Sunday, December 21, 2008

Desai and Sorabjee on the recent anti-terror amendments

The recent Parliamentary initiative to strengthen the domestic anti-terrorism legal regime in the aftermath of the Mumbai attacks is justifiably attracting extensive commentary and analysis in the media, and on this blog. Today’s Indian Express carries columns by Meghnad Desai and Soli Sorabjee which, despite their brevity, provide interesting insights. Both of them have extensive experience with such measures in the past. More recently, Meghnad Desai was a member of the British Parliament when some crucial post-9/11 legislative initiatives were introduced (which form the basis of the analysis in his column). Soli Sorabjee was the Attorney General for India under the BJP government from 1998-2004, was probably involved in drafting POTA, and successfully defended the validity of POTA before the Supreme Court in PUCL v. Union of India [(2004) 9 SCC 580].

After briefly recounting his relevant experiences in the British Parliament, Desai states, echoing concerns raised by others, that he is

mystified by the way in which the Indian Parliament can pass an important Bill in just two afternoon sessions, after ‘Second Reading’, i.e., general waffly speeches. There seems to be no detailed scrutiny and the Executive pretty much gets its way. Speed, however, is not a guarantee of effectiveness. The only time we suspended our procedures and passed an anti-terrorism bill in a single seating was after the bombing in Omagh in Northern Ireland which had killed 250 people. The Bill proved to be completely useless and indeed one of the retired Law Lords said as much during the passage of the Bill. The law just passed by the Indian Parliament is unlikely to survive a PIL which challenges its violation of human rights.

On this last point, Desai seems to be unaware of the Supreme Court’s less-than-robust record on such laws. On the last two occasions when such laws were challenged before the Court (in the Kartar Singh (upholding TADA) and PUCL (upholding POTA) cases, the Supreme Court, in contrast with its vigorous questioning of Parliamentary policies on other issues, quite meekly endorsed the stance adopted by the government on most of the controversial questions involved. At least based on previous precedents, it is doubtful if the Supreme Court can be expected to strike down the recent changes. (Aditya Swarup, a regular commentator on this blog, has a detailed post urging the Supreme Court to reconsider aspects of its ruling in the Kartar Singh case in order to question the recent amendments made to conditions of bail). Whether this particular Supreme Court will take on the current government, at this point of time so soon after the Mumbai attacks is a far more open question than Desai recognizes.

Desai goes on to assert what should, in his view, be the real focus of anti-terrorism efforts:

The problem is not having a new law but improving counter-terrorist practice. There is immense laxity in how evidence is gathered and indeed broadcast. … …. … Counter-terrorism can be tough as long as the personnel are well-resourced and co-ordinated. There has to be a lot of preventative work which cannot be in the public domain. In the UK, when houses are raided to arrest suspects, even their names are not released till they are presented before a judge. It reduces the likelihood of other terrorists being warned off and strengthens the police case. The public also has to be trained to be aware of risky items like unattended baggage, as we have been in the UK during the last 40 years of terrorist attacks. Also, all political parties have to agree that fighting terrorism is a national priority and not a party political game.

Sorabjee begins his analysis by commending the UPA government for the “much belated, tough anti-terror legislation which is sorely needed because extraordinary times require extraordinary laws.” I am struck by the similarity between this, and the far more sarcastic comments of Arun Jaitley, contending that such measures were overdue. Both figures seem to have forgotten how much public antipathy had developed against POTA, and the enormous pressure that had built up leading to its repeal. My sense is that both these figures must have been pivotal figures in the drafting and enactment of POTA (if my understanding is correct, they were the Attorney General and Law Minister at the relevant time), and perhaps this colours their view of the controversial law.

Sorabjee is justifiably revered amongst the human rights community in India, and has often taken strong stances on issues of human rights. To many within that community, however, his active engagement with controversial laws such as POTA and his refusal to quit as Attorney General over the Gujarat riots, are blemishes on an otherwise impressive record. Sorabjee shows why he is regarded as a champion of human rights when he denounces attempts to deny legal representation to Kasab. On the recent amendments, he expresses “strong reservation”

about the period of detention up to 180 days. This is constitutionally vulnerable apart from its inconsistency with the International Covenant on Civil and Political Rights 1966 [ICCPR], which India has ratified and which will cause problems before the Human Rights Committee when it takes up India’s report which India is bound to submit under the ICCPR.

But, in the very next sentence, he states:

A serious lacuna in the legislation is the exclusion of admissibility of confessions by the arrestee which to the satisfaction of the Sessions Judge were not the outcome of torture and third degree methods. This will hamper effective prosecution and conviction. This aspect has been dealt with by the Supreme Court in the POTA case and the provision making confessions admissible was upheld. In the absence of such a provision, terrorist Kasab may get away for lack of evidence.

As followers of the recent debate will note, Sorabjee’s analysis dovetails well with Arun Jaitley’s views on the admissions of confessions by those accused of crimes of terrorism. Jaitley’s arguments (which may well have been developed initially with inputs from Sorabjee) seem to be gaining favour in these emotionally trying times. I was surprised to see, for instance, this editorial in the Indian Express essentially endorsing Jaitley’s view (without saying so).

The arguments against the admissibility of confessions have a convincing rationale, and a long pedigree, in our legal system, and are made even more necessary by the operational and systemic conditions under which our police and investigatory forces function. I will not dwell on this here, and will only note that on this point, Desai and Sorabjee disagree. Desai’s short response:

What Qasab said, what he ate, what he wrote to the Pakistan High Commission are not matters which British anti-terrorist police would reveal till they presented the suspect before a judge. The evidence gathered cannot be admissible in a court of law because it is obtained under duress. As it is Qasab can already argue that he will not have a fair trial given all the adverse publicity. Many Indians are ready to hang him without trial, but the Rule of Law has to be followed.

On one point, however, Sorabjee and Desai seem to agree. Having noted earlier the views of Desai on this, here are Sorabjee’s views:

But remember: However tough and comprehensive the law, its enforcement will be ineffective if our police force is not adequately armed, properly equipped and fully trained to combat the terrorists. Police reforms are urgent and the Supreme Court directions in this behalf should be implemented without further delay.

At the present time, perhaps focusing on commonalities – rather than differences – may be the best way forward. Given the near-unanimity on the need to address conditions on the ground in the police and investigatory wings, a focus on those complex set of issues may be prudent


Ot said...

Manoj Mitta of Times of India argues in that paper that Kasab, the captured terrorist, has a right to legal representation. Fine. But then Mitta makes the weird claim that the Constitution of India permits a person to be declared an "enemy alien" for the purposes of Art 22 only if the country is at war! Can anyone point to me where in the Constitution is this stipulation mentioned? I searched the document thoroughly, but I cannot find this claim anywahere -- which leads me to believe that Mitta stated a falsehood.

That raises a disturbing point. Can leftwing propagandists not defend the arrested terrorist and his alleged rights without resorting to falsehoods? Are we going to see in the popular press more of these distortions of constitutional provisions as the case goes on trial?

tarunabh said...
This comment has been removed by the author.
tarunabh said...

Thanks for the post Arun. An issue on this the new amendments go even beyond POTA deserve mention - POTA only allowed 'adverse inference' to be drawn in certain circumstances. These amendments shift by burden of proof by presuming guilt through a reverse onus clause!!

Arun Thiruvengadam said...

Dear Tarunabh,

I take it you are referring to Section 43E of the Amendment Bill, which adds a presumption as to offences under Section 15?

The provision in the Amendment bill reads:

"43E. In a prosecution for an offence under section 15, if it is proved —
(a) that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar
nature were used in the commission of such offence; or (b) that by the evidence of the expert the finger-prints of the accused or
any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and
vehicles used in connection with the commission of such offence,

the Court shall presume, unless the contrary is shown, that the accused has committed such offence."

Thanks to comments by you and others about the debates over these provisions in the two houses of Parliament, as well as to V. Venkatesan's helpful links to the text of these debates, i have been going over them carefully. The debate over these amendments in the Rajya Sabha is available here.

Here is what Ashwani Kumar (the Minister for commerce, and apparently a lawyer by training)who, along with Kabil Sibal and P. Chidambaram defended the govt's amendments in the Rajya Sabha, had to say about this specific provision (at p. 266-67 of the pdf file):

"It is a cardinal rule of jurisprudence that a person is presumed to be innocent until proved to be guilty. I do not think that that has been reversed. All it says is that if a person is found with a weapon of destruction in his possession, the onus would shift temporarily, for that limited purpose, upon him to prove that that cannot lead to an inference of guilt against him. In criminal jurisprudence, the onus of proving the guilt of the accused is invariably, and always, on the prosecution. That principle has not been negatived in this Bill.

So, I would like to add that there is no reason for apprehension on that score. It is a case of like stolen goods, if stolen goods are found in somebody's possession, it is for him to prove or establish how these goods came into his or her possession in the first place. Therefore, Sir, this law does nothing more than that and does not, I repeat, does not tinker with the cardinal rule of jurisprudence which is an elementary rule and rightly so placed since Macalay's [sic] time."

I think the MP has got his analysis wrong - he first denies that this is a reverse onus provision, but then goes on to say why it is justifiable. But, in its form and content, it is clearly a reverse onus provision.

In recent years, courts across the commonwealth have found a number of such reverse onus provisions to be unjustifiable when tested against the presumption of innocence. But, they have specified that reverse onus provisions are not per se illegal, and have devised tests to divide the justifiable ones from those that are not.

The question to ask would be whether this particular provision can be justified as per the judicial tests laid down. Given that this provision appears in an anti-terror statute, my guess would be that courts would be wary of even getting into this sort of enquiry.

But, what was fascinating for me in these debates was that a number of government MPs (who are also established Supreme Court lawyers), specifically Singvi and Sibal, argued that the decisions in Kartar Singh and PUCL are suspect. They make this point in connection with justifying why they decided not to make confessions admissible even though this was upheld in the TADA and POTA challenges. But, this could also apply to the bail provisions and the extended detention till 180 days, because they too would be suspect on this logic.

In any case, I think these recent amendments have the potential of unsettling a lot of what is today taken for granted in the realm of Supreme Court precedents on anti-terrorism law. Certainly worth following closely.



Aish said...

From consistency point of view please keep track of the fonts. A respected blog like yours should look consistent too.

Also, is there a way I can suggest a topic to cover? The topic on my mind right now is the concept of Mega Lok Adalats. Seems to be a good concept and something very pertinent.

Anonymous said...


although this s a reverse onus, it is not too great a reverse onus. All it is saying is that if I recover arms from X and I have reason to believe that those arms were used in a terrorist act, I shall presume that you were part of a terrorist activity. This appears to me to be a perfectly legitimate provision - the prosecution has the initial burden, and the "reverse onus" is only an indication of what type of proof will be ordinarily be enough.

As a judge, one would probably anyway convict a person in such cases on circumstantial evidence. So I would not be too worried. If the prosecution shows you have prohibited arms, and that those arms were used in a terrorist act, then it is not really too much of a jump to suppose that you are a terrorist, subject to any defences you may have. That is really all the provision says.

Arun Thiruvengadam said...

Dear Anon,

Now that we are agreed that it is indeed a reversal of onus, one has to get into what that actually entails. You are quite sanguine about this, but judges in several countries have taken a dim view of such provisions which result in convictions for serious offences.

Any judge with integrity and a commitment to the oath taken to uphold the Constitution would be careful about convicting someone of a serious offence based only on 'circumstantial evidence' and reverse onus provisions. So, in South Africa, in the Zuma case (1995), the challenged provision stated that an accused person who wanted to retract a confession made before a magistrate, would have to establish that the confession was given involuntarily. On your logic, this provision seems quite reasonable and pragmatic, but the Court unanimously struck down the provision as infringing the presumption of innocence. This decision has been endorsed in subsequent cases in 1996 and 2002.

To give you another example that shows that issues may not be as clear-cut as you suggest, consider the Canadian Supreme Court's decision in R v. Downey (1992). There, a provision stated that a person who lives with or is habitually in the company of prostitutes is, in the absence of evidence to the contrary, committing the offence of living on the proceeds of another person's prostitution. Again, the Court struck this provision down as violating the presumption of innocence.

In the provision under scrutiny, note that some of the language is vague. What does 'any other definitive evidence suggesting the involvement of the accused in the offence' mean? Who decides what is 'definitive evidence'? The judicial test for such provisions usually is whether the reversal of onus enables a person who is innocent to be convicted. In my view, there are a number of possibilities resulting from the reversal here, where innocent people, or those with only an unknowing, tangential connection to the offence, can end up being convicted of direct complicity. So, to my reading, the provision is certainly suspect. I would want other legislative safeguards to be incorporated to ensure that innocents are not convicted by the use of this reverse onus provision.

Dear Aish,

Thanks for the rap on the knuckles for the messy fonts.

I see that you have some experience with technology, and wonder if you have tips for us. I've tried to harmonise at least the font within this post. In my experience, I've found that this problem comes up with long posts, which require extensive quotations. Is this a problem with blogger/blogspot alone? Do you have any tips on how this could be avoided?



Dilip said...


What safeguards would you suggest to prevent misuse of this reverse onus provision?

In some of the recent bomb blasts, newspapers have suggested that the individuals who made the bombs were not the ones who planted them at the public places where the explosions occurred. Those who made them, transported them and planted them are all said to be different. Fingerprint/DNA evidence is said to be harder to obtain from bombs that go off because the remains are mostly charred. If the cops end up relying on circumstantial evidence and testimony of other accused, do you believe that would qualify as 'definitive evidence' under this standard?

Anonymous said...

And with respect, your reliance on Canadian and South African decisions is irrelevant in this context. The issue which we are faced with today in India - the cumulative effect of over a decade of violence - is unparalleled. I am no Scalia to refuse to look at foreign cases just because they are foreign; but in the present context, we must look at the issue from our provisions. Also, could you provide the links to any judgment you cite - will be greatly appreciated.

Arun Thiruvengadam said...

Quick responses to Dilip and Anon's last points.

Dilip, I will readily confess that I do not have a ready solution, in terms of safeguards that would work better. I think i harbour doubts if the provision could pass muster at all - but, a good start would be to make the provision focus on actual situations that the law wants to counter, and to specifically target them, instead of leaving things dangling under a 'definitive evidence' standard. My sense is that the more specific the provision is in terms of the category of cases it wants to cover, and the more clearly it sets out the reason and circumstances for which onus is reversed, the better it will be. While the legislator may want to draft things broadly with a view to giving investigators and prosecutors the maximum latitude, this is precisely the type of situation which breeds abuse of emergency powers, and judges are quite alive to this. Faced with extraordinary circumstances, judges are more willing to give latitude, but they would prefer, in order to maintain the rule of law, to have narrowly crafted exceptions.

Anon: I'm always amused when someone comes up with a Nationalist defence of our legal system. I think this betrays an ignorance of how foundational the link between our constitutional and legal tradition and 'foreign legal systems' has been in the past, and continues to be so today. So, whether you like it or not, you are being very Scalia-like in your attitude, which is as unjustified in the US (whose legal system was also similarly built upon the foundations of 'foreign' legal ideas) as it is in India.

Reverse onus provisions have been a longstanding practice in commonwealth jurisdictions including India, and our entire system of criminal law is very much linked to that tradition. So, to suddenly try and argue from an 'indegenous' standpoint is strange. If you want to do that, you can come up with a far stronger argument by asserting that the 'presumption of innocence' itself is a foreign principle and doesn't need to be adhered. Note Ashwani Kumar's reference to "Macaulay's time" - given that we still have what is essentially a foreign-drafted Penal Code (which has, arguably, been adapted over time to our needs), I don't think one can get away by dismissing foreign precedents by only mentioning that they are foreign. I think you will have to deal with the arguments at a substantive level, and point out why they have no application in India today.

Since you do seem interested in that endeavour, do google 'Constitutional Court of South Africa' and 'the Supreme Court of Canada'. Both these institutions maintain excellent websites where you can easily access their entire caseload from at least the 1990s. The case names and year of decision I've provided earlier will help you track them.

Anonymous said...

Context Arun context. I am not verse to using foreign case-law when the context so demands. Or when the context so permits. But you very conveniently cite foreign cases. Show me why they are relevant? Just because they are criminal cases? On what basis were they struck down?

I do not have to point out why they are irrelevant; you should point out the substantive arguments as to why they are relevant. Besides the fact that reverse onus provisions exist. Where do reverse onus provisions exist in a case dealing with terrorism on the scale India has? No country has faced terrorism on that scale... So pray, why look there? We are talking of exceptional cases, where too the reverse onus is not as great a hardship as you are making it out to be. Read "possession" to mean "conscious possession". A perfectly legitimate reading.

So now, the provision is saying that if you have certain weapons (and dangerous weapons at that, not knives, but AK-47s) and if those weapons were used in a terrorist offence, The Court will do well to treat you as a terrorist unless you show why u r not one. What exactly is wrong with that? Besides the fact that certain reverse onus clauses have been struck down in Canada and South Africa?

Aish said...

Hi Arun,

Apologies for the delay. A couple of things that could be done is

1. Use Full Alignment when writing posts. We use at our blog
2. I am guessing you are using the Blockquote when you quote someone. That is fine
3. Font consistency is important. Maybe you could put things you want to emphasise or things that are quoted by others in italics
4. This link talks about creating expandable posts

I have to admit, Wordpress is much better in this respect but Blogger has its own charm. I hope this was not too technical. Do let me know.

MN said...

With respect, Anon seems to have missed the point. As I read him, Mr. Arun is not making an argument from authority simply be relying on the foreign cases. He is relying on them not because they are 'binding' on Indian Courts. Rather he is relying on them as examples of events/laws given judicial consideration in the courts of countries which have a sound constitutional system (note Section 7 read with Section 1 of the Canadian Constitution in particular) and a criminal law system quite similar to Indian systems. There is no reason why we should not consider these cases simply because they are 'foreign'.

Anon said, "Where do reverse onus provisions exist in a case dealing with terrorism on the scale India has? No country has faced terrorism on that scale..."

That might well be true. However that does not mean that the foreign law becomes irrelevant ipso facto. The argument against the reverse onus clause is one based on principle - the principle of the presumption of innocence. That principle IMHO can not be changed because we are facing a two-decade-old terrorism threat.

"I do not have to point out why they are irrelevant"
I am sorry, but insofar as your argument goes, you certainly should. Particularly considering that essentially you are arguing against a foundational principle of criminal/constitutional law.

"So now, the provision is saying that if you have certain weapons (and dangerous weapons at that, not knives, but AK-47s) and if those weapons were used in a terrorist offence, The Court will do well to treat you as a terrorist unless you show why u r not one. What exactly is wrong with that?"
Let me assume for a moment that your reading of the provision is correct. Now I am sure you agree that Courts are not looking for excuses to acquit someone. If a Court is convinced beyond RD of the existence of a conspiracy, the Court will convict. Why say "Oh you must convict anyway"? Why not let the Court decide in the context of the particular fact situation.

I will respond in more detail when/if you make any deeper arguments explaining your position.

Arun Thiruvengadam said...


1. I resist arguments based purely on the logic that "no other country has suffered as we have" because, in my view, they are counter-productive, and lead to a mindset of 'exceptionalism' that is not constructive. In my view, arguments and mindsets based on precisely such notions of 'exceptionalism' have historically led nations to huge blunders, and have hindered attempts to learn from the experiences of others. As several scholars have noted, it is the mindset of 'American exceptionalism' that led to mistakes such as those inflicted by the Bush administration in the early years of this decade. In any case, that is a long and complicated discussion that is perhaps best carried out elsewhere.

2. I think you make a potentially fatal concession on your point about legitimate readings of the provision. I am not sure the people who pushed for the provision and demand it, will be happy with your having read the 'mens rea' element into the statute. I suspect that having to prove that possession was 'conscious' would defeat their entire purpose in securing this provision.

3. Onto the substantive arguments, which I thought I had detailed at sufficient length above. Let me reiterate them: Reverse onus provisions are suspect because they compromise the 'presumption of innocence' which is a fundamental principle of our criminal justice system. If you read the provisions of the Indian Evidence Act, several of them are focused upon setting out who carries the burden for various situations, and the circumstances under which they can be shifted. The overall scheme reflects the understanding that our criminal justice system is founded upon the idea that it is ordinarily the prosecution which must establish facts and lead evidence to prove them. Nevertheless, especially in recent years, reverse onus provisions have become more prevalent.

Courts in India have scrutinised these reverse onus provisions carefully, and have emphasised that they must be narrowly tailored to meet the policy considerations behind them. Even while upholding them, courts have been anxious to lay down safeguards which will control abuse.

4. Since you have essentially demanded Indian authorities, let me point you to two recent cases decided by the Supreme Court where some of these same ideas have been emphasised. The decisions in Krishna Bhat v. Hegde and Noor Aga v. State of Punjab were decided earlier in 2008 and the judgments were written by Justice SB Sinha. (The links are to the JUDIS site, though they are also available on Manupatra). Let me declare upfront that these reverse onus provisions were from contexts other than that of terrorism: Krishna Bhat considered a reverse onus provision under the Negotiable Instruments Act, while Noor Aga dealt with one under the NDPS Act. Nevertheless, the general analysis will apply to other reverse onus provisions. Although the Court upheld the reverse onus provisions in both cases, it set aside the individual prosecutions in both cases, in part because of the incorrect reliance on the reverse onus provisions, which the Court was critical of.

6. Particularly in the Noor Aga case, the Court took seriously the problems of reverse onus provisions, and tried to set out the competing considerations involved. My reading of these cases is that they try to caution and guide legislatures on the proper use of such provisions. So, legislators cannot be cavalier, and only use arguments of exceptionalism to justify reverse onus provisions which depart from the norms of our criminal justice system.

7. Lastly, in both cases, and particularly in Noor Aga, the Court spent a considerable portion of the judgment outlining the experience of other common law courts, their views on the legality of reverse onus provisions, and the factors that should be considered in evaluating them. Which takes me back to the point about the use of comparative law on such questions, and the fact that our courts are, unlike you, convinced of the virtues of keeping track of, and learning from them.

Anonymous said...

Arun, before responding I would like to seek one clarification.

Would you agree that the provision will be constitutionally valid assuming my reading were applied? That is, is the provision fine (constitutionally) if it is taken to mean 'conscious' possession?

If your answer is yes, then our debate goes down to what the proper reading of the provision is.

If your answer is no, it still is not constitutionally valid, then we need to go into the constitutional arguments.

So kindly clarify my question so that the discussion can proceed after eliminating misunderstandings about what we are saying.



Arun Thiruvengadam said...

1. The links to the judgments on JUDIS in the previous comment seem to be inactive. To access the judgments in the Krishna Bhat v. Hegde case, click here. For the judgment in Noor Aga v. State of Punjab, click here. (Thanks to V. Venkatesan for noticing this, and for providing the link to the more reliable 'Legal Approach' site).

2. In the Dec 27 issue of Tehelka, Rohini Mohan draws attention to real events that occurred recently, and raise concerns about the manner in which the amended Section 15 of the Unlawful Activities (prevention) Act could be potentially abused, given its having incorporated a reversal of onus.

Arun Thiruvengadam said...


The comments on this page don't seem to line up in the order they've been posted, so we'll have to keep track of the back and forth amidst that confusion.

To answer your question: No, I don't think your reading will help save the constitutionality of the provision. First, I would have to know how you would try and read in some element of the mental element into each segment of the provision. Where would you read a similar element into the far more vague second limb (b) of the provision?

Also, imagine a situation where X holds a valid licence for an armed weapon and it is in his 'conscious possession' in his home. Someone in his household/known to him uses his weapon for the terrorist activity and replaces it in X's home, where it is found during investigation. Under your reading, X would be in 'conscious' possession of the weapon and would be presumed guilty of being involved in the terrorist activity. If such a provision was not there, X would still be under the shadow of suspicion, but would not presumed to be involved. There is thus a reasonable chance that the provision, under your reading, would still allow an innocent person to be found guilty. That is the crux of the judicial test to determine the constitutionality of the provision.