INDIA: A mandamus writ will not ensure safety
A Statement from the Asian Human Rights Commission

February 20, 2014

AHRC-STM-033-2014

The Supreme Court of India has directed the Union Government to take adequate measures to guarantee the safety of the people from the northeast, in the rest of the country against alleged racial discrimination. The court issued the directive while hearing a public interest litigation filed in court, following a series of incidents, where people from the northeast were targeted by criminals in New Delhi and other parts of the country, allegedly motivated by racial discrimination, in which lives were lost.

The Supreme Court's bench led by Chief Justice P. Santhasivam and Justice Ranjan Gogoi has sought response from the government within four weeks on the issue. While the initiative by the court, on the face of it, appears interventionist. In reality, it is will turnout to be a farcical attempt since none can guarantee the safety of a large community that does not experience it at home. Neither does the Supreme Court of India has an honourable record, of following up the directives it has so far issued, anytime during the past six decades.

The people from the north-eastern states is perhaps the worst affected by state-sponsored violence in India, next only to their counterparts living in the state of Jammu and Kashmir. The draconian legislation, the Armed Forces (Special Powers) Act, 1958 (AFSPA) that provides statutory impunity to violence committed by the armed forces upon the people, has so far claimed a few thousand lives in India. In the state of Manipur alone, the implementation of this law has claimed not less than 1051 lives in the past ten years, the records of which is available with the Supreme Court itself.

Government and civil society initiatives that have inquired into the operational complexities of this law have repeatedly recommended to the Government of India, that this law is one of the stumbling blocks to realising peace in the states where this law is implemented. The monstrosity of this legislation is further underlined by the fact that neither the government nor the civil society have adequate records as to how many lives have already lost, in places where this law is enforced since 1958.

This law is so far enforced in the northeastern states and in Jammu and Kashmir. For a brief period it was also enforced in Punjab from 1983 to 1997. It is not that there has been no violence in the rest of India. The element of oppression based on discrimination and the notion of racial supremacy is inherent with the genesis of this law, the Armed Forces (Special Powers) Ordinance, 1942 promulgated to suppress the Quit India movement.

Each year the operational remit of this law is reinforced in a callous manner, without the Indian Parliament applying its wisdom. One example is the state of Assam, where this law is extended to the entire state as of 4 November 2013.

It is concerning this law some of the senior ministers of the incumbent Union Government has expressed their incapacity to even amend the law, including the incumbent Prime Minister as well as the former Home Minister, Mr. P. Chidambaram. On 6 February 2013, Mr. Chidambaram, soon after assuming office as the Finance Minister leaving the Ministry of Home Affairs, said: "the armed forces, and especially the Chief of Army Staff, the present one and the previous one, have taken a very strong position that AFSPA should not be amended." Chidambaram said this while delivering the K Subrahmanyam Memorial Lecture in New Delhi. The statement makes one wonder, whether India is a parliamentary democracy where the writ of a civilian government is that what directs the armed forces.

Formulation and implementation of administrative polices is the constitutional mandate of the government. While the Indian armed forces has a consultative role in this process on issues affecting national security, the Indian judiciary has a constitutional mandate that it could exercise /suo motu /or on an application inviting its jurisdiction, to test the constitutional /vires/ of all administrative actions. It is a figment of this jurisdiction that it exercises while issuing writs.

The Supreme Court has exercised its writ jurisdiction, from 26 March 1774, when the Court's predecessor, the Supreme Court of Calcutta was allowed to do so under Clause 21 of the Royal Charter issued by King George III (under 13 Geo III Cap 63 popularly known as Regulating Act). Post independence, the Supreme Court has liberally exercised its writ jurisdiction under Article 32 of the Constitution. Much of it, the Court has done interpreting Article 21 of the Constitution, and in the process progressively expanding the remit of Article 21 to include within its expanse, right to housing, safe environment, the fundamental rights to food, health and education, that has also prompted, wherever required, constitutional amendments by the Indian Parliament.

However, the fact is, the role played by the court ends here. It must be so in jurisdictions where separation of powers is respected and followed. Once the court directs the government to undertake a particular act or to refrain from it, it is for a government that is subjected to the same constitutional supremacy to breathe life into the writs issued by the court.

In India unfortunately it has not been so, worse, the court cared the least to follow-up. Had it not been so, illegal arrest, detention, extrajudicial execution, custodial torture and incommunicado detention would have stopped or radically decreased in India after the D. K. Basu judgment. Post the Prakash Singh judgment; unwarranted political interference in the administration of police would have stopped had the Government of India as well as the state governments honoured the directives issued by the court in that case.

Racially motivated acts are acts of crime simpliciter that calls for immediate preventive and punitive state action. This is so elementary that the Supreme Court of India need not spend its otherwise valuable time pondering it. State actions to prevent crimes of all nature require a law-enforcement agency that is able, morally and professionally equipped, to discharge its duties. Unfortunately, the police in India is one of the most demoralised state institutions, and the people consider their police as criminals in uniform.

A statement issued by the Director General of Police in Kerala yesterday reaffirms this position. The DGP said that 90\% of police officers of the rank of Sub-Inspector of Police and above are corrupt, inefficient in discharge of their duties, and clinically lazy. This is true concerning the rest of India.

To ensure safety of Indians what is required is to change this serious problem of the law-enforcement agencies in India. Further fundamental to this is the repealing of the AFSPA in north-eastern states, thereby making every home in the region a safe place. Both of this is unfortunately not the job of the court, but that of the Union Government and that of the state governments.

*For further information:* Bijo Francis at [email protected]

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.