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Mark Felt, former FBI officer who revealed himself to be the key informant in exposing the Watergate Scandal (‘Deep Throat’), has died.

Felt, 95, breathed his last yesterday in a clinic close to his home in Santa Rosa, California. During the years of the scandal he was one of the highest ranking officers in the FBI, instrumental in investigating the break-ins and burglary at the Democratic National Office in Watergate Complex. The investigation subsequently uncovered a nebulous network of campaign fraud, illegal tax audits, political espionage and wiretapping associated with Nixon’s Re-election Committee; mounting bipartisan political pressure coupled with a series of futile court battles forced the President to resign in 1974.
Many of you might have seen Hal Holbrook’s performance as ‘Deep Throat’ in the famous movie ‘All the President’s Men’. Deep Throat’s identity was kept anonymous for 30 years by Washington Post journalists Bob Woodward and Carl Bernstein, until Mr. Felt himself revealed his informant status in 2005.

‘Deep Throat’ remains a legendary figure in investigative journalism circles and continues to be an inspiring icon for righteous officers of the State. Felt himself had come under heavy criticism for being a ‘traitor’ and letting down the Commander-in-Chief; many attributed his opposition to the President’s scheme to vindictiveness, for being superseded in the FBI Directorate by Nixon’s close political associate. However, there were many who disagreed.

As he himself wrote later,

The President wanted a politician in J. Edgar Hoover’s position who would convert the bureau into an adjunct of the White House machine.

Individuals like Felt are a rarity in today’s bureaucratic set-up; the extant legal regime must ensure that whistle-blowers and vanguards against corrupt official practices are protected.

To quote the American prosecutor, John Nields, from The Washington Post in 2005,

As Deep Throat, Felt helped establish the principle that our highest government officials are subject to the Constitution and the laws of the land.

Continuing from my previous post, it is high time that the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, be revisited by the Supreme Court. This I say, in light of the recent amendments to the Unlawful Activities and Prevention Act (UAPA). The Constitutionality of the most anti- terrorist laws is settled by the ratio in Kartar Singh’s case and when a change is made to these laws that wasn’t brought up in that case, the new principle of law cannot bask under its legality. In this post, I propose to examine the Constitutionality of the provisions of bail with regard to what was contented in Kartar Singh v. Union of India regarding bail.

In Kartar Singh’s case, the challenge to the provisions of bail was brought about by two main provisions; first the denial of anticipatory bail under S 438 of the CrPC by the addition of s. 20(7) of the TADA, 1985. The second was the induction of s. 20(8) that severely restricted the conditions of bail and stated;

“(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

This is totally different from completely denying bail to a foreigner till the time of his trial under the new amendment to the UAPA. The Amendment states that no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.

While numerous judgments were cited to explain the provision of anticipatory bail and the right to bail in India. As regards the non-applicability of s 438 CrPC, the Court declared it constitutional with its reasoning based on the lines below;

“para 328 – where a person accused of a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail?”

Coming to the more important aspect of severely restricting the conditions of bail, it was contented by the petitioners that that this subsection infringed the underlying principle of Articles 21 and 14 of the Constitution as the is made it impossible for even an innocent person to get bail when he is falsely charged with an offence under the TADA Act. Stating that it is a a salutary principle of criminal justice is that every person is presumed to be innocent till he is proved to be guilty, this provision under challenge goes diametrically contrary to that principle. Reliance was placed by the petitioners (para 339) on Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, wherein Krishna Iyer, J. has commenced his judgment with a prefatory note reading,

“‘Bail or jail?’ at the pretrial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion” and observed,

“The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19”

The Crux of the argument by Ram Jethmalani and VM Tarkunde in this case was the there is a constitutionally guaranteed right to bail that has been held to be entrenched in Article 21 and restricting it to conditions other than that mentioned in s. 437 of the CrPC are violative of the right. The State placed reliance on the fact that there was sufficient ratio to state that the right to bail has at its core the idea of protection of the public and justice concerns. Added to this he brought in the idea of community justice which the Court relying on held’

“para 351 – No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution.”

The Court in this case finally held that the right to bail was not totally denied to the accused but that only its conditions were limited by a special law. Based on the fact that it wasn’t totally denied, the above provisions were held constitutional in the case. The same reasoning was used by the Court while deciding the Constitutionality of the POTA in PUCL v. Union of India. The Court also held that irrespective of such limitations, the accused may approach the High Court under Article 226 to consider his application of bail. (Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271)

If this were the ultimate reasoning of the Court, then today when the Amendment completely denies bail to any foreigner, surely this provision must be in violation of the Constitution. Even if it is not in violation of the Constitution, inter alia, its constitutionality cannot rest on the ratio in Karat Singh’s case because that decision did not contemplate this factual situation. Worse, that if this not be addressed now, then the silence would be taken to mean that it is constitutional which may not be the case. It is sad that the constitutionality of a statute is decided in the garb of terrorism and not the rights enshrined in the Constitution. Time and again in Kartar Singh’s case reference is made as to the supremacy of community interest over the rights of a ‘terrorist’ and that the criterion of legality rests on it. This should not be the way the law works.

Kudos to Arun for his excellent posts on the Mumbai terror attacks. (Parts I, II and III here)

The Lok Sabha today passed the bills calling for the setting up of the National Investigative Agency (NIA) and the Amendment to the UAPA calling for tougher laws to tackle terrorism. Ironic how it took a 26/11 to get all this down. The downside to this, can be summed up by lines from Aldai Stevenson’s famous speech, “The Nature of Patriotism” given in 1952;

“The tragedy of our day is the climate of fear in which we live, and fear breeds repression. Too often sinister threats to the Bill of Rights, to the freedom of mind, are concealed under the patriotic cloak of anti-communism.”

Aldai Stevenson then stated that the show of patriotism under that cloak is a phony. Then it was communism and today it is terrorism. The recent laws are witness to this.

Muntadhar al-Zeidi, a local reporter hurled a shoe at President George W Bush when he was giving a press conference during his visit to Iraq. This guy has now got the status of a hero in the Country where still thousands scorn the occupation of their country by the United States of America.

Now, his case has been transferred to the Central Criminal Court set up by the US in 2003. The procedure under Iraqi law is that an investigative judge is going to review the evidence and then decide whether the accused should stand trial. If he finds in the affirmative, then a three judge bench would sit and determine his guilt.  What exactly may he be charged with? Here are some of the options;

– An assasination attempt on President Bush ?

– An ex supporter of Saddam and now having an alliance with the terrorists?

– Insulting a foreign leader. This is what the Iraqi officials have actually recommended.

Meanwhile, after his arrest, the reporter was tortured and is reported to have a broken leg, cracked ribs and some injuries under his eye. Even with the establishment of the rule of law that US authorities are talking about in that country, torture is an open concept and no action seems to be taken on that charge. America has openly declared that it would not interfere with the Iraqi justice system in this matter. Considering that he was tortured and beaten up, they should. At the same time, we are talking of a country that blatantly violates human rights law and tortures people in Abu Gharaib and Guantanamo.

The Supreme Court under Chief Justice Balakrishnan and Justice Sadashivam, today heard the petitioners’ (Nandini Sundar and ors, Kartam Joga and ors) response to the NHRC report on Salwa Judum. The counsel for the petitioners, Mr. Ashok Desai, pointed out that the report contained a number of findings which supported the petitioners’ grievances, such as the burning of villages by Salwa Judum, complicity of State Police and administration in arson and looting of property; Government and political sponsorship of Salwa Judum rallies;forcing of villagers into camps; inhibition of freedom of movement, extra judicial killings by SPOs; suspect encounters and non-recording of deaths, recruitment of minors as SPOs, and arming of civilians as a vigilante force.  The NHRC report notes with respect to sangham members who are unarmed villagers,

“these villagers were specifically targeted when Salwa Judum was on the rise. The enquiry team has come across instances where some of these villagers were even killed (no criminal cases were, however, either reported or registered). Though the State has taken action against SPOs in some cases for violations like murder and attempt to murder, but these cases do not pertain to the violence let loose on innocent villagers during operations against Naxalites.”

The Chhattisgarh Government, which has continued to publicly justify Salwa Judum, admitted in its affidavit and annexures to the Supreme Court that villages had been burnt by Salwa Judum and security forces, and there had been serious offences committed by Salwa Judum, SPOs and security forces in which no action had been taken and no FIRs had been registered.

On 17th October, in response to the Supreme Court’s order that the CG government take some immediate steps on the NHRC report, the Home Secretary of Chhattisgarh issued orders to the Collectors of Bijapur and Dantewada that “necessary action be taken for rehabilitation of uninhabited villages; necessary relief money be given in the cases of properties damaged by Salwa Judum activists/security forces, besides naxalite violence, after village wise analysis, security forces be not allowed to stay in school/ashram buildings; facilities of ration distribution, PDS, health, toilet etc. in the relief camps be ensured.” In addition, the DGP has issued orders to all SPs to register FIRs on receipt of information, and to prepare a village wise list of missing persons.

When counsel for the petitioners pointed out that despite admission of violations, till date no compensation had been publicly announced, leave alone carried out, CG counsel made the excuse that they could not do anything because of the election code of conduct (though this did not stop them from distributing free rice and blankets).

Chhattisgarh government has been asked to file an Action Taken Report to the Supreme Court on the implementation of compensation and rehabilitation measures on a village wise plan and register FIRs against all cognizable offences, by January 28. This will involve bringing back refugees from Andhra Pradesh and compensating them.

The Supreme Court has given time for a detailed hearing in the first week of February, to go into all matters of killing, rape etc. The Judges recognized that the cases mentioned in the NHRC report are only a fraction of the total charges, and will go into the prosecution and other issues in greater depth at that time.

More on;

Campaign for Peace and Justice in Chhattisgarh
Email: cpjcindia@gmail. com;
Website:www.cpjc.wordpress. com
Contact for further information: Nandini Sundar 9868076576, MJ Vijayan
9868165471 (Delhi),
Manish Kunjam 09425260360 (Dantewada),
Himanshu Kumar 09425260031 (Dantewada)