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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Ot
Ot
13 years ago

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 Khaitan
Tarunabh Khaitan
13 years ago

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!!

Aish
Aish
13 years ago

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
Anonymous
13 years ago

Arun,

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.

Dilip Rao
Dilip Rao
13 years ago

Arun,

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
Anonymous
13 years ago

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.

Anonymous
Anonymous
13 years ago

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
Aish
13 years ago

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 http://thinkchangeindia.org
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. http://help.blogger.com/bin/answer.py?hl=en&answer=42215 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
MN
13 years ago

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.

Anonymous
Anonymous
13 years ago

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.

Regards,

Anon.