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CONTEMPORARY CHALLENGES TO THE CRIMINAL
JUSTICE SYSTEM
TERRORISM, ORGANISED CRIME AND INTERNAL SECURITY1
- K.P.S. GILL
It is remarkable that India’s
justice system has become the strongest and most favoured ally and alibi
of the terrorists operating on Indian soil, and of their sponsors across
borders. Thus, an unidentified spokesman of the Pakistan Embassy is
reported to have stated, shortly after the attack on India’s Parliament
on December 13, 2001 – and at a time when India was demanding extradition
of the perpetrators of major terrorist actions, who had been provided
safe haven in Pakistan: “When you (India) had Masood Azhar in your jails,
why didn’t you do anything then? India says it has been fighting terrorism
for 20 years, why don’t they take an alleged terrorist to trial ever?
Give me the name of one alleged criminal who you have tried?”2
The question is impossible
to answer – except in terms of the weak quibble that there have, in
fact, been a handful of convictions.3 The truth is,
the courts have taken the promise of justice and transmuted it into
a leaden ritual that punishes innocent and guilty alike through its
interminable delays. In areas afflicted by widespread terror or persistent
mass violence, a bare pretence of judicial process survives. In nearly
14 years of strife in Jammu & Kashmir (J&K), for instance, there
have been just 13 convictions in cases related to terrorism, of which
eight concern relatively minor offences such as illegal possession of
arms or illegal border crossings. This is the judicial record in a state
where 30,750 people have been killed in the conflict between 1988 and
2001, 11,377 of them civilians. According to the Jammu and Kashmir Home
Department, there are only 313 terrorists imprisoned in the jails of
the State since 1996.4 Only 40 terrorists lodged in
different jails of the State were facing trials under TADA in April
2001. Since the eruption of militancy in the State, as many as 13,911
suspects had been arrested under TADA and allied offences. The State
Screening Committee had freed 13,871 suspects of the charges and they
were later released. The situation in J&K is not unique, and the
pattern is comparable in all terrorism-affected States. In Assam, for
instance, the conviction rate under TADA was not even 1 per cent.5
There is little need to
elaborate on the assertion that there is a current and chronic crisis
of national security in India. An unending succession of events has
made this far too obvious to demand argument or illustration. Terrorism,
organised crime, caste and communal violence, the immense and increasing
criminalisation of politics, the growing numbers of the poor and rootless,
accumulating pressures of population and consumerism on limited natural
and national resources, and a widening area of abject non-governance
– once associated only with Bihar – have all combined to make internal
security the most urgent issue of our time.
Where optimists find some
evidence of improvement, such illusions are brutally swept aside by
some new crisis. The record of declining communal violence over the
past decade was one such datum that lulled some into a sense of temporary
security and a feeling that, at least on some variables, there was a
positive process of political evolution – till Godhra and the carnage
in Gujarat reminded us of how close to the edge we actually live.
There are, of course, many
and complex reasons for the state of permanent and rising tensions that
has become the essence of our way of being. One, at least, of the most
significant, is the progressive collapse of India’s justice system.
The truth is, today, the link between crime and punishment has almost
entirely been severed. This is true for almost all types of crime, but
is most unambiguously the case among those who harness criminal violence
to political or sectarian ends. Here, even the moral imperative of punishment
is compromised, if not rejected, as every case becomes an exception
to the rule. Perverse arguments of a populist sanction are advanced
to protect political players from criminal prosecution; and Prime Ministers
meet, or send their emissaries to negotiate with, terrorists, warlords
and mass murderers. We have turned our laws into shibboleths, and the
idea of the rule of law has been all but abandoned.
This failure is compounded
by a blind commitment to rhetorical and politically correct formulae
– ‘human rights’ and ‘natural justice’ among the most prominent – and
to an arid legal formalism without the faintest concern for the actual
ends these secure. To take a crude illustration, the judiciary has stubbornly
insisted that it is procedurally correct in repeatedly enlarging terrorists
and criminals on bail. If they jump bail and murder people, that is
not their responsibility, for a man may not be incarcerated unless he
is proven guilty beyond doubt – a process that, in this country, usually
takes close to five years, and may take up to thirty. In terms of criminal
action and terrorist strife, this is an eternity; it is an unqualified
licence to kill. For while the learned legal community is entertaining
all manners of possible doubts, the man whose ‘freedom’ they have upheld
goes out and murders any number of innocent people. But the judge’s
conscience is clear. He has followed the letter of the law and defended
the supposed citadel of human rights. This problem has virtually appropriated
the form and character of a fetish. Thus, at a public forum, a former
Chief Justice of India asserted that that procedural guarantees of human
rights “could not be diluted even in circumstances where the unity and
integrity of the country was under threat,”6 ignoring
the fact that in a situation where the unity and integrity of India
collapsed into anarchy or war, these cherished rights would lose their
meaning altogether. He ignored, equally, the reality that these procedural
guarantees had worked overwhelmingly to the benefit of those who commit
unspeakable acts of violence against the innocent. It is attitudes such
as these that give rise to absurd judicial interventions, such as the
Srinagar High Court order, during the siege of the Hazratbal shrine
in Jammu and Kashmir in March 1996, demanding that certain types and
quantities of food be served to the terrorists holed up in the shrine.7
Three criteria have been
defined for the identification of a system of justice on its last legs:
-
That people come to
believe that inefficiency and delay will drain even a just judgement
of its value.
-
That people who have
long been exploited in the smaller transactions of daily life come
to believe that courts cannot vindicate their legal rights from
fraud and over-reaching.
-
That people come to
believe the Law - in the larger sense - cannot fulfil its primary
function to protect them and their families in their home, at their
work, and on the public streets.8
These circumstances manifestly
prevail in India today.
This abdication of responsibility
goes well beyond the judiciary. Indeed, in situations of persistent
mass violence, the entire system of civil administration is effectively
suspended. The only agencies of the state that continue to function,
at varying levels and with varying degrees of effectiveness, are the
uniformed services – the police, the paramilitary forces and the Army
– and it is these services that come in for the greatest measure of
abuse and harassment once a degree of order is restored. With the agencies
of civil administration either withdrawing from areas afflicted by widespread
violence, or even evolving complicit arrangements with the forces of
violence and subversion, the entire gamut of the tasks of development
and governance are simply abandoned.
These are not challenges
that can be met by political theatrics. They require precisely what
has been lacking over decades of posturing and pretence – a strategic
vision and the ability to translate this into the structural and institutional
transformations that are necessary to restore order in the increasing
spheres of terrorist and organised criminal violence and activity across
the country – and of the world. The foundation of such a transformation
is a system of efficient justice administration – and it is not
sufficient here to make a scapegoat out of the police or of the judiciary
or the investigative agencies or of the old bogey of ‘political interference’.
Every single institution is, without question, culpable in the current
and comprehensive crisis, though some of these institutions – led by
the judiciary – have consistently maintained a holier-than-thou attitude,
attempting to blame the entire failure on other agencies of governance
while they brush their own disastrous role under the carpet.9
The rising disorder of
our age is a natural and cumulative consequence, on the one hand, of
gradual processes of erosion within all institutions of governance in
this country and, on the other, of dramatic transformations in the nature
and range of the internal security threats that confront the modern
state. The tectonic shift in the character and scale of these threats
was brought home dramatically by the 9/11 attacks in USA, as also by
mounting evidence thereafter that many terrorists groups have been exploring
the possibilities of the acquisition and use of a range of weapons of
mass destruction (WMD). What is needed, consequently, is a comprehensive
reappraisal of all contemporary threats to national security, and a
refashioning of the nation’s responses in terms of the legislative and
institutional framework, and of executive action.
Underlying any such reassessment
must be a clear understanding that, today, very small minorities can
directly and significantly threaten, undermine and, through determined,
persistent and extreme violence, even destroy the edifice of the state
and the integrity of the nation – and this is especially true where
they act with foreign support and safe havens. The arguments that the
manifestations of terrorism are located in ‘root causes’ of poverty
and popular discontent, though they may have some grains of truth, are
consequently far from an accurate reflection of reality. Terrorist movements
today can be sustained by minuscule groupings, sometimes composed entirely
or predominantly of foreigners, often exclusively supported by hostile
states, and increasingly indifferent – if not inimical – to the hopes
and aspirations of local populations [More than 85 per cent of the civilian
victims of terrorism in J&K, for instance, are Muslims, something
of a problematic for ‘Islamic mujahiddeen’ to consistently explain
away in terms of a ‘struggle to protect oppressed Muslims’].10
Many terrorist organisation have no consistent political motives or
ideologies, and are driven by purely or overwhelmingly criminal considerations.11
Yet they continue to hold sway over vast territories and populations
through the instruments of terror, and as a result of an abdication
of responsibility, or a failure, of the state.
Unfortunately, on every
occasion when the issue of internal or national security legislation,
or any of its components, such as counter-terrorism legislation or legislation
against organised crime, have been discussed in the recent past, an
entirely irrational, even hysterical response has greeted any such proposals,
and it has generally been argued that the Indian Penal Code (IPC) is
capable of dealing with every existing and emerging challenge.12
This is interesting, and ascribes to the IPC something of a sacred and
immutable character – which no statute book in a changing world can
ever enjoy. This is particularly the case where patterns of criminal
action have assumed proportions that undermine the very fundamentals
of the institutions of democracy and of civil society. It is high time
we understood the dangers and possibilities of a terrorised society,13
and the inadequacy of the conventional law – which approaches criminal
conduct as an individual infraction violating individual rights – to
deal with movements that collectively subvert and disrupt the structures
of governance and enforcement themselves.
Confronting such movements
demands not only ‘more stringent’ laws, but real-time legislative responses
that accommodate each significant transformation of criminal conduct.
We may disagree with the basics and content of such legislation, but
something analogous to the speed and proportions of the American legislative
response to the 9/11 attacks, and before these, to the attacks on the
World Trade Centre in 1993, is what will be necessary if democracies
are to defend themselves effectively against fanatical forces that accept
no limits of law or conventional morality on the violence they are willing
to inflict on others to secure their ends.
This does not imply a blind
and submissive acceptance by all Americans to every legislative excess
of the Bush administration. A vigorous democratic discourse is certainly
in evidence on the new legislation, and its provisions can be expected
to be amended and diluted over time, and in the light of the evolving
experience. What is missed, however, is the fact that this swiftness
and scale of response made it possible to avert many potential follow-up
strikes that had evidently been planned by the al Qaeda, and as new
cells and evidence is uncovered, it is clear that at least some lives
have been saved and possible catastrophes averted, without extraordinary
and irreversible harm being inflicted.
The real question that
arises in this context is, whether committed democracies like India
can face up to sustained terrorism with their basic structures intact.
Considering the extended timeframes of such conflicts, the new and ingenious
ways they throw up of bypassing and exploiting laws, the relentless
attack on civilians and the widespread intimidation of the institutions
and agencies of governance, it is clear that the obtuse legal formalism,
the crude investigative, policing and prosecution mechanisms of our
past can only contribute to failure. The justice system in its entirety
will have to devise procedures and processes that remain in conformity
with democratic norms, but are, nevertheless, strong and efficient
enough to ensure that the people involved in terrorism, organised crime,
and patterns of political violence that threaten the basic structures
of society, are neutralised, and others who may be tempted to support
or join them are sufficiently deterred. For all its supposed brutalisation
– and the extended terms of imprisonment that many terrorists serve
‘under trial’ or under preventive detention – India’s penal system is
extraordinarily kind to those who commit heinous crimes.14
I have had the opportunity to meet a terrorist in Tihar Jail who was
simply delighted to have shifted there after his extradition from the
US, where he had suffered long periods of solitary confinement. The
600-plus persons who were arrested after the September 11, 2001, attacks
in the US – many of them described, not as suspects, but as ‘material
witnesses’ – were held in solitary confinement for months at end. This
is, of course, not to suggest that we must imitate the excesses of others.
But the rhetoric of human rights must, from time to time, be tempered
with minimal doses of reality.15
The point here is that
the unending search for an elusive ‘consensus’ that has stalled all
national security legislation in this country – even as criminal audacity
expands exponentially in a legislative vacuum – is an unacceptable and
potentially disastrous response to the rising crises that confront us.
Parties and lawmakers will have to rise above partisan interests and
legislate on crucial issues in this context, and will have to do so
quickly in order to stem the rising tide of anarchy and the growing
power of those who threaten not only the state, but civilisation itself.
All such legislation would and must remain open to amendment in the
light of evolving experience – and such processes of review must not
be structured around a one-time and all-or-nothing approach that has
characterised debates in the past. If elements of a law are found to
be susceptible to abuse or to have caused unacceptable hardship to the
innocent, these – and not the law in entirety – must be rejected and
redrafted.
None of this implies any
dilution in our national commitment to human rights. It means, conversely
and precisely, a review of the institutional mechanisms and processes
for the protection of these rights to ensure that it is these that are,
in fact, protected, and that their protection does not inadvertently
extend to criminal intent and operations. If we are to take human rights
even half-way seriously, we will have to recognise that terrorism, low
intensity warfare and their linkages with organised crime have created
new and unprecedented dangers to the unity and integrity of the country,
to the survival of democratic governance, and to the very possibility
of human rights.
It is, consequently, necessary
to devise new laws, procedures and processes that help contain this
menace and protect the people from the depredations of a merciless and
utterly unprincipled enemy. Unfortunately, there is a new ‘high priesthood’
that would have us believe that, as long as the tedious rites and rituals
of the judicial yagna are fulfilled, all the interests of justice
are served – no matter how many people are slaughtered in the streets.
It must, of course, be
accepted that the possibility of abuse of laws will always exist, and
we will have to define safeguards with each legislation to limit the
possibility and scope of such abuse. We must, however, understand at
the same time that weak laws, or the absence of appropriate legislation,
yields greater dangers, both of the victimisation of innocents by wrongdoers,
and – bluntly put – in the form of resort to extra-legal solutions by
those charged with the protection of lives and property, and the preservation
of order. Without order, and without a concomitant security of life
and property, there can be no freedom and no rights.
National Security Legislation
is not just a question of definition of crimes or new patterns of criminal
conduct and the prescription of penalties. It relates to the entire
system, institutional structures and processes that are required to
prevent and penalise such crimes, to preserve order, and secure the
sphere of governance. The mounting failure on these counts is clear
evidence that the system has deficiencies – and this should be sufficient
grounds for a pragmatic and comprehensive reassessment.
Defining – and perhaps
constantly redefining – possible legislative solutions to our present
predicament will demand enormous sagacity on the part of the nation’s
collective leadership. It is neither possible nor the intent, here,
to enumerate some simple solutions or preconceived formulae that will
magically resolve all problems. A fair beginning can, however, be made
if the areas that demand urgent legislative attention and reform are
reasonably and clearly identified.
1. Terrorism & Counter-terrorism
1.1 A comprehensive set
of counter-terrorism laws must be drafted and given a permanent place
in our statute books. Terrorism is not a transient crisis, but has emerged
as a stable long-term threat to national security, and it is delusional
to believe that ‘special’ and temporary laws are adequate to deal with
the problem. The proposed laws would need to take into account, at least,
the following areas of concern
1.2 A clear conceptualisation
and definition of the complex patterns of crime that constitute ‘terrorism’.
It is crucial, here, to bear in mind that this is a unique category
of criminal behaviour. While the actions – murder, intimidation, extortion,
possession and use of illegal arms, etc. – that terrorists carry out
may be separately covered by existing laws, their character and context
is fundamentally transformed by the element of massive, often transnationally
co-ordinated activities. The threat these activities constitute, and
the damage they inflict, is incalculably greater than any pattern of
individual criminal activity – the whole, to borrow the gestaltist
principle, is greater than the simple sum of its parts. These threats
can only be contained if this is explicitly recognised, and legislation
targets not only the executioners of terrorist action, but the entire
network of support that makes such action possible.
1.3 The transfer and use
of illegal revenues is the lifeblood of terrorism, and stringent laws
must be devised to deprive extremist and subversive groupings of funds.
This will require the implementation of harsh penalties on illegal transfers
and money laundering, as well as the criminalisation of a range of economic
offences, including, crucially, the use of such resources in legitimate
businesses.
1.4 The activities of the
‘fellow travellers of terrorism’ must also be brought under scrutiny.
This includes a range of front organisations, political actors, non-governmental
organisations, businesses, etc., who provide the needed ‘overground’
support that makes the ‘underground’ activities of extremists possible.
1.5 The framework of counter-terrorism
policy must be clearly articulated. This is not just a question for
the political executive to determine. Some limits of law must be placed
on what is or is not permissible. Elected governments have, in the past,
made every principle of rule of law and constitutional governance negotiable
under the threat of terror. Statutory limits must now be placed on how
much governments can actually ‘put on the table’ or ‘negotiate’ in such
situations. The present system has created a structure of incentives
that actually reward terrorists and extremists, and this will have to
be dismantled. Those who intercede with terrorists on the government’s
behalf must also be statutorily prohibited from any negotiations or
commitments that would require constitutional changes. Such changes
are an exclusive prerogative of Parliament, and cannot be offered or
discussed by any emissary of government without prior Parliamentary
approval.
1.6 Existing ‘surrender’
policies must also be brought under statutory review. Current practices
have created more problems than they have solved. There must be some
limitations on the ‘rewards’ and incentives that attach to the surrender
of terrorists, to amnesty or dropping of prosecution for criminal offences
against those who surrender, etc., and practices must be brought in
line with the principles of the rule of law.
1.7 There is now a strong
international mandate for effective laws against terrorism, and this
includes various United Nations resolutions that impose a duty on all
member states to legislate effectively to control the activities of
terrorists and their support organisations. It is now time to bring
Indian laws into conformity with this mandate, and also to establish
efficient structures of international co-operation and exchange of intelligence
to counter the international threats and networks of terrorists and
organised crime actors.
1.8 The burgeoning wave
of terrorism that is sweeping across the country – and indeed, the entire
world – demands a suitable, coherent and comprehensive ‘use of force’
doctrine. It must be clear that the ideas and orientation that were
devised to deal with civil riots and transient political violence, are
entirely inadequate to confront the scale, intensity and character of
contemporary terrorist violence. As the lethality and the linkages of
terrorist groups grow, this orientation will become more and more a
hindrance to a co-ordinated and effective response.
1.9 Terrorism and low intensity
warfare have imposed new structural challenges on law enforcement that
we are yet to accommodate even at a conceptual level. Our police and
paramilitary forces continue to operate under mandates and legal provisions
drafted by the British colonial government, and these have, at best,
been tinkered with after Independence. The Evidence Act is another anachronism
in need of urgent amendment, and must swiftly incorporate the use of
emerging technologies and devices in the prosecution of crime.
1.10 Although low intensity
wars and widespread terrorism have ravaged many parts of the country
for decades now, these conflicts are still conceived of by the national
leadership and the so-called ‘intelligentsia’ as ‘non-military threats’,
and an ill-equipped Home Ministry is required to deal with them. The
entire orientation to low intensity conflicts is of ‘emergency deployment’
– stop-gap arrangements to deal with what are still thought of as transient
emergencies. The result is that the Army is repeatedly called out in
these conflicts, supposedly to ‘aid civil authority’. The fact is, neither
the police nor the army, by virtue of their basic orientation and training,
is properly equipped to handle these crises. In view of the future threat
potential of low intensity wars, it is crucial that a radical reformation
of internal security forces be initiated, creating the skills, knowledge,
attitudes and infrastructure necessary to confront this danger, and
possibly raising entirely new forces to grapple with this specific hazard.
1.11 The parameters within
which each agency of government is to respond to such challenges need
to be clearly assessed, and the powers, the range of extraordinary actions
permitted in these situations, and the applicable legal criteria and
context of evaluation of these actions – whether these are the same
as those applicable in peacetime or are to be akin to articles of war,
or are to be redefined in terms of the new category of ‘low intensity
wars’ – have to be clearly determined and suitably legislated. In the
absence of such legislative intervention, enforcement agencies and security
forces will continue to fight with their hands tied behind their backs
– and this situation is not only entirely unacceptable from the point
of view of the Forces, it is suicidal for the nation.
2. Organised
Crime16
2.1 The public image of
organised crime is one of extreme violence and mass intimidation. There
is a measure of truth in such a representation, but to the extent that
it dominates and exhausts our vision of organised criminal activity,
it is false and misleading. The truth is, an overwhelming proportion
of organised crime is not predatory but collusive – based on
a continuing and symbiotic relationship of acquiescence between criminal
enterprises on the one hand and, on the other, government agencies,
officials and enterprises whose primary businesses lie within the ambit
of the law. ‘Enterprise Crime’ now engages in a mixture of co-operation
and competition both with governments and the larger business community.
Their growing power is based on their capacity to exploit (rather than
disrupt) legitimate business and financial activities, and their ability
to corrupt government and law enforcement agencies. As Boutros Boutros
Ghali, the then Secretary General of the United Nations, declared in
1994, “The danger is the more pernicious because organised crime does
not always confront the State directly. It becomes enmeshed in the institutional
machinery. It infiltrates the State apparatus, so as to gain the indirect
complicity of government officials…. (it) poisons the business climate,
corrupts political leaders and undermines human rights.”
2.2 This contemporary blend
of corporate and criminal cultures is not susceptible to the solutions
of the past. The reliance on special forces within the police, and on
the “encounter” may be highly gratifying as spectacle, but it targets
only low level – and easily replaceable – operatives. Even where arrests
take place, the criminal justice system fails consistently to incarcerate17
or incapacitate those who are arrested for any significant length of
time – and even these, once again, are only lower or middle level operatives.
2.3 Another important reality
is that crime syndicate operations are now overwhelmingly transnational.
The primary organisations have established themselves in safe havens
abroad; in India’s case, such sanctuary is provided by nations distinctly
inimical to our interests, or whose sympathies remain ambiguous. These
transnational criminal organisations [TCOs] operate through a variety
of franchise alliances and subsidiary groupings that are strengthened
immeasurably by the financial clout and subversive affiliations of their
principals. National enforcement agencies ordinarily confront only the
petty ‘retailers of crime’. The ‘prime movers’ have remained fully out
of their reach.
2.4 One of the critical
elements to be understood is that legitimate economic elites find that
these syndicates fill an important vacuum in society. Specifically,
they provide a wide network of connections and access to Government
and help evade government controls; in the absence of stringent commercial
codes and a viable judicial system, mobsters provide protection to businesses
and a mechanism for regulation of disputes; they also provide a range
of services including the systematic evasion of taxes, the transfer
of money across borders, the collection of outstanding loans, possession
of disputed properties, control of recalcitrant labour unions, and outright
violence to intimidate or eliminate business rivals. TCOs are also an
important source of finance for a wide range of otherwise legitimate
enterprises. In many ways, they progressively supplant the failing State
in these areas, offering arbitrage and financial services, providing
employment, and guaranteeing a consistency of outcome in activities
and disputes that is otherwise elusive.
2.5 Under the circumstances,
directing enforcement operations and legislation exclusively against
the visible operatives of criminal networks will prove both frustrating
and futile. It is necessary, now, to ‘criminalise’ – that is, to attach
severe criminal penalties to – all agencies and activities that co-operate
with and benefit from crime. There has to be a logical escalation in
the legal means used to combat the increasing scope and power of organised
criminal activity, and this will have to be directed primarily at stripping
criminals and their associates of their assets and blocking their penetration
into the legal economy. Existing systems of documenting economic activity
and our criminal records system are simply too primitive to cope with
this challenge and will have to be enormously upgraded in order to introduce
complete transparency in the economic, political and social life of
the nation. The continuous blurring of lines between legitimate and
criminal enterprises – not only in the more obvious instances such as
the ‘bumping off’ of rivals or of union leaders, but in less visible
day to day transactions – has to be made relatively impossible.
2.6 The pathways of untraced
profits from criminal and quasi-criminal enterprises must be disrupted
by a rigorous system of mandatory documentation and increasing transparency
in all legal financial transactions, and the clear and definite identification
of all agents in such transactions through a comprehensive system of
identity numbers [the Income Tax Department’s system of PAN numbers
could constitute the basis of such an identification system, but its
present and projected coverage is woefully inadequate]. This must be
backed by the imposition of severe criminal penalties, including harsh
terms of incarceration and seizure of all assets disproportionate to
known sources of income, for tax fraud, and for concealment. These measures
may be complemented by a radical reduction in rates of direct taxes
as long as there is a proportionate escalation and inflexibility in
imposition of penalties for evasion.
2.7 The one element that
is not replaceable in the criminal enterprise – as in legitimate enterprises
– is profit. Systems that facilitate the identification and seizure
of assets and capital originating in crime – even where they have been
transferred or laundered to flow into legitimate activities – would
eventually destroy the super-normal profits that create overwhelming
incentives for the penetration of organised criminal activity into the
nation’s economy.
3. Communal & Sectarian
Violence
3.1 The legislative framework
must provide for the suppression and containment of subversive and extremist
activities by religious institutions and organisations, as well as by
groups that resort to political violence in the name of caste or other
sectarian motives. The present system has made a ‘holy cow’ out of any
group or organisation that claims religious inspiration or affiliation,
virtually placing these outside the bounds of the law. While Constitutional
freedoms, including the freedom of belief, must be vigorously protected,
the abuse of such freedoms for activities and ends that lie outside
the intent and objectives of these Constitutional provisions must be
punished with equal vigour. This will be something of a tightrope, but
it has to be walked.
3.2 Existing provisions
and penalties on mass communal violence are also far from sufficient.
The record of convictions for major riots in this country is abysmal.
Even where thousands have been killed – as in 1984 – there have been
virtually no convictions. This is not just a matter of ‘political will’,
but is, in fact, evidence that existing laws are insufficient. Current
provisions look upon the riot as an individual transgression. There
is no legal instrument available to contain the processes of violent
religious mobilisation and engineered mass riots. Worse, where political
and state collusion are a fact – as they inevitably have been in most
recent cases of mass rioting – there must be some overriding legislation
that initiates mandatory processes of prosecution and extraordinary
penalties.
4. Judicial Reform18
4.1 As noted earlier, there
is a complete abdication, indeed collapse, of judicial accountability
in situations of persistent mass violence and terrorism. Legislative
provisions and statutory penalties are necessary to ensure that judicial
officers who fail to meet their constitutional obligations under threat
or fear are penalised and removed from their positions, and that the
institutions of civil governance do not systematically collapse at the
first signs of personal risk to the privileged cadres of these instrumentalities
of the state. Protected by the law of contempt, by the essentially closed
nature of the judicial family, and by the general tendency of the public
to be extremely deferential in their attitude towards the courts, the
judiciary has succeeded in directing critical attention away from itself
towards the failures of the other arms of government. There is, however,
a growing realisation today that the judicial system and its machinery
are straying from the Constitutional path and not performing their true
function, a function the public has a right to expect them to perform.
Despite the increasing exhibitionism of judicial processes, especially
in ‘Public Interest’ litigation, the courts are no longer perceived
as effective institutions for the resolution of conflict and for the
administration of justice.
4.2 This was acknowledged
by then Justice A.S. Anand in a moment of candour, when he stated that
a victim of crime has only two options: to approach the police or the
courts. “For him unfortunately,” he confessed, “neither of the two is
an attractive proposition. If he is hesitant to approach the police
station for reasons which are by no means unknown, his reluctance to
approach the court is also not without reason.”19
Justice Anand characteristically failed to elaborate upon the reasons
for the public’s reluctance to approach the courts. The judiciary has
consistently resisted any objective attempts to define reasonable criteria
by which its performance is to be judged, even as it has placed itself
beyond the scope of political or executive review.20
4.3 The reality, however,
is difficult to escape. “Most Supreme Court Judges,” the eminent constitutional
expert H.M. Seervai remarked, “live in a dream world of their own. There
are rhetorical passages in a number of judgements as to the intellectual
and moral qualities which judges should possess and, by implication,
most of them do possess. In my submission, it is necessary to point
out that this picture of qualities and character possessed by most Judges,
and the further view that all High Court Judges are men of integrity
and are incorruptible is not justified by matters on record.”21
Seervai then proceeds to quote an interview given by the late Chief
Justice Venkataramiah a day before he retired; the excerpts from the
interview are singularly edifying, and refer to Judges who “are willing
to be ‘influenced’ by lavish parties and whisky bottles”, and to the
trend of close relatives of judges practising and influencing decisions
in Courts where those judges were on the Bench.22
4.4 Integrity and corruption,
however, are not the only issues. The fundamental obstacle to a credible
judicial system is a minimal level of efficiency. No system that arrives
at a decision after a litigation process that can extend over decades
delivers anything that could deserve the title of ‘justice’. If judicial
action is to have any credibility among the people, and any deterrent
impact, especially on the hardened cadres of terrorist and organised
crime groupings, the link between crime and punishment must be swift
and inexorable. The present judicial system is simply incapable of securing
the levels of efficiency and delivering the quality of justice that
are required to counter and contain the enormous threats that currently
exist to national security, nor does it manifest the will or the inclination
to set correctives in motion on its own. Such correctives, consequently,
will have to be legislatively defined and imposed. If done with intelligence
and without partisanship, this would be entirely consistent with Constitutional
provisions and the provisions relating to the independence of the judiciary.
4.5.1 A first step in the
right direction would be to set up an independent Judicial Commission
which would be responsible, not only for appointments and transfers,
but also to see to it that judges perform their duties in keeping with
the high traditions of the legal profession and the Judiciary, and for
the investigation of, and prosecution on, charges of corruption and
judicial misconduct.
4.5.2 Such a body should
also be required by statute to publish an Annual State of Justice Report,
with a complete category-wise Statistical Break-up of cases, pendencies
and disposals; as well as a comprehensive summary of the main jurisprudential
trends emerging from critical judgements. The latter would go some distance
towards ensuring that, even where individual decisions apply contrary
or contradictory principles, the approved jurisprudential position of
the Supreme Court – and its consistency with constitutional provisions
– is unambiguous.
4.5.3 No Commission comprised
of people drawn from the area or the fraternity that requires reform
will ever be able to bring about the requisite reforms. The proposed
Judicial Commission must be widely representative - with those who have
been subjected to the tyranny and the caprice of the judicial system
given a prominent voice.23
4.5.4 The nexus between
criminals, ‘convenient’ government servants and politicians has extensively
documented, and the N.N. Vohra Committee’s Report has given official
confirmation to the worst imaginings of the media and the public. However,
the nexus with unscrupulous lawyers and other professional advisors
needs equal attention. Where evidence of collusion, of deliberate suppression
of evidence and calculated distortion by defence attorneys exists, the
latter should be made criminally liable as well, just as a chartered
accountant who cooks up fraudulent books of account would be.
4.5.5 Stringent penalties
must also be devised to discourage a number of ‘sharp’ and unethical
practices adopted by lawyers, including mediation between members of
organised crime networks, particularly those who are incarcerated as
undertrials and convicts, on the one hand, and their associates and
cadres ‘outside’, on the other, and other relationships which go beyond
legitimate advocate-client interactions; abuse of legal processes to
exclude legitimate evidence from trial; abuse of legal processes to
delay and protract trial, etc.
4.5.6 Provisions relating
to perjury and obstructive behaviour by witnesses need to be strengthened,
and courts should also not hesitate to make full use of such provisions
against uncooperative witnesses.
4.5.7 A radical reform
of judicial processes is also necessary. This must include computerisation,
efficient management of dockets, application of modern management principles
to the working of Courts, greater sensitivity to the needs of witnesses
and those who seek justice, and an end to the endless and infructuous
processes that have become a hallmark of India’s justice system. In
this context, it is essential to note that there is an over-emphasis
on the ‘shortage’ of judges, and the supporting statistics on the millions
of pendancies, and poor case/judge ratio. The millions of pendancies
are, in fact, substantially a consequence of inefficient legal processes
and a high tolerance for frivolous litigation. Consequently, a realistic
estimate of the judicial burden can only be had after a proper system
of case load management and a rationalisation of judicial procedures
have been introduced. That such a realistic reassessment is necessary
becomes apparent if we look at some comparative data relating to pendancies
in the South Asian region.
Table: Justice delayed,
justice denied?24
1996
Country
|
Cases Pending Per 1000 people
|
Persons per judge
|
Cases pending per judge
|
Bangladesh
|
53
|
95,000
|
5,150
|
India
|
23
|
91,000
|
2,150
|
Pakistan
|
5
|
85,000
|
450
|
Nepal
|
4
|
85,000
|
300
|
The variation in pendancies clearly
cannot be explained in terms of a crude ratio between population and
judges, and a detailed review of the functioning of the various systems
is necessary before any norms for such a ratio can be defined. Arbitrary
comparisons with the practice in selected and advanced countries in
the West cannot be an appropriate basis for the definition of such norms.
5. International / Transborder
Initiatives
5.1 Several UN and Security
Council resolutions have called for ‘appropriate legislation’ by member
states to meet the challenges of terrorism, organised crime, drugs and
arms smuggling, international trafficking in people, etc. India has
expressed approval for many of these resolutions/declarations, and is
also a signatory to several international conventions sponsored both
by the UN as also by other international agencies, relating to these
major issues. Regrettably, weak governments and mixed polities, with
strong vested interests that challenge every effort to bring in appropriate
legislation in this regard on the grounds that it ‘undermines human
rights’, or that these can be handled under existing and normal laws
of the land, or simply as a result of legislative inertia, have failed
to integrate the principles and practices outlined in these various
resolutions, declarations and conventions into national statutes. Thus,
while the international mandate for stronger legal action against these
various disorders does exist, we have remained trapped in a legal framework
that grows more and more licentious by the day. It is necessary, now,
that national laws be brought into conformity with such an international
mandate in order to ensure the greatest efficiency of international
co-operation on these issues, as also stronger penalties for acts of
transborder terrorism and crime within the country.
5.2 National laws against
terrorism must make a clear distinction between, on the one hand, offences
on Indian soil by Indian citizens, and, on the other, those committed
by foreigners, especially those crossing borders illegally, and must
apply much harsher penalties and provisions for detention, and more
stringent criteria for release on bail in the latter category of cases.
This is of particular significance in view of the proxy war that is
being waged by Pakistan against India. The principles, here, must be
patterned on norms of military justice used against spies and saboteurs
in a state of war, in recognition of the fact that we are, in fact,
engaged in an undeclared war; our responses cannot, under the circumstances,
be moulded on principles of civil justice.
5.3 Border management and
the illegal movement of populations across international borders is
another problem that has been neglected for decades in search of a ‘consensus’
that will never be found. In the interim, the demographic destabilisation
that has taken place, particularly in India’s Northeast, has already
resulted in enormous violence, and threatens to acquire proportions
that are far more dangerous to the nation’s security and integrity than
any existing threat. This is, again, an area that demands immediate
legislative attention and the imposition of statutory obligations on
governments to prevent and punish such illegal movements of populations.
5.4 Vigorous steps must
be taken to push for a universally binding international convention
on terrorism, and on mandatory laws to deal with terrorists who take
shelter in other countries. Procedures for extradition should be simplified,
and the practices should be brought into conformity with the extraordinary
threat posed by the movement of terrorists across border.
5.5 Vigorous legislation
to contain the dangers of illegal movement of funds, arms and ammunition,
drugs, and trained terrorist cadres should be drafted both within the
country and in international law.
5.6 Harsh international
penalties must be prescribed against states the support and sponsor
terrorists, especially those who those that indoctrinate, train and
arm extremist cadres.
6. Other Areas
Requiring Attention
6.1 Clearly, police
reforms, the strengthening of the law enforcement, investigative and
intelligence structures, and enormous investment in internal security
are now necessary. It is time to abandon the idea that such investments
constitute ‘non-productive expenditure’. There is a peace dividend that
comes with good law and order administration, and this is reflected
in higher productivity in every other sphere of economic activity. Terrorism,
organised crime and widespread political violence sap the sinews of
the economy, destroy infrastructure, undermine investment and rob the
people of developmental opportunities for decades at end. The financial
and human costs of such processes have never authoritatively been calculated,
but they would infinitely exceed even the most exaggerated projections
of expenditures required for an effective national security apparatus.
The national budget and various economic policies should take these
factors into consideration at the time when allocations for policing
are taken up.
6.2 Much has already been
stated above about existing Human Rights practices and processes. It
requires a simple reiteration here to underline the need for a review
of these practices and processes to restrict the existing and enormous
potential of abuse by unscrupulous and criminalised elements.
6.3 Non-governmental organisations
in India have been passionate advocates of ‘transparency’ in governance,
and equally passionate opponents of transparency in their own activities.
There is now mounting evidence of NGO malfeasance and collusion with
terrorist, subversive and criminal organisations in various theatres
of conflict and crime in India, and it is high time statutory obligations
of transparency were imposed on these entities.
6.4 The bureaucracies of
the 19th and early 20th Century continue to dominate
our internal security and law enforcement apparatus into the 21st
Century, and have now become obstacles to the fundamental objectives
of efficient law enforcement. The decision-making processes at the highest
levels are oriented to a diffusion of responsibility and a complete
failure to understand the time-frames of contemporary crisis management.
There is an urgent need to create new and responsive structures of administration
and accountability that are geared to the time-frames imposed by modern
technologies, and to radically transform existing command, control,
communication and information systems, both internally within specific
agencies, and in the multi-force scenarios that are becoming increasingly
common. Since initiatives for appropriate change have not emerged from
the executive – which has strong vested interests in the perpetuation
of the existing system – such initiatives must be legislatively imposed.
6.5 What will be the character
of conflict and internal security challenges ten, or even twenty years
from now? And what will be the nature of the responses that will be
required to cope with these? Our answers to these question will define
the structure and composition of the Forces that we believe can help
us cope with these future challenges. And the degree to which, and the
detail in which, we are, in fact, able to correctly assess these future
challenges, and to generate appropriate responses before they become
an overwhelming threat to the existing order, will be the only measure
of the success of the present leadership. This process of projection,
moreover, must be continuous and will need to be institutionalized as
part of the basic structures of law enforcement and internal security.
In addition, there is a strong case for a Parliamentary advisory board
& secretariat on internal security. The existing processes and official
mechanisms of information dissemination among Parliamentarians are too
slow, cumbersome, and partisan to serve as an adequate and quick source
of information on rapidly transforming events. There is urgent need
to create a statutory institutional mechanism that would keep all parties
and the Parliament continuously apprised of various aspects of the internal
security situation, and to create an apparatus – under Parliamentary
control – to secure data and information from all concerned agencies
of government, and to research and analyse various aspects of existing
and emerging internal security crises. Indeed, the Parliamentary Committee
on Internal Security must also have a permanent research committee or
consultancy attached to it to ensure that its deliberations go beyond
the information voluntarily provided by the government, on the one hand,
and by the popular media, on the other.
6.6 Finally, at the very
heart of the problem, is the question of defining a coherent and comprehensive
policy framework on internal security. In the absence of a coherent
vision of the nation’s larger strategy, specific initiatives, especially
where they are fire-fighting responses to current crises, tend to cancel
each other out and often, in fact, prove counterproductive.
6.7 The very first imperative
of an effective policy on internal security, consequently, requires
the definition of the basic principles on which all action and policy
is to be constructed. No such principles are reflected in our present
policies, and there is little evidence to suggest that they exist. Once
defined, these principles must be strictly adhered to, circumscribing
the range and content of actions and negotiations that any government
or official may engage in with regard to, for instance, terrorists or
organized crime syndicates, or in situations of crisis generated by
the actions of such agents of disorder. At least some of these principles
must be statutorily imposed.
Our responses to terrorism,
organised crime, mass political violence, and other contemporary internal
security challenges in the past have not been reality-based. The Indian
state must start educating itself on how it is to tackle individuals
and groups that seek to undermine and destroy it. And it must learn
how to arm and protect those who put their lives at stake in the defense
of India’s unity and integrity. This demands a massive and unprecedented
effort, one that has to be exerted within a timeframe that grows shorter
by the day if it is to have a hope of success.
-
This paper is substantially an elaboration
of arguments explored in K.P.S. Gill, “The Imperatives of National
Security Legislation in India,” in Seminar, “States of Insecurity”,
Number 512, April 2002, pp. 14-20.
-
A
spokesman for the Pakistan Embassy in London to CNN, cited in
The Indian Express, December 27, 2001.
-
The preceding observations are based on K.P.S.
Gill, “Systemic overhaul needed to fight terror,” The Pioneer,
December 29, 2001. Also available at K.P.S. Gill, Freedom
from Fear.
-
“313 arrested militants costing J&K Rs 200 lakh
a year”, Kashmir Times, Srinagar, April 13, 2001.
-
“‘POTO can’t lapse retrospectively’”, The Tribune,
Chandigarh, December 21, 2001.
-
K P S Gill, “Are we imitating the Pak model?”, The
Pioneer, New Delhi, October 19, 2001.
-
Ashok Mehta, “Understanding the Army: Balancing
Human Rights and operational Compulsions”, paper presented at national
seminar on Security Force’s Morale and Human Rights – The Right
Balance, November 30, 2001, New Delhi.
-
Burger, Judge Warren E., Delivery of Justice,
The College of William and Mary Press & West Publishing Co.,
1990, p. 24.
-
K.P.S. Gill, “Systemic overhaul needed to fight
terror,” op. cit.; also available at K.P.S. Gill,
Freedom from Fear, See
also, K.P.S. Gill, “Politics of Justice,” op. cit.
-
See, K.P.S. Gill, “Dubious thing called popular
support,” The Pioneer, December 1, 2001. Also available at
K.P.S. Gill, Freedom from Fear.
-
See, for instance, Ajai Sahni, "The Terrorist
Economy in India's Northeast: Preliminary Explorations," Faultlines:
Writings on Conflict & Resolution, Volume 8, New Delhi:
ICM-Bulwark Books, April 2001.
-
For
an assessment of ‘human rights’ critiques against such legislation,
see, Ajai Sahni, “Anti-POTO hysteria: Delusions of Misuse”.
-
And what I have described as the “societal Stockholm
Syndrome”. See, K.P.S. Gill, “Dubious thing called popular support,”
op. cit.
-
Though it is, at the same time, extraordinarily
oppressive to petty criminals who fail to secure proper legal representation,
and who may languish in jail as ‘undertrials’ for periods that are,
in numberless cases, many multiples of the maximum sentences they
would receive if they were convicted.
-
K.P.S. Gill, “Systemic overhaul needed to fight
terror,” op.cit.
-
The analysis of organised crime and the required
state responses is substantially based on Ajai Sahni, “Enterprise
Crime targets nation’s economy”, Pioneer, January 21, 1999.
-
There are innumerable cases where the infrequent
incarceration is actually a blessing for organised crime bosses,
who continue to operate with impunity from jails, with the advantages
of modern communications provided to them by corrupt jailers. At
least some prominent criminals have actually sought out such incarceration
at times when their lives or operations are under extraordinary
threat.
-
These remarks, and the observations on the judiciary
that follow, are substantially taken from K.P.S. Gill, “Politics
of Justice”, in K. Mahesh & Bishwajit Bhattacharyya, Judging
the Judges, New Delhi: Gyan Publishing House, 1999, pp. 167-181.
-
Subsequently Chief Justice Anand, A.S., "P.
Babulu Reddy Foundation Lecture on ‘Victims of Crime: Unseen Side’,”
reported in The Times of India, September 30 1997.
-
By virtue of the Supreme Court’s majority judgement
in what is known as the Second Judges’ Transfer Case [Supreme
Court Advocates Assn. on Record v. Union, (‘94) A.SC. 268, (1993)
4 S.S.C. 441]. The decision itself is regarded as unconstitutional
by constitutional experts. Cf. H M Seervai, Constitutional Law
of India, Fourth Edition, Volume 3, N Tripathi Pvt Ltd, 1996,
“The Second Judges’ Case - A Fatally Flawed Decision”, pp.2928 -
2970.
-
Seervai, H M, Constitutional Law of India,
Fourth Edition, Volume 3, N Tripathi Pvt Ltd, 1996, p. 2927.
-
Ibid., pp. 2927-28
-
These proposals were outlined in K.P.S. Gill, “Politics
of Justice”, op. cit.
-
UNDP, Human Development Report 2000, Oxford University
Press, 2000, Table 5.2, p. 101.
(2002)
|