feeds from sacw.net
print versionwww.sacw.net, 19 December 2008
In some circles, it is argued that the judiciary places unnecessary curbs on the power of the investigating agencies to tackle terrorism. In India, those who subscribe to this view also demand changes in our criminal and evidence law — such as provisions for longer periods of preventive detention and confessions made before police officials to be made admissible in court. While the ultimate choice in this regard lies with the legislature, we must be careful not to trample upon constitutional principles such as ’substantive due process.’
...
The role of the judiciary in this regard should not be misunderstood.
Adherence to the constitutional principle of ’substantive due process’ is an essential part of our collective response to terrorism. As part of the legal community, we must uphold the right to fair trial for all individuals, irrespective of how heinous their crimes may be. If we accept a dilution of this right, it will count as a moral loss against those who preach hatred and violence.
— K. G. Balakrishnan, Chief Justice of India
It is a matter great shame and concern that the amended UAPA Act which had been placed before the Lok Sabha on Tuesday evening was passed unanimously the very next day, on Dec. 17.
Similarly, the Rajya Sabha passed it the following evening.
This is almost a rerun of the shameful saga concerning the saga of the highly controversial and contested SEZ Act in early 2005. There is, however, at least one crucial difference. In the earlier case, it was a rather quiet affair, almost a hush-hush. This time it was done amidst ugly chest-thumping. Last time, in the Lok Sabha, the BJP did not even participate in the deliberations. This time they claimed with full gusto the credit (sic) for the passage of the Bill overshadowing its official sponsors.
While the full details remain to be accessed and analysed, it is pretty much clear that most of the provisions of the earlier scrapped POTA, on account of strong reactions triggered by a history of huge misuse against the minorities, other marginalised sections of the society, people struggling against social and political injustices and also known opponents of those in positions of power have been brought back. Only the provision for legal admissibility of a "confession" made in police custody is left out. But there are other areas, where its reach has further extended. The most important aspect, however, is that the court has to treat an accused as guilty till proved otherwise and unless the court finds the accused prima facie innocent it won’t grant any bail to the accused. In case of a "foreign national", there is just no provision for any bail, whatever. This evidently runs counter to the recent Supreme Court directive that during a trial granting of bail should be the norm, and rejection an exception.
Even the BJP’s star speaker in the Rajya sabha, Arun Jaitley, had to thus admit in course of his shrill advocacy for a draconian Act while supporting the Bill:
Quote
It is obvious that an anti terror law is not a substitute for stronger intelligence and security responses. You need a powerful intelligence mechanism which infiltrates into the enemy camp and brings you advance information of what the enemy is planning. The intelligence has to be coordinated and then effectively passed on to those who will take preventive measures. Your security responses have to be fast. Your commando reactions must send fear into the enemy mind. Obviously, an anti terror law is not a replacement of all these.
Unquote
It is not necessary here to get into the utterly perverse nature of Jaitley’s foundational assumption of some perpetual enmity and a permanent "enemy camp" except for noting that this is the central element of mobilization strategy of the Hindutva Brigade in pursuance of its “Hindu Rashtra†project – ideological negation and physical liquidation of “secular democratic†India.. But what is more relevant is that even he cannot run away from the obvious fact that draconian laws are no substitute for good intelligence gathering (to prevent acts of terrorism) and prompt and effective response to such acts when they take place nevertheless.
A rider, a forewarning, issued by the incumbent Chief Justice of India, in a recent article of his is extremely instructive in the current context:
Quote
(T)he trauma resulting from the terrorist attacks may be used as a justification for undue curtailment of individual rights and liberties. Instead of offering a considered response to the growth of terrorism, a country may resort to questionable methods such as permitting indefinite detention of terror suspects, the use of coercive interrogation techniques, and the denial of the right to fair trial. Outside the criminal justice system, the fear generated by terrorist attacks may also be linked to increasing governmental surveillance over citizens and unfair restrictions on immigration.
...
This implies that we must be wary of the use of torture and other forms of coercive interrogation techniques by law enforcement agencies. Coercive interrogation techniques mostly induce false confessions and do not help in preventing terrorist attacks. Furthermore, the tolerance of the same can breed a sense of complacency if they are viewed as an easy way out by investigative agencies.
Unquote
[Source: http://www.hindu.com/2008/12/16/stories/2008121653310800.htm]
Pretty unfortunately, but rather expectedly, the entire thrust of the discourse spearheaded by the outraged elite is to "tighten the law" to ensure "conviction" of the accused by granting more powers to the law enforcing agencies whose performance in stalling terrorist attacks amidst repeated claims of busting the "terror modules" and capturing, and also "neutralising" through encounters, the (innumerable) "masterminds" remains utterly and increasingly dismal. Highly conspicuous is any anxiety to ensure an efficient investigation and effective intelligence gathering and making those responsible for failures accountable for their failures.
Draconian laws, let there be no confusion, will only tend to turn the highhanded, corrupt and lousy police force even more so and thereby further worsen the situation. Not that there will not be more convictions and many more arrests, indefinite detentions, custodial and encounter deaths. The continued incarceration of Dr. Binayak Sen – a dedicated doctor of highest distinction and a human rights activist of national stature - behind the bars since May 2007 on apparently trumped up charges despite national and global protests, even without the aid of the newly brushed up UAPA Act, is enough of a pointer. But that will not stop or deter terrorism, rather further aggravate. It is a great tragedy that such measure is being sold and consumed considered as the silver bullet in spite of clearly proven track record of gross failures. The attack on the Indian Parliament, the Red Fort, Akshardham temple in Gandhinagar and also the hijacking of an Indian Airlines plane to Kandahar are just a few examples. All these are, incidentally, of somewhat similar nature as that of the latest attack in Mumbai.
The latest terror attack in Mumbai, which is somewhat atypical in the context of endless terror attacks in India since the one on March 12 1993 - flowing directly from the preceding bloodbath sparked on January 6 1993 – has, however, one common characteristic. That is the gross failure of intelligence.
Intelligence gathering and sorting out of the same through interactions of various agencies into actionable knowledge has various stages and levels. The gathering itself has essentially two categories – domestic and external. The external element is of course the charge of a very specialized agency mainly through a set of trained “spies†, and tips from other “friendly†agencies. The internal gathering process is, however, far more varied. Even then the base, and the most crucial element, is constituted of intelligence gathering at the grassroots level. Here the present practice is to obtain information through paid “informers†– all sorts of shady characters, petty and professional criminals. Given the extremely negative image of the police vis-à -vis the local communities, it could hardly be otherwise. But this method cannot but be far less efficient than would have been in case of voluntary and free flow of information from the common citizenry. But that would call for a very different image of the police. A very different relationship with the local communities. Instead of an institution symbolizing and embodiment of torture and oppression, the police has to have a people-friendly image in order to make that possible. But in such an event, not only intelligence gathering would be far more efficient – but that would rather be a fringe benefit – the maintenance of “law and order†itself would be much smoother.
Nothing can be truer and more forthright than a recent assessment of the current state of Indian policing as contained in a statement issued by the Asian Human Rights Commission on the last December 2, in the wake of the terror attack in Mumbai.
Quote
The fact remains that the Maharashtra State Police, like any other state police force in the country, can hardly do anything to avert these incidents. The state of policing in the country is in such demise that it has completely severed its contact with the people. Most police officers contact the members of the public only to demand bribes. Corruption in the police service is at such levels that even in order to lodge a complaint the complainant has to pay a bribe.
Police brutality is so rampant in the country that the sight of a police uniform is enough to scare an ordinary person, particularly among the poor population. Information, independent of its nature, has to be forced out of the ordinary people. Information obtained under the threat of violence is tainted and cannot be acted upon. Terrorists are different from the ordinary people in the sense that they have money, better training and equipment at their disposal to achieve their goals. They can bribe the police and are in fact doing so.
…
To expect an ordinary Indian to approach the local police with information is an impossibility in the country. An example is the statements made by the parents who lost their children in the infamous 2006 December Noida serial murder case. The case began after the recovery of the skeletal remains of missing children in Nithari village in the outskirts of Noida city close to New Delhi.
Unquote
[Source: http://www.ahrchk.net/statements/mainfile.php/2008statements/1789/]
The unfortunate “unanimous†passage of the freshly amended Unlawful Activities (Prevention) Act is only an indicator of the deep rot in the system. It is no less revealing that during the debates no one reportedly raised the very sensible and in fact obvious demand for a credible public enquiry covering all the aspects of widely alleged intelligence failure, response lags and lapses, who are behind the attack and why to work out a set of thoughtful and rational responses to make the system at least somewhat less vulnerable the next time round; to make the reoccurrence significantly less probable;. to make such a tragedy far less costly if it manages to happen nevertheless. We had only chest thumping demagoguery, clamour for draconian laws and war cries all around.
Instead of helping contain terrorism, let alone eradicating, it will only further aggravate social tensions through legitimization of corrupt highhandedness of the police force and targeting of specific segments of the society with full protections of the law. It is perhaps Gorky who had pronounced that if order is injustice then disorder is the beginning of justice. Unfortunately, law itself predictably turning more and more unlawful and tyrannical, more and more youngsters would tend to embrace that as a piece of divine wisdom with disastrous consequences on all sides to follow.
That even the sage words of the serving Chief Justice of India stand so casually dismissed only goes to further underscore the depth of the tragedy we have dug ourselves in.
Only an awakened common citizenry refusing to succumb to the easy lure of ugly blood lust triggered by such disasters as the last terror attack in Mumbai and steadfastly demanding thoughtful actions and radical reforms to prevent recurrence of such shameful failure is the way to get ourselves out.
