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Freedom in security

In recent months we have seen a counter-productive debate on freedom vs security, and mounting criticism of ‘draconian’, ‘colonial’ statutes such as the law on sedition, on the grounds that they are susceptible to abuse. But isn’t the problem rooted not in the legislations themselves but in the inability of the state and its agencies to implement the rule of law, and the subordination of legal processes to political expediency? Ajai Sahni explains

What, precisely, is the meaning of ‘freedom’ in India today? The chief minister of her capital city, in the wake of the murder of a woman journalist driving home from work late at night, declares: “Women should not be so adventurous.” Unsurprisingly, given such lofty precedents, after the rape of the nth BPO worker returning home in the night, family members of the perpetrators proclaim that women who work such hours ‘deserve to be raped’. An additional district collector in Maharashtra is brutally murdered in broad daylight while investigating a nationwide petrol theft racket estimated at billions of rupees annually and, months later, the retiring director general of the state police declares that, despite the public outrage and political posturing in this case, the police ‘crackdown’ against the oil mafia is “only for the media”. Increasingly, right-wing formations issue fatwas and moral codes, and back these with intimidation and, at least sometimes, brutal violence, even as governments argue that their ‘sentiments’ must be respected. Khap panchayats and regressive elements in rural society sanction honour killings and issue and execute death sentences, while advocates of panchayati raj blissfully argue that devolution of powers to these antediluvian bodies is the ‘solution’ to all of India’s problems. The Right to Information (RTI) Act has become a death trap for RTI activists, dozens of whom have been killed by a thuggish politician-bureaucrat-business-crime nexus long inured to rapine with impunity. Every high office in the country is suffocating under the leaden pall of a vast corruption, and the astronomical proportions of new scandals beggar the budgets of most states. A hundred and sixty-two members of India’s present Parliament have criminal charges against them, but remain responsible for framing India’s laws and holding government answerable to the Constitution.

But these are not the greatest of our oppressions. For hundreds of millions of citizens, ‘freedom’ means little more than the freedom to starve; to suffer limitless abuse with no hope of justice or redress; to be arbitrarily and pitilessly divested of their meagre means of survival, indeed, often of their lives, by lumbering bureaucracies that know little and understand even less. Behind the banality of statistics -- a third of the world’s poor, among the highest rates of infant, child and maternal mortality, rural distress reflected in tens of thousands of farmer suicides, millions expropriated and displaced without relief or recompense -- is the reality of a destitute and hopeless darkness in which much of India still lives.

The sheer and overwhelming structural violence of India’s louche democracy, her loutish state, her licentious, corrupt, inept, infirm and callous administration, have eviscerated her Constitution and her laws. This is the context against which any meaningful discourse on freedom and security must be framed.

Instead, an absurd and counter-productive dyad, freedom vs security, has been constructed out of a polarised debate and partisan adherence to blind legal formalism or a lawless and misdirected ethic of expediency, both of which take away from the substance of enduring justice.

Three cases have been the cause of much consternation in the recent past, and have brought abrupt, though largely incoherent, focus in the public discourse on the law of sedition in particular, and the wider question of the ostensibly conflicting objectives of security and the protection of constitutional freedoms.

The most prominent of these is the conviction of Dr Binayak Sen on charges of sedition by a Chhattisgarh court, while the other two relate to speeches by Kashmiri separatist leader Syed Ali Shah Geelani and ubiquitous loose cannon Arundhati Roy at a seminar in Delhi. While no detailed analysis is possible here, it is useful to highlight some aspects that have an immediate bearing on the present arguments.

A strident and personalised campaign against Sen’s sentencing to imprisonment for life quickly turned into a broader, but essentially sentimental, critique of the law of sedition itself. This, it was argued, was a ‘colonial law’ (how many laws in our statute books aren’t?), and had been used against luminaries such as Mahatma Gandhi and Aurobindo Ghose; such a ‘repressive act’ had no place in India’s luminescent democracy.

Unfortunately, neither the superlative campaign in Sen’s support -- including high-profile character endorsements by Nobel laureates and intellectuals highlighting his many virtues -- nor the ill-informed diatribes against the law of sedition have any real bearing on the merits of the case. Men of otherwise impeccable virtue have, on occasion, been found on the wrong side of the law; history is replete with chronicles of ‘the evil that good men do’. Crucially, the law of sedition has been repeatedly circumscribed after Independence, and its current avatar has little to do with its colonial antecedents. The settled law of sedition in India now recognises an offence only where a clear intention to incite violence or public disorder is demonstrated beyond doubt.

The scandal of the Binayak Sen judgment, I have noted elsewhere, is that the evidence against him is appallingly weak. Even on the most cursory examination, no self-respecting investigator would have taken this case to court; worse, no court could rationally have delivered a conviction on the utterly contrived, tenuous and, in several instances, manifestly falsified evidence. It is clear that purely extraneous factors engineered Sen’s ordeal.

This takes us to the next stream of the critique of the law of sedition, and associated arguments against a wide range of purportedly ‘draconian’ laws (against terrorism and organised crime; enabling the armed forces to operate in ‘disturbed’ areas, etc), that these are uniquely or exceptionally susceptible to abuse and should, consequently, be struck down.

This, again, is nonsense. A law is particularly susceptible to abuse only to the extent that it suffers from the vice of ‘overbreadth’ -- where offences are not defined with sufficient precision and are, consequently, open to wide discretion in interpretation. This, as already noted, is not the case with the current jurisprudence on sedition, and, on detailed analysis, would rarely be found to be the case with any specific clause of most of the laws sweepingly condemned as ‘draconian’.

Individual instances of abuse of legal process do not amount to any coherent critique of particular statutes. India’s jails contain a significant proportion of people -- ordinarily the poor and hence poorly defended -- wrongly convicted of every major crime, including murder, rape, dowry killings, crimes against women, and so on. This can hardly be an argument for the removal of these offences from the criminal statutes.

The abuse of laws -- including sedition -- is rooted squarely in the absence of capacities and competence in the police and investigative agencies, the laxity and susceptibility of courts, and the inhuman protraction of the judicial process. Indeed, if justice delayed is justice denied, then the judicial system in India today is a system not for the delivery, but for the sustained denial of justice. This has created a context in which investigators take cases to court, not because they have credible evidence and an acceptable probability of conviction, but simply to hold or to harass those who are thought to be dangerous or, in some cases, merely inconvenient. What we have installed is a system of ‘punishment by trial’, where the judicial process itself becomes the torment to which guilty and innocent are subjected alike.

Such mischief could theoretically be ended by an efficient justice system that investigates cases with integrity and efficiency, and decides these without delay; and by a vigorous application of the laws against perjury and malicious prosecution. This, however, cannot happen where you have less than 133 policemen and roughly one judge per 100,000 people; a system, moreover, that is exceptionally hidebound and permeated with political prejudice, incompetence and, far too often, outright corruption.

Sedition is the link that brings us to our next ‘offenders’, Roy and Geelani, whose speeches on October 21, 2010, in Delhi, provoked much political bluster, and an eventual court directive to reluctant authorities to register cases of sedition.

Roy is the easier to deal with. In her narrative, there is much that is profoundly, sometimes spectacularly, irritating, but little that is punishably criminal. Her prognostications find little resonance in Kashmir’s street, and any offence she gives relates essentially to the sheer ignorance of her critique, her hyperbolic falsehoods, and her relentless perversion, even invention, of ‘facts’ -- thus, “68,000 Kashmiri Muslims have been murdered by the Indian state”. It is useful to recall that, some years ago, Roy had accused Indian state agencies of ‘Complicity, Collusion, Involvement’ in the terrorist attack on India’s Parliament in December 2001, and had woven a long and fanciful narrative on the theme. Roy is easily dismissed as a narcissistic attention-seeker, with little interest in serious investigation or activism in good faith, and, unless peddling fiction as political commentary is declared a punishable offence, will continue to enjoy the fullest protection of her freedom of speech.

Geelani is another matter altogether. His direct incitement of seditious violence -- certainly in his published ‘calendars’ through the stone-pelting campaign of 2010 -- is widely documented, even as are his complex linkages with terrorists. What he said in New Delhi was mild compared to his many inflammatory speeches in Kashmir. He has a multiplicity of cases against him relating to terrorist finance, hawala transactions and his intimate connection with various Pakistan-backed terrorist groups. Unfortunately, not one of these cases has been carried to a logical judicial culmination, though the earliest date back nearly two decades, and prosecutions in each of these are stalled or started purely on transient political considerations. Indeed, at the height of the controversy over his Delhi speech, Geelani contemptuously declared: “I have 90 FIRs registered against me already, this will be (the) 91st.”

This, then, is the heart of the problem: the lack of capacity and will to implement the rule of law, and the subordination of legal processes to political expediency. Indeed, if the true measure of democracy is the degree to which the rule of law prevails, without the taint of exceptionalism, India performs abysmally.

The Geelani and Sen cases raise another crucial issue. It is now abundantly clear that every extremist organisation sets up a number of legal fronts to exploit the interstices of the law in order “to attain access to their opponents’ strongholds and destroy democracy from within”. The Maoist Political and Organisational Review explicitly emphasises the need to create “cover organisations… those which are formed on a broad basis by ourselves; and… those organisations led by other forces which we utilise by working from within without getting exposed”. These organisations focus on various ‘burning issues’. Crucially, however, “any joint activity or tactical alliances which do not serve the cause of the peoples’ war will be a futile exercise”. It is evident, consequently, that extremist, terrorist and insurgent groups systematically use fronts and overground networks of sympathisers, as well as some ‘useful idiots’, to further their radical ends, and that legal restraints are necessary to rein in elements who cross clearly defined lines.

The Supreme Court’s decision in Arup Bhuyan vs State of Assam, delivered on February 3, 2011, is thus crucial. Recognising that “our fundamental rights are similar to the Bill of Rights in the US Constitution”, the court relied on US judgments dating back to the 1960s (including the landmark Clarence Brandenburg vs State of Ohio, 1969), to conclude that, “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”.

The Supreme Court, here, ignores dramatic developments in organisation, technology, capabilities, strategy and tactics of armed anti-state groups in the intervening decades, as well as significant changes in US jurisprudence, specifically the US Supreme Court judgment in Holder vs Humanitarian Law Project, delivered on June 21, 2010, which recognised that the support of a range of “presumably non-violent and peaceful” organisations to designated terrorist groups, “frees up other resources within the (terrorist) organisation that may be put to violent ends. It also importantly helps lend legitimacy to… terrorist groups -- legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds -- all of which facilitate more terrorist attacks”. The US Supreme Court thus concluded, “that a criminal prohibition on advocacy performed in coordination with, or at the direction of, a foreign terrorist organisation is not unconstitutional”.

Across Europe, there are a number of laws that now criminalise the glorification of terrorism and patterns of hate speech. In Spain, the “glorification or justification, through any form of public information or communication” of terrorist acts “or of persons having participated in their perpetration, or the commission of acts tending to discredit, demean or humiliate the victims of terrorist offences or their families” is punishable. Laws in France and the UK prohibit the provocation, advocacy and glorification of terrorism.

It is not, of course, the case that we must immediately imitate these trends. But their rationale must be examined and be explicitly accepted or rejected. Indian jurisprudence remains stagnant and isolated from the dynamic and evolving realities of the ground, as well as from India’s deepening institutional infirmities. Human rights activism has been even more dogmatic, partisan and utopian, and rigidly critical of the state without appreciation of the imperatives of security, administration or the available configuration of resources and demography. Rights jurisprudence has remained mired in a formalism that has lost touch with the original objectives of human rights protection, in a belief, as K P S Gill expresses it, “that, as long as the tedious rites and rituals of the judicial yagna are fulfilled, all the interests of justice are served -- no matter how many people are slaughtered in the streets”.

The substance of liberty, or of its absence, goes well beyond the statute and its arcane interpretations. Inured to democratic freedoms, we have pushed the limits of the law into the realms of lawlessness, transforming the protection of rights into a weapon in the hands of the powerful, the unscrupulous, the criminalised and the violent, even as we routinely accept the denial of the most rudimentary rights to vast populations. The institutional apparatus for the protection of our freedoms remains tied, blindly, desperately, to hollow forms and processes.

The established narrative in India has attributed the denial of freedom to an excess, and consequent abuse, of power vested in state institutions, and has thus sought to progressively constrain and emasculate these. A counter-narrative demands greater and greater impunity for state agencies to counter rising security threats. Both positions are a complete misreading of reality and the imperatives of constitutional governance. The cumulative brutalisation of the Indian state is a consequence, not of any excess of power, but of a progressive erosion of capacities and capabilities. It is not power but infirmity that brutalises the state and its agencies. Endemic deficits of capacity in every institution have made it impossible to secure the necessary and legitimate ends of governance through due process, and the result is a progressive resort to shortcuts. As the state weakens, power becomes progressively randomised, uncertain, malignant.

Both security and freedom, in any real sense -- and the two are inseparable -- can arise only out of the rule of law, a set of settled, clearly defined regulations, inexorably implemented, without the constant dilution of exceptions. Very few, in India, seem to want this; and the state no longer has the capacity to achieve it.

(Dr Ajai Sahni is Executive Director of the Institute for Conflict Management and South Asia Terrorism Portal http://www.satp.org; Editor, South Asia Intelligence Review; Executive Editor, Faultlines: Writings on Conflict & Resolution. He has researched and written extensively on issues relating to conflict, politics and development in South Asia, and has participated in advisory projects undertaken for various national and state governments)

Infochange News & Features, July 2011