No Draconian Law, Please

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

But instead one finds BJP exultingly but disgustingly trying to score a point on the withdrawal of POTA by the Congress (conveniently ignoring that the worst terrorist attack on Parliament was during the currency of POTA). In the same vein, the Congress, which had gone to town on the undesirability of POTA, had, while dubiously though formally repealing POTA in 2004, half-cleverly included the worst provisions of POTA in the Unlawful Activities (Prevention) Act of 1967. It is now 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 the TADA case “unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution†. A similar provision existed in POTA.

So now we have a clear danger of alignment of the BJP and Congress to initiate a 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 (“let him be hanged if he is found guilty†though she has full faith in his innocence).

I have no doubt that this illegitimate product of TADA and POTA will be a grievous attack on human rights. The 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tougher laws, should be reminded of what it said in 1993: “TADA should be reviewed drastically, if not completely withdrawn.†This assessment was confirmed by the Supreme Court in the comment on TADA thus: “It is heart-rending to note that day in and day out we come across news of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…â€

The practical utility of TADA was shown to be nil because during 1985-93, the 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 one hour and ten minutes (1993) to a maximum of eight hours in 1985. The participation of the MPs varied from eight MPs to a maximum of 34 in 1985. it would seem that gradually the sensitivity of MPs at the deprivation of basic rights of citizens is becoming dulled.

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THE 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 the contemplated new anti-terrorist legislation in the context of the dastardly bomb blasts in Delhi would normally appear foolhardy and invite the risk of being charged as acting against national interest. But I demur and in that connection echo the 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.â€

Similarly the Washington Post wrote: “The country cannot allow terrorists to alter the fundamental openness of US society or the government’s respect for civil liberties.â€

The 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.â€

Of course, saner voices were ignored when the US Government passed the anti-human right legislations. But similar condemnation found echo there. Thus Laura W. Murphy, Director of the ACLU’s Washington nation office, said that “this law is based on the faulty assumption that safety must come at the expense of civil liberties. The USA Patriot Act vests law enforcement agencies nationwide extraordinary new powers unchecked by meaningful judicial review.â€

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

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.â€

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. Human rights are essential prerequisites of a civilised and a democratic country. It is only such civilised 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 is rightly said, in times like these “it is a duty to speak and sin to be silent†.

The author, a retired Chief Justice of the Delhi High Court, is the Chairperson of the Prime Minister’s high level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL) he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net / rsachar23@bol.ent.in