In August 2009 Tehelka ran a series of damning pictures chronicling the killing of Chongkham Sangit by Manipur Police commandos in Imphal in broad daylight, only 500 meters from the state assembly. The haunting images, incorporated in a documentary, were used by Irengbam Arun, Manipur editor and human rights activist to show how pervasive the culture of impunity is in Manipur, where the Armed Forces Special Powers Act has made a complete mockery of citizens' rights.

Interestingly, just the day earlier Prakash Singh, former Director General of Police (UP, Assam and the Border Security Force) also made an impassioned speech on human rights - those of policemen. Singh, who has spearheaded a campaign for police reforms, said the police worked under almost inhuman conditions, and charged that little mention of human rights was made when Jharkhand police officer Francis Induwar was beheaded by Naxalites.

So what is the difference between violence perpetrated by non-state players and by state agencies? This was among the gamut of issues raised, discussed and passionately debated at the Tata Institute of Social Sciences, Mumbai where a two-day long consultation on a national policy towards criminal justice reforms took place on 11 and 12 December 2009. The subject of how to address national security along with human rights was vigorously discussed by the students, lawyers, rights activists, policemen and heads of security services.

Time for change

The theme was first touched upon by Upendra Baxi, Professor of Law and Development, University of Warwick, UK in his keynote address. He suggested that there has never been a serious democratic debate on the criminal justice system and how to reform it. The litte action on this front so far has been essentially regime-sponsored and regime-serving.

Among his list of 'provocations' - gestures of solidarity towards the victims of the present system - Baxi raised the concern of how the state can protect the security and life of ordinary citizens when it is perceived and presented as vulnerable? Was it permissible for the state to suspend basic rights of an indeterminate proportion of its population as in Jammu and Kashmir and several north-eastern states? Should terrorists be dealt with swiftly and sternly without according them and their non-complicit kin any human dignities and basic rights? Should activist interventions be seen as a threat to the future of the Indian state?

The issues, he said, were complex. First, we must ask: what level of threat perception is needed to justify overriding human rights and dignity considerations? Secondly the historic perspective of criminal justice is needed. Baxi reminded the audience that the Indian Constitution was written under the shadow of Partition, as well as concerns for maintaining the nation's territorial integrity. These required the continuation of some colonial security laws (like the Official Secrets Act) and development of preventive detention systems. But has this fragility of the Indian state continued, he asked, or can we do away with laws and systems created in those times?

Moreover, he wondered how much of the state's vulnerability has been created by the degeneration of politics and by subversive political practices that were made for short term gains. These included the attacks on Sikhs in Delhi in 1984, the incidents at Ayodhya and elsewhere later on, and more recently the events in Gujarat in 2002. Answers, he said, may therefore lie not in critiquing extravagant and extraordinary legislation and extra-judicial use of force but in terms of specifically naming the collective responsibility of political parties to reform their way of doing politics.

Baxi emphasized that in these times it was crucial to devise an ethical counter-terror policy and for all constitutionally sincere Indians to contribute to the debate.

Through the official lens

Voicing the state's viewpoint was Dr R K Raghavan, IPS, retired director of the Central Bureau of Investigations (CBI) and currently SIT chief probing the Gujarat carnage. Stating that terrorism has practically replaced crime in these troubled times and that geo-politically no nation is more vulnerable than India, Raghavan admitted that the big challenge for paramilitary organisations was to mesh with the civil populations they were meant to protect.

Preserving national security required great sensitivity, he noted, and it was a role for which the state police had not received requisite training or been equipped. He conceded that with the growth of terrorism, more citizens were likely to come under the scanner of intelligence groups. With the army being deployed in J&K and the North-East and increasing need for interaction with the police there were bound to be different perceptions of how to work under civil conditions.

Prakash Singh claimed that it was political leadership that had subverted the role of the police by seeking to keep them under their thumb.

 •  Presumed guilty, secretly
 •  Disturbed in Manipur

He said some degree of accountability was mandatory when limits were crossed by these agencies and he was happy there was the National Human Rights Commission to address this. Efforts were on to sensitise the law enforcement agencies, he added. While it would be preposterous to expect any major changes there were signs of increment change. With terror attacks likely to continue ("We have not seen the worst of terrorism." he warned) the ferment over different perceptions would continue, he admitted. As in illustration he alluded to the Shopian case where huge differences have come up between the judiciary and the law enforcement agencies over what really happened.

In his speech Prakash Singh claimed that it was political leadership that had subverted the role of the police by seeking to keep them under their thumb. He cited the example of the Delhi riots in 1984 when the police became mute spectators. The roots of armed rebellion against the state - as in the growth of the Naxal movement - lay, he said, in socio-economic issues like tribal alienation from the land, poor governance and extreme poverty. Since the role of the police is merely that of establishing rule it was for the state to bring about the necessary change, he argued.

Later responding to questions, Singh defended the use of strong-arm tactics by the police saying "What else can you expect in a police station?"

Heated exchanges

Professor Pande who currently holds the NHRC Chair on Human Rights at the National Law School of India University, Bangalore, during discussion time raised the pertinent question on the need for a policy on terrorism. When does a person become a non person, he wondered (That is when does a terrorist get the category of "beast").Thereby does he get stripped of his rights?

These questions were examined in greater detail on the second day. Dr Kannamma Raman, a noted human rights champion and Associate Professor in the University of Mumbai observed that the current scenario was such that national security and human rights were being seen as not compatible with one another and she was glad this subject was being debated.

Sounding the patriotic bugle M L Kumawat, IPS, (Retired Director General, BSF and former Special Secretary, Internal Security) said it was the duty of citizens to appreciate the role of the state agencies in maintaining security. He spoke of his own detention by the police when he was a poor, young boy but affirmed his faith in the state which had enabled him to rise to his present high level. Kumawat, who played an important role in the raising of COBRA, the anti-Naxalite forces, spoke emotionally and graphically of how often one had to scoop out mangled remains of BSF personnel killed in landmines planted by Naxalites and the grief of the families who could not even get to see the bodies.

Presenting the other side of the picture both Irengbam Arun from Manipur and Athili Sapriina of the Naga Peoples' Movement for Human Rights drew a graphic picture of what it is like to live under special legislation like the Armed Forces Special Act. Arun, who screened the documentary, pointed out that the Manipur Police commandos were probably emboldened to kill the Manipur youth because of the culture of impunity offered by the Act and the way the army operated without any restraints.

Sapriina said that under the guise of national security one could even whisk away a youth whose only crime was to protest against the building of a dam. He charged that the army's policy of capturing the hearts and minds of the people was restricted to mere gestures like building a basketball court even as abuses grew.

In his impassioned speech Ravi Nair, Executive Director, South Asia Human Rights was emphatic that preserving national security did not mean giving the state agencies license to kill or commit endemic torture. Any special legislation like the Armed Forces Special Act must be put periodically to legislative and judicial scrutiny. He noted that both Vice President Hamid Ansari and the current minister for law Veerapa Moily had at various times recommended that this law be repealed.

The question-and-answer session and discussions that followed were extremely animated. Raman noted that the frequent remarks of the home minister and others about imminent terror attacks seemed to be aimed at creating public opinion in favour of reprehensible laws. Shrikanth Bhatt, an advocate interjected to suggest that the existing legislation on evidence were insufficient to convict terrorists. The issue of preventive detention was also brought up with a heated exchange taking place.

Sapriina, on his part, pointed out that in insurgency-affected states the balance of power was heavily weighed in favour of the state and that it was an unequal situation for ordinary citizens.

The rule of law

It was left to Justice Bilal Nazki, former advocate general of Jammu and Kashmir and judge of the Andhra Pradesh High Court and the Bombay High Court in his valedictory address to unequivocally spell out the difference between violence perpetrated by non-state agencies and that by the state. Drawing on his rich experiences Nazki spoke of his anguish when a colleague in J&K Jalil Andrabi was taken away and believed to be killed by the army. Till date despite innumerable appeals mystery shrouds the case, with entire files pertaining to an officer being untraceable.

He also spoke of his own abduction by two young terrorists, who shot and wounded him when he tried to escape. So what is the crucial difference between an attempt on his life by terrorists and the extra-judicial killing of Andrabi? Nazki offered that the difference is that the state is expected to adhere to the rule of law, whereas it is vain to expect the same from terrorists. Unlike terrorists, he said, "[the] state is not a terrorist. I expect rule of law by my state." He also reminded the audience that "We are all protecting the state in our own way. The judge who upholds the laws and rights of the citizens is also protecting the state and is every bit as patriotic as the army soldier or BSF personnel who lay down their lives."