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Second Bodh Raj Sawhny
Memorial oration on
“Combating Terrorism under the Rule of Law"
Justice J.S.Verma, Chairperson,
NHRC (4 December 2001)
Terrorism:
Terrorism is the phenomenon which produces
terrorists and therefore, combating terrorism has a wider
connotation which includes identification and eradication
of the causes which give rise to, and promote the phenomenon
of terrorism. That is the lasting remedy or cure of terrorism.
Terrorism has no precise definition. Terrorism results in
gross violation of human rights and must, no doubt, be dealt
with a heavy hand. However, the methods to counter terrorism
must not violate the human rights of innocents or else the
innocents would be exposed to double jeopardy and suffer twin
violation of their human rights. Experience worldwide has
shown that state terrorism to combat terrorism is counter
productive.
Prof. Noam Chomsky of MIT in one of his recent
public lectures speaking on ‘The New War Against Terror’
describing terrorism referred to the Reagan administration
which called it, plague spread by “depraved opponents
of civilization,” and said that, “terrorism is not
the weapon of the weak, it is the weapon of those who are
against ‘us’, whoever ‘us’ happens to
be.” He described it as ‘primarily a weapon of the
strong, overwhelming, in fact.’
So understood, it has wide ramification and
amounts to ‘intolerance’ of any opposition of the
strong. The source of strength may be any kind of power, even
the power of the state. In that sense any weapon to combat
terrorism which is not tempered with ‘tolerance’
and ‘justice’ may, itself, amount to an act of terrorism
and be not within the ambit of ‘rule of law’. Terrorism
is a dastardly crime. In the case of crime, the rule of law
requires finding the perpetrators and bringing them to justice
under the law. In doing so, innocent people are not exposed
to any danger or violation of human rights. If a criminal
hides somewhere, the law does not contemplate assault on people
all around to isolate and apprehend the criminal. The requirement
of the rule of law in combating terrorism is similar.
Rule of Law:
Rule of law is a basic feature of the Constitution
of India and a part of its basic structure which is indestructible.
The Supreme Court in Indira Gandhi Vs. Raj Narain 1 observed
that “the major problem of human society is to combine
that degree of liberty without which law is tyranny with that
degree of law without which liberty become license.”
The perennial dilemma is to discover a measure of right balance
appropriate to ever shifting tangle of human affairs. The
device adopted by peoples devoted to liberal democracy to
overcome the dilemma is the ‘Rule of Law’. Article
21 in the Constitution of India has been judicially interpreted
to mean right to life with dignity and not mere animal existence.
Human dignity is the quintessence of human rights. Thus, Article
21 alone is comprehensive enough to encompass all human rights.
Article 21 has also been construed to be applicable even to
non-citizens along with Article 14 which guarantees right
to equality, inclusive of the rule of non-arbitrariness.
The core values of our constitutional philosophy
indicated in the Preamble to the Constitution are: dignity
of the individual and unity and integrity of the nation. The
two, obviously can co-exist, and are not incompatible. Otherwise,
framers of the Constitution would not club them together in
the Preamble as the core values. The message is clear. Every
attempt must be made to balance the two in all state actions
including legislation, its interpretation and implementation.
That is the demand of the rule of law in a
true democracy. Combating terrorism under the rule of law
must, therefore, mean compliance of the constitutional mandate.
It is significant that Article 21 is non-derogable. After
the emergency, an amendment of Article 359 of the Constitution
provides that Article 20 (protection against testimonial compulsion)
and Article 21 (right to life) cannot be suspended even during
an emergency. War against terrorism cannot be more stringent.
Methods for combating terrorism must conform to these constitutional
requirements.
I may also make a passing reference to the
provisions contained in the ICCPR and the Convention Against
Torture which can be safely read into the constitutional guarantees
in India by virtue of the decision in Vishaka 2 which requires
reading into the domestic law all provisions in international
instruments not inconsistent with the domestic law which have
the effect of enlarging the fundamental rights guaranteed
under the Constitution. It is this wide canvass of rule of
law which must determine the kind of laws and nature of other
strategies to combat terrorism in India. Enforcement and implementation
of the same must be similarly regulated.
No conflict between human rights
and combating terrorism:
Terrorism regardless of motivation has to
be condemned and countered but this has to be done taking
“all necessary measures in accordance with the relevant
provisions of international law and international standards
of human rights to prevent, combat and eliminate terrorism,
whenever and by whomever committed”.This has to be achieved
within the framework of rule of law. The Vienna Declaration
and programme of action adopted on 25 June, 1993 categorically
asserted:
“The acts, methods and practices of terrorism
in all its forms and manifestations, as well as linkage in
some countries to drug trafficking, are activities aimed at
the destruction of human rights, fundamental freedoms and
democracy, threatening territorial integrity, security of
States and legitimately constituted governments. The international
community should take the necessary steps to enhance cooperation
to prevent and combat terrorism.”
The responsibility for the security of our
land, and the fight against terrorism, are patriotic duties
and the integrity of the state must be preserved and the terrorism
– the sworn enemy of civil society – which respects
neither life, nor law nor any human rights, must be suppressed.
Yet we must fight this just war using means that are righteous,
that are in conformity with our Constitution, our law, and
our treaty obligations. This is no easy task. But then it
is never easy to live by ideals and it is the ideals that
distinguish civilized people from barbarians.
It must be remembered that there is a clear
and emphatic relationship between national security and the
security and integrity of the individuals who comprise the
state. Between them, there is a symbiosis and no antagonism.
The nation has no meaning without its people. John Stuart
Mill emphasized that the worth of a nation is the worth of
the individuals constituting the nation. This is the emphasis
laid in the Constitution of India which holds out the promise
to secure both simultaneously.
Often doubt is raised about the possible conflict
between respect for human rights and combating terrorism.
There is really no such conflict. International humanitarian
law is a part of human rights law applicable even in armed
conflict. There is a growing convergence between the two since
the object of both is the same and that is to respect human
dignity and abjure needless violence. The fundamental concepts
of laws of war are based on the balance between military necessity
and humanity which includes proportionality of the force used.
Military necessity does not admit of cruelty or wounding except
in fight nor of torture to extract confessions. Geneva Conventions
are for humane treatment even of the POWs. How a party to
a conflict is to behave in relation to people at its mercy
is governed by humanitarian laws. If humane considerations
prevail even in armed conflict with an enemy, the treatment
of persons dealt with in low intensity conflict cannot be
harsher because they are often not even enemies of the nation.
The whole regimen of Hague laws and Geneva laws covers the
field and there is growing convergence between them.
No person who supports human rights can support
terrorism which is a grave violation of human rights. There
is no conflict between respect for human rights and combating
terrorism. Ms. Mary Robinson, the UN High Commissioner for
Human Rights, recently in India to receive the Indira Gandhi
Prize for Peace, Disarmament and Development, emphasized this
fact when she stressed that ‘government action must be
guided by human rights principles, which strike a balance
between the enjoyment of freedoms and the legitimate concerns
for national security.’ She added, ‘I am concerned
that some governments are now introducing measures that may
erode core human rights safeguards.’
It is essential to bear this in mind.
Current Scenario:
The recent dastardly terrorist attacks in
America on September 11, 2001 have generated world wide panic
and triggered the call for stricter laws to combat terrorism.
Our own country is no exception even though in effect the
situation here remains substantially the same as before September
11. Incidentally, some Judges of the US Supreme Court were
in India when America suffered the terrorist attacks on September
11. It is significant that the US Judges did not exhibit any
panic reaction and said that the terrorists must be tried
under the rule of law and no stricter laws are needed to deal
with them and to do justice. Ms. Mary Robinson also said recently,
‘In a world which has changed not for the better after
the September 11 attacks, there is need to reinforce the rule
of law and international human rights and for ensuring that
tolerance was not looked upon as luxury but a way of life.’In
these difficult times there is need to check expression of
anger. We must not be carried away by the knee jerk different
reaction of other countries.
The General Assembly of the United Nations
considered the item entitled “Measures to Eliminate International
Terrorism” in its resolution 22/158 of December 12, 2000
and while strongly condemning ‘all actions, methods and
tactics of terrorism as criminal and unjust, wherever and
by whomever committed’, reiterated its view that such
actions ‘are in any circumstance unjustifiable”
and further reiterated its call to all states ‘to adopt
every measure in accordance with the charter of the UN and
the relevant provisions of the international laws, including
international standards of human rights’. A similar view
has been expressed in successive resolutions of General Assembly
and the UN Commission of Human Rights on the item entitled
“Human Rights and Terrorism”.
On September 28, 2001, the United Nations
adopted Security Council’s resolution 1373 (2001), the
sternest ever on the subject of terrorism. A series of steps
are prescribed in that resolution for states to take in order
to prevent terrorist attacks; and states are called upon,
inter-alia, to exchange information in accordance with international
and domestic law; and to take appropriate measures in conformity
with the relevant provisions of national and international
law, including standards of human rights.
The Attorney General for India, Mr. Soli J.
Sorabjee, writing in the Sunday Times ofIndia (November 11,
2001) quotes Ms. Mary Robinson, the United Nations Commissioner
for Human Rights from the Annual Report, where dealing with
some fundamental issues relating to terrorism, she said:
“There should be three guiding principles
for the world community: the need to eliminate discrimination
and build a just and tolerant world; the cooperation by all
States against terrorism, without using such cooperation as
a pretext to infringe on human rights; and a strengthened
commitment to the rule of law”. (Emphasis supplied)
He further quotes Ms. Robinson who has observed
that:
“… true respect for human life must
go hand in hand with securing justice,” and that “
the best tribute we can pay to the victims of terrorism and
their grieving families and friends, is to ensure that justice,
and not revenge, is served”. (Emphasis supplied)
Mr. Soli Sorabjee then adds:
“In the current cacophony it is heartening
to hear the voice of reason and sanity”.
Let us hope, the observation of the Attorney
General will receive the attention it deserves in the process
of devising strategies, including legislation to combat terrorism.
Speaking on terrorism, Ms. Mary Robinson cautioned
against the violation of human rights in the global ‘fixation’
with the war against terrorism and said:
“What must never be forgotten is that
human rights are no hindrance to the promotion of peace and
security. Rather they are an essential element of any strategy
to defeat terrorism.” (Emphasis supplied)
It is, therefore, disturbing to hear the comments
of some responsible persons that expression of concern for
the protection of human rights, particularly of the innocents,
in combating terrorism can be construed as tacit support to
terrorism. The intolerance to any voice of dissent is a greater
danger to the democratic ethos in which the right to freedom
of speech is sacrosanct. Let us hope, in the current scene
‘the voice of reason and sanity’ would not be muffled.
Existing Laws:
A bird’s eye view is worthwhile of the
existing laws.
Indian Penal Code
Chapter IV - General Exceptions (Acts which
are not offences) Section 76 -Act done by a person bound,
or by mistake of fact believing himself bound, by law
Section 79 -Act done by a person justified,
by mistake of fact believing himself justified, by law
Section 96-106 - Right of private defence
extending to causing death in certain situations
Chapter VA - Criminal conspiracy Sections
120 A,120 B
Chapter VI - Offences against the State
Section 121 - 130
Section 124 A - Sedition
Chapter VIII - Offences against the public
tranquility Section 153 A Promoting enmity between groups
etc.
Section 153 B Imputation, assertions prejudicial
to national integration
Chapter XVI - Offences affecting human body
Cr.P.C - Section 46 - Power of arrest includes
use of necessary force
- Arms Act, 1959,
- Explosives and Explosive Substances Act,
- Armed Forces (Special Powers)Act, 1958
- Unlawful Activities (Prevention) Act, 1967
- The Preventive Detention Laws e.g. NSA,
COFEPOSA etc.
The above are existing laws covering the several
aspects pertaining to terrorism. In addition, the laws could
be amended to the extent found necessary to cover the deficient
area, instead of duplicating legislation which gives arbitrary
option to resort to the stricter law.
Is there need of a stricter
new Law ?
The debate on the need of a stricter law to
combat terrorism generated in the wake of the proposal to
enact the Prevention of Terrorism Bill, 2000 into law based
on the 173rd Report of the Law Commission of India impelled
the National Human Rights Commission to give its opinion on
the subject. NHRC had also opposed the continuance of earlier
Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA). Giving its opinion on the Prevention of Terrorism
Bill, 2000, the NHRC referred to the existing laws on the
subject and emphasized that the real deficiency was in their
implementation and not the content. The conclusion was:
“…….For the above reasons,
and consistent with the view that it took in respect of TADA,
the Commission is now unanimously of the considered view that
there is no need to enact a law based on the Draft Prevention
of Terrorism Bill, 2000 and the needed solution can be found
under the existing laws, if properly enforced and implemented,
and amended, if necessary. The proposed Bill, if enacted,
would have the ill-effect of providing unintentionally a strong
weapon capable of gross misuse and violation of human rights
which must be avoided particularly in view of the experience
of the misuse in the recent past of TADA and earlier of MISA
of the emergency days.
This Commission regrets its inability to agree
with the opinion of the Law Commission in its 173rd Report
and recommends that a new law based on the Draft Prevention
of Terrorism Bill, 2000 be not enacted. Such a course is consistent
with our country’s determination to combat and triumph
over terrorism in a manner also consistent with the promotion
and protection of human rights.”
The proposal for the enactment of the new
law was later shelved. After the incident of September 11,
2001 and the global ‘fixation’ with the war against
terrorism, the issue has resurfaced and The Prevention Of
Terrorism Ordinance, 2001 (for short POTO) promulgated with
effect from October 24, 2001. A debate is on in the country
pertaining to the need for enactment of such a law and that
too by an ordinance. Certain provisions thereof are seen to
posses dangerous potential of misuse by the enforcement agencies
posing grave threat to the human rights of innocents. It should
suffice to say that the NHRC, which I have the privilege to
Chair even now, takes the same view of this Ordinance as it
did of the earlier Bill for substantially the same reasons
as given in its earlier opinion of July 14, 2000. This has
been reiterated in NHRC’s opinion of November 19, 2001
which says:
“……Undoubtedly, national security
is of paramount importance. Without protecting the safety
and security of the nation, individual rights cannot be protected.
However, the worth of a nation is the worth of the individuals
constituting it. Article 21 which guarantees a life with dignity
is non-derogable. Both national integrity as well as individual
dignity are core values in the Constitution, and are compatible
and not inconsistent. The need is to balance the two. Any
law for combating terrorism should be consistent with the
Constitution, the relevant international instruments and treaties,
and respect the principles of necessity and proportionality.
The National Human Rights Commission, therefore,
reiterates its earlier view in respect of the Ordinance also.”
Let me dispel the doubt in the minds of a
few who appear to contest the propriety of NHRC expressing
its opinion on this subject. It does appear that such a doubt
stems from a lack of proper appreciation of NHRC’s role
and its functions under the Statute. This was clarified in
NHRC’s opinion of July 14, 2000 and is reproduced for
ready reference:
“Functions of the Commission specified
in Section 12 of the Protection of Human Rights Act, 1993,
particularly those in clauses (d), (f) and (j) are relevant
in this context. These functions include : to review the safeguards
provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend
measures for their effective implementation; study treaties
and other international instruments on human rights and make
recommendations for their effective implementation; and such
other functions as it may consider necessary for the promotion
of human rights. It is, therefore, an essential function of
the Commission to formulate its opinion on the desirability
and need of enacting such a stringent law and to give public
expression to it for consideration by the Parliament and all
those involved in the making of the laws so that due weight
is given to the Commission’s opinion in the performance
of this exercise.”
It is not necessary to deal at length with
specific provisions in the POTO. It is sufficient to refer
only to some salient features. The reversal of burden of proof
for bail for a period of one year and before filing of charge-sheet
is contrary to a basic principle of criminal jurisprudence,
apart from the unfair requirement from the accused to perform
the impossible task of proving at that stage that he is not
guilty. Admissibility in evidence of statement recorded by
a police officer for graver offence under POTO, when the Evidence
Act continues to make it inadmissible for any offence under
the general law is incongruous. The provision for general
immunity for any action taken in the course of any operation
directed towards combating terrorism, in addition to that
under the existing law for bonafide acts of public servants
with the need of prior sanction to prosecute have the propensity
to further degenerate the existing tendency of custodial torture.
And then, the definition of the offence is also vague and
nebulous enlarging the scope for misuse of power, given the
earlier experience under the MISA and TADA. There is no attempt
made at systemic reforms inspite of long pending recommendations
made in the National Police Commission Reports and Supreme
Court decisions.
Experience in the working of such laws has
shown that there is need to make systemic reforms in the functioning
of the enforcement agencies, the police force being the main
enforcement agency, its constitution, autonomy and accountability.
The reports of the National Police Commission making copious
recommendations to this effect including the need for autonomy
of the police force to insulate it from political and other
extraneous influences and its accountability continue to gather
dust notwithstanding the lament of the then Union Home Minister,
Shri Inderjeet Gupta, in his letter dated April 3, 1997 to
all Chief Ministers drawing attention to the urgent need to
act in this behalf. The Supreme Court judgment in Hawala Case
3 also dealt with this aspect at length and made recommendations,
many of which have yet to receive serious attention. The experience
of the working of stringent laws like Maintenance of Internal
Security Act (MISA) during the Emergency and TADA in the recent
past with no improvement in the performance and police culture
is a lesson to be remembered while devising new strategies
to combat terrorism. If the so-called stricter TADA did not
serve the purpose, as is well known, how can the POTO professed
as a milder version do better in the same hands? It is difficult
to appreciate the professed hope. Inefficacy of TADA to combat
terrorism is self evident from the statistics. The substantial
area of deficiency lies elsewhere, that is, in implementation
of the laws. That must be remedied. Quarrel with the tools
without improving efficiency and integrity of performance
is meaningless.
Conclusion :
These facts indicate the need for identification
of, and emphasis on the real areas of deficiency in the implementation
of the existing laws together with the assurance of speedy
trials. The remedy does not appear to be in the enactment
of more stringent laws which transfer judicial power into
executive hands and result in the denial of a fair trial to
the accused with the added potential danger of harassment
of innocents and the violation of their human rights without
effective remedies. The need is of systemic reforms to improve
the image and performance of the enforcement agencies with
effective accountability to prevent misuse of public power.
Conferment of larger powers, if needed even then, must follow
only thereafter.
After performing such meaningful exercise,
if any deficiency is found in the existing laws, then, and
then alone there would be need to supplement the existing
laws to the extent of the felt need, instead of adding to
the burden of plethora of existing laws which make the judicial
process more cumbersome and protracted. Even though unwisdom
of legislation and its potential for misuse are no grounds
of constitutional invalidity, yet they are strong factors
which must influence the legislature in considering the necessity
of enacting new and stricter legislation.
The need is also to identify the causes for
the rise in the phenomenon of terrorism other than that which
has trans-border genesis and support. Good governance ensuring
realization of the constitutional promise of promoting socio-economic
justice, eradicating causes which give rise to a genuine sense
of injustice must be seriously addressed as effective strategies
to combat terrorism. A genuine sense of injustice harboured
by the marginalized must be effectively addressed. Rampant
corruption is a major cause of the pervading sense of injustice
in the civil society. It also provides a nexus as well as
the means for promoting crimes and terrorism. It is pertinent
to recall the well-known Hawala case which came to light as
a result of two terrorists being apprehended, which indicated
the link of common funding of terrorists, politicians, public
servants, businessmen and other anti-social elements. It is
sad that this nexus was not investigated by the investigating
agency inspite of Supreme Court’s persistence requiring
investigation of the crime in all its facets which appeared
to suggest international criminal links posing serious threat
to national security.
To combat terrorism in the true sense, the
strategies adopted must not be confined merely to identification
of terrorists and their elimination by revenge, not justice,
but must extend to diagnosis of the malady and finding a permanent
cure. Combating terrorism under the rule of law must necessarily
have this meaning. A limited approach may help eliminate some
present terrorists but not the causes or the phenomenon of
terrorism which produces terrorists; and that too at the cost
of violation of human rights of many innocents. A proper balance
between the need and the remedy requires respect for the principles
of necessity and proportionality. Performance of this balancing
trick is the mission of the rule of law to which our nation
is committed. Let us not be carried away by possible short-term
gains at the cost of long-term interests. The war against
terrorism must be won under the rule of law.
“It is a delusion to think that the nation’s
security is advanced by the sacrifice of the individual’s
basic liberty. The fears and doubts of the moment may loom
large, but we lose more than we gain if we counter with a
resort to alien procedures or with a denial of essential constitutional
guarantees.” [Judge Stanley H. Fuld of theNew York Court
of Appeals]
Thank you.
IN RE: PREVENTION OF TERRORISM ORDINANCE,
2001
CORAM:
Justice J.S.Verma, Chairperson
Dr. Justice K.Ramaswamy, Member
Justice Mrs. Sujata V. Manohar, Member
Shri Virendra Dayal, Member
The National Human Rights Commission in its
opinion dated 14 July, 2000 dwelt at length on the various
provisions of the Prevention of Terrorism Bill, 2000 as proposed
by the Law Commission of India in its 173rd Report. This opinion
is on the web site of NHRC (nhrc.nic.in) and was also forwarded
to the Government of India, Ministry of Home Affairs. The
Commission had also earlier opposed the continuance of TADA.
A letter dated 20 February 1995 to this effect was sent by
the then Chairperson to all Members of Parliament. This letter
is also included in the Annual Report of the Commission for
the year 1994-95 in Annexure I. The present opinion in respect
of the Prevention of Terrorism Ordinance, 2001 is in continuation
of the Commission’s earlier opinions, and the Commission’s
views on such a measure remain unchanged.
Undoubtedly, national security is of paramount
importance. Without protecting the safety and security of
the nation, individual rights cannot be protected. However,
the worth of a nation is the worth of the individuals constituting
it. Article 21, which guarantees a life with dignity, is non-derogable.
Both national integrity as well as individual dignity are
core values in the Constitution, the relevant international
instruments and treaties, and respect the principles of necessity
and proportionality.
The National Human Rights Commission, therefore,
reiterates its earlier view in respect of the Ordinance also.
Dated: 19 November 2001
(Justice Shri J.S.Verma)
Chairperson
(Dr. Justice K.Ramaswamy)
Member
(Justice Mrs. Sujata V. Manohar)
Member
(Shri Virednra Dayal)
Member
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