The
Vice President of India Shri M. Hamid Ansari delivered
the Eighth V.M. Tarkunde Memorial Lecture on ‘Citizens and State Conduct’ here
today. Following is the text of the Vice President’s Lecture :
‘CITIZENS AND STATE CONDUCT’
“It is a great privilege to be invited to deliver
the 8th Tarkunde Memorial Lecture today. I did not have the good
fortune of knowing Justice Tarkunde personally, but heard a good deal about him
and his work from my late friend, Dr. Iqbal Ansari, who rendered yeoman service
to the cause of human rights after he retired from teaching at the Aligarh
Muslim University.
Vithal Mahadeo Tarkunde was a versatile man. An
eminent judge whose calibre was acknowledged by the Supreme Court of India in a
Full Court Reference, an ardent advocate of civil liberties and human rights, a
supporter of causes fighting against injustice, a founder-member of the
Committee on Judicial Accountability, and the founder of the Centre for Public
Interest Litigation. He kept alive,
as he put it, ‘the hope of the dawn of a new day” with the ‘recognition of the
inherent dignity and of the equal and unalterable rights of all the members of
the human family as the foundation of freedom, justice and peace in the world.’
He will be long remembered for his advocacy of secularism, for his
propagation of the philosophy of radical humanism, and above all for his
persistent efforts to highlight the fragility of individual liberty in the
modern State as well as specific cases of injustice. He was a passionate
believer in the core values of the Constitution of India.
It has been said over and over
again that eternal vigilance is the price of liberty, that power is ever being
stolen from the many by the few, and that the hand entrusted with power stands
in danger of becoming the enemy of the people; hence the need for continual
oversight to ensure that a people must be kept sufficiently awake to the
principle of not letting liberty be smothered in material prosperity.
In a widely reported judgement in July, 2011 the
Supreme Court of India[1]
highlighted the imperative of ensuring ‘conditions of human dignity within the
ambit of fraternity.’ Thus the operative concepts are dignity and
equal and unalterable rights to all. With this in mind, I propose today to
explore the state of play with regard to the civil liberties and human rights
in the context of what WE, the PEOPLE of INDIA gave to themselves in the
Constitution. The constitution-makers were aware that sovereignty to be
commensurate with justice had to be embedded in democracy[2]
and, as an eminent jurist has observed, the Rule of Law cannot coexist with
traditional conceptions of absolute sovereignty.[3]
This, in fact, was the trend of informed opinion throughout the past century
and as early as 1914, Ernest Barker had penned an essay The Discredited
State in which he depicted sovereignty in internal matters as ‘Poison – not
to be taken internally’ since it leads to a false view of the law.[4]
It is generally accepted that a pre-requisite of
participatory governance is a commitment of the State to its own laws and to
their uniform application. The term Rule of Law is a part of our daily
vocabulary and implies supremacy of law, equality before the law, and fair and
equal access to justice. As one jurist has put it, ‘the Indian constitutional
conception of the Rule of Law links its four core notions: rights, development,
governance and justice.’ This approach has been upheld in judicial
pronouncements with the Supreme Court describing the Rule of Law as ‘a potent
instrument of social justice to bring about equality in results.’
The debate over the core principles of the
Constitution has stretched over six decades. Social philosophers, political
scientists, jurists, courts of law, public personalities, political activists
and informed citizens have been active participants. The explicit provisions
are evident enough; the text also has, secreted in its interstices, many values
that have been dilated upon and amplified in judicial pronouncements. These
have been reinforced by international covenants to which India is a signatory
and which have become a part of the law of the land.
The Constitution of India did not emerge in a
vacuum. It was a product of the freedom struggle and of the values and
principles enunciated and honed over decades. Issues of rights and liberties
were of practical concern to the freedom fighters. Apart from individual acts
of assertion of rights, perhaps the first initiative to form a civil liberties
organisation was taken by Jawaharlal Nehru in November 1936 when he founded the
Indian Civil Liberties Union (ICLU) with Rabindranath Tagore as its president.
Precision to the task on hand, and its pitfalls, was forthcoming from Dr.
Lohia. ‘The concept of civil liberties,’ he said, ‘defines State-authority
within clear limits. It assigns well-defined liberties to the people. The task
of the State is to protect these liberties. But the States usually do not like
the task and act contrarily. Armed with the concept of civil liberties, the
people develop an agitation to force the State to keep within clear and
well-defined limits.’[5]
The quest for civil liberties did not cease with
end of colonial rule. The march of events after Independence brought into
sharper focus the imperatives of sovereignty and nationalism and their
implications for civil rights. Some of these became evident after June 26,
1975; in the words of a close observer, ‘these events changed the basic
relationship between the citizen and the State’.[6]
It propelled the formation later that year of the People’s Union for Civil
Liberties and Democratic Rights (PUCDR), later to be named People’s Union for
Civil Liberties (PUCL). The purpose was to mobilise, not to stand outside the State,
but to make the State more responsive and to recognise its constitutional
obligations towards its citizens.[7]
The comprehension and advocacy of civil rights has
undergone quantitative and qualitative changes in the past four decades.
Debates over ‘civil rights’ have progressed into wider realms of ‘democratic
rights’ and then to ‘human rights.’ Alongside, new dimensions have emerged as
social movements focusing on women, Dalits, regional, minority and
environmental issues came into focus. Each of these developed principally in
relation to the State since the State was the only conduit through which all
segments of society related to each other.
In the final analysis therefore the focus is on
the conduct of the State in relation to its own citizens keeping in mind
Rousseau’s dictum that ‘there will always be a great difference between
subduing a multitude and ruling a society.’
A primary function of the State, in its most
productive form, is to dispense justice to its citizens, since justice, as John
Rawls rightly pointed out, ‘is the first virtue of institutions’ and ‘in a just
society the liberties of equal citizenship are taken as settled and the rights
secured by justice are not subject to political bargaining or to the calculus
of social interests.’[8]
II
Two broad categories seem to emerge in considering
the failure of the State to deliver. In the first place, act of omission
or those matters where the State qua state should have acted in terms of
its laws or constitution. Indications of this are readily available in various
social development indices. Secondly, act of commission or those acts
that were plainly illegal or exceeded the legal or public morality limits
prescribed by the law. These can be assessed in terms of the human rights norms
present in our laws or subscribed to. Credible documentation with regards to
both categories is available nationally and internationally.
The obligations of the Republic of India towards
its citizens have been stated in the Constitution, particularly in the sections
on Fundamental Rights and Directive Principles of State Policy. A separate
section delineates the Fundamental Duties of Citizens. Together, they amplify
the vision and the principles enunciated in the Preamble namely, to secure
to all citizens social, economic and political Justice, Liberty of thought,
expression, belief, faith and worship, and Equality of status and opportunity
and furthermore to promote among them Fraternity assuring the
dignity of the individual and the unity and integrity of the Nation.
A broad categorisation of State responsibility in
terms of constitutional obligations would relate in the first place to those
matters that concern economic, social and cultural rights and the right to
development. A second set of responsibilities would pertain to provision of
security and its achievement through the use of legitimately sanctioned force
within stated parameters. In the third set, the State is required to ensure
access to justice through appropriate mechanisms to redress grievances.
A set of questions seem to emerge:
·
Has State responsibility been
institutionalised for each of the above?
·
What is its extent and efficacy?
·
To what degree does the Indian State
practice conform to global standards indicated in international instruments to
which we have subscribed?
The answer to the first question is in the
affirmative. The Constitution and the various rights-centric statutes prescribe
the policy and institutional framework for human rights protection; they also
enjoin the concerned State institutions in discharging their responsibilities.
The institutional safeguards for the rights enshrined in the Constitution
include an independent judiciary and the separation of judicial and executive
functions. Legislation and exercise of executive power is subject to judicial
review with regards to its constitutionality. In the event of infringement of
an individual’s fundamental rights, the highest court in the land can be moved.
Our development objectives have been carefully
spelt out in the 12th Five Year Plan. It is to seek ‘a broad-based
improvement in living standards of all sections of the people through a growth
process that is faster than the past, more inclusive and also more
environmentally sustainable.’ This requires a carefully crafted strategy for
management of resources, demographics, inclusiveness, rural-urban balance,
energy security, environmental sustainability and a sustained period of social
peace internally and absence of conflict abroad, particularly in the
neighbourhood.
Much has been done to move towards the development
targets for the country. Innovative legislation pertaining to right to food,
education, information and rural employment has been put in place. A critical
analysis of the results however would show imbalance in implementation and
insufficient attention to some other areas. We rank 134 out of 187 in UNDP’s
Human Development Index and while the poverty rate has shown a decline from
45.3 to 37.2 percent in the decade ending 2004, the debate about nutrition
levels and poverty line continues unabated. The average growth rate in
2007-2011 was 8.2 percent but the decline of poverty in the same period was 0.8
percent. A poet may well say:
Roshan kahin bahar ke imkaan huai
to hain
Gulshan main chaak chand garibaan
huai to hain
Ab bhi khizan ka raj hai lekin
kahin kahin
Goshe rahe-chaman main ghazal khwan
huai to hain
[Though
autumn remains dominant, prospects of spring have brightened and flowers have
started to bloom]
At the international level, India is a signatory
to the six core human rights covenants. It is committed to the rights
proclaimed in the Universal Declaration of Human rights, 1948. We have signed
and ratified Human Rights Conventions which inter alia include the
International Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights, Convention on the Elimination of all
forms of Racial Discrimination, Convention on the Elimination of all forms of
Discrimination against Women, and the Convention on the Rights of the Child. In
2005, we ratified the two Optional Protocols to the Convention on the Rights of
the Child and thereafter the Convention on the Rights of Persons with
Disability.
We have signed, but not yet ratified, the
Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or
Punishment.[9]
The same holds for the Convention on Enforced Disappearances.
It is relevant to recall that section 2(d) of the
Protection of Human Rights Act, 1993 defines “human rights” as the rights
relating to life, liberty, equality and dignity of the individual guaranteed by
the Constitution or embodied in the International Covenants and enforceable by
courts in India. This definition is in conformity with the accepted
interpretation of human rights. The Supreme Court has, in its concern
for human rights, also developed a highly advanced public interest litigation
regime.
It is thus clear that the requisite
intellectual, legal and institutional framework for protection and promotion of
human rights is in place. Questions however do arise in regard to their
efficacy in actual implementation as cases of discrimination based on religion,
caste, language, ethnicity, work and economic status continue to be reported.
These relate both to violation or denial of rights by state agencies and to
violation or denial of rights by individuals and groups to individuals and
groups. The weak – individual or group - is invariably the victim.
In the context of today’s subject, what concerns
us most is State conduct resulting in violation or denial of rights of
citizens. It has been observed that there is a ‘profound disenchantment with
the State at the popular level where ‘the lines between legality and
illegality, order and disorder, State and criminality have come to be (viewed)
as increasingly porous.’[10]
The most serious human rights violations by the State
vis-à-vis its citizens
pertain to Article 21. Some of these are abuses by the police and security
forces, including extrajudicial killings, custodial deaths, torture, arbitrary
arrest and detention, enforced disappearances; poor prison conditions that are
frequently life threatening; lengthy pre-trial detention; and widespread
corruption at all levels of government, leading to denial of justice. This is
particularly acute in areas of internal conflict, such as Jammu and Kashmir,
the Northeast, and the Naxal belt where serious complaints about the misuse of
laws like the Armed Forces Special Powers Act (AFSPA), the Disturbed Areas Act
(DAA) or the Public Safety Act (PSA) continue to be made. Much of this is
credible, has been carefully documented, and reflects poorly on the State and
its agents.[11]
According to the latest Annual Report of the
Ministry of Home Affairs, during the period January 1, 2013 to March 31, 2014,
the NHRC conducted investigation of 6,834 cases, including 4,450 cases of death
in judicial custody, 448 cases of death in Police custody and 186 cases of
police encounter deaths.[12]
These figures speak for themselves. The situation is exacerbated by the fact
that the judiciary is overburdened and court backlogs cause lengthy delays or
the denial of justice.
Despite the constitutional and legal guarantees,
religious minorities continue to be target of violence and discrimination from
time to time. Patterns of systematic mobilisation of hate and divisive politics
are discernable; in many cases these have been pursued with impunity. The same
holds for other weaker sections of society including SCs and STs, women,
children and persons with disabilities. Credible data on these is available in
government, academic and civil society reports. These cut at the root of the
constitutional principle of equality of opportunity and equal access to justice
and highlight the failure of the State to act appropriately. As we embark on
the path of rapid economic growth and development, the issue of finding a
balance between traditional rights of citizens, with environmental imperatives
and economic objectives will have to be addressed by State; else, social
tensions will undermine the development agenda.
A particular area of concern is the inadequacy of State
action in relation to women. The UN Special Rapporteur on Violence against
Women has reported that it is systematic and occurs in the public and private
spheres. It is underpinned by the persistence of patriarchal social norms and
inter- and intra-gender hierarchies. Women are discriminated against and
subordinated not only on the basis of sex, but on other grounds, such as caste,
class, ability, sexual orientation, tradition and other realities. The
manifestations of violence against women are a reflection of the structural and
institutional inequality that is a reality. An eminent former judge has
recently observed that ‘even today, most women in India neither have freedom
nor liberty to take decisions.’[13]
The need for greater social awareness, and correctives at all levels of
society, is imperative.
Record shows that a number of progressive legal
and policy initiatives have been taken by the Government. Equally true is the
fact that implementation is tardy, that ‘mindset’ obstacles and social
prejudices are formidable, that allocation of resources is inadequate, and that
contradictions persist between economic policies, ‘development priorities’ and
national and international human rights commitments.
III
I would like to
conclude by drawing attention to two sets of impulses. The first suggests dogged
defence of the status quo; the second a measure of introspection. A plural
society, and a mature system of governance, would opt for the latter, more so
because we stand committed to constitutional and global norms. Pursuant to
this, India is a party to, and has participated in, the Universal Periodic
Review of Human Rights held by the Human Rights Council in May 2012. The Status
Report prepared by the Working Group on Human Rights after the second review
summed up its assessment, inter alia, with the following observation:
‘Despite a number of progressive and policy
initiatives taken by the Indian Government, the
continued prevalence of human rights violations across the country poses
manifold challenges. The claim of rapid economic development does not hold any
value when it fails to include the excluded. Lack of proper implementation of
government policies due to the bureaucratic lethargy, inadequate allocation of
resources, contradiction between different policies, other development
priorities and the so called national and international interests continue to
hinder to the full realisation of human rights for India’s most vulnerable. The
ever-growing trend of atrocities against religious minorities, women, children,
SCs & STs, apathy towards the disabled and other disadvantaged people,
constitute a scar on the face of Indian democracy...’
In a foreword to the Report, the convenor
suggested that ‘India must meet the human rights accountability challenge
defined by the contents of its Constitution, the international human rights
instruments it has ratified, and the recommendations that have emanated from
the UPR I and UPR II processes at the UN as well as from other UN treaty bodies
and special procedures. To meet this enormous challenge, nothing but a radical
shift in economic, social and security policies is needed – both at the central
and state levels.’[14]
We as a people need to awaken our collective
conscience, strive for fulfilment of national norms and global standards, and
induce fuller accountability into the system of governance at all levels so
that the culture of impunity ends, and the State and its functionaries are held
accountable for every act of omission or commission.
Jai Hind !”