The human rights debate

Print edition : September 15, 2001

The Home Minister's plea for protecting the security forces against harassment for bona fide action against terrorists has been welcomed by the forces; but any clamour for dropping all such action against everyone who is being investigated or has been charge-sheeted is untenable.

THE Union Home Minister's loud thinking on the subject of granting amnesty to personnel of the security forces arraigned before courts for violating human rights has triggered a major controversy. I personally feel that L.K. Advani's position has been misunderstood as one pleading for a total withdrawal of all cases - even those involving gross atrocities against innocent civilians. My conjecture has been endorsed by his categorical declaration in the first week of September at the conference of Directors-General of Police (DGPs) held in New Delhi. Here he unequivocally expressed himself against any unilateral general clemency to all policemen who have been taken to court for excesses committed. In fact, he went to the extent of denying that he had ever used the word 'amnesty' while speaking on the subject recently at a public meeting in Jalandhar. The Attorney-General's reported statement immediately after the beginning of the controversy that there was no question of a general amnesty has also perhaps helped put the record straight.

Against this backdrop, there is also the reported threat by Punjab Police personnel to surrender all gallantry medals awarded to them - as a mark of protest - if there was no government decision by October 21, Police Commemoration Day. If the report is true, that unfortunately ups the ante. It is likely to convey the impression of using pressure tactics, which no popular government will countenance. Even the hint of a revolt by its uniformed forces is the last thing that a constitutional democracy would ever encourage. Here, I am reminded of the firm handling of a Madras city police strike in the early 1950s by Rajaji - including a direction to the Inspector- General of Police to take into custody all the strike leaders - which led to the strike fizzling out at an early stage.

I know I could be hauled up for comparing a threatened strike very many years ago with the current move to give back medals that have been awarded to policemen in recognition of their bravery. Nevertheless, the point that I am trying to make is that the hurling of any threat at a constitutionally elected government could be construed as unbecoming of a disciplined force such as the Punjab Police, which otherwise has a glorious record of valour and courage. I am confident that wiser counsel will prevail and the Punjab policemen will present their viewpoint in a dignified and persuasive manner. They should realise that if they have to be heard seriously by the authorities, they will first have to meet logically the arguments of human rights activists who have been incensed by views in favour of amnesty. Or else, even the slightest prospect of a consensus on the matter will become elusive.

The Punjab policemen's stand is that genuine, firm action against Sikh militants has been distorted into seeming acts of highhandedness, and as such treated as a violation of human rights. They believe that it was only such a tough stance that involved direct encounters with terrorists and the use of firearms against them, whenever called for, that brought the situation under control and turned the tide in the State from one of anarchy and unremitting violence to sanity and peace. This also is the uncompromising position taken by my good friend, the former DGP of Punjab, K.P.S. Gill, to whom the projected amnesty should be most welcome. If I know him well, he is furious at armchair critics who have been hypercritical of the methods employed by his men to counter insurgency in the State and who rubbish any suggestion of clemency. I know that Gill has many detractors. It will be unfair, however, to deny him the credit due for his role in bringing order to a battered State when every other segment of government had shown a clean pair of heels from the ravaged villages and district towns at the height of militancy.

The problem arises only if Gill were to club all charge-sheeted personnel into one and demand a unilateral withdrawal of action against them. This is because it is widely believed that certain operations that resulted in loss of civilian lives were indefensible. These were instances that reeked of excessive violence or involved settling of personal scores. In some cases, victims of police action were clearly found to be innocent civilians and not militants or even their proximate abettors. (It is an entirely different matter that in a war-like situation, the distinction between a law- abiding citizen and a terrorist becomes blurred and the police have neither the means nor the patience to check the antecedents of everyone against whom they act.) In some cases, there were also complaints of a lack of integrity on the part of a few policemen. Here, the refusal to comply with a blatantly dishonest and extortionist demand for sums of money from individual civilians with little or no militant connection was attended with reprisals. Of course, such allegations will have to be proved beyond doubt before a court of law. The due process of law will have to be observed. And, there is a definite guarantee of this with the accused getting every opportunity to defend themselves. When this is the position, any clamour for dropping of all action against everyone being investigated or charge-sheeted in court becomes wholly untenable.

Bona fide action to strike at terrorists needs to be protected even if the strictest of legal procedures were not followed during such action. This would include arrests, searches and failure to document an event as required by the Criminal Procedure Code (CrPc). However, wanton physical torture or causing the disappearance of an individual may not merit a generous response.

Former Punjab Director-General of Police K.P.S. Gill and former Punjab Chief Minister Beant Singh. The Punjab policemen's stand is that genuine, firm action against Sikh militants has been distorted into seeming acts of highhandedness.-HARDEEP PURI

This takes us to the nitty-gritty of how one goes about the task of initiating the amnesty process. According to the Home Minister, certain legislative measures are being thought of. It is not yet clear what shape this will take. Apart from the constitutionality of any such piece of legislation, the prospects of evolving a consensus in Parliament in this matter will have to be kept in mind. Alternatively, the Central government has the option of persuading State governments and the Central Bureau of Investigation (CBI) to withdraw from prosecution wherever a charge-sheet has been laid after investigation. Section 321 of the CrPC permits the Public Prosecutor to withdraw anytime before the judgment is pronounced. The proviso, however, is that such withdrawal will be with the consent of the court.

This is a clear pointer to the position that the process is not automatic and that the court will also apply its mind. There are indications that the judiciary is increasingly selective in giving such consent. An apex court ruling (V.S.Achutanandan vs. R. Balakrishna Pillai, AIR 1995 SC 436) on the subject is significant. Here, the court observed that it was the opinion solely of the Public Prosecutor that was material, and the ground on which he was seeking permission for withdrawal alone had to be examined by the court. Further, it was obligatory for the court to satisfy itself that the Public Prosecutor was exercising his power under this section as a free agent, uninfluenced by irrelevant and extraneous considerations.

In this contentious process, apart from courts the government will have to carry with it the National Human Rights Commission (NHRC). If my memory serves me right, the NHRC itself had taken cognisance of several charges against the Punjab Police and other forces for further investigation by its own team, and by the CBI and other agencies. The commission has shown itself to be extremely sensitive to soft-pedalling of charges against security forces. Any move by the government to terminate court proceedings in instances where there have been definite allegations of human rights violation could therefore invite an adverse response from the NHRC. Also, what will be the latter's stand if petitions are filed before the commission by aggrieved parties in the event of the government ultimately deciding to go ahead? These are interesting but extremely relevant speculations, which cannot be ignored by the government in the course of its decision-making.

A final thought. In deciding to grant general amnesty to personnel of the security forces, any government will have to consider the impact such an action might have on international opinion. This is especially so in the case of Jammu and Kashmir, where the situation has been greatly politicised and internationalised. Punjab too was not different at a time when the situation was boiling. Amnesty International and Human Rights Watch are two organisations to contend with. They are bodies that have credibility in international forums. India's attitude to Amnesty International has changed over the years. The earlier total antipathy has given way to an attitude of taking note of its charges - sometimes specious and superficial - and responding in a responsible and meaningful manner. So, any leniency shown towards members of the security forces who have come to adverse notice will have to be both logical and defensible in the international arena.

Home Minister Advani's plea for protecting the security forces against harassment for their bona fide actions will no doubt be welcome to members of the police and paramilitary forces, who are performing a difficult task. Without such an assurance they cannot be expected to act fearlessly in countering insurgency. But this debate on how to offer immunity against capricious action by vested interests, who sometimes pass off as human rights activists, will not impress the judiciary or the common man unless we quickly evolve effective means to make our security forces understand the philosophy of human rights. Without such an understanding, they are prone to bursts of indefensible violence against innocent civilians, which is bound to attract the attention of human rights activists not only at home but in most of the Western world where the movement has acquired great import. Also, this definitely has serious implications for foreign investment in our country.

Dr.R.K. Raghavan, a former Director of the Central Bureau of Investigation, is currently a Visiting Fellow, Human Rights Programme, at the Harvard Law School, Cambridge, Massachusetts.

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