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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.

Noted legal scholar Martha Nussbaum wrote a post on the Univ of Chicago Law School Blog terming the Mumbai Attacks a cloud over India’s muslims. Her post makes some sense and as a believer of free speech, she has the right to do so.

Her article focusses on the fact that terrorism in India is not peculiar only to Muslims and thatradical hindu groupsalso engage in terrorist activities in India. She cites the Gujarat carnage and the recent incidents in Orissa as examples to show that such happens in our country. Her argument is that even though these incidents take place, there is a targetting of the muslim population that is taking place in India similar to that that happened in USA after 9/11. To quote her here,

“All of this is terrorism, but most of it doesn’t reach the world’s front pages. When it does make it into newspapers outside India, the word “terrorism” is rarely used. The result is a perception, in India and abroad, that Muslims are the bad guys in every incident of terrorist violence.

Such stereotypes are so prevalent that many state bar associations in India refuse to defend Muslims accused of complicity in terrorism — despite the fact that India’s constitution guarantees all accused a cost-free defense.

Meanwhile, Muslim youths are often rounded up on suspicion of terrorism with little or no evidence, an analogue to the current ugly phenomenon of racial profiling in the United States.”

Martha Nussbaum has a point here and to appreciate that, we need to focus on a definition of terrorism in general. Once we agree to the fact that terrorism in not related to the muslim religion as such, we can understand her views.

The comments to her article however, do not show any signs of acceptance. One reader writes,

I cannot believe the indian students in Chicago are not knocking on Nussbaum’s door demanding an apology for the insensitivity she has shown in this article towards India. It seems to me that she is justifying the actions of the terrorist by citing the actions of Hindus. So, the pakistanis’ have come to avenge the treatment the Muslims in India get? It was just as horrifying to read her opinion in LA times as it was looking at pictures of the dead in Mumbai. Indians don’t need to be hurt anymore than we already are.

Scott comments on the post as,

“I view Nussbaum as a terror apologist who intentionally misdirects readers away from the true nature of the Mumbai attack and its root causes. Previous comments have addresed various aspects of her actions. I will limit my comment to the most recent post in which the writer defends her by pointing out that she ultimately seeks punishment for those responsible. As Nussbaum says…”Let’s go after criminals with determination, good evidence and fair trials,…”.

I have a MAJOR problem with her (mis)characterization of the actions as being merely “criminal” in nature. At the time she wrote her op-ed,it was publicly known that the terrorists were singling out Westerners and and Jews as primary targets. It was also known that specific victims were also singled out and tourtured. In short, she denies the global Jihadist nature of the attack despite the facts!”

While the comments on the post are quite interesting to read and the readers vehemently attack her. Nobody seems to repudiate her ultimate conclusion that some Muslims are criminals. But that this does not in any way justify demonizing Muslims, any more than the violent acts of the Hindu right justifying stereotyping all Hindus as rapists and murderers. She asks the readers and governments to go after criminals with determination, good evidence and fair trials, and to stop targeting people based on their religious affiliation.

(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.)

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.


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 »