I am grateful to the organisers for inviting me to this Seminar on the occasion of the 100 years of the birth of Justice Ajit Singh Bains. I particularly thank Senior Advocate Rajwinder Singh.
Before I give my views on the topic of Human Rights and Today’s India let me read out a para from booklet written by Justice AS Bains in 1992 when he was languishing in Burail Jail, Chandigarh, arrested under TADA. We were involved in publishing this.
He said, ‘To be personal, I was kidnapped, not arrested on April 3, 1992. I was gagged and picked up and taken to a police station, with no information given to my family and friends. It was a classic case of kidnapping but there was no remedy as my captors were policemen. My house was searched and valuables looted. This act had all the ingredients of dacoity and theft but again there was no remedy as the culprits were policemen…. I term it terrorism by the state and call such a state the fountainhead of terrorism’.
What he said 30 years is applicable today. In fact, the violation of human rights by the Indian State has only increased.
Direct and indiscriminate use of terror by the state against the people have increased – all sections of the people are the target. Non-state actors are also financed to create an atmosphere of anarchy and violence so that people absolve the state for the repression.
When a private person commits a crime the law moves against the person. But who will punish governments which deprive human rights and also uses terrorism against its own people.
The boatman is supposed to take the people across the river. But what happens if he himself capsizes the boat.
When a government authority violates law, then he is obeying his superiors. He can easily take away the right to life and liberty.
When a private person commits a crime, the legal machinery is set in motion automatically. When a government official indulges in crime, the process is entirely different. The victims have to appeal to the machinery. Section 197 of the CrPC protects state authorities. Laws like AFSPA provide immunity to paramilitary and armed forces.
Justice Bains says that the rule of law must be applicable to all and those who have violated must be punished, even if it be the state itself. In theory, the rule of law says that no one is above it. In practice the entire executive and state machinery stand above it.
In the 17th century King James scoffed at his detractors when they said that he should be accountable to Parliament. He said, “I am the law”. Today, the central government says the same thing.
The state is a legal entity which is duty-bound to protect its citizens. HROs act to ensure that the state acts and behaves within the purview of the law. But whoever exposes the arbitrary actions of the state run the risk of state power being turned against them. If entire HROs are targeted by the state as enemies and are powerless, then imagine the plight of the ordinary man, in whose hands there is no mechanism to contest the actions of the state.
Clever govts mislead the people into thinking that those who protest against black laws and illegal detentions are the front organisations for terrorist groups.
The basic principles of justice are that the prosecutor cannot be the judge, the accused should be given an opportunity to defend themselves, thus the legal axiom – the accused is presumed innocent till proven guilty.
The state first creates imaginary terrorists and then argues that to tackle terrorists the usual safeguards should be relaxed.
No private citizen can take away the rights of his fellow beings without incurring the wrath of the legal system. However, governments can do so with impunity.
The fifth century philosopher, St Augustine, remarked that, ‘Take away justice and what are great Kingdoms but great robberies’. This is very true today.
That is why human rights activists like us are vital to curb the excesses of unlawful governments. For their part, such governments brand us as those who are only worried about ‘terrorists’ and not about the people. The truth cannot be farther.
The Sedition Act is being reviewed and there is talk about partial withdrawal of AFSPA. But what about the guarantee of human rights and fundamental rights in the Constitution and provision of mechanisms in the hands of people to ensure this. We have to demand these.
Human rights belong to all by dint of being members of society. They are universal and inviolable. Inherent within the definition of human rights is that they cannot be violated, nor given and taken away.
It is a fact that all governments since 1947 have violated human rights. In recent years this has become an avalanche.
The present system marginalises people from political power. People do not have mechanisms to protect their rights or to play a central role in the day-to-day affairs of the country. Sovereignty and political power need to be placed in their hands.