Contributed by LIPR Research Writer Raj Anand based in India
Introduction
The elementary premise of human rights is an ancient one, figuring in many ancient religious and philosophical texts; most famously propagated via the Cyrus Cylinder in 539 B.C. by the Persian King Cyrus II. The instrument inter alia abolished slavery, declared freedom of religion and faith and sought to stop work without pay. The formative diktat, inscribed on a stone has stood as an operative influence for mechanisms of rights and protected assertions that came to be later on, such as the Magna Carta and Charter of Bill of Rights and paved the way for the normalisation of certain rights that every person by virtue of being alive, is entitled to. In the 20th century, the formation of United Nations from the ashes of League of Nations, amongst the backdrop of exhausted, apprehensive states reconstructing themselves from the calamities of the second World War, birthed several covenants, resolutions and germinated international consensus towards acceptable sovereign behaviour and the permanency of certain inalienable, individual rights.
In India, following independence in 1947, the country sought to legally and morally redeem its inhabitants from the erstwhile oppressive modalities and to that effect, constructed a Constitution that ensconced elements from the Universal Declaration of Human Rights, 1948.[i] The fundamental rights as distilled in the Constitution of India, seek to provide unassailable rights that the state cannot impinge and ostensibly, endeavours to protect the ordinary citizens from state overreach, indiscretion and rectify identity-based discrimination that characterizes societal intercourse in India. Notably, the rights as envisioned were enacted with caveats and restrictions built-in, rather than – as was the case in United States and elsewhere – letting the judiciary settle the matters of permissibility of expression and assertion. The framework of human rights in India, remains richly decorated, with India being signatory to multiple essential and optional UN covenants as well as legislatively establishing protective institutions at both central and state-level for historically-oppressed social identities i.e. castes, tribes and minorities as well as establishing National Human Rights Commission in 1993.
However, historically, individual liberty and protection of its dimensions has never been a policy or social priority within Indian discourse, with violations of human rights often being implicitly understood as justifiable and for the greater good. The stability of insulation then, in terms of reconciling societal precepts with recognized protection afforded by law, has manifested in the corridors of courts and private organisations. A framework that largely remained functional, if not inefficient and now sees erosion of values in the form Constitutional imperatives, laws and commonly-understood directives that once held de jure significance. A state of affairs that have been exacerbated by the scorn-filled treatment that is now routinely met out to state institutions, independent organisations and individuals that work for human rights and liberties. The present scenario then, sets alarming precedent for the decadal trajectory concerning the role of Law, individual and society in India. Notably, accurate documentation of human rights violations in India is a herculean if not a fatuous endeavour; primarily owing to the quantum of violations and the critical yet frustrating element of what constitutes a “right”, a notion that must certainly be understood within the jurisprudential, legislative and societal context of the traditional society and mores of India. And while India has seldom shied away from exhibiting the constitutional and legislative capacity to grant a set of rights or obligations, for protection, support, welfare et al., their realisation has always been severely hemmed by haphazard execution if not outright refusal or participation by concerned entities when so expected, and elsewhere introduction of Laws or directives that in practice nullify the protection or benefit so afforded. The Constitution of India vide Article 19 provides for fundamental freedoms that concern themselves with freedom of expression, gathering, profession and so on, while Article 21 states that no one can be deprived of life and personal liberty except as provided in the procedure of law.
In the framework of protective jurisprudence, these two articles have remained critical instruments, with the Courts taking great hermeneutical pains to extract contemporary applicability, protection and benefits to the people.[ii] However, despite the admonishments that have become institutionalized, the ground realities of rights assertion in India remain an area prevalent with challenges, opposition and wrought with fear and societal alienation.
Nevertheless, this analysis endeavours to provide a broad understanding of the situation of human rights in India, in a multi-dimensional manner. However, it must be read while appreciating the caveat of scope: the extent of human rights violations in India are too great and too many to be comprehensively documented in a single endeavour.
A Note about Kashmir:
Kashmir’s historically-enjoyed special status, its conflict-ridden conception and border-disputes have institutionalised the region as one of permanent instability in India. Kashmir remains rife with human right violations, militancy and abuse. However, owing to the magnitude of the issues that plague the region, this analysis excludes it on the grounds of brevity.
Human Rights of Ambivalence
The aspects of mobility regarding civil and political matters and expression have maintained a restrained, if not a troubled existence in India’s modern political history.[iii] The collectivistic sentiments as generally harboured, do not augur particularly well for prioritizing dissenting views and movements, resulting in curbing of liberties and censorship in a routine fashion.[iv]
While the Emergency Period during the tenure of Indira Gandhi is often hailed as a watershed example of repression by the government[v], it remains one among many, of nearly interminable instances of adversarial, vindictive politics and their manifestation in terms of repression and reprisal by state and central authorities.[vi] As political instability experienced by India in the 1990s gave way to socio-political constancy, growth and prosperity in the 2000s, democratic values often bore the brunt of attack and indiscretion.[vii] Nevertheless, the society as well as the government – despite curbing of liberties, censorship and political appeasement[viii] – exhibited a comparatively greater sense of tolerance towards dissenting views and actions, specifically when it concerned institutional autonomy and administrative governance.[ix]
Enterprise Against Liberty and Dissent
Following the landslide victory of the Hindu-nationalist party BJP in 2014, civil and political rights in India have experienced an unprecedented sense of distress, subsequently exacerbated by the increasing consolidation of power owing to BJP’s victories in numerous state elections and reaching an authoritative zenith following the 2019 general election. The party’s determination to consolidate a saffron empire permits little allowance for defeat; in state assemblies wherein the party has lost or experienced unsatisfactory victories, it has indulged in large-scale horse-trading i.e. buying out the loyalties of elected members of other parties to increase its share and establish a hegemony. An enterprise that has succeeded more often than it has failed.[x] In parallel, the ruling government has maintained a ceaseless assault on institutions and individuals that disagree with primarily, its modus operandi [xi] and secondly, its conquest of electoral dominance over the entirety of India.[xii]
Under BJP’s political autarky, many coercive laws have experienced a remarkable sense of revitalization, with UAPA (Unlawful Activities Prevention Act), NSA (National Security Act), PSA (Public Safety Act) and Sedition under IPC (Indian Penal Code) and others being distinctly weaponised and used as a callous instrument to arrest, detain, harass and deprive individuals and organisations of liberty and position.[xiii] The en masse persecution has taken exhaustive dimensions, often with sadistic outcomes – ranging from police attacks on students protesting the controversial CAA (Citizenship Amendment Act),[xiv] arrest of activists in Bhima Koregaon and the subsequent death of Stan Swamy in jail[xv] the arrest of climate activist Disha Ravi[xvi] repression of farmers protesting against the controversial Farm Laws[xvii] institutional persecution and termination of Dr. Kafeel Khan[xviii] and a great many others. In a startling instance of state wrath, Uttar Pradesh government went as far to put up public hoardings containing names, addresses and private details of CAA protestors to “name and shame” them as it continued the persecution and seized assets.[xix] Most recently, Union Minister Ajay Mishra Teni’s son Ashish Mishra was accused and subsequently arrested for running over and killing four farmers at the protest site.[xx]
The environment of overt hostility and distrust is not confined to individuals alone and extents to the varied presence of civil society organisations (CSO). While CSOs have always treaded a dangerous path, being routinely susceptible to the wrath of India’s political and executive establishment. [xxi] Under Narendra Modi, discourse that disagrees or dissents is treated with grave exaction;[xxii] necessitating a motivated pulverization of CSOs, particularly those advocating for human rights and liberties, enveloped under endless allegations of colluding against national interests[xxiii] and destabilising the sovereignty of India, a situation that threatens the democratic nature of the country itself.[xxiv] While the harassment[xxv] and eventual shut down of Greenpeace in 2015[xxvi] sought to establish state supremacy early on, in the war against CSOs, the 2020 amendment to The Foreign Contribution (Regulation) Act (FCRA)[xxvii] could be considered as a supplementary knockback of considerable impact and permanency. The amendment financially restricted CSOs of foreign funding, ostensibly under the guise of transparency and protecting national interest; notably, the government has cancelled FCRA registrations of nearly 15,000 organisations since 2014, thereby completely restricting them from receiving foreign funding and severely limiting their operations.[xxviii] In 2020, Amnesty International exited India and halted its operations following the freezing of its bank accounts and constant harassment by authorities.[xxix]
The Rejuvenation of Organised Violence
India is no stranger to violence propelled by identities, be it religion, caste, ethnicity or others. The society, fragmented upon ancient abstractions, has perpetually experienced tussles of aggrieved sentiments, felt injustices and actions that arose out of systemic prejudice. While the secular nature of the Constitution and as a result, the basic characterization of the country upon its birth, has insulated it from pains and struggles that its neighbour Pakistan reels under[xxx], India’s mutable definition and subsequent application of secularism unintentionally ensures unceremonious involvement of state in matters of faith, fermenting identity-driven discontentment and politicised proselytization.[xxxi]
While historically, the insulation and separation of state from faith has struggled to preserve its delicate integrity; under BJP and specifically the developmental-doyen persona of Narendra Modi, the faintly held division between the temple and the state (as it were) has increasingly given way to brazen religiosity, with militant fringe groups – coyly sanctioned by the state – espousing and establishing the values of R.S.S.: The Hindu-nationalist parent organisation of the political party. Under the ideated Hindu Rashtra (Hindu Nation) contempt for historic invaders and colonial powers finds equal fervour, while the latter is realised through propagation of Hindi and disregard for western values, the latter manifests through severe religious violence on religious minorities.
An analysis of religious hate crimes in India between 2009-2018 found that over 90 per cent had occurred since 2014.[xxxii] Under Modi, under the guise of beef eating, cow protection and religious proselytization, mob lynchings have seen an astonishing increase, with 98 per cent of cow-related lynchings between 2010-2019 taking place after 2014.[xxxiii] The rapid mobilization of self-anointed cow vigilantes as well as galvanization of R.S.S. allied militant groups such as Bajrang Dal has severely aggravated religiously motivated violence; emboldened by the establishment and determined to preserve a felt moral integrity, the vigilante groups operate and act out in extreme measures[xxxiv] without apprehensions of obstructive condemnation, prosecution or suppression.[xxxv] Among their responsibilities lie enforcement and renewed focus on Anti-Conversion Laws – laws that seek to prohibit forced conversions and impeding love jihad i.e. intra-religious relationships between Hindu and Muslims.[xxxvi] While Muslims remain the primary antagonist and recipients of Hindutva violence, other vulnerable groups including minorities such as Christians, Sikhs as well as individuals from lower castes and tribes have increasing become a target, be it from eventuality or convenience[xxxvii] a situation that has made United Nations Human Rights Chief Michelle Bachelet register a public caution against polarisation and militant divisiveness.[xxxviii] The state-sanctioned prejudice and dog whistling has now normalised a climate within India wherein violence justified by banality is acceptable, and where consequences arise not upon perpetrator but the victim.[xxxix] The situation has led to United States Commission on Religious Freedom (UCIRF) recommending in both 2020[xl] and 2021[xli] that India be marked as PCC (country of particular concern) owing to the deteriorating course of religious violence and intolerance.
Notably, the intersectional nature of religion and culture in India ensures that religious beliefs, values and moralities predicate the practices, dietary habits, behaviours and orders of life. Specifically, dietary habits and electoral support experience considerable overlap.[xlii] The extremism in enforcing or modifying dietary habits, while politically expedient and rewarding, has ensured large-scale engagement in disputing and calibrating food habits. While eating beef has always remained a controversial topic in India; the heightened collective emotions have birthed new absurdities in the quest to propagate piety and protect sentiments, as restrictions and mistreatment of meat shops (majorly run by Muslims in India)[xliii] and dietary habits continue. In December 2018, India’s premier technical institution IIT-Madras incurred controversy as it came to light that the institution had earmarked separate entry and exit points for vegetarians and non-vegetarians.[xliv] In August 2021, Uttar Pradesh Chief Minister imposed a complete ban on meat and liquor in the city of Mathura, deeming them inappropriate for a holy place.[xlv] In November 2021, a Muslim shop owner, operating a biryani shop, was threatened and abused for operating on the Hindu festival of Diwali.[xlvi] Shortly thereafter, a civic body in the city of Vadodara, Gujarat directed road side eateries to restrict the display of non-vegetarian food items including eggs, on food stalls.[xlvii]
Audacity of Autocracy
Despite the persistent insolence of the central government attracting international criticism and censure – with UN experts expressing alarm over a succession of police killings in Uttar Pradesh following the appointment of firebrand BJP leader Ajay Kumar Bisht (Yogi Adityanath) as the Chief Minister of the State in 2017[xlviii], deportations and detention of Rohingya Muslims[xlix][l] arrest of protestors[li] suppression of foreign civil society organisations[lii] and others, the government’s fixity of intent and purpose have remained intact, with leveled criticisms being plainly rebuffed as conspiracy and agenda-driven propaganda.
However, the observable decline of India in international indices stands as a significant illustration of the country’s eroding constitutional values: V-Dem Institute’s Democracy Report (2021) classified India as an “electoral autocracy” and noted the decline of democratic freedoms since 2014. Freedom House Index (2021) categorizes India as partly-free, with a global freedom score of 67 out of 100.[liii] Similarly, 2020 Human Freedom Index ranked India as 110/162 in personal freedom with an overall rank of 111 and score of 6.42.[liv] The freedom indices mirror the other global indices with India continually observing steep declines and lower ranks since 2014 in almost every internationally index measuring progress and in some cases being excluded from the index altogether due to poor performance[lv].
The institutionally held contemptuous disregard for human rights and liberties took on greater resolve as Covid-19 pandemic percolated throughout India. The outbreak pushed the disorganized and inept governance structures across India to their limit, with classically weak institutions and resources showing their fundamental incapacity to address the magnitude of the health crisis. Subsequent to the unplanned and ill-executed lockdown in March 2020 that bludgeoned life across India and instigated massive displacement of migrants workers[lvi], effected unfettered police brutality[lvii] and caused massive economic losses, governments across India continued to severely under-report the deaths[lviii], with the central government promoting traditional, unscientific remedies.[lix] In the face of a crisis of humanity, states and central government hastily competed against each other to protect their image; manufacturing and suppressing data[lx] as both the Prime Minister and Union Ministers engaged in active political campaigning[lxi] and promoting large-scale religious events.[lxii]
Shortly after the national lockdown was declared, Prime Minister Narendra Modi launched PM-CARES. A national fund ostensibly meant to provide economic relief for COVID, but lacking transparency and accountability[lxiii] with many questioning its motives, intent and expenditure despite a multi-billion dollar corpus.[lxiv] As the second wave spread through the country, India’s doleful healthcare infrastructure collapsed[lxv] with unavailability of ICUs and hospital beds and essential supplies such as medicines, PPE oxygen observed a crisis of availability, owing to heavy exports of medical supplies by the government in the prior months[lxvi], leading to wide-spread black marketing and collusion[lxvii]; the excessive deaths led to furnaces melting in crematoriums[lxviii] and dead bodies being discreetly buried in river banks before they resurfaced, causing domestic and international incredulity.[lxix] In the state of Uttar Pradesh, coveted by BJP for being its ideological stronghold, the state government jailed, harassed and detained individuals and went as far as to seize the properties of individuals and organisations that pointed out shortages and inadequacies.[lxx] In the interim, the central government excessively propagated an indigenous vaccine as experts questioned its trials and lack of data.[lxxi] In the face of international scorn and the pandemic being termed as a disaster by international media[lxxii][lxxiii] and health experts[lxxiv], the central government abdicated responsibility of the crisis and repeatedly blamed the states ruled by opposition parties, as it continually jailed, harassed and acted against local critics of its pandemic handling.[lxxv]
Dishearteningly, the model of repression and reprisal of those questioning and dissenting, remained prevalent across different parties in India and different state governments prosecuted and arrested those criticising the government’s handling of the pandemic[lxxvi] and rebuked, transferred officials including judges[lxxvii] and experts[lxxviii] that scrutinized and chided governmental blunders during the pandemic. As the pandemic gave way to vaccination drives, India remained plagued with vaccine shortages, lack of access, high prices and general administrative mismanagement and incompetence.[lxxix] The situation’s alarming nature necessitated judicial intervention. However, by the time Supreme Court characteristically lurched to intervene and promulgate drawled jurisprudential moralities and aspirational dressing-downs, millions had perished and millions more had been left asunder.[lxxx]
The Human Cost of Economic Disasters
The Covid-19 pandemic devastated economies around the world, however, among its peers, India felt the gravest of its effects.[lxxxi] The compromised economy, already paralyzed by sequential policy missteps despite self-congratulatory proclamations[lxxxii] plunged into a recession as the government haphazardly scrambled to address the situation amidst an uncontrollable pandemic. The seeds of the maladministration had been sown in 2016-17, following Demonetisation – an event that proved catastrophic for the economy and is considered to be one the greatest policy and economic blunders in the history of the country[lxxxiii] – India’s ravaged economy was burdened with a brand new taxation regime – the GST. The excessive compliance, confusion and inadequate infrastructure reduced the economy to dire straits and severely impacted small and medium businesses.[lxxxiv]
The duology of these events relentlessly compressed the economic fabric of the country. Despite its inclination towards reforms and improving the economic health of the country, the government’s decisional alacrity has abjectly failed to produce desirous results.[lxxxv] The problem of poor administrative execution, aggravated by distrust of experts and consultative processes[lxxxvi], has resulted in a series of never-ending arbitrary economic policies, wanton taxation[lxxxvii] and misguided adoption of a Soviet-esque protectionist[lxxxviii] stance towards achieving manufacturing and consumption self-sufficiency. Despite government’s emphasis, the manufacturing sector has remained stagnant with India losing market share to its peers. Cumulatively, the GDP growth has slowed to a glacial pace[lxxxix], with sharp inflation and highest ever unemployment even before the pandemic.[xc]
The despotic governance has also ensued resignations and forced exits of prominent economists and government functionaries including the Governor of the Reserve Bank of India[xci] the Vice Chairman of government think-tank NITI Aayog[xcii] as well sequential Chief Economic Advisers[xciii][xciv]Amidst the economic turmoil, the government has continuously relied on manipulated data[xcv] and manufactured statistics to rebut allegations of economic mismanagement.[xcvi] The magnitude of which could be considered to be the most extensive ever employed by any party in India, leading to resignations of the Chairman and Member of National Statistical Commission, ostensibly over the non-publication of incriminatory employment data.[xcvii] Eventually, worn out by the pandemic, the government found it convenient to simply hold that it has no data pertaining to the queries or questions as and when raised in the Parliament. Including no data on migrants crisis[xcviii], job losses in auto, agriculture sectors, tourism, on families eligible for compensation owing to deaths, on economic losses in rural India, on deaths of healthcare workers or the police owing to Covid, on shutdown of micro, small and medium enterprises among others.[xcix]
However, it would be incorrect to assert that the government’s ill-disposed socio-economic ventures have yielded no substantial fruit. The two largest companies in India – Reliance[c] and Adani Industries[ci], have observed and continued to observe record profits, expansion and growth, unhindered by the government’s subjugated policies. However, the cost that is borne by the average tax payer or the average individual, has been severe. The unplanned and unsavoury lockdown pushed millions into poverty[cii] the corporate tax cut along with world’s highest fuel taxes[ciii] have driven prices of commodities and expenditures through new highs. While the besotted 1 per cent of the population that pay direct taxes[civ] relishes no room for respite and remains perpetually – a forced outlet for unanswerable abuse[cv] that most recently included a forced migration to a new tax filing portal that remains dysfunctional[cvi] the rest of the country remains equally reeling under fiscal duress as the economy resumes a more positive trajectory of recovery.[cvii] Despite increase in reforms, digitalization, infrastructure spending, welfare measures and an equity market flush with foreign investments[cviii], by and large the economic assertion, and as a consequence – the rights that stem from economic activities, remain distraught[cix] with negligible financial or policy aid being extended to the millions affected.
The Digital Dominance
As the model of protest has evolved from cardboard signs and walkouts to digital posts and swift organisation through instant-communication, governments around the world have struggled to stem the tide of digital divergence and limit its agency, fearing the potential repercussions for the state that such displays may invariably invite. Under Modi, India’s clampdown of digital expression and mobility has seen unprecedented increase, as India became a world leader in internet shutdowns.[cx]
What started from restriction of communication in Kashmir, has quickly been adopted by governments in India as a ubiquitous approach towards quelling societal problems. Since 2014, India has observed over 540 internet shutdowns, while the majority have been in Kashmir, the other Indian states including ones ruled by non-B.J.P. governments, are quickly catching up with Rajasthan leading with 78 shutdowns.[cxi] Apart from outrightly eliminating access to the internet, the central government has repeatedly attempted to subvert and control Big Tech i.e. Facebook, Amazon, Twitter et al., operating in India, a natural corollary given the government’s existing tightly clasped hold on traditional media.[cxii] The arrest and raids at Twitter offices stand as a forceful signals to technology firms of expected conformity with the Indian state’s motives.[cxiii] The actions against digital platforms are necessary to be looked with context, the government relies upon social media to disseminate narratives and counter-narratives in order to spread misinformation and instigate digital mobs, it is then, necessary that platforms operate with comfortable alignment rather than isolated neutrality.[cxiv] Increasingly however, the central government has adopted a totalitarian, surveillance state model with oppressive IT Rules that seek to compromise anonymity and encrypted communication[cxv], mass usage of facial recognition[cxvi], the tyrannical inclusion of Aadhaar – a poorly secured public ID system[cxvii] as well as a controversial Data Protection Bill that dilutes, subverts digital rights and privacy rather than protecting them.[cxviii] As the government has strived to whittle down rights and privacy, it has, in parallel, indulged in a massive state-sponsored surveillance operation through sophisticated Israeli spyware – Pegasus.[cxix] Among the list of individuals whose communications were tapped, include journalists, opposition politicians, activists among others. In essence, the list is a summary of individuals whose actions or words pose or may pose a threat to the saffron supremacy.
The Onus of Malleable Institutions
The promise of relief in assertion of rights or protection of existing rights, predicates itself on the sovereign institutions’ ability to timely identify, process and uphold the rule of law. However, in practice, Indian state institutions struggle to independently function, with penurious resources, corruption and disregard for law being rampant if not axiomatic. The primary element of the law enforcement framework – the state police – maintain a notoriety for their appalling practices[cxx] including custodial murders, rapes, sexual assaults, extortion and being wholly uninterested in conducting investigations[cxxi], at the other end of the spectrum, the police across states lack both manpower and resources to effectively function.
While the independence and autonomy of the police have always been taken to be moot points, being considered as another hand of the state[cxxii] rather than an individual, independent entity, the severe politicisation[cxxiii] has only exacerbated with the passage of time. The call for police reforms have been repeatedly exhorted throughout the history of independent India[cxxiv], however neither the central nor the state governments around the country have shown any real concern towards meaningfully reforming such a critical institution; ostensibly because the rampant criminalisation of the police in-terms of false charges, harassment, intimidation and general climate of abuse, has been remarkably effective for political gains and consolidation of power.[cxxv] A gnarled apparatus that now stands augured with delayed[cxxvi] or sharply manipulated publication[cxxvii] of compiled crime statistics and figures to rescue its menial reputation and rectify the dilapidated perception.
The inimical behaviour of Delhi Police concerning the Delhi Riots[cxxviii] remains a conspicuous example of a malevolent nexus of politics and law enforcement, with Judges of both subordinate[cxxix] and higher judiciary[cxxx], who had criticised Delhi Police’s involvement and acts, being transferred out. Across the states, the dreadful law enforcement mechanism, therefore, enjoys no faith either amongst the public[cxxxi] or the courts.[cxxxii] The presented exceptions to this rule have been perceived to be the central entities responsible for investigation, prosecution and general maintenance of law and order. However, even the central agencies carry sullen reputations, being repeatedly shown to be ineffectual, lethargic, corrupt and shockingly dysfunctional,[cxxxiii][cxxxiv] a moribund scenario that has experienced further degeneration and attrition since 2014.
India’s most well-known central investigating agency, the Central Bureau of Investigation (CBI) is notorious for being a subversive, inquisitorial arm of the government; with the agency being liberally utilized by those in power to indulge in blood sport against critics, media and opposition politicians, with raids, arrests, detentions and harangued questioning utilized to manufacture submission, docility and eradication.[cxxxv] In 2018, the agency saw an unprecedented open row between two of its most senior officials, Alok Verma and Rakesh Asthana. A panel led by Narendra Modi ended up dismissing Verma[cxxxvi] whereas Asthana, the Gujarat cadre officer was subsequently cleared of any wrong-doing and appointed as the Commissioner in Delhi Police.[cxxxvii] Broadly, there is a pattern to how politicisation of the central agencies operates, the agencies are rushed into alacrity before elections and shortly thereafter, the investigation and attention is whittled away into obscurity, superseded by another red herring of the day, with trials being put off for years or cases being heard in perpetuity. As a consequence of political targeting, eight states have withdrawn general consent for CBI, effectively forcing the agency to seek out individual approvals from the state governments for investigation.[cxxxviii] Along with CBI, the sycophantically utilitarian ensemble counts among its members, the Enforcement Directorate (ED), the National Investigation Agency (NIA) and in recent times, the Narcotics Control Bureau (NCB).[cxxxix]
Notably, all the agencies are manned by individuals belonging to the trusted, private circle of Narendra Modi, with most critical positions[cxl] in the Prime Minister’s Office (PMO) being filled by officers belonging to the Gujarat cadre of India’s civil service.[cxli] Pointedly, even agencies that primarily responsible for information, administration and monitoring such Central Vigilance Commission (CVC) and Central Information Commission (CIC) are led by appointments mired in controversy.[cxlii] During 2019 elections, the Election Commissioner Ashok Lavasa found both Prime Minister Narendra Modi and Home Minister Amit Shah with violating the Moral Code of Conduct (MCC). However, Lavasa’s dissent was not recorded and he was targeted by the Income Tax department as it raided and open inquiries into the family members of Lavasa.[cxliii] Lavasa subsequently quit despite remaining tenure and joined Asian Development Bank.
In such a forlorn governmental climate, few avenues of redress and justice remain. The Commissions established for protecting the rights of identified vulnerable classes, women, minorities as well as the state and central commissions for human rights remain perpetually in a slumber of disarrayed impotency.[cxliv] In 2018, less than 5 per cent of complaints sent to state and central human right commissions was ended up in the registration of an FIR. It should be noted that FIR (First Information Report) is the first step i.e. registering the instance of crime, taken by the police before it starts the investigation. The commissions for identified socially-vulnerable classes i.e. SC (Scheduled Caste), ST (Scheduled Tribes) as well as women, fare no better with a conversion rate of 7 per cent, 5 per cent and 5 per cent respectively.[cxlv] And in what is perhaps the most appropriate, if not woefully ironic manifestation of the prevailing situation, The National Human Rights Commission, in November 2021, held a debate that sought to consider whether human rights are a stumbling block in fighting evils.[cxlvi] Most relevantly, the commission is at present headed by retired Supreme Court judge Arun Mishra, who during his tenure referred to the Prime Minister as a “versatile genius”[cxlvii] repeatedly favoured state positions in cases[cxlviii] and whose appointment was made while observing little regard for procedural formalities of appointment.[cxlix]
The chronic ineffectuality of various organs and institutions then, inevitably has made the courts the last bastion of redemption and hope for both individuals and organisations, if not for their inherent benevolent utility but for simply being the last remaining remedy. As a consequence, India’s burdened courts, grappling with case logs and runaway investigations, have unwittingly found themselves roleplaying other organs and dispensing governance at routine intervals owing to the popularity of Public Interest Litigation (PIL).[cl] As the courts stretch their own strained capacities, they invariably accommodate and moderate public expectations concerning legal obligations, behaviour, responsibility and accountability from the incompetent state executive, with the process often motivating the executive to function with laxity until mandated otherwise by the Court.[cli] The romance with PIL (Public Interest Litigation) however, has fluctuated in recent years, cohabiting with the appointments and departures of PIL-antagonistic judges. The higher courts nevertheless, have often been a refuge and institution of reason insofar as individual rights are concerned; with higher courts and specifically, the Supreme Court recognizing transgenders[clii] holding privacy as a fundamental right[cliii] decriminalising homosexuality[cliv] and endeavouring to protect and uphold constitutional rights.[clv] However, the selectivity with which cases concerning protection of rights and against the state, remain in abeyance when not hurriedly dismissed[clvi], coupled with the aeonian timescales of judicial intervention, questions the sincerity with which the court as a guardian of the constitution ethos, seeks to function and where its institutional loyalties align. The issues of selectivity and schizophrenic interest, while aggravated after 2014, remain largely symptomatic of grave systemic problems that have persisted for decades.[clvii]
The higher judiciary enjoys largely opaque operations, with appointments, accountability and transparency being handled behind closed doors in furtive circumstances. When enquiries or attention looms, vague and reticent explanations are tendered with sheepish ease.[clviii] Ultimately, the Indian judiciary is neither immune to blotches that plague the other instrumentalities nor the spirit of times in which it exists. The crisis of self-preservation remains pressing, the mysterious death of Justice B.H. Loya in 2014, who was presiding over a case connected to the now Home Minister Amit Shah, could be reasonably perceived as an early warning signal by the government to the judiciary to solicit cautious pliancy.[clix] The judiciary in some way then, must account for its own worldly existence before it could rectify the hindrances in those of others. Nevertheless, courts of varying seniority routinely attract controversy for their behaviour and stance.
In June 2020, a Karnataka High Court judge had observed that the rape-victim acted in an unbecoming, manner after being ravished.[clx] In October 2020, Andhra Pradesh High Court took suo motu cognizance of derogatory remarks that were made regarding judges and their behaviour and ordered a CBI investigation into matter.[clxi] In December of 2020, the Supreme Court initiated contempt proceedings against a cartoonist and a comedian for social media posts that it considered offensive to the dignity of the court.[clxii] In March 2021, Bombay High Court judge attracted universal ire for ruling that groping a minor above the cloth could not be considered as coming under POSCO – the specialised law meant to protect victims of child sexual abuse.[clxiii] The ruling was stayed by the Supreme Court but stands as one of out of hundreds of examples of troubling behaviour across the spectrum of judiciary, with courts vacillating between concerns for abstract dignity and honour while exhibiting lackadaisical oversight on matters that upend private existence, principles and expression of individuals. A situation that when contextualized within the framework of complex and harsh laws, poor access to justice and glacial timelines, largely inspires dread for the upholding of rights in India.
Conclusion: The Right to Have the Rights
The challenge with human rights in India, is a very unique one. As western societies evolved and fashioned, moulded and refined institutional structures, the individual remained the essential ingredient around which societal structures formed. The classically held theory of generational rights by Karel Vasak sought to categorize the birth of human rights as an outcome of history, with different sets of rights originating at different junctures.
In classifying rights, the framework followed the principles of the French Revolution and categorized three sets of rights based on liberty, equality and fraternity. The first set of rights focused on civil and political rights and traced itself in historically critical instruments of Magna Carta, Bill of Rights etc. The rights focusing on elementary right of life, equality, freedoms of expression, religion, suffrage and so on. The second set of rights focused on economic, social and cultural rights and dealt with welfare and protection in-terms of housing, health, safe work environment among others, with the onus being on the state to deliver upon them. Finally, the third set of rights are those oriented towards collectivistic determination, community and abstracts of sustainable, socio-economic development among others. While the classifications and the theory in general is not without its set of criticisms[clxiv] and interpretation[clxv], it offers an easily understandable overview of not just the evolution of rights and expectations in modern societies but also the criticality of hierarchies that constitute the need, want and desire framework of individuals in a society governed by the state.
However, in India, as is the prevailing zeitgeist of the society for centuries, the individual is to be subservient to the collective. Ergo, the conduits of communities, state apparatchiks and citadels of governance remained and remain, entities that expect conformity, acceptance and resignation of the individual will against one so decided by the people. Be it, the people of power or people of simple, material existence. That is to say, the traditional advancement of rights in India, has since inception, experienced a vacillating journey, with individual liberties often being the last priority, inadvertently affecting collective rights as a whole. The situation is further, naturally complicated by the connected nature of human existence and its interaction with legalities of rights and entitlements. An individual right operates in conjunction with sets of others, while those sets of others operate on sets of other conjunctions and individual rights, often and mostly, in parallel. The liberty to speak at ease if presented, is of questionable value if the instance of speech embroils one in dilatory legal actions, which subsequently ensues the alienation of the individual from the community, which as a consequence injures and hampers the economic capacity of the individual. If a series of rights are unavailable to avail, if a series of violations occur, does one assertion in a particular situation, redeem the prior or subsequent violations?
The problem that may arise, in such a collectivised, incongruous environment, is what then, ultimately constitutes a right? The grave dissonance that exists between the ambitiously aspirational enunciations of judges and lawyers has struggled to find reciprocity as it percolates down. Illustratively, the Supreme Court has interpreted rights to clean air, good roads, justice, transparency, accountability and endlessly more as forming part of the Constitution, with their deprivation being ipso facto infringement that could only be construed as violative of human rights that the state is bound to protect. In ordinary practice however, from the situational advantage of the ivory tower, be it achieved using positions of governmental power or economic supremacy, human rights exist and are upheld to the umpteenth degree and extent by the surroundings. It is so, pointedly owing to the ability of persuasive exchange of influence and fear of retaliation that power both of influential and purely pecuniary nature, permits.
The protection of human rights is a failure from which no political establishment can escape blame; while the governments may seasonally change, the indifference has remained since independence. The difference that could and that should be highlighted, that under the Modi-era, the disregard and malice have only become worse, necesstitating germination of questions like: whether it is a violation of human right to be beaten or slapped by the Police? Is it one if one is forced to modulate one’s dietary habits out of sheer fear of death? Is it a legislative sin to express realities without fear or consequence? Is it appropriate that ones’ laboured money be turned to paper waste overnight? Is the act of being different, one that should invite damnation?
A million questions such as these arise amidst the abusive, remediless realities of human rights in India. In essence, it may be easy to state that for the majority that does not form itself a part of the larger sub-structures of socio-economic power, human rights remain wishful if hallucinatory. However, a consummate answer may be a plain and rather, a simple one – for there to be a sincere observation of human rights as understood by countries that consider themselves as civilized, the act must, by necessity, be preceded by the act that recognizes another as a human and not merely an object of flesh, whose values are only so and only as much as determined by parochial beliefs and sensibilities. In the critical context of the state, it puts an obligation upon it to recognize the inhabitants of its empire as not merely sentient electoral trinkets of time-bound utility, but as human beings.
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[clviii] https://www.epw.in/engage/article/collegium-system-indian-judiciary-needs-be
[clix] Filkins, Dexter. “Blood and soil in Narendra Modi’s India.” New Yorker 9 (2019).
[clx] https://www.news18.com/news/india/after-furore-karnataka-high-court-expunges-controversial-remarks-by-judge-dixit-on-rape-victim-2701069.html
[clxi] https://www.moneycontrol.com/news/india/anti-judiciary-remarks-andhra-pradesh-high-court-orders-cbi-probe-5954441.html
[clxii] https://www.jurist.org/news/2020/12/india-supreme-court-initiates-criminal-contempt-proceedings-against-stand-up-comedian-cartoonist-over-critical-tweets/
[clxiii] https://www.downtoearth.org.in/blog/health/sexual-assault-under-pocso-act-a-child-rights-perspective-76233
[clxiv] Jensen, Steven. “Putting to rest the Three Generations Theory of human rights” Open Global Rights (2019); https://www.openglobalrights.org/putting-to-rest-the-three-generations-theory-of-human-rights
[clxv] https://link.springer.com/content/pdf/10.1007/s12142-019-00565-x.pdf
