State terrorism is no answer to combat terrorism

Justice V. R. Krishna Iyer (January 2002)

TERRORISM, in its catastrophic reality, is a grim, gory, violent violation of life, limb and liberty and so must be fought outright with the might and main of society and state, mobilising the people and all national resources. But camouflaged as “terrorist act” by ersatz legal fiction if other motivated mareechas manage to sneak into the definition and suppress democratic dissent, it is a deception and a hoax and deserves to suffer suffocation at the legislative inception. The Prevention of Terrorism Ordinance (POTO), captiously invoking anti-terrorist sentiment, defines “terrorist act” vaguely and vagariously and, if enforced by rogues in uniform, may achieve the silence of the grave, not the vibrancy of the Republic. While I wholly share the concern of every patriot to damn and defeat terrorism “red in tooth and claw”, I apprehend the hand of foreign corporates and the power of the World Bank-International Monetary Fund, routed diplomatically by American sources, to burke articulation of critical thought if it hurts big business, as the root reason for this flabby, ferocious POTO process.

Global corporate power, hell-bent on world market capture, necessarily expects popular upheaval from the Third World when victimised, as now, by foreign predatory operations (with the abetment of the General Agreement on Tariffs and Trade (GATT), and the World Trade Organisation (WTO), a la the recent foreign car parts imports ruling against India). Democracy survives by dissent, and at times by protests with sound and fury, a wee bit slanting towards vocal duel. India is, as John Kenneth Galbraith put it, a functioning anarchy. Parliament demonstrates a yen to be a babel. Freedom of expression, the oxygen of fundamental rights, is freedom to differ, even demonstratively. Silencing critical voices by legislative gag is the device to mug or muzzle free speech and keep enforced peace. Who wants such commanded tranquillity except multinational corporations (MNCs), which demand undeterred right to occupy the commanding heights of our economy? Joseph E. Stiglitz, who was the Chief Economist of the World Bank (and who later became a Nobel Prize winner), has gone on record that the Bank-Fund-imposed “reform” would bring about “social unrest”. They offer their own solution too: “Put down rioters with political resolve.” Third World farmers commit suicide by the legion because of GATT-WTO policies? The answer must be: Put down the survivors with political resolve. “They don’t care,” Stiglitz says about the big corporations he has worked with, “if people live or die.”

In the final stages of the World Bank’s package comes what Stiglitz calls “the IMF riot”. After all, corporations have no soul to be damned nor body to be burnt but have an insatiable hunger for profits and unlimited markets to rob. So the Bank-Fund has a vested interest in peaceful pillage. They dub social unrest as quasi-terrorism. Do battle against terrorism by legal process, and ban mobilised masses, but by police baton, calling as terrorist, those who protest against the policy of globophilia, by liberalising the definition of “terrorist act”. Thus it is plain that the United States government and the Bank-Fund duo, facilitating the operations of the world’s major corporates, have a predominant interest in keeping India and other democracies statutorily obedient, POTO-mute and incapable to offer vocal hostility. If protest, justified or not, takes on a threatening turn, it should be suppressed by labelling it “terrorism”, the vogue word to trample down opposition. In short, to end internal dissent or disturbance against MNCs is itself an end, and the means towards that end may be legislatively legitimated as Operation Anti-terrorism incarnating as POTO’s flabby, inflated provisions. Those who oppose GATT, the WTO and the cunning World Bank strategy may be branded terrorists. No more arguments. Maybe only one per cent court conviction, as in the case of the Terrorist and Disruptive Activities (Prevention) Act (TADA) proceedings, but until then custodial silence! Those who support the foreign exploitative infiltration, aided by cabals, compradors, quislings and limpets of big business, wear the anti-terrorist mask! “Private tyrannies” (Noam Chomsky’s phrase), draped as MNCs, have provoked negative popular action in escalating measure, with indigenous, especially small scale, industries and traditional agriculture and natural resources suffering a collapse syndrome (despite billions of dollars spent by corporates to market the “capitalist story”).

In the Uncle Sam lexicon, terrorism means all that hurts the interests of the Global Proprietariat, Corporate Establishment and supportive vested interests. The pressure from the U.S. and its dominant clientele desiderates the suppression, statutorily, of any kind of violent or non-violent “insurgency” against subjugation of the people’s economic interests and national green politics. The logic is to cover every opposition to foreign predation through appropriate legislation drawn up very widely in the name of Indian “security”, given the great Yankee appetite to win markets and the consequent concern over keeping Indian people’s swadeshi noises at bay. Has not POTO, thus viewed, a nexus between World Bank designs and MNC manoeuvres and the Indian administration’s unquenchable thirst for a law against people’s protest? POTO is suspect proxy legislation to leave human rights agitation hamstrung. What is the motive? The foreign caravan will pass but the swaraj dogs shall not bark! POTO will arrest, even shoot! Real diabolic terrorism needs to be burst but sham terrorism, with illegitimate lexical latitude, is a shame.

Can it be that, among other reasons, the hasty repetition of POTO, dubiously bypassing the Parliament session, is due to suggestions from across the Atlantic? Strike dumb the rising, escalating peasant-proletariat revolt but call it a danger to (dollar) national security. Else, why this fanatical hurry and nascent fury, over-expanding the Law Commission’s limited draft, overruling the objection of the National Human Rights Commission and all Opposition? Read Section 3 (1): “any act...or by any other means, whatsoever... in such a manner as to cause or likely to cause... any other persons...” The sky is the limit. The definitional universe of “terrorist act” is over-inclusive and ropes in plural meanings too arbitrary to stand the test of responsible restraint under Articles 14, 19 and 21 of the Constitution. The drafting trick is to begin with something terrible and then, by a sly device, tediously expand the provision by diluted words, at each remove a wider net to catch, until at last even fund collection for any purpose remotely linked to a recondite objective broadly mentioned in Section 3 (1), is POTO-culpable. Fancifully over-broad, beyond the rational parameters of “endangering the unity, integrity, security or sovereignty of the nation”. Too far-fetched and fails the Maneka Gandhi Test, of being limited to “just, fair and reasonable” parameters.

There is legal terrorism in disguise in the device of drafting the clause with an appealingly shocking beginning and cannily broadening it to catch even minimally noxious, tremendous trifles. At the end of the journey, the sweep of the Act puts everyone in peril. No one is free if the policeman suspects him or her not merely of attempt or abetment but also an alleged preparatory act.

There is another cute and cunning provision relating to “confession before a police officer”. Indian jurisprudence has so far been justly reluctant to receive confessions to the police. But now such “confessions”, even through electronic device, shall be admissible in the trial of a confessor. A goofy guarantee is added to put sceptics at ease. It is naive and gullible to provide - as has been done - that the police officer shall record the confession after warning appropriately or in an atmosphere free from threat. Is this realistic? For this we need the incarnation of a new uniformed race. What is more bizarre and incredible is the curious caution that the “confession” shall be re-recorded before a magistrate within 48 hours. Is it not preposterous to conceive that an accused who made a confession (under concealed police threat) will change in a fit of judicial assurance? He will merely repeat parrot-like before the Magistrate his “police confession”, especially because the prisoner/accused is under police surveillance all the time. This judicial smoke-screen never makes for a voluntary admission and, under POTO, a profusion of “statutory terrorist” convictions will shower, based on police confessions, duly encored before a magistrate. These convictions, if only dissected in detail, will reveal the maiming of the fundamentals of our criminal justice system. The Emergency is a bad dream, TADA is a legislative bully, now buried. POTO is of the same breed.

The wild pen of the POTO draftsman makes “preparation” (an elusive will-o’-the wisp or imaginary doubt) also a crime. Harum-scarum draft bill, if passed, harms the dignity and renown of the House. POTO, unless radically humanised, severely pruned and refined into a “just fair piece”, will make the House the laughing stock of freedom-lovers across democracies and the “unlaw” law as the vanishing point of criminal justice, beware! Police raj and POTO regime are neighbours and should not disgrace our corpus juris.

THE definitional dexterity and lexical laxity of “terrorist act” make the Ordinance itself a contribution to terrorist methodology. How devastating it is to make police power, acting on suspicion, so vast! Who is safe from this new despotism - including the present Ministers, once they cease “to strut and fret the hour” of their power and fall foul of their successor team!

We have had illegal terrorism before and after Independence. Now we have a new incarnation - terrorism by law, using Orwellian double-speak of “law to prevent (read promote) terrorism”. “Fair is foul and foul is fair.”

The illegitimacy of the Ordinance process falls for notice first. Where some measure is so urgently needed that it cannot await the meeting of Parliament, an exceptional provision to meet an emergency situation is the raison d’etre of Ordinance promulgation by the Executive. If this sine qua non is absent, the resort to this rare constitutional instrumentality is a fraud on power. In this case, no imperative of imminent action is present and the new brand of “terrorism” is indefensible even procedurally, independently of the substantive arbitrariness. Personal liberty is too precious to be derogable on dubious grounds on which the obviously draconian measure is founded. When reckless illiberalism is writ large on the face of the enactment, the scrutiny of its legality also has to be too stern and searching to be scared into cowardly surrender merely because of patriotic phrases such as unity, integrity, security or sovereignty of India or other dreadful diction such as terrorism, bomb, dynamite, and explosive, which may create terror in a panicky or pusillanimous judiciary. Fundamental freedoms inscribed in Part III desiderate a bold barricade by the court if constitutional guarantees are not to collapse like a pack of cards, frightened by intimidatory statutory vocabulary. And when the law is so overdrawn in awesome breadth that even innocent acts may fall within the law’s culpable spell, the High Bench must call the bluff and not be bullied.

Those now in power know the earlier darker days. A liberal Prime Minister, a home-spun Home Minister, a persecuted Defence Minister, a luminous Law Minister, and the traumatic experience of Emergency, Maintenance of Internal Security Act (MISA), National Security Act (NSA), TADA plus plus - and but yet the pity of it! POTO raj. Parliamentarians, you have a paramount duty, beyond the inscrutable face of the Coalition sphinx, to “We, the People of India” the ultimate political sovereign. Finally, we forget at our peril Lord Atkin’s lasting warning: “Even amidst the clash of arms the laws shall not be silent.” (Laws mean here, I presume, not executive authoritarianism wrapped in parliamentary print but those finer fundamentals of civilised jurisprudence India is proud of.)

Justice A.S. Anand in D.K. Basu’s case, observed what is personal liberty vis-a-vis the state’s commanding terrorism:

32. The response of the U.S. Supreme Court to such an issue in Miranda v. Arizona, is instructive. The court said: “A recurrent argument made in these cases is that society’s need for interrogation outweighs the privilege. This argument is not unfamiliar to this court. [See e.g., Chambers v. Florida, U.S. at pages 240-41: L Ed at page 724: 60 S Ct 472 (1940)]. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged.”

33.There can be no gainsaying that freedom of an individual must yield to the security of the state. The right of preventive detention of individuals in the interest of security of the state in various situations prescribed under different statutes has been upheld by the courts. The right to interrogate detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the state is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the state, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be “right nor just nor fair” and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons, etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be a qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. The challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to “terrorism”. That would be bad for the state, the community and above all for the rule of law. The state must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. The need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge. (Supreme Court Cases (1997) SCC pages 434-35)

The worth of the human personality is the final audit of the rule of law.

V.R. Krishna Iyer is a former Judge of the Supreme Court.