Wednesday, May 28, 2008

POTO: Interception, Confession, Confessions, Torture (Part I of II)

Arun Shourie
"But look at Chapter V. It allows the police, the intelligence agencies to listen in to and intercept communications between any of us whatever means we use: electronic, wire, oral, paging devices, tracking devices. This wasn�t there in the Law Commission draft. It is a clear license to police, IB, CBI, anyone the Government fancies to invade our privacy."

First, about the Law Commission. While arguing that provisions on a particular matter were not in its draft, critics obscure the fact that the entire question of having or not having a special law to deal with terrorist crimes and organizations -- had been referred to the Law Commission, and that the Law Commission did not just endorse the proposal for having such a law, it provided a detailed draft also entitled, "Prevention of Terrorism Bill, 2000."

Second, recommendations of the Law Commission are just one of the inputs that go into the final outcome: it is ultimately the Government�s job, it is not just its power but also its responsibility to forge the instrument that is required. In this instance, the Government had before it, in addition to the Law Commission�s report, the laws in other countries - the UK the USA, Canada, among others; it had before it the law as it is being administered in Maharashtra; the laws that have been passed by the Assemblies of Karnataka and Andhra.

The Law Commission draft did not have anything on intercepts. Does this mean that -- even though ever so often it is only through intercepts that the contacts between a controller sitting in Pakistan and his agents and instruments here can be proven -- no provision about intercepts should be included? Should we not take account of the experience we have gained in Maharashtra, for instance? That it is precisely through intercepts that the Government there has been able to nail the exchanges between dons in Dubai and their agents in Mumbai? The provision in the Law Commission draft relating to financial dealings of terrorists and their organizations was found on examination to be inadequate. Should the Government have stuck to the draft even when it had reason to believe that a more effective provision was required?

"But what about confessions being declared to be evidence admissible in courts? People can be made to confess to all sorts of deeds by methods that our police uses."

True, under ordinary law confessions made to a police officer are not admissible as evidence. And to gauge the result you don�t have to look far: just see what is happening in the Jessica Lal murder and the Gulshan Rai murder cases -- several persons saw the victims being murdered; one eye-witness after the other is going back on what he told the police. When conviction in even an ordinary murder can be thwarted by such a simple device, what will a terrorist organization -- one that can bring to bear pressures infinitely more frightening than an ordinary criminal -- not be able to ensure?

Arun Jaitley has given a telling illustration: not one of the persons who were eventually convicted for Rajiv Gandhi�s assassination could have been convicted had confessions not been admissible. In the case of every single accused, the Supreme Court�s pronouncement begins by recounting that the person has recorded a confessional statement. Next the Court sets out the averments in that confession which are incriminating. It then sets out some ancillary material which leads it to believe that the confession is true. The truth of the confession established, the Court pronounces the person to be guilty.

Thus, Accused-1, Nalini: "The principal item of evidence available in this case is her own confessional statement recorded on 9-8-1991..." Ancillary factors are then listed, and the Court concludes that this corroborative evidence establishes the truth of the confession. Accused-2, Santhan alias Raviraj: "His confessional statement was recorded on 17-9-1991... The incriminating admissions contained in (it) are the following...." Corroborative evidence establishes the truth of the confession. Accused-3, Murugan alias Das: His confession was recorded on 9-8-1991. Confessional statement of Nalini and other corroborative evidence confirms Murugan�s confession to be true. "The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have, therefore, no doubt that A-3 was also one of the conspirators." A-4 to A-8, confessions not recorded, and/or acquitted. Accused-9, Robert Payas: confession recorded. Ancillary factors "have rendered the confessional statement made by A-9 in Exhibit P-85 as wholly true. We, therefore, concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi." A-10, A-12, A-18... In each instance the same sequence is repeated: confessional statement, ancillary factors confirm this as true, therefore guilty.

Nor is the point confined to what the Supreme Court has held in regard to these particular individuals. The judgment pronounces on the law in this regard. The Court specifically holds that confessions are admissible as evidence; that even if the police officer has forgotten to obtain the confessions made under TADA are valid for charges under another statute, in this case the IPC.

Given the quarters who are denouncing a provision like this so volubly, it is also good to note what the corresponding provisions are under the law in operation in Maharashtra, as well as the bills passed in Andhra and in Karnataka -- each of them provides that the confessional statement shall be admissible as evidence against the person who has made the confession, that it shall be admissible against a co-accused, that it shall be admissible against the abettor as well as against the co-conspirator.

It just so happens, and this is the point to which I shall revert, that the Ordinance is far more restrictive than these laws, indeed than what has been specifically upheld by the Supreme Court even in regard to confessions. To take on specific: under the Ordinance, confession made by a person shall not be admissible in a proceeding against a co-accused.

"But the fellow will be tortured and made to confess to whatever the police want."

Under TADA the accused could the kept in police custody for 60 days, and in judicial custody up to a year. Under this Ordinance, the limits have been cut down to 30 days and 180 days respectively. The family of the person is to be informed immediately upon his arrest. Before he is interrogated the person is to be informed in writing that he is not bound to make a confession.

The confession can be recorded only by an officer of or above the rank of Superintendent of Police. It must be recorded before a court within 48 hours. The court is to inquire of the accused whether he has been tortured or maltreated. If he alleges that he has been maltreated, the court is to record the allegation, and direct an immediate medical examination. Most important, the lawyer of the accused is to be allowed to meet him during interrogation.

Part II - POTO: Approve Swiftly, and then Toughen it

BJP Today
December 1-15, 2001

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