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THE Right to Information in Indian jurisprudence has largely evolved as a concomitant of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Remarking on the significance of the right to information the Supreme Court observed: ‘One-sided information, disinformation, misinformation, and non-information all equally create an uninformed citizenry which makes democracy a farce where the medium of information is monopolised either by a partisan central authority, by private individuals or by oligarchic organisations...'1 In recent years the initiative for the right to information has come from groups and communities demanding from the government, its agencies and departments, disclosure about their activities and more specifically the allocation and utilisation of public funds and public goods. The right to information was thus closely linked to issues of good governance and transparency, essential components for a vibrant democracy. As the Supreme Court has held, in modern constitutional democracies, it is axiomatic that the citizens have a right to know about the affairs of the government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.2
However, the sine qua non of a vibrant democracy is the assurance of security of the life and liberty of all its citizens. Since independence, the Indian nation state has been challenged by political movements for identity, autonomy, secession, dignity and justice. These struggles have been waged in the northeastern states of Assam, Nagaland, Manipur, Mizoram; in Kashmir since 1989, Punjab in the mid-eighties and Andhra Pradesh. The Indian state has responded by introducing harsh measures, curtailing basic rights and fundamental freedoms of citizens. Rights and freedoms are placed in abeyance as the army, para-military, police or any other security force armed with arbitrary and excessive powers unleash the might of the state. In this context the right to information is inextricably linked with the fundamental right to life and liberty guaranteed by Article 21 of the Constitution.All these regions have reported a high incidence of ‘enforced disappearance' of human rights activists, journalists, farmers, workers and other ordinary men, women and even children. The ‘disappeared', in international law, are people who have been taken into custody by agents of the state, yet whose whereabouts and fate are concealed, and whose custody is denied. These disappearances are the starting point of illegal detention, torture and custodial killings. According to the Report of the UN Working Group on Enforced Disappearances, this practice has expanded to 63 countries across the world ranging from Argentina, Chile, Brazil, Egypt, Sudan, Ethiopia, South Africa, Iraq, Sri Lanka, Indonesia, former Yugoslavia, Mexico and India.‘Some men arrive. They force their way into a family's home, rich or poor, house, hovel or hut, in a city or in a village, anywhere. They come at any time of the day or night, usually in plain clothes, sometimes in uniform, always carrying weapons. Giving no reasons, producing no arrest warrant, frequently without saying who they are or on whose authority they are acting, they drag off one or more members of the family towards a car, using violence in the process if necessary.'3 This is often the first act in the drama of an enforced or involuntary disappearance that is today acknowledged as a crime against humanity.These disappearances shatter and disrupt entire families leaving them interminably in despair and suffering and often economically destitute. Family members run from pillar to post, for years scouring for any crumb of information about their loved ones. The victims are cut off from the world and placed outside the protection of the law, often subjected to torture, and many are never seen again, missing. Their relatives are kept in the dark about their whereabouts or condition, driven to ask, ‘if they are dead, tell us.'4The security forces employ the mechanism of disappearances for a range of reasons: some are arbitrarily detained in crackdowns to frighten and terrorize communities, others are picked up for alleged links with insurgents, as a punitive measure, as a means to extort money from families for the life and security of the abducted. Disappearances is a potent tool of intimidation, as months and years of enduring hope and despair may render families ready ‘to do anything if only he comes back alive', as some mothers have said.5There is a complete blackout of all information relating to the well-being and whereabouts of the disappeared person. All attempts to obtain any information through personal or official, legal channels are obstructed and systematically stonewalled. Families spend time, money, energy and emotion seeking rudimentary information about place and cause of detention. Impeded by lack of knowledge about law and legal procedures, economic disabilities, threats from security forces and equipped only with sketchy, insufficient, vague and at times inaccurate information, families spend lifetimes searching for sons, daughters, fathers and brothers. Perhaps in no other circumstance can the phrase, ‘no news is good news' be more cruel and injurious. In this circumstance, availability and access to information may well make the difference between life and death, both of the person who has disappeared as well as the family left behind.During Operation Rakshak, spearheaded by former DGP K.P.S. Gill, Punjab witnessed a sharp increase in disappearances. Jaswant Singh Khalra, Chairman of the Human Rights Wing of the Akali Dal, uncovered and placed before the Supreme Court the incident of 2097 illegal mass cremations by the Punjab Police in Amritsar district between 1984-1994. Thousands of families groping in the dark for clues about their abducted family members, were misinformed by the police that these young men had left for foreign countries. These families were unable to secure any information about their missing relatives, either during their lifetime or even upon their death, as their loved ones were cremated as ‘unidentified and unclaimed.'6 Even as families of the ‘disappeared' in Punjab, through the Committee for Coordination on Disappearances in Punjab continued their arduous journey for the discovery of truth and justice before the NHRC, J.S. Khalra was himself abducted from in front of his house in September 1995. After investigation, the police has been charged for his ‘disappearance'.The phenomenon of enforced disappearances in the North East is closely linked to the imposition of a repressive military regime that has systematically eroded all institutions of civil society. In the counter-insurgency operations conducted by the security forces, abduction and disappearances occur in conjunction with other human rights violations, including arbitrary detention, custodial torture and killings. Most cases of disappearance occur when the armed forces arrest and torture alleged suspects or sympathisers to extract information. Many never return from these interrogations. They simply ‘disappear'.In 1983, the Supreme Court in a landmark judgment, Sebastian M. Hongray vs. Union of India,7 in a habeas corpus petition filed for the production of two Nagas who had disappeared after being taken to a camp by the army, concluded that the two missing persons must have met an unnatural death, which prima facie would amount to murder. The Supreme Court stated, ‘... that further adjourning the matter to enable the respondents (army) to trace or locate the two missing persons is to shut the eyes to the reality and pursue a mirage.' The court also ordered the state to pay a one lakh rupee compensation to each of the wives of the missing persons.Since the emergence of armed resistance in Kashmir in 1989, disappearances have been reported, and have been acknowledged by almost every chief minister in Srinagar.‘I went from pillar to post to get any trace of my son but to no avail. I lodged a report in the police station... but the officer in charge refused to register a case. I approached the Inspector General of Police... and at first he assured me that my son's whereabouts would be made known to me but when I approached him again after some days I was chased away. Finally I filed a petition in the High Court and pursued it for some time but could not continue for lack of money as I am very poor. ... My son had nothing to do with militancy... His "disappearance" is unbearable for me. Neither his person is shown to me nor his dead body is shown. This is a horrifying experience for me and other members of the family... I am right now helpless. It is very difficult for me to manage the household affairs. His disappearance has virtually brought us to the level of begging. God knows what will happen to us.' (Haleema Begum about the ‘disappearance' of her son Bilal Ahmad Bhat on 3 December 1992.)8This narrative echoes the trauma of over 2000 families in Kashmir. Bound by the common thread of grief, suffering and uncertainty, the relatives of the disappeared in 1994 formed the Association of Parents of Disappeared Persons (APDP) led by Parveena Ahanger, whose 18 year old son disappeared after being arrested by the NSG in 1990. Strenuous efforts to seek legal redress through habeas corpus petitions in the J&K High Court, and petitions before the State and National Human Rights Commission have all failed. APDP has been pursuing the demand for information about what happened to their loved ones, a need for official acknowledgment, and a quest for justice in respect of those responsible. Even the reporting of disappearances entails grave risks and activists like Jalil Andrabi and H.N. Wanchoo were killed for making these facts public.Disappearances are emboldened by laws that give security forces sweeping powers of arrest and detention, broad powers to deploy lethal force and kill. Security forces operating under these laws enjoy virtual impunity, as they are provided immunity from prosecution. The high-pitched rhetoric of national security and territorial integrity overwhelms public opinion and at times even the judiciary falters in enforcing rights and exacting accountability. Current laws providing legal cover for the disappearances include the Armed Forces (Special Powers) Act, 1958; Disturbed Areas Act; Jammu and Kashmir Public Safety Act, 1978; Assam Maintenance of Public Order (Autonomous District) Act, 1952; Nagaland Security Regulation, 1962, and Section 197 of the Criminal Procedure Code. They are further fortified by executive and administrative orders allocating ‘unplanned' funds, beyond the scrutiny of democratic institutions.The surfeit of powers enjoyed by the armed and paramilitary forces flowing from the special laws and the apparent impunity provided by the Union government by refusing sanction to prosecute, has enabled the security forces to perpetrate human rights violations, including ‘disappearances', over the years. The practice of enforced disappearance of persons infringes upon an entire range of human rights embodied in the Universal Declaration of Human Rights and as set out in major international human rights instruments as well as the Indian Constitution. The Declaration on the Protection of all Persons from Enforced Disappearance9 and the Draft International Convention on the Protection of All Persons from Forced Disappearance, require the Indian government to promptly provide accurate information about detained persons to their family members.For the right to information to gain ground in these circumstances, certain preconditions must be fulfilled. It is imperative that draconian laws and provisions legitimizing impunity, enumerated above, particularly the AFSPA, are repealed and accountability exacted. It would be facetious to talk of the right to information without granting to people in these regions access to information that impacts upon their life, liberty, human security and their very survival. Significantly both the Right to Information Bill, 2004 and Jammu and Kashmir Right to Information Act, 2004, on grounds of sovereignty and integrity of India, place beyond the reach of the people all information sought from intelligence and security organizations.10
It is critical that these are amended and information relating to the life and liberty of people made available, even qua security forces of all hues. In this respect a worthwhile ‘confidence building measure' of the United Progressive Alliance government would be to constitute an independent judicial commission to investigate into all complaints of disappearances in Kashmir, Punjab and the North East.11 Contingent upon the enjoyment of the right to information is not just the efficacy of Indian democracy but the liberty, security and dignity of its citizens and communities.
Footnotes:1. Secretary, Ministry of Information and Broadcasting, Government of India vs. Cricket Association of Bengal, (1995) 2 SCC 161.2. Dinesh Trivedi vs. Union of India, (1997) 4 SCC 306.3. ‘Disappeared: Technique of Terror'. Report prepared by the Independent Commission on International Humanitarian Issues, London, 1986.4. Association of the Parents of Disappeared Persons, Kashmir.5. Amnesty International, India: ‘Disappearances' in Jammu and Kashmir, AI Index: ASA 20/2/99.6. Reduced to Ashes, R.N. Kumar with Ashok Agrwaal and Jaskaran Kaur, May 2003.7. AIR 1983 SC 1086.8. Haleema Begum was shot dead by unidentified gunmen in 1998.9. General Assembly resolution 47/133 of 18 December 1992.10. Section 8 and 21 of the Right to Information Bill, 2004; Sec. 6&8 of the J&K Right to Information Act, 2004.11. Resolution passed at the National Convention on the Right to Information, Delhi, 2004.
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