The Hardial Bains Resource Centre is publishing below extracts from the essay titled State Terrorism and Human Rights by Justice Ajit Singh Bains (Ret’d). Justice Bains wrote the essay when held in Burail Jail, Chandigarh in 1992 under the Terrorism and Disruptive Activities (Prevention) Act (TADA) — one of the black laws imposed to silence and suppress the just struggle of the people of Punjab at that time.

At the end of the essay, in a Personal Note, Justice Bains explains that he 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 and friends. It was a classic case of kidnapping but there was no remedy as my captors were policemen. My house was searched and valuables looted. This act had all the ingredients of dacoity and theft, but again there was no remedy as the culprits were policemen. I was threatened with physical harm, which is criminal intimidation, but, again, there was no crime as the men happened to be endowed with state uniforms. I term it terrorism by the state and call such a state as the fountainhead of terrorism.”

He argues as follows:

“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 must be punished.” [p. 24]

The essay was published in pamphlet form by the Association of Indian Progressive Study Groups on July 10, 1992.

Extract from the Preface

“Justice Ajit Singh Bains needs no introduction, either as a jurist or as a human rights activist. This essay is not just a dignified plea for the rule of law in a society where the absence of civilised jurisprudence is being sorely felt, whether by the Punjabi’s or Assamese, or the workers of Bhilai, Dalla and other places. Rather it is an exposition of the process whereby societies sink into the quagmire of anarchy and lawlessness, and of the fundamental role governments play in either facilitating or averting such a tragedy.

“What makes this essay all the more remarkable is that it has been written from within the confines of a prison cell, where the author has been languishing for the past three months under the Terrorism and Disruptive Activities (Prevention) Act (TADA). It will be apparent to the reader of this essay, if she or he is not already familiar with the case, how malicious the charges of “sedition” and “secession” against the author actually are. It is to the credit of Justice Bains that even under such conditions of adversity, he has turned the tables on his accusers.”

Extracts from the Essay

[…]

“Historically, 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 much notoriety. The first is the direct and indiscriminate use of terror by the state against the people as in killings through “fake encounters,” the torture of individuals in police stations and interrogation centres, extortion through arrests or threats of imprisonment or rape, and various other acts of violence against the people. The state also finances non-governmental, specialized terrorist organizations to carry out various forms of intimidation such as bombings, kidnappings, hijackings 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.” [p. 5]

[…]

“Dictatorial governments habitually deprive the citizen of his or her rights to life and liberty, either by enacting laws or by issuing informal instructions to their officers and agencies. In strictly legal terms, when a police officer receives orders to kill a suspect in custody, he is protected by law because he is obeying his superior authority and, therefore, the force of law does not touch him. It follows that an officer of the law may interfere with the right to life and liberty very easily, compared with a private citizen who has to be concerned about the force of the law and that of the opponent whose rights he intends to violate.” [p. 6]

[…]

“In theory, the rule of law recognizes that nobody is above it and that whosoever commits an offence must be punished. However high-ranking in the state apparatus an individual may be, the rule of law is above him.

“This attribute of the law provides protection to all who want to get on with their lives. Punishment and protection are essential features of law, but when the state protects with partiality, the rule of law is jeopardized. The use of a state position and the conducting of affairs as if an individual or group is above the law leads to the elimination of its rule.” [ pp. 7-8]

[…]

“The state is a legal entity which is duty-bound to protect its citizens and human rights organizations act to ensure that it acts and behaves within the purview of the law. Otherwise, the very foundation of a democratic polity is at stake…. Hence it is imperative that if a government is to retain that ultimate power of administering justice and maintaining law and order, it should itself never violate or be seen to be violating, the law.” [pp. 8-9]

[…]

“The raison d’etre of a government is to protect its citizens and to punish those who endanger the life, liberty and well-being of the citizenry. When the demarcation line between a terrorist act and a government vanishes, human rights organizations have no recourse but to address and expose government wrong-doings. When a functionary of a government behaves like a terrorist, he becomes more dangerous than the terrorist, since the law works against the terrorist but not against a government functionary who takes the law in his own hands.” [pp. 13-14]

[…]

“Who are the terrorists? You and I, who perchance happened to be accused of terrorism by a police official. It is important to determine the truth about suspects because they are gathered from amongst you and me, and, unless their guilt or innocence is determined beyond reasonable doubt, they cannot be dubbed as terrorists. Political dissidents, like those in many countries who fought against fascist regimes, were branded terrorists and hunted down because they protested against terrorist governments. Utmost vigilance is required before a suspect is branded as a terrorist.” [p. 14-15]

[…]

“Armed struggle by large or small sections of the people against governments which are either colonial or totalitarian in essence, or oblivious to the desires and wishes of the populace, cannot be included in the definition of terrorism. When every recourse to justice is exhausted, the people are compelled to take the road of armed struggle and this measure is applauded and broadly supported. Armed struggle is nothing new and there are so many such struggles recorded in modern history, from the American War of Independence in 1776 and the French Revolution in 1789 to the antifascist world war of liberation and the struggle of the Vietnamese and Indochinese people and others since then. To equate this means of liberation with terrorism will not hold. Terrorism and the use of agent provocateurs was developed as a method by the Russian Czars, who deployed the state apparatus, including plain-clothes police, and non-governmental organizations to carry out terrorist attacks as a means to disrupt revolutionary changes.” [p. 16]

[…]

“In the second half of the twentieth century, tens of liberation struggles initiated in Asia, Africa and Latin America have resulted in national liberation. Armed struggle and guerrilla warfare have been accepted as legitimate ways of winning freedom, when all other means of effecting change fail. The struggle of the people of South Africa against the racist regime cannot be called a terrorist movement. It has won worldwide support for their noble endeavour to dismantle an unethical regime.” [p.17]

[…]

“The situation turns critical if it becomes apparent that the state itself has adopted violence and terror as a policy aimed at suppressing just struggles. Thus, it loses the right to hurl the accusation of terrorism at people who launch an armed struggle to bring about a more lawful method of governance.” [p. 20]

[…]

“In Punjab so far, a terrorist approach has been followed by the state. 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 even their dead bodies are not returned to the bereaved families. [….] It is instructive to contrast the present situation with Jallianwala Bagh massacre by General Dyer on April 13, 1919, which went down in history as the most heinous crime of British rule. The dead bodies were identified and given to their relatives, the injured were removed to the hospitals, and a commission of inquiry known as the Hunter Commission was appointed. However, even though the commission held that the shooting was unjustified and awarded compensation of Rs.2,000/- to the relatives of those who were killed and Rs.500/- to the injured in the early twenties, it failed to punish the General or the then governor of Punjab, Michael O’Dwyer. It fell on the shoulders of Udham Singh to execute Michael O’Dwyer at Caxton Hall in London in 1941.

“It is high time that we see the tangled question of terrorism and human rights in the proper perspective.” [p. 23]

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