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Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.

1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).

2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.

KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.

Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.

On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.

Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:

Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.

Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.

The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.

Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;

It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.

The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.

Read below to know how ridiculous people and organisations can get;

Editorial: Disgrace at Carleton

National Post Published: Wednesday, November 26, 2008

Cystic fibrosis is a horrible disease. A congenital ailment, CF affects the mucus glands of the lungs, liver, pancreas and intestines, gradually interfering with digestive and respiratory functions until such time as the victim dies from organ failure — usually in his or her 30s.

All of which would seem to make cystic fibrosis research a worthy cause, right?

Wrong, you racist. This week, the Students’ Association at Carleton University in Ottawa voted to drop cystic fibrosis as the beneficiary of its annual Shinearamafundraiser. The reason: CF “has been recently revealed to only affect white people, and primarily men” — and therefore is insufficiently “inclusive.”

Even by the loopy standards of students governments, this has got to be a new low. Had the author of this resolution bothered so much as to look at Wikipedia, here is what he or she would have found: “Approximately one in 25 people of European descent … is a carrier of a cystic fibrosis mutation. Although CF is less common in these groups, approximately one in 46 Hispanics, one in 65 Africans and one in 90 Asians carry at least one abnormal CFTR gene. Cystic fibrosis is diagnosed in males and females equally.”

That same author would also have found a photo of a young black girl staring back at him from behind a mask nebuliser.

But even if it were true that only white males got CF, what of it? We raise money for breast cancer even though it is primarily a female disease. We raise money for Tay-Sachs, even thought it strikes almost exclusively Jews. That’s because we raise money to save people– not tribes.

Members of the Students’ Association at Carleton University have disgraced themselves and their school. In a fair world, their funding would be docked by the same amount they raised for CF last year –and the money directed toward the disease’s victims, in all their “inclusive” need.

On Nov. 7, a Supreme Court Bench comprising Justices Thakker & D.K. Jain held that an abortion by a woman without her husband’s consent will amount to mental cruelty and a ground for divorce. To quote the Hon’ble Bench,

Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse.

Cruelty is laid down as a ground for divorce in the Hindu Marriages Act, 1956. That the SC has gone beyond the realm of physical abuse to recognize recurring instances of mental cruelty in marriages is welcome news indeed. Nonetheless, one may observe with deference that linking abortion (without the husband’s prior consent) to mental cruelty is perhaps not in consonance with the female partner’s freedom of choice and decision-making.

At the onset, it is pertinent to note that there is no constitutionally guaranteed right to abortion in India. The limited ambit of this right stems from the Medical Termination of Pregnancy Act, 1971, where S. 3(2) provides for the ‘termination of pregnancy’ in certain cases. The statutory right is extremely constricted, and the abortion cannot be by mere demand but by concurrence from medical practitioners in good faith. The provision itself is an expression of society’s widespread belief that women are incapable of making judicious and independent choices. The conditions laid down in the Act permitting such termination would seem more technical and patronizing in intent, and certainly not reflective of a rights-oriented paradigm.

Arguments before Courts on the matter are invariably convoluted with the right to life of the unborn foetus. In a head-on collision between the rights to life and abortion, there are no prizes for guessing what the activist judiciary will favour. Having said that, it is also important to observe that the Supreme Court, in abortion cases before it, has held the condition, opinion and consent of women in high regard. However, those were all instances of women refusing to abort; not of active affirmation to do the same (See cases like Dr. Nisha Malviya and Anr. Vs. State of M.P, Shri Bhagwan Katariya and others Vs. State of M.P. 2000.)

In an already tapered-down scenario, it is humbly stated that the SC through its recent judgment in Suman Kapur v. Sudhir Kapur(Nov. 7, 2008) has further exacerbated the submissive condition on women in our society. The Hon’ble Court has virtually stated that the husband’s consent is mandatory before a foetal abortion is made: by linking the absence of consent to mental cruelty, the Apex Court has given the already-dominant male partner a trump-card of sorts to enforce his preferences on a matter critically relevant to women. Perhaps the Hon’ble Court may have been guided by the pressing need to endorse consensual decisions in the family. However, the judgment cannot be read in isolation from prevalent societal circumstances, and one can regretfully point out the existence of anything but a level-playing field.

It is perhaps fitting to conclude with the words of Dr. Betty Friedman in her Keynote speech during the 1st National Conference for repeal of Abortion Laws held in Chicago (1969):

There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…………The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.

Four years later, the U.S Supreme Court responded bravely and echoed her sentiment in Roe v. Wade. Is it not time we embraced the same reality?