Tuhin Sinha >From: Saurav Pathak <[EMAIL PROTECTED]> >To: AssamNet <[EMAIL PROTECTED]> >Subject: an article >Date: Wed, 18 Dec 2002 08:20:14 -0500 > >this article addresses coherently many of the issues we have touched >upon here at assamnet: corruption, crime, judicial activism (both >bar and the bench), police. significantly, the article ends with a >reference to kashmir and the north-east, topics which are so dear to >all of us. > >what the article suggests is that we are slowly moving towards a >criminal jurisprudence where pota becomes the regular criminal law. >in other words, we are moving towards a form of "democratic >dictatorship". a totalitarian state. > >--------- >http://www.rediff.com/news/2002/dec/18praful.htm > >Praful Bidwai >Fighting Terror, Upholding Law >It is a strange but remarkable coincidence that the question of >judicial accountability should have hit the headlines through >alleged scandals in the Punjab and Karnataka high courts in the very >same fortnight in which India's first trial in a special court under >the Prevention of Terrorism Act came to fruitition. > >This itself coincided with International Human Rights Day and the >first anniversary of the Parliament attack. So this is a good >occasion to take stock of a whole gamut of issues concerning >terrorism, the police, crime and punishment, human rights and the >Constitution. > >Three propositions are in order. First, India has witnessed a steady >increase in the incidence of crime, including heinous crime, over >the past two decades -- in spite of the promulgation of tough, >indeed draconian, laws, and the enforcement of special police >measures in state after state. Thus the National Crime Records >Bureau reports a 20 percent plus rise in all crimes over the past >decade. This is so despite growing spending on the police all over >India. The central police budget alone has increased fivefold over >the decade. > >Second, the police increasingly fail to prevent or punish crime; >they rarely pursue criminals and prosecute them professionally. The >killing of Veerappan hostage Nagappa, the filing of sloppy or faulty >chargesheets in the Ottavio Quattrocchi and Abu Salem cases, and the >way the Bharat Shah trial is going with key witnesses turning >hostile, all bear testimony to rising police ineptitude and >inefficiency. > >The criminalisation of the police, through corruption, recruitment >of shady elements, bad leadership, and political interference is a >dangerous but growing phenomenon. This affects its performance not >just in crime control, but in simple matters such as maintenance of >law and order and traffic management. Atrocities by the police and >other security forces alone have grown by 800 percent over the past >decade. > >Third, the judiciary too is in deep crisis. The burden of 30 >million-plus cases upon the high courts is unmanageable; it is set >to rise sharply. As for the subordinate courts, the less said the >better. The failure of India's justice delivery system is as >legendary as comprehensive. The reality is that even fire-fighting >does not work anymore. Thus, so grotesquely long are our judicial >delays that three-fourths of our prisoners are undertrials. > >Even less does fire-fighting work at the level of society and >policing. Our crime rates have been rising not so much because the >quality of policing is falling (which it is), and prosecution >getting longer (it is), but because we increasingly fail to >acknowledge, leave alone address, the root causes of crime. Few >people in power, especially in this government, talk of these. But >our social scientists have analysed them well. These causes lie in >widening, virtually uncontrollable, income and regional disparities, >and the creation of a huge underclass, some of it educated, who have >no future. Equally important are the negative examples set by the >privileged and powerful with their ill-gotten wealth, their tax >evasion, their monumental corruption, and their decadent lifestyles. > >In a society where there is no rule of law for the rich and >powerful, it is illogical and unconvincing to demand it should apply >to the poor and weak. In the absence of policies to promote social >cohesion, 'lawful behaviour' or conformity can only be imposed upon >the less privileged by force. But this only corrupts the police >further as a partisan agency serving the privileged, which is >designed for some kind of privatised coercion or violence. A corrupt >police cannot deter crime. On the contrary, it will further fuel the >cycle of privatised violence-crime-further violence. This is >precisely what is happening in India. > >The cure for this lies in wise policies which eradicate mass-scale >poverty and deprivation, and promote equality, openness, >transparency, probity and social solidarity -- as well as in better >justice delivery and policing. However, what is being officially >advocated today is an unbalanced, warped approach -- of yet greater >coercion, through more repressive laws and procedures. This approach >is being assiduously promoted in the guise of fighting 'terrorism' >-- as if that can be totally separated and disembodied from its >internal and external causes. Thus, BJP general secretary and former >law minister Arun Jaitley wants a whole new criminal jurisprudence, >something more draconian than POTA itself. > >The government has now set up the Malimath committee for criminal >law 'reform,' headed by a former high court chief justice. This has >the blanket mandate to 'examine the fundamental principles of >criminal jurisprudence, including the constitutional provisions >relating to criminal jurisprudence, and see if any modifications and >amendments are required.' > >It has sent out a questionnaire which indicates its orientation. It >basically asks: Should we dispense with the basic premise of >criminal law, namely, proof of guilt beyond reasonable doubt? Should >we not do away with the right of the accused to silence? And, should >we not abolish the right of the accused against self-incrimination? > >If the answer to these is 'yes,' then the government will embark on >a violent revision not only of all criminal laws, but of the >Constitution itself -- and thus subvert the fundamental principle >that in a civilised society, an accused must be considered innocent >until proved guilty beyond doubt. > >The whole basis of the criminal justice system in the civilised >world is to put the onus of proof of guilt upon the prosecution, not >the accused -- or else, the presumption of innocence would be >violated and the accused would be treated as guilty without fair >trial. It is also vital to protect the accused against forced >confession, coercion or torture, and allow for cross-examination of >witnesses and review of evidence. > >These guarantees are fundamental requirements of Article 14 of the >International Covenant on Civil and Political Rights to which India >is a signatory. This reads: 'Everyone charged with a criminal >offence shall have the right to be presumed to be innocent until >proved guilty according to law.' Article 1 of the Convention against >Torture and other Cruel Inhuman or Degrading Treatment or >Punishment, which came into force in 1987, also totally outlaws >intimidation, coercion, infliction of pain or suffering, whether >mental or physical, for securing information or a confession. > >This has been upheld by our Supreme Court as a fundamental right >under Article 21 of the Constitution. This cannot be rewritten or >amended, being part of the basic structure of the Constitution. > >It is equally relevant to cite Article 359, which says that even >during a state of emergency, the right to move a court to enforce >the rights conferred by Part III of the Constitution on fundamental >rights may be temporarily suspended, but Articles 20 and 21 cannot >be. Now, Article 21 concerns the right to life, and Article 20 says >'no person � shall be compelled to be a witness against himself,' >nor 'be prosecuted and punished for the same offence more than once' >or more severely than specified by law. This means that the right of >an accused person to silence, not to incriminate himself/herself, is >absolute. A statement or confession made by him to a police officer >is not admissible as evidence. > >To amend these principles would thus amount to a retrograde >violation of the Constitution. It would transfer the burden of >proof, remove the right to silence, and allow for extra-judicial >confession. It is particularly pernicious to cite the 'war against >terrorism' to rationalise this. Terrorism is a crime. The word 'war' >dignifies the terrorist as an 'enemy' instead of a criminal. It >polarises the world between 'us' and 'them,' which is just what the >terrorist wants. It inflicts further violence on innocent people and >nurtures the negative, revanchistic feelings that lead to terrorism. > >Terrorism cannot be combated except by the enforcement of the rule >or law, adherence to human rights, humane policies to serve the >public good, and promotion of dialogue and negotiation to resolve >conflicts. Why President Bush's anti-terrorism 'war' is not working >is simply because his policies are blind to all this and calculated >to escalate a worldwide process of violence and counter-violence. > >We must not repeat this terrible error, as we did in Kashmir and the >Northeast -- thus shooting ourselves in the foot. > >-- >saurav
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