The Powerful Mighty State versus the Human Rights Defenders

By Adv Dr Shalu Nigam. Dated: 7/7/2019 12:16:39 PM

The courage to challenge the unruly authority

In December 2018, the National Human Rights Institutions (NHRI) across the globe pledge to bolster their support for human rights defenders amidst a growing climate of threats and reprisals. While adopting the Marrakech Declaration and reaffirming the principles of Paris Declaration, NHRIs recognized that "Human rights defenders have a positive, important and legitimate role in contributing to the realisation of all human rights, at the local, national, regional and international levels,". The National Human Rights Commission of India too, in its recent workshop organized in June 2019 observed that human rights defenders play a crucial role in a democracy and that the Commission is endeavored to create the enabling environment for the safeguard of human rights of defenders.
Yet, the situation in India is that human rights defenders have been targeted, attacked, harassed, threatened and have been charged in false cases by both the state and the non-state actors including police, armed groups and private actors. The mighty bureaucratic state apparatus abuses all its power to crush any resistance. More specifically, over the recent years, the role of the state has been transforming from the `welfare' regime to the capitalist neoliberal order, therefore a situation is created where common people are forced to resist. But those ruling elite exploit all their might and resources to make sure that it sends the loud message that the dissent will not be tolerated. The elitist, caste-based, majority-linked misogynist hegemony oiled by inequality of division of capital is destroying the idea of the diverse plural country. The scale of violation and abuse of power by the state and not state actors is increasing over the years.
The situation is that those who have been advocating for the rights of the marginalized and indigenous communities are those who have been facing grave onslaught of threats. Some have been shot dead, others have been implicated in the false cases, facing censorship, physically assaulted, kidnapped, involved in the unjust prosecution, unlawful, arbitrary detention, forced disappearances, unauthorized searches, financial threat of losing livelihoods or are being intimidated. Those working on the issues such as caste-based discrimination, environment, land rights, right to information, business and human rights are particularly vulnerable to undue arbitrary intimidation, arrest, threat, restriction and detention. Poets, journalists, artists, lawyers, activists, and many other such professionals are being specifically targeted because they are perceived as a threat by the ruling elite. These new forms of emerging challenges before the HRDs call for rigorous efforts to safeguard their rights. This write up looks at the emerging challenges and suggests that the institutions such as NHRC, the civil society and the international organizations should proactively act expeditiously to devise the measures to defend the HRDs.
The Haughty Elite State versus the Courageous Resistance from the Common People
Most of those who have criticized state's action or inaction or show courage to defy the authority are the conscientious common people most of them fighting, sometimes, lonely battles as poets, journalists, lawyers, artists, activists, professors and intellectuals trying to preserve diversity, democracy, secularism and the constitutional fabric of the country, exposing hypocrisy of governmental programmes, showing disagreement with the policies, exposing corruption and lies, raising questions about anti-people's policy and challenging norms that affect larger social interest. HRDs are acting as check and balance against the unleashing arbitrary power of repressive regime of the fascist tendency of the state. Their number is few and far, yet, the powerful state and non-state actor are afraid of lonely individuals and their ideas and do everything to discredit them probably because of the counterpoint they represent or perhaps speaking against the violation of fundamental rights does not go well with the greater plan of the state which sees dissent as a measure of dilution of its arbitrary power it enjoys. HRDs lack the power, muscles or resources that political parties may enjoy and work in extremely risky and vulnerable situation with no well-knit groups to support them yet claiming every inch of space to protect democratic fabric of the country. It is their motivation or may be the code of ethics which put them at the risk such as loss of career or dislocation in personal life besides they are forced to face odds with the official brand of resistance politics.
Yet, individuals who dissent are portrayed as enemies who pose threat to national security and integrity' and to curb this resistance the state exploits all its power to eliminate such people. This fact is further established when the custodians of the state with all their might are constricting the available spaces where people could protest and criminal charges are slapped against those who raise their concerns while strangulating the democratic soul of the country. People who resisted against the establishment are maligned and dubbed as naxalites', maoists', sympathisers of terrorists', or similar such tags are applied while criminalizing dissent. Rather the government has framed oppressive laws and policies in the garb of tackling Naxalite or the terrorist menace while pitting its regressive apparatus against its own citizens without any empirical evidences to showcase that state's security is under threat by such resistance or that the threat could be eradicated by alienating its own citizens. By using all such abusive strategies, the main intention of the state is to terrorize general public into submission while creating hostile environment without realizing the fact that acts of lawlessness by the state does not deter activism. Rather the act of dissent has not declined but the chaotic environment created by abusing the executive privilege through state's repression is manufacturing more dissent. The state has not realized the fact that war cannot be countered by waging more war, terror cannot be countered by violence or by alienating citizens. Solution lies in addressing the root cause such as eradicating deepening inequalities, eliminating injustice and marginalization, exterminating situations that are leading to systematic erosion of democracy and eliminating policy biases.
The Immediate Challenges
Human rights defenders have been playing a crucial role in critically examining the state's policies and pointing out the inaction and negligence by the state and other non-state actors for years. However, during recent years, the rights of HRDs are being violated by the state and other non-state actors. For instance, Prof G N Saibaba of Delhi University is 90 percent disabled and is bound to a wheel chair. According to his wife, he is suffering from 19 serious ailments which require immediate comprehensive specialized medical treatment. He was arrested in May 2014 after Maharashtra Police claimed that he has links with the Maoists. A session court in March 2017 sentenced him to life imprisonment after he was found guilty of having Maoists Link' and forwaging war' against the state. Reason being his extensive campaign against the Salwa Judum (a state sponsored private militia in Chhattisgarh) and the human rights violations against adivasis during the Operation Green Hunt launched by the UPA government. He has been detained in the Anda Cell in the Nagpur jail in a complete solitary confinement since then. The cell is like a deep well with no roof but an iron grid open to the sky. During summers, the sun hits directly and the temperature reaches to 47.5 degree Celsius. In his letter dated May 25, 2019 written to other activists, he has painfully narrated his worsening health situation and wrote, "There has been no treatment given to my major ailments at the Govt. civil hospital. The doctors there spent the past two years in medical investigations without concluding ever [sic]. In addition to my pain and suffering due to the severe ailments, psychologically I have been under great stress due to these circumstances. My disability has started playing heavily on me,". The day he penned this letter, he suffered a massive chest pain and could be saved because some of the fellow prisoners and the jailor took immediate steps, however the situation is grave.
In yet another instance, the arrests made by Pune Police in the (in)famous Bhima Koregaon Case of Sudha Bhardwaj, Varvara Rao, Vernon Gonsalves and others, despite of their impeccable record of working over decades on human rights issues, depicts the manner in which those working to protect the rights of marginalized communities are being harassed or criminalized. It has been alleged that the manner in which raids and arrests have been conducted,the charges have been fabricated and the trial has been conducted, violated not only international protocols but also violated constitutional provisions. The draconian UAPA law has been used toundermine government commitments towards HRDs. Roy succinctly puts, "The vulnerable are being cordoned off and silenced. The vociferous are being incarcerated". Due processes of law has not been followed, while arrests that have been used as a strategy to intimidate and silence those criticizing the Government. The UN Human Rights Office of the High Commissioner in its press release dated October 5, 2018 expressed its grave concerns about the terrorism charges laid against these human rights defenders and urged the authorities to ensure quick and fair trial as per the international guidelines.
Also, there are other HRDs who have murdered brutally with impunity. The Karnataka SIT has perceived a connection between the killings of Govind Pansare, Narendra Dhabolkar, MM Kalburgi and Gauri Lankesh. In other instance, abrupt raids have been conducted at the houses and offices of human rights defenders such as Fr Stanswamy while violation of FCRA has been used as the alleged reason for filing FIR by CBI against senior lawyer Indira Jaising and Anand Grover during the probe against Lawyer's Collective despite of the fact that there was no fresh evidence or change in the material circumstances since 2016. Prashant Kanojia and other journalists have been arrested for posting a tweet about the Chief Minister of UP and it is on the intervention of the Supreme Court that he is granted bail. Sanjiv Bhatt, an IPS officer has been sentenced to life imprisonment in a 1990 custodial death case for his claim of Modi's involvement in 2002 riots. His wife claims that a fabricated case has been filed to humiliate and corner him. Similarly, in other cases, law has been used as a tool to silence the voices of the HRDs. The motives of such attacks are many. Besides FCRA, other laws such as UAPA, Section 124A IPC or the Sedition law and other provisions such as those relating to criminal defamation, (section 499 and 500 IPC) Section 144 CrPC, Information Technology Act and other legal provisions have been used to target dissent, peaceful assemblies, protests and freedom of expression.
Also, there are many other known and unknown cases, where human rights defenders, whistle blowers, RTI activists, and others have been arrested, kidnapped, detained, tortured and murdered. Defenders who use the RTI law are killed for exercising the fundamental right to demand and receive information from the public authorities while their work is being restricted. Currently, the situation is that the fine line between criticism of the state and an act of terrorism, treason or extremism is getting blurred. The material that is uncomfortable is projected as something unlawful.
Those HRDs working in the conflict zones or regions which are heavily militarized and where armed groups are deployed and extra-legal steps are taken such as imposition of AFPSA face tremendous pressure. Many cases have been reported from such regions where the HRDs have been harassed by the State agencies. In some cases, NHRC has intervened, yet there are many other matters which need to be looked into. Many HRDs from such areas are facing extreme challenges where their attackers have easily evaded the clutches of law because of various reasons while fueling a deadly cycle of impunity. Rather there are cases where the officers who violated the law are rewarded by the state.
Women HRDs have been facing severe constraints in terms of gender-based discrimination and sexual violence in the country. Gender specific threats such as kidnapping, gang rape or acid attacks and trolling online are some of the common intimidation methods that are being deployed. Women HRDs are exposed to multiple dangers that arejeopardizing their lives, freedoms and securities. In some cases, those acting on behalf of state directly threaten, attack or assault women HRDs. In the current political climate when misogyny and sexism has been normalized, women HRDs face grievous threats more specifically those who work on indigenous rights or at the grassroot level are being isolated, publicly shamed, their reputation being shredded, personal life details being publicly available, force to face sexual and other forms of violence, hunted as witches, labelled as terrorists, stigmatized as bad women, silenced and marginalized from decision making and often face hostility and resentment from their own families and communities and all this is done to silence their voices. Entrenched gender stereotypes and ingrained biases against women are additional challenges that women HRDs confront in addition to what male HRDs face. The State therefore must recognize specific challenges and risks that women human rights defenders face to ensure that their work is supported and they could participate equally without any fear or threat for protection and promotion of human rights in order to strengthen democratic norms.
The International Instruments to Defend the Human Rights Defenders
Nelson Mandela stated that"To be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others."Yet, human rights have been violated world over, it is not only in India, but the HRDs have been facing persecution by the state around the world. Testimonies of defenders show that across countries such as Argentina, Brazil, Colombia, Indonesia, Kenya, Mexico, Russia, South Africa, Sudan, Syria and many others have been attacked. A report by the Amnesty International says that around 3500 HRDs have been killed worldwide since 1998. In 2017, 312 HRDs have been assassinated. This figure is 281 in the year2016, 156 in 2015 and 136 in 2014. In India, most of the defenders have been killed while defending the land and environment rights.
The UN Declaration on HRDs commonly known as 'Declaration of Human Rights Defenders' adopted in 1998 on fiftieth anniversary of Universal Declaration of Human Rights envisaged that 'everyone has a right individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels.' It contains a series of binding principles and rights based on human rights standards enshrined in other binding international documents and provides for support to HRDs in the context of their work. The Declaration outlines specific responsibility of the states and everyone with regard to defending human rights and to safeguard democratic setup. It paved the way for endeavor to protect and promote human rights across the globe and ensures that everyone contributes toward protection and promotion of human rights. The HRDs World Summit Action Plan in 2018 in Paris asserted that an action plan must be urgently adopted and implemented by the state parties, businesses, financial institutions donors and intergovernmental institutions. The Marrakech Declaration in October 2018 focused on expanding the civic space and protecting and promoting Human Rights Defenders with specific focus on women. Range of suggestions have been made from legislative protections to access to training and information to support and protect HRDs and their work and more specifically to protect women HRDs and also to create a legal environment and the laws.
The Role of the NHRC
Under Section 12 of the Protection of Human Rights Act 1993, the NHRC is mandated to encourage the efforts of the NGOs and institutions working in the field of human rights. The Commission has set up a focal point for the HRDs following the recommendations of the Workshop held on 12th October 2009. The role of the focal point is to ensure that the directions of the Commission in every case of alleged harassment of HRDs are complied with on priority basis. In several cases, NHRC has intervened to take cognizance of the complaint. The Commission since 2011 sends message on 9th December every year to support the cause of HRDs. HRDs cases are being registered separately to ensure proper monitoring and follow up of the case. NHRC has also created a core group on NGOs and the HRDs and on June 13, 2019 conducted a meeting of NGO and Human Rights Defenders. At the outset, the NHRC acknowledged its own status as anHRD and the value of the work of HRDs in furthering India's democracy and development agenda. It also affirmed its commitment to protecting HRDs in keeping with India's international obligations under the UN Declaration on Human Rights Defenders and the action plan developed at the World Summit of HRDs in 2018.
A Long Way to Go
Rosa Luxemburg has said that "Those who do not move do not notice their chains". HRDs are collective conscience of the society and their positive legitimate actions are significant to realization of human rights and in the universal struggle to achieve dignity, equality and justice for all. They are the change agents working in the critical conditions. They are the brave and courageous defenders of the constitution and people's rights and are playing the crucial role in preserving the values of democracy, freedom and justice in the country making it more inclusive, fair and free. HRDs defy injustice and defeat fear, hate and indifferences. HRDs are the voice for the voiceless, empower the excluded, speak up for the rights of most vulnerable and oppressed to create a cohesive society, stood against the powerful, share information, spread awareness, confront discriminatory arbitrary practices or norms and challenged the authorities, and yet are facing the great risk that affects the safety of themselves as well as their families. Instead of being recognized for their efforts, they are being attacked, threatened, intimidated, murdered, harassed and even are forced to face violence by those in power who are actively working to silence and crush their voices while forcing them to shut down their significant work. They are being threatened, attacked and murdered for who they are.
Currently, the situation is that social space is being constricted and the champions of truth and justice are being portrayed and labelled as anti-nationals, urban naxals, foreign agents, criminals, terrorists, unpatriotic and a threat to traditional values while their reputation is smeared as they are being put behind the bars. Any attempt to criticize the government of support the marginalized is seen as a plot to overthrow the government. Grassroot activists are being targeted and a pattern of human rights violation is noted against journalists, professionals and minority communities and more specifically in the politically sensitive areas. Certain communities are being specifically demonized and targeted in the guise of cow protection while others are being rendered stateless. This situation signals the contempt of constitutional values and create a culture of impunity. In the country, where democracy, social justice, equality, liberty, secularism, are fundamental values, the freedom of expression of those who speak are curtailed because of handful or those who advocate hate and discrimination. The need is to deconstruct and dismantle stereotypes based on gender, religion, caste or class and to radically reimagine social constructs to prevent marginalization and subjugation and to counter domination by the hegemonic groups. Women HRDs in conflict zone needs special consideration.
The situation of shrinking democratic spaces calls for the Human Rights Institutions as NHRC and similar such organizations to recognize and prioritize the protection to the defenders. This is also mandatory under Article 21 of the constitution. Authorities should publicly support their work and acknowledge their contribution to the advancement of human rights. Necessary steps must be taken to prevent abuse of state powers and to bring justice to those who are unnecessarily being targeted and attacked. Effective, efficient and quick trial must be ensured and those who perpetrate violence on HRDs must be booked, investigated and prosecuted. The State must proactively send the clear message that human rights violations will not be tolerated and that HRDs cannot be victimized. The State has the primary responsibility to create the conditions that are needed so that those who work to defend human rights can enjoy and exercise their fundamental rights and freedoms, including their freedom of association, the right to peaceful meetings, freedom of opinion and speech and the right to access information. Focus has to be laid on prevention and protection and to strengthen the solidarity and support to collectively promote human rights. Concrete measures must be devised to foster a safe and enabling environment for the defence of HRDs to stand up for what is right. NHRC must intervene in cases against HRDs to monitor and ensure that these are fast tracked and fair trial is conducted. Given the diversity of the country human rights need to be protected at the grassroot level to give legitimacy, visibility and greater protection of work of the HRDs allowing them to bring transformation while creating an enabling environment to defend human rights. State HRCs could play a decisive role to ensure protection to HRDs and therefore proper training must be ensured for all local level staff besides strengthening the focal point at the national level. Fixing accountability of state apparatus is essential. The ownership of establishing human rights in the country and protecting the HRDs lie with the State, institutions such as NHRC, the civil society and people themselves to monitor that human rights become a reality in the country. Ambedkar in 1952 wrote that future of Indian democracy is dependent on public conscience. He explained, "conscience which becomes agitated at every wrong, no matter who is a sufferer".
—(Countercurrents)
The author is a practicing lawyer, researcher and an activist working on human rights, gender, governance and law issues. She has published several research papers, articles and books.She has been attended a meet on HRDs as an invitee. She may be contacted at shalu_nigam@rediffmail.com

 

Video

Indian History... Read More
 

FACEBOOK

 

Daily horoscope

 

Weather