Part III- The myth of ‘tough anti-terror laws’.

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.

A Means- End Approach

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)

The Judicial Standoff

I must confess and state that I am strongly against judicial activism and the prevalent attitude of the Court to frame law and make people and institutions subject to it. Protecting the rights of the individual and seeking to enforce them under writs of mandamus and ‘public interests litigations’ is one thing; but to totally transcend Constitutional dictats and attain a degree of superiority over the other two branches in non-fundamental rights areas is totally another. In the latter, I talk with specific reference to the ‘Judges cases’ and the practice of the Supreme Court and High Courts to elect its own judges.

Under the Constitution, the President is to appoint the judge on the recommendation of the Chief Justice of India. The Constitution also mentions the qualifications required to be a Supreme Court and a judge of the High Court. However in a series of decisions starting from SP Gupta v. President of India in 1982 till the Judges Reference case in 1998 the Supreme Court has taken upon itself the power to appoint the judges making the sanction given by the President and the Executive a mere ministerial act. The procedure now; nowhere mentioned in the Constitution; is that a collegium of judges is to be formed and the Chief Justice, upon their recommendation sends the names of the suitable judges to the President. The President now sits as a puppet and is bound to approve of the Chief Justice’s choice unless there is some extraordinary reason.

This is by far the single most important act of activism by the Courts that is nowhere mandated by the Constitution but for the Article guaranteeing the independence of the judiciary (Article 94). No other democracy in the world seeks to put forth and approve of this view of the Court appointing its own judges

A few days ago the Chief Justice forwarded the names of 3 judges of various High Courts to be appointed as judges of the Supreme Court to the Prime Minister’s Office. The PMO upon noting that few senior judges had been superceeded by this recommendation has sent the list back to the Chief Justice. This is a bold move by the executive considering that by the decisions of the cases mentioned above, the executive is bound to follow the CJI’s recommendations. In fact, this is one of the first instances where the executive has put its foot down and decided not to succumb to the ridiculous will and mandate of the judiciary. The Constitution mandates that the executive and legislature aid the judiciary in the enforcement of its decisions and that not doing so would lead to a contempt of Court. The only known instance where the Court tried to make use of this power was when the Speaker of Manipur Ibobi Singh decided not to follow a Court order cancelling disqualification of certain MLA stating it was not in the jurisdiction of the COurt to do so. The Supreme Court had then initiated contempt proceedings which were later withdrawn. This instance then gives a chance for the Court again to debate on its jurisdiction and powers and rethink certain ridiculous decisions that it had made earlier.

In what was once reckoned to be the ‘least dangerous branch’ by Alexander Hamilton the Court in India is seen to transcend constitutional limitations to give itself great powers. Chandrachud J. had described such a phenomenon in In re Special Courts Bill in 1979 as the ‘great usurpation of power’ and cautioned the judiciary against it. Alas! I don’t think such a sentiment has echoed within the judiciary over the past two decades.