This is the text of the THIRD PUCL V.M. TARKUNDE MEMORIAL LECTURE that I delivered on 23 November 2007 in New Delhi. Re-reading it seven years later it struck me that many of the things I spoke about that evening are still very relevant.
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I am honoured and touched by the PUCL’s invitation to speak to you today. My life intersected with the PUCL and Mr Tarkunde more than 25 years ago, and my respect and affection for Mr Tarkunde go back to that time. I published a detailed account of fake encounter deaths in Uttar Pradesh in January 1982. That investigation won me the PUCL Journalism for Human Rights Award. I then filed a public-interest petition in the Supreme Court against V.P. Singh, the then chief minister, and the government of U.P. Mr Tarkunde was my lead counsel, and I remember several illuminating conversations with him. I discovered only recently that later in the same year, 1982, Mr Tarkunde was involved in a facedown with policemen in Madurai. He and fellow silent protesters including Mr Kannabiran were beaten up and tossed into a prison cell. When a judge let Mr Tarkunde off because of his stature, he refused to leave his companions behind. He had to be dragged by his shirt collar on to a bus leaving town.
In our conversations, the intensely modest Mr Tarkunde never held forth about Radical Humanism, or human rights, or his own deep interest in the rights of the marginal Indian. But he was tireless in his quest for justice, and in his empathy for the ordinary man – the Aam Admi that is being made so much of by the latest political hodge-podge to rule us. I think it is a sign of the special place Mr Tarkunde holds in the hearts of so many liberty-loving individuals that we have not one, but two Tarkunde Memorial Lectures organised in his memory every year!
What came across strongly in my conversations with Mr Tarkunde was the fragility of individual liberty in a modern state. Those thoughts hold as true today as they did a quarter-century ago. In fact, globalisation has meant, as I shall discuss later on, a corresponding constriction of individual freedom. Cutting-edge technology has sliced through the veneer of civilised conduct and exposed our rights, our space, our freedom of movement, our privacy, to the indifference and depredations of the Monster State.
In itself, technological advancement is excellent provided it goes hand-in-hand with a strong sense of ethics and respect for individual rights.
Sitting at my desk at home, I can now soar across the world, fly through faraway cities in 3D, delve into thousands of books and papers in libraries and journals, write instantaneously to dozens of people, engage them in virtual correspondence, look at pictures and video of people, things and events in a perennial kaleidoscope.
Not to sound paranoid, but I am always being watched by someone, somewhere. It does not have to be a Big Brother gazing from a wall. QIt could be my neighbours, my friends, my family, my undeclared enemies. There are a million ways in which one is vulnerable.
You don’t have to be a “sting journalist” to spy on somebody. Camera photographs and video are now ubiquitous. We never know who is recording what we are saying. Every e-mail we send is “discoverable” and we should be prepared to see anything we wrote splashed across a blog or a chatroom. Forget about the turn of phrase of a Samuel Pepys – now every one of us is a diarist, spewing stream-of-consciousness on to the World Wide Web, and all it takes is a computer and an Internet connection.
You cannot trust anyone – and nobody trusts you.
It has not taken us very long to move from relative innocence to cunning and coercive criminality. The freedom of the individual has always been as fragile as an eggshell, as ephemeral as a cherry blossom. When we Indians talk about freedom, we are mouthing platitudes based on a wider global sense of human rights. Traditionally we have been subservient, credulous, compliant, fatalistic and mistrustful of one another.
THE REALITY OF INDIVIDUAL EXPLOITATION
It is fitting that we should be meeting today near Raj Ghat. I have been fascinated by Gandhiji’s prescience and ability to see through his fellow Indians. In a November 1934 interview, he said: “The State represents violence in a concentrated and organised form. The individual has a soul, but as the State is a soulless machine, it can never be weaned from violence to which it owes its very existence….. I look upon an increase of the power of the State with the greatest fear, because although while apparently doing good by minimizing exploitation, it does the greatest harm to mankind by destroying individuality, which lies at the root of all progress.”
I cannot think of a better way to describe the position of the individual.
It is a perilous position. It’s a position built on false promises and naïve beliefs.
It’s the position of most of us who get pushed around by forces that we have no hope of ever controlling or influencing.
It is the position of the villager whose mud house can be smashed into by a landowner, or the local thanedar.
It’s the position of the Dalit who is likely to be killed just because he dared to dig a well on his own land.
It’s the position of the Naga or the Meitei or the Ahomiya or the Kashmiri who can be picked up and made to “disappear” in a fictitious shootout.
It is the person who lost a dear one in a cinema fire ten years ago, or the parent whose child was raped and beaten to death a decade ago, or the parent whose daughter was shot dead at point-blank range all those years ago.
It’s the position of a middle-class city dweller dragged from his car and beaten up by debt collectors because he defaulted on one instalment.
It is also the position of a law-abiding citizen who can be beaten to within an inch of his life because he remonstrated with a careless and drunken driver.
It’s the position of the widows of the two men shot to death in broad daylight in the centre of the nation’s capital by a posse of policemen because they were mistaken for terrorists. I will describe later how globalization has actually led to the abridgement of individual liberty. Here I must remind you that the policemen who shot dead Pradeep Goel and Jagjeet Singh said their action was no different from that of policemen in New York or London who shot dead innocent men believing them to be either an armed robber or a terrorist. It is amazing what you can rationalize if you have access to information!
At a less violent level, it is the position of the householder who has watched the price of milk soar by 33 percent over the past year, or the price of dal leap by 50 percent, and listens to economists and ministers gloating about nine percent growth and low inflation while the pay-packet remains the same.
It’s the position of all of us with regard to privacy, particularly data privacy. India’s data-protection statutes are among the weakest in the world. So are our libel laws. You can be slandered, your most intimate data can be bandied about by a host of insurance companies, your phone can ring incessantly with obtrusive calls from telemarketers, and you have little or no recourse. This is of course an extension of our traditional curiosity in each other’s affairs. And I use the word “curiosity” politely. You don’t need a Right to Information Act to gossip about your friends, neighbours, colleagues, and relatives. A recent McKinsey study said 34 percent of Indian executives felt privacy and data security issues would impact shareholder value even more than environmental issues.
The Connaught Place “shootout” verdict also took over ten years to arrive. It is interesting how glibly we use the word “shootout” even if the dead men were not armed or fired a single shot.
Former Delhi police commissioner Maxwell Pereira commented after the Connaught Place verdict that “terrorism changed the whole scenario. Each time there was an encounter killing, I would feel proud of the newfound confidence in the firepower of the Delhi Police. I believed there was a need to send a strong message to terrorists and criminals even if it meant eliminating the miscreant. More so because of the inability of the criminal justice system to convict and punish offenders.”
So here we have a senior law-enforcement officer applauding the cutting down of a human being because the justice system is way too slow and inefficient. If you use the same logic, those ten Delhi policemen ought to be lined up in front of a firing squad because ten years is too late for justice to be really done.
THE INDIVIDUAL GIRL
I’d also like to talk a little bit about the rights of the Indian female. Demographers now estimate that by 2020 men will outnumber women by 23 million in India and 26 million in China. One figure I remember was that if girls had been born in the same ratio in Asia as the rest of the world there would have been 163 million more girls and women in Asia today. Just think of that number – 163 million.
What this means is that female infanticide, foeticide, and abortions are depriving huge numbers of girl babies of their most fundamental right – the right to life. Some demographers predict soaring crime and violence rates in countries with an out-of-whack gender ratio. That is something we all need to think about.
The scourge of untouchability that still haunts India is doubly torturous for women. In their book “Untouchability in Rural India”, Ghanshyam Shah, Harsh Mander and others catalogue the discrimination and violence visited upon Dalit women. “In the case of caste-based conflicts, violence often takes the form of targeting Dalit women. ‘Teaching a lesson’ to Dalit men involves violating their ‘property’ – the bodies of their women.”
The last National Family Health Survey data also point to the inequity of being born a woman in India, especially if you are poor. Look at nearly any category and you will see what I mean. Twenty-five percent of our poorest women aged 15 to 19 were already mothers or pregnant compared with a national average of 16 percent. More than 49 percent of poor women had experienced some form of spousal violence, against a national average of 37 percent, which itself is 37 percent too many.
THE SHINING BEAUTY OF ARTICLE 21
Our Constitution is one of the most enlightened and well-drafted charters any nation could hope to possess.
The Preamble, which sets out the principles of justice, liberty and equality, also defines fraternity as “assuring the dignity of the individual and the unity and integrity of the Nation”. Note that the individual is placed before the nation.
And then we come to that shining jewel of individual rights, Article 21 of our Constitution. It is explicit in its language: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Justice P.N. Bhagwati, who championed public-interest litigation, set forth an important and liberal interpretation of individual liberty in Maneka Gandhi vs Union of India in 1978. “Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch.”
At another place the same judgment says: “The spirit of Man is at the root of Article 21. Absent liberty, other freedoms are frozen.” And then immediately adds: “Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself….procedure must rule out anything arbitrary, freakish or bizarre. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word ‘establish’ which means 'settled firmly', not wantonly or whimsically.”
But does this really happen? Is the average man or woman given the opportunity by the authorities to seek fair trial, fair treatment, or fair judgment?
This year we celebrated 60 years of independence. The Directive Principles of State Policy set out the state’s obligations in admirably clear terms, conferring the right to an honourable livelihood on every Indian, along with the equality of economic opportunity, equality of compensation for men and women, education, a uniform civil code, and so on.
Last month Justice Rajendra Babu, the chairman of the National Human Rights Commission, spoke eloquently about rights and the individual when he said: “We realize that protection and promotion of civil or political rights is not enough as deprivation or disparities in economic, social and cultural areas, which are wide spread, have reduced large numbers of citizens to the margins of human existence.”
Justice Babu feels that the trust reposed by India’s citizens in the NHRC is reflected in the number of complaints it receives – and these have skyrocketed from 496 in 1993 to 82,233 in 2006. Is it not a crying shame that we have 82,000 violations of human rights in the world’s largest democracy?
Statistics in India always beggar the imagination. NHRC statistics show as many as 44,000 children go missing in India every year. At least a quarter of them remain untraced. I am sure we have all heard of beggar factories where kidnapped children are maimed before being put to work by modern-day Fagins. What recourse does an abducted child have to help from a passing policeman? What sort of remedy can a grieving parent seek from the state machinery?
Children may be the most vulnerable among us, but they are certainly not the only ones. In the Punjab mass cremation case, the NHRC recommended compensation to the next of kin of 1,298 people whose bodies were cremated by the Punjab police. At least 195 of them had been killed and cremated while in the custody of the police.
An anguished Supreme Court, in its order in D.K. Basu vs State of West Bengal, 1997, said: “Custodial death is perhaps one of the worst crimes in a civilized society…The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected…..If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become a law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. Does a citizen shed his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’.”
Look at the figures for our prisons. At the end of 2005 India had a total of 1,312 jails and they were designed to accommodate a quarter of a million prisoners. In actual fact, there were nearly 360,000 prisoners and more than a quarter-million of them were undertrials, which means they may have already served their maximum possible sentence behind bars without ever being tried.
I was hard put to find any significant action taken by the NHRC in Kashmir except the celebrated case of the dead carpenter Abdul Rehman Paddar, who was passed off as a dreaded militant commander by the police. The Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act confer extraordinary and sweeping powers on security personnel to arrest, detain, and even kill any person on mere suspicion that he or she might be up to no good.
The Kashmir act is based on the national Armed Forces Special Powers Act, itself modelled on legislation passed by India’s colonial rulers to suppress our independence movement.
Both the acts in force in Kashmir, as well as Sections 45 and 197 of the Criminal Procedure Code expressly state that no public servant, including police or paramilitary and army personnel, can be arrested or criminally prosecuted without the permission of the Government of India. Such permission is almost never granted. Please remember that the CrPC applies to every one of us across the length and breadth of India.
Unlike in the United States or Britain, military courts and their decisions are not subject to appeal in civilian courts in India. The Law Commission in 1999 apparently recommended setting up a civilian Armed Forces Appellate Tribunal but nothing has happened.
So we have clear and egregious examples of arbitrary and brutal action, like the encounter killings of five men suspected of involvement in the massacre of 36 Sikhs in Chattisinghpora in 2000 who were later found to have had no connection to the massacre, or the February 2006 killings of four boys playing cricket, or the July 2005 killing of three boys who had sneaked out at night to smoke a cigarette.
Human rights groups in Kashmir say more than 10,000 people have disappeared since 1989. Authorities concede that there might be up to 4,000 missing people.
All this is not to say that the government is wholly devoid of good intentions. The Model Police Act of 2006 is now grinding its way through the nation's legislative process. What few citizens know in our vast nation is that we are still governed by the provisions of the repressive Police Act of 1861! That was just four years after the “First War of Independence” in 1857. So it took one hundred and forty-five years for India to begin to recognise that it needed a police Service (as the Bill states), not a police Force, and that it needed an Indian police service. Many experts have combed through the 2006 Bill and found that it does not improve much at all on the original Act – and that is how the police have looked upon the ordinary citizen, as guilty until proven innocent. But who is going to help them prove their innocence?
THE WAGES OF GLOBALISATION
Globalisation has brought tremendous benefits to billions of people. It has freed trade, made information easily accessible, and encouraged the freedom of thought.
But globalisation has also meant the strengthening of authoritarian and repressive regimes at the cost of the individual’s rights and the individual’s privacy.
It may sound like an exaggeration but it seems that everything you speak or read or write can now be “Googled”. And authorities want more and more information from you. This is also a clear loss of individual liberty. How many times over the past year have you had to fill out forms – either paper forms or electronic forms – with a host of personal details, including your parents’ names, your religion, your income bracket, your credit card number, your address or your telephone number?
Yesterday I read that because of a clerical mistake, the private details of 25 million people in Britain have been lost – the computer disks may have fallen into the wrong hands. This data included the names, ages and gender of hundreds of thousands of children.
So globalisation has its risks, and many people, while welcoming the access to information, are also uneasy, although they cannot articulate their fear about the abridgement of individual rights in a globalised world. A globalised world also means weaker nation-states, and weaker nation-states mean weaker enforcement of citizens’ rights.
Globalisation affects the economy, politics, social structures, our perceptions of time and space and above all whether there is an immutable constitutional order. Globalisation would only widen the gap between the haves and the have-nots.
The effects of globalisation are only just beginning to be understood by a dazzled public. It is like offering a hundred television channels to a family brought up on Doordarshan fare. Individual liberty is not just freedom of expression – it is freedom of movement, of religion, and of economic opportunity.
Do we really recognise, and appreciate, the forces that are at work in our elections for example? It is commendable that India has successfully held 14 national elections, and that we are a beacon of democracy in a neighbourhood of crisis. Look around you at Afghanistan, Pakistan, Nepal, Bangladesh and Sri Lanka. But have our elections really given us the governments we deserve? Our first-past-the-post system of winning an election can bring in a government elected by a minority of the electorate. There is no doubt that six of our 14 elections have resulted in a change in governing party or coalition. But if you look at the extent to which elections can take place under duress, or be downright rigged as in the case of Jammu and Kashmir, then you have to question whether ours is truly a representative democracy.
I understand – and I am not an expert – that an individual citizen has every right to petition Parliament directly if he or she is in dire trouble. How often has this happened in the 55 years since our first general election? If we did not have an independent judiciary, how many more people would have suffered injustice?
This is not to say that the cloud is all dark. There is a silver lining and that is the Right to Information Act. In the two years that the RTI Act has been in force, there have been 11,000 requests, and the RTI Commission has resolved 7,500 of them. More and more poor and marginalised people in different parts of India are becoming aware of RTI and of its inherent power – for instance, to obtain data on what the minimum wage ought to be, whether money allocated for a rural project was indeed spent, and so on. RTI will force major changes as time passes – chiefly, it will practically render the Official Secrets Act redundant and useless, and force every government department, ministry and subsidiary to digitise its records so that they are accessible by the average citizen.
I said the cloud is not all dark, but dark it certainly is. Despite years of grandiose promises and noble intentions, our politicians cannot find it in themselves to enact the Lok Pal bill which would give us a national ombudsman. The Lok Ayukta mechanism is working in some states, but the road to improving our dismal ranking on the global corruption index of Transparency International is long, rocky, and arduous.
To go back to globalisation, let it not be said that business does not have a conscience. The McKinsey study I referred to earlier asked senior executives from around the world how large corporations can harm the public good. At the top of the list, 65 percent identified “polluting and damaging the environment”, 39 percent put their finger on “putting profits ahead of people’s well-being” and 33 percent admitted to “exerting improper influence on governments”.
“I’M HERE TO FIGHT FOR TRUTH, AND JUSTICE, AND THE AMERICAN WAY”
Recently, when I watched the movie Superman again and heard Christopher Reeve utter this classic line, it did not sound at all ridiculous, since America has really decided to be the “inspector-general” of the world.
Globalisation inevitably refers us to the status of the individual in other countries. Is that any better? Is the global citizen or the global villager any more empowered, more secure, more prosperous and happier than before the iPod was invented or before you could eat Kentucky Fried Chicken in Karol Bagh, or sip Starbucks coffee in Beijing’s Forbidden City?
The United States, where so many of the world’s great ideas take birth, has of course invented the term globalisation. Sadly, it has also in the post-September 11 world invented unique ways to seek and incarcerate, or even kill or destroy the individual human being, wherever he or she may be living or hiding. The U.S. is currently the world’s only superpower, and it ought to bear the greatest responsibility to protect human rights. Unfortunately, this is not the case.
The first time I read the phrase “extraordinary rendition” I thought it described a great performance by an opera singer. You can count on the Americans to find imaginative uses for the English language. “War on Terror” is a tautology. War itself is terrifying, and terror?
The U.S. also resorts to proxy detention, which means detaining suspected terrorists in foreign prisons at the behest of the United States.
In June this year six human rights organisations jointly announced the names of 39 individuals who had been held in secret prisons by the U.S, and whose current whereabouts are not known. Their report says the 39 were captured in countries like Iran, Iraq, Pakistan, Somalia and Sudan and then renditioned.
Ironically, the United States is a signatory to the most high-sounding international agreements on behaving in a humane manner. For example, the International Convention for the Protection of All Persons from Enforced Disappearance, which defines enforced disappearance as the arrest, detention, abduction or any other form of deprivation of liberty by the State or its agents.
The U.S. is also a signatory to the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But that does not stop U.S. authorities from holding a large number of suspected terrorists at Guantánamo Bay, and in the secret CIA prisons that George W. Bush only pretended to shut down earlier this year. And it does not stop the Americans from using interrogation techniques that are torture by another name. For instance the inflicting of intolerable pain or injury without causing actual death, or waterboarding.
The U.S. is not alone in re-inventing the definition of torture. Torture is common in India too. As for the narrowing of individual rights, you could range across the globe and come up with dozens of examples. Singapore, where you are now actively encouraged to spy on your neighbour in case he or she is or is harbouring a terrorist suspect. China, where every new showcase of prosperity ranging from Beijing’s preparations for next year’s Olympics to the Three Gorges dam is built on human displacement, ecological damage, and repression. And Russia, where former world chess champion Garry Kasparov is fighting a lone, and increasingly dangerous, political battle against Putin and his oil-fuelled dictatorship. Or Myanmar, where the world has decided to let the junta have its cruel way.
OUR JEWELLED EARTH
I am sure many of you saw a photograph in the newspapers the other day of Planet Earth. Shot by a Japanese satellite in delayed sequence, Earth looks like a beautiful blue-and-white jewel, shining bright against the inky blackness of space.
Every idea is born in the mind of one human being, one individual, and that individual is but one infinitesimal and fragile speck on that jewelled Earth. Without the genius and the creativity of the individual we will not evolve. We will not set our compasses for a brighter future. We will not live individually happy and satisfying and achieving lives.
So is there hope?
Capitalism and democracy together are a very potent and rich combination. But it has to be true democracy, and it has to be capitalism of equal opportunity.
Perhaps the most pellucid illustration of what I am saying comes from Howard Roark’s trial speech in Ayn Rand’s “The Fountainhead”:
“Throughout the centuries there were men who took first steps down new roads armed with nothing but their own vision. Their goals differed, but they all had this in common: that the step was first, the road new, the vision unborrowed, and the response they received – hatred. The great creators – the thinkers, the artists, the scientists, the inventors – stood alone against the men of their time.”
So, dear friends, let us make sure the response they get is not hatred. Let us make sure they do not stand alone.
Thank you.
