Arun Shourie
The provisions of TADA were much more stringent than those of the new Ordinance. The constitutionality of those provisions, of TADA itself had been challenged in the courts. The Supreme Court specifically upheld TADA, and declared its provisions -- the much more stringent provisions -- to be in accord with the Constitution.
While I happen to be in Government, my assessment for Parliament is the opposite one to that of the critics: the Ordinance bends too far back to accommodate human rightists, and that includes some impractical judgments too -- like that of the Supreme Court in D. K. Basu Vs State of West Bengal.
Under TADA, as we just saw, the accused was allowed only one appeal that to the Supreme Court. Even with that restriction, the judgment in the Rajiv Gandhi assassination case took all of eight years. By allowing another intermediate appeal -- to the High Court -- we are ensuring that the period would be not eight but a multiple of eight years!
Similarly, recall the provision that allows a lawyer to meet the accused while he is being interrogated. Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyaba. He is certain to have been saturated with indoctrination to the point that he is nothing but a killing machine. Do you think he is going to give you information over a cup of tea? And if lawyers are going to be meeting him from time to time during interrogation, is there the slightest chance that you will be able to extract information -- information about their plans, about their networks, that is information which is literally a matter of life and death for our people and our country?
But-such is the condition of public life and public discourse in India today, and so far removed from reality are some of our judgments that a provision like that one about lawyers has had to be incorporated in the Ordinance.
Based on their experience in dealing with organized gangs of criminals, the states of Maharashtra, Andhra, Karnataka have formulated laws. Why should the law for combating terrorists be more circumspect than the laws required for neutralizing gangsters? But that is what the Ordinance is. To give just one example, the state laws provide that the Review Committees -- to consider orders passed by the Home Department shall be headed by the Chief Secretary, but the Ordinance requires that the corresponding Committee for terrorists must be headed by a High Court judge. What entitles terrorists or their agents to greater solicitude?
Similarly, consider the deletion of "disruptive activities" from the Ordinance. TADA provided that any action that questions or disrupts the sovereignty and territorial integrity of India or is intended to do so, or which is intended to bring about or supports a claim for the secession of any part of India from the Union shall be a crime under TADA. Imagine how far we have fallen when even such a provision has had to be jettisoned -- even from a law the specific purpose of which is to thwart terrorists out to break our country.
The charge that such provisions were used against Muslims, that TADA was an anti-minorities law was a travesty. The facts, as I had pointed out at the time, were completely to the contrary. The notorious case of abuse was by the Congress-I led Government of Gujarat: it threw almost 19,000 persons in jail under TADA, and these were farmers opposing its policies. I don�t recall any protests against that abuse by those who are now imagining possible abuses in the future. Just as important, ninety eight per cent of those arrested in Gujarat got bail under that very Act from the courts. In Kashmir it is true that the overwhelming proportion of persons held under TADA were Muslims: but they were arrested not because they were Muslims, they were arrested because they were out to break the country. These two instances apart, the proportion of Muslims among the total arrested under TADA was only 4.5 per cent.
But such is the shadow that the falsehoods circulated at the time cast, that even six years later, and with thousands more having been killed by terrorists, the provision about activities aimed at disrupting the sovereignty and territorial integrity of the country has had to be excluded from the Ordinance.
"But what was the need for an Ordinance? Should the Government not have first evolved a consensus on the matter?"
Is there never to be a finality? Not even in a matter relating to the security of the country? Guess since when the efforts to bring about a consensus on this law have been going on? Since May 1995. TADA was allowed to lapse because opportunist politicians looking for issues that would curry favour with the Muslim vote bank saw an opportunity. That itself was a crime -- an instrument vital to the security and defence of the country was sacrificed to the crassest political calculation. Then began the long march.
A Criminal Law Amendment Bill was drafted and circulated in 1995. It was abandoned. Consultations continued with all and sundry. The matter was eventually referred to the Law Commission in 1998. That Commission deliberated on the question for two years -- giving its report and draft Bill in April 2000.
That draft was considered at meetings of Directors General and Inspectors General of Police, of Chief Secretaries and Home Secretaries of state governments. It was considered at the Chief Ministers� Conference on Internal Security last year. It was sent to the Human Rights Commission for its observations. It was sent to the state governments for their comments.
Should the process go on indefinitely? And what are the prospects of "evolving a consensus" when it has become an article of faith of everyone who is out of office that his job is to block everything a Government does? That his job is to block even what he was doing when he was in office, in fact even what he is today doing in the states in which he is in office?
The comments that the states sent to the draft Bill themselves tell the tale. The Congress(I) is opposing the Ordinance. In fact, when the Law Commission�s draft was circulated, the (Congress-I) Government of Delhi supported the enactment of the law in toto. The (Congress-I) Government of Karnataka supported the enactment of the law in toto.
The (Congress-I) Government of Nagaland supported the law in toto. The (Congress-I) Government of Madhya Pradesh, the (Congress-I) Government of Rajasthan, and the (Congress-I) Government of Maharashtra supported the enactment of the law, they sent suggestions about specific clauses.
The CPI(M) Governments of Kerala, West Bengal and Tripura sent their usual "principled" opposition. That Government in Kerala has gone. The one in West Bengal is trying to cover up its embarrassment for having finalised its own version of the Maharashtra Act. The Government of Tripura, after some initial show of reluctance because of "the party�s stand", has begun using corresponding provisions from other enactments relating to national security.
Not just those governments in the states, representatives of those parties at "the national level" have in general endorsed the need for a law to deal specifically with terrorists and their organizations. The leading figure in Parliament from the CPI(M) went so far as to counsel Government that it should study what Israel is doing in the matter. One of the most highly regarded leaders of the Congress(I) in Parliament stated that the Indian Penal Code is inadequate for combating terrorism, that a special law is needed, that in fact the draft Bill itself was not adequate. Nailing the falsehood that is being circulated, he said that the Bill does not shift the onus of proof on to the accused, that the provisions only seek to raise a presumption in certain circumstances. He said that there were many loopholes in the Bill, and for that reason it should go to the Select Committee or Standing Committee of the House...
This process has been going on for six years. In the meanwhile terrorists have continued to maim, kill, blow up, bum...
Fifty-five thousand people killed... that is five times the number we have lost in the 1962, 1965, 1971 and Kargil wars. And we are still stalled -- awaiting a consensus before getting even a law in place to deal with terrorism.
My plea, therefore, is the one opposite to that of the critics: the Ordinance should be approved at the first opportunity, and soon thereafter toughened -- the diluted provisions should be replaced by tougher ones -- closer to those of TADA.
Part I - POTO: Interception, Confession, Confessions, Torture
BJP Today
December 1-15, 2001
Showing posts with label law commission. Show all posts
Showing posts with label law commission. Show all posts
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
"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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