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“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”

 

Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.

To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.  

 

“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”

In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.

The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.

In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.

This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.

Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !

 

Readers may also read Law and Other Things  on the case and developments therein. 

 

 

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They came and destroyed my home, I ran away.
They came and killed my young brothers and sisters, I but mourned .
They surrounded us and stopped food and electricity supply to us, life went along.
Ten thousand bombs rained and I pretended that life went along.

Now when I stand up to fight for what I’ve lost, they say that I’m a  terrorist and attack me further.
(adaption of Bill haywood’s statement. Taken from the book ‘People v. Clarence Darrow’. )

365 deaths in the past three days as a result of Israeli air strikes and attacks on Gaza is not a joke. Especially when compared to the 11 killings by the hamas in Gaza on Israelis.365 deaths and the International community has not said anything official against Israel. Condolences come from all over the world but no state official has offered any.

Israel justifies these actions on their right to defend themselves. The jews are a community that have faced the most horrific crimes of humanity and perhaps can claim this right. But there has to be some limit on its use and this in no way extends to the killings of hundreds of people, blockades and the gravest human rights violations. Imagine having suffered as a race a few decades ago and then being the cause of the same suffering on another race now.

It is ironic that despite the gravest of crimes being committed against the palestinians, the international community has not raised any objection to the actions of Israel. There are still people in Sierra Leone and Khmer Rouge being tried for crimes of a similar nature if not far less graver. Perhaps it is a measure of the dominance of a race in the world today. The only sympathy shown by a international body has come in the form of a few paragraphs of the ICJ judgment on the Wall in palestine where it has shown some sympathy to the cause of palestine and condemning the acts of Israel.

The jurisprudence evolving from the Genocide cases in the International Criminal Court may lead it to draw inferences that states may be held liable for the committing of international crimes and human rights violations rather than the traditional perceptions that of only individuals being responsible. That Israel is responsible for its actions is left without doubt. The question that arises is whether the notion of self defence can be used to justify the killing of innocent people, women and children? Whether civilians can be targetted in a war between two armed groups ?

The Geneva Conventions and the additional protocols forbid such measures but Israel seems to be paying no heed to them. Even the United Nations has not said anything official on the issue. Mind you that about a year ago, the UN condemned Hamas strikes on Israel killing 28 people and nothing was said now when 365 are killed and numerous injured.

Maybe there will be a time when some concern is shown by the international community for the cause of the palestinians. Moving to the quote above, if this violence breeds revenge in the minds of a few palestinians, then why should they not rise up and protect themselves ? In as much as it may seem a little out of context, Martin Luther King Jr. in his letter from Birmingham jail talks of the rise of the negroes to injustice. The quote below should help us answer and understand the questions posed;

“But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children……….

There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience “

And when this impatience breeds revenge, it is not the revenge that is the crime but the act perpetrating it. Revenge is a mere justification. And an act of revenge cannot be used by the other to propogate more violence. Israel has vowed to destroy hamas with all its might. This action is itself a crime.

Lawrence posted an article by the LA times and states it to be “the most measured article on the subject”. Readers may read it here.

I would also suggest Mona- El- fara’s blog. It is by far the most touching blog on the palestinian conflict that I’ve read.

Read the rest of this entry »

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.



The picture above is of a Ugandan Child and a missionaire. Its been 60 years since the passing of the Universal Declaration of Human Rights, 1948 (10th December 1948 – 10th December 2008). It today is the single most important instrument for the protection of human rights around the world. May this picture send the message that a lot more instances of HR vioations lay ahead of it and with it the hopes of millions around the world.

The Chief Justice, KG Balakrishnan announced today that free legal aid would be given to all the victims of the terrorist attacks on 26/11. This has come as a welcome move from the president of the National Legal Services Authority (NALSA).

We know that the Indian Constitution under article 39 A guarantees the right to free legal aid to all citizens of the country and this recent act by the Chief justice is another step towards achieving that goal. Now the NALSA will provide all sorts of help to the victims and their families to get compensation, medical treatment, death certificates, Legal heir certificates, identity of missing people, insurance claims, workman compensation, recovering of movable and immovable properties and other benefit schemes from state or central governments.

While I praise this recent move, hysterical that I am, I would have been more impressed if the Chief Justice had announced and declared that there shall be no encumberances to an accused terrorist getting legal aid too. I write this because about precisely a year ago, in Afzal Guru’s case, the issue of legal aid was brought up and statements were made to the effect that ‘he is a terrorist and thus the fact of legal aid not being given to him does not matter’. That is not true; he was an ‘alleged terrorist’ and by virtue of being an Indian citizen he should have got legal aid.

I might have raised quite a few eyebrows by what I’ve said above. But I’d like the readers to fathom the facts that the foundations of our democracy rest of the principles of equality and non-discrimination and merely denying someone legal aid on the charge of being accused as a terrorist is not in consonance with that foundation. I wrote earlier that democracy biggest failure would be it succumbing to the threat of terrorism and modifying its actions based on that threat. That should not be the case.

It would thus have been a pleasure to here the Supreme Court declaring free legal aid even to one accused of terrorism if he cannot find the finances for himself.