3

Human Rights

The emergence of ‘human rights’ as a secular religion is of relatively recent origin. It appeared out of the horrors of the Great Wars and was formalized by the proclamation of the Universal Declaration of Human Rights on the 10 December 1948 in the General Assembly of the United Nations. Perhaps that is the reason human rights are not as sacrosanct in states that escaped the devastations wrought by the wars between peoples and nations. Southasia had to bear the human, material and moral costs of the Great Wars without having played any part in their conflagration. Wars taught Southasian leaders not to take violations of human rights lightly. Fundamental freedoms are enshrined as inalienable rights of every individual in every constitution of the subcontinent. Adherence to those norms, however, is a different matter altogether.

There is some truth in the observation that when there is a contradiction between behaviour and norms, the latter prevails. But in tradition-bound societies, attitudes change slowly. In the concepts of dhamma of Buddhism and dharma of Hinduism, rights are considered preposterous—individuals are called upon to concentrate on duties as in the famous injunction of Lord Krishna to Arjun in the Bhagvada Gita: ‘Your rights are limited to performing your duties, not on the outcome.’ Even in Christianity and Islam, relatively modern religions compared to other faiths of the subcontinent, the concept of duties—towards the Almighty, society, family and self—overshadows individual rights. The mindset produced by deeply held beliefs comes in the way of implementation of human rights laws in Southasia.

The social mechanism of monitoring human rights violations is equally lax for three reasons. Religious affinity, family honour and tribal ties are considered important in the subcontinent. Secondly, liberalism—the ideology that gave birth to the concept of human rights—is not widely understood in the region. Even though the sanctity of an individual’s life, liberty, property, identity and dignity are implicit in all faiths, it has not been able to overcome the horizontal division between creeds or the vertical hierarchy of caste. The third barrier to the acceptance of human rights is also the strongest. For reasons of its own, almost every state in Southasia lives under the constant threat of disintegration. This turns the ideology of ‘Reasons of State’ into an instrument of consolidating power and exercising authority without a due process of law or accountability. The romantic notion of a person being born free only to find fetters all around later in life is as true in Southasia as anywhere in the world. The universal declaration of human rights is hence an important consideration of existence in the region.

Unfreedom in the Region

From Afghanistan to Burma (west to east) and from Tibet to Sri Lanka (north to south), the status of fundamental freedom leaves a lot to be desired. It is relatively easy to blame western governments of duplicity and double standards in judging human rights records of developing countries, but self-examination by any Southasian would reveal that there is a lot to do to establish the dignity of the individual in this region.

Russian occupation and Taliban totalitarianism had already shaken the celebrated resilience of the Afghans. Americans have since destroyed whatever was left behind. Ever since US President George W. Bush and his neocon1 advisers dreamt up the dubious idea of a War on Terror in the wake of 11 September 2001, the civilization of Kandahar and Kabul continues to bear the brunt of the biggest military power of the planet. Despite the backing of the American military might, the puppet regime of the West in Kabul has not been able to establish its grip on Afghan society, much less bring some semblance of order back to the hills and valleys. The violence of insurgency and counter-insurgency rocks the countryside with unfailing regularity as the government’s writ does not extend beyond heavily fortified administrative centres. Even aid workers are often abducted, tortured and executed. To talk of human rights in Afghanistan in such a situation is somewhat like chasing a mirage. But it must be talked about to prepare for the days when things will return to normal.

In 2007, the imperfect democracy of Bangladesh was replaced with a synthetic governance system based on a hybrid civil—military combine ruling the nation in a technocratic manner. But the regime that claims its legitimacy upon efficacy and efficiency hasn’t been able to do much in improving the dismal human rights records of the previous regimes. Pathologies of a repulsive level of corruption, high-handed police force, inefficient judiciary and wayward religious zealots persist; and there is justifiable reason to question the non-political administrative solution of what are essentially issues of governance. The Rapid Action Battalion (RAB), formed to fight organized crime, is alleged to engage in serious abuses such as extra-judicial killings, torture and abductions, but the political atmosphere to complain against their excesses is simply not there. The RAB, according to human rights groups, acts as informers, judges and executioners all rolled into one, and there isn’t much its victims can do to have their plight addressed.

Bhutan has made considerable progress under the tutelage of New Delhi except in case of acceptance of the principle of plurality and culture of diversity. Absolutely no attempts have been made by Thimpu over the decade to create conditions for the return of Lhotsampa refugees languishing in the camps of eastern Nepal. A whimsical ban on satellite channels in the name of cultural purity continues. The Bhutanese king’s innovation of Gross National Happiness (GNH) in place of the globally accepted parameters of Gross National Product—absolute or adjusted to purchasing power parity—is all very well, but life in the Druk kingdom is not easy for anyone who dares question the status quo. When the definition and limits of individual freedom are set by the royal clique professing to be progressive, the lives and liberties of individuals depend more upon the mercy of the law enforcement agencies than on laws themselves.

The political uprising in Burma brought about the fundamental flaw of all military regimes to light: no matter how sincere and ‘efficient’ the ‘guardians of the nation’—that’s how the defence forces of unstable countries like to describe themselves—are, people everywhere yearn to exercise some control over their collective destiny. Very little seeps out of a country under the stranglehold of one of the most secretive regimes in the world, but prolonged incarceration of Daw Aung San Suu Kyi is proof—if any proof was needed—that the junta in Rangoon has no tolerance for even dissidence, let alone democracy. Human rights under such a regime can only be of academic interest. But it requires more, not less, academic enquiry.

It is impossible to generalize about the human rights situation in India; the country is too vast and varied to be overviewed in a paragraph, or a book, for that matter. Popular aphorism about the complexity of India—whatever is true, it’s exact opposite is equally true—is accurate in all its majesty. Country author, T. A. John, attempts to do the impossible in the accompanying piece, ‘Democracy, Governance and Human Rights: India Perspective’. But aberrations of the otherwise ‘normal’ human rights record in India are glaring. The dreaded POTA—Prevention of Terrorism Act—has been repealed, but a mere mention of sinister acronyms such as TADA (Terrorism and Disruptive Activities) or MOCOCA (Maharashtra Control of Organized Crimes Act) still sends shivers down the spine of many of its victims. These instruments gave sweeping powers to investigative agencies which were then recognized by courts. In a landmark case, the Constitution Bench of the Supreme Court upheld the validity of section 15 of the TADA which made a con fession statement recorded by a police officer as admissible in evidence. Its saving grace was the minority view that differentiated between approaches of the police and the judiciary.2

Another anomaly that plagues the human rights record in democratic India is the persistent abuse of the draconian Armed Forces (Special Powers) Act or AFSPA. Since the Northeast3 is the main victim of AFSPA excesses, the metropolitan press often ignores what the armed forces do with everyone they perceive to be suspects. Institutionalized discrimination on the basis of caste, creed, gender, age and infirmities persist in democratic India even sixty years after its tryst with destiny at the stroke of midnight, but attempts are being made to get over them. But more alarming is the tendency to use armed forces to resolve political issues.

Reports are quite effective in giving a sense of reality through the description of visible details—length, breadth , height and composition. But to go to the depths of agony or ecstasy, there is nothing like poetry. Agha Shahid Ali, a Delhi-born American poet of Kashmiri origin—a personification of multiple exile and cosmopolitanism—wails in his 1997 poem ‘Farewell’:

Army convoys all night like desert caravans:

In the smoking oil of dimmed headlights,

time dissolved—all winter—its crushed fennel

We can’t ask them: Are you done with the world?

‘They’ are never done with the world.

‘We’ all have to be constantly on guard

against human rights violations anywhere and everywhere.

 

Democracy, Governance and Human Rights: India Perspective

by

T. A. John

India symbolizes one of the largest and oldest democratic nations in the world. The constitution defines India as a sovereign, socialist, secular, democratic republic. It has three branches of governance: the legislature, the executive and the judiciary. Since independence in 1947, India has maintained cordial relationships with most nations. As important as civil and political rights in the Indian context are the rights of the marginalized— women, tribals, Dalits or lower castes and the poor. It is the rights of the marginalized and of the minorities in the country today that are in peril. The challenge is to empower the poor and marginalized to fight for their rights and participate in the public sphere.

Where Do We Stand?

India has made considerable progress in its social and economic development in recent decades, which is clearly visible from its improved social indicators of life expectancy, infant mortality and literacy rate. However, improvement in women’s status is lagging far behind than other accomplishments. Women in India live under the strain of various forms of oppression. These are evident from social, cultural and religious pressures in family, law, politics, government programmes, information services and education. These pressures adversely affect women’s access to resources. The underdevelopment of rapidly ‘developing’ India is quite evident as various human development indicators reflect that we have not been able to guarantee basic development rights to the citizens of India even after five decades of independence. The status of basic health, primary education or hunger continues to take centre stage as access to these services in various states for many disadvantaged communities is far from satisfactory.

Livelihood prospects continue to decline. While the growth rate of employment took a beating in both urban and rural India in the 1990s, the extent of the decline was much larger in rural India. The annual growth rate of employment in rural areas dipped to 0.58 per cent in the period 1993–94 to 1999–20 from 2.03 per cent in the period 1987–88 to 1993–94. In urban areas, it declined marginally from 3.39 to 2.27 per cent during the same period.

Livelihood and agriculture—A dismal picture. In fact, during the second half of the 1990s, as per the NSS data, employment growth in agriculture almost completely dried up. Decline in the growth of employment opportunities was, in large measure, policydriven through reduction in public development expenditure, declining input subsidies and drying up of rural credit.

The myth of growing food security. It may also be noted here that the decade of the 1990s is indeed the only one since independence when per capita food grain output in the country declined in absolute terms. It reflects a complete disregard for the right to livelihood, as reflected through appalling access to employment and food availability and, in recent years, the situation appears to have deteriorated alarmingly.

Health—Arduous path ahead. The public expenditure on health as a percentage of GDP in India is among the lowest. India spends only 4.46 per cent. Even Bangladesh has overtaken us in this regard over the past decade. It is worth noting here that according to the Human Development Report, 2004, in terms of public expenditure on health care as a proportion of total health care expenditure (in the country), India ranks as low as 171 among the 175 countries studied. On the other hand, in terms of private health care expenditure as a proportion of the total, India’s rank is rather high at 18.

Education—Promises need to be backed by commitment. The NDA government’s last budget, for the year 2004–05, had set aside Rs 6,004 crore for elementary education, whereas the Tapas Majumdar Committee had suggested that to achieve the goal of universalization of school education over a ten-year time frame (1998–99 to 2007–08), the total expenditure required was around Rs 1.37 lakh crore, and for 2004–05, it had suggested an expenditure of about Rs 17,000 crore. Also, the capital allocation on education, which is meant for the creation of new buildings and other infrastructure, had been very low throughout the tenure of the NDA regime. It declined from around Rs 224.53 crore in 1994–95 to Rs 18.42 crore in 2002–03.

Human rights in India—Historical perspectives. Despite being a ‘vibrant democracy’ with strong constitutional protections, India’s human rights enforcement record has been ‘poor’ and needs improvement. The Constitution of India is one of the most rights-based constitutions in the world. Drafted around the same time as the Universal Declaration of Human Rights (1948), the Indian Constitution captures the essence of human rights in its Preamble, and the sections on Fundamental Rights and the Directive Principles of State Policy.

The Constitution of India is based on the principles that guided India’s struggle against a colonial regime that consistently violated the civil, political, social, economic and cultural rights of the people of India. The freedom struggle itself was informed by the many movements for social reform, against oppressive social practices like sati, child marriage, untouchability, etc. Thus by the mid-1920s, the Indian National Congress had already adopted most of the civil and political rights in its agenda. The movement led by Dr B. R. Ambedkar against discrimination against the Dalits also had an impact on the Indian Constitution.

In spite of the fact that most of the human rights found clear expression in the Constitution of India, the independent Indian State carried forward many colonial tendencies and power structures. Though the Indian State under Jawaharlal Nehru took many proactive steps and followed a welfare-state model, the police and bureaucracy remained largely colonial in their approach and sought to exert control and power over its citizens. The casteist, feudal and communal characteristics of the Indian polity, coupled with colonial bureaucracy, weighed against and dampened the spirit of freedom, rights and affirmative action enshrined in the constitution.

Concerns for India

The major concerns for India are:

  • Judiciary —especially the lower judiciary, which is plagued by a lack of sensitivity and enormous delays.
  • Policing—which is reeling under ineptitude and corruption, and in which the practice of custodial torture is prevalent.
  • Discriminatory approaches—by the government towards certain regions within the country—for example, the Northeast.
  • Caste-based discrimination—often leading to starvation deaths.

Of the 1.2 billion Indians, an estimated 74 per cent are living in the country’s rural villages. The improvement in the living standards and quality of services available to this 74 per cent of the population, guaranteeing them the basic minimum rights, would be better proof of the improvement of human rights and the rule of law vis-à-vis economic development in India.

Panchayati Raj is a concept that has been implemented in India since April 1993. The Act also provided the panchayats with the authority to function as institutions of self-governance. To facilitate this, certain powers and responsibilities are delegated to panchayats, to prepare and implement a plan for economic development and social justice. In effect, the process was aimed to decentralize governance and also at the same time to promote, through a positive reservation, the empowerment of backward communities, women and the members of the scheduled castes and tribes in India.

South Asia

South Asia is home to 47 per cent of the world’s poor living on less than $1 a day. India has reduced its poverty rate by 5–10 per cent since 1990; most other countries registered reduction in poverty over the period, except for Pakistan, where poverty has stagnated at around 33 per cent (using national poverty lines). Looking beyond consumption poverty at other indicators of social progress, the region has had encouraging success in some areas: for example, mortality in children under five has reduced substantially between 1990 and 2004 (from 129 to 92, per 1,000), especially in Bangladesh (149 to 77, per 1,000) and Nepal (145 to 76, per 1,000), At the same time, challenges remain in key areas such as child malnutrition, primary and secondary completion rates, maternal mortality, and gender balance in education and health outcomes; nearly half of all children under the age of five are malnourished in Bangladesh and Nepal, and youth illiteracy in the region is high—18 per cent for males and 35 per cent for females.

  • Democracy and Human Rights in the South Asian Context

    South Asia faces numerous human rights and development challenges that threaten stability and democracy, while various long-standing ethnic conflicts and insurgencies hamper further progress. Despite these challenges, there have been notable successes. The continuing thaw in relations between India and Pakistan was another positive development. Continued engagement between India and Pakistan has the potential to improve the lives of the Kashmiri people by ending years of estrangement and political violence.

    The institution of ‘human rights and democracy’ in a country is unavoidable to promote the multicultural values and ethics of tolerance positively. The South Asian region has experienced the autocratic rule of the regime if we look at the development of South Asian history. The colonialism has left behind conflicts which have inculcated suspicion among citizens of a country and have drawn a ‘line of uncompromising state’ for its solutions. We cannot spare the conflict of the Kashmir dispute and the stateless people of Bangladesh in South Asia. The colonialism, on the other hand, has enrooted a sense of nationalism and safety of nation-state so strong that no people of the nation-state would compromise with the state identity. The dawn of a democratic nation like Nepal has yet to strengthen its multicultural, plural society in terms of the ethic of tolerance. The century-old monarchy still plays a vital role in state affairs, which is often found in the contrary to the tolerance of handing over power and authority to the people’s representative. The South Asian nations comprise of a multicultural ‘law of the land’ in terms of ruling the state. The Himalayan nation, Nepal, is gripped by the bloody war between the ‘underground Maoists’ and the government. Nepal is also struck by the controversy of the constitutional monarchy and democracy. The existing multi-perception of the system of governance has weakened the multicultural, multiparty democracy of Nepal.

  • South Asian Women’s Perspectives

    The rapid growth of fundamentalism, combined with ‘communalism’ and other factors in India, has led to an increasing number of human rights violations targeting specific ethnic or religious sectors of the population by both state security forces and civilian actors. Many Muslim minorities in India feel more Indian than anything else. In India, to focus on national and regional security is difficult, as the security needs in India’s context are linked to the struggle against communalism. Caste also affects all religious groups, making promoting the cause of human rights difficult as it involves challenging the social system, which in practice is still the foundation of inequality and inequity in India.

    • Women’s approach to mobilization in India is through networking across the lines of conflict on multiple issues rather than on single agendas. These agendas however, should be holistically linked. The issue of Kashmir should not be neglected and the analysis should go beyond the issue of terrorism. While the current peace efforts are still fledging, women should be more integrally involved.
    • Women are suffering mental and physical abuse, rape and other human rights violations. There has been an increase in killings, kidnappings and cases of disappearance of women.
    • Access to emergency health services by women is limited or non-existent, with pregnant women and children being the most adversely affected.
    • Unemployment has increased due to restrictions on movement and fear resulting from the suspension of certain fundamental freedoms.
  • State of Corruption in South Asia

    Corruption afflicts South Asia at all levels of state and society. Scarce government resources that ought to be financing basic welfare programmes are often allocated to huge arms deals and infrastructure projects that offer officials and politicians prospects of lucrative kickbacks. At the individual level, high levels of corruption impose disproportionate costs on the majority of South Asians, as they are forced to pay bribes in order to gain access to basic social services. Democratic and authoritarian governments alike wax lyrical about the need to combat corruption, but the region’s political, bureaucratic and military elites are rarely held accountable.

    The largest country, India, has the strongest democratic institutions in the region, but it is as plagued as Bangladesh, Nepal and Pakistan by systemic public and private sector corruption. The state’s standard response to the demand for corruption control is to implement new strategies, laws, regulations and institutional mechanisms.

    While all South Asian countries have rigorous anti-corruption laws, conviction rates are low and sentences are rarely carried out. The judicial process is open to manipulation and cases drag on for years. However, a vibrant press, with a healthy tradition of exposing corruption in high places, is emerging. Corruption exposés are turning the heat on governments and providing an impetus for reform.

    As South Asian countries grapple with critical social, political and economic transformation, corruption is unlikely to decrease in the short run. Political instability, underpaid civil servants and unresponsive state institutions are compounded by rising poverty and unemployment. Political violence, increasing military expenditures spawned by intra-state and inter-state conflict, and massive debt burdens are also major problems. All these factors limit the capacity of states to institute the meaningful institutional reforms necessary for economic development and reducing corruption. Media and public pressure, collective citizen action and the consolidation of democratic institutions could, however, turn the tide in the medium term.

Concerns for South Asia

Gender disparities

  • As is by now well known, the level of gender disparities in health and education outcomes for girls in South Asia is the highest in the world.
  • Even within South Asia, and within India or Pakistan, there are huge variations in gender disparity. Differences in gender disparity among Indian states or among provinces of Pakistan are typically greater than those among the world’s nations. The ratio of female to male child mortality in one Indian state (Haryana) is worse than in any country in the world, although in another state (Tamil Nadu), it is lower than in all but three countries.
  • Across and within the set of developing nations, gender disparity is not a phenomenon of poverty only. There is almost no correlation between per capita income and gender disparities in health and education outcomes. So, although absolute levels of health and education outcomes for girls are strongly related to economic conditions, the disparities between outcomes for girls and boys are not.
  • Gender-based violence (GBV) is a serious public health, economic and gender issue that violates human rights. Although not exclusive to women and girls, GBV principally affects them across all cultures. Because of this, gender-based violence is sometimes used interchangeably with violence against women.
  • A survey in India by ICRW shows that 52 per cent of women suffer at least one incident of physical or psychological violence in their married life. The NFHS-II says that one in five married women in India experiences domestic violence from the age of 15 years.
  • In Pakistan, 80 per cent of women experience violence within their homes. Violence against women takes a different form in Nepal. Published figures in Nepal suggest that between 5,000 to 7,000 Nepali women and girls are trafficked for sex every year. In Bangladesh, 47 per cent women experience physical violence at the hands of their partners.
  • In India there are nearly 150 dowry deaths estimated per year. In 2002, 315 women and girls in Bangladesh were victims of acid attacks.
  • Effective prevention and response to gender-based violence requires a well-planned and coordinated multi-sectoral effort by the community, health and social services, police and security forces, and the legal systems. Governments need to monitor GBV data collection. Referral networks need to be established to help victims of violence. Best practices in preventing violence need to be documented and disseminated.

Good governance

Good governance is an issue of great importance in South Asia. An essential feature of good governance is promoting people’s participation in decision making, including the participation of women in governance at all levels. The 73rd Constitutional Amendment that was passed in India in 1992 gave formal constitutional recognition to local self-governance units at the village and town level. Most significantly, it reserved 33 per cent of seats for women. Today, an estimated one million Indian women hold political office at that level.

Making democracy work

Democracy works when citizens and the most marginalized people have the capability to ask questions, seek accountability from the state and participate in the process of governance. While the constitutional framework and human rights guarantees can build the grammar of democracy, it is always the people and the ethical quality of the political process that make democracy work. Democracy dies where discrimination begins and the politics of exclusion takes root. Accountable and people-centred governance can provide an operational framework for making democracy work.

Hence, there is a need to challenge the ‘good governance’ paradigm and to begin to practice and promote people-centred governance as an expression of grass-roots democratization process. A rights-based approach to governance is a function of power relationships within and beyond the institutions of government and the exercise of such power with a sense of justice, fairness and equity. Such an approach is based on five key elements: human rights, distributive justice, democratic legitimacy, peoples’ participation and accountability.

Suggestions

  • If human rights are to become the framework for social development, fundamental reforms in and strengthening of the human rights regime are necessary. The first and the hardest is to accept the implications of the universality of human rights.
  • Mainstreaming human rights in development would mean that the elimination of poverty should be the principal aim of development projects.
  • Social and economic rights must be given priority in research projects that have been denied to the underserved. Considerable research and imagination are needed to provide the practical underpinnings of economic and social rights; the modalities for enforcement, and standards and benchmarks for monitoring progress. This will require more funding for this enterprise, the establishment of networks and, above all, the commitment of governments.
  • Scheduled castes (Dalits and ‘low’ castes [SC]) and scheduled tribes (indigenous groups [ST]) make up 24 per cent of the Indian population. Discrimination faced by Dalits in India is similar in all South Asian countries, so discrimination against the entire community should be recognized and addressed.
  • A well-functioning and orderly police system will bring solutions to various issues considered as being cancers in Indian society. Rooting out corruption, caste-based discrimination and starvation deaths must begin with making the police accountable for their actions and inaction.
  • A time-bound and well-thought-out plan must be immediately drawn up to address the core issues concerning its policing system. The honest and legitimate participation by civil society in this process must be ensured and welcomed.
  • Immediate and stringent measures must be taken by the government and by the Supreme Court of India to save its lower judiciary from its current state. India must learn its lessons from bad examples where the term justice has no meaning to the ordinary people.
  • No country can ignore the plight of 22 per cent of its population. The Dalits in India must be considered as equal citizens with equal rights. For this, the government of India must recognize that development must be carried out through a bottom-up approach.
  • Existing legislation to prevent caste-based atrocities must be strictly implemented and police officers refusing to implement such laws must be punished. A country like India, which is rich in food reserves, has no excuse to justify a single death from starvation. Each death from starvation in India must be considered as a stain on democracy.
  • Advocacy methods to mobilize tribals, low castes, Dalits, the rural poor and women are required to work together to fight for land, water and forest rights. The aim should be to make access to land a national priority. The majority of India lives in villages; hence land is a key issue here.

Conclusion

  • Human rights and democracy are among the pillars on which our modern societies stand. More often than not, especially in the case of human rights, they are used as indicators of peace, security, tolerance and freedom in a country, and are thus also the prerequisites for the effective sustainable development of a society.
  • Neither the state nor the system is likely to support the struggles of the oppressed. Therefore, the revolutionary potential of rights is likely to remain dormant for the foreseeable future. The support for human rights will not be secured so long as poverty is not seen as a concern of the rights regime. But this in turn will not happen until the concept of rights is used to mobilize society to demand greater equity. Unless there are pressures from civil society, in both the rich and the poor communities, for social justice and respect for human dignity, little progress will be made.
  • A major weakness of the human rights struggle has been the inability to involve the masses as subjects rather than objects of rights. In this lies the most fundamental challenge to human rights scholars and activists. Hence, there is little prospect for success unless there is transformation in the regime of rights.
  • India has a lot to improve upon before it can consider itself as being a model for other developing nations.
  • Despite existing social challenges for development, India is emerging as a potential global leader. India, however, must recognize that reform cannot be focused only on economic challenges, but needs to integrate the social dimension as well.
  • India must encourage the widespread participation of civil society, local governments and non-governmental organizations in reform efforts. By increasing democratic participation, India will be better positioned to confront the growing social concerns, such as rural distress and resource misuse.
  • At a regional level, India should recognize it has a major role to play in strengthening regional economic ties. It must take pragmatic steps to resolve the long-standing Indo-Pakistan dispute, address current regional disputes over resources like water, and help return democracy to Nepal. By demonstrating good governance and political will at a domestic and regional level, India will move closer to establishing itself as a global leader.
  • The global policy promises of the Eight Millennium Development Goals (MDG) and the national policy promises in the 10th five year plan will not be made good in India without political will, adequate budgetary commitments, civil society monitoring and participation. The political promises made by the current government at the centre will be postponed unless citizens groups and civil society organizations actively seek accountability and monitor the political and policy pronouncements. 20 July 2007

(T. A. John is associated with the Human Rights and Law Unit of the Indian Social Institute [Lodi Road, New Delhi], in India.)

There is a new danger to the human rights situation in India: sensationalism of the media. In an emblematic ‘sting operation’,4 a school teacher in the Indian capital was victimized by an ambitious journalist, raising a justified hue and cry over media’s unrestrained power of humiliating and prosecuting an individual. Trial by media is commonplace in 365 × 24 ‘news channels’ that package their reports and views in entertainment format.

The human rights situation in Maldives, where the president exercises totalitarian authority, is at the mercy of the state. Even a monitoring body like the National Human Rights Commission (NHRC) isn’t allowed to function independently. The government’s disdain for dissidents was evident in the way Maldivian President Maumoon Abdul Gayoom promptly blamed his political opponents for the explosion caused by an improvised explosive device in the capital city of Male5 in September 2007. The explosion that injured several tourists also shows that Maldives may emerge as a soft target for various forms of terror attacks. That will further exacerbate an already precarious human rights situation in the country.

Still struggling to recover from the aftershocks of a decade-long Maoist insurgency and ruthless monarchist-military counterinsurgency that claimed the lives of over 13,000 people, displaced hundreds of thousands from their villages and upturned all previous certainties, impunity is one of the biggest problems in contemporary Nepal. The April Uprising in 2006 created space for sustainable democracy and peace, but unless the long-promised constituent assembly elections are held in a free and fair manner, it will not be possible to be sanguine about the peace process. The police, the military and the Maoists have all violated norms of human rights in the past when extra-judicial killings, abductions, torture and disappearance were routine. Attempts are being made to sacrifice the judicial process at the altar of political expediency, but this will further entrench a culture of impunity endemic to the system of governance in Nepal. The saving grace of the horrible human rights record in Nepal is a vibrant civil society that keeps a close watch on all abuses. Volunteers in blue jackets with ‘Human Rights Defender’ emblazoned in white are a common sight even in remote parts of the country. Whether their work bears fruit and institutionalization of retributive justice succeeds in ending the culture of impunity or not remains to be seen.

Persistence of military rule and politics of unsavoury deals have hamstrung all efforts to establish a functioning democracy and rule of law in Pakistan. All other forms of violations of human rights in Southasia are visible in their magnified form in Pakistan. But what makes matters much worse for the people of this country are the provisions of so-called Islamic laws including clearly archaic blasphemy laws. The concept of blasphemy6 is by its very nature amorphous—almost anything can be construed to be an insult to faith. It is but natural that extremists make full use of such provisions and the state finds it a convenient tool to hit out at critics. If the Indian ‘contribution’ to the legal tools inimical to the culture of human rights are POTA and AFSPA, Pakistani innovations in blasphemy and honour laws make it one of the worst countries for all kinds of minorities. Death and disappearances caused by the ‘War on Terror’ in Pakistan’s borders with Afghanistan are not even properly reported because those areas are almost out-of-bounds for independent observers. General Parvez Musharraf had managed to get himself elected president7 before shedding the uniform. Its implications upon a largely submissive judiciary that had shown some courage in the middle of 2007 is unlikely to be very positive.

After the abrupt breakdown of the Norwegian-brokered peace process, Sri Lanka is back into the vicious cycle of insurgency, counterinsurgency, alienation, revolt and suppression that gives continuity to the ‘war’ being waged by Liberation Tigers of Tamil Eelam (LTTE). The armed conflict had already claimed more than 70,000 lives before precarious peace prevailed for four years. Once the fighting resumed, death, disappearances and extrajudicial killings have once again become common. In a damning indictment of the government of Sri Lanka, the International Crisis Group (ICG) noted,

More than 1,500 have been killed and more than 250,000 displaced since early 2006. There have been hundreds of extrajudicial killings, and more than 1,000 people are still unaccounted for, presumed to be the victims of enforced disappearances. Hundreds more have been detained under the newly strengthened Emergency Regulations that give the government broad powers of arrest and detention without charge. The security forces have also expelled hundreds of Tamils from Colombo. Forces commanded by the ex-LTTE commander Karuna, leader of the Tamil Makkal Viduthalai Pulikal (TMVP) now aligned with the government, engage in child recruitment, extortion, abductions for ransom and political assassinations.8

The government of Sri Lanka contests these allegations and claims that they are intentionally overblown to tarnish its image. But no number can express the tragedy of ‘forced disappearances’ of people like the priest of the Allaipiddy Catholic Church in Jaffna, Father Thiruchchelvan Nihal Jim Brown9 or the near and dear ones of suicide bombing victims. Sri Lanka is the most dangerous place in Southasia for human rights violations.

Human rights violations in Tibet are seldom discussed in Southasia, but behind the glitter of trains connecting the Roof of the World with mainland China, there is a sordid story of displacement of hundreds of thousands of Tibetans from their homeland. Many Tibetans try to escape from the clutches of Chinese control, but they are prevented from doing so by border authorities.

Public apathy to widespread human rights violations in Southasia makes the grim situation even worse. The legacy of the Cold War era propaganda—that human rights concerns somehow show the hypocrisy of western governments who don’t criticize their puppet dictators for gross violations but never refrain from castigating Third World governments—persists. What makes matter worse is the opaque relationship between human rights defenders and INGOs. Like public security, fundamental freedoms too have to be ultimately guaranteed by state agencies. A democratic regime accountable to the people is thus the sine qua none of ensuring human rights in every country. But a pan-Southasian people’s movement to establish the sanctity of fundamental freedoms will perhaps be more effective than a scathing criticism of INGOs and western governments.

Institutional Framework

Independent Human Rights Commissions have high visibility and command better respectability. The iconic figure of frail-looking Asma Jehangir of the Pakistan Human Rights Commission battling religious bigotry, military excesses and social discrimination single-handedly makes for arresting news stories. But more often than not, HRCs record high-profile cases and compile data of violations. Their capacity of redressing grievances is extremely limited. Ensuring human rights is a complex process involving institutions of administration, policing, justice, prisons, media and civic movements. Southasian states lag behind on all counts, but the colonial structure inherited from the British in general administration is perhaps the biggest bane of the human rights structure in the region.

Practices result from ideas and beliefs of people involved. The elitist composition of the civil services in Southasia makes them oblivious of the pain of the people at the bottom rung of social structure—often the main victims of human rights violations. But values of Public Management Morality (PMM), inherited from colonial masters, are no less responsible for the insensitivity of public administration in Southasian states. PMM in commonwealth countries have evolved from ‘obedience to political authority, hierarchical organization, meticulous application of rules and parsimony of public expenditure’ to include moral values of ‘political accountability, working for public interest, altruistic motives, objectivity and conflict to loyalty’ and ethical principles of ‘respect for law and system of governance, respect for persons, integrity, diligence, economy and efficiency’;10 but practices in Southasian states still revolve around mai-baap-sarkar (mother-father-lord) model of colonial magistrates.

The police force too is a colonial legacy. Until the fag end of the Mughal rule in the subcontinent, order in society was often a local affair and if the situation got out of hand, the imperial army would intervene. With revenue maximization as their prime motive, the British strengthened policing. The main purpose of the police force was not to serve the law but to carry out orders. That situation remains largely unchanged. It is not for nothing that TV serials, movies and docudramas in India and Pakistan ridicule the police so much; there is some truth in the widespread belief that ordinary people always lose in their contact with the police. But no matter how good the rules are, their implementation requires cooperation of the police. For the human rights situation in Southasia to improve, policing practices have to change to suit the complexity of governance that has gone much beyond revenue maximization and execution of orders of colonial masters. However, much more than the cultural ethos of policing, it is the ‘super cop syndrome’ that encourages blatant human rights violation.

‘Super cop’ K. P. S. Gill, credited to have stamped out Sikh insurgency in Punjab in the 1980s, acquired iconic status thereafter and was made security advisor to the Gujarat government. But Gill is widely believed to have no respect for norms of human rights. As an aside, it is interesting to note that the ‘super cop’ was found guilty of molestations during his term of office and fined by the court. Apparently, there is some correlation between untrammelled power and irresponsible behaviour of a police officer. Then there are the notorious ‘encounters’ that police personnel in Southasia employ to get around the due process of law and ‘eliminate’ those they consider to be guilty beyond doubt. Exceptions apart, most victims of such staged ‘encounters’ are the poor, the marginalized and those with little or no access to power. The less said about the corrosive corruption in Southasian policing the better; it is too widely recognized to be detailed—a policeman is perceived to be corrupt until found otherwise by the public. Police reforms are necessary for various other reasons, but to address human rights concerns, it is essential to bring about attitudinal changes in the police force of Southasia.

The judicial process in Southasia is notoriously slow and the dictum of justice delayed is justice denied holds true. Court cases drag on in India for ages. In Pakistan, snide comments about ‘poodle judiciary’ are quite common.11 Courts in Nepal have been feted in the past for challenging the might of the monarch, but corruption in the judiciary is a legitimate concern. However, it is the class bias of the judiciary12 in the subcontinent that makes it ineffective in addressing the concerns of the downtrodden, the main victims of human rights violations. The belief that courts of law are meant for the powerful and the poor cannot hope get justice makes outraged members of the marginalized section take law into their own hands. Honour killings in the tribal belts of Pakistan, ‘bagi’ dacoits in Central India and revolutionaries of Nepal draw their strength from the perceived failure of courts. The importance given to ‘contempt of court’ in the region too is a result of class bias—Chief Minister of Kerala E. M. S. Namboodiripad was once found guilty of ‘contempt for calling the judiciary “an instrument of oppression” and the judges as ones “guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor”’.13 The worrying part is that contempt laws of India that protect fragile egos of robed judges are being regarded as models elsewhere in Southasia—Sri Lanka, for example—where robust criticism of judiciary has been previously accepted.14

Prison reforms continue to be one of the most neglected areas of administration in Southasia, but jails are places where human rights violations routinely take place. Notoriety of prisons as dens of vices in India is a hot topic of debate, but not much has been done over the years to improve their conditions. There may be some truth in the depiction of jails in Bollywood movies as factories that turn minor offenders into hardened criminals.

The role of the media in reporting human rights abuses cannot be overemphasised, but the Fourth Estate in Southasia tends to behave as one: an extension of the state. Human rights violations by non-state actors are reported as ‘crimes’ ‘terror’ or ‘insurgency’, but transgressions by state authorities are presented from a nationalistic rather than a human perspective. Then there is the increasing commercialization of Southasian media forcing them to concentrate on the sensational rather than substantial issues of social concern.

The responsibility of civil society in Southasia has increased tremendously: this group has now to shoulder much more burden than it can handle. Civil society is called upon to assist in conflict resolution, help to combat corruption and steer polity towards democratization. Concerns for human rights add to an ever-burgeoning list. Civil society’s contributions in bringing the plight of minorities in Southasian societies to light, however, need to be appreciated.

Judicial activism is an important tool to make human rights a central issue of governance. Public Interest Litigation (PIL) can help the poor and the marginalized for the protection of human rights. But there are limits to judicial activism beyond which the tool itself may turn into tyranny. However, judicial activism in Nepal and India has been able to set important landmarks15 and judiciaries in other countries of the region have been trying to make it work in their own ways.

Protective Rights

Three things are now well established about human rights in public discourse. One, human rights are inherent and cannot be denied to any citizen. The government’s role is limited to ensuring human rights, not deciding about their applicability. Two, the universality to human rights transcends political boundaries of states. The sovereignty of states cannot protect governments responsible for gross violations of human rights. And three, the international community has the responsibility to protect victims in case of grave human rights violations by any state. These points of agreement, however, apply to what are called the ‘first generation rights’: right to life, dignity, equality and privacy. First generation rights also include, with justifiable limitation clauses in different states, assurance of fundamental freedoms such as freedom of expression, association, assembly, opinion, belief, religion and movement.

Second generation rights that include access to food, water, housing, health care and social security are still on the wish-list of many countries. There is a lack of consensus over their universal applicability. The third generation rights of identity, language, culture, development and environment are even more contentious; they continue to be at the level of political debate. Environmental rights, for example, need to take into account future generations and global ecology. It is not easy to legislate or execute such ambiguous rights in an effective manner. Right to self determination and right to rebel are considered to be too controversial to be included in any universal declaration even though the philosophical basis of these rights dates back centuries.

On the issue of human rights, there is justifiable concern about the special rights of those without significant voice or substantial vote: the marginalized, the minority and the minute (tiny population groups). Often such groups offer little physical or legitimacy challenge to the regime and sometimes there is a lack of societal consensus in giving special protective rights to children, aged, women, poor, lesbians or homosexuals. But increasingly, their claims for protection have begun to reach the rubric of human rights.

Minority rights begin with the politics over definition. The concept of minority is not just about numbers—as opposed to majority—even though that is a very important consideration. Minority is also about powerlessness. Then there is the relativity of minority within boundaries of the state. To take but one example, Muslims are a minority in India but a majority in the Kashmir valley. Similarly, Sikhs form an overwhelming majority in Punjab but a tiny minority almost everywhere else. Perhaps the best definition of minority is also the simplest: ‘inhabitants who differ from the rest of the population in race, religion or language.’16 The status of minority rights continues to be precarious almost everywhere in Southasia not only in practice, but even in intent.17 Specifically, religious minorities continue to be victims of overt (as in the case of Ahmadias in Pakistan) or covert (Hindus in Bangladesh, Christians in Nepal and Muslims in India) suppression and prosecution. The accompanying piece, presented at a meeting of political science researchers, gives a perspective on minority rights in Nepal.

 

Democracy and Minority Rights: Concept and Context

by

C. K. Lal

Democracy traces its origin to a Greek term ‘demos’, meaning people. In essence, democracy means, as put famously by Abraham Lincoln, ‘Government of the people, by the people, and for the people.’ This is such a succinct description; however, it raises an important question: who are ‘the people’?

The delineation of boundaries of ‘we, the people’ is often contested. Politics over the definition of ‘people’—of ‘us’ versus ‘them’ and of inclusion and exclusion—are the main concerns of minority rights. Thus, ‘minority’ is a concept peculiar to the rule of the people, to democracy. Non-democratic rulers ride roughshod over the ruled without bothering about the niceties of individual liberty, minority rights,(a) and restrain upon the tyranny of the majority. Hence, it’s difficult, if not impossible, to discuss the concept of minority rights without understanding the principles and practices of democratic governance.

Systems of governance may vary, but certain fundamental features are common to all democracies sans qualifiers. (Qualifiers like ‘basic’ in Pakistan, ‘grass roots’ in Indonesia and panchayat in Nepal were used to dilute the essence of democracy and turn the system into a façade for dictatorship.) Some of the distinctive characteristics of democracy(b) are:

  • Democracies respect individual liberty tempered with responsibility towards the community.
  • Democracy implies rule of the people through their elected representatives functioning under the rule of law.
  • Democracy institutionalizes some form of decentralized government at local and regional levels.
  • Democracies are devoted to protecting fundamental freedoms such as freedom of expression, freedom of movement, freedom of faith and freedom of association, etc. In addition to that, democratic societies strive to be tolerant and respect diversity of views and faiths.
  • Democracies guarantee basic human rights to security, freedom of speech, the right to equal protection under the law and an opportunity to organize to peacefully pursue different political goals.
  • Democracies conduct free, fair and periodic elections to form legislature and executive branches of the state, and hold them accountable to laws of the land.
  • Democracies subject their armed forces to civilian control.
  • Democracies enshrine an independent judiciary.
  • Freedom of the press is protected and promoted by democratic regimes.

Even a cursory examination of these fundamental principles of democracy(c) is enough to reveal the fact that social power is equitably distributed in democratic systems. This brings another aspect of the concept of minority into focus—the idea of power.

Minority is commonly understood in numerical terms. That is a fact of electoral politics where the concept of majority and minority are synonymous with the ruling group and the opposition. But the idea of social minority is related to who holds power, how it uses it, for which purpose and to what effect.

It’s not easy to define power. Like the energy in physical sciences, power can neither be created, nor destroyed but it can be transformed. The process of transformation of power from one form to another is an eternal question dating back to the time when men fought each other for a larger share of the food hunted or gathered collectively. Among the various forms of power, the physical power is perhaps the most ancient as well as most enduring, daisy-cutters and precision-guided missiles being merely tools of enhancement of physical power or naked power. Other than naked power, at least the following forms of power can easily be recognized:

Traditional power. The physical power that has been institutionalized to venerate chieftains and kings. The legend has it that the first Shah king of Gorkha principality won the crown by winning an annual race—a physical prowess—and then promptly discontinued the tradition to entrench himself in power.

Knowledge power. Perhaps the ones who first chanced upon the method of producing fire or fell upon herbs that healed wounds faster began to use their knowledge to exercise control over their fellow beings and knowledge power began to be ranked with physical and traditional power. The jargon for the knowledge power these days is ‘intellectual property’, but its effect is no less effective even now.

Economic power. This power must have evolved with the surplus and saving that came into being after nomadic tribes began to settle in grassy lands that offered easier prey for hunting. Later, such lands in the floodplains of streams and rivers encouraged settlers to domesticate and rear animals for consumption and even for buying security. Economic power is relatively newer, hence more potent.

Institutional power. Permanent settlements brought the complexity of personal relations, property protection, and individual freedom to the fore. This must have necessitated the rise of institutions such as family, caste, clan, tribes, and later, much more elaborate institutions like chieftains, kingdoms, priesthood, religion, and courts. These institutions exercise power that is much more than the sum of power at the disposal of men and women involved in them.

Social power. The residual power exercised by families and persons even after they have lost their control over physical, knowledge, economic or institutional power can only be characterized as social power. It comes from the memory of the society and turns clansmen of the king into babusahebs and illiterate children of poor priests into gurus. An interesting anecdote about George Bernard Shaw illustrates the social power of titles. It is said that the police wouldn’t spare Shaw even when told that he was the greatest living author and philosopher; but the moment someone mentioned that he was a Lord, the police withdrew immediately!

Cultural power. The most recent—and hence the most potent—form of power is cultural power. A heady mix of ideological and media power makes cultural power one of the most effective forms of power known to human race. Even in its weakest form, cultural power is an amazing force multiplier. At its full strength, it is more devastating than all other forms of power put together. Whether its Samuel Huntington’s Clash of Civilisation hypothesis or Francis Fukuyama’s End of History proposition, relentless efforts are being made to transform USA’s unilateralism into a cultural power which will keep it in the lead for as long as a newer form of social power isn’t devised.

Oppositional power. Perhaps the least recognized is the power that comes from not conforming to the majority easily. Gandhi used this power first to exercise control over the Indian National Congress and then mobilized the masses to oust the British. Oppositional power is moral in nature and its effectiveness is partly dependent upon the characteristics of the opponent. It is unlikely that the Jews’ ‘peaceful non-cooperation’ would have had much effect upon the Nazis. But the moral force of one right person or opinion is stronger than all others put together. Albert Einstein put it most beautifully when he was told of the publication of the book One Hundred Authors Against Einstein. His retort was humble but tough: ‘Why 100? If I were wrong, one would have been enough.’ It’s this power of being right, even though alone, that brings the rights of minorities into focus. After all, any form of power performs mainly two functions (i) Make others do what one wants, and (ii) Resist doing what the other forces one to do. It’s here that the concept of minority comes to the fore. The minority is often characterized by its powerlessness.(d) Its ability to pursue its own interests is limited and it is often not strong enough to resist the interests of the majority.

If the minority is to be defined as a state of powerlessness, it bears pointing out that powerlessness isn’t a permanent state, for every majority is a minority in some other context. Doggerel, attributed to Leonard H. Robbins, best describes the irony inherent in the term minority in political context:

How a minority

Reaching a majority

Seizing authority

Hates a minority!

The powerlessness of a minority, however, manifests itself in several forms. Political minority is relatively less powerless. The more debilitating forms of minorities are ethnic, religious, linguistic, and cultural. Historian Isaac Deutscher once wrote that the political and moral health of a society can be measured by its treatment of Jews. The term ‘Jews’, here, can also be interpreted as a metaphor for cultural minorities in every society. As such, rights of minorities need to be understood as an integral part of fundamental human rights.

Minorities are characterized by their economic exploitation, social suppression, political repression, cultural marginalization and exclusion. In this way, Nepali women, to take an example, are exploited, suppressed, and marginalized; but they are neither victims of political repression nor exclusion—they are very much a part of Nepalipan. Hence, women aren’t true minorities. Similarly, Dalits are victims of several forms of exploitation, but they are part of the national agenda of the Nepali elite’s definition of ‘we, the people’. Similar arguments hold for non-Nepali speaking hill communities. The true ‘Jews’ of Nepal are its Madhesis in general and Madhesi Muslims in particular. However, it doesn’t imply that women, Dalits, and hill and mountain Janjatis do not fit the minority criteria, indeed they do. It simply means that Madhesi women, Madhesi Janjatis and Madhesi Dalits need much more attention than their ‘Nepali’ compatriots within the Nepaliya identity.

It is said that three general principles are of great value in human rights and related works: the principle of respect, confidence-building and protection. Minority rights too need all these three in equal measure—the state as well as society must respect its minorities, it must institutionalize confidence-building measures, and it must protect minorities from the tyranny of the majority.

Some of the safeguards needed to protect, create and promote minority rights are:

  • An educational system that fosters awareness of and respect for different cultures, religions, languages and ethnicities
  • Laws and legal system that protect minority rights while establishing norms of majority rule.
  • A societal consensus on values of tolerance
  • Understanding of historic wrongs and acceptance of the role of affirmative action.
  • An appreciation of the role of democracy in institutionalizing minority rights and an understanding of the risks of penalizing non-conformists that made Socrates drink hemlock, obliged Christ to embrace stakes and forced Galileo to retract his beliefs.

These safeguards also point towards the risks to minority rights. The biggest risk to the very concept of minority rights is the project of creating uniformity. In addition, a few other challenges to minority rights are discussed below.

Market economy. The LPG (liberalization, privatization and globalization) wave is an organized effort to create uniformity. It seeks to create a global class of consumers whose behaviour can be predicted. Consumers bitten by the affluenza bug (the disease of easy affluence) have very little patience for the concerns of the minority. Politics has to keep the market in check if minority interests are to be safeguarded.

Authoritarianism. Authoritarianism has to constantly justify itself. The easiest excuse to call upon people to bear tyranny is to make them fear imaginary enemies. Often minorities are the handiest enemies within. While mannequin elite figures may benefit from an authoritarian rule,(e) the minority in general have to accept a subservient role.

Totalitarianism. Whether of the left or the right, totalitarianism is the ultimate project of creating uniformity. No totalitarian(f) system has any place for any minority.

Media concentration. Commercialized media in general and commercial television in particular survive by appealing to the Lowest Common Denominator of their target audience. Presenting the minority as a threat to the majority is the easiest method of earning the favour of the powerful. Concentration of the media also discourages dissent, which has a negative impact upon the voice of the minority. Media concentration is one of the biggest risks to minority rights.

Resentment against affirmative action. Apologists of merit system, with little or no concern for the historic wrongs that prevented the evolution of a level-playing field, object to affirmative action. Such a populist stance often succeeds in creating cohesion in the ranks of majority and the process of exclusion of the minority is institutionalized.

To get over these risks to minority rights, institutionalizing democracy is perhaps the safest choice. However, democracy needs to allow enough autonomy at the local level to keep hegemonic ambitions of the majority in check. James Madison expounded this proposition during the Constitutional Convention of the United States of America in the following terms:

Divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moments to have a common interest separate from that of the whole or of the minority; and in the second place, that in the case they should have such an interest, they may not be apt to unite in pursuit of it.(g)

Madison advocated such an arrangement because he feared that ‘if a majority be united by a common interest, the rights of the minority will be insecure’.

In addition to democracy and autonomy at various levels, certain other conditions favourable to the protection of minority rights are:

  • Rule of law to ensure equality
  • Representative legislature to make just laws
  • Accountable executive to implement laws justly
  • Independent judiciary to uphold justice
  • Federal structure to prevent concentration of power
  • Free press to expose injustice
  • Liberal education to propagate values of coexistence and tolerance
  • Vibrant civil society to oppose injustice
  • Cooperative international community to show solidarity with the just and oppose injustice.

Thus, it is clear that the interests of the majority and the minority aren’t dissonant in any civilized society, for these are precisely the conditions required for the development of a tolerant community.

This is the reason every society claiming to be civilized must protect and promote its minorities. It’s only by doing so that it can protect its own interests. A society that doesn’t vigorously promote its minority soon falls into the hands of a tyrannical regime ruling under the name of the majority but in fact ruled by a very tiny minority.

When the Nazis arrested

Communists

I kept silent

Because I was not a

Communist

When they rounded up

Social Democrats

I kept silent

Because I was not a

Social Democrat

When they picked up

Catholics

I did not protest

Because I was not a

Catholic

When they arrested me

There was nobody left

To protest

(This poem is by Dr Martin Niemoller, a Protestant clergyman who was active in the resistance movement against Hitler.)

(This paper was presented by C. K. Lal at a conference on minority rights in Kathmandu.)

There is even less agreement over special rights of the marginalized. It has been argued that the condition of Dalits—percieved to be ‘untouchables’ by high-caste Hindus—equals that of apartheid. But positive discrimination being practiced for the progress of Dalits in India hasn’t been replicated even in Nepal. Meanwhile, over six decades of political campaign hasn’t yet ended the plight of Harijans—the endearing term coined by Mahatma Gandhi means the ‘people of God’—and they continue to be discriminated against in society. The rights of children, women and the differently-abled continue to be at the level of rhetoric, and deep-rooted prejudices against homosexuals and lesbians persist in all Southasian societies.

Protective rights of minute population groups—Parsis in Nepal, Jews in India or Sikhs in Pakistan, to take the most visible examples—are yet to emerge as issues of concern in the region. Even NGOs find it hard to champion causes that concern a very tiny minority.

The Asian Human Rights Charter, initiated and finalized by human rights activists, was signed on the 50th anniversary of the Universal Declaration of Human Rights at Kwangju, South Korea on 17 May 1998. In a nutshell, it represents concerns that should engage Southasian policymakers too. According to AHRC, the following rights need attention:

  • Right to life
  • Right to peace
  • Right to democracy
  • Right to cultural identity and Freedom of conscience
  • Right to development and social justice
  • Rights of vulnerable groups
  • Women
  • Children
  • Differently-abled persons
  • Workers
  • Students
  • Prisoners and political detainees

An overview of the human rights situation in Southasia shows that intent, institutions, instruments and individual efforts to defend fundamental freedoms are grossly inadequate and sometimes inappropriate. There is a lot of room for improvement. States, independent human rights commissions, civil society, media, and human rights defenders need to be vigilant of all transgressions not only by vertical authorities (by states or rebel groups over citizens) but also horizontal players (corporations or powerful persons over employees and citizens). But these attempts can benefit a lot from a transregion coordinating institution for two main reasons. One, every significant minority in a region is perhaps a majority somewhere else, and that can help provide moral support and succour in case of transgressions. Secondly, regional coordination is the best antidote to international interventions as often seen in Southasian countries.

Rule of Law

Philosophical bases of rule of law and human rights are closely related; both spring from the assumption that there is an inherent contradiction between (i) life and liberty of human beings are inviolable, and (ii) unlimited power creates conditions for risks to life and liberty. The rule of law approach seeks to resolve the issue by placing laws—just laws, made justly and implemented humanely—above the sovereign, while the human rights method places emphasis upon universality of individual liberty that predates the emergence of states. They are complementary in intent.

Rule as the will of the sovereign—whether an individual, a group or the numerical majority—is the foundation of rule by laws.18 It breeds tyranny and creates ground for what rulers decide are ‘legitimate’ violations of fundamental freedoms. Victims of such excesses are mostly the minority and the marginalized. Limitations placed upon the executive, equality before law in legislation and procedural and formal justice are significant aspects of rule of law. The rule by law, by contrast, assumes that sovereignty is above law; and that holds true in case of monarchy (Divine Right of Kings assumption), oligarchy (The Guardians of State hypothesis) and some forms of democracy (Supremacy of Parliament theory and the elected ‘autocrat’ syndrome). In Southasian context, the rule by law is often used as a convenient tool to disguise the absence of rule of law and expedient laws19 are enacted to suppress dissent.

The doctrine of necessity has been repeatedly used in Pakistan to confer legitimacy upon the military takeover of the state. Indira Gandhi had declared internal Emergency to protect what she called ‘national interests’. The monarchies in Nepal and Bhutan have always considered themselves above laws. The elected ‘autocrat’ syndrome works as an impediment to the peace process in Sri Lanka. The guardian of state hypothesis seems to be at the heart of technocratic takeover of the government in Bangladesh. A concerted regional effort to establish the inviolability of rule of law in Southasia will go a long way in ensuring human rights for all.

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