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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.
Talking at length on terrorism, King Khan also tried to come up with reasons why India has been attacked time and again by terrorists. He feels that the reason for terrorism against the country is three-fold. First, terrorism is always against the secularism of this country, secondly, the dignity of this country irks the terrorists and thirdly, the economy of the country also irks them. He reasons, “So always why does a terrorist attack? They can’t take over our city, they can’t take over the country by this and I fully believe that the secularism is something that is most existent in the country, in the people of this country. And when that is thwarted, then this country won’t be such a beautiful country as it is.” Adds he, “Hindus and Muslims have stayed together in this country for years and we will continue to do so. It’s an amazingly secular place and amazingly democratic place. May be those are also some of our problems that we are too democratic at times.”
This has been by far one of the most sensble things said by any personality about the attacks. The above is a part of an interview Shahrukh Khan gave to Barkha Dutt on his views on the Mumbai attacks. Keeping his acting skills aside, my admiration for this man has certainly increased.
(This post forms the second of a three-part article. The next one attempts to debunk the myth of tougher terror laws).
The overwhelming public response to laxities in handling terrorist attacks and security threats has prompted the Government to formulate a proposal for a federal anti-terror agency. The proposal, incorporated as an amendments to the National Security Act, 1980 is expected to be tabled in the upcoming Parliamentary session. The Bill, currently in its nascent stages, has not been placed before the public yet; we’ve relied solely on secondary sources to analyze the amendments.
The changes to the existing law include
- Setting up of a National Security Authority that will take charge of administration and supervision of all investigation of terrorism-related crimes across the country
- The Authority, comprising a Chairman and five members, will be responsible for prosecuting the accused
- The appointment of a Security Commissioner (a high-ranking IPS officer) in each State, who will report directly to the Authority
- Stringent Bail provisions
- Fast-track Courts
- Death Penalty (no surprises here)
- Freezing of assets and bank accounts of those accused and their overt and covert sympathizers and sponsors
- Punishment for those found guilty of raising funds or sponsoring terrorist acts, conspiracy, harbouring terrorists or threatening witnesses
While the attempts to usher in reform are perhaps well-intentioned, the proposed changes do not seem to be a radical digression from the extant system. The introduction of a National Security Authority will merely augment excessive bureaucratization, the very lapse currently being highlighted post-Mumbai. The Authority seems to be quasi-judicial, with powers to prosecute the accused. In this regard, it is important to note that the framework seems to base itself on the ethos of Tribunalization. While the main purpose of creating alternative judicial forums is to expedite the process of justice delivery, the same attitude cannot be adopted in an issue of such magnitude. Quasi-judicial authorities or fast-track courts are not the solution to tackle terrorism, as it involves a long, extended process of collecting evidence and arriving at conclusions. The allegations raised towards the accused will be, no doubt, grave – it is important that the veracity of claims is brought out through extensive investigation and not speedily dismissed. Missing the target will not only fail to curb terrorism, but also reduce the public’s faith in the legal machinery.
One may question the role of the Security Commissioner in each State; are they acting as officers of this quasi-Court? Will their findings and observations be treated as evidence? Is the State Police involved in assisting the Security Commissioners? What difference does such appointment bring about, apart from adding an unnecessary intermediary? These are questions to which the Government must respond. The onus upon the establishment to effectively tackle terrorism cannot be guised in the form of knee-jerk reactions.
The other provisions seem to belong to the macho-class of anti-terror laws. They have been advertised as tougher, more stringent norms to curb the menace of terrorism. However, tough does not mean efficient, as my next post will hope to convince.
(To be continued…..)
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.)
Rather writing something of my own sitting 12,000 miles away in Canada, I thought it’d be better to put in an email conversation that I had with a close friend of mine, working in south Mumbai, right at the heart of where the ill- fated attacks occurred.
hey bro,im fine, everyone in office is fine…but the city is not fine…everyone knew someone who was affected somehow. some lost their family members, some lost friends, and some lost there fellow indians…they were terrorists with clear missions, they held the taj gateway and oberoi hostage along with nariman house for 3 days, not fearing death and merciless towards people…it was a completely and total take over of our own home. they had gotten into our homes, killed everyone they came across and were willing to kill anyone else who came in their path…its damn scary that we had to fight to regain control of our city..hats off to the army, navy, police, and the rest of the security forces for the came back from behind and fought…but someone needs to teach these freaking politicians a lesson now…im hopin they understand from this and stop dividing the country over vote politics…and actually start paying attention to the large issues at hand..anyways ..hope all is well with u ..u take care_______
Hope this message gets sent to all those involved in making India safer.
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