Fali S. Nariman
Is a harsh law really
necessary to put an end to "terrorism"? Past experience shows that it
is not.
The Tada Acts of 1987, which lapsed in May 1995, were very stringent,
but "terrorism" did not abate during the entire period of their
operation. The powers exercisable under Tada Acts were made more
horrendous by the official statistical revelation that not more than
one per cent of those tried before the designated courts were convicted
— the rest were acquitted for "want of evidence". That is, in 99 per
cent of the cases the accused (who was invariably denied bail before
trial) was wrongly prosecuted under Tada. Various reports of police
commissions, backed by past pronouncements of the NHRC (National Human
Rights Commission) show that constant political interference with the
police force has seriously impaired its ability to investigate crimes
freely and independently. Besides, the absence of rigorous training in
forensic skills (the real need of the hour) have prevented effective
investigation by the police, even when there is no outside interference.
We need an independent agency (separate from the law and order branch)
to prosecute, with efficiency and expertise, terrorist-related crimes.
But under the present dispensation it will be the ubiquitous public
prosecutor who will be burdened with this job; and public prosecutors
as a rule have not proved to be highly successful even when prosecuting
ordinary crimes!
Above all, there is the problem of oppressive laws creating a climate
of oppression. Never underestimate this. I was witness to its
manifestation during the Emergency in 1975. I had been invited to
preside at a Conference of Andhra State Lawyers at Rajamundhry way back
in August 1975. Justice Krishna Iyer was to inaugurate the conference.
It was expected that 2,000 lawyers would attend. Despite the June 26
proclamation of Emergency, they did. When we arrived, the organiser (a
senior lawyer in the district) informed us with anguish that his son, a
law student at Visakhapatnam, who was assisting him in the
arrangements, had been arrested the day before our arrival under Misa —
the Maintenance of Internal Security Act (predecessor of Tada). The boy
was a conscientious student — almost obtusely so. When his lecturer had
announced in class that they would all march in procession on a
particular week-day in support of Indira Gandhi’s 20-Point Programme,
he suggested that time was better spent studying in college and that
the procession should be postponed to a non-working Saturday. The rest
of the students shouted him down — marching in a procession would be
far more fun than attending classes. There the matter rested. But then
a District Magistrate, in whom wide powers of detention were conferred,
chose to exercise them when he heard of this "misdemeanour"! He
promptly issued an order of detention on the ground that the boy was a
"danger to the security of the State" — the order of detention was
served at Rajamundhry at the same time as he was whisked off in the
night. Fortunately, the then law minister of Andhra Pradesh was one of
the principal guests at the conference, and some of us requested him to
personally look into the matter, which he graciously did. The order of
detention was revoked a few days later. But the boy simply could not be
found! No one knew where he was put away. He was ultimately located,
after many anxious weeks, in a jail in a remote part of the state and
returned to his parents. No one in Delhi instructed the District
Magistrate to act as he did — in fact North Block, even in those
lawless times, would have been aghast at such irresponsibility. But
once laws are passed which enable untutored officials to act, then in
this country (and possibly in every other country) they will do so,
with hobnailed boots: as officials in some states did with Pota.
It is sometimes said that if a repressive law is oppressively
implemented the citizens could turn to the courts. They could. But the
courts can do little — after the constitutional validity of the Tada
Acts were upheld (by a majority of judges in a seven-judge bench) in
Kartar Singh’s case (1994), a truly regrettable decision, as
regrettable as the earlier one in ADM Jabalpur (1976) during the
Emergency era in which Chief Justice A.N. Ray infamously said that
liberty itself was the gift of the law and may by the law be forfeited
or abridged!
The Law Commission set up to advise the government, and the National
Human Rights Commission established by the Parliament, must immediately
put their collective heads together and tell us whether under present
circumstances in the wider public and national interest (in these
trying times), individual human rights safeguarded under our
Constitution do really need to be sacrificed at the altar of another
fierce anti-terrorist law — a law which will certainly be misused by
some states for political ends, as was Pota and Tada before it.
We citizens will accept (as the Government must) the superior wisdom of
these two august bodies. But their pronouncements must be firm and in
unison. There were once acute differences in perception between the Law
Commission and NHRC about the need for Pota. The citizen’s plight was
then somewhat akin to the exasperation of a Judge of the Court of
Appeal in England who, many years ago (when examining two conflicting
opinions of the House of Lords), made the plaintive plea: "Overrule us
if it please you, but at least say something clear to guide us in the
future".
Fali S. Nariman is an eminent constitutional lawyer
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