NO DRACONIAN LAW, PLEASE

Justice Rajindar Sachar
Chief Justice (Retd.) High Court Of Delhi

Delhi bombings resulting in horrible killings has understandably caused righteous indignation at the almost total failure of intelligence machinery. The Prime Minister has commendably scotched the idea of Federal Agency accepting frankly that in view of bombings having taken place under the so called watchful eye of Central agencies, the fight against terrorism requires the involvement of States as equal partners especially in the light of autonomy of States under our Federal Constitution.

But instead one finds BJP exhultingly but disgustingly trying to score a point of withdrawl of POTA by Congress, conveniently ignoring that the worst terrorist attack on Parliament, was during the currency of POTA. In the same strain, Congress which had gone to town on the undesirability of Pota, had already while dubiously though formally repealing POTA in 2004, half cleverly included the worst provisions of POTA in Unlawful Activities (Prevention) Act 1967. It now is even inclined to include those very provisions like making confession to the police admissible in evidence, a provision which was described by two Judges in TADA case “unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution”.

So now we have a clear danger of alignment of BJP and the Congress to initiate serious attack on the Human Rights of individuals by bringing a comprehensive legislation incorporating the stringent provisions of TADA and POTA, and which provisions can be described in the words of Edmund Burke who said: “Bad laws are the worst sort of tyranny.” What more proof of anger at these acts of terror can be more revealing than the heart rending cry of the mother of the alleged suspect Tauqeer (that let him be hanged if he was found guilty though she had full faith in his innocence).

I have no doubt that this illegitimate product of TADA and POTA will be grievous attack on Human Rights. BJP now supporting tougher laws should be reminded of what it said in 1993, “TADA should be reviewed drastically, if not completely withdrawn”. This assessment was confirmed by the Supreme Court in the commenting on TADA thus; “It is heartrending to note that day in and day out we come across news of blood-curdling incidents of police brutality and atrocities alleged to have been committed in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency…”

The practical utility of TADA was shown to be nil because during 1985-93, conviction rate of those arrested never exceeded 0.89 per cent. But the saddest part and absence of respect for Human Rights was reflected in the almost total somnolence of our legislators which shows that discussion in Parliament on TADA from 1985 to 1993 has varied between 1 hour and ten minutes (1993) to a maximum of 8 hours in 1985. The participation of MPs varied for 8 MPs to a maximum of 34 in 1985. i t would seem that gradually the sensitivity of MPs at the deprivation of basic rights of citizens is becoming dull.

National Human Rights Commission (NHRC), had given its firm opinion against POTA. It was the considered view of the Commission that all the actions which the Government wishes to take are substantially taken care of under the existing laws.

To seek to oppose contemplated new anti-terrorist legislation in the context of dastardly bomb blasts in Delhi would normally appear foolhardy and invite the risk of being charged at, acting against national interest. But I demur and in that connection remember the echo warning given by the US media within a couple of days of September 11, 2001 massive tragedy. The New York Times wrote “The temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies, or even military forces, a right to undermine the civil liberties that shape the character of the United States . President George Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans.”

Similarly Washington Post wrote “The country cannot allow terrorists to alter the fundamental openness of US society or the Government's respect for civil liberties.”

Philadelphia Inquirer wrote “We feel rage. We feel fear. We are bewildered. We can't avoid acting on those feelings. Yet we must calibrate our response against the ideals of liberty and tolerance that have made this nation work so well for so long.”

Of course, saner voices were ignored when the US Government passed anti-Human Right Legislations. But similar condemnation found echo there. Thus Laura W. Murphy, Director of the ACLU's Washington n ation office said: “This law is based on the faulty assumption that safety must come at the expense of civil liberties. U.S.A. Patriot Act vests law enforcement agencies  nationwide extraordinary new powers unchecked by meaningful judicial review.”

Mr. Muggeridge, former Editor of Punch (UK) once warned – “The choice for us is between security and freedom. And if we ever ceased to prefer the latter, we should soon find that we had nothing of any worth left to secure anyway.”

I am not underestimating the danger of terrorism, nor am I against using all the governmental resources against it. But the methods must be consistent with the letter and spirit of our Constitution, namely, the supremacy of Human Rights. This has been forcibly asserted by the Supreme Court even when it upheld (regretfully to many of us) the validity of POTA. But it commented very strongly thus: “The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding grounds for terrorism. In all cases, the fight against terrorism must be respectful to the human rights. Our Constitution laid down clear limitations on State actions within the context of the fight against terrorism.”

All political parties and governments must, therefore, remember that human rights are not a gift from the government nor a bounty, which any government in its discretion may choose to distribute or withdraw at its whim. Acceptances of human rights are essential pre-requisites of a civilized and a democratic country. It is only such civilized conduct that distinguishes democracy from totalitarianism.

That is why the proposed new legislation (even with the joint consent of both national parties) has to be resisted by all, because as rightly said, in times like these “It is a duty to speak and sin to be silent.”