JUDICIAL ACTIVISM IN INDIA: Transgressing Borders and Enforcing Limits by S.P. Sathe. Oxford University Press, New Delhi, 2002.
THIS is a work that spans a veritable vastness of constitutional law and a reasonable bit of administrative law, even while it ranges the expanses of public interest litigation (PIL) with a clipping ease that only seasoned scholarship can bring. Professor Sathe’s easy familiarity with the Supreme Court’s engagement with law, politics and governance is abetted by his patience and his capacity for stating simply what is often obscured in the jargon of the lawyer.
‘Judicial activism’ is a term that, to the non-lawyer, has come to mean strident judicial intervention that holds the executive to account for its sins of commission and, often, omission. The reach of judicial activism is also believed to extend to filling in spaces of silence where legislatures have not spoken – a belief reinforced by verdicts such as Vishaka, which set out a law of sexual harassment at the workplace till a law be enacted by Parliament. In this context, it is judicial activism, as it has emerged through PIL, that has given the court a vibrancy and a relevance among social actors beyond the rarefied confines of the legal community.
To the professor, however, judicial activism is an aspect of judicial review. ‘This monograph is about judicial review,’ is, in fact, how Professor Sathe begins. And he explains: ‘Judicial review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution’ (p. 1). This explains the elaborate treatment of constitutional law as it developed between the fifties and the seventies before getting to PIL (or social action litigation, as it may more wisely have been tagged). Sathe’s judgment that the ‘basic structure doctrine’ culled out of the Kesavananda Bharati decision ‘is the high water mark of judicial activism’ is located in this rendition of judicial activism (p. 98).
It is a trifle difficult to envision, with Professor Sathe, PIL as merely an aspect of judicial review. In part, this is because of the extraordinary techniques of judicial intervention that the Supreme Court invented, and adopted. It is also the casting aside by the court of restraints placed by the doctrine of ‘separation of powers’ that called for a degree of ingenuity, which marked this phase of judicial activism. The invitation to participate in the judicial process that the court extended to journalists, activists, academics and anyone else who may be witness to constitutional neglect and lawlessness was unique. The departure from processual precision to substantive justice was accompanied by ‘juristic’ activism; and the jurisprudence of constitutional relevance and the rejection of redundancy of peoples that was propounded was explosive, yet coherent. The ‘discovery’ of panoramic rights within Article 21 and the ‘right to life’ is surely difficult to contain within ‘judicial review’.
It is perhaps the author’s willingness to find a constitutional continuum that has influenced his rendition. Upendra Baxi, in his preface to the book, calls the ‘judicial activism has always been with us’ understanding the ‘"continuity" thesis’. And he cautions that this thesis ‘suggesting that what we are left with, at the end of the day, is a profusion of different stories manifesting merely the variegated avatars of judicial activism misses the point, the point being that all narratives about judicial activism remains discontinuous and extraordinary’ (p. xi, emphasis in original). His assertion of belief that ‘judicial activism’ has no permanent ‘essence’ and its histories are merely ‘chronicles of contingency’ is an arresting idea.
S.P. Sathe had a ringside view of the developments in constitutional adjudication as also in the arena of PIL. There is, therefore, an authority in his statements about the nature, and import, of the process. Some observations, however, cannot be accepted without demur. ‘PIL... has... been sustained by social activists and individuals who have found its use more fruitful than the use of political methods such as demonstrations, satyagraha, or mass protest,’ he says (p. 246). May be this speaks of a view from within the legal community which may well not conform to the perception of social movements of their use of the court. In fact, it appears to conflict with what he himself says elsewhere when he calls for a ‘greater understanding (from the court) of the multiple strategies that social movements have to employ’ (p. 23).
A comment that goes: ‘Despite the popularity of the courts, no single judge has acquired a charisma. The decisions of courts are institutional. A layman rarely knows the names of the judges who give decisions,’ may deserve scrutiny. It is commonly acknowledged that Justice Bhagwati was a willing ally to those who brought issues to the court. The dissensions within the court in the early years of PIL also had the personality of judges as a point of tension. Letters addressed to individual judges, by name, gave cause for resentment, and Justice Bhagwati was at the centre of this dispute. The institutionalising of PIL needed the judge to develop the jurisdiction, even while not deterring other judges from adopting it. In later years, Justice Kuldip Singh assumed popularity as an environmental judge. It wouldn’t be distant from fact to suggest that the association of judges with causes has had a yet-to-be assessed impact on both the issues with which they have been identified, as also with the jurisdiction itself.
When Sathe, speaking of post-retirement postings, says: ‘Will a judge not compromise his independence by looking forward to such post-retirement appointment by the government? True, this might not have so far happened,’ he appears not to have noticed another book that has been around for a while now. Gobind Das, a senior advocate, in the 2000 edition of his Supreme Court in Quest of Identity, has written about Justice Pathak in the context of the settlement in the Bhopal Gas Disaster case. Quoting Justice Krishna Iyer flaying Justice Pathak for compromising judicial conduct in having the government lobby for him to be made a judge of the International Court of Justice while signing a questionable settlement, Das said: ‘Indeed the leakage of gas at Bhopal had an unfortunate victim at Delhi, Chief Justice Pathak... It is said that a "judge shall be a compound of faculties that are demanded of the historian, the philosopher and the prophet. The last demand upon him to make some forecast of the consequence of his action, is perhaps the heaviest." It requires poetic sensibilities. Pathak, C.J. evidently had lost this during the case in question, perhaps due to his quest for the high office in the World Court.’
The professor sees PIL as having altered the judicial process from adversarial to polycentric, and adjudicative to legislative (pp. 235-36). Visions of judicial ‘populism’, ‘excessivism’ and ‘adventurism’, however, invite anxiety to step in. And the book moves incessantly between an endorsement of judicial activism and a call for restraint. As the book draws to a close, the tussle between these two positions is rendered explicit: ‘Had the courts not entertained those matters, there would have been greater frustration among the people and perhaps it might have exploded in some way detrimental to democracy. Excessive judicial activism has avoided that situation,’ he says. And, immediately: ‘However, the courts always have to avoid exceeding their limits. Judicial activism should never verge on judicial adventurism... There are limits to what the courts can achieve’ (p. 308). This seesawing of sentiment between restraint and activism also leads the author to moot some backtracking: ‘However, the courts should not withdraw in a hurry,’ he says, suggesting beyond restraint to withdrawal. Yet, soon thereafter: ‘Judicial restraint on matters of governance might do harm to Indian democracy’ (p. 308).
The legitimacy of the institution would seem to be one reason for advocating both activism and restraint. With the power that such legitimated judicial activism has fostered, a theme that doesn’t disappear is one of the accountability of the judicial institution. In the current context of brutal majoritarian assertion, however, it is the professor’s depiction of the court as a counter-majoritarian institution whose significance is likely to be in the ascendant.
JUDGEMENT RESERVED: The Case of the National Human Rights Commission of India. South Asia Human Rights Documentation Centre. New Delhi, September 2001.
DURING the ’90s, following both national and international criticism of India’s lack of institutional mechanisms for the protection of human rights in the country, the central government enacted the Protection of Human Rights Act 1993 (PHRA). One central pillar of this act was the creation of the National Human Rights Commission of India (NHRC). However, the NHRC that it created lacked a specific structure or mandate.
The South Asia Human Rights Documentation Center (SAHRDC), a New Delhi-based NGO has recently issued a report on the NHRC and its impact on the human rights situation of the country. The report highlights the fundamental weakness arising from the fact that this body was created solely for political reasons rather than with a sincere attachment to the promotion and protection of human rights.
The study provides an analysis of the political and institutional framework that surrounds the NHRC. Relations between the government and the NHRC are metaphorically compared to a ‘volleyball game’. As a player in this game, the government does not have much respect for the NHRC. Recommendations from the NHRC to the government receive scant regard. This lack of respect or cooperation with the NHRC highlights its crucial lack of administrative independence and institutional legitimacy.
The SAHRDC publication provides a crucial comparison between existing international standards regarding National Human Rights Institutions (NHRIs) and their inclusion, or lack of inclusion, within the NHRC statute. In 1991, an international workshop organised by the United Nations resulted in the adoption of guidelines known as the ‘Paris Principles’. These principles set out the standards for establishing and maintaining strong and effective NHRIs. Following these, it is clear that the central principle determining the effectiveness of such human rights bodies will be the degree of independence they enjoy vis-a-vis governments.
Based on these international standards, SAHRDC examines the independence of the NHRC using four criteria; independence through legal and operational autonomy; independence through financial autonomy; independence of appointment and dismissal procedures; and independence through pluralism of composition. Judged on these four criteria, the NHRC is shown to be far from respecting international standards. The 1993 PHRA and the independence and impartiality of the commission have to be strengthened if the NHRC wants to accede to the status of a functioning NHRI.
A central purpose of SAHRDC’s work was to invite the NHRC itself to correct and give answers to the lacunae highlighted in the report. The report followed a thorough enquiry by SAHRDC into the work of the commission’s law division, and it was initially submitted to the NHRC in October 1999. However, after two years of inaction on the part of the NHRC and a lack of response to the findings of the report, SAHRDC decided to publish it.
Prior to SAHRDC’s report, only three attempts had been made to encourage the NHRC to evolve into an effective body. In 1996, the Kerala High Court submitted a draft proposal for amendments of NHRC’s procedural regulations for dealing with the complaints received and the suo motu actions taken by the Commission. In 1997, McKinsey and Company Inc. provided a report called ‘Preparing for a fresh start’ which proposed a three-step solution to the growing backlog of pending cases. Finally, in 1999, at the request of the Ministry of Home Affairs, the Staff Inspection Unit (SIU) issued a study on the staffing of the NHRC. Overall, very few of the recommendations made in those reports have been implemented. SAHRDC’s report also points out that the NHRC is not only deficient in implementing such external recommendations, it does not implement its own internal recommendations either. In this sense this report is the first to offer a comprehensive analysis of the NHRC with a particular focus on the reporting mechanism.
A great emphasis is given to the NHRC annual reports. In those reports the commission has on several occasions called for revision of the PHRA, but the Home Ministry has failed to put into effect such recommendations. Besides the emphasis on institutional problems, NHRC has repeatedly issued recommendations regarding the major problem of police brutality. Several proposals have been issued for the reform of police forces, the prison system and other aspects of the criminal justice system that do not conform to fundamental human rights standards. However, based on the annual report 1998-1999, SAHRDC points out that the NHRC reports have neglected to highlight the important issue of accountability. Whereas at the international level a clear consensus exists on the fundamental importance of accountability for human rights violations, especially in the areas of terrorism and insurgency, the NHRC reports provide little information on violations committed by the security forces in those areas.
The North Eastern states of India, for example, are not mentioned. This is due to the fact that the NHRC cannot directly intervene in the human rights violations committed by the armed forces. However, as SAHRDC points out, the commission should push to give itself more credibility by not remaining silent on this issue. In addition, when reports on human rights violations by military personnel are made, the method of reporting does not promote transparency. Generally speaking it appears that the NHRC remains helpless in the fight for accountability in this area, mainly due to lack of cooperation from the government but also due to the functioning of the commission itself.
After analysing in depth the different Memoranda of Action Taken by the Ministry of Home Affairs and the NHRC annual reports, SAHRDC finally gives its own perspective on and recommendations to the NHRC. It divides its list of proposals into 12 main areas, all of which are sub-divided to identify the problem and to offer a solution.
The first fundamental problem deals with the NHRC’s lack of infrastructure to fulfil its tasks. SAHRDC provides some very precise technical recommendations showing various possible ways of enabling the commission to gain in efficiency and independence. The report highlights that the NHRC not only lacks independence but also lacks more basic facilities such as computers and filing space.
SAHRDC also invites the NHRC to fully embrace its role as a human rights body and to push for the promotion and development of a human rights culture in the country. In this sense the commission should fulfil the goal that is clearly provided for in the PHRA. Finally, this publication identifies the general lack of cooperation and communication between the NHRC and other bodies that could be partners – whether NGOs, medical personnel or magistrates.
It is hoped that this report will be given more consideration than its predecessors, and that this time the NHRC will listen to and implement the suggestions that are made. The fundamental message of this publication is that it is crucial for India that such a human rights institution is able do its job effectively, and that this would certainly be the first step towards a future based on respect for human values.
Submissions to the National Commission for the Review of the Working of the Constitution. South Asia Human Rights Documentation Centre, New Delhi, 2000.
THE National Commission for the Review of the Working of the Constitution was created by the present NDA government amidst protest by the opposition and a sizable section of lawpersons, fearing that it was set up to effectuate the political agenda of the NDA on issues, among others, relating to the presidential form of government, (in)eligibility of persons of foreign origin for holding public office, secularism and so on. Justice M.N. Venkatchalliah, former Chief Justice of India, and the commission’s chairperson, put paid to some of these fears by publicly stating that the commission will not seek to tamper with the basic structure of the Constitution which includes, but is not limited to, secularism, parliamentary form of government, separation of powers and so on.
The commission has, unfortunately, not been able to reach out to the public and stir a genuine debate on issues that it has taken up for consideration. This has, perhaps, been occasioned on account of a later-day loss of interest by the government in the commission as also by the realisation that, after all, the commission is only an advisory body in nature and its recommendations will be as binding on the government as those of many other such commissions set up for recommending law reforms, or even the recommendations of the statutorily-backed Law Commission of India whose reports are more ignored than implemented. It is also felt that whatever the commission may ultimately recommend will be subjected to the rigours of parliamentary scrutiny and will have to cross the two-third majority threshold before it is incorporated in the Constitution.
Despite all this, the commission has been able to generate a substantial amount of literature in the form of consultation papers and committee reports on various issues which, admittedly, have been troubling the constitutional fraternity over the past few years and decades. The commission’s consultation papers, for example, on enlargement of fundamental rights, fundamental duties, role of governors, Article 356, inter-state commerce, among others, have constructively contributed to the debate in these areas especially when there has been an articulation of divergent opinions by courts, constitutional lawyers and the political class.
In this context, the three memorials submitted by the South Asia Human Rights Documentation Centre (SAHRDC) to the commission on abolition of the death penalty, preventive detention and the elimination of sovereign immunity have contributed substantially to assist the commission in addressing these issues within the broad framework of the issue of enlargement of fundamental rights. The memorials have painstakingly analysed the Indian and international legal position on these issues and, upon an analysis thereof, recommended consequent constitutional amendments.
If there is one issue that has agitated the constitutional fraternity in India right from the inception of the Constitution, it is the issue of preventive detention and the consequent impairment of individual liberty. The issue monstrously rose to its pinnacle during the Emergency when, except for the haunting dissent of Justice H.R. Khanna, the Supreme Court notoriously held that fundamental rights could be suspended during an emergency, leaving the citizen with no remedy to approach superior courts in exercise of their fundamental rights jurisdiction.
Although post-Emergency court decisions have increasingly sought to humanise the preventive detention laws, the existence of an express provision for it in the Constitution in the form of Article 22 has prevented them from going beyond mere tinkering with its procedural and substantial aspects. SAHRDC has, therefore, quite appropriately, sought for an abrogation of these provisions from the Constitution and recommended that it be left to the Parliament to enact laws for preventive detention only in extreme cases which would, thereafter, be subject to test on the touchstone of the constitutional mandate of personal liberty. SAHRDC, in the alternative, recommends that if these provision are not abrogated from the Constitution, sufficient additional safeguards need be included in the Constitution to protect the rights of the detainees, including the right of periodic and continuous judicial review of detention order as also a right to know the grounds of arrest, right to legal counsel and cross-examination and, most importantly, for a right to compensation for unlawful arrest and detention.
The second memorial deals with the colonial legacy of sovereign immunity which, despite five decades of our republican existence, we still choose to retain. Under the current legal regime, government personnel have the privilege of sovereign/official immunity protecting them from criminal prosecution or civil suits – even if they commit serious human rights abuses. These immunity laws are holdovers from the colonial rule wherein the King was supposed to do no wrong and he could not be sued by his subjects in his own courts.
While the Supreme Court’s ingenious interpretation has somehow narrowed the scope of this immunity, there are existing legislations that require the express sanction of the government before any court can even take cognizance of complaints against its officials for having violated human rights ‘while acting or purporting to act in the discharge of their duties.’ The Law Commission of India (LCI), the National Human Rights Commission (NHRC) and even the National Police Commission (NPC) have variously recommended that a law be enacted to narrowly restrict the application of this doctrine in such a way that the liability of the state became the rule and the sovereign immunity an exception.
In fact, in 1997, the NHRC expressly called for a need to obviate the necessity of governmental sanction for the prosecution of police officers where a prima facie case of the custodial offence was established after an inquiry conducted by a sessions judge. SAHRDC has also sought an express constitutionally entrenched provision for the award of compensation in cases of human rights violations.
Over the years, there has been growing international consensus in favour of abolition of death penalty leading to the adoption in 1989 of the Second Optional Protocol to the International Covenant on Civil and Political Rights. In terms thereof, the statutes of the international criminal tribunals to try war criminals from Rwanda and former Yugoslavia have deviated from those of their precursor Nuremberg and Tokyo tribunals and have deliberately excluded the death penalty as a form of punishment. Statistics indicate that more than 114 states have become abolitionists and the number is growing.
In India, we have sought to develop the ‘rarest of the rare’ doctrine for imposition of death penalty so as to take into account issues like the manner of commission of crime, motive, anti-social or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. According to SAHRDC, this doctrine, paradoxically, has let the death penalty survive as a form of punishment over the years. It, however, does not comply with the prevailing international human rights standards in that it is exceptionally difficult, if not impossible, to create or operate a system with flexible standards for judges to determine the rarest of the rare case without having the sentencing process result in uneven or arbitrary treatment to the accused. Logically, therefore, SAHRDC has canvassed for the abolition of death penalty in totality.
With the recent experience of the adoption of the new South African constitution and the overwhelming involvement of the general public in its formulation, one would expect the commission to have also attempted to replicate the same. However, that having not been the case, contributions like the three memorials under review would go a long way in assisting it in formulating recommendations with a more comparative and holistic perspective imbued with inputs of the state-of-the-art developments in international law and other civilized constitutional polities.
SECURITY AND GOVERNANCE IN SOUTH ASIA edited by P.R. Chari. Regional Centre for Strategic Studies, Colombo and Manohar, Delhi, 2001.
THE study of security and governance occupies an increasing proportion of the attention which subjects such as international relations, political science and even law and economics had not so long ago. The importance of inter-disciplinary studies comes from their greater relevance to understanding practical problems and providing realistic ways of addressing them. When security and governance are studied in a particular context – in the case of the book under review, South Asia – the result may be of utility. The essays in this volume have been put together under the auspices of the Regional Centre for Strategic Studies (RCSS), Colombo. The RCSS has been engaged in broadening the framework in which security studies have been pursued to include ‘human security’ as an important objective in the regional discourse which so far, has focused mostly on the military and law and order aspects of security in the internal debates (within countries) and across South Asia.
This collection of essays strengthens the argument that South Asia’s real security problems lie beyond the military approaches to security. In fact, the individual country studies by Amena Mohsin (Bangladesh), Meenakshi Gopinath (India), Lok Raj Baral (Nepal), Shahrukh Rafi Khan (Pakistan) and Paikiasothy Saravanmuthy (Sri Lanka) provide lucid and compelling arguments to show that it has been the narrow military focus of the region’s five largest states which has exacerbated insecurity among the more than 1.3 billion people who live in South Asia. The excessive influence of the Generals, even in India’s maturing democracy in setting the agenda for a security discourse, is matched by the disproportionately high level of spending on armed forces and paramilitary and police forces by the five states which are the focus of the country studies. Clearly ‘human security’ is the casualty.
The linkages between the low level of human security and the quality of governance in South Asian polities and societies has long been obvious, but it is only when the nexus is explored that the limited relevance of military-diplomatic discourse on security, on the broader ‘insecurity’ problems of South Asia may be perceived.
South Asia’s social, economic and political conditions are very different from those obtaining in the developed ‘First’ world. Nevertheless, the concepts and normative categories on which governance is assessed are based on benchmarks established in say Western Europe and North America. While politics everywhere is about control over resources, ‘good governance’ is supposed to involve more than real politic and raw power. The five country studies make clear that both security and governance are still about the exercise of raw power in the decisions these states take, both in their external relations and in the strategy to control resources within the state.
What can be done to enhance the prospects for good governance and ‘real’ security for South Asia’s peoples? This collection of essays places the responsibility back where it belongs, i.e. in the hands of the people. Every narrative is about the failure of a certain kind of politics as much as about security and (mis) governance. Who must develop the (political) will so that an entire system changes course? Contemporary events warn that causes and consequences follow each other with accelerating ferocity. The essays were written before 11 September and its aftermath; before the deployment of the bulk of the Indian and Pakistani armies on the borders; and the premeditated terrorist attack in Godhra and the planned carnage that followed in Gujarat. What is most valuable about this collection of essays is that they help us understand these events, in some sense help us anticipate them, and for those of us with a taste for the ‘Karmic’ and not just the ‘Dharmic’ they indicate that there is no escape from politics.
Karan R. Sawhny
HUMAN RIGHTS AND POVERTY ERADICATION: A Talisman for the Commonwealth. Commonwealth Human Rights Initiative, Delhi, 2002.
THE Commonwealth Human Rights Initiative’s (CHRI) latest report to the Commonwealth Heads of Government Meeting (CHOGM) essentially deals with the issue of poverty in the Commonwealth, its causes, consequences and remedial measures. It diligently attempts to answer two questions: why poverty should be studied from the vantage point of human rights and why the onus lies with the Commonwealth to address it.
Based on a series of studies by sociologists, economists and developmental practitioners from different perspectives – Marxist, Weberian and Functionalist – the present report looks at poverty by considering its social, cultural, political aspects, thus, understanding it in its totality. In the process, it depicts poverty as a human rights issue and an abuse of human rights.
The report contends that poverty is the product of social, political and geographical shortcomings and how social inequalities such as untouchability, racism and ethnic conflict only exacerbate it. Equally, it stresses the role of discriminatory policies of the nation states and other decision-making bodies. Therefore, it argues that an all-out effort is necessary by different stakeholders, i.e., states, NGOs and the people at large who need to work in tandem to mitigate this deeply entrenched problem. The deployment of different strategies in terms of making appropriate state policies, revamping of official bodies and a sustained people’s participation is the need of the hour.
The report argues that the basic right of a human being is to survive and for survival he has to eat. Thus, the very existence of poverty constitutes a gross violation of human rights. This has been ratified by the rule of the law as well. The socially subjugated sections like women, children, minorities, schedule castes and tribes and racial groups have fallen victim to poverty and are denied their basic right of survival.
The report puts forward an array of explanations as to why poverty exists. Poverty can be seen as an offshoot of globalization for the liberalization and globalization policies have widened the already existing socio-economic class disparities. The uneven policies of nation states, and unresponsive governance coupled with existing social inequalities are taken to be some other prime factors responsible for poverty.
As remedial measures, the report suggests that the Commonwealth must first acknowledge the basic human rights problem. Further, recognise the inextricable connection between poverty and the ongoing socio-economic problems. While social inequalities aggravate poverty and worsen the condition of the poor, they also cause oppression, disease, conflict and environmental degradation. For instance, about 60% of all AIDS infected cases are found in the Commonwealth. In addition, the internal as well as external conflicts between the nation states (India and Pakistan, LTTE and Sri Lanka) worsen the problem.
The report appeals to national governments to design appropriate policies. It argues that strong political will and good and honest governance is essential to wipe out poverty. Brazil’s AIDS prevention policy can be treated as an instance.
Even though the prime responsibility lies with the state, civil society, intermediary/independent institutions, i.e., (NGOs) and the common mass too have to play a significant role. The report underlines the importance of people’s participation in decision making processes. This is possible only when people are empowered and given scope and opportunity to raise their voice at different platforms. For this, information sharing and wide dissemination of ideas and facts and promoting human rights education is necessary.
To emphasize the importance of popular participation, the report presents many lively examples from South Africa, Nigeria and Uganda. Reference is also made to mobilisation in Rajasthan villages and how the combined force of the people can keep the state machinery on track. Their unified protest forced officials to return the money which was misappropriated and enabled people to win back their due entitlements.
The report recommends that the Commonwealth take initiatives to make poverty a universal and international issue. It should revamp and energize bodies such as CMAG, CHCHR, HRU and the Office of the High Commissioner for Human Rights (OHCHR) based on the Universal Declaration of Human Rights and the International Covenants on Political and Civil Rights as also Economic, Social and Cultural Rights.
The report, however, has overlooked the existence of inequalities within the vulnerable sections (inequality within inequality). For example, a dalit rural woman is socially more vulnerable than a ‘general’ urban woman and hence, their problems cannot be equated. The same can be said for scheduled castes, scheduled tribes and other vulnerable groups as well. Hence, different and specific group oriented approaches and strategies may be necessary.
Pedagogically speaking it would have been better had the report distinguished between different Commonwealth countries. A more focused discussion in terms of economic status of the countries could have been provided. Similarly, the report seems to have examined poverty only in its absolute dimension without giving sufficient thought to the concept of ‘relative poverty’.
PERSPECTIVES ON POLICE TRAINING by S. Krishnamurthy. Institute of Social Sciences, New Delhi, 2002.
DESPITE their only too well-known misdeeds and the enormous power and influence that police wield over the lives of people like us, little serious attention is paid to police reform. Not enough is written about the police in India much less about practical means to reform them. What there is, is confined to the readings of those who are already knowledgeable on the subject. However, over the last few years a trickle of literature has emerged that aspires to seed the now long dead debate on what should be done about an essentially failed arm of governance.
Krishnamurthy’s book, Perspectives on Police Training, which concentrates more on the reform of police training methods than of the whole institution, deals both with the patterns of crime that confront the police of the 21st century and strategies that can be adopted for improved training for different levels of personnel so as to make for a more efficient police. The author makes a plea for a revised philosophy to underpin training efforts and improved training methods and skills to create a people-friendly force capable of dealing with the challenges of the times.
The police in India, as in all countries in the subcontinent, have traditionally been part of a colonial system of criminal justice that reined in a native population. Training was geared to maximize the use of force and suit the needs of colonists. As a result training was militaristic, emphasized physical fitness, drill, blind obedience, unquestioning discipline and curbed innovation or initiative in the constabulary. In the intervening years since Independence the population has increased threefold and police duties have multiplied, yet little has changed in the classroom or parade ground. Police training also remains undisturbed by the intervention of a constitution that foregrounds democracy, pluralism, rule of law, concepts of citizenship, human rights and civil liberties.
The Gore Committee (1971) argued that the police could be trained to enforce rule of law in a democracy and emphasized the need for training that would enable the personnel to change their attitude toward the citizenry. In order for police to acquire ‘a high degree of professional competence, they need to develop a clear understanding of the social purpose of their activity and sensitivity to the trends and forces at work in the environment in which they act. They require to develop attitudes in consonance with the concept of social justice contained in the Constitution and develop programmes with particular reference to the weaker sections of the community, including the poor, the minorities and the SC/ST’s.’
As a result of these recommendations initiatives were taken at some levels of training in police institutions. These now include courses in behavioural sciences, emphasis on police management and leadership, improving the mental horizons of police officers through the study of wide ranging subjects, deputation to non-police training institutes, formation of a Central Directorate of Police Training and similar ones at the state police headquarters under an Inspector General of Police, and so on.
However well meaning the recommendations of various commissions, few are implemented. Krishnamurthy rightly points out that to date efforts at training remain ad hoc and unsystematic, limited to and concentrated on senior officers when it is the rank and file who should be the major focus of attention. Even where money for training is not the issue because so little is required, many good experiments such as those initiated by the Bureau of Police Research and Development suffer for want of attention, encouragement and willingness to replicate. Police sub-culture continues to deteriorate. The public has its own negative image of the police but it is increasingly being acknowledged that the internal sub-culture is creating a force which is barely amenable to obedience even to its superiors: the constabulary with few role models to draw on from within the force prefer to depend on direct obedience to and connections with political patrons rather than to submit themselves to the discipline of the force or answerability to immediate superiors.
Krishnamurthy additionally suggests that modern policing requires an infusion of non-police personnel for research and development, the application of appropriate technological improvements at desirable levels, a bottom to top approach which includes the induction of quality manpower at the grassroots, and an integrated crisis management service with global dimensions of which the police will be an integral part. Finally, the author also suggests that it is practical to privatize some of the duties that police carry out today.
All this is commonsense. The National Police Commission (1979-1981), a group of well-reputed experts in policing and governance sitting in the aftermath of the police’s dark record during the Emergency, examined police functioning and made the most comprehensive recommendations since the Fraser Commission (1902) for overhauling police functioning so that the force becomes a handmaiden of democracy rather than the impediment it presently is. The NPC recommendations were carefully and deliberately mothballed until now, nearly two decades later, they are hardly known or discussed. But they remain valid and practical. Though police is a state subject, the central government has enough clout to encourage serious dialogue and catalyze reform in the states. But it has not done so. The states have shown uniform reluctance to curb or punish erring police and a conspiracy of silence allows malfunction to continue uncorrected.
The National Human Rights Commission receives over 70,000 human rights complaints a year – a majority against the police. Going to the heart of the problem the NHRC has impleaded itself in a public interest litigation that seeks to have the NPC’s recommendations acted upon. But in the meantime it is reduced to wringing its hands in frustration at the refusal of the executive to act.
All this leaves open the question: why is so little being done to improve a force of some 13.2 lakh personnel, which costs the exchequer roughly Rs 12511.73 crore per annum and yet has managed to lose the confidence of the public entirely? The answer lies in a lack of political will since the force is politically convenient to every ruling party. Possibly this is why we see increasing reliance on undemocratic laws like Prevention of Terrorism Ordinance and the threat of force in lieu of good governance.
Though the Gujarat killings, arson and looting provide evidence beyond reasonable doubt of the police culpability, inefficiency, bias, failure of command, function and will, it is unlikely that public suffering and outrage will translate into meaningful efforts to reform the force either in Gujarat or elsewhere.
No doubt as is usual, diligent NGOs will collect piles of evidence, a judicial committee will uncover evidence of atrocities and criminal acts by the police, and the courts at some long date will pass strictures against the usual suspects. But, as has happened with all the other inquiries, named policemen safe in the sponsorship of their political patrons will go on being promoted and live happily ever after even as their victims eke out broken lives as best they can.
Even as the sense of injustice turns to cold anger and rage, books like the one under review that ask little enough will probably be ignored. Given the insular nature of our political classes it is unlikely that, unless strongly pushed, Krishnamurthy’s book will find an audience outside those who already believe that the police in its present form is well past redemption. Any effort at seeking new information is regarded as prying into a domain that is out of bounds. There is an urgent need to collate literature on the various commissions and committees that have been set up on police issues and publish them in an easy to read style in different regional languages. Krishnamurthy’s attempt to highlight fresh perspectives on police training so that the law enforcement agency can be made more people friendly are praiseworthy.
Maja Daruwala and Doel Mukerjee
THE FUTURE OF HUMAN RIGHTS by Upendra Baxi. Oxford University Press, New Delhi, 2002.
THE notion of human rights certainly counts as one of the most influential ideas of our time. While most books on the subject enumerate existing rights in international and national law, this book avoids lawyers’ law. Instead, it offers a map of current trends in human rights theory and practice and raises several questions on its future and past in order to inspire a social theory of human rights. The preface proclaims the principal message of the book – original authors of human rights are people in struggle (p. vi). Another recurring theme in the book is the distinction between politics ‘of’ and ‘for’ human rights.
Baxi has chosen to use the phrase ‘"modern" human rights’ to describe what most other commentators would call natural rights. It is a tough but necessary task for those who consider themselves a part of the human rights movement to counter Bentham’s proclamation that ‘natural rights is simple nonsense... nonsense upon stilts’ (As quoted by B. Weston, ‘Human Rights’ 20 New Encyclopaedia Britannica 15th edn. 1992). Baxi classifies this sentiment as a version of ‘human rights weariness’ in his description of attitudes (p. 52). Baxi’s distinction between ‘modern’ and ‘contemporary’ notions of human rights is central to his thesis and it is apposite to rehearse the argument here.
Modernist rights unabashedly excluded slaves, colonized people and women at different periods and provided justifications for imperialism and racism. In contrast, ‘contemporary’ human rights have rejected racism and apartheid through conventions and jus cogens (this may be roughly defined as the ‘higher law’ upon which international law is based – for a detailed analysis of the concept, see G.M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’, European Journal of International Law 2(1), 1991, p. 42) sought to outlaw discrimination against women, among other profound declarations. The book also argues that contemporary rights are not exclusivist and rather proclaims that ‘all human rights are universal, indivisible and interdependent and interrelated’ (see Article 5 of the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993). Such recognition at the international level have encouraged combating other forms of violent social exclusion such as caste. The impact of the Cold War in both ‘naturalizing violation’ as well as creating global consensus on rights is also discussed.
While outlining the actors and their attitudes in the practice of contemporary human rights, Baxi traces the history and importance of NGOs and concedes that their number is beyond a mapping exercise. Nevertheless, the politics of naming, modes of organization and ideologies are suggested as preliminary criteria for classification, while stressing the need for constant social audit.
Baxi’s forte is to classify previously unclassified ideas, such as the attitudes with which human rights are approached. The notions and issues that are intelligibly categorized are as divergent as – human rights are a moral mistake, symbols of western progressive Eurocentrism, wariness of the violated, ethics of dialogue between perpetrator and victim, human rights as civil religion, and the dangers of bureaucratization and professionalisation.
Returning to the analytical frame, the book asks if there are too many or too few human rights. It points out that the many human rights are all soft law and there remain many areas that are as yet untouched such as the emerging right of sexual minorities.
Influential theoretical challenges to human rights from the perspectives of identity politics (Chapter 5) and relativism (Chapter 6) are addressed. In addressing conflicting rights due to identity, Baxi stresses that such conflict can arise only if universal human rights are firmly in place (p. 83). He further urges, ‘...there is a need to humanize human rights – not by contesting Lacan, Derrida or Foucault, but by sharing both nightmares and dreams of the oppressed’ (p. 87).
While addressing relativism, Baxi distinguishes between absolutes and universals. Baxi relies on Hegel’s distinction between abstract universality (where identity is undifferentiated), abstract particularity (where there is differentiation on the basis of identity) and concrete universality (where there is a full realization of individuality) and maintains that human rights are an example of the latter. He states with conviction that: ‘The universality of human rights symbolizes the universality of collective human aspiration to make power increasingly accountable, governance progressively just and the state incrementally ethical. I know of no "relativist" strand of thought that contests this desideratum’ (p. 105, emphasis in original).
One of the unique contributions of the book is the introduction of the metaphor of the market to explain the commodification of human suffering. Funding agencies and NGOs are not the only ones implicated in the process; academics and what Baxi calls NGIs (non-governmental individuals) are not to be excluded. Once again there is an excellent enumeration of previously unclassified phenomena – this time the techniques of commodification of suffering. The market metaphor is skillfully extended to the issue of regulation of actors in the human rights world.
The stage is now set for the announcement of a third category of rights – trade related market friendly human rights. This chapter states that corporate appropriation of human rights is a reality where each domain promises the greatest common good, as evidenced by the right to food being interpreted as the rights of agribusiness, or right to health being interpreted as sanctioning increased protection of the pharmaceutical industry. Baxi also provides some black humour in imagining a ‘draft charter of human rights of global capital’ (p. 150-151). Baxi argues that though commerce was most often a factor in earlier pronouncements of rights, it is the ‘scale of reversal now entailed that marks a radical discontinuity’ (p. 155, emphasis in original). This formulation is set in the context of states becoming weaker and borderless for companies, while maintaining repressive power over dissidence. Also, emphasis is laid on the ways in which massive risks have been normalized, be it in the context of nuclear energy and weaponry or in the creation of genetic databanks and a corporate heritage of mankind (p. 162, emphasis in original).
The book seems like a step towards a social theory and history of human rights, and Baxi constantly outlines areas for future research. These include the role of non-western cultures in the authorship and ownership of rights (p. 26), need for a comprehensive social history of rights (p. 32, n. 18), and encouraging dialogue across identities by the narration of social histories of suffering, histories of structures of terror that aim at destroying agency and the ways in which resistance to domination constructed before and after human rights (p. 85, n. 22).
The notion of obligations is both a normative and lived element (be it in the form of debates on political alternatives such as communitarianism or cultural notions such as ‘mitzvah’ in Judaism or ‘dharma’ in Hinduism) in the debates on rights. It is surprising that Baxi does not allude to these while speaking of non-individualistic notions akin to rights. He does, however, speak of the human rights obligations of corporations and the state, but does not attempt to look for other such obligations. The issue of group rights is raised in a striking sense that rights are claimed by groups but are granted to individuals. This is used to suggest the ‘foundational violence of law’, but is not taken further. Another curious feature of the book is that the role of academia is not included in the metaphor of human rights markets. There is also little mention of the current crises facing India, but hopefully they would be enumerated elsewhere.
Baxi warns that this book raises more questions than it answers. The strength of the book is that the positions that the author differs from are stated in detail. The meticulous footnotes and a vast bibliography serves as an excellent guide for the curious reader to delve deeper into the profound issues raised. Finally, the book urges ‘dissenting academics’ and activists to converse and evolve more creative approaches to the challenges thrown by globalization. I would commend the book as an essential read to all persons interested in the theory and practice of human rights.