Wages of Impunity: Power, Justice and Human Rights

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The Wages of Impunity POWER, JUSTICE AND HUMAN RIGHTS

K.G. Kannabiran

Orient Longman

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Contents •

IX

I. The Saga of Impunity 2. Justice Must be Seen to be Done

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Colonial Baggage Personal Liberty after Independence Progressive Decay of Democratic Institutions

The Scale as T c:rrorist T ADA: More Repressive than Rowlatt Crime and Punishment The Weird Jurisprudence of a Dead Act The Armed Forces (Special Powers) Act, 1958 A Lament for the Constitution Why a Human Rights Commission? Granting the Freedom to Misuse Freedom:

Secularism and Minority Rights

14. 15. 16. 17. 18. 19. 20.

13 18 30 63 83 91 102 106 114 118 123

Sanjay Dun in the First Person

Can Anti-Secular Parties Govern?

Narendra Modi's Hindutva Laboratory Scheduled Castes: Who's Afraid of the l.2w? Mr. President, the Game was Unequal

We. the: Other People: but Uncommined Judges

131 163 168 173 186 190 195 204

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21. 22. 23. 24. 25. 26. 27. 28. 29.

I Comma What is Wrong with Judjcjal Activism? What Shall We 00 with Our Judiciary? A Code of Conduct for J udgcs On the Selection of Judges: An Open uuer [0 the Chief Justice: of India Collective Action: The Andhra Pradesh Lawyers' Strike Governors and Politics Privilege and Obligation Political Justice: through Conce:rted Protest Defining Right as Wrong: Reflections on Assodational Freedoms and Free Speech and the Peoples' War Group

30. 31. Veerappan and the Rule of Law 32. The Andhra Pradesh Civil Liberties Comminee 33. Koyyuru: Reflections on a Kidnap 34. In the First Person List of Casts List of Statutts saect Bibliography

Index

209 219 225 231 235 241 245 262 270 318 322 327 331 338 349 352 354 359

Preface

The major part of my professional life was spent as a counsel for the defence:. The richness of this is largely due to the trust placed in me by the countless people whose freedom I found myself defending. It is [his that has carried me through dark days, providing hope when it would have been easy to despair. Friends. colleagues and far·off sympathisers have also lent me srength and support. The respect I have been accorded by the leaders of various revolutionary groups as well as the adm iration of meir cadres has borne me lightly across many troubled times. The unquestioning yet critical support of my wife Vasamh and children, Chirra, Kalpana and Arvind, has been vital through these years. After the revocation of the Emergency, I was elected President of the Andhra Pradesh Civil Liberties Comminee. I held this post for fifteen years. lowe my growth as :r defender of democratic and human rights to this period, which also helped me outgrow both exrreme left dogmatism and impotent liberal rhetoric. My association with the members of the APCLC, especially with K Balagopal. has been valuable. In the People's Union of Civil Liberties, Y.M. Tarkunde has been a source of tremendous support. My friends in the PUCL--Yash Pal Chibbar, Rajni Kothari, Kuldip Nayyar and Rajinder Sacharhave been precious to me. I cannot forger Arun Shourie's friendship, love and tOtal support of my human righrs activity in the decade following the Emergency, particwarly during the tenures of the Tarkunde Committee and the Bhargava Commission. I am indebted (Q my young friends in the human

x

I Prefoce

rights movement, tOO many to enumerate, who have been an inexhaunihle source of inspiration and energy. It is the period from 1975 onwards that provide the background for these anicles. Some were wrinen for advocacy. some to clarify my own undemanding. At no point did I expect that they would come together as a book. Pulling these: scattered pieces cogether, organising them and checking out the references has been a Herculean task undertaken with love and commitment. Without my daughter Kalpana's effort this book would not have been possible. My thanks to Subbalakshmi and Padmini for secretarial assistance. Finally, I am grateful to Orient Longman, especially co Hemlata K. Shankar, for and personal attention to every aspect of the publication. Much of my own understanding and clarity has come from what I have read (voraciously) through the years. Together these pieces trace my intellectual and political growth. If they provide a single insight or inspiration to anyone is seeking the to fight for a principle, then my labours Will not have been 10 vain. January 2004

K.G. KANNAB1RAN

1 The Saga of Impunity

The relationship berween violence, power and the law is especially evident to those committed to democratic values. There is an overwhelming play of violence as power and power as violence, sometimes in breach of the law and sometimes as a tool for its enforcement. If violence in society is perceived as a breach of the law, the law itself is equally violent and in bet has an even more debilitating effect because of its synematic and thorough ruthlessness backed by official sanction. While still in my college days, my enthusiasm for the communist movement suffered a setback after I read the then popular anthology of writings called TIN God that Faikd. After the October Revolution many intellectuals were attracted by the communist experiment, which if carried out successfully, promjsed the possibility of an egalitarian society. But this vision was disrupted by the pact and subsequent abuse of power. Abuse of power is synonymous with violence. Fascism and totalitarian power in general represent a massive abuse of power against large human collectives, with guaranteed impunity. From the 1930s (0 rhe end of the Second World Wat, power was exercised through violence. both internally, i.e. within a nation, and externally, in relationships between nations. This violence was always legitimised and explained by law.

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While the rule of law is a civilising factor. it is at the same time an instrument thac facilitates the uncritical acceptance of the deployment of violence for governance and to juStify war. This interplay of violence and power has little to do with the ideology that states or governments profess. It was as a consequence of this use of power that c':)untries met together to draft and adopt the Universal Declaration of Human Rights, with the sole purpose of ensuring that human rights would be protected by the law. Although the post-war world and newly liberated countries had constitutions with entrenched rights. they too (like the coumries thar were independent by then) abused power and defaulted in their conduct. both according to the Declaration and their own constitutions. India was no exception. By the late 1960s. all its grandiose five-year plans had failed. and its mammoth slate-owned industrial and trading enterprises were no longer profitable and could nOt be junified on grounds of accrual of any social benefits. The 2griculrural sector fared. no better. Very soon, the mainten2nce of 12w and order became the raison d'itrt of And chis crisis was not India's alone. but one th:tt India shared. with mon of the world. The fragmentation of political panies from right to left, the emergence of che Nax.alb2ri movement in BengaJ, Jaya Prakash Nar.tyan's struggle to force accountability in governance and fight 2uthoritarian trends, particularly in the biggest national party, the Indian National Congress. were all part of the crisis. The movement led by J P (as he was known) was the first major assault on the Indi2ll national government after Independence, and the fim major test of all the institutions of govern2llce, including the judiciary. No insticution was spared in this fight, and almost all institutions of governance became ranged against the people. Tbis period also revealed the violellce of law in all its facets. Law represents a society's consensus for the regularion of human activity in various fields. and the regulation of these activities by the deployment of stllte power, a deployment that need not necessarily be violent or backed by che threat of force.

The Soga of Impunity I 3

However, expressions like 'law and order', 'public order' and 'snue security' enable the $tate to employ violence against tbe people without a corresponding obligation to exercise discretion. Any scrutiny of this exercise of power by the stale is only possible after the damage has been done. An assembly of protestors, for instance. brings to life the exercise of free speech and the citizens' rig}u to association and assembly. It also involves the freedom of movement of the citizens constituting the assembly. There are constitution.u safegu2rds that protect these rights. Very briefly, in maintaining public tranquility, the assembly of protesting persons may he declared unlawful; they may be dispersed and their leaders taken into custody. If the assembly does not disperse, force may be employed to disperse it, but orders to open fire must only be issued in the presence and with the authorisation of a magistrate. These safeguards, however, have never been complied with. from Jallianwalla Bagh and the Hunter Committee reporr during colonial times to the present day. S. Satyamurti, rhe well·k.n(lwn South Indian politician. tabled 2n amendment in the 1930s to the provisions dealing with 'public rr2llquility' with a view to reducing rhe harshness of the law. The law, of course, does not provide 2lly guidel ines to measure me force used. The l2w only stipulates that minimum force should be used; it does not seem to consider mar the force used is likely to take away life and liberty, the very issues covered by Article 21 of me ConsritUlion. The law is employed to resnain the exercise of rights and to manage 2lld contain any unrest that may sign.u rcbe.ilion. The state confronts the very first protest with ruthless dispers.u and informs the citizen that force will be used to contain public expression of discontent, no matter how weak the protest. For msrance, a protcst by the visually challenged before Andhra Pradesh government buildings against corruption and ill in their hostels was met with police batons. The police of tillS state are nOt particularly wicked. The Delhi police has meted out me same treatment for similar demonStrations. The constant promulgation across the country of Section 144 of the Criminal Procedure Code, prohibiting assembly of more m2ll

4 I TiN Wag"

Saga of Impunity I 5

-f Impu.;ty

five persons without police

to

Substances Act on the same set of factS . The=: violence=: these prosecutions engender has to be: seen to be: believed. From the rime of arrest to the time of trial the persons suspected of these offences are pur through covert and overt forms of violence. Between arrest and production before the court there is custody with the polia:. The Constitution says the arrested person has to be produced within 24 hours of his or her arre=:st. There is a difference bc:twc:c:n actual arrest and Ic=gal arrest; actual arrat precedes 1e=:ga1 arrest. The time sptnt bc:tween the twO may vary from two days to several days or c=ven wc:c:ks. The length of such custody always depends on the alenness of the arrested ptrson's ftiends and rdatives. Fearing the worst, they may not rush to court as they should, but try and manage the=: person's release or production before: the court. This gives the=: police rime to subject the=: arre=:sred person to violence=:, including the possibility of execution without referena: or recourse to law. This is yet another chapter of violence: operating under (he protective arms of the law. This is just the beginning. To leash legitimate protests the state often formulates a vague and inchoate conspiracy charge . incapable of precise definition. The coming together of persons to agree to do unlawful acts can neve=:r be: proved , because=: it would require evidence not admissible=: unde=:r law otherwise. The coming together ne=:ed not be physical; a meeting of minds is sufficient. The charge of conspiracy is a convenient tool to target political movements. The British used it effectively during the=: freedom struggle. By narure a sprawling charge, a large numbc:r of persons can be recruited as accused in these=: cases. There=: are political advantages to bc: gajne=:d by such elaborate=: trials. During the Meerut conspiracy case, the=: British government aimed at undermining communism by exposing the movement's Ie=:aders and turning national opinion against them. An elaborate criminal proceeding was initiated against them, making it difficult for the communiSts to later align with anti.Bricish , nationalist pania in India. In the course: of this criminal procc:c:ding, legal precedents for the=: criminal prosecution of communist leaders were set out in orde=:r to make future=:

looming

threat of violence legitimised by law. Violation of thiS order may lead {O preventive arrest or use of force if the assemh,ly dc:x:s disperse with threat and persuasion. Tht: promulgation Itself IS

violence. because the rights to ftC(: speech, assembly movement stand withdrawn. ironicilly, the govc=rnment this provision into operation around Parliament and the, Legislative Assemblies when they are in session, thereby protectang

from the citizens who deere
of.

mc:c:t these challe=:nges. . .. Radical social movements, for instana:, are=: see=:n initially as disrupters of public order and late=:r as a threat [0 state security. The srate has the power (0 invoke criminal laws for the=: a.rrest and prosecution of persons it charges of treason and conspiracy to overthrow a lawfully atablished government. It can .also accuse them of waging war, which charge divides itself mto various ancillary offences like attempt to wage war, concealment of a design to wage war, etc. Now, waging war normally mellns carrying arms, ammunition . or substances. After charging the=: suspect compendiously for wagmg war, the wiU then also bc: charged under the=: Arms and ExplOSive=:

to

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Saga of Impumty I 7

Wagt'J of Impunity

proS(:cution easier. Finally, it was believed that 'a favourable judicial verdict would make it easier for the Government to proclaim ordinances concern ing similar situations, and if required, to disband at an early stage in their development, such organisations as the government considered dangerous.'1 The principal function of (he criminal justice system then appears to be the power to usc the judicial process to break an opposing political movement and discredit it, with the executive and the judiciary working in tandem. All {he repressive laws lrn:d by the British against the freedom struggle have been retained in independent India, despite constitutional provisions mandating scrutmy. 1968 was a year of crisis. While there was no clear ideological polarisation, there were fractures between adversarial groups within various political parties, many of which split into two right across the spectrum. Indira Gandhi split from the conservarive block popularly known as the Syndicate. She became the leader of a new faction which claimed the following of the people. Her populist slogan reiterated the Directive Principles, which brought the fundamental obligations of (he 25 years after the Constitution had been adopted. She was surrounded and encouraged by a political elite Ihat included well.meaning bureaucrats who sincerely believed fhat top-down social transformation was possible. They found in the Directive Principles a radical agenda which was not revolutionary. But there was a fundamental problem. By positing that the Directive Principles were prior to fundamental rights, in an environment in which hysteria was orchestrated around 'forces of destabilisation', her pany found it easy to enforce political stability through the suspension of democracy and a declaration of a moratorium on rights by invoking a state of emergency. Increasing dissem was put down ruthlessly without the minimum procedure to be followed for the forfeiture of sOllleone's li berty. It was during this period that the Supreme IPnimita Ghosh, Mtmlt Comp."f? Cur and

pp. 161-162.

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Coun was restructured and the Maintenance of Internal Security Act (MISA) came up for judicial review. The COUrt that had taken an adversarial position on rhe anack on the right (Q propenyl did not display the same eagerness when it came to personal liberty. The intellectual rigour displayed by the COUrt in dealing with property rights was missing when dealing with rhe right to liberty (an expression which includes the right to free speech, association and assembly). The incarcen.tion of a large number of people under preventive detention laws was validated. This was apart from the large number of people held in illegal custody all over the countty. In Andhra Pradesh alone, I appeared on behalf of some five hundred detainees between 1975 and 1977. One ohhe earl iest cases to question the valid ity of the proclamation of Emergency and of the new provisions imroduced under M ISA was filed in rhe A.P. High Court. This case, decided by the full bencll, became a precedent for the decision by {he Supreme Court in ADM Jahalpur. The full bench in A.P. upheld the validity of the act and the detentions. The Advocate General of Andhra Pradesh claimed, even before the Anorney General could, that if a police officer shoots down a citizen on the roads, no action could be taken against him [ during a period of emergency. All this in the name of security of the state. The definitions of the words 'security' and 'state' have never been subjected to scrutiny, despite the transition in politics from absolutism to democracy. The Indian state, o riginally constituted to be a democracy that would represent a plurality of interests, grew absolutist during the 1960s. An activist court was now increasingly perceived as a substitute for politics, masking the undermining of rights that was already under way. Judges (alked aboul 'barefoot lawyers' and 'doo r delivery of justice', even as the ground was prepared fo r the proclamation of emergency in 1975. The abuse of power under emergency rule was legion, as revealed by the Shah Commission and other commissions of

IndiA, 19]8,

lGolaJt Mlth

II.

StAU ofPunftrb. AIR 1967 SC 1M3.

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TJu Saga of Impunity I 9

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enquiry, The emphasis in chis and other enquiries was on the fundamental rights of free speech, assembly, association and personal liberty, In Andhra Pradesh, as a result of internal turbulence within the communist movemenr, the: party split into twO, and from a further split e:merge:d the Naxalbari expc=rime:nt and the: CP I ML assertion that armed struggle: was the only road to social change:. These: ide:as spre:ad like a fore:st fire: from Naxalbari to Srikakulam. The: dedaration of the policy of arme:d struggle and individual annihilation of class e:ne:mie:s pave:d the way for a major onslaught. This provided the nate: with a legitimate pretext for abusing power, unleashing viole:nce: and re:ndering the law totally irrdevant. The Naxalite: movement prece:de:d the: Emergency by six or seven ye:ars. Initially, the: A.P. Preventive Detention Act, 1970, and the A.P. Suppre:ssion of Disrurbancc:s Act, 1967, we:re: used to sile:nce: a group of re:volutionary Tdugu writers, widl three of them being arrested. The 1970 act provided that every ground in a detemion orde:r could be de:emed sufficient for a detention. This was to circumvent the requirement that the grounds shown must have some: rdevancc: to the: activities of the: detaine:e:, to satisfy the authority that the activitie:s alle:ged were de:trimental to public orde:r or the security of the: state. By dedaring that one or the: othe:r ground w.u rdevanr, the act create:d a fiction which in dfc:ct dispc:nse:d with the satisfaction of the authority, thus disabling the courts from setting aside the: order. The: High Court struck down the act as invalid, as violating Article: 22(5) of the: Constitution.) Of significance here: is the assumption rhat rights do not inhere automatically in citiz.c:ns. A right becomes available only whe:n, through litigation, a ce:rtificace is obtaine:d from the: COUf{ allowing the citizens to speak, wrice:, assemble and move as an 'Artlde 22(5) of che Cml5licucion reads: 'When any person is detained in pursuance of an o rder made under law providing for preventive delemion, Ihe authority 1l1aking the order shall. as soon as may be. oommuni C:IlC 10 such person the grounds on which the order has been made and ,hall afford him Ihe earlicst opportunity of makmg a rcprcscnla,ion against the order.'

•

asse:mbly, and stating that such activity does not disturb public order or the sc:curiry of the state. The Naxalite move:ment in Andhra had its base initially at Srikakulam , a hilly terrain with dense forem covering an are:a of 600 square miles. These are:as were inhabited by the Jatapu and other t.ribal areas in the COUntry, these pc:opJes Savara tribes. have subjected Immense exploitation and were being orgaruscd by the Naxalnes to assert their riglm. On 31 October 1967, some imercepted tribals on their way to a mee:ting at Monde:mkhal and opened fire, killing two of the:m. That these are:as had been badly neglc:cted is an admitted fact. That such areas will always attract political activicy is axiomatic. Insre:ad of addressing questions of exploitation in the rribal areas, the governmem e:xercise:d irs power to liquidate political activity. Almost all rhe: tribal areas were notified as 'disturbed' under the: AP. Suppre:ssion of Disturbances Act, 1967. and the Naxalite: move:ment there: was ruthlessly crushed. Once: an area has been so notific=d , any assembly of more than five becomes unlawful. dispc:rse such an asse:mbly a sub.inspc=ccor can open fire to kill. It was the abuse of this re ressive rovision which ave birrh to •encounters.• Pe:rsons were a rehe:nde:d outside [he notifie: t inside those areas and killed. The leadership was aeomated III these: encoumeq. More than 150 NaxaJites we:re: killed in this way and the re:st of the leaders were prosecute:d. accused (an.d around 1,000 witnesses) endured a prolonge:d trial began III on charges of conspiracy to kill, murder and pillage: and conspiracy to wage war, apart from se:dition. Although most of the accused we:re: tried for oven acts all these: were tied togethe:r and projccte:d offe:nces commme:d In pursuance of an earlie:r conspiracy, as in Jaw conspiracy is a distinct offence. All offences that are: pc=nding or may .be put in issue in a trial for conspi racy. The posslblltty of amving at conflicting conclusions cannot be ruled OUt. Nagabushanam Parnaik, for instance. was found guilty of murde:r and sentenced; to death by a sessions Court where he did not. defend himsdf. Ir was an a piJrtt death sente:nce! The president of India commuted the sentence to life. Later, in {he

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conspiracy trial. the same murder was put in issue and judge found that the accused had nothing to do with the murder. The carrying out of the death sentence would have been without the authority of law. Later, when the matter was taken [0 the Supreme Coun on the ground that his serving a sentence would be violative of Article 21, the principle of finality was invoked to refuse interference. One had to wait till A1Itulay to reopen finality on grounds of palpable injustice. 4 The Secunderabad conspiracy went on for fifteen years acquitted. However, these and all forry.five accused acquittals really obscure the abuse of power and the law. They also obscure the violence employed using the law as a shield. The accused were held for long periods. The anguish and mental srress suffered by their families, (he uncertainty of their return, the near bankruptcy to which these families are reduced, all these assessment of the system. are faCtors thar are crhical to Politics is trealed as a crime. The subversion of law begins wi t e reduction of politics fa a crime. After such su version. the law beComes a pretext tor Violence. I he liquidation of political dissent brings up {he troubling erasure of the human rights of political dissenters. The position of hllma..n rights activistS that the political philosophy of a targeted group should not affect the protection of their rights is misinterpreted and projected as politica1 suppon for the targeted group. be they Naxalites or terrorists. On the contrary. this concern anempts to curb the state from turning into the biggest violator of the law. with an impunity that destroys governance in all its facets. This kind of large-scale liquidation was carried out in West Bengal and Andh ra Pradesh. and in the lattet state it has become part of administrative practice. In Andhra Pradesh. 'encounter killings' average around 150 to 200 per year. The practice of liquidation is also familiar in Punjab, and in the state of Jammu 4A.R. Antulay II. R.S. NIIJ4k, AIR 1988 SC ISJI. A violating a fUndamenw right (though binding until il IS SCt aside) may be: set aside for that ruson. For a diJCUSl,ion see Durga D:u Basu, Shorter UJI'IstihltitJl'l ./Intiu, Thinecnth Edition, Nagpur: Wadhwa, 2002, pp. 39--40.

Tiu Sl1gl1 of ImpunilJ

IIJ

and Kashmir. Advocate Kal ra was killed fo r auditing the dead bodies of Punjabi youth suspected to be terrorists. Andr.bi. a practising advocate in Srinagar, was killed beause he took the law and the Constiwtion seriously, and questioned the ways of the government in containing militancy. Dr. Ram3113tham of Warangal, Japa Laxma Reddi of Karimnagar. Advocafe Narra Prabhakar Reddy of Warangal. Advocate Purushotham of Hyderabad and Syed ham Ali of Nalgonda, 311 from Andhra Pradesh, were killed for demanding that the government shouJd abide by the Constitution and its laws. There has ba:n no investigation leading to trial in almost aU cases and in all the cases of 'encounter' recounted earlier. In a perpetually misgoverned society, any movement for good governance and governance according to law becomes rebellion. The movement for human rights is a struggle against misrule and unconstitutional governance. We have been fighting against encounters and exposing impunity in governance from the revocation of the Emergency in 1975 through various commissions of enquiry appointed by the Janata government. A commission presided over by a former judge of the Supreme CoUff, ustice Vashisht Bhar va, to Q. into the uenion of encounters in Andhra Pradesh. was appointed at e est of the cemraJ government on me basis of reports submitted by the after a yeat by Tarkunde Committee. This enquiry was a notification by me state government that irs proceedings should be in camtra. H owever, the struggle to contain state writ petitions were f'iled from violence continued and Tamil Nadu, Uttar Pradesh and Andhra Pradesh. In petitions, squarely covered by Article 21 of the Constitution, the state was accused of systematically killing people. C haracteristically, instead of reckoning with the seriousness of the accusation, the court accepted the unsupported claim of the that magisterial inquiries had been conducted into these killmgs, and rhe petitions were dismissed. . Where liquidation is used against a targeted political group. It a crime against humanity. Where a religious or ethnic group IS targeted it is genocide. Citizens can guard against fellow

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citizens who violate the law; and the state is entrusted with the task of protecting life and by an elaborate system of laws and through institutions meant to cope with and defuse the tensions produced by forces in society. These tensions, created by social and other imbalances, can scarcely resolved by the of violence by the stare, a major premise of all liberal democracies. no consensus about UnfortUnately, there appears to including a targeted political group within the definition of genocide. It is now possible to bring these killings within the scope of crimes against humanity, a distinct offence under the Rome Statute of the International Criminal Court. While on paper at least, this last is set to prevent states from committing crimes against people living in various countries, every member stare is guilty of continuous violations of human rights that result in killing a large number of people with impunity and without any remedy. Will the international Criminal Court work at all in a world where all governments are bent upon reducing Hider and Mussolini to small·tjme operators? The movement for human rights marks a departure from traditional politics, by laying particular stress on the fundamental rights to liberty of the person, free speech, assembly and association; and this is where its significance lies. Like all human rights activists, I am not unmindful of the group violence perpetuated by various 'extremists' or'terrorists', leading to mindless killing and desuuction. But the answer to the abandonment of governance and civilised this cannot conduct on the part of the state. Impunity is never the answer. This sanction of impunity throws into question the legitimacy of governance and otder and points to decay in the system. It is a matter that calls for a national debate. Unless human rights becomes part of political activity, unless human rights discourse forms part of me substrata of our political arrangements, we will have no road to civi lised governance.

2 Justice Must be Seen to be Done

Human rights as a concept, as a principle of jurisprudence, as a code of conduct governing the nations of the world, completed fifty years on 10 December 1998. The atrocities committed by the Nazis and Fascists on me of their own countries and against the people, combatant and non·combatant, in the territories occupied by them during the Second World War, were the principal motivation for the victorious nations to promote me Universal Declaration of Human Rights. Instead of imposing treaties on the vanquished. the United Nations (U.N.) Chaner signed in 1945 set out to establish an international legal order with the object of outlawing aggressive wars. Towards that end, it set down guidelines to defuse conAicts char disputes should be settled in conformity with JUStICe and international law. Friendly relations among nations are. a mandatory requirement. The operating principle among natiOns should be based on respect for equal rights and self. determination of peoples, as well as respect for human righu and fundamental for all without distinction as to ra.ce, sex, anguage or religion. However, the chaner, which talked about

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human riglm and fundamental freedoms, didn't define, describe or enumerate these rights and freedoms. To remedy rhc:se defectS the U.N. draftcd thc famous Universal Declaration of Human Rights, which was adopted on 10 December 1948. The sening up of rhe Nuremberg and Tokyo War Crime T ribuna1s has some relevance here. I n the words of J uS[ice Robert Jackson of the U.S. Supreme Court, who appeared. as America's chief prosecutor at the war crimes rria1s in Nuremberg: That four great Nations, nushed with victory and stung by injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes lhal Power has ever paid to Reason. 1

Bur these tribunals were constituted by the victorious nations, and therefore the U.S.A. was not indicted for a horrendous violation of human riglm, namely, the explosion of atom bombs over Hiroshima and Nagasaki. The Holocaust Museum in Washington, D.C., is a grim reminder to posterity of what power can do, but there should also Ix a museum depicting the bombing of Hiroshima and Nagasaki and its continuing aftereffects. This, I believe, rhe U.S.A. owes to the people of the world. These evenrs, the subsequent witch hullt of suspected communists during the McCarthy period, and the persecution of Vietnam war dissenters and draft card burners underscore the necessity of a strong and enforceable human rights code. During the whole period after [he Second World War, what was highlighted was the absence of human rights in the Soviet Union and the Eastern European countries and not the paranoid response of rhe U.S.A. and the consequent human rights violations. In 1988, George H. W. Bush began his presidential campaign by attacking the Democrnuc Parry's IRoben H. Jackson, 'The: Case agllinst Ihe: Nazi War Criminals'. 3 (1946), Sandra Day O'Connor, 'Fc:der-aiism of Free: N:uioru·. in Nnu YDrk U,.lIltnllJ jDurtlAl Df IntcnullloM/ lAw.nJ PDulia, 28: 1-2, Fall 1995-Winter 1996. p. 3S.

if.

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to bt! Done

I 15

candidate, Michad Dubkis, as a card holder of thc Am(':rican Civil Liberries Union (ACLU), as if it was treason to be a member of [he ACLU. All these trends did nOt halt the progress of the human rights movement. In fact, the Nuremberg and Tokyo Tribunals provided the U.N. wirh the to set up a permanent International Criminal Coun {O try human rights violations. Nonetheless, the Nuremberg and Tokyo Tribuna1 trials were the earliest arrempt to try human rights violations as crimes. When, at the behest of the U.N. General Assembly, me International Law Commission prepared a draft Code of Offences against Peace and Securicy of Mankind, the international body took rhe first step rowards universalising the concept of the rule of law. The effort did not receive attention until 1990, whcn ,he Inr(':rnarional Law Commission resumed irs work on Ihe setting up of a court with inrernational criminal jurisdiction for dealing with crimes against humanity. The idea of a permanent Court root aftcr the of the fotmer Yugoslavia. It was only after the outbreak of internecine violence betwecn the constituents of rhe former Yugoslavia that a working group under the International Law Commission brought out a comprehensive draft statute for an International Criminal Tribunal and in 1994 a revised draft Statute for an International Criminal Court. The Yugoslav Tribunal set up by Resolution 827 and the Rwanda Tribunal set up by Resolution 955 of the U.N. Security Council may be regarded as important steps, as pilot projects preparatory to the setting up of a permanent COUrt. Its realisation requires a major cultural shift in the fields of politics, law and jurisprudence. This means a of concepts so that power, authority and sovercigncy are subordinated to the requirements of human rights. The very acceptance of the idea of a permanent COUrt is an indication of a cultural shift that is taking place. These developments do offer some solace, some hope:. . A.t the national level, we in India have not wirnessed any slglllficam reduction in human rights violations, more

16

I TIM

Wagn of Impunity

particularly in areas of political turbulence (and armed conRict) such as Jammu and Kashmir, the states of India, and Andhra Pradesh. In Bihar we are witnesses to violence by private armies of groups based on caste. The caste system adds another dimension to the human rights issue in India. In 1997 in the sme of Andhra Pradesh, after human rights activists had battled for over twO and a half decades, the High Court, in a case of alleged extra.judicial execution by the police, or, as it is termed in India. an 'encounter killing' of one Madhusudhan Raj Yadav. h!ld for the first time that killings in so.called encounters are homicides and have to be investigated and prosecuted. 2 Around the same period the National Human Rights Commission of India (NHRC), in an inquiry infO encounters in Andhra Pradesh. arrived at a similar conclusion and ordered [he prosecution of police officials. These have had no effect on the state government, and encounters are a daily feature. Neither the rulings of these bodies nor the Protecdon of Human Rights Act, 1993 (which established the NHRC), has made any difference. The High Coun has ordered inquiries by investigative agencies into .some encounters and in others it has directed the filing of private complaints against the polio!. The Tamil Nadu High Court, in early 1997, held that a complaint cou ld be directly lodged before a sessions court (a lower coun) which can be nominated as a human rights COUrt under Section 29 of the 1993 Act. 3 This is a positive gain, because every district thereby getS a human rightS court which is easily accessible to the people. The acceptance by the premier democratic institU[ion - the courts - that killings and torture are unlawfw and in breach of international covenanu would amount to the constitutional entitlement of the victim's dependants and the concept of the rwe of law. JK.G. KAnnabifim II. Chiif&mtll'J. GollmmunlofAntlhra Pratlnh 6- On .• 1997 (2). ALD 523 (D.8.). lPtU.hanlnu/i MaUal Sa,,!am II. Slart of Tamil Nulu 6 On .• unreported, 1997.

Justice

MUll

Sun

UJ

I 17

If governments ignore judge·made law. governance will sooner or later suffer erosion of legitimacy, as is already visible in areas of political turbulence. Notwithstanding the indifference of political governments, the coum have gone ahead and are holding that international covenants have acquired the S{atus of customary law. We do not hear (he outcry that the sovereignty of a country is in peril. We have witnessed governments coming forward with proposals for and (he consequent establishment of human rights commissions. The existence of these: commissions is an admission of guilt. A variant of these is the Truth and Reconciliation Commission in South Africa. They have no powers to punish the perpetrators of horrendous human rights violations. But they do serve the purpose of superseding the exisdng authoritarian culture. After a long and continuous innings of around three decades as a defender of human righu, I believe that there is a possibility (0 arrive at a broad consensus on this issue. Implied in this possibility is the assurance of the presence of democracy in governance.

Colo"ial

3 Colonial Baggage

In our rime, direct colonialism has' largdy ended; imperialism ... lingers where il h;!;s alw.ays been, in a kind of gener;!;l cultural sphere as we.ll as in specific politic;!;l, ideologica.l, economic ;!;nd social prActices. Edward Said I A constitution framed afte.r a liberation struggle or a struggle for independence is. like poetry, e.motion recoUeeted in nanquility. It is a severance from the. past, ;!; termination of imposed suzerainty and the setting up of a political sovereignty of one's own people. It re:su on the proclamation of legal discontinuity. the transition of;!; people from the sUtUS of subjects to that of citizens, of a n;!;rion whose: sovereignty is located in the people. This announcement of discontinuity we find in rhe Dedaration preceding the Preamble to the Indian ConSlitution. We resolved to constitute India into a sovere.ign democratic socialist republic and thereafter set out the goals which this republic h;!;d to achieve:. We: moulded our struggle on liberal values and the rule of law. We rejected imperial domination but nOt the IEdward 1993. p. 9.

w. Said.

nnd Impt:riAllsm , New York: Alfred A. Knopf.

I 19

parliamentary system, which animated the politics and history of Britain and the British people's uruggles against absolure monarchy. Our political transition did not and could never have triggered a social revolurion. Our politica.l struggle retained with (Otal composure the entire colonial legal system which had been effectively used against the freedom struggle at various stages. While we repealed Article: 395. rhe Indian Independence Act, 1947 and the Government of India Act, 1935, with all the amendments that were made (0 the lauer, we did not follow lip with the repeal of variOliS laws which cannot operate in a sovereign democratic socialist republic, and which have no moral and political claim to continuance because they were statlltes used against the people and its leaders during the course of our struggle for independence. like the Criminal Law Amendment Act, 1908 and 1932 and the Prevention of Seditious Meetings Act, 1917. to mention only the notorious ones. It is amusing to read the origin of the three principal High Courrs, namely Madras, Bombay and Calcuna. It reads: Victori;!;, by the grace of God, of the United Kingdom and Greal Britain and Ireland, Queen, Defender of the Faith and proceeds to establish these courts in archaic and arcane language and style. The other High Courrs created by the Letters Patent came in the reign of George V. The recital for setting up these High Courts read: George the Fifth, by rhe grace of God, of rhe United Kingdom of Grear Britain and Ireland. and of rhe British Dominions beyond the sea, King, Defender of [he F;!;ith. Emperor of India ... 2 An understandable emotional response to such laws would be to throw them overboard and enact a new set of laws dearly defining the powers of the High Courrs to suit the requirements lUmaji KnhaIJ Mahram d- On. v. Sml. &dhilrllbni d-A"r., AIR 1986 SC

1272.

20

I

Colonial

WagN of Impunity

of the people. No such effort was made and the coUrtS continued in their colonial tradition quite unimaginatively. Founeen years after the ConStitution it was argued. inur alia. before a constitution bench of the Supreme Court, that the sovereigmy of the dominion of India and of the Indian states was surrendered. to the pe:ople of India. in the exercise of which the people gave themsdves a new constitution as and from 26 January 1950. The Supreme Court pointed Out that the promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of Jndi2 to the Union. It was merely change in the form of government ... The ncw governmental up was the fin21 step in the process of evolution towards self-government ... The continuance of the government21 m2chinery and of the laws of the Dominion. give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of (he Dominion, 2nd from irs ashes. the springing up of another sovereign ... J With unrelenting logic the coun poimed out: There is no warr:llnt for holding th2( .1.1 me Stroke of midnight of 25 J2nuary 1950. all our pre-existing political institutions ce:ased to exist, and in [he next moment a new set of institutions completely unrelated to the past ... It did not seck to desrroy the past institutions; it raised an edifice on what existed The learned judges were not conscious of the cynicism involved in this analysis. They were not critical of the Consriwtion. They were merely interpreti ng if. And yet. however reluctantly. the coun was compelled to concede that the Constitution in faCt represents the aspirations of the people: The ConstilUem Assembly moulded itself no new sovereignty; i[

• of Cuprllt '514« SC 1043. 4S1I1tt ,fGu}ara, SC 1043.

lI.

}"iJdaI, BaJnuit1in M;thibaTWIIIII d- On .. AIR 1%4

lI.

Fiddlll, &druJdin M,thiNTWlliII d- On .. AIR

I 21

merely gave sh2pe to the aspirations of (he people by destroying foreign central and evolving a completely democratic form of government as a republic. 5 Sixteen years thereafter. dealing widl an issue arising under the Letters Patem. a full bench of the Bombay High Court proceeded on the premise that the Constitution of India is a unique documem, the first of irs kind. Proceeding on this assumption. the Bombay High Court was of the view that the Constitution 'pu rports to lay down an original institutional matrix of irs own,' and that 'it is not oU( of the historical ramparts that something is being put up. but a fundamental scheme: and that in matters of the High Court'S powers. therefore. there is clear evidence that the Constitution 'made a brl."ak with the past and had made absolutely a new. original and vital · · ... '6 be&1I1n1l1g When the matter came up before the Suprl."me Court in 1986, thl." apex court unflinchingly poimed our that the assumptions made and the conclusions reached by the full bench were wholly erroneous. Without mincing words and serting aside patriotic or any similar emotional consideration. it was pointed out by the apex coun (hat the legal and constitutional basis of our independence was the Indian Independence Act. 1947, and it was in exercise of the power conferred by tha; act that the Connituem Assembly adopted and enacted the Constitutio n of India. It W25 pointed out that the setting up of the Connituent Assembly itself was an act of the British Parliament? This imerpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom. the repressive legal structures on whose altars people were sacrificed and their

f)f Guj(lrat lI. FiJdali &dnuMin MithibArwllIII d- On., AIR 1964 SC 1043 . 6Utml}l Kf1ha, Mf1hrllm d- On lI. S",t. &uJhiltllNi d- Anr.• AIR 1986 SC 1272. . 'U"'Rji Kchilo Mf1hrllm d- On Sf: 1272. .

lI.

Smt. RAdhilrllbA, & An,.• AIR 1986

22

I

Wagn of Impu1ltty

dreams shanered. It ignores the aspirations of the people to build a better society for themselves. The rise of political democracy leading to liberation from foreign domination is not a mere maner of evolution. There can always be a break in the continuity, a from the past, without being preceded ·by violence and destruction. There cannot be, there should not be: two social histories. one for political theorising and another for legal dlcorising. The setting up of a Constituent Asscmbly and thc passing of the Indian Indepcndence Act, 1947. arc a consequcnce, a culmin:uion of the struggle for i:1dependencc. It was thc shared belief of a largc section of the people that there was a political severance on August 15, 1947. and a severance constitutio nally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution. The people who met in the Constituent Assembly were nor mere technicians who had gathered there to prepare a handbook for running [he government. They had panicip:ued in the muggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our undemanding or interpreradon of the Constitution. With that understanding absent, [he institutions under rhe Constitution were looked upon as a continuation of rhe colonial system of administration. When the Government of India Act, 1935, was about ro be brought into force, Satyamurti, a staunch member of the Congress party from the South, introduced a Private Members' bill to repeal all repressive laws. While debating this bill, he held the floor for three continuous days. While debating the Constitution of independent India, not one member proposed that all the repressive laws enacted and repeatedly used against the people should lapse with the coming into fo rce of the Constitution. This task was delegated ro the execut ive under Article 372, and [he executive adopn:d all the laws passed by the British without much thought. This was not a lapse. The

Coumilll

I 23

political party that was elected to govern genuinely felt that they were successors to the colonial maners. Neither rhe ConStituent Assembly when it was in session or immediately thereafter, nor the government set up a commission or directed the First Law Commission to examine what laws we required for enforcing the Directives contained in Pare IV of the Constitution and the objectives set out in the Preamble as well. Nor.was:mY attempt made to verify whether the legal structure: we mhemed had the apacity to operate the constitutional system we had adopted. British rule in was not concerned with improving the lot of the people lIVIng here. A certain amount of stability was necessary for, the, exploitation of the COUntry and its It IS rhls deSIre for effective control which prompted Brltl.sh make attemptS to bring about a cenain degree of Uniformity In the legal structure, both civil and criminal The Charter Act. 1833 direc.ted the Governor General to appoint a law commiSSion to examme and report on the State of the laws and the administration of justice in India. This commission was headed by Maaulay, and it resulted in 1860 in a uniform penal code to control all the territories under British control. Two more commissions were appointed, in 1853 and in 1861. These led [0, passing of the Civil Procedure Code, 1859. the Code of 1861, the Indian Succession Act, 1865, the Hmdu Wills Act, 1870, the Evidence Act, 1872, the Act, 1872, the Specific Relief Act, 1877, the Negotiable Instruments Act, 1881, and the Limitation Act 1908. These were measures to reguJate trade, commerce and property transactions, and are guidelines for the adminiuration of justice. were British priorities. If they imroduced us to the prlOCiples of liberalism by piecemeal constitutional legislation it was to gain. acceptance of their rule by the growing wesre;n. educated middle classes, which produced the leadership for the freedom Struggle. It is evident that a legal system structured to rwe colonies can never square with a constitutionaJ scheme. A bureaucracy trai ned to man th e coIOnl°al power structure and a

24

I

Colonittl.

Waogn of Impunity

judiciary that was responsible for interpreting the Government of India Acts were neithcr prepared nor trained to copt with a constitution whose objectives were so differcnt from those of the colonial administration. With a colonial mindset dominating administrative structures, it was impossible (0 compel the government to perform its fundamental obligations. At the lower levd, governing has always meant allowing time to roll by without taking decisions. This state of affairs is not conducive to evolving the principles of an administration that will allow society to proceed towards the minimal transformation provided for by the Constitution. Restructuring an administration implies the existence of trained personnd with a co mmitment to the vision essayed by the Constitution. It does not stop there. We were unaware that around 258 British statutes were in operation even till 1960. In 1954 in eG. Mmon, the Supreme Court, while dealing with the Fugitive Offenders Act. 1881, pointed out that the operation of this act after Independence and the Constitution offends the sovereignty of India.s The Law Commission. in its Fifth Report, listed around 258 natutes and recommended their repeal. It was only in 1960 that a Act was passed putting a.n end to all these British statutes in operation in India. The Law Commission also suggested replacing certain statutes. Through the statement of object.s and reasons of the Repealing Statute of 1960, we were assured that {he matter was the anemion of the government. However. in the Supreme Court in 1993. in M. V. Ewaobelh, a maner under Admiralty Law, Justice Sahai pointed out: Unfonunately nothing was done. Neither the law was made up to date and brought in line with international eovenan[$ on maritime passed in 1952 etc. nor even the salient features of English law as by the Administration of Justice Act 1920 and 1956 WC!f: adopted and righ[$ and interests of citizens of independent sovereign state continue to be governed by

legislation enacted for colonies by the British P"rliamenl. Various provisio ns in 1890 Act have been rendered not only anomalous bur even derogatory to the sovereignty of the J[ale. No further need be said except t"O express the hope that the unfortun ate state of affairs shall be: brought to an end at the e.rliestY That is, the statutes were noticed only in 1994 and not earlier. What is more amusing is that we have been carrying the colonial baggage even with respect ro our sovereign State Legislatures and Parliament. The Constiwtion created a legislature for each state and a parliament for the COUntry. These: are sovereign bodies with powers to legislate in the respective fi elds assigned to them by Schedule VII of the Consriturion. The members of these bodies are elected representatives of th e people. The Constirmion provides freedom of speech to enable them carry on their work without fear. The British House of Commons has in the cou rse of its history secured cerra in privileges and immunities. 10 The house claims them in its corporate capacity and the member claims them as a representative of the people. When the British in India set up representative institutions, the people were never allowed such privileges against the representatives of the British empire. The Indian Councils Act. 1861, set up a rudimentary legislature without any privileges or immunities to the members of the Cemral Legislative Council. The Governor General in Council made ruJes laying down the procedure for the conduct of the Council and defined the freedom of speech of its members. The Government of India Act, 1919, made provisions granting immunity for anything said in either chamber of the house or for anything contained in the report of these proceedings. But the Governor General had the power to regulate the proceedings. including the questions asked and the discussion of any subject specified in the rules. The rules , 'MV EwalHth

see 433. 'SUlre DfMiUlras

II.

CG. Mmoll, AIR 1954 SC 517.

I 25

II.

H4rWttn InVNt7rKnl

IOfor a more dct.uled discussion sec

c- TriUljnl (I') L4/.. 1993 Supp. (2). Chapter 26.

Cokmil1l

26 1 The Wagn of Impunity madt: by d\t: Govc:rnor Gt:neral in Council needed the sanCfion of the Secretary in Council. and no legislature had the power to repeal me rules so made. Section 28 of rhe Government of India Act, 1935, makes provision for rhe federal legislature [0 define its privileges by passing an act from time to (imt:. Until then they were obtaining in Indian legislatures immediately before the passing of the 1935 act. For breach of privilege, no powers of imprisonment were conceded to the federal legislaturt:. which was not accorded the status of a court, nor was tht:re any punitive or disciplinary power excepting the power to remove or exclude any person from the house. The vast powers enjoyed by the British House: of Commons were not conct:ded to (he federal legislature, and this was obviously a deliberate deniaL When the Indian Independence Act, 1947, came into force to make the transition autht:ntic and legal. the: Governor General passe:d a few Indian (Provisional Constitution) orders amending the Government of India Act, 1935, one of which was Subsection 2 of Section 28. It introduced the words 'members of the House of Commons of the Parliament of the United Kingdom' in place of the words 'members of the Indian Legislature'. This equation made by the British CC3$S to be an equation when continued aftt:r Indt:pendence. For the interpretation of Article 105 of our Constitution, if one relies on Clause 8 of the Bill of Rights of 1688, it only means this democratic republic of ours is still not sovereign. In faCt. Article 105(3) or 194(3), which subordinates the Parliament to the privileges of the House of Commons, is declared to occupy the same primacy of place as Anicle 19. Said the Supreme Court, 'they are as supreme as the provisions of Pan 111.'11 What is involved here is not the near unanimity of principles which govern all institutions operating under the rule of law. We may even lean on the precedents of these: 'alien' institutions as reasons in the decision-making process. But where we subjugate sovereign institutions to the decisions and principles of an 'alien' 11M.SM. SlHtrnw

II.

Sri KrishnA Si,,1M d- On., AIR 1959 SC 395.

______________________

I 27

country and allow them to regulate these institutions, it cuts acroSS the entire theory underlying the Constitution and the proclamation of political sovereignty contained therein. The slow rransfer of power from time to time and in bits and pieces has led to internalisation of procedures instirutionalised during the colonial period. which govern us as tradition even today. In sedition prosecution we vc:ry often find ourselves citing decisions where Bal Gangadhar Tilak was convicted! The continuance of this is amply demonstrated by me brief submined to the Supreme Court in the Special Couns Bill, 1978, by the central government under the Janna Parry. The setting up of a special court for the trial of emergency excesses and other offences was under attack. In juS{ificacion of special coutts, me government relied on the Rowlan Acts, 1919, the Bengal Provincial (Amendment) Act, 1925, the Sholapur Manial Law Ordinance 1930, tht: Bengal Criminal Law (Amendment) Acts, 1930 and 1932, the Maintenance: of Public Order Act, etc. These were special laws passed by the British to contain tht: indt:pendence Struggle. The coun rejected them as precedents on the ground that these laws were Draconian in nalUre and were characterised by a denial of fair trial to [hose who had the misfortune to filII within the truncated procedure by them. They provided a summary procedure ror the deprivation or right to lire and liberty without affording the aggrieved person the right [0 carry an appeal to [he High Court for a dispassionate examination of his contentions. Special courts were set up undt:r these laws mostly [0 suppress the rreedom movemt:O£ in India.12 What is important to note is that as subjects, the leaders of the freedom struggle used western liberal values insurgendy, but when they assumed power they were heirs to the British and not to the freedom fighters. The colonial tradition of governance continues today. Ill"

Special uuru Bill. AIR 1979 SC 478.

28

I Tht

Wagt'1 of Impunity

In rhe power to punish for contempt or breach of privilege, whether by the courn or the legislature, me colonial countenance, the divine right (0 subjugate is visible, and it is compounded by the oppressive arrogance of a caste·ridden society which has a tradition of oc.tracdng unquestioned obedience to aumority. The myth about contempt powers is that it is an emanation of royal authority. It is fui It is said that it always inheres in an original court of records. Of course there is no rational explanation to justify this power. It is absolute power unmitigated by any restraint, statutory or otherwise. It totally negates the freedom of speech and expression. In Bridgn IIf. California, a contempt proceeding, common law was rdied upon in jUSlificarion of contempt powers. 13 It was pointed oUf [hat to assume that English common law in this field became theirs is to deny the generally accepted historial bdief mat 'one of the objects of rhe Revolution was to get rid of the English common law on liberty of speech and of the press.' As late as 1996, the Andhra Pradesh High CoUrt traced its ancestry to the period of George III of Great Britain when, under the Letters Patem dated 26 December 1818, a Supreme Court of Judicature at Madras was established. 14 The couns also claim that the power of the Chief Justice of a COlirt to allot cases to judges and to constitute benches flows Out of Section 108(2) of rhe Government of India Act, 1915, in the Government of India Act, 1935. which was We are now asked to read Section 108(2) of the Government of India Act, 1915, into Article 225 of the Constitution, though that article exhons the appropriate legislature to make Jaws in this regard under the provision of our Constitution. Thus. what was transitory was allowed to continue permanently for a full fifty years. 1If.

CAlifornia, 31-4 US 252, 62 Sup. Ct. 190.86 L Ed. 192

(1941), if. Freund, P.A., Sutherbnd, A.E.. Howe. M. de W., Brown, E.J., ConslilUri()fIJlJ LAw: usn aM Or,", ProbkmJ. BOSTon, TorontO: Lillie. Brown

and Company, 1954. p. 1373. Srinath d- On II. APSRTC d- Anr. 1996 (3), AlD 56 (F.B.).

Colonial Baggage J 29 We entered our tryst with destiny with this colonial bagga We still carry it. Our attitude has til our understanding and interpretation of the . to .c Cons(Jtunon. We transferred our sins and in,d equaoes . . me Consurunon and then put it in the dock for i.r C_,! urcs. ... fill

Pmonal LilMrty aft" Intkprndence I 31 I am proud J am being tried for creating enmity against the legally cons{I[ured Emperor o( British Indi2. All (r«dom lovers in (his COUntry and the leaders o( the fr«dom movement fro m its birth, like Nehru, Gandhi and such leaders, have tried [ 0 create enmity against the Emperor's Government. Mahatma Gandhi has been procttded against under Sc:ction 124·A IPC (or working tow:uds the same end. As a rc:sult of all rhis, His Majesty's Governmem and British India have cc:asc:d to exist today. Many of my colleagues who committed the same crime along with me have become Ministers There is some incongruity in bringing me to rnal at thiS time when on the face of it we have just achieved freedom. I am sorry that things should have come to such a pass. 2

4 Personal Liberty after Independence

Everything has

said alrc.ady; but as no one listens. we must

;always begin again. Andre Gidc'

Nehru described {he advent of 15 August 1947 as our 'tryst with destiny'. The Madru government rdc:as«! all its prisoners on that day, except A.K Gopalan. He was in solitary confinemem. He celebrated India's independence within the jail premises. Joined by some of his fellow prisoners. he walked the length of the jail carrying the national flag. Hoisting it on me roof of the third block, he addressed those gathered mere for four or five minutes. For his performance, he was produced before the ADM Calicut on a charge of sedition for stirring up the people against His Majesty the Emperor. Like Gandhi and Tilak, he too made a statemcnt before the court, but in independent India: IC[. Huntington Cairns. Philosophy jrom Plato to fhga, Baltimore: The Johns Hopkins Press, 1949, p. 55 1.

The governmenr was represenred by KP. Ramunni Menon. the magistrate and the public prosecutor, nothing appeared Incongruous. They were nor able to see any break Governance for them was a continuous process and the principles of governance set up by the British in India were seen as appropriate and rdevant for free India, The advent of Independence was JUSt an event which did not disturb continuity; it did not announce a change in the existing sociaJ order. However. A.K Gopalan was on October 12 1947. only to be re-arrested on December 17 and this tim; under a preventive detention law. When the Constitucion came into force, GopaJan continued in detention. If the Indian had remedied the wrong done to GopaJan, the legal profesSion would have been deprived of its first major precedem after Independence. It is our own, It is the first fore ign judgement. When Gopalan sent a petition from jail to the Supreme CoUrt, his detention was brought under the Preventive Detention Act, 1950, which came into force on 26 February In tlw Qllm of tk PtOpk: adras: ,sallgam Books, 1976, p. 168.

M lA..K.

Rnrlinutt"m,

32

I TM

Wllgn of Impunity

There was no debate about continued incarceration even after Independence; there was no reference to the freedom snuggle, which should instruct all such debates. The violation of Gopalan's was described as a restriction of his freedom of movement. This debate led to rhe question. in the case of preventive detention, whether a detainee can complain that his detemion is invalid as it violates Article 19. Chief Justice Kania said that Article 19 should be read as separate and complete. According to him. the Constitution authorises legislation on preventive detention in normal times, even as a permanent measure. Parliament's power to legislate and deprive personal liberty is very wide. The maximum period of detention was not fixed under the 1950 act. and when this was questioned as arbitrary, the answer was that if such a construction is correct, the couns can do nothing to the rigour .. . It is difficuh of upon any general principles to limit the legislative power by judicial By opting for thc apression 'procedure established by law' at the draft stage instead of a due process clause. the cOnstitution gave the legislature the final word in determining the law, said Kania. When this anicle was debated in the Constituent Assembly, A1ladi Krishnaswami Ayyar was at pains to point out the pitfalls in adopting the expression 'due process'. He briefly touched upon the abuses it could be subject to and apprehended that such a clause may be highjacked by vested interesu to obstruct all social wdfarc: legislation, which in any event happened. He fdt that it might prove fairly satisfactory if the judges of the Supreme especially in early st'ages, but moulded their interpretation to suil

Court in India did not follow

}GII,.",,,

II,

4CtljHllim

II.

SIII« D! MIIIirtu, AIR I?SO SC 88, SIIIU tI/MllarllJ, AIR 1950 SC 88.

Pmonal Libnty aft" Imkpmtknu I 33 Indian condidons and the progress and well-being of [he This was a plea for evolving our own jurisprudence. He fdt that three or five sining in a court pronouncing what ' due process' is all about cannot be more democratic than the will of the of the people. or an aecurive responsible to such representatives. Mosr of the members were, however, against the expression 'procedure established by law', Ambedkar did not rule out the possibility of a legislature getting packed with their supporters by the party in power; nor was he able to assert his confidence in the judges who formed the courts. He declared, 'It is rather a case where a man has to sail between Charybdis and Scylla: and abstained from endorsing any view, Since many members fdt that Article 21 hands a blank cheque to the aecurive, they introduced Article 15A (which is the present An:ide 22), which declared that nobody can be held in detention for more than hours without being produced before magistr.He. arrested has a right to know the grounds for his arrest and has a right to be repreunted by a of his choice.6 This is the first part of the anicle. The second pan: legitimises preventive by providing what was at that time thought of as a limitation on the of arrest. This limitation was by the court in Gopa/an, Says the court: interpreted as a There is no authoritative definition of the rerm ' Preventive Detention' in Indian law ... The object is not to punish a man for having done something but to intercept him before he docs it and to prevent him from doing it. No offence is proved, nor any charge formulated; and the: justification of such detention is 1B, Shiva Rao, TIN F,lImi"t D/I"dus umstitlltiD": A StuJy, New Delhi: Indian Institute or Public Adminimation, 1968. p. 237. 6B, Shiva Rae, 1«, at.

34

I

Wagn of Impunity

Pmonal Libmy aft" Intkpendmu I 35

suspicion or reasonable probability. and not criminal conviction which ca n only be w.mamed by legal cvidence ... 7

that an offence posi ng a threat to public order or to tht: security of the state is likely to be committed .

It is widely believed rhat the court upheld by a majoriry the prt:ventive detention law in its entirety. that is. Article 22 is a separatt: and self·contained code barring reference to other rights in the majority view of the bench in Gopalan's case. But this was disputed subsequencly in the Bank Nationalisation case.8 Set:rvai also atgut:s conclusively chat Justice Mahajan alone of all tht: judges in Gopainn held that Aniclt: 22 was a complete codt:.9 Yt:t, arbitrary power wearing tht: garb of a statute may satisfy the test of procedure t:stablished by law, and tht: Indian government. which has been in perpetual insurrection against ics own people, desi red rhat the courr should endorse its attempt to abrogate the minimal value system contained in the Constitution by incarcerating personal liberty and suspending political justice. Both the government and the court ignort:d rhe valut: of the principles of governance set out in Parr IV of the Constitution and thus liberated themselvt:s from the responsibility of being socially relevant. 10 Subclause 4(a) of Article 22 makes it obligatory, in the first instance, not to detain a person for more than thrtt months, and if such person is to be detained beyond this period, the maner has to go before a duly constituted 'GopalAn o. ,fM4dras. AIR 1950 SC 88. aR.C. Cool!" v. Union of indi4, AIR 1970 SC 564. 'H.M. Seervai, (AmrilMtiOM/ lAw of buli4: A Critil'ltl CommnJury, Volume 2, Bombay: N.M. T ri palhi. 1993, p. 974. IOPan IV of the Constitution oflndia is called 'DirectiY(: Principles ofSlale Policy'. The provisions contained in this pan , while nOi enforceable by any COlltl, ncvctlhelcu enjoin the 51ale to apply the principlc:t contained therein when making laws. Particularly relevant to the present argument il Article 38(1), which says. 'The St,lIe shall strive to promote Ihe welfare of the people by securing and protecting as effectively as it may a social order in which junice, social , «onomk and politial. shall inform all the institutions of the ShDrttr Constitrllion /}f Ind"4, national lire.' Refer Durga Das Basu, Thirteenth Editton, Nagpllr. Wadhwa, 2002.

advisory board fo r an opinion. Subclau.se 7(a) dispenses with the for : m advisory board when the nOirute authorising preventive detention stipulOites me circumstances under or the class or classes of cases in which a person is to be deramed beyond three months. Section 12 of the Preventive Detention Act. 1950, deriving its SOurce from Anicle 22. laid down that persons who according Subclause to the detammg aumority are acting or likely to act prejudicially (a) to me defence of Jndia, the relations of India with foreign powers ?r me .security of India, or (b) me .security of the state or pubbc order, can be detained for a period beyond three months and not btyond one year without reference to an advisory board. used indicate that this section applies only to political dissent. The terms 'defence of India', 'relations with foreign powers', and 'security of India' refer to field s of legislation exclusively of Parliament. Public order and security of state are fields of legislation in the concurrent list. A mere enumeration of these politi cally loaded expressions in the 1950 act may not comply with the requirements stipulated in Anide 22(7). The power under 22(7) is drastic; if should be treated as an exception. LegOiI grammar, in this instance, abrogated liberty. the endorsed as valid the incarceration of politica1 diSSidents Wlthour any accountability. The appreht:nsions t:xpressed by the members came true. Tekchand, for instanct:. described Articles 22 (4) to (7) as According to him . there was no wrint:n consritO(ion In rht: world which contained such provisions for the detention ofpe rsons Wit . hour enOl.! ·· ' Ifl . normaJ . • umes. . Mahavir T yagi pointed Out that tht: adoption of Article 15A would change the chapler on fundam ental rights into 'a penal code worse than Ihe D efence of India Rules of the o ld Government. 'II 118 SI · .

n .

llva , .... 0,

kK. Nt. Dr2ft Article 1SA is Article 22 of the Constitution.

--------__11____________________

3G

I

Pmonal Libmy afirr ""upmdmu I 37

Wagt)" of Impunity

It was reiterated that the Constituent Assembly was gathered there to ensure rights to the people, not ro denude them of their rightS. Despite this debate and the apprehensions expressed, soon after the Constitution came infO fo rce and almost immediately after the President was sworn in, the Preventive Detention (Extending the Duration) Order was promulgated [0 ensure the continuance of the public safery and public security measures enacted by the British Indian government. Four High CourtSPatna, Calcutta, Orissa and Hyderabad-where this order was made an issue. struck it down as invalid. 12 Immediately thtreafter, the Preventive Detention Acc, 1950, was brought into existence. Like the British, politicians and political parties in independent India continued to define governance in terms of powtr. But there was one judge in the history of the Supreme Court who understood the Constitution in terms of the people and thei r struggles. Construing the same provision, namely Article 22(7), with specific reference to whether the direction contained therein, that Parliament by law may fix the maximum period of detention, Justice Vivian Bose said: Brush aside for a momelH the pettifogging of the law forget for the nonce (sic) all the learned disputations about this that, 'and' or 'or', or ' may' & ' must'. Look past the mere verbiage of the words & penemue deep into me heart & spirit of the Constitution. What SOrl of State are we intended to be? Have we nm here bc:en given a way of life, the right to individual llBrllhmeshUNIr PrmhaJ II. TIN Stair of Bihar, AJR 1950 P1ot. 265:51. Cr. L). 1081 d(:daring Bihar Maintenance of Public Ordcr, Act 3 of 1950 void. Sunil KUmPr &u II. 71x Wrst &n&(/I COlln71mmt, AI R 1950 Cal. 274:51 Cr. L.j. 1110; 54: C.W.N. 394 (S. B.) dc:claring Bengal Criminal Law Amendment ACI, 1930 and WCSt Beng101 5«:urity Ordi nance, 1949 void. PnihalAJ Jmll II. Sf,ltt, AIR 1950 Ori. 157, ILR (1950); CUI. 222: 1951 Cr. LJ. 1189 (f=.B.) Jccluing Orissa Mainten10ncc of Public Order, Act 4 of 1948 void. SlwwlraNI"",;1I1l &fum II. St(/te of flytkrlliHuJ, AIR 1950 Hydcrabad 20(F.B.) dcclarlllg Hyderab10d Public Safety and Public Imcrcsi Rcgubtion VIII(8 1) of 1358 void. Sec: fo r cnmple. V. Swaroop. LAw of l'rnxntll/e Dnnt/IOff, DLT Publiatioru, 1990, p. 17.

freedom, me utmO$( the State can confer in that rCSp«t consistent with its own Is nOI the sanctity of the individual recognised empha5isc:d again &. Is not our Constitution in violent contrast to those of States where the Stilte is everythi ng the individual but a slave or a serf to serve the wiiJ of those who for the time being wield almost absolute power? I have no doubts on mis score. U H e was all along aware that he was dealing with the case of a communise, and found it ironicaJ mat he should uphold me freedoms of a class of persons who. 'if rumour is to accredited and if the list of their activities furnished to us is a true guide. would me first to destroy them if they but had the power.' The one test of in principles is to apply it to cases with which you have no sympathy at all. Bose's attitude to personal liberty was rdTeshingiy wholesome and courageous. He alone of all the judges present and past understood the Constitution in terms of the people, [heir muggles, and the necessity of ensuring the rights secured by them in the COurse of [heir muggJes: I cannot bring myself to believe thai the fr.tmers of ou r Constitution intended that the liberties guar.tnreed should be illusory or that they could be toyed with by this person or that. They did not bestow on the people of India II cold. lifeless, inert mass of malleable clay but created a living organism, breathed life into it & endowed it with purpose & vigour so rnllr it should grow hCl.!mily & sturdily in the democratic way of life, which is the free way. In the circumstances. I prefer [0 decide in favour of the freedom of the subject. I am not hampered here by considerations of war necessity or emergency legislaTion where some authorities hold that the canons of construction are different & that allowance must be in favour of the State for imperfections of language used In legislation which had to be drafted enacted in a desperate hurry with the St;1te in dire & immediate peril. I am construing a Constitution which was hammered out solemnly deliberately after the most mature consideration &. wilh the most anxious

'ls. KnshNl1l ti-O".

II.

SlateDfMaJras, AIR (38) 195 1 SC 30 1.

38

I

Wagt:r of Impunity

cart! ... Aftt!r all, who the Constitution & for whose bt!ndil was it madd - not just for those in brief authority. not only for lawyers & dialecticians but for the common of India. It should. therefore. be construed, when that can be dont! without doing violence to the language employed , in a simple. straightforward way so that it makt!s sense (Q the man in the strttt, so that the common people of the land can follow & understand its meaning. To my mind, the whole concept of the Constitution is that after years of bitter struggle tht! citizens of India are assured Ihat certain liberties shall be guaralllttd to them & mesc liberties annot be curtailed beyond limits which they & all the world an know & which can only bt! fixed by the highest authority in the land, Parliament itsclf, directly & specifically after affording opportunity for due delibt!ration in that augusl body. t-i To the man in the srreet the niceties oflaw and grammar have no relevance, he said. Spc=aking against the majority view that Parliament need not specify the maximum duration of detention, he pointed OUt that the Conniturion as interpreted tells the people: Though we authorise Parliamelll [0 prescribe a maximum limit of detention if it so chooses. we plact! no compulsion on it to do so & we authorise it to pass legislation which will empower any person or authority Parliament chooses to name, right down to a police constable, to arrest you & detain you as long as he pleases, for me duradon of his life if he wantS, SO that you may linger & rot in jail till you die. as did men in tht! Bastille. 15 Fifty years larer, this remains a comprehensive: criticism of preventive: detention from the angle of the people. Bose alone understood that words were mere symbols and indeed a gloss, and that the prolonged snuggle for independence should form the key co understanding the Constitution and the laws affecting freedom. Therefore. he declared, it is righrs that are fundamenral and nor the limitations on freedom. The approach of the 14S. Krishnlln 6 0". II. SI4U of Maras, AIR (38) 1951 SC 301. 15S. Krishmm II. S",U 0/ Maar.J, AlR 1951 SC 301.

Pn'JonaJ Libury after Intkpmtknce I 39 majority in this case stems from the assumption that the administration should be adversarial to the people. that freedoms are granted and therefore subject to withdrawal, which would also imply curtailment. If one looks at the Preamble to the Constitution, this is made quite dear: We, the people of India, having solemnly resolved 10 constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all ilS cilizens: Justice, social, economic and politial; Liberty of thought, v.:prcssion, belief, faith and worship; Equality of starus and of opportunity; and to promote among them all Fraternity, assuring the dignity of the individual and the unity and integrity of me Nation; The words 'to secure' could not have been used in the sense 'to obtain'. They can onJy mean that we were going to constitute a sure in which our concepts of justice, equality and liberty, for which we had waged a struggle, would remain secu re. They would be protected and safeguarded. Is such a legislation on rhe statute books in tune with the constitutional value system, and more particularly the statement in the Directives that political justice should inform all the institutions of the state? When the matter was brought before the Supreme Court by GopaJan. the detention act was a temporary measure, for one year only, initially. After the Supreme Coun upheld its validity, there has not been a debate at the and the act was renewed quite mechanically fot almost nineteen years. One does not need to be in Parliament to oppose such measures. One can oppose them by mobilising public opinion to bring pressure on the state. TIle courtS never recognised the political content of liberty in their discourse while adjudicating the validity of the re:straim.s to be imposed on personal libcrry. The Preamble: and every expression used there, the rights enume:rated in Part III , and the fundamental obligations, are primarily politica..l concepts. The

40

I TIN

Wage! of Impunity

failure (0 recognise this has led the courtS (Q embark on puerile disquisitions and debates on consriwtional questions, ignoring the transformarive use of Ihe words and expressions in the Preamble, the Fundamental Rights. and the Dirc:ctives. Progress rowards the very minimal programmes out in the Directives has been obstructed. For over a decade and a half Ihe Directives were not assigned any interpretive role, and Ihe principles of governance set our therein were not perceived as having a rransformarive role. Absent this perception, every issue raised. every dissent and every polidcal movement was lookc:d upon as a law and order or public order problem, md dealt with accordingly. Every democratic protest and dissent was driven underground. As a result, even the long tenure of the Preventive Detention Act, 1950. was found inadequate when the Indo.China war broke OUI on 8 September 1962. The President issued a proclamation under Article 352 of the ConStiturion declaring a Slate of emergency on aCCount of external aggression. 16 On rhe same day, the Defence of India Ordinance came into existence. On November 3, 1962, the President notified under Article 359(1) the suspension of righu under Articles 21 and 22 of the Constitution, namely rhe right to life and personal liberty, and protection against arbitrary arrest and detention. Article 19, which gives citizens the right (Q free Speedl and expression and rhe freedom of assembly and association, stood suspended. On November 11. Article 14. the right to equality was suspended. These rights form the sheet anchor of Part III of the Constitution of India and their 16Adcle 352 of ,he Consti'Ulion dc:lls wi,h emergency provisions: 'If the President is satisfied that grave emergency cxim whereby the .k:eurity of Indi:l or of p;m of the territory thereof is threatened, whelhcr by war or extern:ll :lggrwion or armed rebellion, he may. by proclamation. nlake a dt'Cbr.uion !O thai effca.' For later amendments to this article and analysis refer D.O. Buu, TIN Shim" (Anst;tut;on of/MiA, Thinecmh Edition, Nagpur: Wadhw:;, 2002, pp. 1581-88.

Personal

afin- bukpmtknu I 41

suspension was in reality a declaration rhar the rule of law had been disbanded, The Supreme Court, by declaring mat a challenge to the prevtntive dc;tention law can only be on the grounds of a violation of Arlicle 22 and not on any other grounds, authorised restraint and forfeiture of liberty without invoking emergency powers. Despite this, a state of emergency was declared and communists were arrested on a large scale. They again approached the court, complaining that their detention under the Dc:fence of India Act, 1963, and other rules was in contravention of Anicles 14,21 and 22.17 Liberty was once again outlawed. The judges hdd that a citizen's right to challenge the validity of a law accrued to him or her on account of the Constitution and the Fundamental Rights, which fortunately were included in the Constitution. This reasoning is somewhat unhisrorica.l , A constitution is a political document which gives legal content to a set of pre· existing rights, secured politically by peoples' muggles. Rights have always been acquired, never gramed. Freedom was acquired by the people from the British and not granted to w by Ihe Indian Independence Act of 1947. There was no effort made to redefine concepts in rune with the constitutional value system, and so we find the courts falling back on the colonial response to similar situations, whether the British were ruling w or their own country. Thus we find the coun saying in Malthan Singh: The right to challenge the validity of a sta(U(e on the ground that it conrr.;r,vena the fundamenl21 righu of the citizens has accrued to the citizens of Ihis country only aftcr and as a result of the provisions of the Constitution i(JeJf... !8

It fo llows that if the fundamental rights are suspended, or If the values written into the Constitution are abrogated. no t7Mnkhtm Si"th Ttmiklra "Makhan Sinth Tanilt/ra

II. II.

Statto/Punjab. AIR 1%4 SC 381. Statr 0/ Pun}4b. AIR 1%4 SC 381.

• 42

I TIN

Pn'JOnal Libmy aft" Irukpmtknu I 43

Wagt:r of Impunity

complaint can be made. the Constirution which gave us these rights , haJ ceased [0 opcratc:. 19 So far as personal libt:rty is concerned, the courtS validated c:x(:cutivc: unlawfulness. despite (he injunction in Article 13(2). which reads: The State shall not make any law which takes away or abridges the rights conferred by this Pan and any law made in contravention of this c1ausc shall. to the extent of this contravention, be void. Obviously rdying on this provISIon, Shamrao Vishnu Parulekar, arguing his own that court may not have the authority by virtue of a declaration of and the consequent presidential order to order his rdease. but this need not prevent it from declaring that the detentions made were illegal. 2o The unqualified and unreservedly mandatory char.lcrer of Article 13(2) did not make any difference to the COUrt. It went on to say,

Ir appeared that as regards the validity of the impugned provisions of the Acl and the Rules, he (the Attorney General) was not in a position to challenge the contention of the appellants that the Act conrravened Articles 14,21, and 22(4), (5) and (7). Even so, he (the Anorney General) strongly pressed before us his original contention mat we would not reach the l'Our neighbour PaJcinan arrived al Ihis vacuous legality a yean The coup staged by Mohammed Ayub Khan was questioned in Ihe Supreme Coun of ,hal country. The coun examined Ihe issue before it 'in the light of the juristic principles which determine the validity or otherwise of l.aw creating organs of ,he stolle: The coun examined the characters of coups and revolutions. and concluded that me expressions were interchangeable. the form of weial change and {he mOlive for it being irrelevant. The court then upheld the validity of conStitutional change through a coup or a revolulion. When the court wu uhimately confronted with the option of choosing between a coup and 'chaol'. the coun invariably ended by supporting the coup and (he exining soci",1 order. That ii, the role of the COUrt at Ihe time of a coup or (he emergence of authoritarian rule was ordained by il$ earlier role. MUd""" S"'th TaniJtu JI. Stllk of flIl"jIlb, AIR 1964 SC 381.

stage of our opinion on the validity of me Act if we were to uphold the prdiminary objection that the applications made by the: detcnues were incompetent. 21

The court upheld the preliminary objection, as according to the majority. that was the only the court could logically and with propriety adopt. Perhaps this rule of procedure was originally conceived as a Stcp towards reducing arbitrariness and eliminating whimsicality and capria in the dc:cision.making process. Bur it has been slowly subvc:rted in its usage (0 supersede constitutional righrs and to liberate the executive from limitations imposed by Constitution. This became normal practice and also logical. For Justice: Subba Rao, the dissenter, majority view appeared abnormal. He rightly pointed out:

I cannot for a moment attribute to the august body, the Parliament, the intention to make solemnly void laws. It may have made the presc:m impugned Act bonll filk. thinking that it is sanctioned by the provisions of the Constitution. Wh:illever it may be, the result is we have now a void Act on the statute book, and under that Act the appellants before us have been detained illegally ... The tendency to ignore the rule of law is conragious, and, if our Parliament, which unwittingly made a void law, not only allows it to remain on the statute book, but also permits it to be administered by the executive, the contagion may spread to the people, and the habit of lawlessness, like other habits, dies hard. 22 The licence granted to state lawlessness was disturbing. Appearing for the appdlants, Sctalvad expressed the apprehension that legicimising this lawlessness might lead to abuse of power by the executive. an abuse against which the citizens may not any remedy. The contention for the majority of the learned Judges appeared [Q be a political question and its impact on constitutional questions was, according to chern, at best indirect:

21MaJtha" Si"fh T,miJtu 22M"Jt""" Si"th T"niUIl

JI. JI.

Stllk of PII"jIlb, AIR 1964 SC 381. StAk of flIlnjllb, AIR 1964 SC 381.

Pmo1lnl Libmy nlur I"d'pmdmce I 45

44 I The Wagt'S of Impunity In a in

be found in the publ ic opinion.2.l

to

of

safeguard against abuse of or in is ultimatdy vigilant and vocal

Having said this, they discharged themselves from (he responsibility of bdng an enlightened, vigilant and vocal institution set up to ensure that the rule of law and democracy informs all the activities of the state as weU as society. The members of the constituent assembly were not quite clear as to what role the Directives should be assigned, as they were declared not enforceable by the courtS. Ambedkar alone felt that the Directives provided the minimum political programme for political parties competing for power, and added prophetically that the importance of these Directives would be realised in the evelH of a 'take over' by the right. These are in reality indispensable principles of governance around which administrative law ought to have been structured. This part of the Constitution never played its role and therefore, as early as the 1970s. justice in all its enumerated facets was non-existent. While the coun validated the policy of restraint on personal liberty. it took on the tole of an advt:rsary when the government tried to disarm the strong, as if to confirm what Anatole France said: 'Justice is the means by which established injustices are sanctioned.'24 Immediately after the country secured independence, rhe government headed by the Congress wanted to dismantle rural India's feudal structure. Accordingly, several sta[es enacted laws abolishing the zamindari system and the subfeudal Structures which the former gave rise to. The Patna High Court. however, struck down the state legislation. Before the maner was taken to {he Supreme Coun. the First Constitutional Amendmenr Acr. 1951 , was brought into force. This introduced Articles 31A and 3 1B, which grant immunity to any state legislation passed for the acquisition of any estate or any fights 1)MaldulrI SinKh TnniUa II. Stak Df Punjab. AIR 1964 SC 381. z4An:uole France, Crninquebiltt.

in such estate or. which extinguishes or modifies any such right, from any attack m couns on the grounds of violating Articles 14. 19 and 31. Article 31B, read with the Ninth Schedule. was unequivocal in its intention: namely. no act included in the Ninth Schedule can be invalidated on the ground that the law or any of its provisions are violative of any of the nmdamental rights. The used is of a much wider sweep than the emergency proVISIons, which suspended only some of dlC fundamental rights. Ardde 31B negates Article 13(2) of the Constitution, which declares as invalid aU laws passed in contravention of the nmdamental righu chaprer. Despite this sweep in language, Court, in Singh, the provisions of the legislation, norwlthstandmg the FIrSt Constitutional Amendment Act of 1951." Any attempt at restructuring the social order was stalled continuously from the beginning. Stannes were questioned and amendments [0 the were brought into force, and even these were questioned. By the rime we cmer the seco nd decade of the Constitution, we find increasing signs of a system of governance, for example the blocking of even mmlmal reform measures imroduced by the government without which the country could not be peacefully governed. the words of Justice Hidayatullah in Goilllt Nath: I am mal be pracnsed against orner lead to larger inroads .. .26

of the right to prolXrry may Righr.s ... Smail inroads

realisation came Gnly when the right to property was put In Issue. The Supreme Court waxed eloquenr about democracy and the rule of law in the privy purses case. 27 While the right ::Stale fJf Bihar II. KamnhUNlr SinKh, AIR 1952 SC 252. GfJlak Nath II. Stale fJfPu njab. AIR 1%7 SC 1643. J1H.H. Maha RAja ai RAja Madhava Rao jilillji Rao II UnifJn Dr Inaill,

1971 (3) SCR 9.

.

'J

46

I Tht

Wagt'! of Impunity

property was registering victories in the courtS, restraints on personal liberty had the approval of the couru. Jawaharlal Nehru dic:d in May 1964. Political leadership of the Congress party became problematic. Lal Bahadur Shastri, a compromise candidate. was chosen for a brief period of 19 months before he died in office in January 1966, Senior Congress leaders from the states. known as the Syndicate, presided over the sdeaion of the next prime minister. Their choice fell on Nehru's daughter, Indira Gandhi, overlooking the mong comender Morarji Desai. In dections hdd within me parliamemary party, Dc:sai was resoundingly defeated. Thus began a period of de·institu[ionalisation. Congress politics. equated with national politics from the British period, cominued to remain so even after independence. When Nehru talked of India's 'trySt with destiny'. he perhaps mc:ant his parry's tryst. 28 Indira Gandhi was elected the leader of the parry. On 15 December 1966, Parliament passed the Preventive Detention (Continuance) Act, 1966. extending the life of the act up [0 31 December 1969. In February 1967. the Congress, which had ruled there all along, lost elections in five states and itS governments were toppled in three others following defections. Despite these major reverses, Indira Gandhi consolidated her position within the parry by driving our the Syndicate. This struggle for power was given me gloss of an ideological banle against reactionary forces, and the faction led by Indira Gandhi was dc:scribed as progressive. The alliance with the Soviet Union provided a revolutionary edge to her populist rhetoric. Since it might have been politically disastrous for the Congress to continue implementing rhe preventive detemion law legislated by Parliament after losing power in eight scares, iu govemment invited the views of the state governments. The central governmem was of the view that an extension of twO years would suffice. All the stoue governments were in favour of extending 10

2·Morris.Jona qUOtes him :u saying in 1953: '1111: COUntry is Congress :.lnd the Congress is the coulllry:

I 47

Pmonal Libtny aft"

the act for a further period of three years, This included the left.wing governments of Wesl Bengal and Kerala. 29 The central government later dropped the idea of continuing the act, as it was felt that the Unlawful Activities Prevention Act, 1967. could effectivdy take irs place. Bur the COUntry was nor free from preventive detention laws. After the dectoral defeats of 1967. several states were instructed by the central government to pass their own preventive detention laws. To name a few, Rajasthan, Madhya Pradesh , Maharashtra, Andhra Pradesh and Wen Bengal had preventive detention ae(S passed in the year 1970, So far as the nates of WC:St Bengal and Andhra the ideological turmoil within thc: commUnist parnes In power there ultimately led to the emergencc: of the Naxalbari movemenr, which brought OntO the the of armc:d revolution as the only answer to Jncreasmg exploitation and a corrupt social order. In response to the Naxalite movement, the state structure underwent a fascist transformation while at the same time mainraining a fac;ade of by law. Thus we had thc: brutal practice of extra.judicial killings of the movement's acrivis(S, These two states also thc: legal structure by invoking the conspiracy chargc: to ropc: m a,s pc:ople as possible. Their preventivc: dc:tention were III rc:all(Y used for punitive dC:[eIltion, Short arrest penods became continuous when rhc: courts validated repeated rc:·arresrs of the detainc:a. Thc: of a governmc:nt depc:nds on the provision of «onomlc more speci6caJly on distributive justice. But if these are defiCient or progressively diminishing in quantity and the will organise to secure for themselves the tight to life and livdihood by exercising their constitutional right free speech, assembly and association. Failure of governance eads to questioning the ways of the government, which if

:0

." I aomt mpolfOI'J Expose Themselvcs', Edilarial Libnlltio" III. 2 Dtttmber 1%9; rqlriOlcd in Suniri Kumar Ghosh N 1:' 1'· ' . ' Po",r. A L 'bn; , .. IN u",,,,t ' , IltlO" AtllhtlkJry, Vol. II, c:'lc\U[a' 5 K Ghosh pp. 197- 19 The right tO ,keep, and bear arms was also included in the rightS enumerated 111 thiS report. declarations were made in the context of continuing repression by the British, As the freedom struggle was drawing to a close, the Constituent Assembly was busy using the experience of this JUUggle in shaping a constitution for the country. The chapter on fundam ental rights. the setting down of the objectivcs in the Preamble. and me enumeration of non-justiciable rightS in the of fundamental obligations are the result of our experiences the Struggle. The RightS and the Directive PrinCiples were designed as instruments to bring about tociaI and the judiciary was assigned the special role of funcuonmg as the arm of a social revolution. Fundamental rights are political in nature and their free exercise ought to be ensured by the courts. While the Directive Principles are non-j usticiable, they are politically enforceable nm if not .necessarily through the electoral process. We are 10 .me Universal Dedaration of Human Rights. Most of the uudes in the international covenants on economic social cultunl > >, d , • • • CIVI an po irica.1 rights have their equivalents in one or, other of the Fundamental Rights and the Directive PrinCiples in [he Indian Constirution . There was nothing lberefore that prevented the government from giving effect to for the government is under an obligation under Article to respect for international law and treaty "-'5.. In the deal ings of organised peoples with one another.

.1}:': . viol

is no dearth of legal provisions to check human rights allons. Rather, we have the unwillingness of successive ::rn mems to PUt an end to inhuman and brutal forms of state The government. having failed to perform itS CIOat I .ental obligations even after four decades. has no right to p am or be surprised when people organise themselves to

1261 The Wagt'! of Impunity

compel it to perform its duties. There inheres in the people the right to even overthrow me government in the process. The seni ng up of a human rights comm ission will not humanise the state agencies. A political system which guards and supervises an exploitative order cannot survive without preventive detention laws, laws co contain terrorism, and other such laws. A system which tOtally sen aside all hitherto accepted notions of criminal jurisprudence and allows its police force to lcill and maim people by corture. to rape women and unleash brutalities on the people, is not going to call off these operations and submit delinquents in the police establishment or the army to enquiry by a human rights commission. Viewed from this angle. it appears pointless (0 try and persuade such governments to be more humane in the means they employ in tackling political (urbuJence. In fact, public pressure may drive these governments to find dther devices to silence criticism withour in any manner reducing the violence mey employ. However. it looks as though Amnesty International's report on custodial deaths has finally succeeded in driving the government to search for other means that wouJd be less susceptible to criticism and maybe even more effective for oppressing people. Most of our human rights violations, translated into the language of the Penal Code. wouJd be murder. rape. grievous hurt, and other offences rdating to the human body. These crimes are committed by the armed forces (the army). paramilitary forces and the police in the course of both routine and other operations connected with maintaining law and order and ensuring the security of the state. However, no laws authorise the stare [0 commit any of these crimes. They cannot be claimed as acts done in the exercise or purported exercise of one's duries. To lcill, maim, rape: or otherwise physically harm people is no part of the duty of either me police or the army. The underlying presumption and justification for the use of violence by these forces is sd f·defense. Bur the legal presumption is otherwise. In a plea of self-defense the offence is presumed. All these crimes are also violations of Articles 21 and 22(1). Yer they are not seen as crimes, nor are mey debated as crimes. Thus.

Why a Human Right! Commwion? I 127

crimes committed by public Krw.nts are accorded a status which puu them beyond the reach of citizens and the ordinary legal processes. The immunity granced (0 authority needs to be dismantled. but the setting up of a human rights comm ission may nor be the answer. Their crimes may be euphemistically called human righu violations, but mey are not stray aas of violence by the=: abc=rrant among the armed forces or the police. The methods wed in apprehending persons or torturing mem are the same. whemc:r in the west or the mird world. In Australia, for example, evidence has been tendered before a Royal Commission enquiring into the=: deaths of aboriginal people in police custody showing that in most cases they are suicides. This is so familiar! These methods are used invariably against the poor and the deprived. If the policy of the government is to contain political aad proteSt movemems by force , then inarticulate premises will be deterrence. If a policy of deterrence is [0 be used against a political movement. a whole community will have to be punished, for deterrence is at once ptlnitive and pre·emptive. The government obviously does nOt propose: to give up its pRlent policy. That means the·proposal to set up a human rights commission is one of those: familiar political sleigh t-of.hand devices. like the appointment of commissions under the ineffective and overworked Commissions of Inqui ry Act, 1952. A human rights commission cannot resolve political crises. Until tbcsc: are resolved, violence ·by the state is bound to continue. The proposal needs to be examined from yet another angle. not entrust the coons with the taSk of protecting human righu? &eing the condition in which the courts are today. many of us may vote for a human rights commission having a COnstit.utional basis. Before we cast our vote. it may be necessary 10 tn>lew the history and the habits of the state. When we the institutions of justice as places where justice could Obta.lOed, there was a live connection with the people. But tax evaders. smuggJers and such others hijacked the :.':ItUtio ns, and when the institutions gave priority to the POsal of cases, the people became largely irrelevant. Insistence

J 28

I

Wagt'S of Impunity

on form has takl!n over and till! proc«:dings havl! a caric:uure of the substantive purpose which was originally the major premise. Henceforth, ritual in the form of and rules has become an obStacle. Procedure, instl!ad of acting as a chl!ck on arbitrariness, operates as an impediml!nt to adjudication and rdief. T his state of affairs is a crl!ation of populist politics, which have hl!ighrenl!d tl!nsions between an independent judiciary and the parry in power. Jefferson complained that the fl!denl ists. by fmudulen! tm of thl! constitution, wh ich has made judges irremovable, have muhiplied useless judges merely (0 snengchen thdr phalanx. That is how ir startl!d. Such pracricl!s havl! thl!ir own inl!xorabll! logic. First you pack the judiciary with your men. Latl!r you just do not carl! who is in it. Thl!reaft:l!r. it becomes a for manipulators. Thus, al l institutions up (0 protect rights of citizens, to state's arbitrariness and to democratic processes are manned by persons who are ml!re statuNeekers and office·holders. There arc those who pracllet: straightforward compliancl! with norms, whether thoughtless or fearful. Thl!}' lack the imagination or thl! courage evl!n to consider deviance. Needless to say, thl!}' arc not the sruff from which me citiz.ens of a free sociery arc made. They leave norms without meaning and drain the lifeblood of instirutions ... Norms are sepamted. from insritU[ions, and the world mat eml!rges from such a course combines formal compliance with a profound deprecation of all things socia!.' Thw. while weakening thl! courts from within, thl! executivl! kept shearing rhe power and jurisdiction rhe high courts had when thl! Constitution came into force by transferring certain defined functions. T he tribu nals set up under Arricles 323A and 371 D are service tribunals. Article 3238 p rovides for the setting 'Ralph Dahrendorf, kK. (it., pp. 151-152.

Why a Human Rights Commission? I J 29 u of tax tribunals, fo reign exchange and CUStom tribunals, land :fortn and ceiling on urban p roperry tribunals, indwtri31 and labour tribunals, etc. Once these tribu nals came into exiuence, ,he couns' jurisdiction over these matters, including that of the high couers. is ousted. Only the jurisdiction of the Supreme Court under Article 136 is preserved. The jurisdiction of the high cou rts is getting increasingly confined to rhe private sphere of social life. The tribunals Sl!t up under these provisions are run by retired civil servants and judicial officers. The chairman has to bl! a former high court judge. His agl! of retitl!mem is 65 years and that of the rest is 62 years. O ne has to examine how the tribunals are chosen to rl!alise how we have trivialised all values and lYJfems. We fi nd judges manoc::uvl!ring to be chairmen of uibunals as they app roach recirement. District judges too compete for secure positions on the tribunals after retirement. as do civil servants and police: officers. Nobody knows how the Jelea.ions are made. T he government is thl! appointing authority, There is no procedure prescribed to ensure, if not excellence, at least competence. There is nothing to ensure the tribunals' inckpc=ndence. The Staffing policy, as revealed by the rl!spective Itatutl!S and p ractices, ensu rl! subord ination of {he tribun als to cbe executive, and so the transfer of powers hitherto enjoyed by the: high courts to these tribunals is bound (0 be ineffective. Anides 323A and 323B havl! marginalised the role of th e high and also m ade justice inaccessible. Orders passed by lribunals set up undl!r these articles can only be appealed to thl! Suprt:ml! CoUrt. Public servants and the working class will be the worst hit if the .p.roposed Indusu ial Relations Bill goes through. The in troduced by the 42nd Amendment were not by the 45th Amendment for want of a majority in the RaJY;l Sabha. T he Terrorist and D isruptive Activities
J'

Gran/ing

to

MisUJe Frmlbm

I 151

Unplement this ideology. Though this cou ntry belongs to Hindus, Rama and Krishna are insulted. The result of these elections will not dept'nd on the wlution [0 me problem of food, cloth, but the same will decide whether in the State the flam e of Hindutva will grow or will be eJ:tinguishai. If in Maharashtra the (lame of Hinduism is eJ:linguished, then anti-national Muslims will be powerful and mey will convert H indust'an into Pakistan. In the flame of Hindutva .. . the anti-national Muslims will be reduced to .llha. Ra.jiv Gandhi speaking on Hindutva is like a prostitute lecturing on fideliry ... His wife is a Christian, mother Hindu, F.uher a Parsi and merefore himself without any (H indu) culture/tdching.27

Although there is a conflation of Hinduism with Hindurva, with penics and judges taking convenient recourse to Hind uism in

die abstract as the carrier of true meaning, the extracts given by . . dection petitioner leave no one in doubt that Sal Thackeray ... his I were no r expounding Hindu philosophy in its dimension. The passages put on record clearly tha[ what was being expounded was vulga r Hindu and an anti-minority diatribe. Yet (he judgment Sal Thackeray as a H indu saint; naming him for practices did not alter the character of the judgment. the consequence was unintended, but nonetheless it is a lDlOq'' '",c< we will have to live with and suffer for. ... Tback...y and the law

jllJhi v. Nili" Bhaurao Pali' (1996) I sec 189. ' . 23 mmlnton was :l.ppoimed on 2S, 1993 and Kf:l.ppcd o n 1996. It was re-csu.blished on May 28. 1996 and submitted a oo;""""cbr uary 16, 1998 based o n public hearings in whieh it examined The reporr was tabled six months later in Augun 1998.

. -1"'1& Co

\52

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Wages of Impunity

However, indicting Sal Thackeray spells trouble. The state government asked for a three thousand-strong police force from {he centre, a demand the lattc.t pleaded unable to m«t . Instead signals went out from all sides that {he state would be held ransom and that the NDA government at the centre would collapse if the Shiv Sena withdrew its support. For people to continue their fotith in political processes and in the Constitution, governance cannot merely be a circus of balancing the political forces operating the system. It is time to pause and reflect on our colonial legacy that distances governance from the people and their aspirations. The abuse of electoral processes almost to the breaking point, both by individuals (tyranny) and by groups (gangster 'democracy'), is now commonplace. In such a system one would be hesitant to prosecute a crime when the offender is a political colleague or ally. Let us not forget that rhe carnage led by Bal Thackeray was the aftermath of the Rath Yarra and Ayodhya. The crimes for which dlese persons stood indicted were not JUSt crimes as defined by the Indian Penal Code. Attacking a targeted group, whether religious or political, cannot be e:quatc:d to individual crimes. A group plans and attacks a rarge:ted communi£), at various places and in diffe:renr localities. The simultaneity of these occurrences convinces us that these are not unconnc.ctecl offences committed by offe:nde:rs unconnected to each other. Macaulay's penal code: describes these: offences inadequately, and is the:refore: totally ine:ffe:ctive. Subsequent amendments did not anticipate the: chilling precision with which such crimes would be planne:d and executed. Thc:sc: colle:ctive crimc:s have Ie:d to the (Oral collapse: of the sysre:m and all its institutions. . A ne:w ame:ndme:nt or the enactme:nt of a new penal code IS nor always necc:ssaty. What is ne:eded is a redefinition of provisions, bringing them in line with recent trends .In ch criminaliry. Offences seldom change, only the manner in wlu they are commined changes_ And while this may have relevance for the imposition of punishment, it does not make the offence new. Take the definicion of terrorism, for instance. Before II communal riot take:s place, reportS of stray violent inodcn's

10

MiJuu Freedom

I 153

crvenWCS 2. vast section of the people, bringing them within the: I.-.Cpition CIC"

of•a terrorist act. But when entire comm unltu:s . . I'Ive in tC'TTor, thiS state of fear is .often 1 . . intended ' no' mereya consequence:. Th e 1egal. definition IS panisan. Knives and ketOSC ne are not terrOriSt we:apons; the Rath Yatra which passions became a major factor in the polmcs, but country s • . f . these did not entail the pcrmanc:nt anrrocluctJon 0 antJ-te:rrorist laws. Meanwhil th e La Commission vie:ws the Coimbatore bomb blasts a si nal growth of terrorism. g A secular approach is indispensable to the formuladon of pc:naIlaw, for it is always penal law and the criminal justice !:il--- . that serves as an index of the nature and ch aracter 0 f OU f r,-ry.. A. examination of existing law by the Law mlgh.t have: pointed to the possibility of enhancing jlunishme:nts for by Sections 153A and 153B of the Code, slOce they contain the rudiments of 'genocide' by the Convention, and can be read : ro crimes that come under the de" 29 ellnJUon 0 f

:r

me

raw

Commission found that while me imme:diate me: communal riots-a spontaneous outburst-was the lam of the Sabri Masjid, the riots that then rook place b anuary 1993 were organised by the Shiv Sena and '-mur the speeches of its leaders and the:ir writings in ne:wspapers like Samna and Navalta/. The Jodu y,lon named Bal Thackeray, Sirpotdar and Manohar we: look at the findings of the commission as a; t, hold that the crimes committed by the persons ....., a the that left a thousand people ousand IIlJured, another thousand homeless and ......;. worth four thousand crore rupees. is a of human rights to say the indictment is w_e_n_,_he riots that took place were a systematic,

...... r:

I:::-___

addj" OLUan 0 r genocide, sec Chapler 16.

154

I Tht

GrRnting tht Frttdom to MisuSt FrttdDm

WRgn of ImpunilJ

pre.planned and concerted attack on specific groups of peoplt and a challenge to the system as a whole. There has never betn a limitation for initiating a prosecution for capital crimes, or fo r crimes against a targeted group. racial. religious. ethnic Or otherwise. The punishment provided under the law may not he deterrent. but the prosecution of persons like Bal Thackeray, who have always believed that they are above the law and art armed with rremendous proclivities to unleash disorder, would certainly have a deterrent effect. Mandal. Masjid.Mandir: 6 December 1992 The destruction of the Sabri Masjid, the construction of a Ram temple in Ayodhya and the Mandal Comm ission's report raise yet again the issue of equality. Was the opposition to reservations and the insistence in erecting a mandir in place o f a masjid at Ayodhya conStitutional? By undertaking the Rl.th Yarra. by repeated declarations of the intention to rebuild a temple at the location of the mosque, and by linking these with an assertion that secularism has only meant appeasing the minorities, the laner. who number 110 million , arc informed that this country is no longer their home and that their continued stay in it can never be on the basis of rhe guarantf!d: extended to them by the Constitution. This is the stand taken by a political party whose elected members have sworn to uphold the Constitution. It is in this context that the destrUCtion of that ' dilapidated structure' assumes importance. It symbolises the right to survival of the Muslim minority in particular, and other minorities in general. The destruction of the Babri Masjid marked the beginning of a very ugly [rend in Indian politics. The assumption by the Hindu majority of the role of conquerors sening out to nl the wrongs of the past, starting with those of Mahmud Gha7- • negated with one stroke everything we had fought for in the making of the nation. Toynbee's words of caution are particularly relevant:

I 155

We must bt on our guard ilgaimt sentimmt', that is arguments rake.n from conditions which once cxiSlC'd or werC' IUpposed to CXlst, bUI which arC' no 10ngC'r real at the prC'lCOI mOO1 C'nl. They arC' most easily iIluSiraled by c:xtrC'mC' examples. hali:m .newspapers. have described the annexation of Tripoli as rrcovenng the soLI of the fatherland because once il was a provincC' . of. the . Roman Empire; and the entire region of IS by Greek chauvinists on me one hand, It containS the site of Pella, the cradle of Alexander the Gre2t In me century B.C.. and Bulgarians on the other. Ochnda, In the opposite corner, was the capital of the Tz.:udom in the tenth century A.D .. though the drift of has buned the tradition of the latter almost as deep as the aducvements of the• Emarhian Conqueror on which th e mad ern . .1' Gtee k natLon;uISts Insist so strongly,30

bcc-aw:

the V.P. Singh government to enforce the recommendations and {O oppose the to the Ayodhya issue were am:mpts at IDIUnng the of secularism in a society that is being -'t asunder by rdlglOus ' . . obvi . .fundamentalism . . V.P. S" ngh's mOUve ously. t? gam political mileage in an adversarial system Mni .compeutlon for votes has become the ccnnepiC'cc of our Won of but the merit of his stand cannot -.de be. Of course. the same adversarial system lIoth by overth rowing his government. Thus, trkb arc mere pawns in a political cltlzens as passive spectators. popular image of the BJP. RSS, VHP and such other _p . internalised by the middle classes is that they __ rISC e leated, disciplined and law.abiding members wh ..... nOtvat anes · 0 f VIO ' Jence and abjure from me practice of 0 IlcuUd .... and deceit. In the second phase of the Ayodhy • ataslmha Ra 0, a pIOUS . H In ' d u who worships both godsa _ The decision

MandaI

w.e.-c

n

me .

•P.n.irion oynbcc . ed . of I .J : T

.........'n, p. 54nWI .

B.a?asahcb Ambcdkar, Reprint of ' Pakinan or Wntl'llft,.nJ S-«hn ... r - ' VO.I 8, G ovcrnmC'nt of

In

, In

156

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Wagt'S of Impunity

and godmen, could not reject this image, particularly when it was linked with Ram. He could fight the BJP but he could not he to fight Ram, he dedared.:n appease the majority senti ment With object of approprlattng the Hindu vote in the event of a mid-term poll. Thus we saw him following the terms laid down by an assortmem of saffron-clad sadhus. and declaring his trust in L.K. Advani and Murli Manohar Joshi, making a mockery of the largest democracy in the world. When at the penultimate stage me matter came before the court, the laner failed ro take account of the political context in which the Rath Yarra taken place, eSJXcially its aftermath of widespread communal VIOlence. Thus, it threw away a chance to prevent the carnage and massacre that followed the demolition of the Babri Masjid. Democracy and me Electoral System While we opted for parliamentary democracy, (h.e as such is not referred to anywhere in the Constitution. Nor IS there any mention of it anywhere in the Representation of the People Act. 1951. Sections 3 and 3(lA) of this act bar appeals to onc's religion, race, caste, community or and prohibiu the promotion of enmity or hatred between classes. Even an anempt to do so is declared COlrupt practice. However, these injunctions arc against the individual and not · 0 f reI·· against a party formed on the baslS cas te or community, or which has for its agenda the promotion of hatred based on religion, caste. community. etc. tO · po1·· liin me absence of a suong an d co hCSlve mca1 movemen , oommin r· cull$ to to social change. the field hu becn cleared for god men an d re IglOllS . . . . 1 ·d d a .."rCSS 1rt• enter the political space. Worshippers are mcreasmg y SUI ent an I>upled with contempt power has IDstn utJon absolutJSt. Such an institution can never be (....Iw.,l of The judiciary has appropriated the power the king had and turned it inro an aspect of this power was an emanation of royal authority and was really contempt. of the mon'arch. Constitution the people are sovereign. No legitimate can be d rawn that the Constitution has delegated to . power [0 punish the people or anyone th the sovereLgn em. J USt as the Indian Parlillment inherited the of the House of Commons. the Indian courtS have

'"""."'Y.

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Wages of Impunity

inherited their contempr power from the king of England courts in India trace their genealogy of power to the royal . 'the: of punishing people for contempt and its $u ... _.po.....e:T · meramorphoses. Th 1$ power was transrormc:d into a which inheres in a court of record, and the offence has .....e:t sui generiJ, mmscending the limiu of reasonable restraint. The: myth of the o riginaJ coun of records in which the powe:r punishing for comempt inheres has become pan of the jurisprudence' in which our law abounds. Such anachronism: coupled with irremovable tenure leads to misconduct among the: judges. To the principle that untrammeled power, whether de jure or de facto, c=ncourages impunity, the judiciary is no exception. These powers are absolute, and one cannot even plead justification in the public interesr when accused of comcm pt. Even our elected represc:matives do not have such absolute powers. An authoritative statemenr on the character and magnitude of the contempt power will demonstrate why a code of conduct for judges may not really be effective:

his colleagues to comme:nce their sittings strictly [he prescribed timings. private and public life of a constitutional appointee be separate:d. One cannot be unjust. unequal and in personal life and claim to adjudicate: constitutional and fairly in the: coum. Talking about e:mics, Durkhcim has raised issue:s which seem to be rdevanr in today's context: [0

'-

way of behaviour, no maner wh:u it b.:, is set on a steady only through habit and exercise. If we live amor.llly for a part of the day, how can we keep Ihe springs of mOr.lliry slack in us? We lire nor naturally inclined [Q pur IlIonrlva our or use self.resrraint; jf we are nor encour.lged at STep to exercise rhe reSl!flilli upon which all morals depend. should we get the habit of it? If we follow no rule excepr of dear self·inl.:rest in occupations thaI [".Ike up nearly the of our lime, how should we acquire a taste for any !!IOift"""""ln,,, or selflessness or sacriflce?

mey are

It is an offence purely lui gm"u. and ... its punishment involves

I 229

abide by moral pre:cepu, do the judges require Staff? Docs not the Constitution a code of conduct? The objective:s enumerate:d in the to rhe Constirution. the fundamema.l righu and obligations enumerated in rart IV, and the oath prescribed for judicial appoimees re:gulatc in rhe: courts, and the same values give rise [0 moral on which to regulate their conduct in life. A whole spent in seeking care:er enhancement brings about a ..........01 of public morality. The colonial mind-set and the and caste practices which everyone of us has internalised the predominant culture of our judicial instirutions. These: Compounded by an adversarial legal culture which is competitive and is therefore impervioU5 to social and social purposes. The Pharisaical righteousness, the [0

of conduct like clerical

in mOSI caKS an exceptional inu:rference with liberty of the subject. and th:oI.t. too. by a method or process which would in no other case be permissible. or even tolerated ... The jurisdiction should be e:xerciS«i the more carefully in of the faCT that the defendant is usually reduced. or pretends to be reduced, 10 such a s£are of humility. in fear of more severe consequences if he shows any recalciTrancy, that he is unable or unwilling to defend himself as he otherwise might have Having bee:n fed on hope: and illusions, all of us applaud our judges for pre:scribing for the:mselves a code:. But this code contains principles which are merely pious homilie:s rhat be enforce:d and can be breache:d at will. The: conducr t. judicial code addresses are old habirs which die hard. The ChiC Justice, who is only first among equals, has no authori£Y to even

f

· Reprln!. Conumpt of C.un, Kent! Bulterwmhs. First Ind lao Calcutta: Hinduslan Law Book Company, 1993, p. 17.


e<edii n1:s secret. Thus the house could order Out srrangers direct that its proceedings could not reported. What was a safety me::asure adopted by Parliament to protect itself its members against the arbitrary exe::rcise of power by the late::r became transformed into a privile::ge against freedom press. 11K ate::nsion of privilege from words une::red to [he printed gave rise to the celebrated case of Srocluiak lIf. Hansard in The firm of Hansard, under the authority of the house, a report of the inspector of prisons which comained III . words about one Stockdale, who then brought an agalnsl Hansard. The latter pleaded the authority of the a com ple::te dc:fence and a jury accepted this statement. Chief Justice De::nman and other judges held that tbis was defence. Stockdale sued for damages and obtained a verdict 600 pounds. It was the House of Commons that had treated casc: as a breach of privilege and nOt allowed the printer to any defence occept the order of the house::. When Stockdale

eoraI

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Wages of Impunity

sought to collt::ct his damagt::S, tht:: ho use scnt him ' hi, SO I"ICII O . an d t he sht::nffs who had c:xt::cuted the orders of the CO r prison. The sheriff sought to obtain a writ of habetlS (orp,U\IO a court of the King's Ikoch refused to issue such a writ LIS, Ut oeCaUsc: the Sergeanr at Arms had fi led a return stating thar th"", -, Were 17 un dt::r a warrant of the Speaker for co ntempt. The sheriffs h d to to execute a w, rranr ' . remain in prison .for having attempted . Issued by the court, I.e. for performmg a legal duty! We in India have no history o f struggle in the legislature, so we are bereft of precedents in this field. Our Struggle basicall was against Bridsh rule. But our antagonism to British rule not prevent us from adopting the British system of governance. We have all been bred in the British liberal tradition, hence the unwillingness to examine the validi ty and relevance of the various concepts which were introduced into the superstructure. The claim of privilege against the citizens might have been a val id t ransitional power immediately after 1688 in England. It might have been one of the means o f pre-empting the regrouping of monarchical foras. But its continuance without a rationale would be to legitimise arbitrary power, When the Constituent Assembly debated draft Article 85 rdating to the privi legt::S of members of parliament, HV. Kamath feh: There is nothing derogatory to the digniry of our Constitution or of our State in making rderence to the United Kingdom. h may be fu rmer reinforced by the argument that now that we have dcclared India as a full member of the Commonwealth, cerDinly there should be no objcction, or any sort of compunct ion in referring to the House of Commons in England. But may I suggest for tht: serious consideration of me House as to whether it adds-it may not be derogatory or detr.lct from the digniry of the Constitulion- but docs ir add to the dignity of the Will it not be far belter, far happier for us to upon our own precedents or our own rr..dirions here in [ndlJ th;!n to import something from elsewhere and incorporJte it by "Sa: A. V, Dicey. An IntrtHiuniun to lIN Study ultlN Omtt/fU Delhi: Mac;mill:m and Univers:..! Book Traders, 1985. pr. 5(,...58.

II ''''

I 255

,Jercnc;e in the Constitution? Is it not sufficient to say that the ri5i'IS and privileges and immunities of Members shall be such .. h;ive been enjoyed by the Members of the ConStituem Assembly or Dominion Lcgislaturt: just before tht: commt:nct:mcnt of the . . )18 Constitution.

.:•.ADad>

Krishnaswami Iyer intervened to point out:

If the privileges are confined to tht: existing privileges of legislarurcs in India as at prcscnl constitutt:d. the result will be that a person cannor be punished for comempt of the Housc ... whercas the Parliamt:nr in England has the inherent Jisht to punish for cOnlemp!. L9 found nothing derogato ry in the prOVISion that was incorporated in the Constitution. A legislative constituted by the speaker of the Constituent ",.blly also found it difficult to lin parliamencary privileges going inco the whole queStion of the working of the institution in the United Kingdom .

they originally stood, both Articles 105(3) and 194(3), conferring unfene red powers of speech to the memi>t:rs. left Parliament to enact a law defining and enumerating its _go., and umil then allowed it to enjoy those of the H ouse of the United Kingdom . The 42nd Amendmenc of 1976 dispensed with the need to enact a law defin ing and stated that the powers, privileges and immunities and its members were those listed in Sections 2l 34 of the act and as may i>t: evolved by the house larer. But the 44th Amendment Act of 1978 repealed the provisions Ibe 42nd Amendment. As matters now stand, Parliament enact a law, and until then its privileges are {hose current before the coming into force of St::ctions 18 and 26 Amendment. We are not here co ncerned with the question of rhe

rulm,,,.,n,

AJJtrmbly Dt/Mtn: Official Hrpl)rI, Delhi; Government uf Indi2l. 0·3. Vulume VIII. p. 144. DtiJam, Jilt. rit.. p. 148.

256

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Wagn- of Impunity

codification of the privileges. powers and immunities of h members of State Lcgislarures and Parliament, What .. p Od on citizensPo on the subject have not improved matters. The Amendment sought (0 give unlimited powers to each of Parliament to evolve its own privileges and immunitics interference from anyone outside them. But introducing JIIltti''" meant deliberation in both houses, the President's and possible interference by the courts on the: validity or of such law. The 44th Amendment. while doing away the righu of Parliament to evolve its own privileges, has intact the original vagueness, and the necessity for referring to the privileges of the House of Commons, which are obscure and wholly lInnotificd. latter arbitrariness was recognised by Maitland when he the question and answered it rhus:

....n""

wh.u offences can the House: innict this punishment of .p,"""nn"n,,? Our answer must be that it is the power of the to innict it in a quite arbitrary war.n

often we see qucstions of privilege ueated as party questions, then the House:, it mar think of itself. bc-comes contemptible. That it has a very dangerous power in its is too obvious.23 Smith. dealing with [he British Parliament and its power ' I'uni"h breaches of privilege, is of the view that despite the that judges are nOt always bener equipped to decide of law set in a political context, Maitland, TIN umSlirurio7lll1 Hisrory of Ensland, Cambridge:

Universry Press, 1961. pp. 3n-378. . Maitland. 1«. ri/., p. 378.

260

I

and Obligation

Wogn of Impunity

th:

"""hi,,,,

Harry Street draws a distinction berween diSCiplining members of Parliament and extending this power over citizens and holds that 'the House of Commons ought not to treat trial of citiu:ns as one of irs functions; disciplining its members is one thing, punishing outsiders is another. ' The English Revolmion effectively used a parliament that had been set up by medieval kings. Its authoritarian origin was masked by its later tran sfo rmation into an effective forum to fight royal absolutism. The originaJ antagonism berween the bourgeoisie and royalty hu become a conceptuaJ unity berween popular sovereignty and the divine right of kings. A new rationale has been found to justify a representative's arbitrary power: that it is necessary to enable him to discharge his public trust with firmn ess and to protect him from rhe resentment of those offended by the of his right. The parliamentary institution was created and social support to give the citizens the freedoms needed to ensure political progress; yet exercising the freedom to discipline [his institurion has become an offencc. In our society. where respect for authority has. bcen imernalised, arbitrary power is perceivt=d as a valid exerCISC 0 r authority, so abuses go unquestiont=d. Those who perceive th.' abuse do not wish to t=nter into confrontation . They nuke peacc by cajoling and appeasing authority. We seldom realise that the measure of freedom we enjoy is the extent concededhto political dissent, the poor and the oppressed. Let us look at W 3t 2-4S.A. de Smith, CDnstitutiOMf tflU/ Administrarillt lAw.

Arundhati. More than the cases of C ho, Paul Raj Rao, Arundhati 's punishment shows the arbitrariness exercised by our legislatures. Her liberty was .,.Ci.:d summarily and casuaJly, in one of the innumerable where Arricle 21 remained muted. She emered the Assembly with the proper permission , viewing those ;....bI"d mere as her representatives, who would be will ing to tale of woe. She had not been informed that circulating containing only her grievances was an offence and a of the privilt=ges of the hOllse. She could not defend she was not aware that the representatives that millions of others had voted to office had been entrusted i to punish people sum marily. She was not aware of IPrw:d,ms of the British House of Commons, nor that there parliamt=ntary privileges whose breach would entail "",m"m. In all these cases, nobody is told which particular has been breached, nor whether what is breached to the House of Com mons o r specially evolved by an Legislature. Ayn Rand says: to

unhappy combination of uncodified Comempu unsatisfactory fot contempt, and mSlstence of House Ih:H it must bave h first :md last word in maners touching [merests of I. e b ·Irrespective . 0 fth· ,.. as e ImpaCt of its decisio lIS on of of public, srrongly suggests House should rdinquish its jurisdiction over breaches of privilege and contempts to the courts, as it has in effect relinquished ilS privilege to disputed election

Penguin, 197 1, p. 332.

I 261

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pas.t

II

the kind of laws that eiln neither be observed nor nor objectively interpreted-and you creare a nation of and then you cash in on guilt ... The only power ilny has is the power to crack down on criminals. informs all our institutions, including the Parliament.

Political JUS/fa through Concerud Proust I 263 a legitimate exercise of power purely because the that prompted these actions are not open to debate:. ;';'ocipal Section

28 Political Justice through Concerted Protest

There cannot a matter of greatcr public importance than the assassination of the prime minister of a coumry. A one·man commission of inquiry headed by Justice Thakkcr. a siningjudgc: of the Supreme Court, was appointed to enquire into the assassination of Prime Minister Indira Gandhi in 1984. The commission submitted its report in 1986 and the government was supposed. to place the report before the Lok Sabha after. Sm the President promuigacc=d an ordinance introdUCing 2 amendmentS to the Commissions of Inquiry Act. 195 evidently to avoid doing so. The: reason was the an integrity of India. Similarly, the 'security of the state, friendly relations with foreign states' and 'the public imcresr' have used to create: new legislation. These terms have been ns time and again into statutes to exclude the entire body of cluzc from all or any of the rights secured by them. These terms havc · fower:l been invoked to confer on governmenta1 exercise 0 P f legitimacy which is beyond scrutiny. In effect, they social and political accountability. Any action under their c

d

3 is (he principal section of the Commission of Inquiry It deals with the powers of the central and state in appointing commissions of inquiry; the ;, of such a commission; how to fill vacancies in it [Q continuity; and the obligation of the state or central ,..,nnw" [Q table its report before the Legislative Assembly or 10k Sabha, as the case may be, within six months, together a memorandum on the steps taken by lhe government on "POrt within six. months. government found the 1952 Act deficient in many and referred it to the Law Commission. After detailed '"',,';on, the laner, in its 24th report, suggested several and the government inrroduced the corresponding ...!mmu in the Commissions of Inquiry (Amendment) Bill, which was later referred to a jOlllr Committee of the course of evidence given before rhe joint it emerged that rhe repons of sllch commissions on issues of national interest often did not Stt the light even though a considerable amount of public funds had spent on them. The joim therefore considered iIo=ccosa,y that a specific provision should be made in [he act the appropriate governmem to cause the report of of inquiry w be laid before Parliament or Slate wgether with a m