Amita Dhanda

That ignorance of the law is no excuse is the pragmatics not the ethics of governance.  Both the empowerment of the citizen and the accountability of the governors require information of the law and rights based evaluation of it.  The governmental discourse on rights is often limited to elaborating upon the rights recognised or accepted by the State.  A rights-based approach cannot be content with such a limited understanding. The concept of rights has been constructed to both limit the exercise of State power and to provide agendas for its exercise.  These agendas and limitations may have been embedded in international covenants or national constitutions; or still be within the realm of rights theory.  Needless to add, it is relatively easier to obtain the enforcement of rights which have been incorporated in national constitutions and international covenants.  

Even so, people can entertain legitimate expectations from textually incorporated rights, if they are aware of such incorporation. Furthermore these paper rights become living guarantees when their mandate is spelled out in the face of real life situations and practices. The book under review is an effort in this direction.

Alienation

The rights to life and liberty have been categorised as basic as without these rights the realisation of all other rights is a non-starter. This basic nature requires that the various state laws, policies and practices by which these rights are endangered are subjected to strict scrutiny. The authors have subjected the laws relating to preventive detention; death penalty; counter terrorism to such scrutiny. They have then shown how extraordinary powers obtained to address rarest of rare situations join the pantheon of everyday and routine; and how the safeguards, which were aimed to guard against abuse, begin to be observed in the breach. This routine-ising of the extraordinary is specifically elaborated upon in a dedicated chapter on the Armed Forces (Special Powers) Act, which shows how law which is meant to cement social interaction can easily become an instrument of alienation.

This alienation can be aggravated when it is believed that the problem of obtaining respect for human rights can be fixed by the use of technology. The authors demonstrate the falsity of this belief by examining the claims of narcoanalysis and video conferencing. The authors provide expert information on the unreliability of narcoanalysis, to then contend why junk science cannot be an answer to custodial torture.

The discussion on video conferencing shows that virtual hearing cannot substitute personal hearing and is just a cost measure at the expense of vulnerable undertrials. These deficiencies are often not understood by the people at large because these technologies are uncritically glamourised and not rigorously scrutinised by the media. The media again, the authors bemoan, accord legitimacy to extra-judicial killings by the manner in which they celebrate encounter specialists. This celebration is magnified by the system of rewards instituted by the State. The reward of some and the non-punishment of others, creates a culture of impunity, which makes a human rights consonant regime difficult to maintain. The blindfold of the law should not slip when the wrongdoers are the powerful in a community.

The book has thus dealt with several contentious issues to demonstrate how law and practice compromise human rights. The interest of the authors is in demonstrating the human rights deficits of particular kinds of reasoning. Such an exercise has relevance in precedent-bound common law countries, where the existence of a precedent keeps alive the dangers of its replication.