Honour not immunity

By Pratap Bhanu Mehta

THE UNION Home Minister, Mr. L. K. Advani's offer to provide relief to hundreds of security personnel facing prosecution for alleged human rights violations in Punjab, Jammu and Kashmir and the Northeast is a move in the wrong direction. While Mr. Advani has promised that any such measure will be undertaken within limits imposed by the Constitution, any proposal to offer blanket immunity to security personal is likely to do more harm than good to the long-term interests of the Indian state.

Admittedly, moral and legal judgment on the conduct of security forces in the face of palpable threats such as insurgencies, terrorism and civil war is a tricky matter and ought not to be the subject of easy moralising. The threats faced by security forces are often real and inflict a physical and psychological cost on them that most of us would be unable to endure. The rewards for such dedicated service are meagre. Public commemorations of their services are rare; and any esteem bestowed upon them is more ephemeral than an average politician's attention span. The causes for which security personnel have risked their lives, Kashmir, Punjab, the Northeast, peace-keeping in Sri Lanka exist largely as abstractions in public consciousness. The human dimensions of these causes, their complexity and messiness, the revelations about human nature they bring forth, the hypocrisies they bring to light and the complicities they expose, are all assimilated into phantom abstractions like the ``nation''. Though nationalism shares with religion the unique ability to be the only ideology capable of consecrating death, a ritualistic affirmation of the sacrifices security personnel undergo on behalf of the nation, is scant consolation to those who have seen the nation at its violent edges.

It has also to be admitted that the ``truth'' in such situations is not easy to determine. As Haruki Murakami, Japan's most popular contemporary novelist, once remarked in relation to Japanese atrocities in China: ``the truth is not in the facts''. Many security personnel rightly fear the banal version of this insight daily enacted in Indian state institutions. Our institutions are subject to abuse and manipulation. The legal process itself, even in normal proceedings, can take a toll that no one ought to be made to endure. Doubtless, there will be, as many have alleged, ``frivolous'' proceedings in these matters. But this is an argument to make our legal system more effective in disclosing the true stakes. It is an argument that we all, as citizens and as a nation, have to undertake at least some of the difficult work that pales in comparison to what we put our security forces through. If the history of judicial pronouncements of national security matters is any guide, it is more than likely that Indian Courts will require a high standard of proof to prosecute any personnel. Given the amount of slack that Indian Courts have given to Governments under the guise of national security, it is unlikely that we will see a flood of easy prosecution amongst the 1,500 or so writs pending in this matter.

An additional argument for giving blanket immunities to security personnel is that this is necessary to boost their morale. This may be true in a very limited short-term sense. But the fact that this is being seen as the only way to boost morale itself says something about the hypocrisies of our society. The real supports that might boost morale of security personnel are all lacking. Our defence procurement, despite substantial financial outlays, is languishing is more ways than one can list. Jane's Defence Weekly recently carried a shocking story of dozens of Indian pilots being killed because of lack of spare parts; the politics of defence purchases seems to have made sensible weapon planning more difficult. And a public culture that truly cares about the human stakes in these conflicts, that can construct a framework of memory where badges of honor are not mere phantasms, might be more consequential in boosting morale than the fraught gesture of giving immunity to security forces for human rights violations.

The legal, moral and political argument for giving the sort of immunity being proposed by the Home Minister is extremely weak. In some ways, the Armed Forces Special Powers Act of 1958, and similar Acts that followed such as the Armed Forces Special Powers Act (Punjab and Chandigarh) enacted in 1983; the Armed Forces Special Powers Act (Jammu and Kashmir) enacted in 1990; give the Armed Forces considerable immunity. The substance of these acts prohibits bringing any prosecution, suit or any other legal proceeding against anyone in respect of ``anything done or purported to be done'' in exercise of the powers conferred by the Act, except with prior permission of the Central Government. This particular feature of the Armed Service Acts has come in for severe censure by the Human Rights Committee. India is a signatory to the Universal Declaration of Human Rights and has also acceded to the International Covenant on Civil and Political Rights under whose auspices this Committee functions. This Committee has already argued that the immunity clauses of the Armed Forces Act run counter to Article 2(3) of the International Covenant on Civil and Political Rights. This article requires that states should provide an effective remedy to anyone whose rights have been violated notwithstanding the fact that a person acting in an official security capacity commits the violation. The phrase in the Armed Services Act ``anything done or purported to be done'' has come in for special censure because it seems to give to broad a cover to personnel acting in an official capacity.

No one ought to deny the fact that the Indian state, through its security personnel, has also been an agent of immense violence. Whatever its causes, a legal and public culture that does not scrutinise state violence, by invoking the pieties of service to the nation, poses an immense danger to all our freedoms. After all, the alienation produced in most of our disturbed areas is as much a consequence of the state's high handedness as anything else. To say to Indian citizens in those areas, ``you will have no recourse to justice even when there are large scale human rights violations'' is to more effectively make them into aliens. It is to accomplish by the stroke of a pen what the violence of terrorists and the machinations of foreign powers have not been so far able to achieve. Even during horrendous wars, armies all around the world follow conventions on the treatment of prisoners and civilian casualties. To argue that Indian citizens have even lesser rights is a travesty of the very values our security personnel are allegedly deployed to defend.

For these reasons greater immunity to security personnel, even after acknowledging the difficult conditions of their deployment, cannot be justified. It is morally suspect, politically imprudent, and reflects a denial of reality. Honour our service men and women by all means, and in all the measures that truly matter. But it would be dishonouring the only values for which their sacrifices can be justified: the preservation of the liberty of each Indian citizen and the rightful expectation that the state will protect, not threaten them.

(The writer is Professor of Philosophy, Jawaharlal Nehru University, New Delhi.)

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