BASIL FERNANDO
Executive Director
Asian Human Rights Commission
Sri Lanka's justice system, legal profession and media are all under peril says a report published this week by the International Bar Association's Human Rights Institute (IBAHRI). The report is entitled, Justice in Retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka. This expression of concern by the International Bar Association, which is acknowledged as the global voice of the legal profession, is perhaps the first statement of recognition by an internationally reputed professional organisation of lawyers of the peril that is facing Sri Lanka's system of justice. In this column the author has constantly drawn attention to this peril and hopes that those concerned with Sri Lanka will pay more attention to this all important question.
The LTTE
The report comes at a time of great importance to Sri Lanka. The government has claimed complete victory over the LTTE. The circumstances surrounding the last days of the war between the LTTE and the Sri Lankan armed forces still remain a focus point in the global media and the United Nations Human Rights Council has called a special session to discuss this situation. In all discussions the government, as well as all the other interested parties, talk about bringing a political solution to the problem of minority Tamils in the country.
The 13th Amendment
The government's preferred solution is the implementation of the 13th Amendment to the Constitution (Devolving power to provincial councils). Even the communiqué by the government and the UN issued at the end of the visit of Ban Ki Moon, the Secretary General of the United Nations who paid a special visit last week makes mention of the government's commitment regarding the 13th Amendment.
The basic question that arises is as to whether this amendment could be fully implemented or implemented at all in a place where the justice system, the legal profession and the media is in peril. The 13th Amendment is no different to any other part of the Constitution and therefore the general problem that deserves consideration is as to whether a constitution can be implemented in a society where the justice system, legal profession and the media is in peril.
Over the long period of the conflict, which dates back at least 31 years, almost all references to the conflict were on the basis that it was an ethnic issue. Therefore, the attempt was, if there was any, to find a specific solution to this specific problem.
However, it appears clearly now that whatever they mean by an ethnic problem, this is only a part of a much larger problem within a country where the total system of justice, which means the system that applies equally to the majority as well as to the minorities, is in peril. The problem specifically affecting the minority cannot be in any meaningful sense separated from that of the problem affecting the entire population where the justice system, the legal profession and the media are in peril. Justice is the basis of all relationships within a particular society. It is justice that determines the limitations on state power. It is those limitations preserved by law that ensures protection of all rights to all persons. These may be the rights of women, rights that ensure protection against illegal arrest, detention and extrajudicial killings and denial of fair trial or matters relating to economic, social and cultural rights and the rights of the child and the like.
The rights of all
The minority rights are one more category of the overall umbrella of rights of the citizens. If the system of justice is in peril then all the rights are in peril. Simply to talk about minority rights only is fictional, just as talk about saving a few after allowing thousands to perish, can only be a fiction. Let us say you drop a nuclear bomb in a particular city and talk about saving only one group of persons among the many who are likely to be affected by the explosion. It is possible to talk about such a thing as pure fiction but in real life it does not happen that way.
What is said about the justice system as a whole can also be said of the legal profession and the media. The legal profession is an indispensible component of the protection of rights in any modern society. The task of the profession is to assist citizens who may have a lesser understanding about the total system of the law. If the lawyers cannot provide those services that are expected of them, their clients will suffer for it. Once again this is a problem that affects all. Without addressing a problem that affects all it is not possible to address the problem of the minorities only.
Again, the media is an essential component of the protection of all rights of the people. If the media is in peril the rights of all are in peril. Everyone will be denied of the right to information which is the sole basis on which well informed judgements can be made. If all the people are denied the information needed for making rational judgements all the decisions they make are destined to fail. The majority and minority relationships for the benefit of all can happen only if there is a rational discourse between the two.
IDPs
The peril of the system of justice, the legal profession and the media is amply illustrated by the manner in which the internally displaced persons, said to be around 300,000, are being treated at the moment. The country's system of the administration of justice is not involved in any way in dealing with this issue. Therefore the lawyers have no place in the protection of the rights of these persons. The media are virtually denied access to these persons. Thus, basic rights that any citizen should have under any circumstances are denied to them and there is nothing anyone can do about it.
What the situation of the IDPs illustrates is that it is not possible to separate the discussions on the total collapse of justice and the media in the country from any aspect of the problems of the minority. The situation that has developed is that all the citizens should voluntarily abandon any claims for legal status and legally enforceable rights for the sake of what is called national security. Thus security has come to mean a situation in which everyone's rights are an irrelevant factor. In this context the IBAHRI report has highlighted a fact which is not only relevant for lawyers but also for the society as a whole.
# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
Showing posts with label Justice system. Show all posts
Showing posts with label Justice system. Show all posts
29 May, 2009
07 May, 2009
AHRC on task before the next government in India
The following is a statement issued by the Asian Human Rights Commission, Hong Kong:
India is about to complete the national general elections to the 15th Lok Sabha. The fifth and the last phase of the election is expected to be completed on 13 May. The results will be declared on 16 May.
Politics and its shallowness in India apart, any government that assumes office in the country after the elections will have to deal with an intellectually demanding and politically and administratively challenging environment. In addition to the external pressures emanating from the relative instability in the region, the new government will have to deal with myriad problems that are domestically rooted. Poverty, starvation, corruption of the bureaucracy, caste based discrimination and low intensity armed conflicts within the country are a few serious issues to be cited. These issues are serious enough, and the manner in which they are dealt with by the next government, will practically decide the destiny of the country for a long time to come.
Though in theory the country has a democratic framework within which these issues could be effectively addressed, governments, irrespective of their political colours, have considerably failed in dealing with these issues. For instance, no government that was in power during the past twenty years in India can find tenable excuses for not effectively addressing the pathetic state of living conditions of an estimated 456 million Indians who earn less than two dollars a day.
A third of the world's poor live in India. The national policies and the action plans formulated by the government have failed to bridge the gap between the rich and the poor. This is because, the implementation of government programmes were defeated by corruption in the administrative setup. The reality is, that the price of a kilogram of rice, intended for free distribution for the poor, by the time it reaches the beneficiary will be ten times costlier.
The increase in price is due to the bribes paid at various levels along the distribution chain, which the vendor at the customer-end, often a licensee, will meet by short-weighing or by denying the actual beneficiary the food grain and by selling it in the black-market. The regulatory framework that should monitor the proper distribution of rationed articles in the country does not function, owing to lack of proper investigation, prosecution and adjudication of this criminal activity. In this scenario, the real beneficiary of the government sponsored welfare programmes for the poor are the corrupt politicians and bureaucrats and the rich vendors.
Even if a criminal charge is made out, the courts in the country are so understaffed and ill-equipped to deal with the already existing cases that any additional workload makes no sense as a decision will have to wait for decades. Delay in justice delivery in India has rendered the justice system and the complaining process meaningless.
According to the Chief Justice of India, Justice K.G. Balakrishanan "the growing population, increasing awareness of rights and abiding confidence of the people in the judiciary saw a litigation boom which our judicial set up was not sufficiently equipped to handle." Underfunding of judiciary, the continuing neglect to improve the judicial infrastructure over the past decades, inordinate delays in filling up vacancies of the judges and a very low population-to-judge ratio are some of the major factors that require immediate attention to improve the performance of judiciary in the country.
During the Ninth and Tenth Plan, only 0.071percent and 0.078 percent of the total plan outlays were allocated for the judiciary. India spends a mere 0.2 percent of the gross national product on the judiciary. According to the 120th Law Commission Report, India's population-to-judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain.
The non-functionality of the justice system owing mostly to the congestion in the judicial process has led to a situation in the country where disputes are sought to be settled outside the legal framework. Such settlements, have led to the emergence of parallel dispute resolution mechanisms outside the parameters of the accepted norms of justice and the rule of law. The vacuum created by the absence of the rule of law, is occupied by the advocates of violence. In rural India, this void is filled by armed movements, which have arguably a philosophical background of resistance struggles by the classical have-nots.
The government response to such movements is that of oppression and suppression. The Salwa Judum and similar state sponsored private militia that operate in at least three states in the country have practically eliminated a democratic space within which an armed resistance movement could have been permanently diffused and issues settled.
The government further contributed to the declining confidence of the ordinary people by irresponsibly resorting to the recruitment of Special Police Officers (SPO). The SPOs are ordinary civilians, armed and indoctrinated, literally to kill his or her neighbour. The creation of the SPOs and the Salwa Judum is a direct breach of the constitutional mandate of the state and the international human rights norms that India must follow and practice.
It is this same psyche that has to a large extent isolated the people living in the north-eastern states of India from the rest of the country. Instead of trying to resolve the legitimate issues related to identity, ethnicity and exploitation of natural resources of the people living in the north-eastern states, the government of India's response in dealing with the crisis in the north-eastern states was first of discrimination and exclusion and later of suppression by militarisation shrouded with statutory impunity.
A government that has not tried to objectively understand the root cause of the anti-state sentiment of a large section of its population does not have a right to expect settlement of disputes through dialogue. The case against the government is further demeaning given the fact that it has so far prevented even the free movement of journalists and human rights activists within the region.
While the government prevents foreign journalists and researchers from entering the region, it has not been able to contain the infiltration of foreign terrorists into the region. As of today, people living in these states, particularly in places like Assam and Manipur are caught between foreign and home-grown anti-democracy elements and paranoid government agencies.
Abduction for ransom, arbitrary execution and other forms of violence are daily events in Assam and Manipur. While the government apparatus is practically incapacitated to prevent human rights violations carried out by the anti-state elements, the state agencies operating in the region violate human rights of the people, particularly by resorting to the widespread practice of custodial torture.
The present government has in theory and principle decided to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In fact the government has initiated the preliminary steps for ratification of the Convention. Towards this end the government has already started drafting a Bill against the practice of torture. The Asian Human Rights Commission (AHRC) expects that the new government will continue the present government's effort in ratifying the Convention and criminalising the act of torture in the country.
Democracy only makes sense if it is visibly felt in a society. The opportunity to elect a government, though in itself is one of the foundation stones of democracy that alone cannot mature into a democratic state. A democratic state guarantees the rule of law. In a society governed by the rule of law, democratic institutions gain prominence when they provide an open space for dialogue and discourse. In such a society it is the government that must be afraid of its people.
A government that respects its people cannot be sabotaged by narrow minded politicians and disruptive ideologies. The AHRC expects that the peoples' mandate of the largest democracy in the world will reflect this sentiment and that the next government that assumes power in India will be honest to the constitutional promise it swears allegiance to when assuming office.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
India is about to complete the national general elections to the 15th Lok Sabha. The fifth and the last phase of the election is expected to be completed on 13 May. The results will be declared on 16 May.
Politics and its shallowness in India apart, any government that assumes office in the country after the elections will have to deal with an intellectually demanding and politically and administratively challenging environment. In addition to the external pressures emanating from the relative instability in the region, the new government will have to deal with myriad problems that are domestically rooted. Poverty, starvation, corruption of the bureaucracy, caste based discrimination and low intensity armed conflicts within the country are a few serious issues to be cited. These issues are serious enough, and the manner in which they are dealt with by the next government, will practically decide the destiny of the country for a long time to come.
Though in theory the country has a democratic framework within which these issues could be effectively addressed, governments, irrespective of their political colours, have considerably failed in dealing with these issues. For instance, no government that was in power during the past twenty years in India can find tenable excuses for not effectively addressing the pathetic state of living conditions of an estimated 456 million Indians who earn less than two dollars a day.
A third of the world's poor live in India. The national policies and the action plans formulated by the government have failed to bridge the gap between the rich and the poor. This is because, the implementation of government programmes were defeated by corruption in the administrative setup. The reality is, that the price of a kilogram of rice, intended for free distribution for the poor, by the time it reaches the beneficiary will be ten times costlier.
The increase in price is due to the bribes paid at various levels along the distribution chain, which the vendor at the customer-end, often a licensee, will meet by short-weighing or by denying the actual beneficiary the food grain and by selling it in the black-market. The regulatory framework that should monitor the proper distribution of rationed articles in the country does not function, owing to lack of proper investigation, prosecution and adjudication of this criminal activity. In this scenario, the real beneficiary of the government sponsored welfare programmes for the poor are the corrupt politicians and bureaucrats and the rich vendors.
Even if a criminal charge is made out, the courts in the country are so understaffed and ill-equipped to deal with the already existing cases that any additional workload makes no sense as a decision will have to wait for decades. Delay in justice delivery in India has rendered the justice system and the complaining process meaningless.
According to the Chief Justice of India, Justice K.G. Balakrishanan "the growing population, increasing awareness of rights and abiding confidence of the people in the judiciary saw a litigation boom which our judicial set up was not sufficiently equipped to handle." Underfunding of judiciary, the continuing neglect to improve the judicial infrastructure over the past decades, inordinate delays in filling up vacancies of the judges and a very low population-to-judge ratio are some of the major factors that require immediate attention to improve the performance of judiciary in the country.
During the Ninth and Tenth Plan, only 0.071percent and 0.078 percent of the total plan outlays were allocated for the judiciary. India spends a mere 0.2 percent of the gross national product on the judiciary. According to the 120th Law Commission Report, India's population-to-judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain.
The non-functionality of the justice system owing mostly to the congestion in the judicial process has led to a situation in the country where disputes are sought to be settled outside the legal framework. Such settlements, have led to the emergence of parallel dispute resolution mechanisms outside the parameters of the accepted norms of justice and the rule of law. The vacuum created by the absence of the rule of law, is occupied by the advocates of violence. In rural India, this void is filled by armed movements, which have arguably a philosophical background of resistance struggles by the classical have-nots.
The government response to such movements is that of oppression and suppression. The Salwa Judum and similar state sponsored private militia that operate in at least three states in the country have practically eliminated a democratic space within which an armed resistance movement could have been permanently diffused and issues settled.
The government further contributed to the declining confidence of the ordinary people by irresponsibly resorting to the recruitment of Special Police Officers (SPO). The SPOs are ordinary civilians, armed and indoctrinated, literally to kill his or her neighbour. The creation of the SPOs and the Salwa Judum is a direct breach of the constitutional mandate of the state and the international human rights norms that India must follow and practice.
It is this same psyche that has to a large extent isolated the people living in the north-eastern states of India from the rest of the country. Instead of trying to resolve the legitimate issues related to identity, ethnicity and exploitation of natural resources of the people living in the north-eastern states, the government of India's response in dealing with the crisis in the north-eastern states was first of discrimination and exclusion and later of suppression by militarisation shrouded with statutory impunity.
A government that has not tried to objectively understand the root cause of the anti-state sentiment of a large section of its population does not have a right to expect settlement of disputes through dialogue. The case against the government is further demeaning given the fact that it has so far prevented even the free movement of journalists and human rights activists within the region.
While the government prevents foreign journalists and researchers from entering the region, it has not been able to contain the infiltration of foreign terrorists into the region. As of today, people living in these states, particularly in places like Assam and Manipur are caught between foreign and home-grown anti-democracy elements and paranoid government agencies.
Abduction for ransom, arbitrary execution and other forms of violence are daily events in Assam and Manipur. While the government apparatus is practically incapacitated to prevent human rights violations carried out by the anti-state elements, the state agencies operating in the region violate human rights of the people, particularly by resorting to the widespread practice of custodial torture.
The present government has in theory and principle decided to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In fact the government has initiated the preliminary steps for ratification of the Convention. Towards this end the government has already started drafting a Bill against the practice of torture. The Asian Human Rights Commission (AHRC) expects that the new government will continue the present government's effort in ratifying the Convention and criminalising the act of torture in the country.
Democracy only makes sense if it is visibly felt in a society. The opportunity to elect a government, though in itself is one of the foundation stones of democracy that alone cannot mature into a democratic state. A democratic state guarantees the rule of law. In a society governed by the rule of law, democratic institutions gain prominence when they provide an open space for dialogue and discourse. In such a society it is the government that must be afraid of its people.
A government that respects its people cannot be sabotaged by narrow minded politicians and disruptive ideologies. The AHRC expects that the peoples' mandate of the largest democracy in the world will reflect this sentiment and that the next government that assumes power in India will be honest to the constitutional promise it swears allegiance to when assuming office.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
03 March, 2009
Structural breakdown of Indian justice system must be addressed, says ALRC
The Asian Legal Resources Centre, Hong Kong, in a statement says:
The reports that appeared yesterday in the Indian media quoting 'informed sources' that the Tamil Nadu state police has decided not to produce detainees in courts exposes the extent to which the justice institutions have broken down in India. According to the provisions of the Criminal Procedure Code, 1973 it is the statutory duty of the state police to assist the courts in the country for its day-to-day functioning. It is also mandatory for the police to produce the detainees remanded to judicial custody before the courts, as and when required by the courts. Any decision by the police, express or implied, against this official duty must not go unpunished.
The decision of the Tamil Nadu state police is a wilful dereliction of official responsibility, negation of judicial supremacy and the very function of the police in maintaining law and order. The Asian Legal Resource Centre (ALRC) and its sister concern the Asian Human Rights Commission (AHRC) have been continuously reporting instances suggesting the systematic breakdown of rule of law in India, particularly concerning the police. The decision by the state police of Tamil Nadu to disregard the provisions of law, substantiates ALRC's position that there are apparent and deep-rooted problems affecting the rule of law in India.
Lawyers engaged in professional misconduct, judges failing to perform duties and police officers committing crimes, assaulting persons and destroying property have become the defining characters of the justice dispensation system in the country. The structural breakdown is apparent. Yet, instead of gearing up to repair the ruptures, it appears that the government is forcing the people to get used to the reality.
The approval by the Government of India for recruiting, training and deploying Salwa Judum, in Chhattisgarh state, in the excuse of countering Naxalite activities in that state is an example. Salwa Judum is nothing but an armed mercenary group operating with impunity in Chhattisgarh. The Chhattisgarh state administration finds it convenient to arm a faction of organised civilians to fight anti-state movements like the Naxalites. By promoting Salwa Judum, the state is trying to absolve from its responsibility of maintaining law and order in its territory.
The Government of India, instead of preventing the Chhattisgarh state administration from continuing with the deployment of Salwa Judum, insisted yet another state administration, the Manipur state government, to resort to similar tactics in 2008. The same practice was implemented years ago in the state of Jammu and Kashmir during the time of rightwing BJP led government in India. Neither in Jammu and Kashmir, nor in Chhattisgarh or in Manipur, has the situation improved since then.
In the past two years, there has been an alarming increase in the number of extra-judicial executions reported from India. In the Indian context, such murders are referred to as 'encounter killings'. As of now, there is no legal framework in the country by which an impartial enquiry and investigation is possible in a case of encounter killing. The practice is, a superior officer and later the court, accepts a report sent in by the police involved in the murder and no further action is initiated. The murder is often rewarded by the administration, so much so, there are more than three dozen 'encounter specialists' serving as police officers in various parts of the country.
Impunity for the police to murder and the lack of punishment trivialises the practice of custodial torture in the country. The practice of torture is widespread and is accepted as an essential requirement for law enforcement.
On June 15 this year, the Speaker of the Kerala State Legislative Assembly, Mr. K. Radhakrishnan, declared at the annual conference of police officers of the state, that the use of third-degree methods by the state police cannot be condemned. The Speaker during his keynote address argued that it is ridiculous to insist that the police officers in India respect human rights. According to him, it is difficult to do policing and respect human rights at the same time. He made it clear that when the police investigate a crime, it is natural and often required for the investigating officer to use torture to prove the case. Among those listening to these remarks were the Director of the State Police Training College and the Director General of Police.
Breach of law by the law enforcement agencies in the country meets no bounds. Corruption, nepotism and the disregard to the law flourish within state agencies, particularly in the police. The society quivers under the writ of fear when the law enforcement agents commit crimes with impunity. In spite of repeated and legitimate requests from national and international human rights groups and the thematic mandates holders of the UN like the Special Rapporteur on the question of torture, the Government of India has failed to criminalise the practice of torture or to ratify the Convention against Torture.
In fact, the government has failed in implementing the directives of its own Supreme Court. The directives of the Supreme Court in the Prakash Singh case are yet to be implemented in the country. The implementation of the Court's directives is important for improving the state of policing in India, since half of the issues concerning the police, including the practice of torture and participation in crimes by the police officers, are carried out at the behest of corrupt politicians in the country. Having a law against torture while the ultimate writ above the police entrusted with a corrupt politician will not improve policing in India.
It is in this context that the protest called in by the Tamil Nadu state police becomes relevant in exposing and addressing the situation of rule of law in India. The very fact that the police can intentionally negate the supremacy of law shows the vacuum of authority in the country. The incident illuminates the impunity that the police have enjoyed so far that they have now dared to openly challenge judicial supremacy.
Instead of actively engaging in the situation, the Tamil Nadu state government has allowed the police to continue with their follies. The police action on February 19 inside the compound of Madras High Court that injured police officers, lawyers, judges, court staff and ordinary persons is not of such triviality that it could be resolved by a fast declared by the state Chief Minister. The police-lawyer confrontation and the subsequent sequels of non-cooperation between three important limbs of the justice dispensation system of the country is not an issue that can be camouflaged with political gimmicks and ignored.
The February 19 incident is the clarion call for intervention by a system which is left to break down and disintegrate. The subsequent protest orchestrated by the state police refusing cooperation to the functioning of the judiciary is a failure of the constitutional machinery that require a legitimate intervention by the Government under Article 356 of the Indian Constitution. The failure of the Government of India to take affirmative actions to correct and revitalize its criminal justice system poses legitimate challenges to India's democracy and the country's position in the UN Human Rights Council.
# # #
About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
The reports that appeared yesterday in the Indian media quoting 'informed sources' that the Tamil Nadu state police has decided not to produce detainees in courts exposes the extent to which the justice institutions have broken down in India. According to the provisions of the Criminal Procedure Code, 1973 it is the statutory duty of the state police to assist the courts in the country for its day-to-day functioning. It is also mandatory for the police to produce the detainees remanded to judicial custody before the courts, as and when required by the courts. Any decision by the police, express or implied, against this official duty must not go unpunished.
The decision of the Tamil Nadu state police is a wilful dereliction of official responsibility, negation of judicial supremacy and the very function of the police in maintaining law and order. The Asian Legal Resource Centre (ALRC) and its sister concern the Asian Human Rights Commission (AHRC) have been continuously reporting instances suggesting the systematic breakdown of rule of law in India, particularly concerning the police. The decision by the state police of Tamil Nadu to disregard the provisions of law, substantiates ALRC's position that there are apparent and deep-rooted problems affecting the rule of law in India.
Lawyers engaged in professional misconduct, judges failing to perform duties and police officers committing crimes, assaulting persons and destroying property have become the defining characters of the justice dispensation system in the country. The structural breakdown is apparent. Yet, instead of gearing up to repair the ruptures, it appears that the government is forcing the people to get used to the reality.
The approval by the Government of India for recruiting, training and deploying Salwa Judum, in Chhattisgarh state, in the excuse of countering Naxalite activities in that state is an example. Salwa Judum is nothing but an armed mercenary group operating with impunity in Chhattisgarh. The Chhattisgarh state administration finds it convenient to arm a faction of organised civilians to fight anti-state movements like the Naxalites. By promoting Salwa Judum, the state is trying to absolve from its responsibility of maintaining law and order in its territory.
The Government of India, instead of preventing the Chhattisgarh state administration from continuing with the deployment of Salwa Judum, insisted yet another state administration, the Manipur state government, to resort to similar tactics in 2008. The same practice was implemented years ago in the state of Jammu and Kashmir during the time of rightwing BJP led government in India. Neither in Jammu and Kashmir, nor in Chhattisgarh or in Manipur, has the situation improved since then.
In the past two years, there has been an alarming increase in the number of extra-judicial executions reported from India. In the Indian context, such murders are referred to as 'encounter killings'. As of now, there is no legal framework in the country by which an impartial enquiry and investigation is possible in a case of encounter killing. The practice is, a superior officer and later the court, accepts a report sent in by the police involved in the murder and no further action is initiated. The murder is often rewarded by the administration, so much so, there are more than three dozen 'encounter specialists' serving as police officers in various parts of the country.
Impunity for the police to murder and the lack of punishment trivialises the practice of custodial torture in the country. The practice of torture is widespread and is accepted as an essential requirement for law enforcement.
On June 15 this year, the Speaker of the Kerala State Legislative Assembly, Mr. K. Radhakrishnan, declared at the annual conference of police officers of the state, that the use of third-degree methods by the state police cannot be condemned. The Speaker during his keynote address argued that it is ridiculous to insist that the police officers in India respect human rights. According to him, it is difficult to do policing and respect human rights at the same time. He made it clear that when the police investigate a crime, it is natural and often required for the investigating officer to use torture to prove the case. Among those listening to these remarks were the Director of the State Police Training College and the Director General of Police.
Breach of law by the law enforcement agencies in the country meets no bounds. Corruption, nepotism and the disregard to the law flourish within state agencies, particularly in the police. The society quivers under the writ of fear when the law enforcement agents commit crimes with impunity. In spite of repeated and legitimate requests from national and international human rights groups and the thematic mandates holders of the UN like the Special Rapporteur on the question of torture, the Government of India has failed to criminalise the practice of torture or to ratify the Convention against Torture.
In fact, the government has failed in implementing the directives of its own Supreme Court. The directives of the Supreme Court in the Prakash Singh case are yet to be implemented in the country. The implementation of the Court's directives is important for improving the state of policing in India, since half of the issues concerning the police, including the practice of torture and participation in crimes by the police officers, are carried out at the behest of corrupt politicians in the country. Having a law against torture while the ultimate writ above the police entrusted with a corrupt politician will not improve policing in India.
It is in this context that the protest called in by the Tamil Nadu state police becomes relevant in exposing and addressing the situation of rule of law in India. The very fact that the police can intentionally negate the supremacy of law shows the vacuum of authority in the country. The incident illuminates the impunity that the police have enjoyed so far that they have now dared to openly challenge judicial supremacy.
Instead of actively engaging in the situation, the Tamil Nadu state government has allowed the police to continue with their follies. The police action on February 19 inside the compound of Madras High Court that injured police officers, lawyers, judges, court staff and ordinary persons is not of such triviality that it could be resolved by a fast declared by the state Chief Minister. The police-lawyer confrontation and the subsequent sequels of non-cooperation between three important limbs of the justice dispensation system of the country is not an issue that can be camouflaged with political gimmicks and ignored.
The February 19 incident is the clarion call for intervention by a system which is left to break down and disintegrate. The subsequent protest orchestrated by the state police refusing cooperation to the functioning of the judiciary is a failure of the constitutional machinery that require a legitimate intervention by the Government under Article 356 of the Indian Constitution. The failure of the Government of India to take affirmative actions to correct and revitalize its criminal justice system poses legitimate challenges to India's democracy and the country's position in the UN Human Rights Council.
# # #
About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
Subscribe to:
Posts (Atom)