As discussed in the previous chapter human rights are majorly challenged by threat to national security. Every sovereign state has legal and administrative provisions to protect the rights, human as well as fundamental rights of its citizen. But, a threat to its security and integrity, caused by terrorism or any other agency, challenges the protection of the human rights. India has faced a variety of security issues ranging from terrorism, naxalism, separatist movements, insurgency, etc. Terrorist attacks in India is found to be a constant national security concern and has challenged human rights to a great extent. India has faced continuous terrorist attacks, therefore some scholar believed that it has become an “essence of India’s being”. The state needs to ensure the protection of its citizen from such terrorist acts, Naxalism, insurgency etc.[1]
Terrorism, naxalism, insurgency pose serious threat to national security and thus challenges the sovereignty, unity and integrity of the nation.
When we analyse the extremist acts caused by a group of people who are dissatisfy with the existing government and/or socio-administrative practices, it was found that several regional uprising had converted into movement and gradually became violent which has raised concern to the human rights. Naxalism, a challenging issue, can be traced to the Naxalbari uprising of 1967. The peasants of Naxalbari, West Bengal revolted against the landlords and against the old-age colonial land tenancy system. It is undoubtedly the longest insurgencies India facing over a long duration. Now, the Naxalism has spread to other regions and states of the country like Andhra Pradesh, Chhattisgarh, Jharkhand, Odisha, and also parts of Madhya Pradesh and Maharashtra.[2] The Naxalism affected regions had faced severe violation of human rights caused by both the Naxalite groups and states during counter-Naxalite measure.
The North-East India has been a sensitive region, both in colonial as well as post-colonial era. Immediately after the departure of the British, uprisings had begun in the state of Tripura. Thereafter, it spread to other states of North-East India like Nagaland, Mizoram, Manipur, etc. By the 1980s, the entire North-East region was experiencing some form of violence in the form of riots, insurgent attacks. Furthermore, separatist movements intensified in the states of Mizoram, Nagaland, and Manipur and later spread to Assam and Tripura. It is often argued that these insurgency and separatist movements stemmed from tribal riots and ethnic imbalance in the region.[3]Their demand for separate states persists. For example, The Kuki demand for a separate homeland, which pitted them against the Nagas, drove some smaller clans away from them, resulting in the emergence of a distinct “Zomi” identity. Tribes like the Paites prefer to be referred to as “Zomis,” and their militias have sided with the NSCN against the Kuki militant groups. The Hmars, Lais, and Maras have joined the Chakmas and Reangs in their fight against the Mizos. In Tripura, the Mizos of the northern Jampui hills want a regional council within the Tripura Tribal Areas Autonomous Council to protect their “distinctive identity,” whereas their ethnic kins in Mizoram are wary of similar demands from smaller ethnicities. An attempt of Tripura to impose the Kokborok language on the Reangs in Tripura is resented. And they see the Tripuri kings’ brutal suppression of Reang rebellions as “evidence of ethnic domination that cannot be accepted anymore.”[4]
The region faces insurgencies because of demand for secession and autonomy which are primarily sponsored and lead to ethnic clashes. The conflict was also generated due to the continuous influx of migrants from neighbouring nations and states. The geo-cultural profile of the NE region also helped these insurgents to continue their separatist activities. To achieve their goals they revolt against the central government poses threat to national officials and infrastructures. In this act, many a time, civilians who are not part of these revolts get humiliated and killed and their human rights get violated. On the other hand, the central government also takes strict measures to minimise the damage caused by the insurgents and formulates and imposes laws such as Armed Forces (Special Protection Act) (AFSPA). Through these acts, the armed forces were given authority to regulate the law and order in the region and ensure peace but at the cost of human rights and freedom of people. Considering the sensitivity of the region the national and international laws should synchronise in a manner that the fundamental and human rights of the residents of the region should be addressed properly. There are several factors that fueled the insurgency in North-East India such as geographical isolation and cultural alienation, immigration, underdeveloped economies, central government laziness, and corruption between local politicians and the elite. The insurgency in the northeast has forced central government to deploy the military, which has imposed ascale and complexity of the threat among the NE people as sometime the military exercises are found to be against the human rights.
As we know that being a signatory party to a convention or treaty, the state synchronised its law with it and therefore the extent of the binding nature of international law is not needed to be explained here. Thus, it is important for the proper implementation of international Human rights treaties and conventions that the rights expounded therein be included in the domestic legal systems. In fact, the preamble of the Universal Declaration of Human Rights itself states that the states have an obligation to protect Human rights by way of the rule of law. However, an important factor to be taken into consideration while determining state obligations under international Human rights treaties is whether the state has made any reservation or not. This leads to another issue: how to decide if a state has merely made an interpretative observation/declaration or has made a reservation? The Human Rights Committee answered that it is to be gathered from the intention of the state and not the form in which the declaration/observation/reservation has been made.[5]
The states have free will to decide how international law is incorporated in their domestic legal system. Certain ways in which states do so are as follows,
- Monist theory and automatic incorporation: The monist theory of international law believes that there is no difference between international law and domestic law. This implies that once the state signs and ratifies a treaty, the provisions of the treaty automatically become a part of domestic laws. Similar is the approach for other sources of Human rights laws.[6]
- Dualist theory and specific adoption: According to the dualist theory, municipal or domestic laws are different from international law. Thus, even after ratification, a state has to specifically adopt or incorporate the international law within domestic law for making it binding.
These are just general theories and all states cannot fit into these two theories.
There are various means through which international Human rights can be incorporated into the domestic legal systems. Some of these are as follows,
- Constitution: Various constitutions have directly adopted the language of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, etc. Some others have been inspired by it. Adding Human rights to the Constitution of a state gives them a position in the apex law of the land and therefore, they are given the highest form of respect and do not assume an ancillary role.
- National legislations: These may be used either to supplement the Constitution or to address specific issues or for specific groups of persons.
- Incorporation: The treaties are directly adopted into national law. For example, the European Convention on Human Rights in the United Kingdom has been adopted as the Human Rights Act 1998.
- Automatic applicability: In such states, on ratification, treaties are directly incorporated into domestic laws.
- Interpreting common law: Where international Human rights have not been incorporated in domestic laws by the legislature, they can still inspire and give direction to the courts while interpreting other domestic laws.[7]
India has practice of ‘Adhikar’ since vedic period and every individuals of the society had certain ‘adhikar’ and certain ‘dayitva’ to perform. After independence when our constitution makers drafted the Constitution they inscribe the Indian philosophy of ‘Adhikar’ (or rights) and provided numerous Human rights that have been called fundamental rights and form a part of the basic structure of the Constitution of India. They were suspected that in this culturally diverse nation there is higher probability that the state may fail to understand the aspirations of the people who have different socio-cultural backgrounds and bring back people’s right, therefore they made court of law its guardian. The Supreme Court, and High courts have given a wide interpretation of these fundamental rights so as to include other Human rights within their ambit. The Constitution provides for article 32 (right to constitutional remedies) under which persons can directly approach the Supreme Court if their fundamental rights have been violated. Thus, article 32 is one of the primary enforcement and implementation mechanisms of Human rights (in this case, fundamental rights). Further, as provided by article 226 of the constitution, any citizen may approach the High Courts for seeking remedy against any alleged breach of rights.
Yet another way in which the state can keep a check on the protection, enforcement, and implementation of Human rights is through the National Human Rights Commissions and State Human Rights Commissions established under the Protection of Human Rights Act, 1993. The primary functions of these commissions are to conduct inquiries, schedule visits, and address complaints with respect to Human rights violations.11The human rights commission in India was established with an aim to secure the rights of the oppressed and marginalised people and also the rights of people who speak against government. To ensure the transparency and unbiasedness in the investigation, the commission was made independent and autonomous.The International law such as Paris Principles (1991) and other international workshops on National Institutions for the Promotion and Protection of Human Rights have defined the status of commission. The cases undertaken by the Commission had efficiently protected and safeguarded the rights of the people. The commission, accompanied with judicial system of India has been proved to be an effective tools in protecting human rights. However, it has certain limitations such as a case cannot be taken by the commission after one year of the incidence, the other complaints which commission does not entertain are-
- Complaints with regard to matters, which are sub-judice.
- Complaints, which are vague, anonymous or pseudonymous.
- Complaints, which are of frivolous nature.
- Complaints, which are outside the purview of the Commission.
Since 1993, NHRC have been acting as a saviour of the human rights by supporting the court in finding facts about the case concerned. NHRC has also taken care of violation of human rights due to enactment of National security laws and anti-terrorism laws. India has co-opted the International humanitarian laws and other international laws while implementing the security laws and counter- terrorism laws in India, which can be divided into three categories,[8]
- National Laws (applicable nationwide): This category includes Preventive Detention Act, 1950; Unlawful Activities Prevention Act, 1967; Maintenance of Internal Security Act, 1971; National Security Act, 1980; Terrorist and Disruptive Activities (Prevention) Act, 1985; Prevention of Terrorism Act, 2002.
- Area-specific laws: This category includes laws that address situations in specific regions. The region here implies more than one state. For example, Armed Forces Special Powers Act, 1958 was initially meant for the states of Assam and Manipur. It was later extended to the entire North-East region. Further, it was also invoked in Punjab and Chandigarh in 1983 and Jammu and Kashmir in 1990.
- State-specific laws: These include laws for addressing situations in a specific state. For example, Madras Suppression of Disturbance Act, 1948; Bihar Maintenance of Public Order Act, 1949; The Assam Maintenance of Public Order Act, 1952; The Assam Disturbed Areas Act, 1955; Assam Preventive Detention Act, 1980; Jammu and Kashmir Disturbed Areas Act, 1990; Maharashtra Control of Organized Crime Act, 1999; Chhattisgarh Special Public Security Act, 2005.
For this chapter, only laws falling in the first category, i.e. national laws, have been analyzed since they are much wider in their scope and extent as compared to the laws of the other two categories.
[1]Ravi Nair, “Confronting the Violence Committed by Armed Opposition Groups” 1Yale Human Rights andDevelopmentLawJournal1(1998).
[2]NiranjanSahoo,“HalfacenturyofIndia’sMaoistinsurgency:Anappraisalofstateresponse”198ORFOccasional(June2019).
[3]Bhaumik,Nagas,IndiaandtheNortheast78(1994);
[4] ParthaChatterjee,WagesofFreedom:FiftyYearsoftheIndianNation-State73(1998).
[5]General Comment No. 24, in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments and GeneralRecommendationsAdoptedbyHumanRightsTreatyBodies(hereinafterreferredtoasUnitedNationsCompilationofGeneralComments),p.150,paragraph3.
[6]IanBrownlie,PrinciplesofPublicInternationalLaw34(OxfordUniversityPress,Oxford,1979).
[7]RosalynHiggins,ProblemsandProcess:InternationalLawandHowWeUseIt205(ClarendonPress,Oxford,1994).
[8]ProtectionofHumanRightsAct,ActNo.10of1994,section12.