A recent post by V. Venkatesan highlights stark contradictions in the Indian Supreme Court’s overall record on human rights issues relating to terrorism. In particular, the description of the way in which the Supreme Court dismissed the PIL raising the issue of Mohd. Afzal’s torture raises substantial concerns, and one hopes that more details about the case, and how it is handled by authorities emerge soon. It would be tragic indeed if even the highest judiciary does nothing to uphold the rule of law in such clear cases of public declarations of torture. While the masses may be swayed by the emotions sorrounding Afzal’s case, judges are expected to act in ways that uphold the basic traditions of the rule of law.
Sadly, the Supreme Court’s previous record on issues relating to terrorism does not inspire optimism. In an exhaustive study of the issue that has recently been published online, Anil Kalhan(who teaches at Fordham Law School) and his co-authors have focused on the Indian state’s generally weak record in protecting human rights concerns while dealing with the issue of terrorism. Though the 143 page study focuses on several Indian institutions, my focus is on the way in which they portray the Supreme Court as having played a largely passive, inactive role in attempting to uphold human rights concerns. At times, the Supreme Court has arguably abdicated its function as a custodion of human rights, as for instance when it upheld the constitutional validity of TADA. Since the authors of this study are based outside India, an instinctive tendency (especially among those who equate patriotism with the use of torture on ‘anti-national’ elements) would be to disparage their effort as being biased or ill-informed. But the authors are conscious of this factor, and have taken care to provide details of the extensive interviews conducted by them with several Indian lawyers, NGOs and government officials who can be expected to have the requisite expertise to comment knowledgeably on this issue.
The study contextualises India’s current anti-terror laws by placing them in the larger historical backdrop of colonialism, and also provides many other fascinating insights. It deserves to be studied closely, and its conclusions require the consideraton of those who are interested in achieving the appropriate balance between maintaining security and respecting the human rights of those accused of terrorism. Unlike this post, the focus of the study is on other public institutions in India beyond the Supreme Court, and its suggestions for reforming the police in particular are noteworthy.