Human rights in India

A significant contribution to the human rights debate in the Indian context.

DISCUSSING human rights in the Indian context without paying homage to Justice V.R. Krishna Iyer would be sacrilege. An icon, nay a sage that the Grand Old Man is, one is inescapably sentimental reflecting on how fortunate we have all been to live at the same time as he is.

Our Constitution-makers were undeniably passionate about protecting the citizen from executive arbitrariness. They were convinced that he/she would be well served only by incorporating certain of his/her rights in the critical and fundamental document they were trying to give to the infant nation.

Jurists, however, believe that the Constitution would have been a document of empty words of assurance but for the prescience and grit displayed by two of our great Judges, namely, V.R. Krishna Iyer and P.N. Bhagwati.

(Upendra Baxi would add Justice O. Chinnappa Reddy and Justice D.A. Desai to this pantheon. He describes, later in the book under review, how the `Four Musketeers' differed from one another in their approach to social justice.)

Looking back long after these idols had shed office, it is difficult to visualise how life would have been without their guidance in our formative years. This is especially in an ambience where those who rule seem to believe that election by popular vote gives them the divine right to trample over men and women who do not bend.

If not for anything else, Raj Kumar and Chockalingam (who have written an informative chapter each on corruption and victim rights) deserve to be complimented for dedicating this volume to Krishna Iyer and also inviting former Attorney-General Soli Sorabjee to write a tribute. Soli's inimitable article `A man for all seasons' captures the essence of the legend: utter humility, immeasurable sensitivity to pain and boundless compassion. It was possibly these qualities that shaped Krishna Iyer's perception of what human rights are and how they should be nursed and delivered in a setting that was, until the other day, derisive of, if not downright hostile to, any act of kindness towards the powerless in the struggle against the powerful. Soli's allusion to the `true gentleman' of Cardinal Newman says it all.

Upendra Baxi is not blindly adulatory. Nor does he allow himself to be persuaded merely by the power of the language that Krishna Iyer's judgments articulated. Baxi derives his rhetoric rather from some sterling speeches that Krishna Iyer delivered in his more active years.

It is in these orations - many of us who have heard his stentorian voice thunder in public fora cannot consider his discourses anything less - that one savoured his `transcendental jurisprudence', which dared to go beyond what the sterile legal jargon would permit. When the ends of justice demanded, he refused to be chained by a strict constructionist approach.

He knew that if he settled merely for being prim and proper while walking the corridors of the Constitution he would have let down those who were screaming for a just order. This was even while on many occasions he did not hesitate to invoke the same document in unconventional ways only to go to the rescue of the individual harassed by the state.

For example, he often converted a mere `statutory right' such as `bail' into a `constitutional' right. In the same league was `solitary confinement', an abhorrent practice that no civilised nation should countenance. Krishna Iyer would even monitor the award of mandatory death sentences. This was not surprising because of his caustic denunciation of the barbarism that coloured capital punishment.

Mahendra P. Singh, Vice-Chancellor of the National University of Juridical Sciences (NUJS), Kolkata, who was formerly a Professor in Delhi University, firmly believes that India did well in recognising early that the state had positive obligations and not just the negative. It was this realisation that marked India from the West, whose emphasis was almost solely on holding the state's hands from committing excesses against citizens.

No doubt the Universal Declaration of Human Rights of 1948 and the two covenants that followed in 1966, namely, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICSECR), reinforced the common perception that human rights were justifiably global in their sweep.

But our Constitution-makers revealed a certain sensitivity in their assessment that went far beyond what was fashionable at the time when they deliberated on the task of constructing a viable Constitution. In their considered view, the approach of blindly aping the economically advanced West and opting only for rights that forbade the state to cripple citizen physically through modes such as incarceration, was inadequate.

In the Indian context, abstaining from acts of cruelty and harassment of the individual was no doubt necessary, but it was not enough. When the latter had no food, clothing or shelter, the state was obligated to move in and provide these to facilitate his/her basic sustenance. This was the philosophy of the Directive Principles of State Policy enshrined in the Constitution. If a citizen were to enjoy his civil and political rights, he should first be assured of his economic and social right to dignity in living.

In Mahendra Singh's estimate, it was this assurance that helped the Indian state take off without being eternally grounded. Few of us can fault this overview of what dictated Constitution-making in our country. The affirmative action that followed, one that has gained momentum in the past decade or two, has undeniably lent stability to our social order.

Incidentally, it has given a new hue to human rights that may still be invisible to the uninitiated Western scholar.

Sadly, about 60 years after Independence, there are two fundamental features of Indian society that still cause concern. Annoyingly, these receive wide and adverse attention from international scholars who pretend to understand India but are prone to grievous errors.

The ferment among Dalits and Muslims and the vulnerability of the Indian woman are no doubt fascinating areas for research. But there are definite pitfalls to avoid. One of these is the tendency to exaggerate or underplay them. Smita Narula of the New York University's School of Law seems conscious of these, and goes on to pen an eminently readable chapter on how communal violence has been handled pathetically by the criminal justice system in India.

What happened following the Delhi riots of 1984 and Godhra riots of 2002 receives major attention. She cannot be faulted if she makes some sweeping generalisations to buttress her thesis that several extraneous considerations weighed in the minds of the police and the judiciary while handling violence unleashed against the minorities in post-Independence in India.

In pleading for drastic reforms in the system, on the lines recommended by the National Police Commission (1977) and the Malimath Committee (2000), Smita does not say anything new. But such reiteration is helpful to remind law-makers that they had a supremely significant task on hand, which they could hardly ignore if they stood for ethics in governance. The lukewarm response of many State governments to the Supreme Court's recent directions on police reforms does not exactly send the right signal.

N. Ravi, Editor, The Hindu, brings a journalist's perspective that is unusual. Curtailment of the rights of the press to write freely on controversial subjects hardly excites majority opinion unless it is accompanied by the physical arrest or assault of a journalist. Subtle suppression of free expression is not viewed seriously. Ravi's explanation of this apparent public apathy is that the press is generally not seen as a disadvantaged section of society.

There is the added complication of a tension between human rights advocacy and the press because the former demands privacy of the victim while the latter believes that only aggressive reporting can undo the damage caused to the victim. Ravi's essay touches many other facets of the whole problem of how to facilitate a synergy between the press and the whole human rights movement.

Raj Kumar and Chockalingam have served the human rights cause splendidly by assembling so many reputed scholars to shed light on its different aspects. The volume deserves to be included as a textbook in the curriculum of universities that offer, either directly or remotely, human rights as a discipline of study.