the book calls ‘fake encounters’ are always disputable as it is nearly impossible to pinpoint definitely whether a particular encounter was fake or not. Given the magnitude of disparity in the claims; and general acceptance for encounters as a ‘necessary measure to combat the threat of crime and terrorism’ raising issue of rights for ‘criminals’ and ‘terrorists’ is particularly difficult to take up. Civil rights groups often find themselves on the receiving end trying to argue against extra-judicial killings. The chapter not just lists out these issues but also analyses the reasons for acceptance of encounter killings by the general public due to cultural perceptions shaped by media, films, arguments of police morale peddled by judiciary etc.

Creation of elite ‘Encounter Specialists’ has institutionalized encounter killings in the police which in itself is a violation of rule of law as extra-judicial killings were meant to be an aberration in the extreme situation in self-defence. The lacunae in the legal framework of IPC, CrPC, NHRC Guidelines and judgements by the apex court are discussed, all creating an environment conducive for law enforcing agencies to go on a killing spree riding high on public support and admiration especially when the accused are alleged terrorists.

The following chapter deals with counter- terrorism and human Rights. 9/11 attack on the twin towers in the United States has changed the world forever. UN Security Council Resolution 1373 obligates all member States to enact and implement counter terror laws. India has experimented with its own set of anti-terror laws starting with Armed Forces Special Powers Act, 1958; National Security Act, 1980; The Terrorist and Disruptive Activities (Prevention) Act, 1987; Prevention of Terrorism Act, 2002; Unlawful Activities(Prevention) Amendment Act, 2004 subsequently amended in 2008. This section evaluates the entire gamut of anti-terror laws and brings out the fact that successive acts are as draconian as the preceding ones and in many instances worse. All these acts have a broad and expansive definition of terrorism resulting in these laws being used as batons to mind unruly opposition many a times. There appears to be a set pattern, large number of detainees but very low rates of conviction even less than one percent for TADA and POTA; targeted use of the provisions against religious minorities, dalits, tribals and other disempowered groups. The erroneous provisions have limited powers of judiciary to a great extent.

Courts could not review detention orders—a person could be detained without charge for 180 days or 6 months only on the basis of an FIR; bail provisions were changed substantially—a judge had to make a pre-judgement on the guilt of the accused; confessions to police officers of the rank of Superintendent was made admissible. The chapter painstakingly compares all ‘terror’ acts, makes note of judicial pronouncements relating to these important issues of criminal law which were sought to be overturned as terrorism was to be considered as a special kind of offence.

The issue of death penalty has been examined relying heavily on the judgements delivered by High Courts and the Supreme Court. Arguing against the death penalty, the ‘rarest of rare doctrine’ and the application of judicial discretion has been critically analysed. The book argues for progressive abolition of the penalty and a moratorium until the issue is thoroughly discussed.

The chapter on narcoanalysis is the most interesting. Narcoanalysis in this decade has come to be seen as a scientific, hence reliable tool used for crime investigation. The book raises pertinent ‘scientific, legal and ethical questions’ regarding this method of investigation. An obsolete method—scientific validity and reliability of which has been seriously challenged—is used by India’s agencies as a magic wand. Not just the investigative agencies but courts have also been overwhelmed by this ‘scientific’ tool and given a miss to the legal protections guaranteed by our Constitution and the Criminal Procedure Code against self-incrimination. The issue of force or compulsion has been taken up in many cases and interestingly courts have defined force narrowly taking note of physical force or torture only.

The Supreme Court has finally condemned narcoanalysis but the general perception remains. ‘Undertrials and Videoconferencing’ looks at the mammoth task of conducting speedy trials in a country like India where statistics say there are ‘12.5 judges per million people with 15,000 judges issuing judgements for 1.5 crore cases each year.’ Videoconferencing is seen to be a panacea for the mounting number of cases. On the face of it, it sounds like an innocent policy proposal aimed purely at overcoming operative difficulties.

However, this can also infringe upon individual liberty in myriad ways is the case in point. Videoconferencing can be a substitute for actual appearance in court only in very rare cases and not a regular practice, as once it is so there are serious issues of violations that are inherent in this process. In the chapter on ‘Acts of Bad Faith: Anti-con- version Laws’, a pertinent issue, that of right to profess, practise and propagate religion guaranteed by Article 25 is discussed. The chapter looks at various anti-conversion laws ironically called ‘freedom of religion’ laws enacted by State legislatures of both Congress and BJP ruled States as well as those ruled by a regional party like in Tamil Nadu. Even a cursory glance at these laws proves that there is a majoritarian bias for example: re-conversion or returning to the religion of forefathers is not considered as forced conversion.

Whereas, force includes ‘threat of non-adherents inviting divine displeasure’ which is an integral part of dictum of religions like Islam, Christanity and Judaism. The section effectively argues that these laws are an assault on the concept of a secular State as espoused by the Indian Constitution and brought to the fore in the Constituent Assembly debates.

Issue of ‘public order’ frequently cited as a justification for denying the right to convert has been also been analysed critically to prove that instances of breach of law is often confused with the legal understanding of public order. The chapter on immunity sums up the reason for all acts of violations of civil rights. Immunity enjoyed by public officials in discharge of their ‘duties’ is the primary reason for implementation related violations. This chapter looks at sections of CrPC, counter-terrorism, counter-insurgency laws, which makes prosecution of public officials nearly impossible, in turn leading to rampant violations.

The book ends with a discussion on the Armed Forces Special Powers Act, 1958 a draconian law much abused and discussed in the public arena.

This book is more than a handbook on civil rights and of use for researchers and activists alike. Mona Das is Assistant Professor in the Department of Political Science,

Satyawati College, Delhi.