Prime Minister Rao's Dilemma


Model answer supporting human rights reform

A Reform Agenda

  1. Formally notify the UN that the situation in Jammu and Kashmir is an "emergency that threatens the life of the nation" requiring derogation from the prohibitions on preventive detention in the International Covenant on Civil and Political Rights.

  2. Amend the 1993 Protection of Human Rights Act to remove limits on the National Human Rights Commission's power to investigate complaints brought against security forces.

  3. Repeal the September 1991 amendment to the Code of Criminal Procedure protecting all public servants, including the security forces, for acts committed while discharging their official duties in states under President's rule.

  4. Repeal objectionable provisions that give army and paramilitary personnel excessive discretion in the use of lethal force from the Armed Forces (Jammu and Kashmir) Special Powers Act, Jammu and Kashmir Public Safety Act (PSA) and The Armed Forces (Punjab and Chandigarh) Special Powers Act.

Rationale

The Civil and Political Rights Covenant requires states threatened by national emergency to announce formally their need to derogate from the treaty's due process guarantees. As long as separatists threaten India's rule, the government can legally continue preventive detention by formally derogating from its covenant obligations. Since the government has never given formal notice to the UN, Indian laws violate the prohibition on preventive detention in covenant Article 9. Lengthy incommunicado detention makes torture of prisoners all too easy. Proper notice could make legal under international law the emergency preventive detention measures of the Public Safety Act that are permitted under India's constitution.

Parliament should repeal emergency security laws that violate India's treaty obligations. The Armed Forces Special Powers Acts give army and paramilitary personnel a blank check to use as much force as they want. "Encounter" killings result when officers claim they shot in self defense. The law gives a license to kill by preventing victims from bringing legal action against any officer acting to protect public safety. Police should not be above the law. The draconian means in place since 1992 have not prevented escalating carnage. In fact, repression is counterproductive. Kashmiris have increasingly turned against the government after suffering five years of officially sanctioned brutality.

The international standards India accepted embody the highest ideals of its own Constitution and in no way derogate from national sovereignty. In the 1940s India initiated a UN challenge to South Africa's apartheid laws as a violation of international human rights obligations. That racist government voted against the Universal Declaration, but India categorically insisted that South Africa could not hide behind claims of domestic jurisdiction. India willingly accepted obligations under the international bill of rights because those due process guarantees are universal norms. Compliance with that international human rights law would not entail submission to a foreign power but would affirm India's highest principles as universal standards. Article 22 of India's Constitution requires authorities to bring detainees before a magistrate within 24 hours of arrest and to permit consultation with their own lawyer

Repealing the widely unpopular security measures would also be good domestic politics. Since angry Muslim voters deserted Congress, the party has lost several key elections, including control of the Prime Minister's own state. Many state ministers have encouraged the Prime Minister to allow TADA to lapse, and some opposition parties such as Janata Dal have attacked the repressive laws. If Congress hopes to retain power in next year's elections, the party leadership must recognize the popularity of legal reform. Muslim voters comprise over eleven per cent of the electorate, and Congress must retain their support to win. The party's traditional commitment to democratic pluralism and principled opposition to communalism are bedrock principles beyond compromise.


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