compared to 15-20 per cent in traditional industries like textiles, leather and food, the decline in effective protection

is larger. ( A l l calculations o n import-intensity a n based on the sectoral share of REP licences.) The m i in the first case is 0.67 and 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 m i for selected sectors. The higher the m the lower is the incentive to export. From equations (1) and (2), we can obtain the following result: 1-0.4d - 0.4m,d (3) By taking P m to be 100, we calculate P x for various sectors using m from the table and d = 17 per cent. The proportional disincentive to export in selected sectors is shown in the same table. These figures clearly indicate the relative disincentive to the export sector on account of the exchange rate system. Secondly, sectors with high import content 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 contradictory effects. It provides a bias towards import-substituting activities'as we have snown. Secondly, it provides a greater bias against import-intensive exports, 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 certainly not the right package. The much cited South Korean miracle is about the successful 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 revisions and concessions given to import of equipment by the export sector are secondary, given that the system of exchange rates adversely affect export profitability. The sectors which may do well under the present system are the traditional products which use little imported inputs and equipment, for example many agro-based products, leather products and textiles. In these products the prospects in the international market do not appear to be very promising. In products like tea, the country 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 products as well as in textiles, there are barriers to entry in the international market, for example, the agricultural policy of the European Economic Community and the M u l t i Fibre Arrangement in the United States of America. What is the rationale for the current bias against exports which require a large proportion of imports? A casual argument might suggest this to be the case, since the policy encourages the export sector to economise on imports. However, exports may become unviable in many nontraditional areas of manufacturing as a result of the existing policy package. From a balance of payments point of view, the contribution of any sector is simply the difference 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 growth in exports.

The poor performance of exports in the past few months, particularly of manufactured exports has been ascribed to the forced import compression of last year. If so, that system of dual 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 disclaimers apply.] 1 The market premium may be expressed in terms of the official exchange rate. In this case the premium would be around 20 per cent. 2 For a detailed analysis of changes in sectoral effective incentive to export, see A S Ray, 'Liberalisation and India's Export Competitiveness: Sectoral Profile of Effective Incentive Structure, 1981-91', paper presented at ICRIER-Ford Foundation Seminar on Economic 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 criticism of the formal act. It used to cover of a human rights commission as a response to government's human rights record will at best be a will not reduce human rights violations, but will be un such violations.
ing to curtail the writ jurisdiction of the high court and also prevent access to the magistrates' courts? Is it at all possible to reduce human rights violations without bringing about a social order which is just, equitable, and human? Setting up of a human rights commission is a major departure from the constitutional scheme. A little history of the evolution of rights and their subsequent incorporation in the Constitution w i l l not be out of place here. A l l of us are mandated by the Constitution "to cherish and follow the noble ideals which inspired our national struggle for freedom". A l l our actions in the public sphere should receive their justification from this fundamental duty. An examination from this angle w i l l demonstrate that these steps, if permitted, would lead to the de facto abrogation of the Constitution. The rights which are now called fundamental have a long history. As early as 1895 the Home Rule B i l l envisaged for India a Constitution guaranteeing to every one of its citizens freedom of expression, inviolability of one's house, right to property, equality before the law and in regard to admission to public offices, and

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 Dahrendorf

T H E 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 prominent 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 they are 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 government thinking of bringing about an appropriate amendment to the Constitution, as was done when tax and service t r i bunals were set up? Is the government go-

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right to personal liberty. Following the publication of the Montague-Chelmsford Report in August 1918 the Indian National 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 M o t i l a l Nehru in his presidential address at Amritsar in 1919, when he said, "no constitution can meet our needs unless it is accompanied with a guarantee and a clear declaration of our elementary rights which have been so ruthlessly 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 statesman can shut Ms eyes to the supreme moral necessity of the faith of the Indian people in the inviolability of their rights!' At the Madras session of the Congress it was stipulated that in the future Constitution of India there must be a declaration of fundamental rights. The Nehru C o m mittee appointed by the All-Parties Conference in its report (1928) (aid down "that our first care should be to have our fundamental rights guaranteed in a manner that w i l l 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 struggle in shaping a Constitution for the country. The chapter on fundamental rights; the setting down of the objectives in the preamble, and the enumeration of nonjusticiable rights in the form of fundamental obligations are the result of the experience of the freedom struggle. Fundamental rights and the directive principles were'designed as instruments to bring about a social transformation and the judiciary was assigned a special role and it was expected to be the arm of social revolution. Fundamental rights are political in nature and the free exercise of these 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 H u m a n Rights and most of the articles in the International Covenant on Economic, Social and Cultural Rights on C i v i l and Political Rights have their equivalents in one or the other of the fundamental rights and the directive principles. N o t h i n g prevented the government from giving effect to these, for the government is under an obligation under A r t i c l e 51(c) " t o foster respect for international law and treaty obligations in dealings of

organised peoples w i t h 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 violations. It is just the unwillingness of the government to put an end to these i n human and brutal forms of state violence. The government having failed to perform its fundamental obligations even after over four decades has no right to complain or be surprised when people organise themselves to compel the government to perform these fundamental duties. There inheres in the people the right to even overthrow the government in the process. The setting up of a human rights commission is not going to humanise the state agencies. A political system which guards and supervises an exploitative order cannot survive without preventive detention laws, laws to contain terrorism, and other such laws, and which totally sets aside all hitherto accepted notions of criminal jurisprudence and allows its police force to kill and maim people by torture, to rape women and unleash brutalities on the people is not going to call o f f these operations 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 governments to Find other devices to silence criticism without in any manner reducing the violence they employ. It looks as though the Amnesty report on custodial deaths has succeeded in driving the government to search for other means which would be less susceptible to criticism and would be even more effective 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 there are weaknesses. We have to identify the gaps between pronouncements and actions, between legislation and implementation, and resolve to act firmly to bridge the gaps!' Rao today realises, after being in active politics for over five decades, that there exists a gap between profession and practice, between legislation and its implementation. After the Amnesty report Rao suddenly realised that there can be nothing more revolting and reprehensible than the betrayal of custodial trust by the guardians of taw and those appointed to protect the individual. Rao belongs to Karimnagar 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 A P C L C 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. There has 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 protest note to this effect appeared anywhere. W i t h 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. H o w does one go about it? We set up one more i n stitution to take care of human rights. In the 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 which correspond to the rights enumerated in the International Covenant. 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 the human 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-today operations and are done w i t h 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 kill, maim, rape, or otherwise physically harm people is no part of the duty of either the police or the army. The underlying presumption and justification of use of violence by these forces is self-defence. But the legal presumption is otherwise. In a plea of selfdefence the offence is presumed. A l l these crimes also are violations of Article 21 and 22(1). Yet these are not seen as crimes, nor are they debated as crimes. Thus crimes committed by public servants are accorded 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 setting 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

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of violence by the aberrant among the armed forces or the police. The methods used in apprehending persons or torturing them is-the same whether it is in the west or any of the t h i r d 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 w i l l be deterrence. If a policy of deterrence is to be used against a political movement a whole community w i l l have to be punished, for deterrence is at once punitive and pre-emptive. The government obviously doesn't propose 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 enquiry under the ineffective and" over-worked Commissions of Inquiry 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. A n d 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 direct outcome 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" (emphasis 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 necessary to review the history and the habits of the state. When we recognised the institution of justice as a place of dispensation 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 any discourse, people became irrelevant. Insistence on forms take over and the proceedings become a caricature of the substantive 2094

purpose which was originally the major premise Henceforth ritual in the form of procedure and rules becomes an insurmountable 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 inconvenient to its populist politics. Jefferson complained that the Federalists "by fraudulent use of the constitut i o n , which has made judges irremovable, have multiplied useless judges merely to strengthen their phalanx" That is how it started. Such practices have their own inexorable 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 preserve democratic processes are manned by persons who are mere status-seekers and office-holders. They have left norms without 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 shearing 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 service tribunals. Article 323B provides for setting 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 confined to the private sphere of social life. The tribunals set up under these provisions are manned by superannuated civil servants and judicial officers. The chairman 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 examine how the persons as chosen to realise how 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 selections are made The government is the appointing authority. There is no procedure prescribed to ensure, if not excellence, at least competence. There is nothing to ensure 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 context, 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 under these articles appeals are only to the Supreme Court. The worst hit are the public servants and the working class if the proposed Industrial Relations Bill comes through. The provisions introduced 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 jurisdiction of the high courts. The appeal 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. The people 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 proposal. Now the government is moving into a crucial field, namely, human rights, more importantly the field occupied by Articles 19, 21 and 22. H u m a n rights violations take place in the field covered by freedom of speech and expression, freedom 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 liberty covered by A r 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 persons who regularly interact w i t h these i n stitutions, such as lawyers, public interest and human rights groups, jurists and academics to exert pressure on these institutions. 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 commission as a response to criticism of the government's human rights record w i l l at best be a formal act. This will not reduce human rights violations, but may be used to cover up such violations. September 26 1992

Economic and Political Weekly