Sunday, April 5, 2015

In Terrorem: Bow thy Humble Supplicant

[Caveat: this post may be tagged as a rant]
During my brief and uneventful stint at the helm of National Law School of India Review (NLSIR), I was involved with the hosting of a Symposium which concerned the apparent conflict between security legislation and individual liberty. In the interests of ensuring security, the legislature seems overeager to withdraw procedural and other safeguards guaranteed to accused persons which help ensure individual liberty is not whimsically compromised. This well documented phenomenon cuts across jurisdictions and has been extensively written about. My personal favourite remains Professor Andrew Ashworth's Hamlyn Lecture of 2002, which can be found here

Why talk about it here? Because the recent episode surrounding the Gujarat Control of Terrorism and Organised Crime Bill 2015 (GCTOC) in times of relative peace makes one think that there is a long way to go. As is already known to most of us, the Bill dilutes several procedural and evidentiary rights guaranteed to an accused to presumably help secure convictions. I stress upon this aspect of relative peace: most instances of stringent anti-terror legislation rode high upon the great wave of emotion generated from particularly terrifying episodes of violence. The TADA Ordinance of 1985 and the 1987 Act were the aftermath of gruesome riots in the 1980s. MCOCA came at a time Mumbai was engulfed with mob violence in the 1990s. POTA came in 2002 after attacks on Parliament in 2001. The infamous Patriot Act in the USA came after 9/11. Where is the attendant terrorist plot behind the GCTOC? There is none, which is why support for the Bill must provoke serious questions about where society stands on the issue of protecting individual liberty. 

These statutes continue to strike me as rather odd. Considering the gravity of the charge, one assumes courts require the most reliable evidence to conclude the question of guilt or innocence. But repeatedly we find the system turning to ends-based reasoning and providing severe dilutions which make it possible to lead sub-standard evidence as proof of guilt. A prime example being the favourite provision of rendering confessions to police officers admissible. Prosecutions for serious crime charges through statutes which relax the requirements of proof are too high a cost to offer society a placebo, i.e. its a bad argument to say we need these laws for society to think something is being done by the police. It in fact grants the police legislative backing to take an easy way out, which they won't mind and thus resort to adding serious crime charges to an array of situations as has happened with the MCOCA.  

The Latin phrase In Terrorem refers to the practice of invoking fear as a basis to seek compliance from individuals to protect private rights. It seems to have found immense favour with the State. By enhancing the repertoire of offences to label nearly everything a crime on one hand and then relax proof requirements on the other, fear is soon becoming the sole basis to secure our political obligation to the State. History bears witness to how revolt soon follows.

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