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Accountability, Impunity, and Governance in India: A Conference Report
By PUNEET SINGH LAMBA
Audio and video recordings of portions of the conference may be obtained by contacting The Sikh Times.
The Sikh Times, Cambridge, Massachusetts, Nov. 17, 2003
Photo: (L to R) Pervez Imroz, Ram Narayan Kumar, Teesta Setalvad, Siddarth Varadarajan, and Balakrishnan Rajagopal
The above conference, organized jointly by Harvard University and Massachusetts Institute of Technology (M.I.T.), took place on November 15 and 16 in Cambridge, Massachusetts. Day one of the conference was comprised of informal closed-door meetings between the panelists in the morning followed by an open-to-the-public three hour panel discussion in the afternoon.
The panelists were:
Pervez Imroz, Srinagar-based human rights lawyer, chairman of the Public Commission for Human Rights (P.C.H.R.), co-founder of Jammu & Kashmir Coalition of Civil Society (J.K.C.C.S.), and patron of the Association of Parents of Disappeared Persons (A.P.D.P.)
Ram Narayan Kumar, convenor of the Committee for Coordination on Disappearances in Punjab (C.C.D.P.) and lead author of Reduced to Ashes: The Insurgency and Human Rights in Punjab
Teesta Setalvad, Mumbai-based award-winning social worker, coordinator of K.H.O.J., a secular education project, co-editor of Communalism Combat, and recipent of the 2003 Nuremberg Human Rights Award
Siddarth Varadarajan, deputy chief of the news bureau for The Times of India and author of Gujarat: The Making of a Tragedy
Balakrishnan Rajagopal (moderator), professor of Law and International Development at M.I.T. and director of M.I.T.'s Program on Human Rights and Justice
In his introduction, Balakrishnan Rajagopal framed the discussion to follow around what he termed a 'doubly paradoxical' situation whereby observers of the human rights climate in India 'have been struck by the number of times that perpetrators of serious human rights abuses seem not to be held accountable.' The two paradoxes articulated by Rajagopal are as follows. One, India is a democracy in which the citizens participating in the democratic process appear not be using their votes to hold perpetrators responsible for their actions. Only the elite seem to care. Two, the Indian state has averted failure despite the serious crises faced by its public institutions.
Teesta Setalvad viewed the social, economic, and rights accountability issue as distinct from that of 'electoral accountability.' She classified India as experiencing a slant toward an 'increasingly majoritarian state' since the 1980s and offered three examples to counter the idea that the desire for accountability in India might be an exclusively elite aspiration. One, Darshan Kaur, a widow victim of the 1984 anti-Sikh 'carnage,' who was beaten and terrorized for refusing H.K.L. Bhagat's offer of Rupees 25 lakh (2.5 million) and wanting to press ahead with her court case against him. Two, the Meerut victims. Three, the Gujarat victims.
According to Setalvad, 'to say that accountability is only an elite need is not to listen to the survivors [of mass violence].' She said that the Indian Penal Code (I.P.C.), Evidence Act, and Criminal Procedure Code (C.P.C.) are outdated since they were inherited from the British and predate the Indian Constitution. She noted that on average it takes fifteen years for a criminal case to get through the Indian court system.
Pervez Imroz argued that due to low voter participation and perpetual interference from the center, all Jammu and Kashmir governments since 1947 must be viewed as 'installed' rather than democratic.
Ram Narayan Kumar offered the example of Jaswant Singh Khalra, who 'moved the court,' 'cited the constitution,' and 'cited the laws.' He was not heard. The high court threw him out. He moved the Supreme Court (S.C.). But before the S.C. could hear the case and issue a notice leading to the discovery of the so-called illegal cremations matter, Khalra was abducted and disappeared (a euphemism for the common phenomenon of extra-judicial police killings in India.)
Kumar added that his work and mission (Reduced to Ashes) is to present facts and give voice to silent victims before the institutions of justice and to 'give them [the institutions of justice] a chance' to provide justice.
Siddarth Varadarajan noted that it is well known that 'law enforcement officials get away with murder' and 'go after innocent individuals [such as] Khalra.' He spoke of the two cases of individuals - both named Gilani - who got caught on the wrong side of the state's agenda. S.A.R. Gilani, a lecturer at Delhi University, was charged under the Prevention of Terrorism Act (P.O.T.A.). Iftikhar Gilani, the New Delhi bureau chief for the Jammu-based newspaper Kashmir Times and son-in-law of Hurriyat Conference leader Syed Ali Shah Geelani, was accused of possessing classified documents that were later found to be freely downloadable from the Internet. Both men were eventually found to be completely innocent of any wrongdoing.
The program for day two included a keynote speech by the former chief justice of the Supreme Court of India, J.S. Verma. The event was, as I was told by an organizer, 'closed to the media.' I was invited to attend in my individual capacity, but I decided not to attend unless I was free to report on the proceedings. Instead, I caught up with Verma the next day at a poorly advertized and sparsely attended lecture entitled, 'Can the Judiciary Prevent Massive Human Rights Abuses?: Experience from India.' Speaking about the subject of the lecture, Verma quipped, 'When the topic was suggested to me by [Balakrishnan] Rajagopal, I think he had spent some time thinking how could he make it as difficult as possibly he could. Experience from India, I think I qualify [to speak about]. I don't know if I qualify as far as the other aspect [i.e. the prevention of massive human rights abuses].' I will pick this thread back up later on in this report.
Verma was appointed a high court judge in 1972 at the age of 39. He retired as chief justice of the S.C. in 1998 at the age of 65.
Verma spoke about the 'phony emergency' declared by then Prime Minister Indira Gandhi, prior to which, in 1973 [when S.M. Sikri retired], three of the senior-most sitting S.C. judges were superceded for the position of chief justice of the Supreme Court of India, to which A.N. Ray was appointed instead. The three superceded judges, J.M. Shelat, A.N. Grover, and K.S. Hegde, had resigned in protest. Verma termed the event 'a very serious assault on the independence of the judiciary . . . meant to teach a lesson [and] a prelude to the emergency [1975-1977].'
Verma emphasised the role of public interest litigation in ensuring justice in the case of human rights violations, quoting Article 47 of the Directive Principles: 'to improve public health and raise the level of nutrition,' Article 21: 'the right to life [with dignity, as interpreted by the S.C.] and personal liberty,' Article 48a: 'which enjoins upon the state to work upon preservation of environment and ecology,' and Article 51a (1976), clauses a to j (and later k): 'free and compulsory education upto the age of 13.'
He questioned the extent to which the S.C. could 'prevent' human rights violations and that too massive ones, given that 'the judiciary only comes into place once the violations have already taken place.'
Verma remarked that the terminology of 'judicial activism/adventurism' came into vogue when the judiciary went after people holding public office. Speaking about the Hawala case (involving money laundering), he said that 'two terrorists' who were caught pointed to links with the underworld as well as top level bureaucrats and politicians. In this connection he quoted Article 14: 'right to equality' and Article 32: 'be you ever so high, the law is above you.' He said, the 'right to corruption-free governance is a human right of the people.'
He spoke of the S.C.'s efforts to counter the destruction of biodiversity in Arunachal Pradesh (A.P.) and Nilgiri Hills. He said that the legislative assembly of A.P. had passed a unanimous resolution to oppose the intervention of the S.C. in the matter of timber harvesting and raised the matter to the center claiming that 80 per cent of the state's revenue (Rupees 50 crore, or 500 million) was tied to timber. Verma noted that in order to be viable the state's 267 saw mills required more than four times the timber officially available for harvest. The state contended that the remainder of the timber was imported from Malaysia via Madras (now Chennai). Verma argued that it was harder to prevent such invisible violations of human rights as compared to the more visible sort involving the direct loss of human lives.
Oddly, Verma did not consider it pertinent to speak about his most recent role as chairman of the National Human Rights Commission (N.H.R.C.), a position in which he served for a little over two years (from November 4, 2000 to January 17, 2003). When I asked him to comment, he spoke of the positive role played by the N.H.R.C. in the aftermath of the recent cyclone and earthquake in Gujarat.
When I pressed Verma to comment specifically on the abduction and disappearance (September 6, 1995) of Jaswant Singh Khalra, who had been investigating illegal mass cremations by the Punjab police, he confirmed that Khalra is 'dead . . . no doubt' and acknowledged that the S.C.'s directive to N.H.R.C. to investigate 2,097 illegal cremations is still 'pending . . . not decided.'
He added, 'I am [a] little hesitant to speak about detailed reasons [for the delay in N.H.R.C.'s actions]. I will only say this that everyone has contributed to ensuring that it [the case] can't be concluded early. [Everyone,] including those who are representing the cause of the victims.'
He continued, 'But, before I left N.H.R.C. I have done this that by an order indicating what points arise for determination, I have placed the entire burden on the state . . . once it is shown that a person was taken by the police or any authority. If the [the arrest] is admitted, then there is no need of proof. Otherwise, all that anyone is required to prove is . . . and the C.B.I. has already given the report, so we know how many people were taken [illegaly mass cremated]: 2,097.'
Verma added, 'Now, if no evidence is laid and [the] state does not discharge it's burden of explaining what it did to the person who was taken away, then the responsibility is theirs [i.e. the state's]. And whosoever took it [the action resulting in the disappearance] will also be criminally liable for this disappearance. Now, this much is there. But then, you have to apply it to individual cases and there that is the only exercise [remaining]. So, this much has already been done that petitioners have to prove nothing unless the state or its agency proves that the man after being taken was released and sent home, which he never was [perhaps a reference to Khalra].'
In response to my invitation for him to answer the question posed by the topic of the lecture, Verma said, 'You can't answer yes or no. And, if you have to, then I would say: yes.' He said that the judiciary's actions toward the prevention of environmental and ecological deterioration qualify as prevention of massive human rights violations by virtue of their contribution toward ensuring quality of life. He seemed in agreement with a comment made by a member of the audience who ventured that perhaps if the question had been, 'Can the judiciary eliminate massive human rights violations?' the answer would surely have to be: no.
The conference organizers deserve to be congratulated for putting together a very capable and balanced panel with representation from many of India's oppressed groups, including the Muslims of Kashmir (Pervez Imroz) and Gujarat (Teesta Setalvad) and the Sikhs of the Punjab (Ram Narayan Kumar).
However, the conference did suffer from several organizational lapses and lack of transparency. For example, no programs were distributed during the panel discussion to apprise the audience of the names and qualifications of the panelists. I had to do my own legwork to collect that information. Balakrishnan Rajagopal's verbal introduction of the panelists was required but not sufficient. The dinner following the panel discussion, which was, as Omar Khalidi of M.I.T. put it, left to be advertized by 'osmosis,' was merely one more instance of the gratuitous covertness that seemed to characterize the organization of this conference. I urge the organizers to strive for a more open and inclusive approach at future events.