ENGLISH SHORTHAND DICTATION-266

 

There are strong links between any democracy’s interests in maintaining security and delivering justice. The relationship between the ideas of security and justice can be viewed in two different ways. The first of these approaches is derived from the fundamentals of political philosophy wherein the State is responsible for protecting the life, liberty, and property of its citizens. This is of course a precondition for dispensing justice in the wider sense of social, economic and political equality as well as the narrower sense of an efficient, reliable and fair judicial system. In pursuit of this obligation, the State is¹⁰⁰ expected to hold a monopoly over violence through mechanisms such as the armed forces and the criminal justice system. The¹²⁰ implicit coercion in the exercise of State power becomes essential for sustaining the collective life of a society. However, our¹⁴⁰ judicial system must also guard against excesses committed in the exercise of State power. It is in this context that¹⁶⁰ we need to examine the second category of linkages between the ideas of security and justice. Sometimes the measures that are designed to defend liberty can themselves become a threat to liberty.

In recent years, the claims of security and²⁰⁰ justice have posed complex questions for our legal system. As much as the public discourse in the United States has been shaped by the events of September 11, 2001 and their aftermath, Independent India has faced comparable threats²⁴⁰ on account of terrorist attacks, insurgencies and communal violence. There has been a fair amount of discussion on what should be the appropriate legal responses to the problem of terrorism. Our frame of reference has largely been confined to the²⁸⁰ content of anti-terrorism legislations such as the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act, both³⁰⁰ of which now stand repealed, but some of their contested provisions find a place in the Unlawful Activities (Prevention) Act³²⁰ which is currently in force. Some of the concerns that have been raised by the media and civil society organizations touch on aspects such as the imprecise definitions of terrorist activities, provisions for long periods of preventive detention, dilution of³⁶⁰ the guarantee of fair trial, and the arbitrary targeting of individuals belonging to socially marginalized groups.

While the constructive suggestions for reforms in the police and criminal justice system are well taken, I must highlight that the above-mentioned legislations are⁴⁰⁰ only an extension of the domestic criminal justice system and they have not been effective in tackling well-organized terrorist groups,⁴²⁰ many of whom have cross-border networks. In the age of increasing globalization, better facilities for communications and the flow of capital across borders has also made it easier for terrorist activities to assume cross-border dimensions. As in the case of the 26 November attacks in Mumbai, such networks often involve individuals located in different countries who collaborate by transferring funds⁴⁸⁰ and procuring weapons and explosives. With the easy availability of information over the internet, sometimes individuals learn how to build⁵⁰⁰ explosives on their own. This clearly means that terrorism is an international problem and requires effective multilateral engagement between various nations. However, there are several practical hurdles and delays on account of the wide disparity in the procedures for assistance in investigation and extradition. In some cases, a particular government may be reluctant to act against persons who are suspected⁵⁶⁰ of involvement in terrorist attacks in another country. Such a situation may arise when the terrorist group enjoys considerable local support.

In this scenario, there has been a suggestion that terrorist attacks should be treated as a special category of⁶⁰⁰ armed conflict, wherein obligations can be placed on all nations to collaborate in the investigation and prosecution of terrorist attacks that have taken place in any particular country. This calls for a blurring of the distinction between the international and⁶⁴⁰ domestic nature of armed conflict when it comes to terrorist attacks. Another suggestion is that of treating terrorist attacks as offences recognized under International Criminal Law, such as ‘crimes against humanity’ which can be tried before the International Criminal Court. However, the obvious practical problem with this suggestion is that prosecutions before this Court need to be initiated by the⁷⁰⁰ United Nations Security Council and the latter may be reluctant to do so in instances of one-off terrorist attacks as⁷²⁰ opposed to continuing conflicts. Terrorist acts themselves are broadly identified with the use of violent methods in place of the ordinary tools of political participation. India is facing multiple terrorist threats that owe their origin to a variety of factors such as religious fundamentalism, separatist movements and even endemic poverty in areas where developmental schemes have either not reached or failed. While it may be easy to identify the causes behind terrorist attacks, the more onerous task is that of⁸⁰⁰ preventing and deterring them. In this regard, the various anti-terrorism legislations and the criminal laws are only one part of the legal response to terrorism. More efficiency in investigation and prosecution may help in preventing some attacks and punishing the⁸⁴⁰ perpetrators, but this does not strike at the root of the problem. For instance, when a particular terrorist group has widespread support amongst a particular community that is discontented with the State, even successful prosecutions may not deter others in the community from committing similar acts. In fact, there is a real risk that those who are convicted and punished⁹⁰⁰ will be seen as ‘martyrs’ for their respective cause, which may provoke more people from a discontented community to use violent means to air their political grievances. Even though stronger anti-terrorism laws can strengthen the hand of law enforcement agencies in the short-run, the more meaningful response to terrorism should be based on strategies involving dialogue with the discontented groups.⁹⁶⁰ This position is open to the criticism of being a lofty ideal since our army and police personnel who are⁹⁸⁰ engaged in counterterrorism and anti-insurgency operations routinely face grave and immediate dangers which are far removed from the relatively secure¹⁰⁰⁰ spaces where decisions are made about our politics and economics. In relation to this issue, a repeated argument is that since our security personnel are always exposed to violent attacks, they should be empowered to use harsh measures in order to prevent such violence. In such circumstances, conferring a very broad legal protection on security personnel has also been problematic. For instance, the implementation of the Armed Forces Special Powers Act in some of the North-Eastern States has attracted considerable¹⁰⁸⁰ criticism since it is said to have encouraged a climate of impunity. While I am not equipped to comment on¹¹⁰⁰ the ground realities, this should awaken us to the fact that the State’s response to terrorism should not come to¹¹²⁰ resemble the terrorist acts themselves.

I must also emphasize that the symbolic impact of terrorist attacks on the minds of ordinary citizens has also been amplified by pervasive media coverage. In India, the proliferation of television news channels and the digital medium has ensured that quite often some disturbing images and statements reach a wide audience within a short span of time. One of the ill-effects of this coverage is that it can provoke a disproportionate level of anger amongst¹²⁰⁰ the masses. While it is fair for the media to criticize the inadequacies in the security and law-enforcement apparatus, there is also a possibility that the resentment fuelled by media coverage can turn into an irrational desire for retribution. For instance, if terrorist attacks are attributed to individuals belonging to a certain ethnic or religious community, then the same may¹²⁶⁰ result in unreasonable discrimination and retaliation against most ordinary members of that community. Such a trend was clearly visible in¹²⁸⁰ the United States in the aftermath of the 9 /11 attacks and is evidently a fact of life in India¹³⁰⁰ as well. Furthermore, the trauma resulting from the terrorist attacks may be used as a justification for undue curtailment of individual rights and civil liberties. Instead of offering a considered response to the growth of terrorism, even democratic nations may resort to questionable methods such as legislations which permit the prolonged detention of terror suspects, authorizing coercive interrogation techniques and the denial of the right to fair trial. The mass hysteria generated by terrorist attacks can also lead to more support for increasing governmental surveillance over citizens and unfair restrictions on immigration.

In recent memory, an example of this curtailment¹⁴⁰⁰ of individual rights is the treatment of the detainees in Guantanamo Bay. It is admitted that the United States military authorities have detained hundreds of suspects for long periods, often without the filing of charges or access to independent judicial¹⁴⁴⁰ remedies. The legal device used for the same was that of classifying these detainees as ‘unlawful enemy combatants’, thereby denying them the protection guaranteed by the Geneva Convention to ‘prisoners-of-war’. This means that even the ordinary right of habeas corpus was denied to these detainees, primarily on the ground that they were not citizens. For some time, these practices were¹⁵⁰⁰ defended by asserting that these detainees had access to safeguards such as appeals before different military tribunals and commissions. It must be noted that these military tribunals and commissions were themselves created after the United States Supreme Court ruled that the detainees had a right to contest their description as ‘unlawful enemy combatants’. A subsequent ruling established that the terror suspects could not be denied the right of habeas corpus and should be granted access to civilian courts. The rationale for this was that the various military tribunals did not possess the requisite degree of independence to try suspects who¹⁶⁰⁰ had been apprehended and detained by the military authorities themselves.