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Our Politicians Are Still Not Listening

By Colin Gonsalves

20 December, 2008
Mail Today

One would have thought that after the Bombay attack and the public outpouring of resentment against politicians, that the establishment would get its act in order. One would expect that careful thought would go into the making of proposals to combat terrorism and to keep the people secure. Instead what do we find? The same old clichés and the usual attack on human rights activists.

What the people of India expected, was that the governments would give careful thought to making the police a professional fighting force oriented towards the security of the ordinary citizens of India rather than operating, as it does now, as the protectors of politicians. They also expected that the police would eliminate from its ranks the use of torture and the vice of corruption, two aspects of policing today that make the general public both distrustful and fearful of the police.

Listening carefully, however, to the statements of BJP and Congress politicians in the media, one can find no reference to the demands of the people. Politicians are obviously distracted by the national lections scheduled for early next year and even such a serious incident of terrorism as the Bombay attack figures even now in their consciousness as a vote catching exercise.

In a knee-jerk reaction, GOI proposes to enact The Unlawful
Activities (Prevention) Amendment Act, 2008. Under section 15, the prosecution is to be granted upto 180 days to file a chargesheet (it is a 90 day limit today after which the accused is granted bail mandatorily), the provisions for bail are stricter, and if arms or explosives are proved to be recovered from the accused, then the court is entitled to presume that the accused has committed a terrorist act.

Indian criminal law provisions rank among the strictest in the world. In the US and the UK even after the terrorist attacks in those countries, the maximum period of detention without a chargesheet is 2 days and 28 days respectively. The provisions in India for search and seizures are the most liberal in the world.

Supreme Court decisions to the effect that even if the searches and seizures are illegal they may still be relied upon in evidence
against the accused, has given the police a free hand to do all kinds of hanky panky while conducting raids. Amendments have been made in various statutes to permit interceptions of communications.

Supreme Court decisions after 2000 have watered down the criminal law protection of accused persons and have lowered the criminal law standard of proof beyond reasonable doubt to such an extent, that international jurists are appalled by the way in which the Indian courts are convicting accused persons. Why then, with such strict laws and with such a convicting judiciary, did the Bombay attack happen with such impunity? The answer is simple. The problem in India lies not in the law but in its implementation.

This is where the main demands of the people that the police become a professional force, that law and order be separated from the investigation of crimes, and that corruption and violence be eliminated, becomes important. The Central Government also proposes to pass The National Investigation Agency Bill, 2008 which will see the setting up of a national body to oversee the investigation and prosecution of terrorist offences. Here again the approach is cosmetic rather than substantial and the aim is to impress rather than protect. The Central Bureau of Investigation (CBI) is today a national body for the investigation of all serious crimes. The only difference between the CBI and the NIA is that the former is required to take the permission of the states prior to acting within the state, whereas the NIA can operate without consent. But if all the states are agreed, as indeed they are, that terrorism ought to be fought at the national level as well, then there ought to be no difficulty for the Central Government to consult the legislatures of the states in a transparent manner, to obtain consent for the CBI to operate throughout the country.

All that would be necessary thereafter is for the Central Government to administratively upgrade the CBI. THOUGH it must be said to the credit of the Union Government that they have not succumbed to the temptation to introduce the draconian POTA provision authorising confessions to a police officer (which rendered POTA trials farcical), the reference to Left Wing Extremism in the Statements of Objects and Reasons is disappointing.

Naxalism has deep social roots in injustice, poverty and state
violence, unlike the senseless terrorism of Pakistani agents. Like
the IRA in Ireland, it must be recognised as a political tendency and negotiated with politically. The reasons for the growth of naxalism must be understood as requiring a radical shift from the inequities of globalisation to a more socialistic programme where the common person is treated with dignity. In the present political situation however, one can only see hysteria and the lack of reason.

The writer is an eminent lawyer and civil rights activist.

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