Writing in yesterday’s issue of the Hindustan Times, Ajit Doval, a former Director of the Intelligence Bureau, shares his thoughts on the Mumbai attacks. His views, perhaps in keeping with those of many within the law and order establishment, support calls for harsher anti-terrorism laws. On the issue of admissibility of confessions, he raises the following question: In the defensive mode, strong anti-terror laws — substantive and procedural — are necessary. It is gratifying that the government has almost re-enacted Pota. However, in the proposed new law, inadmissibility of disclosures made before the police remains a lacuna. How can the police get evidence of the planning, preparation and logistics that lie beyond their reach and jurisdiction? Making admissions even before senior police officers inadmissible will only help the terrorists. How can a society unwilling to trust its police against a foreign terrorist expect a policeman to lay down his life to protect it? The emotive question posed by Doval appears, at first glance, to be unanswerable. Shrimoyee Ghosh, a trial lawyer based in Delhi, has an op-ed in today’s Indian Express which seeks to answer this precise question (although her response is more directly prompted by a recent column by Vinay Sitapati that was discussed on the blog here). Ghosh examines the question in its historical context and sets out how the colonial authorities put in place the foundational structures for the Indian police: Common law (non-codified English law) rules of evidence were first enacted as statute in the Indian Evidence Act, 1872. Interestingly, the Act makes a significant departure from its predecessor, making confessions inadmissible as evidence. To understand this, one has to look at how the history of policing in India is inextricably tied to torture. The Madras Torture Commission 1858 (constituted to investigate allegations of widespread torture by revenue officials and policemen) drew attention to torture as a structural problem of Indian policing rooted in the native policeman’s “inherent” savagery. The report was premised on a rule of racist difference: natives were incapable of understanding the British ideals of fairness and rule of law, and must be organised into a highly centralised force with little discretionary authority at lower levels, but with vast amounts of brute force: to arrest on suspicion, preventively detain, conduct searches and seizures. The Report resulted in the reorganisation of the police in the Madras Presidency, a model for the colonial police organisation throughout British India. Unsurprisingly, the reorganisation did little to alter the routine use of torture as a method of investigation, punishment and colonial control. The Evidence Act’s disallowance of police confessions viewed in this backdrop is a reflection of both the colonial distrust of the policeman, and the systemic way in which brutality is ingrained in the police force, so as to render confessions before it worthless as evidence. The unfortunate truth is that the Indian police system was designed to allow torture to routinely happen. This consciousness permeates our everyday language: ‘Remand lena’ in Hindi slang is to give someone a thorough thrashing. Pitiful as it is, the bar on police confessions is among the few safeguards against torture in the absence of complete police reorganisation. While it may be technically possible to prosecute a policeman for extracting a confession unlawfully, provisions for prior government sanction and immunity further perpetuate a culture of impunity that is virtually impossible to permeate. But the problem with allowing police confessions is not merely that it ‘incentivises’ torture. Torture happens in India today, even whilst police confessions are inadmissible. The greater danger is that it incentivises police complacency and bad investigation. The lack of a rigorous jurisprudence for testing the veracity and voluntariness of confessions creates a situation where the confessional statement becomes the piece de resistance of the police case, and an excuse to ignore the need for collecting other evidence that will stand judicial scrutiny. She then goes on to argue that incorporating such a measure would in fact be counter-productive in successfully prosecuting crimes of terrorism: … … … Any evidence, including confessions, obtained in violation of procedure is inadmissible. While upholding the constitutionality of TADA police confessions, the Indian Supreme Court laid down safeguards to ensure their veracity. These have been progressively diluted over the years. For instance, in the Devendra Pal Singh case, a confession by a handcuffed TADA detainee surrounded by armed guards, made on the last day of his police remand, was still held to be admissible. Moreover, confessions made to the police can be retracted. Before a Court of law detainees can (and do) argue that the confessional statement was coerced. When a confessional statement is retracted, as it is in a staggeringly high proportion of cases under TADA and POTA, the entire police case falls apart, because the confessional statement is all they have bothered to get as evidence. In our eagerness to ‘use any means necessary’ to tackle terrorism, we may actually be taking a step that is deeply inimical to effectively prosecuting the terrorists themselves. Also relevant in the context of considering the question of how much we should trust the police, is this editorial also in today’s issue of the Indian Express, commenting on the encounter killings in Warangal earlier this month. The police officers involved in the encounter have been treated as vigilante heroes, and mobbed by autograph seekers. Firecrackers were burst in celebration, sweets distributed, and a victory procession converged at the house of the police superintendent. This adulation is not unprecedented: across India, there is tacit public and political approval for encounter killings. The cult of the “encounter cop” owes its origin to the perceived need for the police to show “results”, and to a public weary of hardened criminals jumping bail. Both cops and laypersons share an impatience with the criminal justice system that they feel is simply not working: it takes too long to punish the guilty, and the accused often escape through a sieve of loopholes. But to solve an error with another is merely to compound it. Our judicial system, however creaky, needs wide-ranging and long-term reform. Encounters, far from solving anything, create their own problems. Freed from any safeguards, some cops become laws unto themselves, as the arrest of some “encounter specialists” in Mumbai has shown. Encounters also wreak long-term damage by diminishing public confidence in our criminal justice system. On a separate note, much of the discussion on the blog has focused on the recent amendments to the Unlawful Activities (Prevention) Bill. Analysis focusing on the other bill creating the National Investigation Agency Bill has been relatively scarce. Here is a column by Chakshu Rai of PRS Legislative Research setting out the scheme and main provisions of the NIA. He points to a possible lacuna in the scheme: Many of these provisions are widely seen as steps in the right direction. However, these Acts focus on investigation and prosecution after acts of terror are committed. They do not address the issue of intelligence that could help pre-empt terrorist attacks. Press reports suggest that the Mumbai events were not prevented, partly due to a lack of coordination between various agencies. This lacuna will continue to persist. The government has not provided Parliament with the likely expenditure required to implement these laws. The financial memorandum of the NIA Bill states that: “it’s difficult to estimate the exact amount of expenditure required in setting up the agency”, and provides for a token amount.