The problem

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IT does appear that the more our respective states become incapable of fulfilling their most basic functions – maintaining law and order, ensuring security to the life and property of citizens forget developmental tasks – the greater is their tendency to demand, often promulgate, restrictive legislations. In all countries of the regions, be they formal liberal democracies or military dictatorships, coercive legislations which extend the power of the executive are becoming the hallmark of political arrangements. In the process the guardians of law, the very people and agencies whom we turn to for protection and who are the only ones legally entitled to the use of force, are not only insulating themselves from potential scrutiny, but may well be becoming lawless themselves.

The empirical evidence to this effect is staggering, both in the number and variety of legislations that exist on our statute books as also the manner of their functioning. But despite any number of investigative reports, official or otherwise, national or international, that point to the dangers of misuse as also the relative inefficacy of these provisions in meeting their objectives, the process continues unabated.

Many in India believed that the experience of the Emergency would sour our lawmakers of such proclivities. Yet, not long after our second freedom, we gifted ourselves TADA. This is in addition to the state preventive detention acts, the Disturbed Areas Act, the National Security Act, or the Armed Forces Special Powers Act, just to list a few. Those who mistakenly argue that ‘coercive’ politics was a gift of Indira Gandhi would do well to remember that the last mentioned act goes back to the ’50s and was brought in by the great liberal, Jawaharlal Nehru, to control the insurgencies in the North East. And despite pleas to the contrary and peace missions by the late Jayaprakash Narayan, the policy and legislation continues.

The story of TADA reads no different. Brought in to control violent militancy and insurgency in Punjab at the height of the Khalistani troubles, it was exercised far more vigorously in faraway Gujarat and Maharashtra. The ensuring human rights abuses are well documented as is the communal bias in its application. Worse, the actual rates of conviction of those accused was so low as to be laughable. Nevertheless, year after year, the ordinance was extended till public protest brought its life to an end in 1995.

Not that the reprieve was long lasting. Given the outbreak of insurgency in Kashmir, without doubt aided and abetted by forces and states external, and the dramatic shifts in public perception brought about by the horrific events of 9/11, we introduced fresh legislation in the form of the Prevention of Terrorism Ordinance (POTO). The ordinance promulgated in December 2001 was recently approved by the Lok Sabha. However, the Rajya Sabha voted against the ordinance. It is currently unclear whether the government will seek approval by convening a joint session of both houses, an extraordinary measure, or whether, as suggested, re-introduce fresh legislation after making necessary amendments.

Let us now turn to the debate. Human rights and social movement activists have consistently argued against such provisions, both because they violate constitutional norms and rights and invalidate processes of natural justice, as also go against many of the international covenants that our state is a signatory to. They point to the many abuses inherent in the system (incarceration for long periods without filing charges, admission of confessional statements as valid evidence, weak judicial scrutiny, restrictive bail provisions, and so on), the unwarranted protection and immunity afforded to the law and order and security agencies and personnel and, above all, underscore the inefficacy of these instruments. Finally is the claim that the ‘normal’ laws of the land, if expeditiously and properly implimented, are more than sufficient to meet the challenge posed by the alleged ‘lawbreakers’.

But are they? Talk to the police and even the liberal-minded among them, while privately admitting to many serious lapses in implimentation, will assert that the law as it stands, even more the dilatory nature of our legal prosecutory processes, ensures that the ‘guilty’ are rarely brought to book. And even if convicted, they are soon let out to continue their depredations. The feeling is that the forces are being asked to fight an unfair battle – be it lack of equipment and training, inadequate support from sister agencies, or political interference. Worse, rather than being commended for their courage in adversity, they are the butt of ill-informed and malicious charges from busybodies.

So much is known and predictable. What has made the situation more complex in recent years is the qualitative change in the nature of public protest and opposition. Insurgent groups, increasingly widespread, are now far better equipped with resources and technology and their support links extend all over the globe. Be it Kashmiri militants, the ULFA, even the People’s War Group and sundry Naxalite outfits, or the far more organised LTTE in Sri Lanka, the Al Qaeda network in Afghanistan and Pakistan, the Maoist guerrillas in Nepal, just to name a few – represent a new, ugly and a far more dangerous force than seen in the past. Alongside is the role and influence of criminal mafias, arms smugglers, drugs and currency cartels and what have you which contribute to an unholy cocktail.

All these, it is claimed, can no longer be contained by the ordinary laws of the land. Required are special forces and legislations for what is at stake is not a mere breakdown of law and order in some part of the country but the very existence of civilized states and society.

Possibly. What, however, this discourse side-steps are the ‘root causes’ of these conflicts, how socio-economic or cultural rights movements for autonomy and dignity are transformed into violent insurgencies against the state and the ‘battle’ changes to one without rules. Nor is it appreciated that repressive modes of quelling dissent may temporarily succeed, but can as easily feed into and exacerbate the process of blurring all boundaries and take the battle into the heart of civil society. Do tough laws and measures help contain, hopefully reduce, the resultant insecurity or are they themselves the product of insecure states now transposing their insecurity onto the peoples?

There are no easy resolutions to this conundurum, both because perceptions about what constitutes the problem and therefore the needed solutions widely diverge but equally because our reading of the ground situation is so heavily influenced by media constructions. It is not unusual that once the feeling of a society and a way of life under seige is permitted to grow, individuals are more willing to give up their hard won rights and freedoms and compliantly accept curbs on themselves. Equally troubling is the paradoxical situation that the very groups in the forefront of the struggle against repressive laws often demand that the state employ coercive force against those they describe as fascist. Witness the shrill assertion from human rights groups that the fundamental rights of Hindutva groups need not be respected. So are human rights only meant for us and those whose cause we support?

There is, of course, a danger that in the endless wait for an elusive consensus, the very ground on which we define rights, duties and freedoms may shift. This issue of Seminar debates these contentious issues of laws, legal practice and human rights in the hope of contributing to norms, institutions and processes more civilized than at present.