IN INDIA ARE POOR
(BY-RAJENDRA PRASAD DUBEY)
I distinguish two different meanings, which are attached to the concept of Democracy and Human rights as under: -
Democracy as a particular form of Govt. generally characterized as a capitalist parliamentary or presidential regime, recently described as a form of Govt. based as Universal franchise, multi party of Electoral system and a form of Governmental apparatus, which will be representative, responsible and responsive to the citizens. Recently, Democracy as a form of Govt., according to latest thinking, since thirties is also expected to provide basic facilities and rights to the citizens. But, the basic meaning of Democracy, views, Democracy as group of democratic and Human rights, which are described eloquently in the famous declaration of human rights, adopted by united nations in1998 and which are concretely formulated Into two international Covenants viz, (1) International Covenant on Economics, social and Cultural rights. Theses Rights are considered essential if Citizens are to be empowered to act as active participatory members of the society and state. The first of these two covenants is intended to specify freedom and rights, which would guarantee to every individual, classical or natural rights related to movement, behavior, thinking and choice. The second instrument, which reflects greater Social awareness, covers what individuals should receive from the state. The states as being responsible for material needs, and welfare of its citizens and is expected to provide adequate employment health educational facilities and various other requirements.
Our parliamentarians should assess the problems of Indian democracy, acclaimed as the largest and youngest democracy in the world having one of the most elaborated constitutions and massive state apparatus, which claims to operate according to cannons laid down for democratic state structure. They should also discuss the problems of caste/class/racial ethic, religion, gender, language, unlike industrial and other conflicts and tension which are erupting on countries, situations which have made the problems of "law & orders" for a smooth pursuit of the chosen path of development to curb the democratic and human rights of those who assert for their elementary demands.
Our parliamentarians can realise that the lawlessness of Govt. has reached a stage when citizens are not merely obstructed form enjoying their rights, but are severally punished if they assert that such violations of rights be rectified and criminals duly punished. Governmental lawlessness implies that public authorities, which are supposed to maintain the "Rule of law" themselves, act as criminals do.
Govt. lawlessness thus implies non-adherence to duties imposed by law by Govt. in general or any agency of the Govt. It seems non-obedience, non-performance, or even active flouting of the laws, which are constitutionally, or by duly constituted legal authorities, and for whose proper implementation and observance the public authorities are assigned powers denied to ordinary citizens.
It is my firm conviction, based on my study of the development that is taking place in India, by the state, pursuing capitalist path of development, that Govt. lawlessness has acquired alarming dimension and has reached such bizarre proportions that it is increasingly becoming difficult if not impossible for ordinary citizens to exercise even their limited rights which are given to them by law. Infect, the lawlessness of Govt. has reached a stage where citizens are not merely obstructed from enjoying their rights but are severally punished, if they assert that such violations of rights be rectified and criminals duly punished.
The govt. lawlessness implies that public authorities who are supposed to maintain the Rule of law themselves act as criminals, and, therefore, more dangerous to democracy then violation of law by individuals or group of Citizens, because the govt. possesses powers which are ordinarily denied to citizens.
The Govt. lawlessness flouts the basic promise of any democratic state viz. Public authorities are not masters but servants of the citizens to see that the "Rule of law" properly prevails.
It is my submission that the lawlessness of the govt. manifests itself in so many ways that it has become increasingly difficult for millions of citizens even to perform their day-to-day activities peacefully and in normal legal ways. Further I would like to submit that the various forms and ever expending range of governmental lawlessness is not adequately understood, studied or analyzed to grasp its monstrous implication for even normal day to day functioning of law binding ordinary citizens and for its disastrous impact on democratic and human rights of tolling poor, majority of them.
Most important point is that the governmental lawlessness as manifested in default or deliberates violation or active abetting in non-implementation of laws, which have been actually passed by the state. Government lawlessness manifests itself also very often in the form of the Government directions to the bureaucrats that the provisions of enacted laws may be disregarded sometime even at the point of sanctions with in the bureaucratic structure. While the law is categorical on he point that an administrative instructions can not be permitted to interfere with, or prevail over, statutory provisions, such directions are quite frequently issued and they quite effectively prevail over the statute for the simple reason that, not all these can be brought for judicial scrutiny. The use of administrative direction to statutory authorities is common in routine Government context. Even officials who are entrusted with the task of deciding disputes between the state and the citizens are required to act under departmental directions, often not wholly consistent with the letter and sprit of the law and same lines even in contradiction to the law to the law declared by courts including the supreme court of India. Bureaucrats are not realising even the decision of the supreme court of India, as the decision of supreme court of India is lying down position in law are BINDING on all in C.A. No 2224 of 1984 C.S.E. 1267. It seems that there is no control of our Ministers over the working of the bureaucrats. If this situation remains continue then violation of human rights cannot be stopped and this action of the Govt. is clear-cut violation of declarations adopted by our country in the world conference Human Rights in United Nations.
PROVISIONS TO REDUCE HUMAN RIGHTS VIOIATIONS
(1) It is no part of a policeman's duty to maim or kill and so no sanction would be necessary to prose- -cute him. The immunity extended to public servants will not extend to commission of crimes set out in the penal code. The legislature may, to set the matter at rest, introduce a provision to the effect that where the accusation is of the human body, no sanction to prosecute would be necessary and they will not be regarded as acts performed in the purported exercise on their duties.
(2) The procedure of enquiries by executive magistrates should be done away with. Enquiry under sections 176 should be entrusted to the chief judicial Magistrate in the district and chief metropolitan magistrates in the cities. This would put an end to a lot of Human Rights violations. These may delegate their functions to the first class judicial magistrates. Suitable amendments may be introduced to enable these Magistrates to treat the proceedings under sections 176 as committal proceedings where there is material which prima-facie informs him that death or disappearance has been caused while in custody.
(3) Principle of constructive liability may be introduced so that superior officer may not join to fabricate a case of suicide or help in screening the offenders.
(4) Introducing rules under 309 so that persons accused of offenses are automatically suspended pending trial. This is also necessary to introduce rules holding higher officers constructively liable for Human-Rights violations with punishments raging from withholding of increments and promotions to suspension and termination form service.
I am of the view that public servants who violate constitutional guarantees have no right to continue on the post nor such public servants should be allowed to hold any other post.
BRIF BIO DATA OF WRITER