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December 18,
2002

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Praful Bidwai

Fighting Terror, Upholding Law

It is a strange but remarkable coincidence that the question of judicial accountability should have hit the headlines through alleged scandals in the Punjab and Karnataka high courts in the very same fortnight in which India's first trial in a special court under the Prevention of Terrorism Act came to fruitition.

This itself coincided with International Human Rights Day and the first anniversary of the Parliament attack. So this is a good occasion to take stock of a whole gamut of issues concerning terrorism, the police, crime and punishment, human rights and the Constitution.

Three propositions are in order. First, India has witnessed a steady increase in the incidence of crime, including heinous crime, over the past two decades -- in spite of the promulgation of tough, indeed draconian, laws, and the enforcement of special police measures in state after state. Thus the National Crime Records Bureau reports a 20 percent plus rise in all crimes over the past decade. This is so despite growing spending on the police all over India. The central police budget alone has increased fivefold over the decade.

Second, the police increasingly fail to prevent or punish crime; they rarely pursue criminals and prosecute them professionally. The killing of Veerappan hostage Nagappa, the filing of sloppy or faulty chargesheets in the Ottavio Quattrocchi and Abu Salem cases, and the way the Bharat Shah trial is going with key witnesses turning hostile, all bear testimony to rising police ineptitude and inefficiency.

The criminalisation of the police, through corruption, recruitment of shady elements, bad leadership, and political interference is a dangerous but growing phenomenon. This affects its performance not just in crime control, but in simple matters such as maintenance of law and order and traffic management. Atrocities by the police and other security forces alone have grown by 800 percent over the past decade.

Third, the judiciary too is in deep crisis. The burden of 30 million-plus cases upon the high courts is unmanageable; it is set to rise sharply. As for the subordinate courts, the less said the better. The failure of India's justice delivery system is as legendary as comprehensive. The reality is that even fire-fighting does not work anymore. Thus, so grotesquely long are our judicial delays that three-fourths of our prisoners are undertrials.

Even less does fire-fighting work at the level of society and policing. Our crime rates have been rising not so much because the quality of policing is falling (which it is), and prosecution getting longer (it is), but because we increasingly fail to acknowledge, leave alone address, the root causes of crime. Few people in power, especially in this government, talk of these. But our social scientists have analysed them well. These causes lie in widening, virtually uncontrollable, income and regional disparities, and the creation of a huge underclass, some of it educated, who have no future. Equally important are the negative examples set by the privileged and powerful with their ill-gotten wealth, their tax evasion, their monumental corruption, and their decadent lifestyles.

In a society where there is no rule of law for the rich and powerful, it is illogical and unconvincing to demand it should apply to the poor and weak. In the absence of policies to promote social cohesion, 'lawful behaviour' or conformity can only be imposed upon the less privileged by force. But this only corrupts the police further as a partisan agency serving the privileged, which is designed for some kind of privatised coercion or violence. A corrupt police cannot deter crime. On the contrary, it will further fuel the cycle of privatised violence-crime-further violence. This is precisely what is happening in India.

The cure for this lies in wise policies which eradicate mass-scale poverty and deprivation, and promote equality, openness, transparency, probity and social solidarity -- as well as in better justice delivery and policing. However, what is being officially advocated today is an unbalanced, warped approach -- of yet greater coercion, through more repressive laws and procedures. This approach is being assiduously promoted in the guise of fighting 'terrorism' -- as if that can be totally separated and disembodied from its internal and external causes. Thus, BJP general secretary and former law minister Arun Jaitley wants a whole new criminal jurisprudence, something more draconian than POTA itself.

The government has now set up the Malimath committee for criminal law 'reform,' headed by a former high court chief justice. This has the blanket mandate to 'examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence, and see if any modifications and amendments are required.'

It has sent out a questionnaire which indicates its orientation. It basically asks: Should we dispense with the basic premise of criminal law, namely, proof of guilt beyond reasonable doubt? Should we not do away with the right of the accused to silence? And, should we not abolish the right of the accused against self-incrimination?

If the answer to these is 'yes,' then the government will embark on a violent revision not only of all criminal laws, but of the Constitution itself -- and thus subvert the fundamental principle that in a civilised society, an accused must be considered innocent until proved guilty beyond doubt.

The whole basis of the criminal justice system in the civilised world is to put the onus of proof of guilt upon the prosecution, not the accused -- or else, the presumption of innocence would be violated and the accused would be treated as guilty without fair trial. It is also vital to protect the accused against forced confession, coercion or torture, and allow for cross-examination of witnesses and review of evidence.

These guarantees are fundamental requirements of Article 14 of the International Covenant on Civil and Political Rights to which India is a signatory. This reads: 'Everyone charged with a criminal offence shall have the right to be presumed to be innocent until proved guilty according to law.' Article 1 of the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, which came into force in 1987, also totally outlaws intimidation, coercion, infliction of pain or suffering, whether mental or physical, for securing information or a confession.

This has been upheld by our Supreme Court as a fundamental right under Article 21 of the Constitution. This cannot be rewritten or amended, being part of the basic structure of the Constitution.

It is equally relevant to cite Article 359, which says that even during a state of emergency, the right to move a court to enforce the rights conferred by Part III of the Constitution on fundamental rights may be temporarily suspended, but Articles 20 and 21 cannot be. Now, Article 21 concerns the right to life, and Article 20 says 'no person shall be compelled to be a witness against himself,' nor 'be prosecuted and punished for the same offence more than once' or more severely than specified by law. This means that the right of an accused person to silence, not to incriminate himself/herself, is absolute. A statement or confession made by him to a police officer is not admissible as evidence.

To amend these principles would thus amount to a retrograde violation of the Constitution. It would transfer the burden of proof, remove the right to silence, and allow for extra-judicial confession. It is particularly pernicious to cite the 'war against terrorism' to rationalise this. Terrorism is a crime. The word 'war' dignifies the terrorist as an 'enemy' instead of a criminal. It polarises the world between 'us' and 'them,' which is just what the terrorist wants. It inflicts further violence on innocent people and nurtures the negative, revanchistic feelings that lead to terrorism.

Terrorism cannot be combated except by the enforcement of the rule or law, adherence to human rights, humane policies to serve the public good, and promotion of dialogue and negotiation to resolve conflicts. Why President Bush's anti-terrorism 'war' is not working is simply because his policies are blind to all this and calculated to escalate a worldwide process of violence and counter-violence.

We must not repeat this terrible error, as we did in Kashmir and the Northeast -- thus shooting ourselves in the foot.

Praful Bidwai

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