Author: M K Dhar
Publication: The Pioneer
Date: July 26, 2000
The strong opposition
from the National Human Rights Commission (NHRC) and former Union Law Minister
Ram Jethmalani to the proposed Prevention of Terrorism Bill 2000 has enlivened
the debate on this controversial piece of legislation and made it difficult
for the Government to evolve a consensus on its speedy passage through
Parliament.
The argument that the
proposed law will curtail civil liberties and is liable to misuse in the
hands of the police has been articulated earlier as well. But even
the working of other relevant laws cited by the NHRC shows that no legislation
can insure against police high-handedness nor ensure conviction of the
accused if the authorities fail to secure convictions in courts.
Meanwhile, the chief
ministers have expressed themselves overwhelmingly in its favour.
The Vajpayee Government also thinks that the Bill strikes a balance between
the requirements of battling terrorism and protecting human rights of the
accused and of innocent civilians.
The arguments in favour
of and against the Bill are equally strong and the Vajpayee Government
needs to convince the people that sufficient safeguards against its misuse
shall be incorporated. Even the Law Commission, which re-drafted
the Criminal Law Amendment Bill, introduced in the Lok Sabha in 1995 and
named Prevention of Terrorism Bill, candidly admits that enactment of such
a law will not subdue terrorism, however, it would arm the states to fight
the menace more effectively.
It strongly feels that
the IPC is not designed to fight organised crime of the nature the country
is facing. Here is a situation where organised groups trained, inspired
and supported by anti-Indian elements are trying to destabilise the country.
Acts of terrorism generate terror and fear psychosis amongst the population.
Even judges and prosecutors in Jammu & Kashmir are gripped with fear,
contributing to lengthy delays in trials of terrorists.
In such a situation,
insisting on independent evidence or applying the normal peace-time standards
of criminal prosecution may be impractical. It, therefore, argues
forcefully in favour of a special law to deal with a special situation.
Internal structures and safeguards must be provided against possible abuse
or misuse of law, but it is not reasonable to argue that there should be
no special law because it is liable to be misused. Even the Supreme
Court has held that a mere possibility of abuse cannot be a ground for
denying the vesting of powers in the executive. Before the NHRC expressed
its collective opinion, its Chairperson Justice JS Verma had supported
the idea of a special law to fight terrorism but with necessary safeguards
and a human face.
Justice Verma stressed
the importance of maintaining a balance between individual rights and rights
of society and opined that in case of conflict, the interests of society
must prevail. He also stressed the importance of speedy trial.
If bail was not granted and trial also did not proceed with promptitude,
the law becomes oppressive. He suggested six months as the time limit
for a trial to conclude and authorities found misusing provisions of the
law to be sternly dealt with.
At the same time it is
also true that courts have not been able to prevent commonplace abuse of
power like the beating up of suspects or torture during custody except
where custodial deaths occur. Thus dealing with hard-core terrorists,
armed with lethal weapons, indulging in killings and destruction of public
property is an altogether different matter requiring a different approach.
Sometimes the belief
that the state may not succeed in convicting a terrorist and awarding him
due punishment, drives the security personnel to eliminate him on the spot
rather than handing him over to the Government. Imagine the scenario:
in Jammu and Kashmir alone terrorist violence has claimed almost 30,000
lives since 1988. Lives in incidents of and this does not include
5000 security personnel. In Assam ULFA, Bodo and Naga militancy has
shown an upward trend with 603 killings in 1998.
No doubt, methods to
deal with terrorism, needs improvement, including police intelligence and
preventive action. But the Indian Criminal Justice system is not
designed to deal with the types of crime now witnessed in the country.
The Bombay blasts cases have been botched up by the police by involving
too many persons, while failing to seek the extradition of the main culprits.
It is argued by the opponents
of the Bill that the safeguards provided in the Indian Constitution are
sought to be whittled down through a series of legislative enactments which
deprive the accused of some of his rights. The protection in respect
of conviction of offences and against arbitrary arrest and detention must
continue to be provided to the accused under the proposed Act.
There is indeed a case
for a wider debate on this subject among political parties and interest
groups on the safeguards which need to be provided to prevent harassment
of innocent persons and ensure a fair trial of the accused. Failure
to furnish evidence cannot be covered up by arbitrary use of provisions
of the law in a democracy.
