Spectre of oppressive laws

Spectre of oppressive laws
Fali S. Nariman

In April this year the Law Commission -- an expert non-statutory body -- submitted to the Central government its unanimous report recommending adoption of the Prevention of Terrorism Bill 2000. On July 14, after careful consideration, the National Human Rights Commission -- an expert statutory body -- unanimously opined that the Bill as proposed be not enacted. The Bill, it said, would have the ill-effect of providing unintentionally a strong weapon capable of ``gross misuse'' which must be avoided in view of the past experiences of misuse of TADA, and earlier of MISA of the Emergency days. The voice of mature experience should have prevailed. But it has not -- not yet. Instead, a government spokesman has said that it is determined to press ahead with the Bill, although the Law Minister says he is opposed to it. Amidst all this disputation, the public is left confused.

The proposed Bill is drastic. It permits custodial detention during investigation for as long as six months, Special Courts are set up, empowered to sit in any place, and to order that its proceedings be not publicised, bail is to be ordinarily denied if the public prosecutor opposes it; then there is a statutory abrogation of the presumption of innocence contrary to the mandate of the ICCPR (1966) which India ratified in 1979; and, to crown it, all, the safeguard in the Evidence Act 1872 is removed -- the confession of an accused recorded by a superintendent of police is made admissible in evidence: almost an invitation to custodial torture.

But all this may well have been ``small change'', if the public could be assured that a harsh law was really necessary to put an end to ``terrorism''. Past experience shows it is not.

The TADA Acts of 1987, which lapsed in May 1995, were even more stringent than the proposed Bill, 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. The Law Commission overlooked this vital piece of information when making its recommendations, as also the fact that the successful working of the proposed new law depends entirely on the proper functioning of police officers and of public prosecutors: neither of whom have functioned ``properly''. Various reports of police commissions, backed by the experience of the NHRC, show that constant interference with the police force has seriously impaired its ability toinvestigate crimes freely and independently. Besides, the absence of proper training and the lack of forensic skills has thus far prevented effective investigations by the police, even when there is no outside interference.

There is also no competent machinery to prosecute, with efficiency and expertise, terrorist-related crimes: the public prosecutor who is to be assigned this job belongs to the same class of public prosecutors who have not proved to be highly successful even when prosecuting ordinary crimes.

And 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 period of the Internal Emergency. I had been invited to preside at a Conference of Andhra sate lawyers at Rajamundhry in August 1975. Justice Krishna Iyer was to inaugurate the conference: it was expected that 2,000 lawyers would attend. Despite the proclamation of the Emergency, they did: When we arrived, the organiser (a senior lawyer of the district) informed us with anguish that his son, a law student at Visakhapatnam, who was assisting him in the arrangements, had been arrested under MISA the day before our arrival. He 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 2o-Point Programme, he suggested that time was better spent studying in college -- that the session should be postponed to a 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 the detention were conferred, chose to exercise them when he heard of the ``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, after this, the boy simply could not be found! No one knew where he was put away; he was ultimately located after some weeks, in some jail in a remote part of the state, and ultimately (after many anxious moments) 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!

With the prospect of a repressive law being oppressively implemented, the people could of course turn to the courts. But unfortunately the courts can do little -- especially after the constitutional validity of the TADA Acts have been upheld (by a majority of judges) 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 Ray infamously said that liberty itself was the gift of the law and may by law be forfeited or abridged!

In the wake of acute differences in perception between the Law Commission and the NHRC, the citizen's plight is 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''. The two commissions, the one set up by the government and the other by Parliament, must put their collective heads together and tell us whether, in the wider public and national interest, individual human rights safeguarded under our Constitution really do need to be sacrificed at the altar of a fierce anti-terrorist law. Say something clear, good ladies and gentlemen, to guide us: but please say it in unison.

The writer is an eminent lawyer