Homeland insecurity: fear of civil society in world's largest democracy

ISSUES: Right to liberty; freedom of association; freedom of expression; human rights defenders; impunity; legislation; prosecution system; democracy; minorities; caste-based discrimination; threats and intimidation

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the "show cause" notice served against Ms Madhuri Krishnaswami and Jagrit Adivasi Dalit Sangathan (JADS) in Barwani district, Madya Pradesh under the Madya Pradesh Rajya Suraksha Adhiniyam (Madya Pradesh State Security Act, 1990) as well as the constitutionality of the Act in question

A "show cause" notice numbered 876/xxx/2012 was served against Ms Madhuri Krishnaswami on 10 May 2012 by District Magistrate Barwani. This notice demands justification for permitting her to remain in the district when she had been allegedly responsible for disturbing the peace. Although this notice was served to Madhuri in her personal capacity, there is reason to believe that such actions also target a civil society organisation, the Jagrit Adivasi Dalit Sangathan (JADS), an organisation Madhuri leads and against which another "show cause" notice has been served. The JADS is a legitimate people's movement composed of thousands of families, whose collective expulsion would have proven difficult (if not impossible) and expensive for the magistrate to execute, even under Bhopal's instruction. This forced the magistrate to target personalities leading or representing the organisation. It is believed, as such, that Madhuri has been singled out to be made an example of (although this selectivity in itself reveals the absence of true justice in the issuance of the "show cause" notices and the proceedings against JADS).

It is reported that the executive magistrate who served Madhuri the "show cause" notice had been acting merely on the dictate of the state's government, which has decided to use the State Security Act against movements such as JADS. The government stated that "compelling causes" had led them to exercise the Act against JADS and Madhuri; these causes have proven less than completely compelling when subjected to close scrutiny. In an attempt to criminalise her character and shore up support for the state administration's decision, the notice resorts to listing cases in which Madhuri and JADS had been implicated in but acquitted of in the past, as well as to mentioning cases the police have pending against her which have not yet even been presented in court. Such were intended to result in a conclusion or create an impression that Madhuri and JADS commonly carry out criminal activities and would continue to do so in the future. This was designed to justify the state government's position that Madhuri should be banished from Barwani and six contiguous districts.

The reality is that Madhuri has never been convicted of these charges and should not be treated as an offender, much less have such charges used as justification for her expulsion by a state government. This violates spirit and rule of law. The notice also explicitly states that JADS has been "obstructing" government-sponsored development work in the state, although these accusations are equally groundless. The organisation has instead insisted on the proper implementation of welfare schemes and that corruption in the government is investigated and eradicated. The movement has worked to ensure the benefits of welfare schemes reach the tribal communities who have equal right to benefit from such. JADS engages in the education of minority communities and supports their rights, particularly in matters concerning corruption, deforestation, malnutrition, deprivation of just wages and forced eviction. JADS strives to protect the dignity and livelihood of the most vulnerable sectors of society: tribal minorities, women, children, the poor and illiterate. The organisation is therefore a facilitator and stakeholder in the government's initiatives – how and why, then, would they have impeded the work of welfare and development schemes?

Perhaps JADS is feared because it challenges the state bureaucracy's very existence. JADS has, after all, spearheaded (peaceful and perfectly constitutional) protest gatherings against corrupt district administrators who siphon off money intended to alleviate poverty for manual labourers under the national rural employment guarantee scheme. The organisation campaigns against the deliberate neglect of tribal communities by district administration, thus promoting the equality amongst individuals and groups in the community that the district authorities themselves seem unable or unwilling to guarantee. JADS additionally broaches difficult issues of oppression, corruption and abuse of authority; such discourses are seen as a threat to the survival of the local regime.

Beyond the abuse of the Act by provincial authorities, the Act itself is troublingly unconstitutional. It supersedes other institutional safeguards by reducing important questions to a single one of "national security". The oppressive acts by the district authorities against civil society agencies and actors are masked by some supposed concern for public peace and the integrity of the state. Yet the draconian Act is premised on questionable principles and crudely wielded on even more dubious grounds. It permits an executive magistrate unbridled powers to curtail the civil rights of a person, for instance. The executive proceeding may (i) restrict the movements of a person; (ii) restrict the entry of the person to any place within his jurisdiction and areas 'contiguous' to that; (iii) impose conditions upon a person to constrain the individual's freedom of expression and association; (iv) dispossess the person of his/her property; and (v) require the person to sign a security bond. A statutory prohibition in the Act (vide Section 9) further reduces the options available to an aggrieved person, who is made able only to appeal to the state government by order to the executive magistrate. This limits the jurisdiction of courts to intervention only where procedural errors are evident in the executive magistrate's execution of Section 10 of the Act. This Act is patently unjust and, if adequately studied, would fail the test of constitutionality.

This Act negates other constitutional guarantees that otherwise protect an individual from such arbitrary expulsion. The provincial authorities may, in the absence of any proclamation of emergency, restrict the civil liberties of a citizen through a state agent (in this case, the executive magistrate). The Act crucially assumes that the person served the "show cause" notice has already committed an offence. Madhuri, although never convicted of a crime, is assumed anyway to have broken laws to have warranted the service of the notice in the first place. Such circular and self-justifying reasoning is symptomatic of impunity quite distressing to observe, especially at the level of the state.

In the summary procedure stipulated by the Act, law does not require the adjudicating executive officer to write a detailed order reasoning out the judgement. Here, exercise of the Act breaches two fundamental principles of criminal law: (i) presumption of innocence prior to being proven guilty and (ii) impartial adjudication (the roles of prosecutor and adjudicator are filled the same person). As such, no opportunity for defence is provided the accused. This Act accords authorities a form of carte blanche, and is prone to misuse by the authorities thus empowered by it. Thus ingloriously dissected, such an Act is an act indeed, a performance or miming of law which permits puppets in the administration to move, wave and bow to ease the insecurities of a government not robust enough to engage in public debate.

The local government claims this Act is necessary for peace and the prevention of organised crime, yet it serves to inflame more people and generate organised civil resistance, the suppression of which could end in widespread civil unrest. The district authorities do not realise that peace and trust cannot be bought by the trading of lives and liberties, but won through increased transparency and accountability in the government. The government has to realise civil society alone stands against unmitigated violence between the people and a government out of touch with their needs and aspirations. To take civil society out of the equation is tyranny, and tyranny sows seed for a harvest of vitriole, vehemence and violence.

The case against Madhuri and JADS is not an isolated incident. The process adopted by the state is an enactment of a larger pattern of state oppression of people's movements in Madya Pradesh. On at least five occasions, the state has registered a series of false charges against social and political activists, serving them "show cause" notices so their activities could be legally and legitimately (albeit unconstitutionally) stopped. While some cases were eventually withdrawn by state administration, others were fought out in courts. Legislations such as the 1990 Madya Pradesh State Security Act are the government's only response to increased calls for greater accountability and true democracy in India. The reduction of spaces for dissent and expressions of a desire for true democracy mock the foundations upon which India was initially founded. "Show cause" notices are but specific manifestations of the impunity with which bureaucracies behave, and are allowed to behave, toward civil society and the Indian people, and reflect the paralysing insecurity experienced by a corrupt and morally bankrupt state administration.

Fundamental democratic norms demand an individual's right to freedom of expression and association, to freedom of movement and residence within India's borders (Universal Declaration of Human Rights 1948, Articles 13, 19 and 20), but there has been great resistance to the internalisation of such norms within India's bureaucracy. Resorting to the invocation of institutional mechanisms, however inapplicable or unconstitutional, to remove such perceived challenges to the authority and legitimacy of local governments not only fails to silence voices of dissent but serves to further highlight the injustices of such a system. How, in an India that boasts of being the world's largest democracy, may healthy, rigorous dialogue, discussion and debate be waged? And what is the cause of such insecurity in the face of a flourishing civil society?

Instead of demanding to know from Madhuri why she should not be exiled from the region, the district authorities should bear the burden of demonstrating reason to expel her. This answers the most basic premise of "innocent until proven guilty". Once that most essential logic has been grasped, further work can be done to review the State Security Act and assess its constitutionality and validity (against Indian law and international law). Should the Act fail that test, the Central Government and provincial authorities should then work together towards repealing it. The state of Madya Pradesh should also seek to review its own institutions and processes, acknowledging the validity and lawful nature of civil society actors and refraining from persecuting them any further. Only when this is accomplished can the local authorities strip off their insecurities, earn the trust of the people and gain legitimacy for themselves.

I therefore demand that:

1. The background in which the "show cause" notices against Ms Madhuri Krishnaswami and JADS are issued be investigated;
2. The provincial authorities reassure Madhuri and JADS constitutional safeguards will take precedence in future proceedings and that the Madya Pradesh State Security Act, 1990 will not be used to intimidate or threaten them;
3. The provincial authorities attempt to engage their constituents through increased dialogue and carry out measures to protect their land and forest rights as well as their rights to freedom of expression, association, movement and residence;
4. The Madya Pradesh State Security Act, 1990 is immediately and thoroughly reviewed at the central government and state level;
5. The Madya Pradesh State Security Act, 1990 is repealed if found to be unconstitutional

Yours sincerely,