December 26, 2002


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Ashwin Mahesh

A human enterprise

If Kuldip Nayar had expressed his concern for the human rights of alleged terrorists in the United States, says Arvind Lavakare, he would have been carted off to Guantanamo Bay to spend his days alongside the bloody murderers ensconced there.

This is demonstrably not true; The Nation, for instance has put out hundreds of pages critical of US government actions in response to 9/11, and its editors and writers fear no such banishment. Nor is The Nation a lone crusader; other examples of anti-government expressions are easy to find throughout the United States. How Mr Lavakare came to his belief, one cannot tell, but plainly there is evidence to the contrary.

This isn't a particularly important point, but I refer to it for a reason. For it is used to assert that the intellectuals and Left-leaning parties of past governments have exposed the Indian State to murderous attacks.

In India, says Mr Lavakare, Nayar's concern for human rights is so respected that he is not only assigned a Human Rights Watch column in the prestigious The Hindu newspaper but his written petition is enough to immediately move our National Human Rights Commission to order police protection for a doctor, whose life was feared at the hands of the Delhi police just because he rubbished its Ansal Plaza encounter that killed two armed Pakistani infiltrators. Such, dear readers, is the milk of human kindness that overflows in many of our elite intellectuals.

Is that really true? I have little dispute with some of Mr Lavakare's arguments; people have rights, and they are permitted the luxury of leaning heavily upon those who would infringe these. And also yes, there is an enormous distinction between 'militants' and 'terrorists'. The sum of his views is that it is difficult, if not impossible, to counter today's terrorists by conventional or legal means, and that the boundaries of State-led behaviour we would apply to ordinary citizens cannot be extended to mass murderers. The impassioned words of this opinion, however, contain one fatal flaw; Mr Lavakare appears to suggest that the 'rule of law' must be set aside so that people can suitably defend themselves against the threats they perceive. He doesn't ask that the laws be strengthened, he argues instead that it would be far simpler to disregard them.

This, more than the history of Indian intellectualism, is the real failing. A society whose rules of engagement are easily discarded denies not the humanity of those it prosecutes, but its own.

First, one must make a distinction between victims who are of the State and those who lie outside it. A police officer killed in Punjab or an army jawan martyred in Kashmir is an agent of the government; he faces death not from the institution of the State itself from those ranged against it. On the other hand, victims of police brutality or fake encounters are at the receiving end of violence from the State itself. The two cannot be equated; the National Human Rights Commission isn't vested with any authority over lawless murderous. The NHRC provides citizens additional security against State-led violence; it has no means by which to rope in suicide squads or renegade armies. When Mr Lavakare says 'no writs in favour of policeman are filed,' he forgets an important matter -- the mechanisms of law and order, the police and the army themselves, are standings writs in their favour! If action were ordered in response to the death of a policeman, who would carry out those orders? Other police, right?

The NHRC has failed on many counts; the desperately poor and malnourished millions should obtain greater concern from the commission. In many respects the Commission has become another in the long list of government entities that are allegedly independent and earnest but in reality have no understanding of their separate constitutional roles. But the commission's lowered status on those grounds isn't reason to decry its actions in other instances. The question was posed fairly -- did the Delhi police stage the encounter? This seems reasonable to ask -- any citizen who expects the protection of his life and liberty must be wary that the institutions that serve in that capacity do not themselves become perpetrators of arbitrary violence. Why this should antagonise anyone is difficult to comprehend. The real worry is that millions of Indians stand ready to believe our police would stage fake encounters.

Second, the failures of others do not become reasons to abandon our own quest for a better society. The United States does act without consideration of people's rights in many places outside its territory, as does Russia. And Pakistan's treatment of its minorities is egregious.

These, Arvind Lavakare finds unacceptable, but the conclusion he draws from the observation is hardly lofty. India cannot be the sole exception to global disregard for human rights, he asserts; we too must discard our 'fetish for human rights.' This non sequitur exposes the original argument. One can either demand that other nations should uphold a higher standard because one believes in it, or one can dismiss the standard itself at the outset. Embracing it initially and thereafter setting it aside because others have done so undermines the original assertion of faith in it.

The distinction between State victims and citizen victims, as well as honest adherence to professed standards, provide the answer to Mr Lavakare's billion-dollar question. He asks, 'what human right do these 'terrorists' have? Why arrest them red-handed, file cases, argue against bail from the courts, try them indefinitely, hear their judicial appeals and give free food to them for years when a couple of bullets in their bodies will rid us of the monstrosity in quick time?' In fact these questions have much less currency; he cannot honestly believe that. If he did, the next policeman he encounters could put a bullet in the back of his head, claiming thereafter that Arvind Lavakare was an agent of the ISI caught in an act of terrorism. Proof, by his own argument, isn't necessary.

We must also be wary that we do not suggest responses from the State merely from a calculated understanding of its functioning. Sometimes, in responding to dire situations we may enact measures by assessing our own likely victimhood to them. Those who argue that fake encounters should be tolerated, for instance, are calculating that they themselves will never fall prey to them. Perhaps an individual can make that determination, but an entire society cannot; the miniscule probability of any one individual suffering from it is quickly erased by the near certainty of its weighty action upon a few among the millions.

Mr Lavakare himself urged some solutions, and these we must embrace. Greater interaction between citizen groups and police can build confidence amongst the people that the security forces are agents of protection. The people do owe the police and the armed forces their trust and respect, but this must be earned. If sections of our society are too ready to believe that the police or the armed forces would stage false encounters of convenience, we must pause to ask why, and not lie content with asserting that the media have created this image. The distrust of the policeman remains real on the street too; everyday encounters of corruption and unwarranted brutality do not pass unobserved. The inspector who receives your bribe to waive a traffic violation leaves an imprint of his profession too; the National Security Guard lying fallen at Akshardham isn't the only representative of the machinery of law and order to the people.

The underlying dispute in all this stems from different views of the purpose of human rights. The appropriateness of law can be considered after a crime, but the purpose for which it is enacted must be examined a priori as well. The 'human rights' regime is an assertion that we make as a people -- that there is a minimum standard of conduct that defines what it is to be human, that we continually strive to obtain this measure, and that arbitrary deprivations of life and liberty violate our aspiration toward it. The humanity that is reiterated by such assertion is not that of the terrorist, but ours -- those whose lives must demonstrate the greater progress of the human condition. In rejecting it as inconvenient to tackling desperadoes, we would reject the civil society we aspire to.

Ashwin Mahesh

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