Speech By Chief Justice Rajindar Sachar Of Delhi High Court (Retd) At Prof. Dilip Chakravarty First Memorial Lecture At Calcutta

I  am thankful to Sibnath Bannerjee, Institute of Labour to give me an opportunity to pay my regards to a multifarious personality like Dilip Chakravarty. I did not have the privilege of knowing him personally, but his life still thrills one, even at this age.  I myself have been associated with Socialist Party and Labour movement from my early years since 1946, and continue to be so.

I still remember the wild enthusiasm we all Socialist and Labour Front workers experienced when we gathered at Calcutta in 1948 to establish Hind Mazdoor Sabha under the inspiring Leadership of our leader Sibnath Bannerjee Sahib. Though in all fairness one has to admit that the sweep of dreams and strength of labour movement that we dreamt then may not have been materialized. But such movement  are a life-long inspiration and help us to keep up morale even in the present when challenge to democracy and human rights are being thrown out from various angles. But I remain an optimist and firmly believe that that democratic socialism, our original cry for transformation of the society, still remains valid and will triumph, though we have a fairly long road to go and handles to cross.

Talk of human right these days is not a forbidden topic even amongst the fashionable crowd. But there is a real danger that this may reduce the concept of human rights to a mere goody goody sentiment and not recognize it as an instrument of social justice. It is this aspect which constantly needs to be assessed. Another misconception is to assume that recognition of Human Rights is an emanation from West and only came to be known to the rest of the world when the U.N. General Assembly adopted it on 10th December 1948 as a Universal Declaration of Human Rights. This according to me is merely self flagellation of the West. Human existence and flights of spirit are too ancient to accept that the concept of universalism is only a 20th  Century concept. On the contrary, this concept has its origin in antiquity. Ancients always maintained, “Vasudhaiva Kutumbakam” meaning the whole world is one family.

Thus thousands years back, Atharva Veda said, “as the cow protects her new born even at the risk of her own life, so should one enlarge one’s heart indefinitely with compassion for all sentient beings”. The words of Christ are equally apposite when he said, “ Do not do unto others what is hateful to you. The God will know. Do unto others as you would have them do unto you”. Similarly in the Holy Quran there is an injunction that all men are brothers and that non-Muslims should be treated with no less dignity and respect for their personality than Muslims. The Quran prohibits discrimination against all persons whether white or black. In the West, Rousseau, Locke, Thomas Jefferson in 17th and 18th centuries kept up the flame. 

In the 20th century, emphasis on human rights owes its origin to the Charter of the United Nations, which in the Preamble has reaffirmed “fundamental human rights, the dignity of human beings, the equal rights of men and women, and of nations large and small”.  Upon this declaration, a Commission on Human Rights was created to draft an “International Bill of Human Rights “.

The specific claim that tolerance is a special – and very nearly unique – feature of Western civilization, extending way back into history, is particularly hard to sustain. This is not to deny that tolerance and liberty are among the important achievements of modern Europe (despite some aberrations, such as brutal imperialist rules over two centuries and the Nazi atrocities six decades ago). The world indeed has much to learn from the recent history of Europe and the Western world, particularly since the period of European Enlightenment. But to see a unique line of historical division there – going back through history – is remarkably fanciful. The history of the world does not suggest anything like a division between a long-run history of western toleration and hat of non-Western despotism.

Political liberty and tolerance in their full contemporary form are not an old historical feature in any country or civilization. Plato and Augustine were no less authoritarian in thinking than were Confucius and Kautilya. There were of course champions of tolerance in classical European thought, but there are plenty of similar examples in other cultures as well. For example, Emperor Ashoka’s dedicated championing of religious and other kinds of tolerance in India in the third century BCE (arguing that “the sects of other people, all deserve reverence for one reason or another”) is certainly  among  the  earliest  political  defences  of  tolerance anywhere. Similarly, when a later Indian emperor, Akbar, the Great Mughal, was making comparable pronouncements on religious tolerance at the end of the 16th  century (such as; “no one should be interfered with on account of religion, and anyone is to be allowed to go over to a religion that pleases him”), the Inquisition was in full swing in Europe. To take another illustration, when the Jewish philosopher Maimonides was forced to emigrate from an intolerant Europe in the 12th  century, he found a tolerant refuge in the Arab world and was given an honoured and influential position in the court of Emperor Saladin in Cairo. His tolerant host was the same Saladin who fought hard for Islam in the Crusades. (See U.N. Human Development Report 2004)

Since some time in the recent past a hollow question has been deliberately raised. It is suggested that in developing countries, the stress should be on economic rights. In the process, if political rights and civil liberties are curtailed, this price must be accepted temporarily. Usually, it is presented as a competition between the European model of supremacy of political rights and the Communist model of priority of economic rights. Such a sharp cut division is clearly a myth. No such artificial conflict of choice between economic and political freedoms exist. This argument has no  basis  left  after  the Vienna  Declaration  on Human Rights, which  has accepted the universality and indivisibility of all human rights, political and economic. 

Bread and liberty are two sides of the same coin, and deprivation of either must inevitably damage the fabric of the other. The freedom to agitate for bread and sustenance to fight for one’s liberties are concomitant. As a matter of fact, the Universal Declaration of Human Rights encompasses within itself the political rights of life, liberty and security of person (Article 3) , and the economic right that everyone has the right to work and protection against unemployment (Article 23) . The compulsion of economic rights are recognized by the discerning even in so-called affluent countries. 

In view of the recent bomb blasts in Delhi, Malegaon and other places, there is again a thoughtless cry in the press and public that anti-terrorist legislation needs further amendment. It is still more painful because experience has shown that such like draconian law are the source of human rights violations and thus weaken the stream of democracy.  

The practical utility of TADA was shown to be nil because during 1985-93, conviction rate of those arrested never exceeded 0.89 per cent.  But the saddest part and absence of respect for Human Rights was reflected in the almost total somnolence of our legislators which shows that discussion in parliament on TADA from 1985 to 1993 has varied between 1 hour and ten minutes (1993) to a maximum of 8 hours in 1985. The participation of MP’s varied from 8 MP’s to a maximum of 34 in 1985. it would seem that gradually the sensitivity of MP’s at the deprivation of basic rights of citizens is becoming dulled.  

To seek to oppose contemplated new anti terrorist legislation in the context of dastardly bomb blasts in Delhi would normally appear foolhardy and invite the risk of being charged at acting against national interest.  But I demur and in that connection echo warning given by the USA media within a couple of days of September 11, 2001 massive tragedy. The New York Times wrote,  “the temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies, or even military forces – a right to undermine the civil liberties that shape the character of the United States.  President George Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans.”

Similarly Washington Post wrote “the country cannot allow terrorists to alter the fundamental openness of US society or the Government’s respect for civil liberties.” 

Philadelphia Inquirer wrote “We feel rage.  We feel fear.  We are bewildered.  We can’t avoid acting on those feelings.  Yet we must calibrate our response against the ideals of liberty and tolerance that have made this nation work so well for so long.”

Of course, saner voices were ignored when the USA Government passed anti Human Rights legislations. But similar condemnation found echo there. Thus Laura W. Murphy, Director of the ACLU’s Washington nation office “this law is based on the faulty  assumption that   safety  must  come at   the expense of civil liberties”.

POTA record was equally violative of Human Rights. The National Human Rights Commission (N.H.R.C), had given its firm opinion against POTA.  It was the considered view of the Commission that all the actions which the Government wishes to take are substantially taken care of under the existing laws. 

I am not underestimating the danger of terrorism, nor am I against using all the governmental resources against it. But the methods must be consistent with the letter and spirit of our Constitution – namely the supremacy of Human Rights. This has been forcibly asserted by the Supreme Court even when it upheld (regretfully to many of us), the validity of POTA. But it commented very strongly thus; “The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. If Human Rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights  are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding grounds for terrorism. In all cases, the fight against terrorism must be respectful to the human rights. Our Constitution has laid down clear limitations on State actions within the context of the fight against terrorism.”

The UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which was adopted by U.N.  Assembly on 10th December,1984 and  entered into force on 26th June,1987 continues to haunt us, though succession of Central government   consisting  of   almost   all   political  parties (so much for our commitment of political parties to Human Rights) have been in power at the Centre.   

The increasing incidents of torture and deaths in custody have assumed such alarming proportions, that it is affecting the credibility of the rule of law and the administration of the criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder every day.

According to the National Human Rights Commission’s 2004-2005 Annual Report (the latest one to have been made public), there were 1,493 custodial deaths including 136 deaths in police custody and 1,357 deaths in judicial custody during 2004-2005.

The Supreme Court in D.K. Basu (1997) has said Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law. ”Custodial torture” is a naked violation of human dignity.

Meeting the challenge of terrorism requires determination, proper utilization of intelligence information and the support of the public – not these draconian laws, violating the human rights of citizen.

The continuation of death penalty in India is a continuous violation of human rights. World opinion is now strongly veering round to the abolition of death penalty.

So far 133 countries, from all regions of the world, have abolished the death penalty in law or in practice and only 25 countries carried out executions in 2006, a recorded 1591 executions compared to 2105 in 2005.

Is it not embarrassingly shameful that our land of Lord Gautam Buddha, Lord Mahavir and the apostle of non violence, Gandhi who openly  proclaimed  that,  “I cannot  in  all conscience agree to anyone being sent to the gallows. God alone can take life because he alone gives it” should present such a negative face against Human Rights which embody Right to life.

It is now universally accepted that poverty is the worst form of violation of human rights. According to UNDP Report of 2003, Indian society is highly inequitable society where richest 10% consumes 33.5% of  resources  and  poorest  10%  gets only 3.5% of resource.  Around 233 million people are chronically hungry. 77% of Indian population has capacity to spend Rs. 20 per day – a picture of stark misery. 

As it is, United Nation Millennium Declaration of Reducing Poverty has been shifted from 2000 to 2015 (the mid-term review suggests that even by 2025, India may not be able to fill the goal.) The government’s uncalled for commitment to globalisation and mammon of capitalism is a saddening feature. To place implicit faith in globalisation to help remove poverty and social justice is to ignore the obvious reality.

Over the past five years, relative corporate profits within capital changes  to GDP have shot up to an estimated 9.1% in 2007 from 3.7% in 2002, while the wages to GDP have declined from an estimated 88.7% to 31%. According to World Bank data, India’s poverty  rate  (share of population living below $ 1 per day in PPP terms), is 370 million people.

Democracy requires vibrant, positive Legislative bodies, an independent judiciary and a vigilant executive. Let us see what the Legislatures are doing to advance human rights. In my opinion its record is rather dismal. A legislature – honest and sensitive to public opinion is the basis of protection   of   human   rights.  Unfortunately,  broadly   its  functioning   is detrimental to advancements of Human Rights, which necessarily includes honest, public oriented legislature and executive, dedicated to the welfare of the masses.

Thus, people’s anger at criminalization of politics, (in fact it is politicisation of criminals) when ignored by the Legislature found a sympathetic ear in Judiciary when it held that right to know mandates that all candidates disclose their involvement in criminal cases and their assets in their nomination papers. Though the court had only asked for information, this harmless action invited total unanimous criticism from all political parties. Notwithstanding that this disclosure has now to be made public, such is the contempt for public opinion that in Delhi election taking place, 91 candidates have pending criminal cases against them (with Congress, B.J.P. having 19 each, and B.S.P. 15). Can our democracy be safe in such hands. That a situation should continue notwithstanding the danger posed by it, as pointed out by no less than Vice President of India while speaking at All India whips Conference thus; “Most important issue of concern today is the decreasing credibility of our legislatures as effective institutions capable of delivering public good and contributing to effective formulation of laws”.

“Exactly 23% of MPs elected in 2004 had criminal cases registered against them – over half of these cases could lead to imprisonment of five years  or  more.  The  situation  is  worse  in  the case of MLAs,”  failing to discharge its two fold brief, legislate and deliberate, and that the country’s top law-making body had fallen short of people’s expectations.”

The current Lok Sabha has already lost 21% of its time due to disruptions, up from 19% for the 13th House, and that the situation had worsened despite outrage, as the wastage for the 12th Lok Sabha was 10.66% and much less for earlier Houses.

The number of sittings of Rajya Sabha has come down from an annual average of 90.5 in 1952–1961, to 71.3 in 1992–2001, a decline of 20%.

“The annual average of number of bills passed by Parliament has come down from 68 in 1952 – 1961 to 50 in 1992 – 2001.”

“That the upper House which is supposed to be somewhat immune from  the partisan passions of the elected Lok Sabha, has fallen a casualty of the pattern. “The loss of time in Rajya Sabha has been particularly high in recent years. The situation in the states is worse.”

He cautioned that,  “the impact of disruptions remains on the public mind.”

“The treasury benches shy away from substantive discussion of issues of public concern; the Opposition prefers to resort to the so-called Zero Hour only to mention these issues in hyperbolic terms. Deliberation issues reduced to a zero-sum game.”

“Members indulging in disruption possibly do not understand the implications of being paid, full-time, public servants.”

The speaker Mr. Som Nath Chatterjee is even more specific when he worried the members of the Parliament thus; “You are all working overtime to finish democracy in this country …….It is a matter of great sorrow……on the one hand, you are asking for more sittings…so many notices have been given by so many honourable members. These  important  matters cannot   be   discussed.   The   discussion on   the motion of thanks on the President’s address is to start today.” Mr. Chatterjee said in the Lok Sabha regretting, that the members were “not willing to work”.

For  decades there has been a demand that Parliamentary privileges should be   codified.    M.  N.  Venkatachaliah     Chief     Justice   (Retd.) Commission recommended it as an urgent measure. But Parliament has not moved – if the privileges are codified, courts will be able to supervise it and the actions of small time politicians legislators, strutting about beating passengers in railways or hauling veteran journalists for alleged breach of privilege, will have their wings clipped .No wonder Parliament does not move.

A question of great political morality is pending in the Supreme Court. As is well known, the immoral practice started by late Prime Minister Shri Rao to give personal benefit to each M.P. – one crore every year and (which has now been doubled) – it is costing the public exchequer thousands of crores every year, because State legislators and at some place Municipal Corporations are also the beneficiaries.

A legislator has no special status as against an average citizen apart from   what   he  may  enjoy  as  a member of the Legislature. Public revenue is not the personal property of a government that it can be distributed like fiefdom. Governments at the Centre and States are not Jagirdars that they can distribute State revenues as largesse to whomsoever they like. These are public funds and can only be spent as provided by the Constitution and laws. Any other mode of spending, like the above scheme, will amount to misappropriation and breach of faith by the Ministers.

There is a public outcry against this not only immoral but illegal practice. But legislators have ignored this with contempt. Matter is before the   Supreme  Court  –  it  has  to  give  a  decision  – if it goes against the legislators, I am quite sure it will start a storm against the judiciary – but can you blame the judiciary for doing its function.

The menace of communalism is on the rise. It is a matter of profound shame that we still witness riots and terrorist violence in the name of religion. Communalism still stalks our land. All over the country we see different religions veering towards fundamentalism. The growing trend of communalism is tearing the unity of our country and posing a grave threat to India’s integrity. Different kinds of communal organizations and  religious  bodies  are raising their ugly heads all over the country. It is my belief that those who talk of a State founded on religion are working for the disintegration of India and are violating the letter and spirit of our Constitution.

There is no automatic instrument to protest human rights. It can only be done by a civil society and of Human Right activists to give their utmost for its protection.

The recent world financial crisis has blown off all the boast of capitalism. Even General Motors U.S.A. which used to flaunt unashamedly its motto “what is good for General Motors is good for the USA” is now begging the USA government to bail it out – which in all equity the government should not. For the same reason, Indian government should not heed the demand of Indian captains of industry to create special funds for their assistance. May be the Finance Minister Mr. Chidambram is inclined to do so, but then he will be doing this against the very humane advice given by Sonia Gandhi, the Congress leader, namely “the poor should not become victims of the greed of a few rich – businessmen and bankers”. But to follow this advice, it would require a change in economic thinking of all those espousing globalization (both in this country and abroad)   who   still   maintain   that    crises    will    pass  over through the mechanism of market. How grievously wrong they are. As stated tersely in H.D.R. 1999  “the benefits of globalization in the past decade have been so unevenly shared that the very word has come to acquire in certain quarters a pejorative tinge”. Market is never friendly to the poor. 

A believer in human rights has to have anger and compassion – anger at injustice, compassion for the downtrodden. Realism must spill over into the study of human rights. A study of the human rights perspective in India can no longer be the concern of researchers alone.  Along with research, there must be firm action against the violators of human rights. It is the sincerity of this effort that will determine the commitment to human rights.

I would be less than fair if I did not share with such progressing audience my disappointment at West Bengal Government at its lack of sensitivity to human rights violations pointed in Jadavpura University enquiry Report where the police was castigated at its illegal action. The result was the much more serious and indefensible human rights abuses at Singur and Nandigram. The lesson we must all learn is that it is indefensible   to   condone   human   rights violations, because condonation makes it easier to commit further excesses – a situation unacceptable in our democracy.