The politics of accountability

By Harsh Sethi

WITH THE Home Minister, Mr. L. K. Advani, publicly expressing sympathy for the plight of security personnel accused of violating human rights in the course of their counter- insurgency duties, issues of state accountability - justice, due process of law, and human rights - have once again come to the fore. Even more disturbing are reported proposals for granting amnesty from prosecution for those so charged, either through exploring `creative possibilities' within existing laws or by amending or drafting new laws. Given the widespread allegations of human rights abuse by state forces in insurgency affected areas, such signals by the Union Home Ministry cannot but cause concern not only in the human rights fraternity, or `victim' citizens seeking justice, but liberal opinion worried about the deteriorating culture of accountability.

Already there are murmurs that the existing spectrum of laws is sufficient to meet most circumstances, that given the National Security Act, the Disturbed Areas Act, or the Armed Forces Special Powers Act in addition to the more commonplace provisions under the CrPc the balance of power is unfairly tilted against the citizen seeking justice. Equally that the number of security personnel - police, para-military or military - successfully prosecuted and convicted for human rights abuses is miniscule and that the sentences awarded are rarely in consonance with the crime. In such a situation to further `arm' the security forces will only give impetus to lawless behaviour and worsen the human rights situation.

Of course, such a picture is summarily dismissed by those in the dock. The common security refrain is that the Indian state is too soft and that the forces have to fight a battle with `one arm tied behind their backs'. There is allusion to the nature of battle and the opponents, who respect no norms of civilized behaviour. The argument is that wolly-headed, liberal myopia comes in the way of successfully combating insurgency, that it is only the brave security forces who stand between `order and chaos' and have saved the unity and integrity of the nation.

This they have done and are doing in the most trying of circumstances, imperilling not just their own lives but those of their family members. To subject these `brave' persons to the ignominy of being branded as abusers of human rights, the harassment of a long-drawn-out judicial process and possible conviction is nothing short of betrayal. Instead these personnel ought to be lauded. So what if, in the course of their duties, they broke a few laws. This is clearly justifiable given the severity of the situation and the service rendered to the larger cause.

None of the above is new. The discourse during the 1980s, when the K.P.S. Gill-Julio Riberio combine were combating militancy in Punjab was the same. Mr. Gill has hardly been reticent in his rubbishing of the human rights fraternity, calling them interfering busy-bodies whose only purpose is to weaken the resolve of the fighting forces. He was particularly bitter when one of his prized officers, the SP of Taran Taran, committed suicide, ostensibly because of harassment by human rights groups and for facing prosecution. Not surprisingly, a section of our liberal intelligenstia too supported his demands.

So is Mr. Advani, in echoing similar views, only playing to the security gallery, more so since the security environment has worsened in the last few months. Post the `failure' of the Agra Summit militant activity has escalated in Jammu and Kashmir. Similarly, following the uncertainty over the comprehensive cease fire accord with the NSCN(I-M), the danger of fresh outbreak of violence in the fragile Northeast too has increased. Is he trying to resucitate his image as a no-nonsense, hard- headed Sardar Patel Mark-II? Is this the beginning of a new hard approach to insurgency, putting political parleys on the backburner?

The issue, unfortunately, is a little more complex than whether our security personnel are heroes or otherwise, whether they are frontline activists fighting a dirty war so that the rest of us can debate the fine points of liberal democratic practice. It is more about what faith, we as a people and nation, have in our Constitution, the laws of the land, international human rights conventions - in short what is it that we are willing to accept as civilised behaviour even under extreme provocation.

It can be no one's case that combating terrorism or insurgency is an easy business, or even that `normal' laws and procedures to combat crime are efficacious in extraordinary situations. It is widely recognised, even in the human rights fraternity that militants/radicals/extremists/terrorists/`freedom fighters' often step outside the bounds of law. Yet, it is equally widely accepted that the agencies of the state cannot be equated to militants, that they necessarily have to operate under constraints, that since the state is the only agency which can legitimately use force if it too stoops to the level of its opponents there is no escape from the law of the jungle.

All of this is self-evident. There, after all, is Common Article 3 of the Geneva Convention, a central feature of International Humanitarian Law (to which India is a signatory) which applies to situations of internal armed conflict. Nevertheless, the situation gets complicated and such hard- headed proposals go unchallenged because critics of state action have often shied away from discussing the contours of legitimate force or from defining what might be considered an exceptional situation demanding exceptional action.

All they do is to reiterate that the existing laws and procedures are sufficient to meet any contingent need. Equally, since there often is `diplomatic silence' over the activities of `non-state actors', and criticism is limited to excesses by the state, they are unable to respond to the common citizen's fear about possible chaos and lack of security. Let us not forget that even the Amnesty International took ten years of furious debate before it could include human rights abuses by political opposition groups in its mandate.

This proclivity to strengthen the `repressive' arm of the state is hardly confined to the present regime. Even the `liberal' Chief Minister of West Bengal, Mr. Buddhadev Bhattacharya, in his earlier incarnation as the State Home Minister promised immunity from prosecution to police officers in the drive against criminal mafia gangs, arguing that the latter had no human rights.

While concern about the fate of security personnel fighting a dirty war is undoubtedly justified, it would be useful to spare a thought for the common citizen. Whether or not tougher laws and a short-cutting of procedures is efficacious in combating militancy, they definitely put ordinary people to great hardship. It is bad enough having to live in a war zone, caught between militant attacks and retaliatory action by security forces, to have people break into houses, pull out individuals in the guise of search and cordoning operations, if not worse. Now to be told that the very few who might be arraigned for the use of excessive force may get immunity from prosecution is to undercut the roots of justice and fair play.

Mr. Advani and his colleagues should realise that people are willing to undergo many hardships, including from the security forces, as long as they are convinced that the restrictions on their rights and liberties are justified. To gain their confidence and cooperation, the security forces have to alter their behaviour. Even in a difficult terrain like Kashmir, Operation Sadbhavama has won adherents. Granting immunity from future prosecution, or making the laws more lax for security forces, while possibly providing relief in genuine cases, may equally add to lawless behaviour on part of security forces, further undermining their weakened legitimacy. One wonders whether those behind the current proposals have thought of that.

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