There is little need to elaborate on the assertion that there is a current and chronic crisis of national security in India. An unending succession of events has made this far too obvious to demand argument or illustration. Terrorism, organised crime, caste and communal violence, the immense and increasing criminalisation of politics, the growing numbers of the poor and rootless, accumulating pressures of population and consumerism on limited natural and national resources, and a widening area of abject non-governance – once associated only with Bihar – have all combined to make internal security the most urgent issue of our time. Where optimists find some evidence of improvement, such illusions are brutally swept aside by some new crisis. The record of declining communal violence over the past decade was one such datum that lulled some into a sense of temporary security and a feeling that, at least on some variables, there was a positive process of political evolution – till Godhra and the carnage in Gujarat reminded us of how close to the edge we actually live.
There are, of course, many and complex reasons for the state of permanent and rising tensions that has become the essence of our way of being. One, at least, of the most significant, is the progressive collapse of India’s justice system. The truth is, today, the link between crime and punishment has almost entirely been severed. This is true for almost all types of crime, but is most unambiguously the case among those who harness criminal violence to political or sectarian ends. Here, even the moral imperative of punishment is compromised, if not rejected, as every case becomes an exception to the rule. Perverse arguments of a populist sanction are advanced to protect political players from criminal prosecution; and Prime Ministers meet, or send their emissaries to negotiate with, terrorists, warlords and mass murderers. We have turned our laws into shibboleths, and the idea of the rule of law has been all but abandoned.
To make matters infinitely worse, the courts have taken the promise of justice and transmuted it into a leaden ritual that punishes innocent and guilty alike through its interminable delays. In areas afflicted by widespread terror or persistent mass violence, a bare pretence of judicial process survives. In nearly 14 years of strife in Jammu & Kashmir (J&K) there have been just 13 convictions in cases related to terrorism, of which eight concern relatively minor offences such as illegal possession of arms or illegal border crossings. This is the judicial record in a state where 30,750 people have been killed in the conflict between 1988 and 2001, 11,377 of them civilians.
This failure is compounded by a blind commitment to rhetorical and politically correct formulae – ‘human rights’ and ‘natural justice’ among the most prominent – and to an arid legal formalism without the faintest concern for the actual ends these secure. To take a crude illustration, the judiciary has stubbornly insisted that it is procedurally correct in repeatedly enlarging terrorists and criminals on bail. If they jump bail and murder people, that is not their responsibility, for a man may not be incarcerated unless he is proven guilty beyond doubt – a process that, in this country, usually takes close to five years, and may take up to thirty. In terms of criminal action and terrorist strife, this is an eternity; it is an unqualified licence to kill. For while the learned legal community is entertaining all manners of possible doubts, the man whose ‘freedom’ they have upheld goes out and murders any number of innocent people. But the judge’s conscience is clear. He has followed the letter of the law and defended the supposed citadel of human rights.
This abdication of responsibility goes much further. Indeed, in situations of persistent mass violence, the entire system of civil administration is effectively suspended. The only agencies of the state that continue to function, at varying levels and with varying degrees of effectiveness, are the uniformed services – the police, the paramilitary forces and the Army – and it is these services that come in for the greatest measure of abuse and harassment once a degree of order is restored. With the agencies of civil administration either withdrawing from areas afflicted by widespread violence, or even evolving complicit arrangements with the forces of violence and subversion, the entire gamut of the tasks of development and governance are simply abandoned.
These are natural consequences, on the one hand, of gradual processes of erosion within all institutions of government in the country and, on the other, of dramatic transformations in the nature and range of the internal security threats that confront the modern state. The tectonic shift in the character and scale of these threats was brought home dramatically by the 9/11 attacks in USA, as also by mounting evidence thereafter that many terrorists groups have been exploring the possibilities of the acquisition and use of a range of weapons of mass destruction (WMD). What is needed, consequently, is a comprehensive reappraisal of all contemporary threats to national security, and a refashioning of the nation’s responses in terms of the legislative and institutional framework, and of executive action.
Underlying any such reassessment must be a clear understanding that, today, very small minorities can directly and significantly threaten, undermine and, through determined, persistent and extreme violence, even destroy the edifice of the state and the integrity of the nation – and this is especially true where they act with foreign support and safe havens. The arguments that the manifestations of terrorism are located in ‘root causes’ of poverty and popular discontent, though they may have some grains of truth, are consequently far from an accurate reflection of reality. Terrorist movements today can be sustained by minuscule groupings, sometimes composed entirely or predominantly of foreigners, often exclusively supported by hostile states, and increasingly indifferent – if not inimical – to the hopes and aspirations of local populations [More than 85 per cent of the civilian victims of terrorism in J&K, for instance, are Muslims, something of a problematic for ‘Islamic mujahiddeen’ to consistently explain away in terms of a ‘struggle to protect oppressed Muslims’].
Unfortunately, on every occasion when the issue of internal or national security legislation, or any of its components, such as counter-terrorism legislation or legislation against organised crime, have been discussed in the recent past, an entirely irrational, even hysterical response has greeted any such proposals, and it has generally been argued that the IPC is capable of dealing with every existing and emerging challenge. This is interesting, and ascribes to the IPC something of a sacred and immutable character – which no statute book in a changing world can ever enjoy. This is particularly the case where patterns of criminal action have assumed proportions that undermine the very fundamentals of the institutions of democracy and of civil society. It is high time we understood the dangers and possibilities of a terrorised society, and the inadequacy of the conventional law – which approaches criminal conduct as an individual infraction violating individual rights – to deal with movements that collectively subvert and disrupt the structures of governance and enforcement themselves.
Confronted by such movements demands not only ‘more stringent’ laws, but real-time legislative responses that accommodate each significant transformation of criminal conduct. We may disagree with the basics and content of such legislation, but the speed and proportions of the American legislative response to the 9/11 attacks, and before these, to the attacks on the World Trade Centre in 1993, are what will be necessary if democracies are to defend themselves effectively against fanatical forces that accept no limits of law or conventional morality on the violence they are willing to inflict on others to secure their ends. This does not imply a blind and submissive acceptance by all Americans to every legislative excess of the Bush administration, and a vigorous democratic discourse is certainly in evidence on the new legislation, and its provisions can be expected to be amended and diluted over time, and in the light of the evolving experience. What is missed, however, is the fact that this swiftness and scale of response made it possible to avert many potential follow-up strikes that had evidently been planned by the al Qaeda, and as new cells and evidence is uncovered, it is clear that at least some lives have been saved and possible catastrophes averted, without extraordinary and irreversible harm being inflicted.
The point here is that the unending search for an elusive ‘consensus’ that has stalled all national security legislation in this country, even as criminal audacity expands exponentially in a legislative vacuum, is an unacceptable and potentially disastrous response to the rising crises that confront us. Parties will have to rise above partisan interests and legislate on crucial issues in this context, and will have to do so quickly in order to stem the rising tide of anarchy and the growing power of those who threaten not only the state, but civilisation itself. All such legislation would and must remain open to amendment in the light of evolving experience – and such processes of review must not be structured around a one-time and all-or-nothing approach that has characterised debates in the past. If elements of a law are found to be susceptible to abuse or to have caused unacceptable hardship to the innocent, these – and not the law in entirety – must be rejected and redrafted.
None of this implies any dilution in our national commitment to human rights. It means, conversely and precisely, a review of the institutional mechanisms and processes for the protection of these rights to ensure that it is these that are, in fact, protected, and that their protection does not inadvertently extend to criminal intent and operations. If we are to take human rights even half-way seriously, we will have to recognise that terrorism, low intensity warfare and their linkages with organised crime have created new and unprecedented dangers to the unity and integrity of the country, to the survival of democratic governance, and to the very possibility of human rights. It is, consequently, necessary to devise new laws, procedures and processes that help contain this menace and protect the people from the depredations of a merciless and utterly unprincipled enemy. Unfortunately, there is a new ‘high priesthood’ that would have us believe 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.
It must, of course, be accepted that the possibility of abuse of laws will always exist, and we will have to define safeguards with each legislation to limit the possibility and scope of such abuse. We must, however, understand at the same time that weak laws, or the absence of appropriate legislation, yields greater dangers, both of the victimisation of innocents by wrongdoers, and – bluntly put – in the form of resort to extra-legal solutions by those charged with the protection of lives and property, and the preservation of order. Without order, and without a concomitant security of life and property, there can be no freedom and no rights.
National Security Legislation is not just a question of definition of crimes or new patterns of criminal conduct and the prescription of penalties. It relates to the entire system, institutional structures and processes that are required to prevent and penalise such crimes, to preserve order, and secure the sphere of governance. The mounting failure on these counts is clear evidence that the system has deficiencies – and this should be sufficient grounds for a pragmatic and comprehensive reassessment.
Defining – and perhaps constantly redefining – possible legislative solutions to our present predicament will demand enormous sagacity on the part of the nation’s collective leadership. It is neither possible nor the intent, here, to enumerate some simple solutions or preconceived formulae that will magically resolve all problems. A fair beginning can, however, be made if the areas that demand urgent legislative attention and reform are reasonably and clearly identified.
It bears mention that many of these issues were brought to the notice of the then Prime Minster by me as far back as 1997, and have subsequently been raised with successor governments, but there is still no evidence of any correctives having been initiated, though the situation has worsened significantly over the intervening years.
(Published in Seminar, volume 512 - April 2002 )