From: dawar@gradient.cis.upenn.edu
Newsgroups: soc.culture.indian,soc.rights.human
Subject: Justice Bains Writes in the Indian Express
Summary: Article by Justice Bains appeared in the Indian Express
Keywords: Justice Bains, Human Rights, Punjab
Date: 24 Jul 92 20:11:16 GMT
Followup-To: soc.culture.indian

The following article appeared in the Indian Express dated Monday, July 20,
1992.  It is abridged from Justice Bains' essay "State Terrorism and Human
Rights", which is available as a pamphlet by sending $5 to either one of:

	  Committee for the Release of Justice Ajit Singh Bains.
	  76 Rusholme Rd., Toronto, Ontario M6J 3H5
	  Tele/Fax Number: (416) 537-8142

	  Association of Indian Progressive Study Groups
	  Earl Hall, Columbia University
	  New York, NY 10027
(all proceeds to go to the Justice Bains defence fund)

The material is copyright, and is reproduced here by permission.
All rights are reserved.


STATE TERRORISM IN PUNJAB
***********
Justice Ajit Singh Bains comes from a patriotic and progressive family.  His
father was a freedom fighter who remained in British jail from 1938 to 1946.
Justice Bains did his law from Lucknow University and began practising.  In
1974 he was elevated to the Punjab and Haryana High Court, from which he
retired in 1984.  He was Chairman of the Bains Committee set up by the
Barnala government which reviewed the cases of those detained by the police
during the Punjab agitations, and formed the Punjab Human Rights
Organisation in 1985.  He has been in jail since April 3, 1992 under TADA.
The following piece is written by him from Burail Jail, Chandigarh.
***********
 - by Ajit Singh Bains

Historically, state terrorism refers to the use of terror as a method to
undermine just struggles, whether armed or unarmed.  The State uses this
method in several ways, two of which have gained notoriety.  The first is
the direct use of terror by the State against the people as in killings,
fake encounters, torture, extortion, rape and various acts of violence
against the people.  The State also finances non-governmental, terrorist
organisations to carry out bombings, kidnappings and indiscriminate
killings.  The aim of the latter is to create an atmosphere of anarchy and
violence so that, out of frustration, the people absolve the State for its
direct use of violence and other means of repression.

The moment a private citizen commits kills another or violates the integrity
of another person, the sanction of law can be invoked and usually victims do
not need to set the legal machinery in motion to get the perpetrator of the
crime punished.  In theory, whenever a government official indulges in an
illicit act, the law should work against him also.  The criminal procedure
in India, however has an archaic section (197) which requires that the
government grant authorisation before a public servant can be prosecuted for
an offence.  Given that the accused public servant is usually committing the
crime under order of the same authority which grants permission for
prosecution, it is easy to see why permission is often withheld.

Private individuals have little power.  Even the worst dacoit is constrained
by a short life span, but when the State is transformed into an institution
of crime, it tries to eternally perpetuate itself.  Therefore, human rights
organizations generally concern themselves with the acts of those
governments whose officials shelter themselves from the purview of the law.

Clever governments are able to mislead the people into thinking that human
rights groups are nothing more that front organizations for terrorist
groups, since we argue that even those whom the authorities claim are
terrorists must be given a chance to prove that they are not what they are
suspected to be.  It is the duty of the State to track down and restrain
criminals and not that of human rights organisations.  The mandate of human
rights organisations is to ensure that the due process of law is accorded to
the suspect once he is caught.  It would be ridiculous to expect terrorist
groups to provide due process of law to their victims!

In the process of tracking down a criminal, investigating agencies capture
many an innocent man.  This is why legal systems around the world are
designed so that the person who investigates does not also act as a judge.
The police, by law, is assigned the duty of investigating suspects.  The
judiciary is to pronounce its verdict after giving an opportunity to the
accused to defend himself.  Thus arises the legal axiom that the accused is
presumed innocent until proven guilty.  A person could be framed and put
into the position of the accused by circumstances, ill-will, or by malice.
If the experience of the Indian courts is any indication, an innocent person
is framed in far too many cases and hence the necessity of a judicial method
to determine the guilt of the accused.

State terrorism usually strikes first at this pillar of arriving at the
truth.  The investigative agency, when faced with difficulties, argues that
it is impossible to tackle criminals unless the usual safeguards are relaxed
for a period of time and it is allowed to assume the role of judge and jury.
Such a relaxation leads to the undermining of the rule of law, whatever the
level it was operating at in the first place.

Who are the terrorists?  You and I, who perchance happen to be accused of
terrorism by a police official. It is important to determine the truth
because suspects are gathered from amongst you and me and unless their guilt
or innocence is determined beyond reasonable doubt, they cannot be dubbed as
terrorists.

Human rights organizations always ask for terrorists to be punished.  A
terrorist gang by its very nature is beyond the pale of law and can only be
caught, investigated, tried and punished by the State.  It is always safer
to wait and hang a terrorist on the basis of verifiable proof than to shoot
a man and ask questions later.  Human rights organizations want terrorists
to be caught.  But they do not want a man to be branded a terrorist if he is
actually a political worker or a leader of the tribals or because he has
championed some unpopular cause or is disliked by a local landlord or not
favoured by a particular businessman.

Terrorism, strictly speaking, is an act of intimidation of innocent people,
threatening their lives, destroying their property, depriving them of
liberty and creating tension among them.  Such behaviour is not an act of
liberation achieved through struggle.  It is to sabotage a just struggle and
make the people vulnerable to the attacks of the State.  No individual act
of violence against the populace, under the pretext of winning victory in
armed struggle for a just cause, can be accepted.

When, in any society, a violent act which is more heinous than a normal
crime occurs and is termed terrorism, there is temptation to kill the
suspects without giving them a fair trial on the pretext that a terrorist
does not warrant the normal safeguards of a routine criminal.  The immediate
temptation to adopt totalitarian strategies to deal with terrorism, however
destructive, has little chance of success.  If we are to be cavalier about
the principles of democracy, we will only fall into the same error as the
terrorists who have no dearth of arguments to justify their means and ends.

In Punjab so far, the government has followed a terrorist approach.
Innocent people are kidnapped and abducted in unidentified vehicles by armed
men of the police and not produced before any court.  Many are killed in
fake encounters and their dead bodies are not returned.  Hundreds of men are
missing and their whereabouts unknown.  One such person is Ram Singh
Billing, a human rights activist and journalist who was abducted by the
police on 3-3-92 in Sangrur.  He has not been produced in Court so far in
spite of worldwide protests to the Government.

Which law permits the police to kill persons in custody?  Which law permits
them to abduct?  Which law allows torture as the only method of
interrogation?

Gobind Ram, S.S.P. Batala, used to openly practice torture.  Sarpanches of
Batala resigned and stated to the Governor that Gobind Ram had killed many
innocent young men in custody.  The PHRO mobilized people to hold a dharna
on 30-9-89 in Chandigarh seeking action against Gobind Ram.  Many persons,
including myself, were arrested, and peaceful dharna was not allowed.  No
action was taken against Gobind Ram.  As a result, his son was killed,
followed by his own killing for reasons of personal vendetta.

It is high time we see the tangled question of terrorism and human rights in
the proper perspective.

On a personal level, I would like to add, I was kidnapped, not arrested, on
April 3, 1992.  I was gagged and picked up and taken to a police station
with no information given to my family.  It was a classic case of
kidnapping, but there was no remedy, as my captors were policemen.  My house
was searched and valuables looted.  The act had all the ingredients of a
dacoity and theft but there was no remedy as the culprits were policemen.  I
was threatened with physical harm, which is criminal intimidation.  I term
it terrorism by the State and call such a State the fountain head of
terrorism.  On what moral grounds can it be preached that people should obey
the law when it is not even obeyed by those who enacted it and derive their
authority from it.  It would seem that the State does not have any such
moral grounds, but I do.  I call upon all to support the rule of law and
demand that those who have violated the law be punished.

I give my vote and pay taxes for the police to protect me from private
criminals and terrorists.  Criminals don't acquire guns with my money or my
votes.  But I cannot remain silent when men for whose upkeep I pay taxes and
for whom I establish an elaborate system of protection and privileges and
surrender part of my rights, simply catch, pillage and kill at random just
like others beyond the pale of the law, This is state terrorism.  It is this
which must be ended at once if peace is to prevail in my land.
Newsgroups: soc.culture.indian