I am quite puzzled by Chief Justice Lahoti’s reported statements to the press on his last day in office. (Among other statements, I found it interesting that the departing Chief Justice found it necessary to expressly disagree with his successor’s expressed views on the death penalty). The Indian Express reports that Justice Lahoti had this to say on the issue of terrorism: “Has anyone thought why there has not been a single instance of terror in USA post-9/11 unlike India where such attacks occur almost every day? The difference lies in the desire to study the problem scientifically and take remedial measures,” Justice Lahoti said. “We do not have the political will to fight terrorism”, he said underlining the need for new legislation. “When new challenges come, new solutions also have to found. Terrorism is a gift of the last century…Terrorist acts require an altogether new type of investigation. It (terrorism) requires new laws and new methodologies. A study should be conducted to identify the causes and suggest remedies. But there is no serious study in our country,” he said.”

Assuming that Chief Justice Lahoti is not a victim of the Indian press’ famous ability to emasculate quotes and transform their thrust, these are startling words. While Justice Lahoti may be right in calling for a sustained enquiry into terrorism in India, his seemingly unqualified support for current US policies reminds me of the aphorism that judges should refrain from commenting on issues outside of their expertise. His comments run the risk of being interpreted as a call for more stringent measures to combat terrorism, in sync with the rhetoric employed by the Bush administration.

Anyone who has followed the Bush administration’s varied responses to the 9/11 attacks would find it hard to describe them as being a result of the “desire to study the problem scientifically and take remedial measures.” In the aftermath of the 9/11 attacks, the Bush administration reacted by hurriedly enacting the immensely controversial USA Patriot Act a mere month and a half after the attacks. Criticised for several failings, even defenders of the legislation would hesitate to characterize it as being the result of a “scientific study”. Many knowledgeable people have noted that the policies pursued by the US in its “War on Terror” proceed on half-baked information, an inadequate understanding of how groups like Al Qaeda operate, and have in fact helped spread global terrorism by creating magnets for terrorism such as present-day Iraq. It is also feared that current US policies may in fact have increased recruitment for several terrorist outfits by demonizing Islam and causing even moderate Muslims to get so sorely affronted that they assume radical positions. It is particularly ironic that Justice Lahoti should praise US policies on terrorism on the very day that the Washington Post has published a devastating expose of the CIA’s policy of illegally detaining suspects at ‘secret prisons’ throughout the world in order to avoid strict restrictions imposed by US domestic laws. The report makes clear that the CIA has acted so specifically to avoid the impact of the law. Civil liberties groups in the US have been warning of such illegal actions by investigative authorities both within the US and abroad, and taken together with other recent news-items about the torture of civilians in Afghanistan and Iraq, one is left with an impression that adherence to legality is not a priority in such investigations. I can only hope that the outgoing head of the Indian judiciary did not mean to suggest that Indian investigatory authorities follow suit. As Venkat Iyer documents in his book, States of Emergency: the Indian Experience (Butterworths India, 2000), the Indian judiciary has a woeful record when it comes to preventing the misuse of domestic anti-terrorism laws. Time and again, it has refrained from discharging its role as the constitutionally-anointed protector of the rights of individual detainees, though, fortunately, there have been notable exceptions. This has resulted in a situation where anti-terrorism laws have been repeatedly misused, often towards ends that had nothing to do with combating terrorism, and groups like the PUCL and others have done much to try and document this phenomenon. The recent domestic debate over POTA should not be forgotten. The role that the law must play in combating terrorism while simultaneously ensuring that innocent people are not harassed (and other agendas are not pursued) in the name of a (meaninglessly) overarching “War on Terror”, is going to be a defining issue in the next few years. One can only hope that those in the Indian judiciary who wrestle with these issues will adopt a more grounded and nuanced understanding of the issues at stake.
(Update, Nov 03, 2005: Today’s Hindu carries a piece which states that Chief Justice Sabharwal had this to say about the need for new legislation to deal with anti-terrorism: “This is for the legislature to decide. It is none of the judiciary’s business.” It is not clear if Justice Sabharwal was asked specifically about Justice Lahoti’s statement, but the statement is nevertheless one to be welcomed. Judges of the Indian Supreme Court, who are perceived by some legislators and executive officials as being too keen to intervene on policy matters, must abstain from offering gratuitous advice on matters that are not directly before the Court, and are beyond their ken. This is vital if judicial legitimacy is to be maintained. One cannot help noticing, however, that this kind of public disagreement between senior judges is quite unusual. The rest of the piece seems to suggest that Justice Sabharwal sees addressing problems of judicial delay as an urgent priority.)