Civil liberties endangered

By Rajindar Sachar

IN THE aftermath of the terrorist attacks in the U.S., the Union Home Ministry is thinking of quietly slipping in by ordinance the Prevention of Terrorism Bill, 2000, which even in the Law Commission's formulation is patterned on the notorious Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, which the Congress Government was forced to allow to lapse in 1995 because of widespread opposition, including from the BJP which stated in 1994 that ``the Act granted powers to the Executive that were bound to be misused; political parties have been targeted by the States which have tended to misuse the law. The TADA should be reviewed drastically, if not completely withdrawn''.

After the lapse of the TADA, the Congress Government introduced a Criminal Law Amendment Bill, 1995 (which was nothing but the TADA by another name), but it could not become law because of opposition from the PUCL and other civil liberties organisations and even the National Human Rights Commission (NHRC). The U.N. Human Rights Committee when examining the Third Periodic Report from India (1997) while welcoming the lapse of the TADA expressed concern that there were legislative proposals to reintroduce parts of the Act which could lead to violation of the International Covenant on Civil and Political Rights (ICCPR) which India had ratified.

The present Government, however, was ever keen to possess extraordinary powers. It, therefore, invited the Law Commission in 1999 to examine the 1995 Bill. It is unfortunate that the Law Commission fell for this ploy and broadly approved the 1995 Bill which is in the field as the Prevention of Terrorism Bill, 2000. Is it not ironical that the BJP-led Government should now seek legislation which would be hostile to civil liberties and violative of fundamental rights of the citizens and which it had opposed in 1994 - but such is the cynicism of power politics. To prevent this legislation MPs will have to show greater awareness of the danger than the members during 1987-93 who held discussion for just about an hour most of the time and once (in 1993) for just 10 minutes while extending the TADA. The participation in the debates was equally dismal - varying from eight MPs to a maximum of 34.

The inefficacy of the TADA was exposed by the fact that despite 52,268 arrests, the conviction rate never exceeded 0.89 per cent. In the 2000 Bill, abetment is still punishable by itself though the Supreme Court in its earlier decision while upholding the constitutionality of the TADA, 1993, had read it to be qualified by a guilty mind which aspect has not been included in the present Bill.

Apparently to show concern for civil rights, a review committee is sought to be constituted but the same consists of the executive officers and the police whereas international human rights standards require supervision of the detention by a judicial body. That the review committee is merely cosmetic is shown by the fact that there is no provision for the detenu to make a representation before it. A thoroughly unsatisfactory provision with regard to bail which is a rehash of the Defence of India Rules framed under the British - namely, that bail shall not be granted unless the court is satisfied that there are grounds for believing that the accused is not guilty of committing such offence - clearly violates Article 9(3) of the ICCPR which provides that it shall not be a general rule that persons are detained prior to trial but that release pending trial may be conditional on guarantees to appear for trial.

Section 25(1) of the Bill providing for holding trial at the discretion of the Special Court violates Article 14(1) of the ICCPR which provides that except in very special circumstances all court hearings and judgments must be public. The more serious objection is to Section 25 (2) (3) of the Bill which allows the identity and address of witnesses to be kept secret. This denies the accused the right of a proper cross- examination which is the very foundation of a fair trial in our system. As a matter of fact, this right is so much a part of a rule of law that during debates in the Constituent Assembly whether a specific provision should be made, it was considered unnecessary by Dr. Ambedkar, because ``Unless the provincial Government goes absolutely stark mad and takes away this provision, it is not necessary to make any provision of that sort. Defending includes cross- examination''.

Retention of this provision also runs counter to the decision in Kartar Singh's case which criticised this provision strongly by stating ``whatever may be the reasons for the non-disclosure of witnesses, the fact remains that the accused persons to be put up for trial under this Act which provides severe punishments, will be put to disadvantage to effective cross-examining and exposing the previous conduct and character of the witnesses''.

Section 25 makes confession before a police officer admissible in trial. This is denial of human rights and equality considering that under the general law confession to a police officer continues to be inadmissible because of police unreliability - this apprehension is confirmed by one of the highest ranking police officials who has had experience of militancy in Punjab and the Northeast and who has candidly admitted that ``whatever powers are available with the police are mostly abused for personal gain or extraneous reasons.''

There seems to be a misplaced impression amongst some even well- intentioned persons that to deal with terrorism legality and constitutional compulsions have no place. Such thinking is against the very basics of a democratic republic apart from not even being a successful practical solution. Terrorism cannot be wiped out by state terrorism is a truism not open to debate. Prof. Brice Dickson wrote of the inefficacy of anti-terrorist laws in Northern Ireland: ``...Until more convincing arguments are put forward as to why ordinary criminal law cannot be more fully deployed in the fight against terrorism, the Government's claim that it is dealing with Northern Ireland's civil unrest by adhering to the rule of law will continue to ring somewhat hollow.''

Jingoistic nationalists may accuse people of unpatriotic behaviour for opposing legislation purportedly aimed at meeting the danger of terrorism and talking of human rights, more so in the context of the barbaric terrorist attacks taking place in Jammu and Kashmir. But it is precisely in this crisis that the nation must not lose its faith in the basic value of freedom and democracy.

Though some instances of racism have marred the face of the U.S. open society, in all fairness one must also note that the attempt of the U.S. Attorney-General to seek more powers from Congress utilising the post-September 11 trauma has been rejected because, as some legislators warned ``past experience has taught us that today's weapon against terrorism may be tomorrow's weapon against law-abiding Americans''.

Similar sentiments were echoed by the U.S. media a few days after September 11. The New York Times wrote ``the temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies, or even military forces, a right to undermine the civil liberties that shape the character of the United States. President George Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans''. The Washington Post wrote ``the country cannot allow terrorists to alter the fundamental openness of U.S. society or the Government's respect for civil liberties.'' The Philadelphia Inquirer wrote ``We feel rage. We feel fear. We are bewildered. We can't avoid acting on those feelings. Yet we must calibrate our response against the ideals of liberty and tolerance that have made this nation work so well for so long.'' If the second largest democracy can think thus, why must the largest democracy shame itself by acting otherwise.

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