14. Encyclopedia article_M Jha

14. Encyclopedia article_M Jha - DAVID P FORSYTHE EDITOR IN...

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Unformatted text preview: DAVID P. FORSYTHE EDITOR IN CHIEF ________________._...———-———-' VOLUME 3 index on Censorship—Minority Rights: Overview OXFORD UH IVERSI‘l’Y PRESS Zflflfl INDIA FROM lNDlRA GANDHI’S EMERGENCY it}t M'ttmnnn lint 'rtl" “‘5 J"- 1'? ~12" til-rounded optimism and expectation existed when lndia became an independent rtstinn till 15 August 194?. after nearitr 15U tears of British rule. it was uricleit.r assumed that because colonial rule was now over. the abuse of citizens Would he a thing n!" the past. Uncr the democratic political system was created. there was rela» titre indlflierence to rights issues for nearly two decades. Discontent grew gradually. hecrrrntng once] as the truirs of development did not accrue for all. anti H-h groups lighting lot The rights of traditionally oppressed peoples were systematically suppressed. Hp the late 19605 the discon tent was visible. State power was at its ntosr oppressive during, the Emergency tss Tune. HE'S-21 Much 19??“1 imposed by lndira Gandhi. The trauma ui'the Emergency was a watershed in lnritan political culture. giving rise to greater human rights consciousness among large sectors of citizens and transforming it into a matter of public discourse. this article examines the legacy ul Lite Ernergenc‘tr as it has impacted human rights and democratic governance in the country. 'lhe first part intrntlnees Indira Gandhi. locating the l_-'rrtergenctr in the political processes of the earl}.r 19?tls. and promotes a brief ionic at the politics since then. the second part focuses on the mnnitut‘tonai frame work of human rights and some of the significant changes. includingjudicial activism and freedom of the press. The third part details some issues of gni'ernmicesnd the role of securitir forces. The fourth part examines rights con cernsnith respect to'vulnerahle sections of the population and notes some emerging issues. The fifth part deals 1with the government response to international and domestic concerns regarding human rights violations. The entr}.r concludes in; suggesting that public “161111qu of the es.- ce's'se's of the Emergency provides a mini-ration tior sus- taining detrtocmcjr and human rights in atflthtT‘ii'ial has aptly been-described as a “fimefionai ansrehp.‘ c. e f .x r. .r .‘q.'_ Pi_ll.ITICAT. TRANSFORMATIONS LJI‘iliJli-lt ii'tiilllirl. GANDHI nth-TD BEYUND lncltra Prn'adarsrni Gandhi sewed as the prime minister of indie for nearly fifteen years. lrottt 19 January tiles to 24 March 1111?? anti again from 1.4 January 1950 to Lil Uctoher What. When she was assassinated by two of her bodyguards. lier grandfather. Mollie]. Nehru. was it prom . merit leader of the anlmn National Congress {which came to he knmen as the Congress Party or mil} that led the. freedom movement against the Btltish. and author of the i923 report that put itirtlt a blueprint for a Future [r'ttiirtn government containing a set oi fundamental rights. Her father. Iawaharlai Nehru. was the first prime minister of independent lntlia [I‘lfl-i'ilti-ti. Her son and chosen po— litical heir. Sanjay Gandhi. washer heir adviser during the Emergent-tr. After Sorting.- died in an air crash. her elder son Hater Gsotihi. initially reluctant to enter politics. Succeeded her as prime minister (193-1- 1939). lndlra's fan-tilt-r poitttcal legaey [ires on in Rajiv‘s widow. Sonia Gandhi. art itaiian—hnrn. naturalised ludi-an citizen. 1echo heads the Congress Party {i993 onward} and her son Rahul Gandhi. a member of the parliament since 21.11.14. there are several dynasties in the political spectrum of indie. but the Heh rut-Gandhi taiuiiy remains the foremost political one in the democratic. republic of indie.- Tire Emergenqt During the parliamentary general elections of Pfibi'lial'j.’ 19‘51. Indira Gandhi’s slogan gnritri Fierce {remove pov— erty} captured the popular imagination. and she won a tremendous mandate. in order to advance the avowed social agenda of her grrrernrrient.I she used her strong prariian‘uo‘ttantr trtst‘ioritgtr to get her was. pushing through a series ofharsh hills and ennsu‘tnu'onal amendments with little discussion or debate to secure more power for the INDIA raon inertia (iaon-tt's Estesosnrr government. She was convinced that. the fundamental rtghis'guatanteed in the constitution were bottlenecks to the Social polities-that she was eager to implement. She was not averse to restricting the scope of fundamental rights or eroding the independence of the judieiury and freedom of the-press to achieve her agenda. Her hostility toward the iudictary was evident in her throat. which was. actually carried out. to- supersede judges ol— the Supreme Court of India who were not willing lo accede to her vial-res. Dev Kant Banish. president of the: Congress Party. declared: "tndira is india and India is infirm." 'i'he authoritarian tendencies of the ruling canyon Party. especially in the personality and policies of Indira rLiandhi. which favored centralisation of power and illth- eral policies of the government. led some well-linear: and respected public figures such as layapraltsah Narawta. popularly called “JP.“ and Acharya I. It. Knplani to speak publicly against her politics and policies. tanning them dictatorial and antideinocratic. They also led anti sup. ported popular protest movements. These came. to a halt when most of the leaders and activists were detained wider preventive laivs follcrtvittpr thtI declaration of Emer— gency. Among those arrested were ]I"'. Kriplani. and nev— cral opposition leaders who would hold high government positions in later years. The catalyst for the imposition of the Emergency was a June 19?5 decision by the Allahabad High Court that found Indira Gandhi guilty ofusing government machin— ety during the tllfl eleCt‘lon campaign. On this technical groimd. the court ordered her to vacate her sent in the parliament and banned her from contesting elections for six years. Although indira Gandhi appealed the decision. opposition parties called for her immediate resignation. Strikes and protest rallies were organized by worlters’ onions and political parties. JP called on the police and army to disobey orders if asked to tire on an unarmed public. Gandhi advised the president. Falshroddin rhII Ahmed. to declare a state of emergency. claiming that the-strikes arid rallies were creating a state of “internal disturbance?" The president did so under Article 352 of the-constitution. The declaration of lhnergency was legal. but the manner of its imposition was highly dubious and has been a subject of much criticisrn. The tropositiodof the Emergency was also a ploy on the part of Indira Gandhi to save her parliamentary seat and leadership position, a ploy that resulted in a severe setback to the democratic procr'ess. The Emergency lasted nineteen months. Strikes were banned: the police and army were ordered to break up protests. Dissent was not tolerated: opposition leaders were arrested, political acttiasts unprisoned. Censorship was imposed. Slums were demolished. and thousands rendered homeless. The notorious family planning pro" gram imposed a forced vasectomy on thousands of men. some ttot yet married. Elections were indefinitely post- ported. and trots-Congrats state governments dismissed. Slogans such as inestetrt lotto. heart-t Lynda (tall: less. work more} were displayed everywhere. Driven by fear. civil servants arrived at their offices on tints. Miracttlottsly. train service. known for its delays. turned punctual However. resentment abounded in every corner of the nation. fin l3 Ianuary ll??? Indira Gandhi announced that new elections would be held. She dld so partly under domestic pressure and partly under international pres» sure. hut mintly misguided by intelligence reports that :Lssuttal her of certain victory. tradition politics and the expansion of democratic Spliteh in the tilt? general elections. several opposition parties joined hands to term the Innate Parry (People's Party] and defeated the Crittgtess Party. a party long associated with the national movement for independence and that had governed India since independence. Llentocracy' ti'tr umphed over dictatorship. However. the coalition laoata governments. led by Ivtorarji Decal from is March 151?? to All Iuly I95”) and Cltflt'flit Siogh from 23 July it??? to H January tssn. were torn by dlssention and unable to provide a stable government. in the general elections at 193th the Congress Party retumed in power with a landslide majority. Indira Gandhi soon dismissed nine state governments on the grounds that the governments ruled by non-Congress parties had lost the. mandate of the people. Site used Article” 356 of the constimtion that provides-emergcncy powers to the union Entrainment to assume mcutlvo and legislative control of the federal states on the hasls of "the failure of constl ttttior-al machinery” there. This Was a gross misuse of emergency power. In S. R. Son-mini it. the Union oflrtdla [1994}. the. Supreme Cttul'l uphold The position that this power was an exceptional one and ought to be used only in special situations. The-judgment also laid ”down binding principles. Since then ruling gtwerrtrnents lu India'h'ave shown greater restraint in itivoking'such power. The IEISt'Is helonged to the Congress Party. Alter Indira Gandhi‘s assassination. her son Eajlv became the prime- minister from it October 193-]: to 1 December 1939. Toward the end nt'hls tenure. there were allegations of Tania sans: lupin-a Gaunul's Estsaorucr corruption. especially in the purchase of Bole-rs guns for the army: The permit leading the attack was ‘5'. P. Singh. a sacked minister in the Eajiv Gandhi government. in the 1939 general elections. Ringlt formed an alliance. with truth left~ and right-wing parties. and iron with a slender ma— jority. 'i'he Congress Party relurtted to power once again in 1991'. in 19% it lost power to the right-tiring l-lindu nationalist party. the Hharatiya lenient Parrot [HIP]. and other political groups until 2on4. when it reascended as a coalition partner under the tinder-ship oi Sonia Gandhi. h is notewotthy that prior to the Etnergencir. there was virtual single-party rule. The I97? elections ushered In a new democratic order. providing ample space to other political parties and formations. The image of the Lion- gress Party as a representative voice traded. giving rise to coalition politics that has endured. 'l‘l'lll FRAMEWORK UP HUMAN RIGHTS the lnttian on nutrition is the longest wrinen constitution in the world: it is a comprehensive document. containing 447? articles. and divided into to parts and it edit-didm. 'l'he human rights traineworlt is primarily set truth in the preamble. Part III that lists fundamental rights. and Part N that enumerates the guiding principles of state policy. The preamble also outlines the basic structure of the constitution. laying out the aspirations of the people and serving as- a guide for the interpretation of the constitu- tlon’s provisions .‘io'eng'tiiem'ng fimdomentul rights. Fundamental rights are enhirceahle o1 justiciahle in India’s ilederal high courts and the national supreme court. The provision guaranteeing use oi the courts for remedy in tlie'instanoe of human rights violations is itself a fundamental right. Some of the other important rights outlined in the constitution are the right to equality- {Article 14}, the right to Freedom ol'speech and assembly [Article 19], die right to life {Article 11], and the right to religious IchiliIessivnr't {Article 25]. The courts have inter- preted Article 21 quite lihemllp,_ deciding that it means every itidi‘ttlduttlls right to live With dignity, tutti they have also donated other rights not necessarily included in the crtnatilullol‘t to the status fife fundamental right. Articles 36 through 51 are the guidelines that direct .l'l'le state in upholding the welfare nf'ita cilizcens. Many of the important directives empower vulnerable segments of anxiety. These provisions. however. are tint judicially? enforeeahle and can only be implemented through legis- lation. The'courts have expanded the scope of these guid- hig principles hy developing the view that no conliict exists between them and lndian cltirens' fundamental rights: they complement each other. For example. in I. P. L'nniicrislmun v. the Store at :tndlira Prudent: {that}, while interpreting and expanding the scope of dirticle 45 the Supreme Com-t held that free primary education for children up to the age of fourteen eras a fundamental right under Article El. This led to the elgltt'fi'shtth constitu- tional mendment tantra] matting education for all chil- dren between six and fornieen years ut' age a fundamental right. Stitch judgments have sought to recognize dirtlt'lei-t as through 51 by giving'thern legal authority. it might appear that stilirerting fundamental rights would he difl'lcult. hilt the Emergency was able to do that rather easily. in a much criticised ruling. the Supreme. ltinttrt decided in april [Wei that italic-as corpus PEl’ll‘ltIT'ltt for tlre release of detainees could not he filed during an emergency. Since then. however. the Indian courts have jealously guarded the fundamental rights of cltirens. During the lanato regime. the tiirty-t'ourdi constitutional atrieudntent tiara] specified that Articles It) and El guar— anteeing the basic right to life cannot he suspended even in an emergency. “this is consistent with international law on human rights. specifically the International Covenant tilt Civil and Political Rights-i {ICCPE}, to which India is a party. A national emergencyr was first imposed in India under Article 3:31 during the Sine-Indian conflict from ilo tictuher 1951 to ill Ianuary lane; another national emer— gency was imposed during the Iodo- Pakistan conflict From 3 December 19?1 to El March 19'”. Both these emergencies arose as the result ol international armed conflict, unlike the Emergency imposed by indlni lGandhi From 25 lune PETS to 21 March I??? on the grounds of- "internal disturbance." After the flirty-fourth constitu- tional amendment was adopted in i‘i?d,it was no longer Intro-tilde to declare an-ettiergeney merely on the grounds of internal disturbance. which dents not constitute an “armed rebellion." a. proclamation of emergency can only he made if the nrnnn council of ministers- headed by the prime minister recommends. in Writing that'such a proclamation he issued. During the Emergency: the fort} — second erriendment {ll-lilo} had made the proclamation of emergency immune from ludiclal review; however. the forty-fourth amendment avers that the proclamation may he judicially questioned. The amendment also in- cludes- provisions for stricter ntitTna of parliamentary ml lat-titer l-‘Riilltl Iwutnnfianufit's EMERGEhCY control relating to the approval of the proclamation and the procedure for revocation of an emergency. Since 19?? a national emergency has not been rmposed. Judicial activism and access injustice. The constitution delineates the separate pmvers oi' the legislature and judiciary. Although the parliament has the right to amend the constitution. that amending power is restricted as the courts have the power to strike down any law as invalid if it is contrary to provisions of hurda» mental rights. in this content. the ”basic structure" doc- trine. as established in Kcsnvnnarvri lllturti v. the State of Kerstin tit-iii}. ltas become the bedrock of constitutional jurisprudence in india This doctrine states that features Inaltiug up the basic structure of the constitution cannot be amended. Prior to this judicial pronouncement. the power ot the parliament to arnetrd the constitution was unrestrained; since then. however. ilris power has been curtailed. its what constitutes basic structure has to be decided on the merits of each particular case. the courts enjoy almost unbridled powers of judicial review. How- ever. there was a loophole in the law lat-cause the first constitutional amendrnent tilt-31} had created a separate section its the constitution. the ninth schedule. and pro vided that arty legislation incorporated into this schedule could not be challenged on the grounds that it violated the fundamental rights of citizens. This loophole W35 undone in i. it. {killer‘s v. the State of'l'cttnii Nadir litiflFl. in which the Supreme Court ruled that laws incorporated in the ninth schedule after 24 April 1933. when the basic doc- trine was enunciated. would be subject to judicial review. 'i'hus. the powers of the courts to protect fundamental human rights have been further strengthened. at. significant mechanism of judicial intervention is social or public interest litigation. The foundation for this was laid in the IBTDs and expanded in the 198m. The constitution provides that any person whose fiutdamental rights have been idolated can directly petition the high courts or Supreme Court of India. However. access to justice has long been a problem for the vast majority of indians as only an aggrieved person could approach the courts. for redress of injury. This question was addressed and resolved in People's Union for" Democratic Rights v. the Union of India [1932}. popularly known as the ”fistudlr case. justice P. N. Ehagwati delivered a landmark judgment. assorting that any member of the public could petition the court for relief if the victims of abuse could not afford to approach the court themselves. or if the matter related to a larger question of public intenest. This has enabled citizens and rights organizations to taice up the cause of victims and petition the courts on their behalf. Public interest law suits have been greatly successful in bringing justice to many whose rights were- being violated. and who for reasons of illiteracy. povertyi or other social circumstances were unable to file cases themselves- Nevertheless. success has also brought some pitfallsc Reacting to allegations that pttblic interest claims were being abused by those seeking to harass others by initiating frivolous cases. the Supreme IL'lout't isstred guide- lines to regulate such submissions. Freedom of tire prises. During the Emergency. several institutions including the media tailed the country. L. it. Advani. one of the jailed leaders and later deputy prime mother. is said to have remarked. "When you were asked to bend. you crawled." The media usually accepted official explanations. Since then. hotvever. the media has generally covered cases of rights abuse or matters of publtc interest with enthusiasm. Cable television. especially the private channels that sprung up after the mid-199th. have regularly drawn attention to violence or corrupt practices. liovrever. cri- tical or urvesttgative journalism has also been a target of government vendettas. For example. in the titans. at’ter Arun Shoutie. working for the tuition iiirpress newspaper. uncovered a series of scandals involving government htnchonaries. almost three hundred legal cases were in- stituted against the newspaper by various agencies. Simi- larly. when the weekly magazine 'i'eiteiira blew the lid oi‘f conuption 'ur dellense deals. implicating senior officials and politicians with a hrddenrcarnera sting operation in Ell-ill. public outrage followed against state officials. but two of die publication‘s journalists were arrested and harassed. By and large. though. freedom of the press contains protected. A deternuned campaign led by orga- nizations-such as the Masdoor ltisan Shalcti Sangat‘iran {Organisation for the Power of Laborers and Farmers or MESS.) ensured the passage of the potverfiri Right to lnibrrrtation Act of Zillifi that helps citizens secure infor mation pretr‘lrttiusljr inaccessible. lSSLiES IN GOVERNANCE A high level of corruption is the curse of governance in indie. pert-trotting all sections and walks of life. 'i‘ranspar- ency international ranks indict as one of die most corrupt countries...
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