Primer to civil rights

Published : May 04, 2012 00:00 IST

The book brings to the public domain unnoticed aspects of civil rights protection in India.

WE would feel somewhat relieved if we are told by the champions of civil liberties that there are only nine challenges to civil rights guarantees in India and that they are not as insurmountable as they appear to be. A reader of the book under review, Challenges to Civil Rights Guarantees in India, would expect such relief, going by the structure of the book, which is divided into nine distinct chapters, each devoted to the discussion of a single challenge and the possible remedies for it.

However, neither of the expectations is true. The authors have structured the book so only for the sake of convenience. There are indeed far more challenges to civil rights guarantees than the nine identified in the book, and the challenges are so complex that they require eternal vigilance to stop them from overwhelming us.

Nevertheless, the division of the book into nine chapters is an excellent idea to focus our energies on what appear to be clear and present dangers to civil rights in India. The authors, A.G. Noorani and South Asia Human Rights Documentation Centre (SAHRDC), are eminently qualified to help readers pursue such an ambition.

At the outset, the subtle distinction between human rights and civil rights needs to be understood clearly and spelt out if only to avoid epistemological problems that may arise as a result of reading this narrowly focussed but easily readable book.

Human rights comprise economic, social or cultural rights, claims an individual has a right to. They impose on the state a positive obligation to provide the necessary resources so that individuals can enjoy such rights. These rights arise from natural law and are deemed as fundamental to living and survival, and, therefore, deserve protection irrespective of whether the law expressly recognises them or not. Some examples are the right to life, the right to freedom from torture and the right to free movement. Civil liberties, on the other hand, imply a claim to freedom from interference with that claim. They impose a negative duty on the state not to violate that claim. They represent the residual liberty to do anything that one wants unless the law provides otherwise. Civil liberties stem from positive law and include both political and civil rights. These are state-enforced rights. Examples include the right to free elections, the right to vote, the right to fair hearing and the right of the accused to silence.

The distinction between a human right and a civil liberty is not watertight; most civil liberties are also human rights though the reverse is not true. Put in this context, this book deals with that facet of civil liberties, in whose protection rights awareness and rights education play a pivotal role. Protection of political rights, compared with those of civil rights, is easy because violation of political rights by the state is always blatant and invites prompt response in the form of vociferous protests from the affected groups and individuals. The right to vote, the right to form political parties and run for political offices and the right to express dissent in a democracy are all political rights that are jealously guarded by all concerned.

Protection of civil rights, on the contrary, requires eternal vigilance on the part of opinion-makers and people at large because their violation is always subtle and very often happens unnoticed and unopposed. That is why books such as this serve a useful purpose by bringing to the public domain unnoticed aspects of civil rights protection in India. According to Ravi Nair of the SAHRDC, the book is the result of collaborative discussions with Noorani. The impetus for writing the book and the inspiration for its content stemmed from Noorani's articles on a range of civil rights topics that appeared in issues of Economic & Political Weekly and Sunday magazine in the 1980s. Ravi Nair and his team of interns at the SAHRDC provided flesh and blood to the articles (which Noorani describes as a mere skeleton), bringing them up to date so that they qualify as, what Noorani calls, essentially a primer to civil liberties.

It is natural to ask what made the authors identify these nine challenges to the protection of civil rights rather than others for the purpose of the book. What made them choose nine and not eight or seven? A reader can easily infer that the authors feel more strongly about these challenges, perhaps in the order in which they appear in the book.

The first chapter, on preventive detention, shows that right from the time of the constitution of the Constituent Assembly up to the present preventive detention laws in India have rested on a diversity of narratives used to justify perceptions of threat to the Indian nation and its democratic character. The necessary evil justification, first espoused by the framers of the Constitution with respect to the political and social turmoil of Independence and Partition, continues to be relied upon by the executive and Parliament. The only difference is that the contexts of Independence and Partition have been replaced by alleged threats from home and abroad, such as war, foreign relations, internal emergencies, public order, smuggling and terrorism.

The authors, therefore, suggest a number of reforms to preventive detention laws and provisions under the Constitution. These include added protection for detainees against torture and other forms of abuse committed during the course of preventive detention; replacement of the standard of subjective satisfaction with specific reviewable criteria, as currently the law allows the courts to review only whether the detaining authorities took into account all the relevant factors; limitations on the time frame within which judicial review of a detention order must take place, most preferably by requiring that all detainees must be brought before a magistrate within 24 hours of arrest as with ordinary detention; and repeal of Article 22(3)(b) of the Constitution, which denies a detainee under a preventive detention law this right and the right to be informed of the grounds of arrest and the right to consult and be defended by a legal practitioner of his choice.

The authors explain why the reform of preventive detention laws has received scant attention from our law-makers or the civil society, by citing former Chief Justice of India P.B. Gajendragadkar's warning in 1967: The tendency to treat (matters of preventive detention powers) in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded.

The second chapter, which is on extrajudicial killings, deplores the fact that the judiciary has yet to take effective action against the prevalence of encounter killings. Recently, the Andhra Pradesh High Court attempted to respond to the dangerous nature of extrajudicial killings, but the book says that its decision has been undermined by the Supreme Court.

The High Court established three key elements of procedure that must be followed in the wake of an encounter death: If a complaint is filed against a police officer, police personnel are obligated to register a first information report (FIR). The names of the officers allegedly involved in the encounter need not be divulged in the report. Secondly, after an FIR is filed, an investigation must be initiated. The investigation should yield one of the three conclusions: that no killing took place; that the offending officer was justifiably exercising his right of self-defence; or that the killing was inexcusable and illegal. Thirdly, if unconvinced by the investigative report specifically that the offending officer was legitimately exercising his right of self-defence the judicial magistrate is empowered to take cognisance of the case.

The book regrets that the Supreme Court's decision to impose a stay on the High Court's ruling demonstrates its pronounced interest in the idea of preserving police morale. The authors say that the court's track record regarding deference to the police in other cases provides little confidence that the Supreme Court will uphold the High Court's decision or otherwise provide effective safeguards against encounter killings.

In the third chapter, titled Counter-terrorism and Human Rights, the authors observe that the implementation of counterterrorism laws such as the Armed Forces Special Powers Act (AFSPA), the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) and the amended Unlawful Activities Prevention Act (UAPA) has severely restricted various civil rights and has had an unduly harsh effect on the minority communities. At the same time, terrorist attacks have continued to occur.

The authors quote from relevant Supreme Court judgments to argue that increasing the state's arsenal of powers has not been and will not be effective in preventing terrorism. Such measures only add to the plethora of social grievances that often give impetus to violent struggles against the state, they say. The authors recommend the strengthening of the ordinary criminal justice system to better address the ongoing terrorist activities. Pointing out that conviction rates have dropped from 65 per cent in 1961 to 43 per cent in 2004, they attribute this to police corruption, political influence on the police and prosecution, and the immense backlog of cases before the courts caused by a lack of resources.

In the fourth chapter, on the death penalty, the authors observe that despite the surface-level semblance of a test to determine consistently whether the death penalty should be imposed on a case-by-case basis through a proper weighing of all relevant factors, in practice the broad discretion afforded by the rarest of rare doctrine (laid down in a 1980 case by the Supreme Court) simply allows the courts to impose the death penalty arbitrarily as they see fit.

The rarest of rare doctrine placed an extraordinary burden on the court to carry out an objective assessment of facts to justify the use of capital punishment in a given case, to consider aggravating and mitigating circumstances equally before arriving at a decision, and to provide evidence whether life imprisonment would be futile and whether the convict could not be rehabilitated.

The book refers to Santosh Bariyar vs State of Maharashtra (2009), the case wherein the Supreme Court attempted to interpret the rarest of rare doctrine more stringently and avoided imposition of the death penalty. Unfortunately, the book does not examine the cases decided by the Supreme Court after the Bariyar case. Had the authors considered those cases, they would have concluded that the Bariyar case influenced only some judges and that most others continued to confirm the death penalty as if Bariyar's strict standards did not apply to them.

The authors make out a persuasive case for the executive to declare a moratorium on the death penalty and allow an opportunity for serious debate, reflection and investigation about the efficacy of deterrence/retribution/protection from repetition arguments in favour of the death penalty.

In the fifth chapter, on narcoanalysis, the authors praise the Supreme Court's judgment in Smt. Selvi & Ors vs State of Karnataka (2010), wherein the court banned all involuntary administration of narcoanalysis, which involves injecting an individual with barbiturate drugs in order to induce a state of hypnosis and enable the release of repressed feelings, thoughts and memories. The police had been using this test in many cases to gather evidence, even though it raised serious human rights issues. The court held that narcoanalysis violated the rights against self-incrimination, unlawfully invaded individuals' privacy, and amounted to cruel, inhuman and degrading treatment.

However, the book regrets that the court left a loophole by providing a narrow exception. The court had held in the Smt. Selvi judgment that the evidence gathered as a result of information garnered indirectly from a voluntarily administered test could be admitted into evidence. The authors say that this exception is illogical because the court had clearly stated that information obtained even during a voluntarily administered test was not given voluntarily. They fear that this loophole can perpetuate the use of narcoanalysis, brain mapping or polygraph tests rather than reduce or eliminate them.

In the sixth chapter, the authors acknowledge that videoconferencing offers some potential assistance in handling the cases of a large number of undertrials in Indian prisons but warn that it can infringe on the legal and constitutional right of an accused to a fair trial, due process and adequate representation. Therefore, the book appeals to the government to implement the bail provisions that allow for the release of long-term and indigent undertrials.

In the seventh chapter, the authors review the anti-conversion laws in place in several States. They argue that these laws evince a clear pro-Hindu bias and that they have been framed imprecisely to be applied in an arbitrary and discriminatory manner.

In the eighth chapter, the authors lament that the current state of the law in India continues to allow impunity for even the most serious human rights violations. According to the book, this system allows police officers, armed forces and other security personnel, and other government officials to commit such abuses as torture, extra-judicial killing, and illegal arrest and detention without fear of sanction, and leaves the victims and their families without adequate redress. The authors, therefore, strongly recommend that India must amend or repeal such laws so that government sanction is never required for prosecution and individuals can sue the perpetrators of the abuse or otherwise receive adequate compensation for constitutional rights violation.

In the last chapter, the book reproduces Noorani's article published in Economic & Political Weekly in 2009, making out a strong case for an immediate review of the AFSPA. Noorani is convinced that Section 4 of the AFSPA is manifestly and demonstratively violative of Article 21 of the Constitution, which guarantees the right to life and liberty. Section 4 enables the police officer in a disturbed area to open fire on or use force, even to cause death, against any person who is acting in contravention of any law or order. Noorani calls this a carte blanche unheard of in any other statute in any other democracy. He suggests the setting up of an independent appellate body under the Act to entertain complaints against the armed forces or the police when they operate under the Act.

To sum up, the nine challenges to civil rights guarantees in India, as explained in the book in great detail, are indeed formidable. One cannot be under the illusion that the authorities will readily accept the remedies suggested by the authors to meet these challenges, unless there is strong public opinion in their favour. The book would have achieved its purpose if it succeeds in mobilising such opinion.

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