Restoring rights

THE JAMMU and Kashmir Chief Minister, Mufti Mohammad Sayeed, was then the Union Home Minister. Insurgency in the Kashmir Valley was at its peak. The newly appointed Governor, Jagmohan, had his own rough and ready methods for countering it. Complaints about human rights violations by the security forces were piling up on the Mufti's table. He was unhappy about one or two points. One, Mr. Jagmohan's heavy hand was bringing him a bad name because Mr. Jagmohan was supposed to be his appointee. Two, the bottled up grievances of the Kashmiris had found an outlet in the shape of militancy that had acquired a Pakistani edge.

"Is there no Tarkunde for the Kashmiris?" the Mufti asked me. Mr. Tarkunde, a retired Mumbai High Court judge, was then chairman of the Citizens for Democracy (CFD), a body founded by Jayaprakash Narayan to seek remedy against the excesses of the authorities. The Mufti said: "You people go all over India, but never to Kashmir. Why don't you find out what is happening there?" Coming from the Home Minister, I was amused by his remark because the security forces were directly under his charge. Mr. Tarkunde led a team and the CFD published the report which was not to the liking of the Government. But it attracted a lot of attention. Pakistan straightaway picked up instances of human rights violations cited in the report for propagation abroad. The Mufti did not have time to discuss the report because the V. P. Singh Government in which he was a Minister did not last long.

All that came to my mind the other day when the Mufti, as the head of the People's Democratic Party-Congress coalition in the State, said that his priority was to assuage the hurt of those who had suffered in the last decade or so. Indeed, a healing touch is required to retrieve the alienated Kashmiris. If the new Government in Srinagar is serious about pursuing human rights violations it should pick up some of the reports prepared by the Tarkunde-headed teams. Sending them to the National Human Rights Commission for processing and suggestions may help the Mufti. Another report on human rights violations, I recall, was at the instance of Yasin Malik, Hurriyat Conference youth leader. Some years ago, when Mr. Yasin Malik, during his detention, went on a fast unto death at the All-India Institute of Medical Sciences in Delhi, the intelligence men telephoned me at his asking. His demand was that an Amnesty International team visit the Valley and prepare a report on the human rights violations. I asked him why he was insistent on the Amnesty team and why he did not trust the Indians. He broke the fast when I told him that some of us would tour the Valley and report on the conditions obtaining there. Again, Mr. Tarkunde led the team.

Neither Srinagar nor New Delhi ever took notice of the reports, much less any action. There was not even an acknowledgement of the communications we sent to the Home Ministry. However, during the investigation we found top officials in Srinagar (not Delhi) and the Chief Minister, Farooq Abdullah, extremely cooperative and forthcoming. In this respect, the Home Ministry's record under L. K. Advani has been far better. I took up with him the case of an "encounter" in Srinagar where a BSF official had allegedly killed a couple travelling on a scooter. Mr. Advani had ordered an inquiry into the case. Whenever I have written him about Mr. Yasin Malik's health or proper medical care, Mr. Advani has been prompt in his response. He even allowed him to go abroad for medical treatment.

Coming to the release of detenus, there are two categories: those who have committed murder or any other heinous crime will have to face trial. Those under detention on suspicion or for holding another point of view have to be treated differently. Any conciliation process will require their release. The Mufti's poll plank was that his party would apply a balm on the wounds of the State. It should go ahead. Nonetheless, at some stage, the Mufti will have to set up an inquiry commission comprising retired judges from outside the State to examine the allegations about officers taking the law into their own hands in different cases. He has before him the precedent of Parkash Singh Badal, who after becoming Punjab Chief Minister ordered a judicial review of doubtful encounters. Nearly 150 from the police are still on trial. The NHRC has also identified 550 bodies which were cremated without anyone accounting for them. The State Government has yet to explain their death and the circumstances leading to them.

In a civilised society it is imperative that the basic rights of the people are protected. The police should be accountable for the action they take to maintain law and order. They have no licence to kill. Nor can they be a law unto themselves. Article 21 of the Constitution says, "No person shall be deprived of his life or personal liberty except according to procedure established by law." The Government which came to power after the Emergency — it included Atal Behari Vajpayee and Mr. Advani — said that Article 21 could not be suspended even during the Emergency.

I cannot understand the Prime Minister's defence he gave the other day that during the terrorism which the country faced, some rights had to be abridged. But the Government has already done so by having the Prevention of Terrorism Act (POTA). The Government can have more laws if it so requires. Still, it has to maintain a balance between the State's needs and the compulsions of fundamental rights. In no case should the authorities go beyond the boundary of the law. Otherwise, it can become a Jungle Raj.

This is the reason why I have felt disappointed over the general reaction to the Ansal Plaza shootout. The argument is: they were terrorists and, therefore, the police were entitled to kill them without bothering about the law. The judicial system is slow to deliver justice. It does not matter even if the encounter is false so long as the terrorist has been killed.

There are umpteen numbers of examples where the police have been high-handed. The Shah Commission, appointed to look into excesses during the Emergency, was so horrified by the cavalier behaviour of the police that it drew the Government's attention to the matter and said: "Some police officers behaved as though they are not accountable at all to any public authority."

This makes the silence of academicians, lawyers or artists over the "encounter" at the Ansal Plaza all the more deplorable. I know that political parties come to life only when they smell power. The Left, even when prodded, remained silent. Only the BJP and other members of the Sangh Parivar were vocal because they wanted to use the opportunity to attack human rights activists. Their discourse, understandably, was like that of an authoritarian.

It is a matter of regret that except for a few newspapers, the comment of the print media was motivated. The Sangh Parivar moved in to try to silence the anti-Hindutva voices. Even the NHRC's authority was questioned for entertaining the petition. It had to point out that it could take cognisance of the incident under the powers given to it by the law. But more than a legal or constitutional justification it is the campaign of vilification against the Commission that is frightening. It shows a degree of intolerance, inconsistent with the principles of our democratic polity. What is important in a democracy is the courage to speak out. No consideration, whether of party or convenience, should keep us quiet when we see or suspect a wrong done. The countries that have earned respect are those where people have preferred punishment for telling the truth to the reward of keeping quiet. "The day we see the truth and cease to speak is the day we begin to die." So said Martin Luther King. I feel something like that is happening in India.