The judicial policy has apparently justified state terrorism in the pretext of his brand of nationalism. Future generation would have to be amazed at the apex court's wonderful endorsement of suspicion as a valid legal basis for state's deprivation of life. It has to be rejected outright before it is too late.
Secondly, the binding human rights treaties
Human rights treaties including the ICCPR, 1966 and, the ICESCR, 1966, among others, which the Govt of India had signed and ratified are binding to India in the capacity of a respectable member of the international community. Several of the vital provisions of the binding conventions have been overlooked consistently. Article 4 of the ICCPR forbids the Govt of India, including its Constitutional creature – the apex court and the judiciary, to deprive of life of persons and citizens even in the most formidable situation of public emergency.
Public emergency has not been officially proclaimed as required by the binding conventions in the NE region for half a century; accountability of all the state agencies to the Parliament for all the acts and omissions in the region conducted during the officially proclaimed public emergency has been abdicated unlawfully, and the United Nations has not been notified for the Govt actions. The Apex court in 1997 has fully abdicated in giving necessary attention of this public emergency requirement under the law. The reasons for the apex court's overlooking this vital aspect of law are not known. Is the court racially biased?
Thirdly, the mandate of humanitarian regime
The four Geneva conventions, 1949 are binding to a signatory like the Govt of India and the Geneva Convention Act, 1960 has been enacted accordingly. The Indian statute calls for amendment in order to make it functional.
The common Article 3 of the four conventions forbids the state agencies and the state like India to deprive of life of non-participants in the non-international armed conflicts and citizens without judicial guarantees, to torture and to kidnap, among others. The apex court has missed in 1997, its rare opportunity to vindicate the judicial guarantee, it has to afford to citizens of the NE region against the state repression and brutality. The state should not abdicate its state responsibility under all circumstances.
The non-state actors (NSA) or, entities whosoever barring the mindless terrorist, operating in the armed conflict zone in the region have also certain ethical humanitarian responsibility to comply with the common Article 3. Should they not conform to the benchmarks of engagements, and penalize the non-combatants or members of the civil society, they would earn the label of terrorism. The NSAs – 'None-state actors' should not evade humanitarian responsibility under one false pretext or other. Once India becomes a party to the ICC treaty, the immunity the NSAs enjoy today has to go. Human rights policy has to articulate the aspect.
Fourthly, individual criminal responsibility
The international community has ushered in an era of terminating immunity and impunity of individuals – be he a soldier or army chief or a Prime Minister or a guerrilla leader of the NSA – committing heinous international crimes. The Rome ICC treaty, 1998 is functioning to do the job leaving aside powerful countries like the USA and India outside its fold as pariah, because of their ambiguous and ambivalent stance towards retaining immunity and impunity of their own home-grown heinous national and international criminals. The benchmark of this century's international rule of law and international criminal justice lies in the ICC, which the Government of India considers as untouchable or a liability. In one word, the Government's stand encourages commission of heinous international crimes as the world's only supercop power does around the world with millions of human skeletons in uncle Sam's cupboard for democracy. India, particularly Gandhian India ought to be different in this immunity-termination job.
Fifthly, re-activation of the national institutions
The national responses to the universal human rights standard is desperately poor and as a result, the national human rights institutions including the national and state commissions have not delivered the goods as desired by the evil society.. The statutes, the functions, the manpower and the objectives enunciated for the machineries call for radical reforms. — To be contd