extrajudicial killings

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Extra-judicial Killings

K G Kannabiran

Today the exercise of even human right is seen as a crime and the

adjudicatory system is at aid of disciplining the police and the armed

forces for fear of consa serrences. A system that is not prepared to risk

the absence of state violence can never tolerate any attempt to secure

human rights. A campaign for human rights must address itself to the

system the state sponsors.

ONE of Kelsens critics dealing with his

attitude to the tasks of jurists caricatured a

conversation between a jur ist and a legislator

as follows:

Your neither know nor care what kind of

laws you should make. That appertains to

the art of legislation, which is foreign to us

Pass laws as you wi sh. O nce you have done

so, we shall explain to you in Latin what

kind of a law you have passed

This fairly summarises the state of

legislative process, law and interpretative

agencies by which one gets acquainted with

and educated in law. Simple propositions at

higher levels of debate and interpretative

exercises tend to become obscure, with the

result that education as a way of dissemina

ting knowledge and improving the capacity

to comprehend reality fails. This situation

is exemplified in the discourse on human

rights and one wonders as to who should

be educated and who needs instruction on

human rights. Very often we hear theeducated and the artiolate say "we must

create an awareness of rights among the

poor", I have had a very active life in the

human rights Held for over two-and-a-half

decades and my experience has been

otherwise.

To illustrate the point: Immediately after

the Emergency Jayaprakash Naryan ap

pointed the Civil Rights Committee headed

by V M Tarkunde to inqui re into the killi ngs

of naxalites in staged encounters and he

limited the period of the inqu iry to 13 months

of the Emergency (1975). I was the membersecretary of this committee which published

two reports which led to the appointment of

a one-man commission of enquiry presided

over by the late Vashi sht Bhargha va, a re ti red

Supreme Court judge.

The very first encounter killing investi

gated was that of four young boys between

18 and 22 years, who were apprehended and

shot at a place called Giraypalli, in Siddipct

taluk, Medak district. Duri ng the enquiry I

received information that some special branch

officers were trying to tamper with the

witnesses who volunteered to depose before

jus tice Bhargava. That very day I reached

the place (it is a couple of hours away from

Hyderabad) and sat at the place where usually

villagers congregate. Slowly the villagers

turned up one by one and with a view to

put them at their ease I started conversing

with them. I gradually came to the killings

in Giraypal li by the police. Acco rding to the

police these four boys who were killed in

encounters were alleged to have killed a

local moneylender, one Donthula Anthaiah.

In the course of my conversation with themI said "They say that these four men killed

Donthula Anthaiah and if that is true what

is wrong with the police killing them?" To

this an undernourished half-naked shepherd

replied, "Sir what are the courts there for".

This is the rule of law in quintessence. His

experience in reacting to these institutions

provided him with this principle. I finished

my work in Giraypalli and returned to the

high court. As I entered the Bar Association,

four young advocates came up to me and

after discussing the proceedings in the

Bhargava Commission asked me "MrKannabiran why should these naxalites who

do not believe in the Constitution be given

protect ion underthe Const itut ion?" I narrated

my encounter with the shepherd and told

them that their parents had wasted hard

earned money in educating them. Similarly

I was arguing for the commutation of the

death sentence imposed on two naxalites,

Kishta Goud and Bhoomaiah before a bench

in the AP High Court; a junior judge on the

bench asked me the same question. I had to

say that, "when such issues come before this

court, it is our values which are on tria l andnot theirs".

Recently, in a tubal village in Srikakulam

district the tribals of the village put an

intransigent and violent landlord under house

arrest. These tribals were not naxalites. When

news of this ' wrongful' confinement reached

thecollector he rushed to the spot and secured

the release of the landlord and lectured to

the tribals about the rights the landlord has

and how they had violated his rights. After

listening to this lecture the tribals asked the

collector, "Have you or any other officer

ever lectured the landlord when he wascontinually violating our rights? Have you

ever rushed to the village and secured our

release so speedily when our liberties were

forfeited?" The collector recollecting this

incident later merely observed that the people

had become intelligent! Students belonging

to the Sikh community in Bidarw ere lynched

in 1987 by Hindus and later in Tsunduru in

Gunturd istric t (AP)d alit s were slaughtered,

cut to pieces, packed in gunny sacks and

thrown into canals. Many 'informed and

educated' people felt that these atrocities

were justified by the eve teasing that Sikh

students, dalits indulged in.

These merely serve to illustrate who needs

to be educated on human rights. The poor

who define human rights in terms of the

violations they are subjected to and are

witness to know fully well that these cannot

be remedied except by organising them

selves politically- They find that organised

political action is the only way to fight for

human rights. In the process they also learn

that social transformation into a human

society alone will free them from these violations

And this is the question that should enterinto whole debate on human rights in India

at any rate. It is not the people who need

to be educated in human rights. It is the

judges wh o upheld the Emergency of 1975

who were in need of such education. It is

the public servants who are put in charge

of governance who need to be educated. The

first step in this education is to learn to

perceive and acknowledge the structural

violence present in society and its institu

tions. Murder has been committed if

thousands are allowed to die of starvation

or if they have been forced into a situationin which it is impossible to survive. Murder

has been committed when you stand by and

permit assault and slaughter of the members

of a minority community or dalits. Murder

wil l be an ongoing process if we allow

domestic violence and rape to go unchecked

and women are not recognised as persons.

It is only when we recognise that murder

of this kind is as culpable as the murder

committed by an individual that we can

assume that our human rights education has

commenced. The murders which our society

engenders may appear passive whencompared with Auschwhitz but the logic is

the same. Barrington Moore Jr in his Social

Origins of Dictatorship and Democracy

points out that the French Revolutionary

terror must be seen as a response to the

prevailing social order which always grinds

out its toll of needless death year after year.

Moore points out it would be enlightening

to calculate the death rate of the ancien

regime' from such factors as prev ent ive

starvation and injustice. To dwell on the

horrors of revolutionary violence, while

forgetting the continuing violence during

normal times, Moore points out, is partisan

hypocrisy.

Economic and Poli tica l Week ly Marc h 23, 1996 705


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This leads us to the crucial fact that in a

stagnant society where all the institutions of

the state are structured to perpetuate the

status quo, the human rights movement

assumes a political character and is looked

upon as radical politics. All civil liberties

struggles arc perceived as extremist act ivity .

They are propagated as supporters of

extremist, secessionist politics and are

frequently subjected to assault. Three of my

good colleagues in the Andhra Pradesh

Civ il Liberties Committee were gunned

down with no protest worth the notice

excepting by the APCLC. The rule of law

stood suspended in these cases and in

others as we ll. Because of this pe rception

and the looming threat of state violence

that membership in these orga nisatio ns

invite, not many people are willing to enter

the field of personal liberty. While the

voluntary sector of NGOs is performing

very valuable work in the field of human

rights for wome n, chil dren and bonded

labour, for conscientisation, health, alternate or appropriate technology, etc, this

work is not seen as a threat to the existing

social order and the government encourages

the voluntary sector to carry on a broad

programme for social justice. There are

just about 10 to 12 organisati ons wo rk in g

in the field of human rights and dealing wi th

the personal liberty of people fighting tor

social justice and against an exploitative

order.

Human rights education in this country

wou ld thus mean educating public servants,

members of parliament and legislatures onthe rule of law, on the constitutional value

system and democracy. We need this to

transform this society into one where social ,

economic and political justice would be

present in all its institutions. As a first step

we should learn to stop defining every

political activity as a crime and realise that

a law and order approach is a short-term

strategy which if perpetuated for long

periods wou ld make gover nance an ti

democratic and unconstitutional. Today the

exercise of every human right is seen as a

crime and the result is that the adjudicatory

system is afraid of proceeding to discipline

the police and armed forces to act according

to law for 'fear of consequences'. A system

that is not prepared to risk the absence of

state violence can never tolerate any attempt

to secure human rights in real ity. A campaign

for human rights must address itself to the

system the state sponsors. The campaign

should have an unwavering faith in the rule

of law. The rule of law broadly defined

ensures the presence of democracy. And

human rights can survive only in a demo

cracy. Human rights violations can abate

only when society permits democraticprocesses to work lor social transforma-

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lion. It is therefore, necessary to restructure

institutions to create a climate for human

rights and democracy.

REPRESSIVE STRUCTURES

Lo ok in g back briefly when we entered our

first year of independence we did not make

a clean break with our colonial past. The

legal and administrative structure were

totally Briti sh Indian and the jud icia l system

was a mere continuation of what the British

had set up. The repressive legal structure

created by the Briti sh to deal wit h the strug

gle for freedom (called Terrorism by the

Brit ish), and to contain the non-cooperation

civil disobedience movements, still continue

on the statute book and continue to be

enforced in independent India.

At another level we had a hierarchically

structured society whic h we never attempted

to alter. There was no debate on the caste

system or its practices wit hi n the constituent

assembly. There was no proposal on the

agenda to abolish the caste structure. TheConstitution abolished bonded labour, chil d

labour and made the practice of untouch-

abili ty penal. Significantl y it did not declare

the caste system invalid and ban caste

practices excepting the tew mentioned in

Article 15(2). The clause prohibiting dis

crimination as between castes only affirms

and strengthens the caste system. There was

no recognition of the fact that the caste

system was an assault on human rights.

While Artic les 17.23 and 24 were addressed

to society the other articles guaranteeing

other rights and the right to equality areaddressed to the slate. The result is that the

practice of inequality in the ease of women

and the subordinate castes has continued

unhindered in the society. All struggles lor

rights have always centred around the touri

In this country, after the coming into lorce

of the Constitution, the key word is legality

which even today continues to be the obses

sional leitmotif. Social action litigation is

the preoccupation of all NGO s. Mo bil isi ng

people on issues of human rights, and other

democratic issues have become rare. A non-

elected court is called upon repeatedly to

adjudicate political issues. This trend has

trained people to be mere spectators reducing

democracy to a mere formality. The elected

representatives represent not the people but

arbitrariness and despotism.

The stale did not consider its responsibiIity

to realise equality in the spheres not covered

by state action, it is in this area that other

NGOs are operating quite effectively and so

long as they do not hold out a threat to the

social order they wi ll be al lowed to tuncti on.

The whole question of educating people

would arise in spheres not covered by state

action. In the other areas human rights

education has to address itself to the stale.

Clyde Snow, a forensic anthropologist, who

analysed skeletal remains to expose atro

cities committed by state officials in several

countr ies, observed 'T he great mass murders

of our time have accounted for no more

than a few hundred vi cti ms. In contrast,

states that have chosen to murder their own

citizens can usually count their victims by

the carload lot. As for motive the state has

no peers. It will k i l l its victim for a careless

word, a fleeting thought, or even a poem;

people are being killed for their political

views, for belonging to a particular com

munity and a panic-stricken state looks

upon even poverty as treason. All these acts

are indulged in by governments and the

magnitude of their crimes defies belief."

Summing up their experience the UN

working group on Enforced or Involuntary

Disappearances pointed out 'The working

group 's experience over the past 10 years

has confirmed the age-old adage that

impunity breeds contempt for the law. Per

petrators of human right s violati ons, whethercivilian or military, will become all the more

brazen when they arc not held to account

before a country of law". Thus large-scale

murders seemingly unnoticed by govern

ments come from a cultivated ignorance,

which refuses to recognise these crimes and

dismisses them as mere excesses and

aberrations not unduly disturbing. Thi s culti

vated ignorance permeates the entire field

of governance and any campaign or education

should expose this attitude of the executive,

ju di ci ary and the people's representatives

It is this cultivated ignorance which is responsible tor the enacting of a stunted piece

of legislation, viz. The Human Rights

Proieciion Act 1993, which created the

National Human Rights Commission with

practically no powers. The government and

the parliament recognised violat ion of human

rights both by the terrorists and the govern

mental agencies. They brought lorth two

statutes, one the Terrorists and Disruptive

Activities Act and the other for the Protection

of Human Rights, The former was an arbi

trary procedural and penal code fully

equipped to punish terrorists, the latter merely

enabled the statutory body to report on the

crimes committed by the state. Such dis

similar treatment for similar crimes shows

the utter lack of interest of the slate to

mainta in and protect the human rights of the

people of this country. A law and order

approach completely supersedes the consti

tutional limitations as also the obligations

under the international covenants. We arc

bound by Resolution 1989/65 of May 24.

1989 wh ich recommended that the princip les

on the Effective Prevention and Investiga

tion of Extra Legal, Arb itrar y and Summary

Executions annexed to the Resolution betaken into account and respected by govern

ments. The U nited Nations General Assembly

subsequently endorsed the principles by

Resolution 44/162 of December 1989 and

recommended that the principles, "shall be

taken into account and respected by

governments wit hin the framework of their

national legislation and practices, and shall

be brought to the attention of law enforce

ment and crim inal justice officials, mil itar y

personnel, lawyers, members of the execu

tive and legislative bodies of the government

and the public in general".

But has the National Hum an Rights Com

mission powers to enforce these principles?

Obviously it has not. Had the government

taken any steps suggested in this resolution?

Do any of these principles expressly or by

implication contravene any constitutional

principles or any other law in force? Or

does the government think there has never

been any extra ju dic ia l arbitrary killi ngs in

this country? Woul d we be right in invoki ng

any exceptional circumstance including a

threat of war to justify the continuation ofthese practices?The answer to these questions

would inform us how serious we are about

human rights.

We have in this country an established

tradition of fighting arbitrary and authori

tarian trends. We firmly believe that all

debates on human rights should lead to

strengthening the human rights movement

to fight these trends. If the struggle for

human rights is our political praxis we must

carry on this fight not only inside the courts

and before National Human Rights Com

mission but also in the poli tical arena outside.

Economic and Politi cal Week ly Marc h 23, 1996 707


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Economic and Poli tica l Weekly March 23, 1996

extrajudicial killings

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