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

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