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Critics of your government should not be in jail: PUCL shoots open letter to Modi

Counterview Desk

In an open letter, Ravikiran Jain, national president, and Dr V Suresh, general secretary, People’s Union for Civil Liberties (PUCL) have taken strong exception to Prime Minister Narendra Modi’s view that raising human rights issues can ‘tarnish’ the country’s reputation, stating, those who raise human rights concerns do it “through established United Nations mechanisms such as the UN Human Rights Council, the Office of the UN High Commissioner of Human Rights.”
Also disagreeing with Modi on about the ‘image of the country’ being ‘tarnished’ by those who raise human rights concerns, PUCL said, these are “institutional mechanisms which have been established through treaties which India has voluntarily entered into”, adding, “Those who lodge complaints through these mechanisms are using the remedies provided by international law.”
It added, hence it was “difficult to agree to the charge that human rights defenders’ criticisms are any result of a conspiracy by those who wish India ill."

Text:

You had in your speech on the 28th NHRC foundation programme on 12th October, 2021 made four assertions on human rights to which the PUCL, as one of the oldest civil liberties groups in the country, feels that a response is warranted. You had referred to:
(i) the so called ‘selective’ interpretation of human rights;
(ii) the fact that rights are a product of the independence struggle;
(iii) that duties are as important as rights; and
(iv) that raising human rights issues can ‘tarnish’ the country’s reputation.
We would like to remind the Prime Minister that the PUCL was born in the crucible of the Emergency and was a staunch critic of the human rights violations – preventive detentions, torture, disappearances - carried out by the Indira Gandhi regime. In fact the founder of the PUCL, Jayaprakash Narayan was himself imprisoned by the then Congress regime. The PUCL fought hard against the authoritarian regime of the then Congress government led by Indira Gandhi. Many stalwarts of the freedom struggle and leaders from across India, played a key role opposing the Emergency and to restore democracy.
Since that time, the PUCL has been relentless in exposing the rights violations committed by the party in power, which as you know was in that period, mainly the Congress party. In the aftermath of the assassination of Indira Gandhi in 1984 and the brutal pogrom against the Sikh community, PUCL and PUDR jointly conducted a fact finding exercise and their joint report titled, “Who are the guilty?’ came to the finding that the pogrom was not a spontaneous expression of "madness" and of popular, spontaneous "grief and anger' at Indira Gandhi's assassination as was made out by the authorities. The Report conclusively pointed out that the massacre of the Sikhs was the result of conscious mobilisation and acts of both deliberate commission and omission by important politicians of the Congress (I) at the top and by authorities in the administration.
Today the Congress is no longer in power and it is your party which has been in power for over seven years. The spate of lynchings, mob attacks on inter-caste and inter-religious marriages, the passing of legislation which violates the freedom to marry (so called anti-love jihad laws) by BJP ruled states, the languishing of thousands of innocents under the UAPA, the jailing of journalists, everyday attacks on religious minorities, the dilution of both environmental safeguards and labour rights - all of these pose serious threat to democracy, rule of law and fundamental rights and merit strong action.
What concerns and troubles us a lot, as indeed many other citizens, is that there is nothing but stony silence from your end towards reports of these violations, occurring repeatedly from across India. In fact many ministers of your party seem to justify such brazen violations; most distressing is to see a number of Ministers of your party publicly giving a call to violence. What are we, as citizens, to make of your strategic silence in the face of continuing human rights violations occurring all across the country? Especially, when democratic voices seeking accountability and transparency are silenced using the law as a weapon. Your Government should not be complaining of ‘selectivity’, but rather as a constitutional authority, redress the serious violations of the constitutional rights of the people of India.
You made the important point that the rights we enjoy are a product of the independence struggle. The PUCL is convinced that without struggle there are no rights and all rights under the Constitution can be traced back to a concrete struggle. For example, the right under Article 15(2) of the Constitution, that all citizens should enjoy non-discriminatory access to public facilities like shops, wells, tanks etc. is a product of the Mahad Satyagraha which Babasaheb Ambedkar led on 20th March, 1927 for Dalits to access the Chawdar tank in Mahad in Raigad district of Maharashtra. In fact 20th March is celebrated as Social Empowerment Day in India to commemorate the Mahad struggle!
Similarly Art. 19(1)(a) - the freedom of speech and expression, owes something to Mahatma Gandhi’s willingness to face imprisonment for sedition for fearlessly criticizing the British Government. To honour the meaning of the freedom struggle is to follow Gandhiji’s lead; this means that in independent India, any leader of the government, unlike the colonial government, should respect `criticism’ as the heart of democracy, as you are mandated to do, under the Constitution.
But what is the reality in India in the last seven years?
The critics of your government should not be in jail. That would be the best way of honouring the freedom struggle and the legacy of Bapu whose name you invoked in the course of your speech. Bapu’s statement in court when he was being tried for sedition by the colonial government, which reinforces the value of dissent, should be remembered each time your government wants to invoke sedition or the UAPA against its critics.
As Bapu said:
“Section 124-A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Coded designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite violence... I have no personal ill will against any single administrator; much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a Government which in its totality had done more harm to India than any previous system.” (SB Kher, “The Law and lawyers”, Navjivan Trust, Ahmedabad, 2001, p 119)
We fervently hope that Gandhiji’s immortal words that ‘affection cannot be manufactured by law’ and that if some people don’t have ‘affection’ for the government, they should be allowed to express their ‘disaffection’ in a non-violent manner touches a chord with you and dissent is given its democratic due.
We would also like to put forward our understanding of the relationship of rights and duties, in response to your assertion that one can’t think of rights without thinking of duties and that duties have a significant place in Indian culture and tradition. The abstract language of rights is made concrete through the fundamental rights chapter of the Constitution and the abstract language of duties is also given constitutional sanction through the prohibitions of Article 15(2) and Article 17 as well as Part IV-A of the Constitution which is the Fundamental Duties Chapter.
When it comes to Article 15(2) clearly every citizen has the duty not to discriminate against her fellow citizens on grounds of religion, caste, sex, place of birth and race in ensuring access to public facilities like shops, restaurants, wells, bathing ghats etc.
Article 17 by prohibiting the practice of untouchability places on all citizens the duty not to practice untouchability.
The Fundamental Duties under Article 51-A enjoin citizens, among others,
  • to ‘value and preserve the rich heritage of our composite culture’;
  • to ‘promote harmony and the spirit of common brotherhood amongst all the people of India’;
  • to ‘renounce practices derogatory to the dignity of women’;
  • to ‘develop the scientific temper, humanism and the spirit of inquiry and reform’;
  • to ‘protect and improve the environment’; and
  • ‘cherish the values of the freedom struggle.’
Though the Fundamental Duties were introduced by the Indira Gandhi regime, these duties are mirrored in the Preamble, Directive Principles of State Policy and part of the fundamental rights chapter. They echoed in the chambers of the Constituent Assembly during the debates over the framing of the Constitution.
Unfortunately, those exemplary citizens who choose to follow these fundamental duties have had to do so at their peril under your administration. Govind Pansare, MM Kalburgi and Narendra Dabholkar were assassinated for their life’s work of fostering a ‘scientific temper’. Gauri Lankesh was killed for her work in trying to preserve ‘our composite culture’.
When it comes to protecting the environment, environmental activists are routinely attacked and falsely prosecuted; 4 environmental activists were killed in 2020 alone. Plight of other rights activists in India is also painful. The NCPRI has compiled a list showing over 40 RTI activists have been killed and several hundreds attacked in the last 7 years. The roll call of those who were harassed, intimidated, ostracised, humiliated, arrested and killed for being citizens for whom fundamental duties mattered is unfortunately very long and a government which speaks of fundamental duties must first commit to protecting those of our exemplary citizens who put their lives at risk by performing their fundamental duties.
For the PUCL, constitutional rights and constitutional duties have a complementary role. Adherence to the constitutional duty of ‘promoting the spirit of brotherhood’ is premised on the fact that we recognize the constitutional right of all persons under Article 25 to ‘practice, profess and propagate the religion of their choice’. Similarly to ‘renounce practices derogatory to women’ would mean the recognition of the right of women to autonomy and dignity under Article 21. To ‘develop a scientific temper’, would be the basis on which various cultural practices which are harmful to human dignity and autonomy would have to be forsaken.
We hope that your understanding of duties is also bound by the Constitutional recognition of Preambular values of liberty, equality, fraternity and dignity. A notion of duty which is anchored not in the Constitution but timeless Indian tradition will impinge on the rights of Dalits, as well as women. The struggle against Sati, the struggle for widow remarriage, the fight for women to enter religious spaces and the battle of Dalits for access to public spaces and the fight of LGBTI persons for dignity and personhood are all struggles made more difficult by the sanctification of prejudice and animus using the language of culture, tradition and duty. By itself, such a notion of duty has no place in any constitutional imagination of India. But alas, anyone daring to challenge any of these unconstitutional practices risks the danger of being persecuted and prosecuted, with the active connivance of the state agencies. This is the stark reality in India.
Towards the end of your speech, you had warned against a ‘selective’ interpretation of human rights with ‘some people’ seeing a human rights violation in a particular incident and ignoring violation of such rights in other, similar cases.
We presume that you are referring to the way your government has been accused of human rights violations ‘selectively’.
A notion of duty which is anchored not in the Constitution but timeless Indian tradition will impinge on the rights of Dalits and women
It is very instructive to refer to some of the issue which you presumably are referring to as “selective”. One such issue is the farmer’s agitation on the outskirts of Delhi. For close to a year many lakhs of farmers waged a non-violent struggle seeking withdrawal of the 3 Farm Laws passed by your government in 2020. Neither you, nor any of your cabinet Ministers bothered to reach out and dialogue with the farmers. The farmers sat through intense cold of 2020, the harsh sun of 2021 summer and rains. Over 600 farmers are said to have died. Some celebrities who tweeted in favour of the farmers agitation were badly trolled. Others were arrested. State violence was used to crush the agitation. More recently, some farmers were mowed down by a SUV driven by the son of a cabinet minister of your government. Naturally, the media and UN agencies took note of the mass human rights tragedy taking place right under the nose of your government. Can this be termed `selective’?
There have been a number of issues in which the way your government handled the issue came in for national and international attention and condemnation. To name just a few:
  • The way a young 23 year old environmental activist, Disha Ravi, was arrested from Bengaluru by the Delhi police without following legal procedures on the allegation that she conspired with others to create a “toolkit” to use against the government; the sheer brazenness of the police was shocking.
  • Journalists and media houses writing critically about the way COVID pandemic have been targetted;
  • In July 2021, the offices of one of the most popular Hindi dailies, Dainik Bhaskar, which had been systematically reporting on the way the Covid pandemic was being handled were raided in over 5 cities in MP, Delhi, Rajasthan, Gujarat and Maharashtra.
  • In September, 2021 massive and well publicised IT raids were conducted on Newslaundry and Newsclick which have been very critical of your government. The selective targeting of journalists and media houses has been pointed out by the Editors Guild and Press Club of India.
More recently there were 4 Delhi based lawyers who went on a Fact Finding exercise to Tripura to study and report on incidents of attacks on Muslim houses, businesses and places of worship across several districts in October, 2021. For this, they have been booked under the dreaded UAPA. Two young women journalists were arrested by the Gomati District police of Tripura state for reporting on the incidents of communally targetted violence. These incidents are egregious and brazen violations of law by police forces in states ruled by your party. Isn’t it natural, and in fact correct too, that these incidents were roundly condemned inside India and outside too?
Perhaps the issue which has bothered your government most is the national and global outrage against the targeting of the Bhima Koregaon – 16 (BK-16) accused, who comprise lawyers, Dalit rights activists, Adivasi Rights Activists, civil libertarians and academics. Most of them have been in jail for over three years without trial. The BK 16 case is held as a black mark against the human rights record of your government, deserving of the strongest criticism from the point of view of the right to fair trial and the right to be free of arbitrary detention.
But is the criticism of your government unreasonable or unfair? The fact remains that 83 year old Fr Stan Swamy died in judicial custody. Isn’t this an unconscionable failure of your government which appeared to be vengeful against Fr Stan, who was seriously afflicted with Parkinson’s disease and needed help to even drink water? The prosecution -- NIA, which comes under the Home ministry - objected and delayed Fr. Stan’s request, made through court, to be supplied with something as simple as a sipper. This heartless and inhumane act elicited criticism from many quarters, including the UN Special Rapporteur on Human Rights Defenders, Mary Lawlor.
Permit us to point out that the treatment of the more globally known BK-16 only symbolizes and is actually symptomatic of the plight of thousands more who are imprisoned for many years under the UAPA for nothing other than the exercise of their constitutionally guaranteed freedom of speech, expression and association. This cannot be to the credit of a democratic government, can it?
By raising these issues of grave and critical concern are human rights groups being ‘selective’? With respect, we disagree. We are only playing the role which human rights defenders are expected to play: to protect the rights and liberties of citizens.
Finally we must address your concern about the ‘image of the country’ being ‘tarnished’ by those who raise human rights concerns. We presume that you are concerned about the international reputation of India. When the issue of human rights is raised internationally it is done through established United Nations mechanisms such as the UN Human Rights Council, the Office of the UN High Commissioner of Human Rights, monitoring under treaty bodies and the Universal Periodic Review under the aegis of the UN Human Rights Council. All of these are institutional mechanisms which have been established through treaties which India has voluntarily entered into. Those who lodge complaints through these mechanisms are using the remedies provided by international law.
We therefore find it difficult to agree to the charge that these criticisms are any result of a conspiracy by those who wish India ill. Rather, criticisms of your government’s conduct by the PUCL and many other such groups is a result of our grassroots level work in India which has convinced us about the widespread prevalence of serious human rights violations oftentimes perpetrated and perpetuated by state institutions including both the police and the administration. What you seem to characterize as a mala fide criticism is nothing more than a call to the government to respect the Constitution it has sworn to uphold. We wish your government instead of questioning the bonafides of those who criticize your government, seriously addresses lynchings, arbitrary arrests, discrimination on grounds of religion and caste and other human rights concerns in a spirit of constitutional respect and common concern.
In replying to your speech we have got an opportunity to clarify some of the common misconceptions regarding human rights work. The work human rights organisations such as PUCL do is under the Constitution and aims to achieve Constitutional goals. As such the human rights community functions as the moral conscience of the state and society and is a vital part of the Indian democratic experiment. Our criticism should be seen nothing other than a goad to the government to not forget its duty to ‘bear true faith and allegiance to the Constitution of India.’

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