Rohini Hensman: Democratic Rights at Home and Abroad: The Case of India

"It is cause for grave concern that non-violent activism in support of fundamental rights is currently under so much attack by the state.. If the Indian government wishes to take its place in the international community as a supporter of democracy, it cannot afford to contradict the principles it upholds abroad by its actions at home"

"...all‘civil society’ really means is capitalist society, with its multiple divisions and contradictions between capitalists and workers, majority and well as competition within each category. Its ‘other’ is political society or the state, which is supposed to rise above the struggle of ‘each against all’ and manage it... In a democracy it is also supposed to protect the interests of weaker and more vulnerable sections of the population.. There are a few instances where this actually happens. But in general, the reality is much more complicated. Often, individuals carry their greed and prejudices with them from civil society into the state..."

An unintended by-product of the Anna Hazare movement was some welcome publicity for Irom Sharmila’s eleven-year fast for the repeal of the Armed Forces Special Powers Act (AFSPA). Like several other draconian laws, AFSPA allows state security forces the power to act against civilians, upto and including killing them, with virtual impunity. It was after witnessing such a massacre of civilians in Manipur, and realising there would be no redress because of AFSPA, that Sharmila embarked upon her marathon fast, during which the authorities, who keep her locked up, have kept her alive by nasogastric feeding. She fasts alone, but has many supporters in the Northeast and throughout India.
AFSPA has unsuccessfully been challenged in the Supreme Court on the grounds that it violates the right to life, but it also violates the right to equal protection of the law (which is denied to the victims of crimes by the security forces) and the right to equality before the law (since perpetrators in the security forces are effectively placed above the law). The result has been to turn forces vested with the power to protect civilians into predators who rape, torture and kill civilians with impunity.
That the Armed Forces chiefs cling tenaciously to this ‘privilege’ is evident from their obdurate opposition to the repeal or amendment of this law, even when it is proposed by other state actors. The Unlawful Activities (Prevention) Act and many state-level laws suffer from the same weaknesses, allowing the police and other security forces to frame, arrest, incarcerate and torture innocent people (including democratic rights activists) with complete impunity. It should be abundantly clear that putting state personnel above the law, as these laws do, is a sure way of encouraging them to engage in unlawful activities and undermining the rule of law.
A country in which the police and state security forces routinely violate the fundamental rights of the civilian population cannot be called a democracy. This does not happen in all parts of India, but in some areas it is the rule rather than the exception. That these tend to be areas where there is anti-state militancy is no excuse: far from solving the problem of militancy, indiscriminate attacks on unarmed civilians generally make it worse. Therefore even in such areas, as Sharmila and her supporters correctly contend, it should not be lawful for security forces to rape and kill unarmed civilians, and if they engage in such behaviour, they should be punished just like anyone else. But is anybody in the state listening?
The Pathribal case, in which five civilians were killed by army personnel in a fake encounter, may answer this question. The army, as usual, claims that its personnel cannot be prosecuted without sanction from the central government, which the Ministry of Defence has always refused to give even in the few cases where the Ministry of Home Affairs has given the go-ahead. But on 4 February 2012, a Supreme Court bench of Justices B.S.Chauhan and Swatanter Kumar told the army that rape and murder committed by its personnel should be considered normal crimes, and there should be ‘no question of sanction’ from the government before prosecution of offenders in such cases, since AFSPA gives only very limited protection for action ‘in discharge of duty.’ The Court’s observations are eminently logical, and echo the argument implicit in Sharmila’s protest. What would it say about India if army personnel could claim, ‘We raped these women in discharge of our duty’ or ‘We rounded up and killed these innocent civilians in discharge of our duty,’ and the judiciary accepted their claims? Wouldn’t this be an admission that India is not, in fact, a democracy where the rule of law prevails? Yet as of now, it is not clear that the Supreme Court’s order will reflect its observations, nor have excessive powers and impunity clauses in other laws been challenged by the courts. The Centre continues to insist that sanction from it is required before armed forces personnel can be prosecuted. Irom Sharmila’s struggle for democracy and the rule of law is not yet over.
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