js_on_ihrd 002 _2__0001.jpgLok Raj Sangathan talked to Justice Hosbet Suresh on the occasion of the International Human Rights Day in his in Mumbai office. Below are excerpts from the interview.

I am very happy that you could spare some time for this interview. You have been working for a long time for the defense of human rights. Many of the judgments that gave when you were serving as a judge in the Mumbai High Court, defended the rights of people irrespective of their wealth or position. You have also served as the President of Lok Raj Sangathan, which strongly defends rights of the people. It has already been more than 60 years after the declaration of International Human Rights Day, on 10th December 1948. Do you think it is important to commemorate this day?

Justice Suresh (JS): Of course it is. According to me, it is our only hope. As it is, our democracy is not functioning properly; neither are civil liberties guaranteed. Without the fulfillment of human rights, for everyone, we can neither have any kind of meaningful democracy nor civil liberty. Therefore, it is essential that we continue to remind ourselves that violation of human rights must be stopped.

LRS: What do Human Rights encompass? Can right to employment be considered a human right?

JS: Yes. Human rights encompass everything that goes with life. The right to food, right to live, right to shelter, right to labour – everything is part of human rights. Human rights cannot be taken away under any law, absolutely.

LRS: Are human rights enforceable under the Indian law?

According to me, they are. There is a principle of human rights. All human rights are inherent. They are interdependent. You take away one human right and the other one also goes away. In the Indian law, Civil and Political rights are given under part III, of the Constitution in the Chapter on Fundamental Rights. These are judicially enforceable. Part IV of the Constitution deals with some other socio-economic rights. These are not judicially enforceable. But at the same time, the Constitution itself says that these are part of the fundamental duties of the Government. So ultimately, there is no choice but to enforce all human rights. Many of the socio-economic rights can be considered as part of the right to life. At one time, in the 70s and 80s, our courts were doing a wonderful job of defending these by bring them under the purview of Article 31, which is right to life. However, since the 90s it has not been so.

The Indian government considers rights more like privileges. It does not consider them sacrosanct. For example, just a few days ago, a group of unarmed citizens were demonstrating in front of the Corporation office in Mumbai for demanding more water supply for their locality. But they were brutally lathi-charged by the police. So, if they are being deprived of adequate quantity of water while others in their neighbourhood are getting 24-hour water supply, do they have right to protest?

Yes, I always say that under the Indian Constitution you have a right to protest. But there is no guarantee that you will get it. Suppose you are hungry, okay you cry – that is a protest, but there is not guarantee that you will get food. Similarly, under the Indian Constitution you have a right to live in any part of India, but there is no guarantee of a shelter. This is the kind of constitution we have. Unfortunately, in this country neither the courts nor the police have understood that both these have to be there together.

When a child cries, it is for attention and for demanding food. When a group of people comes to demonstrate, the authorities must think seriously, why have they come? Of course if they are violent, then police has a right to use violent means also. But if they are peaceful, police has no right to use laathi-charge.

Unfortunately the police have not been trained for human rights. There are principles, which have to be followed. If police use arms anywhere, there should an investigation – what is called a judicial inquiry. So if a crowd comes, can they shoot? Under what circumstances can they shoot? They just shoot and don’t bother.

LRS: Human rights are said to be universal. Can the right of a whole community be denied based on their language or region or nationality? I am basically referring to Kashmir and the Northeast, where the whole regions have been declared disturbed and the Armed Forces Special Powers Act has been imposed. As you know under this Act, armed forces of even in lower ranks have the right to kill an unarmed civilian and they cannot be taken to the court. Such killing has been going on for decades and recently it came to limelight when the media recorded it happening in broad daylight. Do the Manipuri people have right to life or not? How is a law like AFSPA compatible with right to life?

JS: In fact, I have been to Manipur and I have seen what kind of havoc this Act has caused there. Manipur is being controlled by Army and the AFSPA. There is such a lot of resentment there because of this that Manipuri’s don’t even want to be part of India. Because of the army they have lost all liberties. When the instruments of accession were signed, in October 1949, Manipuris were happy to be part of India. But today they do not feel the same way. The trouble is that law like AFSPA is anti-human right. It is an irrational law. It is unjust.

There is a standard case called the Maneka Gandhi case. In a cases posing between life and liberty, the law has to be just, fair and reasonable and so also its procedures. AFSPA allows armed forces to shoot down people with impunity. This law should have been struck down long time ago. Unfortunately, when the question is posed as a threat to the security, then the courts have always ignored liberties. Laws like POTA and TADA have been upheld on the pretext that our security is threatened. But actually the situation is the opposite; because of these laws there is no security in people’s lives.

LRS: How can that be justified? How is Manipur a security threat for India?
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Today they are using the issue of security all over the country and they have made the people believe that there the threat of terrorism. But if they actually start to address the concerns of the people there will no longer be any threat to security at all.

LRS: Have the Human Rights Commissions fulfilled their responsibilities at the Central and State levels?

JS: This is the unfortunate part of it. We don’t have an Asian Human Rights court like the European Human Rights court. In matters of human rights in Europe, even if the House of Lords passes something and it is challenged in the Human Rights court, it is quite possible that the decision of the House of Lords will be overturned.

When we had conceived the Human Rights Commission we should have thought of it as a Human Rights Court. Unfortunately, in India it is considered subordinate to the other judiciary. That is why they have not given any powers to the NHRC. It is an ornamental association. All the Commission does is to prepare a report. As Justice Krishna Iyer used to say the Human Rights Commission has no teeth to bite.

The Human Rights commission is always headed by a retired judge whether it is at the National or the State level? Why? Just because someone has been a chief justice, so what? What has been his or her record in defending human rights? You can ask any Chairperson of a Human Rights Commission and ask them one simple question – Law or Human Rights? And, they invariably say – Law! What happens if the law violates human rights? They have no answers to such questions.

LRS: So they don’t believe that human rights are by dint of being a human.

No. No. No. In fact even the Supreme Court ignores reports prepared by the Human Rights commissions. TADA was challenged in the court. Justice Rangnath Misra, the first chairman of NHRC who is not exactly known for championing human rights, even he wrote in his report that TADA violated human rights and that TADA should be scrapped. But court simply ignored his report and upheld TADA.

Do the tribals of Chattisgarh, Jharkhand, Andhra Pradesh and others have a right to their land? Their rights are undermined by the violence of the state and state sponsored vigilante groups on the one hand and by armed Maoist groups on the other. Is there an issue of human rights?

There are two or three things here. Firstly, the original inhabitants have no right on their land. It is very unfortunately.  Land has been taken over by the government. Any land does not belong to anyone on paper has taken over by the Government. But you cannot take such a stand in the case of tribal people!

Second thing is, the native people are deprived of not just land but of their resources and livelihood. Tribal people don’t food, shelter and they are constantly harassed by the police. So as a result, they have been denied justice. If they go to the police or courts, they don’t get anything. Their existence itself is threatened. So when someone comes and says that they will help them. And what kind of help? – That their lives will be protected. In some areas they may have done some more also. I am told that Maoists have even opened schools, etc. However, I am not sure of what the situation is – whether the schools are functioning or not? But their lives are secure. Government has to understand that. But Government makes everything into a law and order problem.

LRS: Can the question of rights be divorced from the question of responsibilities?

JS: I have a different approach. This type of debate is often used to deny the rights of poor people. For example, if there is shortage of water and it is the duty of the Government to provide it. But if we link rights and responsibilities, they can say, you leave water leaking, so you have no right to water. So the blame can be shifted onto the people. 

LRS: But that is a total distortion. How can anyone justify water supply for only one hour a day on this basis?

JS: Yes, I agree. It is no justification. After 60 years of independence how come there is not enough water or not enough shelter.

Whenever I talk of human right, I make it very clear that it is the obligation of the State to ensure human rights. The State has to take 100% responsibility to see that all human rights are protected. This is where things have gone wrong. Look at right to education, which is a human right. It is human right not just up to the age of 14 years, but all the way. What I mean is access to education has to be there. But what does the Government do? They say they don’t have money. Then private colleges are encouraged and capitation fee starts. Only the rich can afford and basically a large number of people are deprived of education. The same is the story about health. Government must take the responsibility.

What the government has to do when human rights of two people come in conflict is to sort it out in a balanced manner – without depriving either of them of their rights. It has to be done in a democratic fashion. And this is not what the government is doing. And, that is why we have this state of affairs in our country. It is not just the human rights commissions, but all institutions have failed in this country to deliver.

LRS: Many of the institutions that exist today have been inherited from the colonial state. They were designed to subjugate our people. I indeed agree that there is a need to develop new institutions in India that will serve the people. Thank you so much for frankly sharing your views.

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