This article is written by Lavish Sharma pursuing B.A LLB. (HONS.) from the Institute of Law Nirma University. This article discusses how well does India maintain a balance between national interest and human rights.
Setting the boundaries of the partnership between defence and human rights has contributed to intense controversy across the globe. After the 9/11 attack, the attention became primarily on the complexities of fighting extremism and protecting human rights, embodied in studies by human rights groups, national hearings, broad issues raised by International agencies, and also the selection of a UN Special Rapporteur on Human Rights and Extremism. The discourse on terrorism or even more accurately anti-terrorism has increased the emphasis on how to strike a compromise between defence and human rights. In India, there is an immediate need to balance national security issues and regard for human rights. To be sure, spiralling crime, growing corruption, the proliferation of small weapons, paranoia, insurgency, and rising militancy are major security issues. Nonetheless, the size and complexity of contemporary security threats are unparalleled and demand a robust state response. Unfortunately, the study of past and current state reactions to security problems reveals that authoritarian, rather than inclusive, approaches are being implemented. Military approaches are typically the preferred option rather than resolving root factors when appropriate.
Security and Human Rights
In debating national security, it is imperative to place at the centre of the discourse the values and principles upon which the state is founded. The Preamble to the Constitution of India stipulates that the pillars of the Indian constitution depend on the principles of equity, democracy, liberty and fraternity. The revered values of liberty and secularism, democracy, dignity and rights, and the complete scope of the revolution. In concrete words, the architects of the Constitution have dedicated themselves to upholding democratic ideals, maintaining the security of human freedoms and offering a forward-looking, workable model for governance. Throughout their deliberations, the members of the Constituent Assembly sought to balance their vision of a new India with the practicalities and challenges of democratic governance. This dualism naturally extended to concerns about the protection of state security while at the same time preserving individual liberty. Aspects of these discussions represent current questions regarding the need to balance state approaches to national security challenges with the duty to uphold constitutional rights.
Granville Austin, a noted professor of civil law, argues that the Document was crafted to encourage the accomplishment of several objectives. The transcendent among them was the democratic movement. The basic needs of the common man [and woman] would be met by this revolution, and it was hoped that this revolution would bring about fundamental changes in the structure of the Indian society. Chapters on Human Rights and the Values of State Policy are said to shape the heart of the Constitution.
In considering independent India and its future, the founders of the Constitution have enshrined the rights to equality, freedom, life and personal liberty, freedom of religion, cultural and educational rights, constitutional remedies and the right against exploitation as fundamental rights. These are human rights which are reserved and secured for the citizens of India and which are intended to protect an individual from state interference with their integrity, protection, equality and independence. The Directive Principles were designed to guide all policies and legislation and to set objectives and directions for change to the state. Directive Principles supplement human freedoms for the protection of the welfare state and fair social order for everyone by putting together existing civil and democratic freedoms and social and economic justice criteria. In the light of this vision, any understanding of national security must be guided by the need to protect not only the physical borders, symbols and infrastructure of the state but also the idea of India.
Such perceptions and challenges indicate that the mainstream perception of national security in India may not protect people’s protection issues. A new concept is needed to take account of these concerns. In the global discourse on the evolving nature of protection, ‘human defence’ has been developed as a distinctive modern term that broadens the definition of protection in unparalleled ways. The first serious articulation of the idea of human protection was brought forward by Mahbub ul Haq, a development economist, in the 1994 United Nations Development Program Report. In implementing the definition, ul Haq developed a modern conception of protection by extending the boundaries away from conventional state defence. Simply stated, human protection is not about states and countries, but about persons and cultures. While traditional state security focuses primarily on the protection of the state and its territory, human security concerns itself with borders, values and human security. More broadly, the concept seeks to protect people from acts of violence and to foster a greater sense of security for individuals. For example, in addition to conventional types of danger such as transnational crime and extremism, the human protection system encompasses challenges such as the dangers of environmental contamination, the proliferation of infectious diseases such as HIV / AIDS, and large population movements. Human rights are an important part of human protection and human rights have been defined as the centre of human protection and the fundamental basis for human security.
Human security is, in turn, an attempt to create a democratic community where the protection of the person is at the centre of international agendas and a driving factor for international action; where universal human rights principles and the rule of law are developed and embedded into a cohesive system that safeguards the person; where those that breach these values are kept to the full. The principles of human security can provide insights into a new, more holistic and relevant understanding of security in India. The current perception of national security needs a conceptual change from a conventional state-centered model to a people-centered model. In accordance with the constitutional dream, robust public security is inextricably related to the preservation of human rights enshrined in the Constitution.
While promoting the emergence of a comprehensive strategic view of defence, the age-old realistic challenge of integrating global protection with human rights and on the ground, in the face of more conventional security challenges, remains as daunting as ever. Interestingly, the framers of the Constitution have dealt with these problems in a somewhat specific manner, as shown by the Constituent Assembly’s debates on protective incarceration. In fact, universal human rights conventions explicitly tackle the problem by establishing legislative mechanisms under which the preservation of freedoms may be tailored to national security circumstances without compromising the basic nature of freedoms.
Balance of Human Rights and security
Striking a reasonable compromise between security considerations and the preservation of freedoms and fair process freedoms, in particular, became a subject of considerable controversy for the Constituent Assembly. In brief, the argument put the legal process against compulsory arrest in the context of public defence. In the years 1946-1949, the problems of public order and defence were significant for India. Only after independence was attained, India was in a state of turmoil owing to large-scale migration and sectarian violence emanating from the partition. In this sense, the Assembly members unanimously accepted that preventive detention laws were appropriate as a method for fighting and avoiding crime, and only a few of them opposed the concept of preventive detention in the debates. effectualy, what representatives worried was that states would infringe certain human rights through the execution of their powers of compulsory incarceration.
Throughout this sense, the proponents of omitting compulsory incarceration demanded fair process protections and their legal protection from excesses by the police and the government when contributing to public defence. Interestingly, it has been reported that the popular response to the Assembly’s decision to provide preventive detention was overwhelmingly adverse, illustrating the apprehension of administrative excesses arising from the memory of living under colonial Indian preventive custody legislation.
At the end of the day, however, provisions for preventive detention have been included in Article 22 of the Constitution. Paradoxically, it is also Article 22 which, in its first section, sets out the right to arrest and offers protections against unlawful detention, except in situations when an individual is detained under preventive detention rule. Much of the constitutional controversy revolved around the kinds of provisions that had to be placed in order to avoid unfair, permanent imprisonment. Article 22 calls for legal protections in situations of emergency arrest. Article 22 also provides for parliamentary supervision over the maximum period of detention and the procedures to be followed by the Advisory Boards. Article 21, which enshrines the right to life and personal liberties, even in compliance with the process set down by statute, has achieved significance in terms of the defence of freedoms only by subsequent judicial definitions. Throughout the seminal case, Maneka Gandhi vs. Union of India (1978), the term process laid down in Article 21 was read in the context of the meaning of the whole clause on human rights.
Turning away from its colourless position in the Constitution, the Supreme Court adopted a distinctly moral approach and lay down the practice which must be interpreted to the standard that all acts of the State must be right, reasonable and equitable, not unreasonable, fanciful or authoritarian. Interestingly, the same decision applied to the intrinsic contradictions in the Constitution arising from the provision for preventive detention, as Preventive detention, which is dealt with in Article 22, often leads to deprivation in personal liberty as alluded to in Article 21 and constitutes an infringement of the right to freedom of movement as referred to in Article 19(1)(d).
Fundamental rights are so far-reaching that the Constitution forbids the Parliament or the State assemblies from creating any legislation, or the federal or state governments from issuing any regulation or taking some measure that interferes with their enjoyment. Like in certain other countries, it is only under the extraordinary situations during a state of emergency that the Constitution permits the suspension of constitutional rights, while Article 359 notes that Articles 20 and 21 can not be suspended during a period of emergency.
In particular, Article 51 of the Constitution of India, which forms part of the Directive Principle of State Policy, provides that: the State shall endeavour to promote respect for international law and treaty obligations. This is especially relevant considering that the connection between human rights and protection has been discussed in most foreign and global human rights treaties. In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), the foundation of international civil and political rights. In the case of Vishaka, the Supreme Court held that every foreign treaty which is not incompatible with fundamental rights and which is in accordance with its purpose must be interpreted in [domestic] clauses to expand the scope and substance of such laws, in order to facilitate the aim of the constitutional guarantee. It is also quite necessary to examine the requirements of the ICCPR. They relate to national security. The ICCPR acknowledges that the most extreme security circumstances that allow States to derogate (i.e. briefly suspend) from certain of the rights enshrined in the Covenant under very strict conditions. It also specifies that a range of particular freedoms can be restricted on the grounds of national protection.
In the case of a humanitarian disaster affecting the life of a country, the ICCPR permits States who have formally declared such a disaster to derogate from such requirements of the Convention provided these steps are not incompatible with their other commitments under international law and do not require discrimination exclusively on the basis of colour, sex, gender, faith or social background. By doing so, a derogation from certain human rights in the name of national security is only permissible if four conditions are met: i) a public emergency threatening the life of the nation; (ii) a proportionate response by the State; (iii) a response in keeping with the legal commitments of the State; and (iv) a non-discriminatory response.
Except in situations when a state of emergency affects the safety of a person, the ICCPR guarantees that all civil and political rights are non-derogable, which ensures that in no conditions should a State infringe certain human rights, no matter how severe the danger to national security might be. Such privileges are so fundamental in regard for the existence and liberties of an individual that no derogation may be given. The privileges enshrined in the ICCPR include the right to live, the right not to be exposed to barbaric, inhuman or degrading punishment or care, the right not to be kept in bondage or servitude, the ban of retroactive criminal legislation and the freedom of expression.
The United Nations Human Rights Committee also stated that the scope of non-derogable protections specified in the ICCPR is not comprehensive. Certain non-derogable protections include (i) the prohibition of taking hostages; (ii) the prohibition of involuntary relocation of persons; (iii) the protection of minorities; (iv) the right of all prisoners to be held in a way that preserves their dignity; (v) the basic elements of the right to a fair hearing, including the presumption of innocence; (vi) the right of unreasonable deprivation.
The Principle of Legality
The principle of legality is the basic concept in criminal and international human rights rule. It’s a privilege that is non-derogable. Although the basic sense of the definition of lawfulness is that no person should be prosecuted for an act that did not involve a criminal offence at the moment it was performed (prohibition of ex-post-facto law), the scope of lawfulness has been broadened to include the obligation of clarification and specificity in all statutory laws to discourage unreasonable compliance. In infringement of the concept of law, protection legislation in India appears to include rather specific and ambiguous meanings. For eg, the Unlawful Activities (Prevention) Amendment Act 2004, which corrects many of the shortcomings that culminated in gross abuse of POTA, has also, sadly, borrowed from its predecessor a variety of troublesome clauses.
Right to Life
The Armed Forces (Special Powers) Act 1958 (AFSPA) gives special powers to the armed forces in areas declared to be disturbed. These rights include broad powers of surveillance, capture, detention, and the ability to kill the weapons depot, locations, shelters, etc. AFSPA has been identified by human rights groups as one of the most repressive laws enacted by the Indian Parliament in its 45 years of legislative existence. Likewise, the Jammu and Kashmir Disturbed Areas Act 1992 (JKDAA) gives unique powers to any executive magistrate or police officer above a certain level in disturbed areas. Most importantly, the AFSPA grants the army officers the right to shoot or even use aggression, including to trigger death.
Every one behaving in contravention of any statute or regulation banning the gathering of five or more individuals. The JKDAA provides the same right to police officers, along with the power to fire, to destroy any person who performs any act that may result in a severe breach of public order. Such oppressive clauses clearly breach the right to life guaranteed by both the Constitution and the ICCPR. In compliance with foreign and domestic regulation, the right to life is a non-derogable privilege it cannot be revoked in periods of general disaster or reduced on grounds of national security. In addition to violating international human rights standards, these special laws have not been able to effectively address the security concerns that led to their adoption. Rather, they led to a growing cycle of brutality and human rights violations. For example, in the sense of the North East, the use of the AFSPA drives the demand for more autonomy, giving the inhabitants of the North East more cause to want to secede from the State which enacts such forces, and the subsequent unrest continues to explain the use of the AFSPA from the point of view of the Indian Government. Obviously, the AFSPA has struggled to control, let alone overcome, any rebellion issues in the North-East.
Since the Act was first enforced in Manipur, there were four armed resistance groups in the province, and today there are more than two dozen. Having that in mind, it is possible that the introduction of protective regulations has helped to enhance protection rather than providing better protective.
Abusing the Citizens
As pointed out by Amnesty International, one of the major foreign human rights groups, the expansive powers conferred on government forces have fostered an environment in which police forces and other law enforcement authorities conduct human rights violations unpunished. Indeed, in addition to specific legislation that explicitly infringes constitutional rights, protection conditions continue to establish an atmosphere in which egregious abuses of fundamental rights are permitted and even often promoted in the interest of the common good.
In fact, expanded powers given to government forces to protect national security have culminated in systematic unlawful searches and detention, disappearances, extrajudicial executions and violence, including abuse. No attention is paid to the fact that the right to life, the right to unlawful arrest and incarceration and the right not to be exposed to barbaric, inhuman or abusive punishment or care are both non-derogable and non-limitable freedoms enshrined either in the Constitution or in the ICCPR. In the absence of the State funding, the comprehensive and detailed recording of cases has proven to be quite complicated and only a few organisations have been engaged in such a dangerous and herculean mission. Here are a few examples of incidents that have contributed to widespread outrage and mass demonstrations against crimes perpetrated by security forces in the pursuit of defence.
In Manipur, terror, abduction and extra-judicial killings of 32-year-olds in July 2004 Thangjam Manorama, leaders of the Assam Rifles, has been an emblematic example of atrocities perpetrated in the North East under the Armed Forces (Special Powers) Act (AFSPA). Manorama ‘s case should have gone unnoticed without the indignation of a group of women marching nude in the streets of Imphal wrapped in a large banner that reads: an Indian army rapes us! Kill us right now. According to an Asian human rights group, [the murder] is just another troubling illustration of how repressive laws and the utter collapse of the rule of law may have a debilitating impact on the citizens of the world. And then the offenders could walk away safe of utter impunity. Ensuing mass outcry around the state called for the abolition of the AFSPA, prompting the government to set up a law reform commission. However, the panels’ recommendation to repeal the AFSPA has been ignored.
Like Manipur, Kashmir is now seeing severe abuses of human rights by security forces. In September 2006, the Human Rights Watch, another leading international human rights organisation, published a 150-page study entitled, Everyone, Lives in Fear: Dynamics of Repression in Jammu and Kashmir, a result of two years of comprehensive and well-documented analysis. The study records an alarming amount of instances of abduction, kidnapping, persecution and unlawful imprisonment. No state human rights groups are fearlessly focused on these critical topics. Others that take chances include Jalil Andrabi, a lawyer who is instrumental in setting up district commissions to allow access to prisons and detention facilities vanish. He was discovered dead on 27 March 1996 (three weeks after his arrest) with a bullet wound on his head and evidence of abuse on his body. The Special Investigation Committee, working under the orders of the High Court, noticed that a General in the Indian Army and some soldiers under his command were liable for abduction and killing. Nevertheless, the army refused to put the Major to the High Court, arguing that his period of duty had expired. The National Human Rights Commission accused the Indian Army of persistently refusing to hand over the perpetrators and noted that the case was a source of continuing embarrassment to the country.
In Punjab, Jaswant Sigh Khalra, a human rights lawyer, sought to register a portion of the incidents of disappearances in Punjab. Along with a friend, he investigated the unlawful cremations carried out by the Punjab police between 1984 and 1994 in three crematoria in the district of Amritsar. Khalra was put before the Supreme Court to prosecute the case but died on 6 September 1995 before the Court could consider the issue. It would be difficult to say exactly how many citizens have vanished in Punjab during the ten years of the uprising, but the Central Bureau of Investigation (CBI), working on the orders of the Supreme Court, has reported 2,097 unlawful cremations in the three Amritsar crematoria alone. CBI’s inquiries have exposed the involvement of the police in the disappearance of Khalara. In 2005, six police officers were eventually convicted of abduction and murder by the Delhi judge, following ten years of persistent attempts by human rights groups and the Khalras family, as well as regional and foreign pressure to secure a verdict on the case.
The lack of oversight of the police and armed forces has encouraged an atmosphere of corruption that promotes the human rights violations mentioned above. This condition will persist as long as security forces have the illusion that, no matter how often they infringe human rights, they are beyond the law when they operate to defend national security. The right to an effective remedy is a non-derogable right enshrined in the Act. The ICCPR, but can not be restricted for purposes of national security. However, the clauses in both the Code of Criminal Practice of 1973 and the National Protection Legislation concurrently contributed to the lack of adequate recourse for victims of human rights violations and the de jure or de facto immunity of offenders. De jure innocence is the immediate product of procedural rules and laws supplying the accused with protection from indictment. De facto impunity is the failure to prosecute due to lack of capacity or political/institutional will to do so. Section 197 of the Code of Criminal Procedure 1973 (CrPC) states that courts shall consider a crime allegedly perpetrated by a civil servant, whether a police officer or a member of the armed forces when serving or purporting to fulfil his official duties, but with the prior approval of the state or central government, as the case may be. Special statutes, such as the 1958 Armed Forces (Special Powers) Act, include specific clauses that prohibit indictment without previous government penalties in view of something performed or alleged to be undertaken in the operation of the powers granted by this Act [AFSPA]. In practice, these provisions amount to de facto impunity, since government sanctions are almost never granted, especially in cases of abuses committed in the context of national security. Amnesty International has stated that of almost 300 incidents in Jammu and Kashmir examined by the police and referred to the Union Government for prosecution, no single case has been given a penalty.
Instead of treating respect for human rights as a hindrance to national security, it is important to recognize an alternate paradigm: respect for the human rights of all the citizens of India as fundamental to national security. Integrating the defence of human rights with the preservation of national security needs change on a variety of fronts. Conceptually, it is time to bring the human-centred model of security into public debate, by asserting the importance of the security of individuals. National security risks should no longer be viewed simply as a means of international violence, so the responsibility of state institutions for abusing freedoms in the name of protection must now be dealt with by democratic mechanisms. Building on the values of the universal definition of human protection, as well as re-establishing the idea of national protection within the background of the Constitution and foreign human rights structures, will also offer greater theoretical clarification and broader human rights learnings to form a modern conception of defence.
India’s repressive security legislation reflects an authoritarian impulse. Special security legislation tends to violate fundamental rights by providing exceptional, unfettered powers underpinned by provisions granting security agents impunity. With national security as a shield and law as a facilitator, security forces are in a position to commit abuses with impunity. Legal reform is clearly imperative. First, all aspects of protection laws which are either explicitly or implicitly in breach of human rights must be abolished. Furthermore, procedural requirements allowing previous policy penalties in order to punish leaders of the security service or allow for de jure immunity must also be abolished. Systemic reform of public institutions and agencies, such as the police, should be prioritized, in particular in order to strengthen accountability. To this end, it is imperative to allow an independent investigation of allegations of abuse by security forces. More broadly, it is important to balance protection and human rights by developing a culture of respecting rights to replace a culture of impunity.
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