Prashant Padmanabhan

| @PrashantPadma | November 7,2019

AN article that appeared in Times of India, under the title “It is like war: Kill or be killed” authored by Mr Tom Jose, the present Chief Secretary of State of Kerala, is particularly worrisome for both its content and form. It gives a grim picture of the Maoist insurgency in Kerala and states that “There is no rationale in stating that Maoists who indulge in armed conflict have got the same human rights and privileges as normal citizens.”  There can be no doubt that violence has no place in our Constitutional democracy and the State has a duty to protect every citizen. What the Chief Secretary misses out is that every human being is entitled to Right to life.  Article 21 of the Constitution of India guarantees that Right not only to citizens but all persons. This cannot be deprived except according to the procedure established by law. There is no exception carved out in the Constitution to exclude Maoists from this protection.

 

Duty to protect

 

The duty to protect the life of every person cast upon the State does not justify shooting some among them, who have adopted a violent path, under the umbrage of protecting the other “ordinary people” who obey the law, as the Chief Secretary tries to make out.  If there is indeed an insurgency of terrorism, it is the failure of the State machinery in discharging its basic duty, viz, maintaining law and order and in addressing developmental issues     

It is the duty of a Government representing every section of society to address the root cause of unrest among a certain section of people.  The solution must be at the institutional level and the real causes must be identified and addressed.  Those are related to gross inequality in society and unequal opportunity for growth of individuals.  Equitable distribution of material resources and social justice are the very ideals upon which ‘We the People’ have gifted ourselves a Constitution.

 

Unacceptable justification

 

The  Chief Secretary being a very important government functionary, mandated by law to execute the policy of an elected Government, must be mindful of this.  He should also be mindful of the fact that the dignity of an individual is integral to any civilised society and police encounters and killings are violative of those basic tenets.  

 “In using your weapons will get you a one-way ticket to a rose-pink eternity”.  This is a very emotional statement. No one expects our security forces or the State Police to sacrifice their lives by allowing the violent insurgents to hit them first.  The only question is whether the Police followed the due process of law in resorting to firing, whether there was excess use of police force or was it proportional to the dire necessity.  Bringing the culprit before a court of law must be the norm and the police shooting someone to death, be it a  terrorist or Maoist, must be only when all other options are exhausted.   

 

The law declared by the Supreme Court of India

    

 The Supreme Court in People’s Union for Civil Liberties v. State of Maharashtra after elaborately dealing with the guidelines issued by NHRC, its own judgment and guidelines in D.K.Basu’s case (where custodial violence and deaths was the issue), statistics of National Crime Record Bureau, Universal Declaration of Human Rights, United Nations Code of Conduct for Law Enforcement Officers, Minnesota Protocol, suggestions of PUCL and the views of Central and State Governments and Union Territories and with the assistance of amicus curiae, laid down the standard procedure to be followed in matters of investigating police encounters in the case of death. It is surprising that the Chief Secretary makes no reference to the law laid down by the Supreme Court in the seminal decision or claim that the police followed the law in letter and spirit.     

 

Judicial intervention

 

The incident at Agali is under close judicial scrutiny.  It is reported that the Kerala High Court has stayed the cremation of two alleged Maoists, Anivaskam and Karthi and directed the preservation of bodies till further orders

 

No disclaimer by Chief Secretary contrary  to Conduct Rules

 

The views expressed by an officer working under the State Government is also worrisome for the following additional reasons. The Chief Secretary makes no disclaimer that the views expressed are his personal. 

Section 6 of the All India Services (Conduct) Rules, 1968, mandates that a public servant expressing his views, shall at all times make it clear that the views expressed, are of his own. It is to be noted that there is no such statement anywhere in the article authored by Mr.Tom Jose.  Therefore, one can draw an inference that it is indeed the opinion of the Government. Section 7 of the Conduct Rules further makes restrictions upon the expression of an opinion by any public servant which has the effect of an adverse criticism of any current or recent policy of the  Central or State Governments. Is this to be taken as government policy?

The reference by Chief Secretary in his article to the “human face of terrorists, seemingly benign and innocent but actively malignant and vicious..” is in close consonance with the new term “urban naxal”, coined to discredit human rights lawyers and advocacy groups. Chief Secretary has acted beyond the call of duty by attempting to give a philosophical sermon based on what the French philosopher, Albert Camus, has said as he is not engaging in an academic discourse nor a debate in the floor of the House as to what the government policy should be.  His duty is to implement the law, plain and simple.     

 

Democratic Governance

 

The Chief Secretary may be a high ranking official in the bureaucracy but we are a democracy governed by Rule of Law. We have elected representatives answerable to the Legislative Assembly and House of People. It is their duty to formulate the law and policy of governance.  Officials are duty-bound to follow the policy so formulated, but cannot themselves formulate policy for the simple reason that they are not directly accountable to the People. 

The parliamentary system envisages that the Ministers holding the portfolio are answerable to the people’s representative every day in the floor of the House. A bureaucrat can express an opinion in public forums and get away with it, without being cross-questioned by the elected representatives. That is why this opinion by Chief Secretary must not be given any importance which it does not deserve.   

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