SOUTH ASIA AND UNLAWFUL GOVERNANCE
Daya Varma and Vinod Mubayi
Arbitrary arrests, prolonged detention without trial, torture in custody, murder in fake encounters and indiscriminate firing on legitimate protests are such a common feature in South Asia that often enough reportage of any of these is hardly noticed by the citizenry with any degree of concern. The official responses, especially to some secessionist movements, such as the ones in Sri Lanka, Baluchistan, Punjab, Kashmir or the containment and repression of movements of the minority communities like the Chakmas of Bangladesh or the Adivasis of India were achieved and are being achieved by use of force which is illegal according to the laws of the land.
An essential element of democracy is that all actions of the government abide by the stated laws of the country. India, which abides by parliamentary democracy and elects its governments with one of the most elaborate and painstaking electoral processes currently existing, has consistently violated its own rules in dealing with the Khalistan movement, the Naga and Mizo struggles for independence, the Kashmiri struggle for self- determination, the struggles of Adivasis for retaining traditional control of forest resources and, above all, the Maoist movement. Similarly, Pakistan has consistently adopted lawless methods in dealing with the struggle of the Baluchi people, while Sri Lanka used military methods alone in suppressing the demand for Tamil Eelam.
The principal instrument of lawlessness in South Asia at the time of independence from British rule was the police carrying on the legacy of the Raj but with greater impunity. It has gone on ever since at an increasing scale through all the governments in India from Nehru to Manmohan Singh as well as the various military regimes that have ruled Pakistan for much of its political existence. Indeed the lawlessness of the police force is at the core of many if not all illegal practices within South Asian societies. In the years since independence, more instruments of lawlessness have been added in the form of paramilitary organizations such as the Central Reserve Protection Force in India or in the use of the military force to deal with social and political opposition.
This is not unique to South Asia but the total absence of accountability is characteristic of all governments of South Asia and almost all the third-world countries which gained independence since the late 1940s.
However, India is held as a model of democracy among these countries and justifiably so. Therefore, it must reign in its own instruments of governance from committing lawless activities. It is true that all the violent movements like those of Nagas, Khalistanis, Kashmiris, Naxalites and, lately, Maoists commit arbitrary acts consisting of illegal murder of civilians, damage to public property, extortion of money and brutality against the organs of law and order. But government cannot and must not resort to totally arbitrary methods of arrest, torture, imprisonment and so on because all these corrode the very foundation of democracy. Nor should government legalize clearly illegal provisions like immunity to the army through the Armed Forces Special Powers Act in India or similar provisions in the other South Asian countries. These provisions amount to nothing more than providing a legal cover to counter-terrorist actions and, in the end, only succeed in breeding terrorism. When the British Raj established Preventive Detention (PD) in India to repress the freedom struggle, a consistent demand of the left, led by the undivided Communist Party of India (CPI), was to do away with PD. After independence came, not only was PD not done away with, it was, instead, widely expanded with a whole host of new “laws” that justified illegal arrest and worse. Zia’s regime in Pakistan brought in a whole host of noxious ordinances such as the “hudood laws,” while even the earlier democratic regime of Z. A. Bhutto was sullied by the “laws” passed against the Ahmadi community.
A large part of illegal actions by the police takes place against vulnerable minorities in what are known in South Asia as “communal conflicts.” Generally, these conflicts, which sometimes amount to sheer pogroms, are perpetrated by politicians who use (or misuse) majority sentiments to stoke passions against minorities. The police are then used to kill, injure, or arrest minority populations and their actions are justified in the name of “controlling communal riots.” The result is to drive a few members of the minority to desperate actions, which brings further police retaliation in a vicious cycle.
South Asian countries continue to witness many movements of a more or less democratic character; the latest in India is the upsurge among the urban middle class against monetary corruption led by the alleged Gandhian Anna Hazare. It is doubtful if monetary corruption can be stopped by new laws when there is already a whole library of them on the books, or by new quasi-governmental organizations such as the Lokpal when the government has multiple anti-corruption and vigilance agencies devoted to the same task. However, what is needed is a sustained movement against illegal acts by the government machinery, which can reduce and ultimately stop such activities by raising public awareness that arbitrary and patently illegal actions by the armed sections of the government machinery underlie many forms of corruption. The left parties in India have failed to defend Indian democracy by launching a movement against arbitrary acts by the police, security forces and the army. At best they trail behind some of the liberal forces. They would be well advised to take up the banner that animated their predecessors in pre-independence times in the movement against PD.
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