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At the outset, I must thank Aditya for giving us a casual glimpse of the Mumbaikar’s genuine reaction to the terror attacks in the city. Everything in that mail, right from the mode of addressal to the syntax, conveyed a stunning portrayal of the grim picture; something that a discourse can never hope to achieve.

Yet, it is necessary that we look forward to the future and appraise ourselves of the impact that the attacks have had on our country. Its heartening to see a spirited sense of unity that has gripped the country in our time of crisis. Political and bureaucratic accountability is rapidly becoming a buzzword in media circles, and heads seem to have begun rolling. India’s citizens want to see an efficient anti-terror system in place, and there can be little compromise on national security. The Government has, at last, responded to this rallying call, promising to usher in sweeping changes in the legal regime.

Amidst the simmering hype and hoopla about tougher anti-terror laws and a new federal security agency,however, it is imperative that we thoroughly comprehend the legal framework placed before us. The importance of public opinion on the proposed legislative solutions cannot be overstated. India has been hurt, and hurt badly. The law cannot be mere eyewash but must efficiently tackle this menace haunting us. Steps taken must not be solely curative, but must strike at the root of the matter, enforcing preventive measures. Another attack of this magnitude could have adverse consequences, well beyond our imagination.

(To be continued..)

(This post is the first among a three-part article; the subsequent ones would

a) list out the proposed changes in the legal regime and b) through an analysis of these proposals, attempt to debunk the myth of tougher terror laws.)

In December 2007, the Supreme Court deliberated upon the question as to whether conducting a narco-analysis test is constitutional and violative of fundamental rights guaranteed by the Constitution; the arguments were concluded in january and the judgment is not out yet. Its been more than 11 months since and what we have seen is an unprecedented increase in the number of people these tests are conducted on. Every time there is a high profile case, the CBI (Central Bureau of Investigation) or the ATS (Anti- Terrorism Squad) proceeds to conduct the test with an aim to get out some information. 

Fortunately, most of these tests haven’t succeeded in getting out information, and in the cases where they have; they’ve been at the cost of infringing the protection against self- incrimination and the right to life and privacy. Every major democracy in the world has declared this test unconstitutional on the above grounds and we in India more often than not quote Dershowitz’s ticking time bomb example to justify this test; “If it helps to save the bomb, its all right”. 

In an attempt to make this a short post, I shall end as a question for us to ponder;

Considering that narco-analysis does violate the rights of the accused, is it right to suggest that even though these rights are violated by the test, in order to protect the society they must be performed?

PS: I had the good fortune of working with Mr. Andhyarujina on this case in the Supreme Court and would be putting forth detailed arguments in time. 

My latest area of research includes a certain approach called the ‘Means- End’ approach that the Supreme Court is following now a days. Below is a draft chapter of the article wherein I analyse this approach vis-a-vis anti- terrorist legislations.

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Criminal law is best understood as an instrument of control that the state uses against its citizens and other persons within its territory. This becomes apparent in the way a state defines an offence. One illustration of this axiom is the resistance of the state to enact enforced disappearances, fake encounters and genocide into the law. In contrast is the power the state has arrogated to itself through the Prevention of Terrorism Act 2002 (POTA) to declare an outfit as a ‘terrorist organisation’, impacting the potential to prosecute and outlaw. Since laws often get enacted in response to pressure from groups outside government, or to make a political statement, the difference that the law makes depends on how it gets enforced and used, reaching beyond its enactment[1].

Criminal law mechanisms to tackle the ‘terrorism’ have more often than not to face the scourge to being oppressive and insensitive to human rights concerns. In fact, to use what Dr. Ramanathan mentions above, they are used to make a political statement by the Government and more so, a show of power.[2] In countries like India, where terrorist activities have become an everyday phenomenon, and Governments press for the need of more specific laws to deal with such activities, there is a constant need to evaluate such legislations to the standards of fundamental rights and other constitutional limitations.

In 1977, Ronald Dworkin wrote ‘Taking Rights Seriously’[3], a book that argued that that rights must be understood as extremely important moral concerns, and cannot be outweighed merely because a majority would be better off by violating the rights of an individual. Rights need extremely strong protection because they are necessary for the dignity and equal respect of individuals, especially when those individuals form a minority within a society. Dworkin finally says that only when governments respect rights will respect for the law be generally reestablished[4]. More so, diverting from a jurisprudential standpoint, the Indian Supreme Court[5] has also sought to maintain a highly moral standpoint on the protection of fundamental rights and seeing them as inherent with the dignity of the individual and a restriction on the law making power of the Government[6].

Since independence, anti- terrorist legislations have been ever present in the statute book. These legislations consists of provisions to extend habeas corpus protections to 48 hrs, direct search and seizures, discretion to the authorities to declare any person and area a terrorist or a terrorist affected area, the legalizing of confessions made to a police officer etc..

These antiterrorism laws have raised significant human rights concerns in the past decade. Some of those concerns have remained even in the aftermath of the repeal of the Prevention of Terrorism Act[7] (POTA), since the Indian government has preserved many of the law’s provisions in other statutes. Other, similar laws also remain in place at both the central and state levels, such as the Unlawful Activities (Prevention) Act[8]. Attentiveness to these human rights concerns is not simply a moral and legal imperative, but also a crucial strategic imperative. As the Supreme Court of India has recognized, “[t]errorism often thrives where human rights are violated,” and “[t]he lack of hope for justice provides breeding grounds for terrorism.”[9] Since terrorists often deliberately seek “to provoke an over-reaction” and thereby drive a wedge between government and its citizens – or between ethnic, racial, or religious communities – adhering to human rights obligations when combating terrorism helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state.[10]

In two cases, Kartar Singh v. State of Punjab[11] and People’s Union for Civil Liberties v. Union of India[12], the Indian Supreme Court declared two anti- terrorist legislations as constitutional and described them as the ‘need of the hour’.[13] These two decisions remain of utmost importance in this issue and any debate on terrorism and human rights must proceed with an analysis of the issues raised in this case. It is the attempt of the researchers to critique the approaches taken by the Supreme Court in such matters by giving an analysis of the fallacious legal proposition evolved by the Court and its transformation from what we used to call ‘the guardian of justice and fundamental rights’ to the ‘defender of sovereign action’. (Continue reading the paper below) Read the rest of this entry »

The University of Chicago Blog contained a debate last week on “Torture, Law and War”. Below is the summary of the debate. 

This week’s Faculty Podcast episode features a panel from the “Torture, Law, and War” conference held at the Law School earlier this year; the panel includes 2007-8 Law and Philosophy Fellow (and current Visiting Scholar) Scott Anderson, Kirkland and Ellis Professor of Law Eric Posner, and Rutgers University’s Jeff McMahan. They discussed the questions:   Should the law absolutely ban coercive interrogation?  And can and should it really mean it?

The video can be seen on their blog site here. 

For starters, I don’t intend to be prophetic in my evaluation of the recently concluded Gujjar Community-Rajasthan Government wrangle. However, I cannot help but observe, quite candidly, that the whole situation serves as a dark episode in the history of civil liberty movements in this country. The reasons for such analysis are not too far to seek.

For a moment, let us relive the influence of caste in shaping the political, cultural and even geographical history of India; caste as an index continues to affect our public policy, be it through coalition governments or affirmative action, and hence is a critical determinant of the upward/downward mobility that the Indian citizen attains in life. Central and State Governments, have throughout the course of post-Independent India, engaged in active programmes that seek to mitigate the wrongs of historical discrimination meted out to various castes. One may indeed argue that the whole gamut of events has only recently, acquired a political twang. Caste-based violence still continues to be a haunting reality in rural India, with incidents of isolated and systematic torture frequently surfacing in the news.

Taking such grim reality as the backdrop to this article, it is important that we understand the repercussions of granting ‘special, backward community’ or ‘ST’ status to Gujjars. Not because the additive 5% would increase the ever-burgeoning basket of reservations in the quota system, but because the 5% so granted was the direct and immediate consequence of untoward and violent rebellion against the State. Of course, the million-dollar question is always going to be whether the Govt. was right in granting such privileged status to the community? Nonetheless, the finer aspect of the issue still remains: Was the Govt. right in acquiescing to the violent methods of the Gujjars in granting reservation? The next logical question would then be: Is not the Govt. setting a bad precedent, effectively indicating that ends can be achieved through such caste-based violence? The answer, unfortunately, is a loud and thumping Yes.

(To be continued.)