Indian Political Science Association

INDIA AND HUMAN RIGHTS : EMERGING REALITIES

Author(s): N. S. GEHLOT
Source: The Indian Journal of Political Science, Vol. 55, No. 4 (October - December 1994), pp.
381-390
Published by: Indian Political Science Association
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INDIA AND

HUMAN

RIGHTS

: EMERGING

REALITIES

N. S. GEHLOr
India's statusof humanrightsis fairlyhighunderits Constitution
whichmakesprovisionforfundamental
rightsand empowersthe Supreme
Courtof India and the High Courtsto enforcetheserightsand guide the
is
of the State to respectpeople's rights. Equally important
authorities
to the international
conventions
the factthatIndia has been a signatory
on economic,social, cultural,civil and politicalrights,withcertaincondidirectsthe stateto applypolicies and
tions. Part IV of the Constitution
of
the
in
the
countryso as to enhancethe prosgovernance
principles
justice. Article43 directsthe stateto securefor
pects of social/economic
workersa livingwage, decentstandardof life and social and culturalopportunities.In short,the universeof humanrightsin India is stillon an
expandinghorizon.
The Lok Sabha has adopted,in December 1993, the Protectionof
of theNationalHuHumanRightsBill, makingpossibletheestablishment
NHRC is extended
of
the
The
manRightsCommission
(NHRC).
jurisdiction
to the militarypersonnelof the countryeven thoughthe latterare governedby certainActs and the armedand securityforcesare to fightterto aid civil adadversecircumstances
rorism/communalism
underextremely
were expressedfornot including
ministration.
However,some misgivings
the ChiefJusticeof India as one of the membersof the NHRC, forsome
proceduraldrawbacksand forinadequatepowersof the bodyas such.
Committee
The SixthReportof the Parliamentary
(1993) on Human
shape of the proRightstook a seriousview of the highlybureaucratised
to have
posed HumanRightsCommission.It feltthatforthe Commission
Court
should
be
of
four
members
two
its
judges or the
Supreme
credibility
ChiefJusticeof a High Court.It was, therefore,
suggestedthatthe apbe
made
after
should
these
members
of
obtainingthe concurpointment
* Readerin PoliticalScience,M.D.S. University,
Ajmer.
The IndianJournalof PoliticalScience, Oct - Dec. 1994,Vol. 55, No. 4

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382

The IndianJournalof PoliticalScience

renceof the ChiefJusticeof the SupremeCourtof India. It has further

suggestedsome remedialmeasuresto deal withthe complaintsof violaforces. It
tionsof humanrightsfromterrorist
acts,or by thepara-military
also suggestedthe feasibility
of reexamining
the legal proceduresof courtmartialand otherdisciplinary
measuresor proceduresas are applicableto
the defenceforcesin the lightof the state'scommitment
to humanrights.
The laws providing
The
safeguards
againstexcessesare substantial.
Constitution
protectsthe rightto lifeand personalliberty(Article21) and
otherfundamental
of torturein specific
rights. Althoughthe prohibition
termslacks constitutional
the
courts
have
held thatArticle21
authority,
and thatsections330 and 331 of the Inimpliesprotection
againsttorture
dian Penal Code (IPC) as well as section29 of theIndianPolice Act speis prescribed
underseccificallyforbidthepractice. Stringent
punishment
tion376 of theIPC forrape in policecustodyor by thearmedforces.
In case of deathin custody,
an inquiryby a Magistrate
is mandatoryundersection176 of the CriminalProcedureCode (CRPC). The right
to enforcethe humanrightsprovidedin the Constitution
is protected
through
enablingprovisions.Article226 empowerstheHigh Courtsto isof such rights,includinghabeas corpus.
sue writsfor the enforcement
Article32 of theConstitution
grantsthesamepowersto theSupremeCourt.
of theserightson paper is excellent,
Criticspointout thatthe protection
level thereare manyshortcomings.However,
but at the implementation
some rulingsof the highercourtshave been able to set thingsright. Unand DisruptiveActivities(Prevender variousprovisionsof the Terrorist
Act (NSA), DisturbedAreas Act,etc.
tion)Act (TADA), NationalSecurity
severalbrutalacts are allegedto have been committedon innocentcitior thepoliceor themilitary.
zens,either by individuals
II
of theNational
to Justice
Mishra,theChairman
Ranganath
According
in use in all butfourstates
TADA is currently
HumanRightsCommission,
Pradesh. Accordingto a
(Haryana,Mizoram,Meghalayaand Arunachal
in Aug. 1994 therewere 52,268 perreleaseof theUnionHome Ministry,
sons in jails underTADA: 14,557in Punjab,14,094in Gujarat,10,779 in
& Kashmir.The figAssam,5,600 in AndhraPradeshand 1,826in Jammu
ures,however,do nottallywiththatof theNHRC. Accordingto the lat-

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India and HumanRights: EmergingRealities

383

tertherewere77,571 cases of whichabout19,000werein Gujarat,17,000

in Punjab,10,000 in Jammu& Kashmirand 8,894 in AndhraPradesh,accountingfor about 71 per cent of the TADA arrests. It is strangethat
violencehas booked about
by terrorist
Gujaratwhichhas been untouched

under
TADA.
recourse
to TADA in dealing with
cases
19,000
Widespread
of communalconflicthas come in forseverecriticism.Several
situations
have allegedthatTADA has been used
communities
membersof minority
them.
There
has been persistent
to
harass
allegationof a
indiscriminately
of minorities
amongTADA detenusmakingit a focalpoint
highproportion
has alreadyexpressed
Commission
of publicoutcry.1Indeed,theMinorities
a
its grave concernon this point. However, break-upof the available
data does notjustifythisallegation.In StatesotherthanJammuand Kashunder
mirand Gujarat,2,188 cases are Muslimsof thetotal46,967 arrested
of theirarrestsis lowerthanthatof theirpopulaTADA; the proportion
of Mustionin therespectivestates. As one wouldexpect,theproportion
& Kashmiris high.RajeshPilot,theUnion
limsin TADA cases in Jammu
Ministerfor InternalSecurity,admittedthat95% of the cases registered
underTADA have been rejectedby the courts. And severalreportsby
since TADA was first
civil libertiesgroupshave made adversecomments
enactedin 1985. The NHRC has also decidedto referthe matterof its
reviewbeforetheapex court,speciallyin the lightof
miusefora thorough
thejudgementof the SupremeCourt,deliveredin March 1994, upholding
the constitutional
validityof the TADA.
has asked the ChiefMinistersof all the
The UnionHome Ministry
states,to reviewthe cases relatingto TADA and to ensurethatinnocents
and terrorthemenaceof communalism
werenotharassedwhilecombating
as
a weapon
to
be
used
ism in the country. The appeal thatit is not
againstpoliticaldissentersor tradeunionleaders is not sufficient.The
forits abuse mustbe curbed. A studyconductedby the Peopossibilities
ple's UnionforDemocraticRightshas notedthatapartfroman extremely
low rateof conviction
by thecourts,about30,000 cases have been pendfor
more
thanfiveyears. Afterreviewingthe cases, the
for
clearance
ing
downto 34,923from77,571byDecember31,1994.
has beenbrought
number
In Gujaratalone,thenumberslippedfrom18,686to 1,106.AftertheTelugu
in AndhraPradesh,in Dec. 1994, it released
Desam formedthe Ministry
mostof theTADA detainees,leaving2, 018 cases. Of thelatter,948 were
and 1,070werein thecourts.Severalchangeshave also
underinvestigation

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384

The IndianJournalof PoliticalScience

to preventthe misuseof TADA. EvidenceunderTADA

been introduced
is obtainednow fromofficers
of the rankof SP and above. Prosecution
can be launchedonlywiththe approvalof an officerof the rankof InspectorGeneral. The guidelinesgivenby the SupremeCourtare followed
in recording
evidence.
The trendof therisingnumberof custodialdeathsand rape involving police has to be contained. The suggestionof JusticeMishrathat
thereshouldbe a HumanRightsCommission
Courtin everystateand that
thereshouldbe mandatory
into
custodialdeathsor rape
judicial inquiry
should
be
into
action
to
ensure
that
the constitutional
by police,
put
rights
of the citizensare trulyhonouredas per the letterand spiritof the law.
In fact,Section5 of the TADA and its interpretation
has assumedgreat
public significance. This createsa sense of doubtagainstthe govern- as in thecase of custodimentthatit has been resorting
to subterfuge
al deaths - to suppressthe news of violationsof democraticrightsin
th country.
took cognisanceof"theadAgainstthis backdrop,the government
versereactionand allegations
of killings,rape,arsonand illegaldetention
forcesin Jammu& Kashmir,or in the othertroubledareas of
by security
North-East
India. Presistent
efforts
by the NHRC also helpedto improve
the humanrightssituationin this sphere. Several armypersonnelwho
committed
offencessuch,as assaulton civilans,molestation,
rape and causand
death
in
ing injuries
custodyduringoperationsin Jammu& Kashmir
between1990 and 1994 receivedseverepunishments,
rangingfromrigorous imprisonment
for 12 yearsand dismissalfromserviceto extraduty.
As partof its effort
in curbinghumanrightsviolationsin Jammu& Kashmiras well as in otherstatesthe NHRC's intervention
led to the release
of scores of detenueswhosetermshad expiredor to honourthe judicial
ordersand directions
on release of detenuesor improvement
of medical,
facilities
or provisionof workfacilities.
health,recreational
in
TADA was introduced
in 1985 to deal primarily
withterrorists
in
Mrs. IndiraGandhi,
Punjab and Delhi. In Oct. 1984 the PrimeMinister,.
was shotby her Sikh bodyguards.Afterher assassination,thousandsof
innocentSikhswere butchered
in Delhi and elsewhere. In retaliation,
Sikh

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India and HumanRights: EmergingRealities

385

struckterrorin thecapitalby plantingtransistor

militants
bombsand other
devices
that
left
innocents
dead
or
maimed.
And TADA
many
explosive
was enactedin thisbackground.TADA sharesthe legacyof emergency
on terrorism
in liberaldemocracies
of theWest. WhentheIrish
legislation
to
decided
terrorto mainlandEngland,
transport
RepublicanArmy(IRA)
bombs startedexplodingin Hyde Park, London and thenat a hotel in
and most
Mrs. MargaretThatcher,
wherethethenPrimeMinister,
Brighton
death.
of hercabinetcolleaguesnarrowly
escaped
Followingthis,the GovProviof Terrorism
of U.K. enanctedthe Prevention
ernment
(Temporary
terto
IRA
of
Act
enabled
the
1984.
The
keep
sions)Act,
implementation
rorismoffmainlandEngland. But the Act continuedto stayon in the
its initiallyconceivedlimitedutility. In the late
statutebook trancending
of every
a favouritehauntforterrorists
France
became
when
Seventies,
and judicial devicesfortackhue, it resortedto a rangeof constitutional
similarto our interthe
state
of
to
the
threats
(approximately
security
ling
and
courtprocedures
nal emergency).This gave thepolice specialpowers
of "State SecurityCourts". In the
were acceleratedwiththe constitution
introduced
Mr.
French
the
President, Mitterand,
toughmeasures
Eighties,
incidents.In Itlay,Aldo Moro,former
to preventtheescalationof terrorist
was abDemocratic
Christian
and incumbent
PrimeMinister
PartyPresident,
executedby theItalianRed Brigades
ductedand,after54 daysin captivity,
had gone beyondthe long armof the common
in 1978. Since terrorism
measuresinlaw the ItalianGovernment
adopteda seriesof anti-terrorist
confinement.
of
extension
pre-trial
cluding
terrorism
and Japanfought
usingspecialpolicepowSpain,Germany
to keep pace
but
made
to
be
conceived
ers, initially
permanent
temporary
withthenewformsof crimeandterrorism
theyweremeantto prevent.The
UnitedStateshas manyprovisionsin its statutesakin to thatof TADA.
For instance,a sectionof Title 18 of the UnitedStates Code Annotated
of a witnessin organised
of the identity
deals withcompleteconcealment
criminalactivity.Even the provisionsrelatingto bail and rightof crossundertheU.S. law are almostakinto thosefoundin TADA.
examination
ProviIrelandEmergency
Indeed,TADA is moreliberalthantheNorthern
sion Act of 1978 and similarlaws in otherliberaldemocracies.Extraordipowerspropowers. Andextraordinary
requireextraordinary
narysituations
results. Such extraordinary
duce extraordinary
powersshouldnot be apliketheBombayriotsandblastcases
communal
situations,
pliedto recurring

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386

The IndianJournalof PoliticalScience

acts in Punjab,
(Dec. 1992 - Jan.1993). Theseare notsimilarto terrorist
Jammu& Kashmiror incidents
of extremist
violenceTelangana. The phenomenonof terrorism/extremist
violenceis the outcomeof a premeditated
criminalplan calculatedto kill,maimand terrorise
people and henceit representsthe darkestformof man's cruelty
to man.A publicopinionsurvey
conductedby MODE, a marketresearchorganisation,
had shown
recently
that92 per centof therespondents
believedthatterrorism
remaineda clear
and presentdangerthatrequiredfirmcounter-measures.
The majority
(59
per cent) wantedsafeguardsto be builtinto the law so thatit was not
liable to abuses. Only 11 per cent supportedthe outrightscrappingof
TADA. The latteris a minority
whichincludesrepresentatives
and supof variousterrorist/extremist
portersof frontorganisations
groups which
believein violence. Its constitutional
has
validity been upheldby the apex
court. Seventeenof the 22 stateswould like to extendthe Act beyond
23, May 1995 when it ceases to exist. The amendments
broughtout to
TADA in 1993 and themultitude
of safeguards
introduced
in 1994, includto
humanise
the
law. But there
ing reviewprocedures,
represent
attempts
is a case forsoftening
therigoursof theAct and makeit moreacceptable
to societyat large. JusticeRanganath
of the NHRC,
Mishra,thechairman
has been arguingabout the need for removalof certainprovisionsof
TADA. Legislationbased on nationalconsensusis surelypreferable
to
the slow courseof uncertainlitigation.
It is, therefore,
desirableto eliminate the legislation's undesirableprovisionswithina pre-determined
timeframe
and make it difficult
forstatesnot affected
or exby terrorism
tremist
violenceto playwithit in future.Safeguards
are necessaryto preventits misuse.Further,
conditionsof
safeguardsrelatingto confessions,
bail, investigation
by high level officersand unauthorised
possessionof
armsneed be introduced.
IV
Afterthe collapse of the SovietUnion as a superpowerin world
affairsthe humanrightsissue has assumedinternational
significance.The
UniversalDeclaration
of HumanRights,
adoptedin December1948,has come
to life. Economicaid is now beinglinkedwiththerecipient
nation'strack
recordon humanrightsby the westerncountries,
the U.S.A.,
prominently
even thoughthe broad principlesof the UniversalDeclarationof Human
Rightshave not yt been formalisedby any international
treaty. More-

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India and HumanRights: EmergingRealities

387

had no opportunity
of participatover,manyof the ThirdWorldcountries
of
in
the
the
Declaration.
the Asian
Therefore,
process formulating
ing
approachto humanrightstodaylargelydiffersfromthe westernconcept
of humanrights. The majorplea of the ThirdWorldcountriesis thata
betweencivil and politicalrightson the one hand
of priority
distinction
and economic,social and culturalrightson theothershouldbe drawnand
without
politicaland civil rightsmustcome aftereconomicdevelopment,
whichhumanrightsstandardscannotbe universalised.The ThirdWorld
countriesalso stood up againstattemptsat undue politicizationof the
of humanrights.
issue of protection
and
At the otherend, the findingsof the AmnestyInternational
the Asia WatchGrouphave damagedIndia's prestigein the worldcomhave projectedIndia as a
munity.The findingsof AmenstyInternational
"lawlessstate"and held her guiltyof a numberof arbitrary
killings,wideexcessive
arrestsin some states,giving
powersto the sespreadarbitrary
and thefailureto bringto trial
curityforcesto kill suspectedlaw-breakers
to isoa numberof allegedpolice offenders.Thereare organisedattempts
late India on humanrightsabuses so as to bringher underwesternpressure. The championsof humanrightsdo not appreciatethe factthatInwhichhave
countries
dia is one of the outstanding
examplesamongstfifty
'rule of law', freeand fairelectionsand a strongand ininstitutionalised
Rightsis veiy muchakin
judiciary.Her charterof Fundamental
dependent
Conbasic humanrightsratifiedby the International
to the list of thirty
i
966.
in
vention,
of 1994
annualreport,
International's
1992,anditsdocument
Amnesty
of India forhumanrightsviolaon India have chargedthe Government
tionsin stateslike Punjab and Jammuand Kashmir. The Secretaryof
of India forthe
protestedagainstthe Government
AmnestyInternational
whichsoughtpermistowardthe organisation
latter'sperceivedhostility
states.
and North-East
Maharashtra
& Kashmir,
sionto visitJammu
Punjab,
the
at
satisfaction
has expressecd
proAmnestyInternational
Subsequently,
ExecChief
concerned
the
state
Prime
Indian
the
of
Minister,
asking
posal
utivesto strengthen
legal safeguardsagainsttortureof detaineesand to
proceduresin cases of deathsin custody.
investigation
strengthen
thatthe armed
of Indiahas rejectedthe allegations
The Government
have
been given
Kashmir
&
like
Jammu
areas
forcesdeployedin disturbed

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388

The IndianJournalof PoliticalScience

the licenceto kill victims,it also .deplored

thepolicyof thehumanrights
like
Asia
Watch
and
International
to pinpointIndia
organisations
Amnesty
on thisscore. The Indianview-point
was strongly
in theRound
presented
Table meeton Kashmir,
heldin Brussels,duringOctober17-18,1993. The
Government
of Indiaalso turneddownthecriticism
aboutthenewlyformed
NationalHumanRightsCommission
and assertedthatthe NHRC was not
a
fact
or
a
merely
findingbody
post officeas it was soughtto be made
out by some. It was maintained
theNHRC is adethat, on thecontrary,
quatelyempoweredto put pressureon both stateand centralauthorities
forhumanrightsto be honoured
in letterand spirit.
V
Whileestablishing
theNHRC, theGovernment
of Indiahas suggested thatsimilarbodies be createdby the statesalong withhumanrights
courts.The purposeof the humanrightscourts was to reviewthe cases
of victimsand process complaintson violationof humanrightsin the
country,
includingthe cases of acts of terrorism.It is in accordancewith
the fundamental
rights,relatingto life,liberty,
equalityand dignityof an
of India. The creationof the
individual,guaranteedby the Constitution
NHRC is beingconsideredas a significant
theUniversal
stepin honouring
Declarationof HumanRightsand otherinternational
conventions
related
to it, as ratified
India
from
time
to
time.
There
is
a
need
for
the
NHRC
by
to enhanceits own credibility
and legitimacy
withinthecountry
and abroad.
In thisconnection,.the functioning
of the NHRC has come in forcriticism. Ravi Nair,ExecutiveDirectorof theSouthAsi.HumanRightsDocumentation
Centre,has observedthattheNHRC is handicappedpartlyby
lack of clarityon its own partaboutits purposeand mission. The Commissionis stillnot clear whattypeof petitions
it shouldacceptand invesMr.
Nair
added.
For instance, the NHRC has acceptedpetitions
tigate,
fromthe State
rangingfrommalariadeathsin Orissa aboutcompensation
Government
to cases of transfer
and retirement
benefits
of employees.The
Commission'sinitialfailurelies in not havingany guidelinesforits own
to
functioning.By pokingits nose intoeveryproblem,fromenvironment
a
remote
connection
to
human
the
Combenefits,
employee
citing
rights,
missionhas placed itselfin a complicated
terrain. India should, however, publishher periodicalreportson progressin thisregardand without
to any pressure,internalor external. India's imageon human
submitting

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India and HumanRights: EmergingRealities

389

rightsshould not sufferany damage. Its postureshould also reflectthe

views of her friendsin Asia, Africaand LatinAmericato desistanymove
fromthe westernpowersto intervenein domesticaffairsor attemptsto
politicisehumanrightsissues. However,theneed to preparea modeljail
manualand a modelpolice manualshouldalso be stressed. Modernisation
to wardensand staff shouldbe given
of jail systemsand propertraining
the
Union
and stategovernments.
seriousconsideration
by
VI
The Government
of Indiahas been underheavypressurefromwestto correctabuses of human
ern powers and humanrightsorganisations
was
ahead
of
India
in
Pakistan
focusingon allegationsof huway
rights.
man rightsviolationsin India. Because of laxityin effortsand inadeskills in lobbyingamongmembersof the UN Security
quate professional
Councillike China and Russia,India has playeda loosinggame in its rebuttalof allegationsof humanrightsviolationsin Punjaband Kashmir. In
this context,PakistanieffortsagainstIndia have been more successful.
Therefore,India has been put in thedock beforeEuropeancountriesand
The rights of individuals and
various United Nations agencies.
of India and therehave
the
Constitution
are
under
organisations protected
been numerousinstanceswherethe courtshave passed severe strictures
behaviour.But a blanketaccpetance
againstthepolice forits high-handed
thequesthoseinvolving
the
of
of all kinds petitions
including
by
judiciary,
tion of nationalsecurityor sensitiveand complicatedissues such as the
Hazaratbaltangle,is viewed as a dangeroustrendbecause judicial interforboth national,regionaland inventionmayhave seriousimplications
extremists
and
terrorists
and
ternational
mayblackmailthe authoripolitics
ties on variousgrounds.The judiciarycannothope to remedyeverywrong.
Therefore,sensitivemattersdealingwiththe basic problemsof terrorism
shouldbe leftto the discretionof the administration.
or fundamentalism
But humanitarian
measures
traditions.
India adheresto rich humanitarian
of our security
forcesand provided
could have led to the dmocratisation
fuelto the 'appeasement'argument.
Efforts
shouldbe made so thatsolutionof problemssuch as Kashmirare tackledat the politicallevel ratherthanleftto the security
personnel. It is often observedthatmeasurestakenby the securityforcespro-

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390

The IndianJournalof PoliticalScience

vide a rationaleforalienationand separatism.In Jammu& Kashmir, adherenceto the creed of the bullet,insteadof the creed of the ballot,has
led to erosionof confidence
in theelectoralsystemand it has caused many
to take resortto militancy,
thus givingan opportunity
to foreignpowers
to internationalise
our internal
and
to
of
give scope forcriticisms
problems
our democratic
whiledamagingIndia's prestigein the worldcomsystem,
The
Hazaratbal
crisisis a case in point. If India is committed
to
munity.
demonstrate
her earnestnessin dealingwithhumanrightsabuses and if
she is confident
thather recordin thisrespectis betterthanthatof Pakiit
should
her official and non-official
institutions
to deal
stan,
strengthen
withall such cases in a fairmanner. This approachwould help India to
dismiss all allegationsagainsther while assuminga diplomaticoffensive
againsther politicalfoes abroad. Besides,India shouldaccorda highpriorityto the issue of humanrightsviolationson its nationalagenda to
demonstrate
its faith.

NOTES
1. TheTimesofIndia, August
20, 1994.
2.

D Monte,
: Setting
Human
theAgenda
at Home",
Danyl,"Universal
Rights
TheTimesofIndia, NewDelhi,July
7, 1993.

3.

Fortheseremarks
Indiasee theReport
International,
against
oftheAmnesty
NewDelhi,1993.
Vistaar,

4.

andMan'sStruggle
between
theGovernment
andHuman
Sane,Pierre,
"Rights
The
India
Times
New
Review,
Delhi, Sept.5, 1993.
Organisation,
Rights
of

TimesofIndia, NewDelhi,Nov.7, 1993,p. 17.

5. TheSunday

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