Extra-judicial Killings

K G Kannabiran Today the exercise of even human right is seen as a crime and the adjudicatory system is at aid of disciplining the police and the armed forces for fear of consa serrences. A system that is not prepared to risk the absence of state violence can never tolerate any attempt to secure human rights. A campaign for human rights must address itself to the system the state sponsors.
ONE of Kelsens critics dealing with his attitude to the tasks of jurists caricatured a conversation between a jurist and a legislator as follows:
Y o u r neither know nor care what k i n d of laws you should make. That appertains to the art of legislation, w h i c h is foreign to us Pass laws as you wish. Once you have done so, we shall explain to you in L a t i n what kind of a law you have passed

This fairly summarises the state of legislative process, law and interpretative agencies by which one gets acquainted with and educated in law. Simple propositions at higher levels of debate and interpretative exercises tend to become obscure, with the result that education as a way of disseminating knowledge and improving the capacity to comprehend reality fails. This situation is exemplified in the discourse on human rights and one wonders as to who should be educated and who needs instruction on human rights. Very often we hear the educated and the artiolate say "we must create an awareness of rights among the poor", I have had a very active life in the human rights Held for over two-and-a-half decades and my experience has been otherwise. To illustrate the point: Immediately after the Emergency Jayaprakash N a r y a n appointed the Civil Rights Committee headed by V M Tarkunde to inquire into the killings of naxalites in staged encounters and he limited the period of the inquiry to 13 months of the Emergency (1975). I was the member secretary of this committee which published two reports which led to the appointment of a one-man commission of enquiry presided over by the late Vashi sht Bhargha va, a reti red Supreme Court judge. The very first encounter killing investigated was that of four young boys between 18 and 22 years, who were apprehended and shot at a place called Giraypalli, in Siddipct taluk, Medak district. During the enquiry I received information that some special branch officers were trying to tamper with the witnesses who volunteered to depose before justice Bhargava. That very day I reached the place (it is a couple of hours away from

Hyderabad) and sat at the place where usually villagers congregate. Slowly the villagers turned up one by one and with a view to put them at their ease I started conversing with them. I gradually came to the killings in Giraypalli by the police. According to the police these four boys who were killed in encounters were alleged to have killed a local moneylender, one Donthula Anthaiah. In the course of my conversation with them I said "They say that these four men killed Donthula Anthaiah and if that is true what is wrong with the police killing them?" To this an undernourished half-naked shepherd replied, "Sir what are the courts there for". This is the rule of law in quintessence. His experience in reacting to these institutions provided him with this principle. I finished my work in Giraypalli and returned to the high court. As I entered the Bar Association, four young advocates came up to me and after discussing the proceedings in the Bhargava Commission asked me " M r Kannabiran why should these naxalites who do not believe in the Constitution be given protect ion underthe Constitution?" I narrated my encounter with the shepherd and told them that their parents had wasted hard earned money in educating them. Similarly I was arguing for the commutation of the death sentence imposed on two naxalites, Kishta Goud and Bhoomaiah before a bench in the AP High Court; a junior judge on the bench asked me the same question. I had to say that, "when such issues come before this court, it is our values which are on trial and not theirs". Recently, in a tubal village in Srikakulam district the tribals of the village put an intransigent and violent landlord under house arrest. These tribals were not naxalites. When news of this ' wrongful' confinement reached thecollector he rushed to the spot and secured the release of the landlord and lectured to the tribals about the rights the landlord has and how they had violated his rights. After listening to this lecture the tribals asked the collector, "Have you or any other officer ever lectured the landlord when he was continually violating our rights? Have you ever rushed to the village and secured our

release so speedily when our liberties were forfeited?" The collector recollecting this incident later merely observed that the people had become intelligent! Students belonging to the Sikh community in Bidarwere lynched in 1987 by Hindus and later in Tsunduru in Gunturdistrict (AP)dalits were slaughtered, cut to pieces, packed in gunny sacks and thrown into canals. Many 'informed and educated' people felt that these atrocities were justified by the eve teasing that Sikh students, dalits indulged in. These merely serve to illustrate who needs to be educated on human rights. The poor who define human rights in terms of the violations they are subjected to and are witness to know fully well that these cannot be remedied except by organising themselves politically- They find that organised political action is the only way to fight for human rights. In the process they also learn that social transformation into a human society alone will free them from these violations And this is the question that should enter into whole debate on human rights in India at any rate. It is not the people who need to be educated in human rights. It is the judges who upheld the Emergency of 1975 who were in need of such education. It is the public servants who are put in charge of governance who need to be educated. The first step in this education is to learn to perceive and acknowledge the structural violence present in society and its institutions. Murder has been committed if thousands are allowed to die of starvation or if they have been forced into a situation in which it is impossible to survive. Murder has been committed when you stand by and permit assault and slaughter of the members of a minority community or dalits. Murder will be an ongoing process if we allow domestic violence and rape to go unchecked and women are not recognised as persons. It is only when we recognise that murder of this kind is as culpable as the murder committed by an individual that we can assume that our human rights education has commenced. The murders which our society engenders may appear passive when compared with Auschwhitz but the logic is the same. Barrington Moore Jr in his Social Origins of Dictatorship and Democracy points out that the French Revolutionary terror must be seen as a response to the prevailing social order which always grinds out its toll of needless death year after year. Moore points out it would be enlightening to calculate the death rate of the ancien regime' from such factors as preventive starvation and injustice. To dwell on the horrors of revolutionary violence, while forgetting the continuing violence during normal times, Moore points out, is partisan hypocrisy.

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This leads us to the crucial fact that in a stagnant society where all the institutions of the state are structured to perpetuate the status quo, the human rights movement assumes a political character and is looked upon as radical politics. A l l civil liberties struggles arc perceived as extremist activity. They are propagated as supporters of extremist, secessionist politics and are frequently subjected to assault. Three of my good colleagues in the Andhra Pradesh C i v i l Liberties Committee were gunned down with no protest worth the notice excepting by the APCLC. The rule of law stood suspended in these cases and in others as well. Because of this perception and the looming threat of state violence that membership in these organisations invite, not many people are willing to enter the field of personal liberty. While the voluntary sector of NGOs is performing very valuable work in the field of human rights for women, children and bonded labour, for conscientisation, health, alternate or appropriate technology, etc, this work is not seen as a threat to the existing social order and the government encourages the voluntary sector to carry on a broad programme for social justice. There are just about 10 to 12 organisations working in the field of human rights and dealing with the personal liberty of people fighting tor social justice and against an exploitative order. Human rights education in this country would thus mean educating public servants, members of parliament and legislatures on the rule of law, on the constitutional value system and democracy. We need this to transform this society into one where social, economic and political justice would be present in all its institutions. As a first step we should learn to stop defining every political activity as a crime and realise that a law and order approach is a short-term strategy which if perpetuated for long periods w o u l d make governance antidemocratic and unconstitutional. Today the exercise of every human right is seen as a crime and the result is that the adjudicatory system is afraid of proceeding to discipline the police and armed forces to act according to law for 'fear of consequences'. A system that is not prepared to risk the absence of state violence can never tolerate any attempt to secure human rights in reality. A campaign for human rights must address itself to the system the state sponsors. The campaign should have an unwavering faith in the rule of law. The rule of law broadly defined ensures the presence of democracy. And human rights can survive only in a democracy. Human rights violations can abate only when society permits democratic processes to work lor social transforma-

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lion. It is therefore, necessary to restructure institutions to create a climate for human rights and democracy.
REPRESSIVE STRUCTURES

Looking back briefly when we entered our first year of independence we did not make a clean break with our colonial past. The legal and administrative structure were totally British Indian and the judicial system was a mere continuation of what the British had set up. The repressive legal structure created by the British to deal with the struggle for freedom (called Terrorism by the British), and to contain the non-cooperation civil disobedience movements, still continue on the statute book and continue to be enforced in independent India. At another level we had a hierarchically structured society which we never attempted to alter. There was no debate on the caste system or its practices within the constituent assembly. There was no proposal on the agenda to abolish the caste structure. The Constitution abolished bonded labour, child labour and made the practice of untouchability penal. Significantly it did not declare the caste system invalid and ban caste practices excepting the tew mentioned in Article 15(2). The clause prohibiting discrimination as between castes only affirms and strengthens the caste system. There was no recognition of the fact that the caste system was an assault on human rights. While Articles 17.23 and 24 were addressed to society the other articles guaranteeing other rights and the right to equality are addressed to the slate. The result is that the practice of inequality in the ease of women and the subordinate castes has continued unhindered in the society. A l l struggles lor rights have always centred around the touri In this country, after the coming into lorce of the Constitution, the key word is legality which even today continues to be the obsessional leitmotif. Social action litigation is the preoccupation of all NGOs. Mobilising people on issues of human rights, and other democratic issues have become rare. A nonelected court is called upon repeatedly to adjudicate political issues. This trend has trained people to be mere spectators reducing democracy to a mere formality. The elected representatives represent not the people but arbitrariness and despotism. The stale did not consider its responsibiIity to realise equality in the spheres not covered by state action, it is in this area that other NGOs are operating quite effectively and so long as they do not hold out a threat to the social order they w i l l be allowed to tunction. The whole question of educating people would arise in spheres not covered by state action. In the other areas human rights education has to address itself to the stale.

Clyde Snow, a forensic anthropologist, who analysed skeletal remains to expose atrocities committed by state officials in several countries, observed ' T h e great mass murders of our time have accounted for no more than a few hundred victims. In contrast, states that have chosen to murder their own citizens can usually count their victims by the carload lot. As for motive the state has no peers. It will kill its victim for a careless word, a fleeting thought, or even a poem; people are being killed for their political views, for belonging to a particular community and a panic-stricken state looks upon even poverty as treason. A l l these acts are indulged in by governments and the magnitude of their crimes defies belief." Summing up their experience the UN working group on Enforced or Involuntary Disappearances pointed out 'The working group's experience over the past 10 years has confirmed the age-old adage that impunity breeds contempt for the law. Perpetrators of human rights violations, whether civilian or military, w i l l become all the more brazen when they arc not held to account before a country of law". Thus large-scale murders seemingly unnoticed by governments come from a cultivated ignorance, which refuses to recognise these crimes and dismisses them as mere excesses and aberrations not unduly disturbing. This cultivated ignorance permeates the entire field of governance and any campaign or education should expose this attitude of the executive, judiciary and the people's representatives It is this cultivated ignorance which is responsible tor the enacting of a stunted piece of legislation, viz. The Human Rights Proieciion Act 1993, which created the National Human Rights Commission with practically no powers. The government and the parliament recognised violation of human rights both by the terrorists and the governmental agencies. They brought lorth two statutes, one the Terrorists and Disruptive Activities Act and the other for the Protection of Human Rights, The former was an arbitrary procedural and penal code fully equipped to punish terrorists, the latter merely enabled the statutory body to report on the crimes committed by the state. Such dissimilar treatment for similar crimes shows the utter lack of interest of the slate to maintain and protect the human rights of the people of this country. A law and order approach completely supersedes the constitutional limitations as also the obligations under the international covenants. We arc bound by Resolution 1989/65 of May 24. 1989 which recommended that the principles on the Effective Prevention and Investigation of Extra Legal, Arbitrary and Summary Executions annexed to the Resolution be taken into account and respected by govern

ments. The United Nations General Assembly subsequently endorsed the principles by Resolution 44/162 of December 1989 and recommended that the principles, "shall be taken into account and respected by governments within the framework of their national legislation and practices, and shall be brought to the attention of law enforcement and criminal justice officials, military personnel, lawyers, members of the executive and legislative bodies of the government and the public in general". But has the National Human Rights Commission powers to enforce these principles? Obviously it has not. Had the government taken any steps suggested in this resolution? Do any of these principles expressly or by implication contravene any constitutional principles or any other law in force? Or does the government think there has never been any extra judicial arbitrary killings in this country? Would we be right in invoking any exceptional circumstance including a threat of war to justify the continuation of these practices?The answer to these questions would inform us how serious we are about human rights. We have in this country an established tradition of fighting arbitrary and authoritarian trends. We firmly believe that all debates on human rights should lead to strengthening the human rights movement to fight these trends. If the struggle for human rights is our political praxis we must carry on this fight not only inside the courts and before National Human Rights Commission but also in the political arena outside.

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