Can the fence-sitting law deal with terror?

Under immense pressure to show that it is tough on terror after the Mumbai attacks, the UPA Government finally came up with a new investigative agency, a new anti-terror law by making amendments to the existing Unlawful Activities Prevention Act (UAPA).

Many describe it as POTA with a new name. Some of the features of the UAPA which make it similar to POTA:

• Terror suspects can be held without charges for 180 days
• Police custody can stretch to 30 days
• No bail if court is satisfied that allegation is prima facie true
• Blanket ban on bail for foreign accused
• POTA’s ‘adverse inference’ incorporated as ‘presumption’ against accused

Where the UAPA differs significantly from POTA is that confessions made before the police are inadmissible in the court as evidence.

Is the new anti-terror law good enough to deal with terror? That was the question raised on The Weekend Edition with Rajdeep Sardesai. The debate panel comprised Senior Congress leader and leading participant for the Congress in the anti-terror law debate, Kapil Sibal; lawyer and activist, Vrinda Grover; former attorney-general and one of the most respected lawyers of the country Soli Sorabjee.

People saying the amendment to the UAPA is POTA by another name that UPA Government has brought in an anti-terror law that is even more draconian than the POTA.

Kapil Sibal, however, vehemently rejected similarities to the provisions in POTA. “Each of the provisions mentioned by you at the beginning of the show are entirely different from the POTA,” he said.

“For example, in the 180 days provision, if you want extension from 90 to 180 days, you have to make an application to the judge. You have to explain to the judge as to why you need an extension. Under POTA, the moment you made an application, it was automatically granted. The judge had no discretion,” Sibal added.

Sibal further defended that under the original POTA, the bail could only be granted if the judge was convinced that the accused was innocent.

So are human rights activists, then, exaggerating that the Government has brought in a bill even more draconian than the POTA?

Vrinda Grover justified that activists are viewing the issue from the lengths of experience. “The discourse of national security,” she said, “is overwhelming.” She said that the activists worry that exactly the same repercussions as of POTA will flow from the UAPA amendment.

She added that under the ordinary Criminal Procedure Court there is no provision for 180 day detention and that there was no need to bring it any anyway. “If any evidence is found post the chargesheet being filed, you can always place before the court a supplementary chargesheet. This is only to allow detention of a large number of innocent people without being charged,” Vrinda said.

Quick to defend the provision, Kapil said, “When it comes to terrorist offences, there are ramifications and there are evidence all over the country in various states. And collecting the evidence takes time, including outside the country, Therefore we have given discretion to the judge. Unlike the POTA, where he had to grant additional 90 days, here the judge will have to be satisfied whether the prosecuting agency has investigated properly or not.”

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Sorabji, though, took a different view to that. “It is an extraordinary law, but we live in extraordinary times. The only difficulty I have is 180-day period of detention, which I think is wrong,” he said.

Rejecting Sibal’s interpretation, he added, “I do not accept that it was different under the POTA and here. Whatever it is, 180 days makes it a little vulnerable. I know we are going through very difficult times and terrorism has to be fought with special laws with power. But one of the things I want to point out is that provision for confession was there earlier too. The Supreme Court upheld it with safeguards. They said that it is only if the Sessions Judge is satisfied, that the confession is not out of coercion or third degree methods, then only would it be admissible in court,”

There is now concern that under the amended UAPA, Kasab’s confession before the Mumbai Police maybe be rendered invalid. Sibal though sought to clarify that there was no flip side to the amendment as there was enough evidence against Kasab. “You don’t need his confession because you’ve seen him on the camera and you’ve seen him kill people,” Sibal said.

But there are those who believe that because we live in extraordinary times, confession before a police officer is indeed required.

Strongly opposing that point of view, Sibal argued, “What has happened to all those 90 accused in the Godhra case under the POTA? What has happened for seven years? Soli said there were safeguards but they have not got bail for seven years and today the review committee has said they are not even POTA accused.”

Is there, therefore, a feeling that confession should not be admissible under any circumstances?

Sibal responded that laws do not impact the fight against terror; they only impact the terrorists. “Laws by themselves will not prevent terror. These are not preventive laws. These are punitive laws,” he stressed.

Underscoring the need for making police accountable, Vrinda said, “The law does not have deterrent value vis-à-vis these kinds of terrorists. It does not have a punitive value. Therefore, let’s increase the threshold of the kind of work our police does. Let’s increase the threshold of the kind of accountability we have from our system. We are against confessions because police is not accountable and because police acts with impunity and prejudice.”

Conceding that the real battle was indeed police reforms, Sibal said, “This is something that all the states have to get together along with the union Government and have a united view of this entire thing of police reform.”

Soli, who has raised the issue of police reforms through a PIL, too seconded Sibal’s point.

“The point is,” he said, “however tough the law, unless the police, who enforce the law, do not have proper arms, equipment and training, how can they match to the terrorists?”

Soli added that just because there is a danger of a law or provision being misused, it can’t be scrapped.

“Many provisions maybe abused. It happens. Given the safeguards, they are abused. But that doesn’t mean there is no need for the provisions. Of course the very thought of confession to a police officer, to my mind, is revolting but when you make that confession before a Sessions judge, who goes into the veracity and authenticity, and if he is satisfied that it is a voluntary confession then I think one objection goes there. Prior to this there has been misuse and there maybe. Any law can be misused,” he said.

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The Bharatiya Janata Party has been demanding bringing back confessions before police officers, with necessary safeguards.

Explaining the decision, Sibal said, “We have had experience of both TADA and POTA. We let TADA lapse because of the same reason. We opposed POTA and went into an election for that reason. The real heart of that matter is confessions to a police officer.”

Under section 43 F it says, there is an obligation to disclose any information which a superintendent of police thinks is relevant. Failure may cost up to three years of jail. Aren’t we giving too many powers to the state?

Reiterating her stand, Vrinda said there was no need for another amendment. “The UAPA and the Indian Penal Court (IPC) were sufficient. This has only been brought in to show - We have done something. The actual hard work on the ground, if we are going to fight terror, is to improve the police system not only by giving them better weapons but by recognising the bias and the prejudice within the police, thereby making them accountable.

LEGAL AID FOR KASAB

Should Kasab, the main accused in the 26/11 attack, get legal aid? The court case against Kasab, the lone terrorist, captured alive during the Mumbai attacks is in a limbo after lawyers are refusing to defend him in court.

Last week the Bombay Metropolitan Magistrate Court in Mumbai, the BAR association there and the legal aid panel passed a resolution that none of its members would represent Kasab in court.

A few independent lawyers who showed interest in taking on Kasab’s case have been intimidated by the Shiv Sena into withdrawing their applications.

The next question discussed on The Weekend Edition with Rajdeep Sardesai was: Should Kasab get a proper legal defence? Debate panel comprised senior Supreme Court lawyer Kamini Jaiswal and head of the Shiv Sena’s legal cell Rahul Narvekar.

Why does the Shiv Sena not want to allow Kasab to have a proper legal defence? Isn’t that the basic principle of jurisprudence?

Narvekar defended, “As it stands right now, there is absolutely no ambiguity about the fact that as per law, every person who is accused of an offence which prejudices his personal liberty deserves or is eligible for legal aid. This law needs to be considered again. We need to understand that because of these legal loopholes, terrorists are taking advantage and India is becoming a paradise for terrorism. That is something which needs to be rectified.”

So should a proven terrorist like Ajmal Kasab deserves no legal defence? For him traditional rules of jurisprudence should not apply?

“Time has come when we need to carve out exceptional cases in order to deliver justice. Try these people immediately and get them convicted. It’s open-and-shut case.

Strongly opposing that argument, Kamini said, “I am shocked to hear this because the law of the country, the constitution of the country provides that anybody who is tried, is innocent till proven guilty. If Shiv Sena had its way, even in a simple case, where a book was banned, the Shivaji book, they ransacked Mr Jethmalani’s office because he was defending the Oxford University Press publishers. That is their rule of law.”

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Reacting to senior lawyer Harish Salve statement that Kasab should be treated as a war criminal, Kamini said, “What Mr Salve said is another shocking statement because if you treat him as a prisoner of war, then the Geneva Convention will apply and then you can’t try him. Then you’ve got to hand him over as soon as the war is over.”

Narvekar replied, “First and foremost, I don’t think the war on terrorism is over at all. In so far as the Shiv Sena is concerned, it has made its point absolutely clear that there are no two ways about defending Kasab. The citizens of this country are of the same opinion. In so far as the legal stand is concerned, he and other terrorists are taking advantage of the situation.”

Kamini countered his argument saying, “I don’t think the Shiv Sena represents the people of India. The people of India say that you punish him and people of India have enough faith in the judicial system and feel that he would be brought to justice. So what if he’s given a defence lawyer?”

Arun Shourie, who’s a respected intellectual, said the other day that the problem is that the best lawyers will then end up defending someone like Kasab.

Kamini though replied that even the best of lawyer defending Kasab cannot disprove what is already on air. “The fact is,” she said, “today it is Kasab, tomorrow it can be anybody. People can be caught from somewhere else. If this is the case, then who will decide who’s a terrorist and who’s not? We’ve seen it on screen that he’s done this but tomorrow you can label anybody a terrorist. According to Shiv Sena that person is not entitled to legal defence.”

Narvekar suggested, “We need to carve out an exception. We cannot use this as a standard practice.”

Kamini countered, “I really don’t understand how you say that because he is Kasab you don’t try him.”

When asked if Kamini would be ready to defend Kasab, she said, “I would if he was in Delhi. I can’t go to Bombay.”

Concluding the debate, Kamini said, “All these resolutions that they are passing are actually contempt of court. No BAR association can obstruct the course of justice and pass a resolution that nobody will defend him.”