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compar ed to 15-20 per cent in tradi tiona l

industries like textiles, leather and food,

the decline in effective protection is larger.

(All calculations on import-intensity an

based on the sectoral share of REP

licences.) The mi in the first case is 0.67

an d in the second case 0.25. Consequently

the new policy package can have detri

mental effect on import-intensive non

traditional exports. The table shows the

mi for selected sectors. The higher the mthe lower is the incentive to export . F rom

equations (1) and (2), we can obtain the

foll owing result:

1-0 .4 d - 0.4m,d (3)

By taking Pm to be 100, we calculate Pxfor vario us sectors using m fr om the

table and d = 17 per cent. The pro por

tional disincentive to export in selected

sectors is shown in the same table. These

figures clearly indicate the relative

disincentive to the export sector on ac

count of the exchange rate system.

Secondly, sectors with high import con

tent have a greater disincentive to export.Sectors like gems and jewellery are worst

affected, while engineering goods and

chemicals, which also have a high import

content, are more adversely affected than

food products and handicrafts,2

What are the implications for India's

exports in the long run? While a devalued

exchange rate is apparently conducive to

improving the export performance, the

system of dual exchange rate has con

tradictory effects. It provides a bias

towards import-substituting activities'as

we have snown. Secondly, it provides a

greater bias against import-intensive ex-ports, namely, non-traditional industrial

exports. If India's export drive has been

inspired by the success of South Korea,

then the present set of policies is certain

ly not the right package. The much cited

South Korean miracle is about the suc

cessful entry of non-traditional industrial

exports into the world market. It seems

extremely unlikely that India can achieve

the same with the system of dual exchange

rates. Other instruments, like tariff revi

sions and concessions given to import of

equipment by the export sector are secon

dary, given that the system of exchangerates adversely affect export profitability.

The sectors which may do well under

the present system are the traditional pro

ducts which use little im porte d inputs and

equipment, for example many agro-based

products, leather products and textiles. In

these products the prospects in the inter

national market do not appear to be very

promis ing. In products like tea, the coun

try has faced a supply constraint and has

been yielding its position to Sri Lanka.

Secondly, in traditional products like tea

and jute where India has a 'arge market

share and a degree of monopoly power,increased export incentives and export

volume could even reduce export earning

and there could be a case for taxing such

exports.3

In many other agricultural pro

ducts as well as in textiles, there are barriers to entry in the international market,

for example, the agricult ural polic y of the

European Economic Community and the

Multi Fibre Arrangement in the UnitedStates of America.

What is the rationale for the current

bias against exports which require a largeproportion of imports? A casual argu

ment might suggest this to be the case,

since the policy encourages the export sec

tor to economise on imports. However, ex

ports may become unviable in many non-traditional areas of manufacturing as a

result of the existing policy package. Fr om

a balance of payments point of view, the

contribution of any sector is simply thedifference between its export earnings and

its import biU. So long as this is positive

an undue concern over import intensity

of exports does not have relevance. The

concern needs to be regarding the growthin exports.

The p oor performance of exports in the

past few months, particularly of manufac-

tured exports has been ascribed to the

forced import compression of last year. Ifso, tha t system of du al exchange rate does

not solve the problem for India's exports.

Notes

[I thank V Bhaskar. Ptrtha Sen and Surah

Tendulkar for comments. The usual disclaimersapply.]

1 The market premium may be expressed interms of the official exchange rate. In thiscase the premium would be around 20 percent.

2 For a detailed analysis of changes in sectoraleffective incentive to export, see A S Ray,'Liberalisation and India's Export Competitiveness: Sectoral Profile of Effective In centive Structure, 1981-91', paper presentedat ICRIER-Ford Foundation Seminar onEconomic Liberalisation and Its Impact,Delhi, May 1992,

3 W M Corden, Trade Policy and Economic

Welfare, Oxford University Press, Oxford,1974, chapter 7.

Why a Human Rights Commission?K G Kannabiran

The setting up of a human rights commission as a response to

criticism of the government's human rights record will at best be a

formal act. It will not reduce human rights violations, but will be

used to cover un such violations.

The eruptions which are intended to blow

open the rigidities of an ancien regime take

place when they have become inevitable, not

when a bearded leader says so.

Ralf Da hrendorf

THE government is seriously considering

setting up a human rights commission to

look into human rights violations. The

government is keen on demonstrating that

it does view human rights violations

seriously. Officials feel that reports of pro

minent human rights bodies like Amnesty

International are one-sided and that there

is a necessity for an impartial body to look

into these complaints and, if found theyare true, to take deterrent action against

the guilty. A consummation devoutly to

be wished for.

But why a human rights commission?

Are the courts, including the Supreme

Court, not adequate to the task? Is the

government going to bring forth a statute

enumerating human rights and create a

body to look into the complaints and

punish the transgressors? Or is the govern

ment thinking of bringing about an ap

propriate amendment to the Constitution,

as was done when tax and service tribunals were set up? Is the government go

ing to curtail the writ jurisdiction of thehigh court and also prevent access to themagistrates' courts? Is it at al l possible to

reduce human rights violations without

bringing about a social order which is just,

equitable, and human?

Setting up of a human rights commis

sion is a major departure from the constitutional scheme. A little history of the

evolution of rights and their subsequentincorporation in the Constitution will not

be out o f place here. A l l of us are mandated by the Constitution "to cherish and

follow the noble ideals which inspired ournational struggle for freedom". All our ac

tions in the public sphere should receive

their just ifica tion from this fundamentalduty. An examination fro m this angle wil l

demonstrate that these steps, if permitted,

would lead to the de facto abrogation of

the Constitution.

The rights whic h are now called funda

mental have a long history. As early as

1895 the Home Rule Bill envisaged for

India a Constitution guaranteeing to every

one of its citizens freedom of expression,

inviolability of one's house, right to pro

perty, equality before the law and inregard to admission to public offices, and

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right to personal liberty. Following the

publication of the Montague-Chelmsford

Report in August 1918 the Indian Na tio nal

Congress at a special session demanded

that the 1919 Act should include "a

declaration of the rights of the people of

India as British citizens''. There was an

outright demand for a declaration of

rights by Motilal Nehru in his presiden

tial address at Amritsar in 1919, when he

said, "no constitution can meet our needsunless it is accompanied with a guarantee

and a clear declaration of our elementary

rights wh ic h have been so ruthless ly

violated in the Punjab. No Indian can be

blind to the fact that the protection of our

fundamental civil liberties is a matter of

the most urgent consequence. No states

man can shut Ms eyes to the supreme

moral necessity of the faith of the Indian

people in the inviol abil ity of their rights!'

At the Madras session of the Congress it

was stipulated that in the future Constitu

tion of India there must be a declaration

of fundamental rights. The Nehru Committee appointed by the All-Parties Con

ference in its report (1928) (aid down "that

our first care should be to have our fun

damental rights guaranteed in a manner

that will not permit their withdrawal

under any circumstances" The right to

keep and bear arms was also included in

the rights enumerated in the report. These

declarations were made in the context of

continuing repression by the British.

As the freedom struggle was drawing to

a close the Constituent Assembly was

busy using the experience of the strugglein shaping a Constitution for the coun

try. The chapter on fundamental rights;

the setting down of the objectives in the

preamble, and the enumeration of non

ju st ic ia bl e rights in the fo rm of funda

mental obligations are the result of the ex

perience of the freedom struggle. Funda

menta l rights and the directive principles

were'designed as instruments to bring

about a social transformation and the

judiciary was assigned a specia l ro le and

it was expected to be the arm of social

revolution. Fundamental rights are poli

tical in nature and the free exercise ofthese are ensured by courts. While the

directive principles are non-justiciable they

are politically enforceable, not necessarily

through the electoral process. We are a

party to the Universal Declaration of

Human Rights and most of the articles

in the International Covenant on Econo

mic, Social and Cultural Rights on Civil

and P olit ical Rights have their equivalents

in one or the other of the fundamental

rights and the directive princip les.

Nothing prevented the government from

giving effect to these, for the government

is under an obligation under Article 51(c)"to foster respect for international law

and treaty obligations in dealings of

organised peoples with one another". In

a recent decision the Supreme Court

observed that the fundamental rights are

in conforming line to the human rights in

the covenants.

It is not as if there is any dearth of legal

provisions to check human rights viola

tions. It is just the unwillingness of thegovernment to put an end to these in

human and brutal forms of state violence.

The government having failed to performits fundamental obligations even after over

four decades has no right to complain or

be surprised when people organise them

selves to compel the government to per

form these fundamental duties. There in

heres in the people the right to even over

throw the government in the process. The

setting up of a human rights commission

is not going to humanise the state agen

cies. A political system which guards and

supervises an exploitative order cannot

survive with out preventive detention laws,

laws to contain terrorism, and other such

laws, and which totally sets aside all

hitherto accepted notions of criminal

ju ri sp ru de nc e an d al lows its police force

to kil l and maim people by torture, to rape

women and unleash brutalities on the peo

ple is not going to call off these opera

tions and submit delinquents in the police

establishment or the army to enquiry by

a human rights commission. Viewed from

this angle it appears pointless to try and

persuade such governments to be more

humane in the means they employ in

tackling political turbulence and any

public pressure may drive these govern

ments to Find other devices to silence

criti cism wit hout in any manner reducing

the violence they employ.

It looks as though the Amnesty report

on custodial deaths has succeeded in driv

ing the government to search for other

means which would be less susceptible to

criticism and would be even more effec

tive for oppressing people. Our prime

minister was needlessly dismayed by the

absence of correspondence between the

ostensible and the real. Talking to his

satraps at Delhi on September 14 he said:

"We have to identify where and why thereare weaknesses. We have to identify the

gaps between pronouncements and ac

tions, between legislation and implemen

tation, and resolve to act firmly to bridge

the gaps!' Rao today realises, after being

in active poli tics for over five decades, that

there exists a gap between profession and

practice, between legislation and its imple

mentation. After the Amnesty report Rao

suddenly realised that there can be nothing

more revolting and reprehensible than the

betrayal of custodial trust by the guar

dians of taw and those appointed to pro

tect the individual. Rao belongs to Karim-nagar and is ordinarily a resident of

Warangal where all types of human rights

violations have been taking place. In fact

when his long-time political ally and

friend was shot by the PWG on December

5, 1991 he condemned the ghastly violence

and rightly so. But a day after that a

young lawyer and convener of APCLC

was shot dead by the police he was silent.

The governor and the chief minister were

silent. This is the regard the government

and the prime minister have for human

rights. This is of recent memory. Therehas been no record of Rap condemning

wanton killings by the state which have

been going on for over two decades now.

He has not gone on record condemning

the 1984 sikh massacre. Not even a pro

test note to this effect appeared anywhere.

With this record of silence, which is

culpable, he has unleashed a peroration

on the people of this country in the

presence of the chief ministers assembled

at Delhi on human rights and his party

obligation to repair the breach. How does

one go about it? We set up one more in

stitution to take care of human rights. Inthe entire document, which formed the

background paper for discussions by the

chief ministers gathered there, we don't

find any reference to the fundamental

rights whi ch corre spond to the right s

enumerated in the International Cove

nant. There is no awareness displayed in

the document of the views of the Supreme

Court on this question.

Most of the human rights violations

translated into the language of the penal

code would be murder, rape, grievous

hurt, and other offences relating to thehuman body enumerated in the code:

These crimes are committed by the armed

forces (police, para-military, and the army)

in the course of their routine and day-to

day operations and are done with a view

to maintain law and order and to ensure

security of state. No state laws authorise

the state to commit any of these crimes.

These crimes cannot be claimed as acts

done in the exercise or purported exercise

of one's duties. To k i l l , maim, rape, orotherwise physically harm people is no

part of the duty of either the police or the

army. The underlying presumption andjust ification of use of violence by these

forces is self-defence. But the legal

presumption is otherwise. In a plea of self-

defence the offence is presumed. A l l these

crimes also are violations of Artic le 21 and

22(1). Yet these are no t seen as crimes, nor

are they debated as crimes. Thus crimes

committed by public servants are accord

ed a status which puts them beyond the

reach of citizens and the ordinary legal

processes. This immunity granted to

authority needs to be dismantled and set

ting up of a human rights commission

may not be the answer. These crimes,which are euphemistically called human

rights violations, are not some stray acts

Economic and Poli tica l Weekly September 26 1992 2093

7/27/2019 Why a Human Rights Commission

3/3

of violence by the aberrant among the

armed forces or the police. The methods

used in apprehending persons or tortur

ing them is-the same whether it is in the

west or any of the third world countries.

In fact in Australia evidence was tendered

before the Royal Commission which was

enquiring into deaths of aborigines in

police custody to show that in most cases

they were suicides. The explanation is so

familiar! These'methods arc used invariably against the poor and the deprived. If

the policy of the government is to contain

political and protest movements by force,

then the inarticulate premises will be

deterrence. I f a policy of deterrence is to

be used against a political movement a

whole community will have to be punish

ed, for deterrence is at once punitive and

pre-emptive.

The government obviously doesn't pro

pose to give up its present policy.. Then the

present proposal is one of those familiar

political sleight of hand devices like the

appointment of commissions of enquiryunde r the ineffective and" over-worked

Commis sions of Inq uir y Act 1956. A

human rights commission is not going to

resolve the political crises. Until these are

resolved, violence by the state is bound to

continue. "Repression and terrorism have

never yet killed the life of a nation, they

but increase and drive it underground to

pursue an unhealthy course breaking out

occasionally into crimes of violence. And

this brings further repression and so the

vicious cycle goes on. No one can but

deplore violence and political crime. But

let us not forget that this is the directoutcome of continued repression. It is due

to the perversity of the executive which

Minds itself to the cause of the discontent

and, like a mad bull, goes about attacking

all who dare to stand up against it" (em

phasis added). This stand taken by Motilal

Nehru (Amritsar 1919) is the position

taken by the civil liberties and human

rights activists in the country and the

response of the government is no different

from that of our colonial rulers.

The proposal needs to be examined

from yet another angle. Why not the

courts be entrusted with the task of protecting human rights?

In the state in which courts are today

many of us may vote for a human rights

commission having constitutional basis.

Before we cast our vote it may be neces

sary to review the history and the habits

of the state. When we recognised the in

stitution of justice as a place of dispen

sation of justice it was linked to human

beings and people were relevant. When the

institutions were hijacked by tax-evaders,

smugglers and such sundry crowd and

when the institutions switched over to

disposal of cases as the main theme of anydiscourse, people became irrelevant. Insis

tence on forms take over and the proceed

ings become a caricature of the substantive

purpose which was originally the major

premise Henceforth ritual in the form of

procedure and rules becomes an insur

mountable obstacle. Procedure instead of

acting as a check on arbitrariness operates

as impediment to audience and relief. This

state of affairs was brought into existence

by the ruling party when the assertion of

independence by the judiciary became in

convenient to its populist politics.

Jefferson complained that the Federalists "by fraudulent use of the constitu

tion, which has made judges irremovable,

have multiplied useless judges merely to

strengthen their phalanx" That is how it

started. Such practices have their own in

exorable logic First you pack your men.

Later you just don't care who is in.

Thereafter it would be a free-for-all for

manipulators. Thus all institutions set up

to protect the rights of citizens, to check

arbitrariness of the state and preservedemo crat ic processes are manned by persons who are mere status-seekers and

office-holders. They have left normswithout meaning and drained the life

blood of the institutions they man.

"Norms are separated from institutions,

and the world that emerges from such a

course combines formal compliance with

a profound deprecation of all things

social" Thus while weakening the courts

from within the executive went on shear

ing the power and jurisdiction the high

courts had when the Constitution came

into force, by transferring certain defined

area of power and jurisdiction to parallel

institutions. The tribunals set up under

Articles 323A and 371D are servicetribunals. Article 323B provides for set

ting up of tax tribunals, foreign exchange

and customs tribunals, industrial and

labour tribunals, land reform and ceiling

on urban property tribunals, etc Once

these tribunals come into existence the

courts' jurisdiction, including that of the

high courts, is ousted and the jurisdiction

of the Supreme Court under Article 136

alone is preserved. The jurisdiction of the

high courts is getting increasingly confin

ed to the private sphere of social life.

The tribunals set up under these provi

sions are manned by superannuated civilservants and judicial officers. The chair

man has to be a high court judge. The age

of retirement of the chairman is 65 years

and the rest is 62 years. One has to exami ne how the persons as chosen to realisehow we have trivialised all values and

systems. We find judges manoeuvring to

be the chairmen of these tribunals as they

reach the retirement age. District judges

after retirement secure positions on the

tribunal. So also civil servants and police

officers. Nobody knows how the selec

tions are made The government is the ap

pointing authority. There is no procedureprescribed to ensure, if not excellence, at

least competence. There is nothing to en

sure their independence. The staffing

policy as revealed by the respective statutes

and practices ensure subordination of

these tribunals to the executive, and the

transfer of powers hitherto enjoyed by the

high courts to these tribunals, in the con

text, is bound to be ineffective. Articles

323 A and B have marginalised the role of

the high courts and also made justice

inaccessible. From orders passed by t r i -bunals set up u nder these articles appeals

are only to the Supreme Court. The worsthit are the public servants and the work

ing class if the proposed Industrial Rela

tions Bil l comes through. The provisionsintroduced by the 42nd amendment were

not omitted by the 45th amendment for

want of a majority in the Rajya Sabha.

The Terrorist and Disruptive Activities

(Prevention) Act, without the aid of these

amendments, completely eliminates the

jur isdi ction of the high cour ts . Th e ap

peal against sentence and conviction is to

the Supreme Court. The remand period

is one year and bail applications can be

made only to the designated courts. Thepeople arrested in the rural areas come

from very poor and backward sections of

the population. The hard core in any event

are shot in encounters. This legislative

history and practice has to be borne in

mind while examining the present pro

posal. Now the government is moving into

a cruc ial field, namely, hum an rights,

more importantly the field occupied by Ar-

ticles 19, 21 and 22. Human rights viola

tions take place in the field covered by

freedom of speech and expression, free

dom of association, freedom of assembly

and movement, freedom to reside or settle in any part of the country. Assertion

of all or any of these rights results in

forfeiture of life or liber ty covered by Ar

ticles 21 and 22. If these are entrusted to

the human rights commission the present

government can claim to have achieved

what Indira Gandhi could not.

If the government is really concerned

about setting right its human rights record

it has to take serious steps to rebuild the

existing institutions, namely, the courts,

instead of merely multiplying institutions.

In fact it is more the responsibility of per

sons who regularly interact with these institutions, such as lawyers, public interest

and human rights groups, jurists and

academics to exert pressure on these insti

tutions. Human rights record can never

improve by the setting up of a commission

without changing the existing social order.

The debate on the setting up of a human

rights commission should lead to a review

of the functioning of the justice system

and attempts have to be made to rebuild

these institutions.

The setting up of a human rights com

mission as a response to criticism of the

government's huma n rights record wi l l atbest be a formal act. This wi l l not reducehuman rights violations, but may be used

to cover up such violations.

2094 Economic and Pol iti cal Weekly September 26 1992