HUMAN RIGHTS

HUMAN RIGHTS The term "human rights," denoting universally applicable moral principles as the rights of all people, was until recently not in common usage in India, either as a language of resistance or as a normative principle in matters of governance. Rights were articulated in the course of the anticolonial struggles as civil liberties and democratic rights. These rights were incorporated in the 1950 Constitution of India as Fundamental Rights which were justiciable in the courts of law, and as the Directive Principles of State Policy. The latter are seen as indicating the general direction in which the expansion of fundamental rights ought to take place in such areas as socioeconomic equality and justice. In the years after independence, numerous movements emerged against caste and class oppression, and in support of development, civil liberties, and democratic rights for all Indians.

The Legal Framework of People's Rights in India

The Constitution of India and specific laws, along with representative and statutory institutions, provide the framework within which the rights of the Indian people become effective. These rights have helped to engender a process of equality in a society long segmented and stratified by caste, feudal, and class hierarchies. Alongside uniform rights the Constitution also recognizes group-differentiated rights. Religious minorities and weaker sectors of society are guaranteed some special safeguards (e.g., the right to freedom of religion). Similarly, the Directive Principles of State Policy (Part IV of the Constitution) direct India's central and state governments to promote socioeconomic conditions in which legal, political, and cultural rights will become substantial. Article 38, for example, directs the state to commit itself to "the welfare of the people" by promoting a "social order" in which "justice—social, economic and political—shall inform all institutions of national life." To achieve this, the state is urged to "strive to minimise inequalities of income" and to "eliminate inequalities in status, facilities and opportunities." Article 46 likewise instructs the state to "promote with special care the educational and economic interests of the weaker sections of the people and in particular, of the Scheduled Castes and Tribes" and "protect them from social injustice and all forms of exploitation." The Directive Principles thus envisage an active role for the state in providing a range of socially ameliorative rights, including access to adequate means of livelihood, equal pay for equal work, living wages for workers, provision of just and humane conditions of work, and the right to education, public assistance, equal justice, free legal aid, and adequate nutrition and health.

There are specific provisions in the Criminal Procedure Code and the Indian Evidence Act that protect people against arbitrary arrests, detention, torture, and use of force by the police. Specific Acts of Parliament have also sought to give protection to disadvantaged social groups. The Protection of Civil Rights Act of 1955 "penalises the preaching and practice of untouchability in any form and prescribes punishment for enforcing any disability arising from untouchability." Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 provides for special courts for the trial of offenses against members of Scheduled Castes and Tribes and for the relief and rehabilitation of victims of such offenses. Moreover, special institutions have been created by specific acts of Parliament to protect the needs of disadvantaged groups. These include the National Commission for Scheduled Castes and Scheduled Tribes (The Constitution [65th Amendment] Act, 1990); the National Commission for Women (the National Commission for Women Act, 1990); the National Commission for Minorities (the National Commission for Minorities Act, 1992); and the National Commission for Backward Classes (the National Commission for Backward Classes Act, 1993). The Protection of Human Rights Act of 1993 set up a National Human Rights Commission (NHRC), state human rights commissions in states, and human rights courts for improved protection of human rights. Under this act, "human rights" are defined as rights relating to life, liberty, and equality, and to the dignity of the individual, as guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India.

The Practice of Human Rights: Ambivalences and Divergences

The practice of human rights in India has demonstrated both ambivalences and divergences. The institutional structures of the post-colonial Indian state are embedded in liberal Western principles of freedom and equality of individuals, as well as socialist principles of socioeconomic equality. At the same time, however, the social fabric of India continues to be deeply fragmented and segmented by caste, religion, language, class, and gender. Indian democracy, unfolding within the framework of the Constitution, evinced strong strands of egalitarianism and individual and group freedom. Ironically, however, it also incorporated measures that focused on "securing the state" in ways that eroded personal liberties and freedoms. In a manifestation of this "duality of state structures" in India, its democratic strands thus coexist with authoritarianism. Paradoxically, the Fundamental Rights to Freedom (Articles 19–22) in the Constitution contain provisions for "preventive detention," noting conditions under which these rights can be rendered virtually inoperative. Successive governments made extensive use of these constitutional provisions to enact preventive detention and other extraordinary laws to curb political dissent. Moreover, emergency provisions in the Constitution (Articles 352–360) specify certain conditions of "national emergency," during which parts of the Constitution, in particular those relating to the fundamental rights of citizens, may be suspended.

The Preventive Detention Act of 1950, used against the communists in Telengana, was the first such detention law enacted after the adoption of the Constitution. The Indo-China War of 1962 provided another occasion for the vigorous use of preventive detention. The declaration of emergency due to the war enabled the government to promulgate its Defence of India Ordinance of 1962 and to frame rules under it. The official state of emergency persisted until subsequent wars with Pakistan in 1965 and 1971, and the government continued to detain people under the 1962 act. In 1968 the Unlawful Activities (Prevention) Act was passed, turning many emergency powers under the Defence of India Act into statutory law. Under this act, any organization could be declared illegal, and any individual imprisoned for questioning India's sovereignty over any part of its territory. The Preventive Detention Act, renewed seven times, lapsed in 1969. The states, however, continued to enforce their own preventive detention laws. In 1971 Parliament passed the Maintenance of Internal Security Act (MISA). The Defence of India Act of 1971 introduced some changes in MISA, particularly regarding the period of detention, making it more stringent. Indira Gandhi's "National Emergency" of 1975 suspended the right of access to the courts for the restoration of fundamental freedoms. Under such conditions, MISA assumed formidable powers. Certain amendments were subsequently made by the government, which virtually rewrote the act. The Constitution (39th Amendment) Act placed MISA in the ninth schedule of the Constitution, placing it beyond judicial review. The Constitution (42nd Amendment) Act of 1976 further strengthened the powers of the central government by providing that no law for the prevention of antinational activities could be declared invalid on grounds that it violated the fundamental rights in Part III of the Constitution. In 1977 the Janata Party government repealed MISA. It did not, however, repeal the other extraordinary laws that had been enacted by earlier governments, including the Armed Forces Special Powers Act and the Unlawful Activities (Prevention) Act. Preventive detention laws continued to be enacted by different political parties in power in the states of Madhya Pradesh, Jammu and Kashmir, Bihar, and Orissa. When the Congress Party returned to power, the National Security Act (NSA) of 1980 was enacted, followed in 1985 by the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985 and 1987. TADA lapsed in 1995, but in 2002 the coalition government led by the Bharatiya Janata Party pushed through the Prevention of Terrorism Act (POTA) in an extraordinary joint session of Parliament. In December 2004 the new coalition government of the United Progressive Alliance led by the Congress Party of India fulfilled its election promise and repealed POTA. Several provisions of POTA were, however, retained through amendment in the Unlawful Activities Prevention Act, 2004.

Successive Indian governments have deployed extraconstitutional measures, euphemized as "encounters" and "disappearances" to counter insurgencies or class conflicts—for example, against the Naxalites, as the Marxist-Leninist guerrilla organizations are called, against the Khalistan secessionists in Punjab in the 1980s, and against Muslim secessionists in Kashmir since the 1990s. Moreover, the Northeast states of India, in a continuation of British colonial policy, have been viewed as a frontier region, a land to be buttressed and militarily secured. In this view, the specificity of the region as well as differences among the people of the area were overlooked, and the Northeast was construed as a homogenous territorial unit, disturbed and dangerous, control of which was imperative for strategic reasons. Thus movements for self-determination and autonomy in various parts of the region, and struggles grounded in issues of underdevelopment, illegal migrations, questions of identity, and political rights were addressed by the central government with its coercive might in the form of counterinsurgency measures, backed by laws like the Armed Forces (Special Powers) Act of 1958.

Custodial violence is yet another violation of the right to life and liberty of citizens at the hands of the state. Torture, rape, and deaths in custody have been reported in large numbers. While campaigns by civil rights groups and dissemination by newspapers have brought these violations to public notice, the procedure of redemption in these cases, including prosecution and compensation to families of victims, most of whom are poor, remains painfully slow. The NHRC's annual report for the year 2001–2002 cites 165 deaths in police custody and 1,140 deaths in judicial custody.

Another area of human rights violations are crimes perpetrated by dominant sections of the population against marginalized groups. Recent cases of upper caste violence in Haryana, Punjab, and Bihar demonstrate how the fundamental rights of the Constitution are regularly thwarted by the complex hierarchical structures of Indian society. The lynching of Dalits (formerly called "untouchables") by upper caste villagers and members of the Vishwa Hindu Parishad in the Dulina district of Haryana in October 2002, for example, reveals that the vulnerability of Dalits involved in the leather trade was increased by police threats to implicate them under the Prohibition of Cow Slaughter Act. The shocking pattern of communal violence and murder of Muslims in Gujarat in February 2002 shows a collusion of the state government in acts of brutal violence and its justification by the political leaders of the state.

In all cases of mass violence, as in Gujarat, women suffer directly as victims of rape; they also suffer indirectly when rendered destitute or homeless by displacement, loss of livelihood or the death of wage-earning family members. Another constant problem is sexual harassment at the workplace. Despite guidelines issued by the Supreme Court in 1997 in the Vishakha case, in most places of work there is no attempt to prohibit or punish harassment.

Movements for the Expansion of Rights in India

The concept of rights has progressively widened as a result of popular struggles to include rights not mentioned in India's existing legal-constitutional framework. The right of access to the means of subsistence and control over resources for peasants, the right of indigenous people to their cultural resources, environment, and livelihood, the right to a humane environment and humane development are some of the rights that have emerged as a result of people's movements. The Narmada Bachao Andolan, for example, has sustained a prolonged struggle against the building of the Sardar Sarovar Dam on the River Narmada. The large number of people displaced by its construction has not only raised significant issues pertaining to people's rights, but has also subjected state development projects to greater scrutiny. Similar movements against large dams are seen in other places, including the Tehri region of Uttaranchal. Experiences with development projects and popular struggles have also shown that while these movements have succeeded in raising consciousness about human rights, they have also borne the brunt of state repression. Similar issues of access to resources and claims to a traditional environment and livelihood have been raised in the context of attempts by the state to appropriate forests, which would prevent local people from exercising their claims to the forest and its resources, as in the Chipko movement in what is now the state of Uttaranchal.

It is important to note that a vibrant civil rights movement has developed in India. In a 1982 judgment (People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473), the Supreme Court held that nonpayment of minimum wages to workers amounted to denial of their right to live with basic human dignity, violating Article 21 of the Constitution, which guarantees to every Indian citizen the fundamental right to life and personal liberty. It is also important to note that the origins of the civil rights movement in India is often traced to the formation of the Indian Civil Liberties Union (ICLU) in Bombay on 24 August 1936 under the initiative of Jawaharlal Nehru, with Rabindranath Tagore as its president, Sarojini Naidu its working president, and other prominent nationalist leaders as members. "The idea of civil liberties," said Nehru in his address to the founding conference of the ICLU, "is to have the right to oppose the government." The ICLU investigated cases of political imprisonment and harassment, police brutalities, bans and restrictions on citizens' and subjects' rights by the British colonial government and by the rulers of the princely states, publishing reports and lodging protests on the basis of its investigations.

After independence in 1947, and with the adoption of a republican constitution, many nationalists' concerns for civil liberties diminished or disappeared. Nationalists who had once vehemently espoused the right to oppose the government now evinced an overriding anxiety over protecting the infant state. Communists involved in peasant movements in the Telengana region of Andhra Pradesh and Tebhaga in West Bengal took the initiative to reorganize the civil rights movement. The Civil Liberties Committee (CLC) was formed in West Bengal in 1948 with the support of renowned intellectuals. It was in this phase that the movement had to face a conceptual dilemma that lingers to this day—the question of political violence. Working on the assumption that state violence was more harmful to civil society than that practiced by revolutionaries, the CLC took the stand that the primary task of the movement was to oppose the authoritarian tendencies of the state and to see that the state did not assume arbitrary powers or move beyond the boundaries set by law.

In 1971 elections the Congress government of Indira Gandhi was reelected, riding high on her populist slogan of "eliminate poverty." The next few years, however, saw the promise of radical change based on economic growth and equitable redistribution slip away. The Congress government faced massive opposition in Bihar, which threatened to assume nationwide proportions, while a similar movement against the imposition of central rule loomed large in Gujarat. Under the Emergency Provisions of the Constitution, Prime Minister Gandhi armed the government with extraordinary powers, proclaiming a "National Emergency," which lasted from June 1975 to 1977. In the pre-Emergency period, the civil rights movement had remained an appendage to one or another regional struggle. While concerns for civil rights were generated in the course of these struggles, these concerns remained at the periphery of those political struggles. The National Emergency, unlike state repression of struggles in earlier years, caught in its web large numbers of those functioning within the parameters of parliamentary politics, irrespective of their ideological leanings. The Emergency thus shook the urban middle class intelligentsia out of its complacency regarding the durability of the democratic processes. The shared experience of repression generated a sympathetic perception by liberal groups of the more radical groups, while alerting sections of the latter to the importance of constitutional values. This experience shaped the intellectual and political context that led to the emergence of an autonomous civil rights movement. Regional organizations, notably the Andhra Pradesh Civil Liberties Committee, the Association for the Protection of Democratic Rights, the Committee for the Protection of Democratic Rights, the Organisation for the Protection of Democratic Rights, and, at the national level, the People's Union for Civil Liberties and Democratic Rights, all of which were formed either before or during the Emergency, acquired national attention and support.

In addition to civil liberties and democratic rights groups, people's tribunals, human rights commissions, and citizen's initiatives have also investigated specific events. For instance, the Indian People's Human Rights Tribunal, under Justice V. R. Krishna Iyer, was set up by the People's Human Rights Commission on 10 January 1987 in the aftermath of the 1984 massacre of Sikhs in Delhi and in other parts of the country, following the inaction of the government to bring the guilty to justice. The Human Rights Commission consisted of a number of prominent persons, including V. M. Tarkunde, Mrinal Sen, Rajni Kothari, and Romila Thapar. The main objective of the commission was to establish and maintain the Human Rights Tribunal comprising ex-judges of the Supreme Court and the high courts.

In 1993, amid growing domestic concerns over human rights abuses in different parts of the country—particularly the Northeast, Punjab, and Jammu and Kashmir—and international pressures for greater governmental accountability, the Protection of Human Rights Act was finally passed. The act provided for "the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto." The seminars held at Mumbai, Delhi, Hyderabad, and Kolkata to elicit public opinion on the National Human Rights Commission Bill were, however, strictly official affairs, and very few individuals apart from officials and ministers were invited, giving rise to apprehensions that the NHRC might be yet another attempt to dampen opposition to civil rights violations in India. While various other national commissions, including those on women, minorities, and scheduled castes and tribes, have been made ex-officio members of the commission, the NHRC has been explicitly precluded from taking up cases pending before other commissions, which effectively removes many matters from its purview and limits the scope of its investigations. In its actual working, however, the NHRC has made several significant interventions. It filed a Public Interest Litigation in the Supreme Court, seeking to enforce the rights of the 65,000 Chakma tribals who were being persecuted in Arunachal Pradesh (National Human Rights Commission v. State of Arunachal Pradesh Writ Petition [Civil] No. 720 of 1995, SC 295, 1996, 49435.). The NHRC also opposed the Prevention of Terrorism Ordinance and Bill for its ramifications for the promotion and protection of human rights, but with little success. Most recently, it intervened in the Gujarat cases stemming out of the many murders of Muslims in that state in February 2002.

Ujjwal Kumar Singh

See alsoEthnic Conflict ; Gandhi, Indira ; Gender and Human Rights

BIBLIOGRAPHY

Anderson, Michael R., and Sumit Guha, eds. Changing Concepts of Rights and Justice in South Asia. Kolkata and New York: Oxford University Press, 1998.

Desai, A. R., ed. Violation of Democratic Rights in India. Mumbai: Popular Prakashan, 1986.

Expanding Government Lawlessness and Organised Struggles. Mumbai: Popular Prakashan, 1991.

Gopalan, S. India and Human Rights. New Delhi: Lok Sabha Secretariat, 1998. Provides details of specific acts of Parliament and constitutional provisions pertaining to human rights.

Kothari, Smitu, and Harsh Sethi, eds. Rethinking Human Rights. Delhi: Lokayan, 1991.

Mohanty, Manoranjan, Partha Nath Mukherji, and Olle Tranquist, eds. People's Rights: Social Movements and the State in the Third World. New Delhi and Thousand Oaks, Calif.: Sage, 1997.

Prakash, Louis, and R. Vashum, eds. Extraordinary Laws in India. New Delhi: Indian Social Science Institute, 2002.