State Terrorism And Human Rights

Justice Ajit Singh Bains (Retired), Written from Burail Jail, Chandigarh, July 1992

Historically, terrorism refers to the use of terror as a method to undermine just struggles, whether armed or unarmed. The state uses this method in several ways, two of which have gained much notoriety. The first is the direct and indiscriminate use of terror by the state against the people as in killings through "fake encounters", the torture of individuals in police stations and interrogation centres, extortion through arrests or threats of imprisonment or rape, and various other acts of violence against the people. The state also finances non-governmental, specialized terrorist organizations to carry out various forms of intimidation such as bombings, kidnappings, hijackings and indiscriminate killings. The aim of the latter is to create an atmosphere of anarchy and violence so that, out of frustration, the people absolve the state for its direct use of violence and other means of repression.

Crime And Punishment

When a private person kills another person, it is a crime, declared as such in every civilized country. The law moves against the killer. Each country with a democratic constitutional government has its code of criminal acts and punishes those who violate that code. But what is most agonizing in the world today is the prevalence of governments which deny their citizens basic human rights and which, in many cases, use terrorism against their own populace.

Dictatorial governments habitually deprive the citizen of his or her rights to life and liberty, either by enacting laws or by issuing informal instructions to their officers and agencies. In strictly legal terms, when a police officer receives orders to kill a suspect in custody, he is protected by law because he is obeying his superior authority and, therefore, the force of law does not touch him. It follows that an officer of the law may interfere with the right to life and liberty very easily, compared with a private citizen who has to be concerned about the force of the law and that of the opponent whose rights he intends to violate.

The moment a private citizen kills another or violates another person’s physical integrity, his act becomes a criminal act. Immediately, the sanction of law can be invoked against him and usually, the victim himself does not need to set the legal machinery in motion to get the perpetrator of the crime punished in accordance with law. The essence of law consists of a person who commits a criminal act being brought to justice in accordance with the punishment prescribed by legislation.

In theory, whenever a government official indulges in any illicit act, the law should work against him also and he too must be punished in the same fashion as a member of the general public. Unfortunately, since the government works through its officials, in day-to-day situations the criminal acts of a government functionary are difficult to check. In most of the situations, he is simply obeying the instructions of his superiors who themselves have some ulterior motive or vested interest. The experience of the twentieth century proves that the maximum violation of the rights of the citizens of this planet has been inflicted by governments.

Our criminal procedure in India has an archaic Section 197 which requires that the government grant authorization before a public servant can be prosecuted for an offence. Given that the accused public servant is usually committing the crime under order of the same authority which grants permission for prosecution, it is easy to see why permission is often withheld. Recent legislation passed with regard to

Punjab and Jammu-and-Kashmir goes so far as to grant the paramilitary and armed forces immunity from prosecution for crimes committed "in the course of duty".

In theory, the rule of law recognizes that nobody is above it and that whosoever commits an offence must be punished. However high-ranking in the state apparatus an individual may be, the rule of law is above him. This attribute of the law provides protection to all who want to get on with their lives. Punishment and protection are essential features of law, but when the state protects with partiality, the rule of law is jeopardized. The use of a state position and the conducting of affairs as if an individual or group is above the law leads to the elimination of its rule.

The Concern Of Human Rights Organizations

The state is a legal entity which is duty-bound to protect its citizens and human rights organizations act to ensure that it acts and behaves within the purview of the law. Otherwise, the very foundation of a democratic polity is at stake.

Private individuals have little power. Even the worst of dacoits is constrained by a short life span, but when the state is transformed into an institution of crime it aims to eternally perpetuate itself. Therefore human rights organizations generally concern themselves with the acts of these governments and their officials who shelter themselves from the purview of the law. When a citizen injures another citizen, a case can be immediately registered under the Indian Penal Code. When a police officer infringes the constitutional protection given to his fellow citizen by torturing him in a police station, he escapes notice because he does it under the legal auspices by which he is bound to interrogate a suspect.

In the hands of unscrupulous people, even the most democratic and humane state can become oppressive, tyrannical and dictatorial. In such cases, the rule of law is the casualty. Human rights organizations are most concerned to ensure the preservation of an open society which requires that everybody must observe the law. A private citizen has as much duty to obey the law as any state functionary. Hence it is imperative that if a government is to retain that ultimate power of administering justice and maintaining law and order, it should itself never violate or be seen to be violating, the law. Nothing can be more injurious to law and order than the feeling that those entrusted with guarding it actually disregard it and are little better than those persons legally termed as criminals and who are to be accordingly dealt with by these very people.

This delicate task of human rights groups to monitor government agencies for wrongdoing is never appreciated by any government. Men, when clothed with statutory power and authority, behave like gods, and tyrannical gods at that.

The arbitrary behaviour of people in power is a matter of historical experience in many countries, and whosoever exposes them runs the risk of state power being turned against him. The major criticism against human rights organizations is that they are more concerned about the rights of prisoners and suspects than those of their fellow citizens who are endangered by the very individuals who are being afforded the protection of human rights. But such a criticism borders on foolishness because it is the duty of the state to track down and restrain criminals and not that of human rights organizations. The mandate of human rights organizations is to ensure that the due process of law is accorded to the suspect once he is caught. It would be ridiculous to expect terrorist groups to provide due process of law to their victims!

Clever governments are able to mislead the people into thinking that human rights groups are nothing more than front organizations for terrorist groups, since human rights advocates argue that even those whom the authorities claim are terrorists and extremists must be given a chance to prove that they are not what they are suspected to be.

The Role Of The Investigator And The Judge And Jury

Traditionally, lawyers and judges are able to understand very quickly that in the process of tracking down a criminal, the investigating agencies capture many an innocent man. This is why legal systems around the world are designed so that the person who investigates does not also act as judge. Psychologists have concluded that men are apt to rush to conclusions and that the human mind works by association. In the dark, any sensible man can mistake a rope for a snake, a shadow for a moving man.

Learning from human experience and psychological truths, legal luminaries evolved a system of administrative justice in which a group of people is given the duty to investigate criminal acts and present their report to another person who has had no occasion to condition his mind against the accused.

It is recognized that an investigator works on suspicion and thereby, with each piece of evidence, suspicion mounts. The investigator begins to believe that the person he has caught is the right one. When the whole evidence is presented to another individual who has had nothing to do with the investigation, he is able to judge objectively whether the accused person is actually the perpetrator of the crime. On the basis of evidence collected by the investigating agency, he pronounces the judgment of guilt or innocence.

In this process, when a fair opportunity is given to the accused, he is punished with the consent of society. The accused is deemed a criminal and his punishment is felt to be in the interest of the society. And usually the criminal is given a prison sentence so that he lives to reform himself and understands that a particular behaviour is not in the overall interest of the society.

The police, by law, are assigned the duty of investigating suspects. The judiciary is to pronounce its verdict after giving the accused an opportunity to defend himself. Thus arises the legal axiom that the accused is presumed innocent till he is proven guilty. A person could be framed and put into the position of the accused by circumstances, ill-will, or by malice. If the experience of Indian courts is any indication, an innocent person is framed in far too many cases and hence the necessity of a judicial method to determine the guilt of the accused.

Wisdom dictates that it is not desirable for even an enlightened police officer who honestly believes that Mr. A has committed a crime to be authorized to inflict punishment upon Mr. A. This is because it is well known that the human mind plays tricks and a conditioned mind acts in a manner which is often wrong.

Relaxation Of Safeguards

State terrorism usually strikes first at this pillar of arriving at the truth. The investigative agency, when faced with difficulties, argues that it is impossible to tackle criminals unless the usual safeguards are relaxed for a period of time and it is allowed to assume the role of judge and jury. Such a relaxation leads to the undermining of the rule of law, whatever the level it was operating at in the first place. In India a method of informal advice to the armed forces, "disregard the law, no action will follow," has been in practice for some time. Armed men without the discipline of law quickly become worse than the criminals they are supposed to eliminate.

Human rights organizations want government officials to act in accordance with law, just like each government official wants the citizens to act in accordance with law. Human rights organizations are concerned when the government pays lip service to laws while its actual conduct suggests to its officials that they are above the law. They are led to believe that for purposes of political exigency or necessity, they can take away the people’s rights without fear of any punishment.

Herein comes the role of human rights organizations who are vigilant and awake whenever the government tries to be above the law.

Another reason that human rights organizations address themselves to governments is that governments are the only entities which can, by law, take away human rights. No private citizen can deprive another citizen of any right without fear of legal repression. However, the government can do so with impunity and one is reminded of Saint Augustine: "Take away justice and what are great Kingdoms but great robberies."

The Role Of The State And Governments

Human rights organizations presuppose that states are lawfully constituted, staffed by enlightened and sensitive people, endowed with the power and the right to inflict punishment and to maintain bodies of armed men at their disposal for the purpose of maintaining law and order and punishing terrorists and other criminals. It is because of this presupposition that human rights organizations address themselves to the state and its successive governments. They consider governments amenable to reason and differentiate between governments and terrorists.

The raison d’etre of a government is to protect its citizens and to punish those who endanger the life, liberty and well-being of the citizenry. When the demarcation line between a terrorist act and a government vanishes, human rights organizations have no recourse but to address and expose government wrong-doings. When a functionary of a government behaves like a terrorist, he becomes more dangerous than the terrorist, since the law works against the terrorist but not against a government functionary who takes the law in his own hands. If the rulers themselves direct their officers to disobey laws, then there is no safeguard in the legal machinery.
That is why human rights groups become vital and are needed to curb the excesses of unlawful governments. For their part, every such government attempts to brand human rights organizations and activists as those which are only worried about the human rights of prisoners and suspects and not about the general public. Conversely, the government justifies the denial of rights to suspects of terrorism on the grounds that it is concerned about the rights of its citizens at large.

Who Are The Terrorists?

Who are the terrorists? You and I, who perchance happened to be accused of terrorism by a police official. It is important to determine the truth about suspects because they are gathered from amongst you and me, and, unless their guilt or innocence is determined beyond reasonable doubt, they cannot be dubbed as terrorists. Political dissidents, like those in many countries who fought against fascist regimes, were branded terrorists and hunted down because they protested against terrorist governments. Utmost vigilance is required before a suspect is branded as a terrorist.

Human rights organizations seldom ever ask for the terrorists not to be punished. A terrorist gang by its very nature is beyond the pale of law and can only be caught, investigated, tried and punished by the state. It is always safer to wait and hang a terrorist on the basis of verifiable proof than to shoot a man and ask questions later. Human rights organizations want the terrorists to be caught. But they do not want a man to be branded a terrorist if he is actually a political worker or a leader of the tribals, or because he has championed some unpopular cause, or is disliked by a local landlord or not favored by a particular business man.

Armed struggle by large or small sections of the people against governments which are either colonial or totalitarian in essence, or oblivious to the desires and wishes of the populace, cannot be included in the definition of terrorism. When every recourse to justice is exhausted, the people are compelled to take the road of armed struggle and this measure is applauded and broadly supported. Armed struggle is nothing new and there are so many such struggles recorded in modern history, from the American War of Independence in 1776 and the French Revolution in 1789 to the anti-fascist world war of liberation and the struggle of the Vietnamese and Indochinese people and others since then. To equate this means of liberation with terrorism will not hold. Terrorism and the use of agent provocateurs was developed as a method by the Russian Czars, who deployed the state apparatus, including plain-clothes police, and non-governmental organizations to carry out terrorist attacks as a means to disrupt revolutionary changes. Modern counter-insurgency techniques have been used in many parts of the globe in this century and they have also come to include provocative actions against the people to sow doubt and suspicion and panic amongst them so that they accept state measures of violent repression. There are many instances when armed struggle was a justifiable act in India as well, but such a struggle cannot be called terrorism.

Terrorism, strictly speaking, is an act of intimidation of innocent people, threatening their lives, destroying their property, depriving them of their liberty and creating tension amongst them. Such dastardly behavior is not an act of liberation achieved through struggle. It is to sabotage a just struggle and make the people vulnerable to the attacks of the state. All acts of violence directed against innocent individuals, whether armed or otherwise, jeopardize the success of a just struggle. No individual act of violence against the populace, under the pretext of winning victory in armed struggle for a just cause, can be accepted. Those who fight for liberation use means of struggle which do not hurt the innocent or their cause and are approved by the people. When political aims can be achieved through armed struggle, those who wield this weapon have to be extremely responsible towards the people. They have to win the people onto their side through just struggle and not hurt them in any shape or form.

In the second half of the twentieth century, tens of liberation struggles initiated in Asia, Africa and Latin America have resulted in national liberation. Armed struggle and guerrilla warfare have been accepted as legitimate ways of winning freedom, when all other means of effecting change fail. The struggle of the people of South Africa against the racist regime cannot be called a terrorist movement. It has won worldwide support for their noble endeavour to dismantle an unethical regime.

Violence used in achieving a political objective is unjustified if the same political goal can be achieved by other means and methods, such as peaceful protest or elections. But if a state gives rise to a cult of violence and replaces democratic means with dictatorship, it is universally recognized that people have no other recourse. Armed force becomes a trial of strength between an unpopular regime and the popular masses for the explicit aim of installing popular rule. It is not human rights organizations which make such a choice. They can only observe what is going on in front of their eyes.

State Terrorism

When, in any society, a violent act which is more heinous than a normal crime occurs and it is termed terrorism, there is a great temptation to kill the suspects without giving them a fair trial on the pretext that a terrorist does not warrant the normal safeguards of a routine criminal.

The immediate temptation to adopt totalitarian strategies to deal with terrorism, howsoever destructive, has little chance of success. If we are to be cavalier about principles of democracy, we will only fall into the same error as the terrorists who have no dearth of arguments to justify their means and ends. Indiscriminate repression is not only incompatible with the values which we are trying to protect, but it is likely to make rapprochement extremely difficult if not impossible.

Certainly, an armed struggle may be controlled by changing the system of government to a dictatorial one, which uses unbridled violence against the people. But then, the government will itself be proving the very terroristic nature of affairs which must have given rise to an armed struggle in the first place.

A bigger gang with official status does not mean a more just gang; therefore, to win the sympathy and heart of the people it is necessary that whenever the government tries to catch terrorists it must catch them in accordance with established procedure. It has become a regular practice for a government to brand some individual as a terrorist and then shoot that person, without waiting for a trial where the truth may emerge. The branding of the individual may be on the basis of dislike or merely because the police finds it convenient to drop an investigation and close some cases by killing a person and then finding him "responsible for 100 or 200 killings." Terrorism itself can be overcome if the human rights of all those who are accused of being terrorists are respected and enforced. A terrorist killed without trial becomes a martyr to a certain section of people.

Criminalization Of The Polity

The European Commission for the protection of human rights and fundamental freedoms, in the Lawless Case in 1961, held that even if the applicant is a "terrorist" of the Irish Republican Army, described as an organization engaged in destructive activities, this did not absolve the respondent state, Ireland, from observing those provisions of the Convention conferring freedom from arbitrary arrest and detention without trial. Every society has an underlying criminal substrata of drug racketeers, smugglers, arms dealers and felons. This limited but omnipresent criminality becomes widespread and assumes a political objective for itself whenever a large section of people becomes alienated from the mainstream. But as long as legal methods to redress grievances exist, terrorism, howsoever noble the objectives may be, ultimately merges with the prevailing criminality.

More often than not, such criminal strata can be utilized by the state in order to inflict injury on the people, as is alleged in the case of the massacres of people of the Sikh religion in Delhi and elsewhere in 1984. South African regimes and many others are notorious for such dastardly use of felons on the world- scale. The use of organized crime, such as the Mafia, is another example. When the state and its governments criminalize the polity in these and other ways and orchestrate terrorism, anarchy and violence will prevail. Such a thing becomes extremely destructive to the people.

To attain his objectives, a terrorist needs weapons. He procures the weapon systems from arms smugglers, for which he requires money. This money may be acquired through extortion, robbery or the sale of drugs. The drug mafias, the smugglers, the criminals and the terrorists develop a complex interconnection. Gradually, as the state organizes itself against terrorism without taking away the human rights of its people, the terrorists slowly merge and disappear into the world of drug mafias, smugglers and criminals. They lose every credibility and support amongst the people, while the state wins broad support and proves that it neither practices nor condones terrorism in any shape or form.

The situation turns critical if it becomes apparent that the state itself has adopted violence and terror as a policy aimed at suppressing just struggles. Thus, it loses the right to hurl the accusation of terrorism at people who launch an armed struggle to bring about a more lawful method of governance. Herein lies the need to define state terrorism whereby a government acts without sanction of law and does not seek people’s support and help for governance. It becomes the source of money, arms and training for criminals who are then recruited to wreak death and destruction on people. In that case, terrorism emerges as a cult and some terrorists acquire a halo of respectability and martyrdom. These terrorists may be perceived as crusaders who have taken up arms in defence of their people. By and by, the problem of terrorism could become widespread, leading to anarchy and violence and causing death and destruction on a broad scale, as witnessed in many parts of India today. Such a situation may also bring to the forefront those who begin to believe that the overthrow of the state is necessary in order to end anarchy and violence. Such an uprising cannot be controlled through further repression as it becomes the trial of strength between people, on one hand, and tyrannical governments, on the other.

Kidnappings And Killings

In Punjab so far, a terrorist approach has been followed by the state. Innocent people are kidnapped and abducted in unidentified vehicles by armed men of the police and not produced before any court. Many are killed in fake encounters and even their dead bodies are not returned to the bereaved families. People are prohibited from attending the bhog ceremonies of the slain. Hundreds of men are missing and their whereabouts unknown. One such person is Ram Singh Biling, a human rights activist and journalist who was abducted by the police on January 3, 1992 in Sangrur District. He has not been produced in court so far in spite of world-wide protest to the government. Recently a member of the U.S. House of Representatives appealed to the Indian government to produce him and has showed anxiety for his safety.

Which law permits the police to kill persons in custody? Which law permits them to abduct? Which law allows torture as the only method of interrogation? Kulwant Singh Nagoke was killed in custody by Bachan Singh, Deputy Superintendent of Police, Amritsar City, in 1983. The widespread protests which ensued were ignored by the government. The police officer was neither suspended nor were the charges investigated. Private vengeance resulted in the killing of the police officer’s whole family.

Gobind Ram, S.S.P. Batala, used to openly practice torture. Sarpanches and Panches4 of Batala resigned and stated to the Governor that Gobind Ram has killed many innocent young men in custody. Governor Ray was told about his atrocities. Punjab Human Rights Organization (PHRO) also brought Gobind Ram’s actions to the notice of the Governor. A peaceful gherao5 of the Police Station Batala was held on September 1, 1989. PHRO mobilized the people to hold Dharna on September 30, 1989 at Chandigarh seeking action against Gobind Ram. Many persons were arrested that day, including me, and the peaceful Dharna was not allowed. No action was taken against Gobind Ram. The result: his son was killed followed by his own killing for reasons of personal vendetta.

In cases of "encounter killings" and deaths in custody, it is not difficult to guess why the police do not want the post-mortem report or the dead bodies to be given to the relatives or inspected by doctors. Any honest government would make sure that every dead body is handed over to the relatives of the person killed and every body examined and photographed by an independent team of doctors and photographers so that the precise cause of death be discerned and appropriate judicial proceedings be launched against the police.

It is instructive to contrast the present situation with Jallianwala Bagh massacre by General Dyer on April 13, 1919, which went down in history as the most heinous crime of British rule. The dead bodies were identified and given to their relatives, the injured were removed to the hospitals, and a commission of inquiry known as the Hunter Commission was appointed. However, even though the commission held that the shooting was unjustified and awarded compensation of Rupees 2,000 to the relatives of those who were killed and Rupees 500 to the injured in the early twenties, it failed to punish the General or the then governor of Punjab, Michael O’Dwyer. It fell on the shoulders of Udham Singh to execute Michael O’Dwyer at Caxton Hall in London in 1941.

It is high time that we see the tangled question of terrorism and human rights in the proper perspective.

A Personal Note

To be personal, I was kidnapped not arrested on April 3, 1992. I was gagged and picked up and taken to a police station, with no information given to my family and friends. It was a classic case of kidnapping but there was no remedy as my captors were policemen.

My house was searched and valuables looted. This act had all the ingredients of dacoity and theft, but again there was no remedy as the culprits were policemen. I was threatened with physical harm, which is criminal intimidation, but, again, there was no crime as the men happened to be endowed with state uniforms. I term it terrorism by the state and call such a state as the fountain-head of terrorism. On what moral grounds can it be preached that people should obey the law when it is not even obeyed by those who enacted it and derive their authority from it? It would seem that the state does not have any such moral grounds but I do. I call upon all to support the rule of law and demand that those who have violated the law must be punished.

I give my vote and pay my tax for the police to protect me from private criminals and terrorists. Criminals don’t acquire guns with my money or my votes. They are not part of the system, part of my society. But I cannot be silent when men for whose upkeep I pay taxes, and for whom I establish an elaborate system of protection and privileges and surrender part of my rights to give them that exalted authority, simply catch, pillage and kill at random just like others beyond the pale of law. This is state terrorism. It is this which must be ended at once if peace is to prevail in my land.