Terrorism Update
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It is remarkable that India’s justice system has become the strongest and most favoured ally and alibi of the terrorists operating on Indian soil, and of their sponsors across borders. Thus, an unidentified spokesman of the Pakistan Embassy is reported to have stated, shortly after the attack on India’s Parliament on December 13, 2001 – and at a time when India was demanding extradition of the perpetrators of major terrorist actions, who had been provided safe haven in Pakistan: “When you (India) had Masood Azhar in your jails, why didn’t you do anything then? India says it has been fighting terrorism for 20 years, why don’t they take an alleged terrorist to trial ever? Give me the name of one alleged criminal who you have tried?”2

The question is impossible to answer – except in terms of the weak quibble that there have, in fact, been a handful of convictions.3 The truth is, 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), for instance, 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. According to the Jammu and Kashmir Home Department, there are only 313 terrorists imprisoned in the jails of the State since 1996.4 Only 40 terrorists lodged in different jails of the State were facing trials under TADA in April 2001. Since the eruption of militancy in the State, as many as 13,911 suspects had been arrested under TADA and allied offences. The State Screening Committee had freed 13,871 suspects of the charges and they were later released. The situation in J&K is not unique, and the pattern is comparable in all terrorism-affected States. In Assam, for instance, the conviction rate under TADA was not even 1 per cent.5

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.

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 problem has virtually appropriated the form and character of a fetish. Thus, at a public forum, a former Chief Justice of India asserted that that procedural guarantees of human rights “could not be diluted even in circumstances where the unity and integrity of the country was under threat,”6 ignoring the fact that in a situation where the unity and integrity of India collapsed into anarchy or war, these cherished rights would lose their meaning altogether. He ignored, equally, the reality that these procedural guarantees had worked overwhelmingly to the benefit of those who commit unspeakable acts of violence against the innocent. It is attitudes such as these that give rise to absurd judicial interventions, such as the Srinagar High Court order, during the siege of the Hazratbal shrine in Jammu and Kashmir in March 1996, demanding that certain types and quantities of food be served to the terrorists holed up in the shrine.7

Three criteria have been defined for the identification of a system of justice on its last legs:

  1. That people come to believe that inefficiency and delay will drain even a just judgement of its value.

  2. That people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching.

  3. That people come to believe the Law - in the larger sense - cannot fulfil its primary function to protect them and their families in their home, at their work, and on the public streets.8

These circumstances manifestly prevail in India today.

This abdication of responsibility goes well beyond the judiciary. 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 not challenges that can be met by political theatrics. They require precisely what has been lacking over decades of posturing and pretence – a strategic vision and the ability to translate this into the structural and institutional transformations that are necessary to restore order in the increasing spheres of terrorist and organised criminal violence and activity across the country – and of the world. The foundation of such a transformation is a system of efficient justice administration – and it is not sufficient here to make a scapegoat out of the police or of the judiciary or the investigative agencies or of the old bogey of ‘political interference’. Every single institution is, without question, culpable in the current and comprehensive crisis, though some of these institutions – led by the judiciary – have consistently maintained a holier-than-thou attitude, attempting to blame the entire failure on other agencies of governance while they brush their own disastrous role under the carpet.9

The rising disorder of our age is a natural and cumulative consequence, on the one hand, of gradual processes of erosion within all institutions of governance in this 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’].10 Many terrorist organisation have no consistent political motives or ideologies, and are driven by purely or overwhelmingly criminal considerations.11 Yet they continue to hold sway over vast territories and populations through the instruments of terror, and as a result of an abdication of responsibility, or a failure, of the state.

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 Indian Penal Code (IPC) is capable of dealing with every existing and emerging challenge.12 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,13 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.

Confronting 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 something analogous to 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, is 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. 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 real question that arises in this context is, whether committed democracies like India can face up to sustained terrorism with their basic structures intact. Considering the extended timeframes of such conflicts, the new and ingenious ways they throw up of bypassing and exploiting laws, the relentless attack on civilians and the widespread intimidation of the institutions and agencies of governance, it is clear that the obtuse legal formalism, the crude investigative, policing and prosecution mechanisms of our past can only contribute to failure. The justice system in its entirety will have to devise procedures and processes that remain in conformity with democratic norms, but are, nevertheless, strong and efficient enough to ensure that the people involved in terrorism, organised crime, and patterns of political violence that threaten the basic structures of society, are neutralised, and others who may be tempted to support or join them are sufficiently deterred. For all its supposed brutalisation – and the extended terms of imprisonment that many terrorists serve ‘under trial’ or under preventive detention – India’s penal system is extraordinarily kind to those who commit heinous crimes.14 I have had the opportunity to meet a terrorist in Tihar Jail who was simply delighted to have shifted there after his extradition from the US, where he had suffered long periods of solitary confinement. The 600-plus persons who were arrested after the September 11, 2001, attacks in the US – many of them described, not as suspects, but as ‘material witnesses’ – were held in solitary confinement for months at end. This is, of course, not to suggest that we must imitate the excesses of others. But the rhetoric of human rights must, from time to time, be tempered with minimal doses of reality.15

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 and lawmakers 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.

1. Terrorism & Counter-terrorism

1.1 A comprehensive set of counter-terrorism laws must be drafted and given a permanent place in our statute books. Terrorism is not a transient crisis, but has emerged as a stable long-term threat to national security, and it is delusional to believe that ‘special’ and temporary laws are adequate to deal with the problem. The proposed laws would need to take into account, at least, the following areas of concern

1.2 A clear conceptualisation and definition of the complex patterns of crime that constitute ‘terrorism’. It is crucial, here, to bear in mind that this is a unique category of criminal behaviour. While the actions – murder, intimidation, extortion, possession and use of illegal arms, etc. – that terrorists carry out may be separately covered by existing laws, their character and context is fundamentally transformed by the element of massive, often transnationally co-ordinated activities. The threat these activities constitute, and the damage they inflict, is incalculably greater than any pattern of individual criminal activity – the whole, to borrow the gestaltist principle, is greater than the simple sum of its parts. These threats can only be contained if this is explicitly recognised, and legislation targets not only the executioners of terrorist action, but the entire network of support that makes such action possible.

1.3 The transfer and use of illegal revenues is the lifeblood of terrorism, and stringent laws must be devised to deprive extremist and subversive groupings of funds. This will require the implementation of harsh penalties on illegal transfers and money laundering, as well as the criminalisation of a range of economic offences, including, crucially, the use of such resources in legitimate businesses.

1.4 The activities of the ‘fellow travellers of terrorism’ must also be brought under scrutiny. This includes a range of front organisations, political actors, non-governmental organisations, businesses, etc., who provide the needed ‘overground’ support that makes the ‘underground’ activities of extremists possible.

1.5 The framework of counter-terrorism policy must be clearly articulated. This is not just a question for the political executive to determine. Some limits of law must be placed on what is or is not permissible. Elected governments have, in the past, made every principle of rule of law and constitutional governance negotiable under the threat of terror. Statutory limits must now be placed on how much governments can actually ‘put on the table’ or ‘negotiate’ in such situations. The present system has created a structure of incentives that actually reward terrorists and extremists, and this will have to be dismantled. Those who intercede with terrorists on the government’s behalf must also be statutorily prohibited from any negotiations or commitments that would require constitutional changes. Such changes are an exclusive prerogative of Parliament, and cannot be offered or discussed by any emissary of government without prior Parliamentary approval.

1.6 Existing ‘surrender’ policies must also be brought under statutory review. Current practices have created more problems than they have solved. There must be some limitations on the ‘rewards’ and incentives that attach to the surrender of terrorists, to amnesty or dropping of prosecution for criminal offences against those who surrender, etc., and practices must be brought in line with the principles of the rule of law.

1.7 There is now a strong international mandate for effective laws against terrorism, and this includes various United Nations resolutions that impose a duty on all member states to legislate effectively to control the activities of terrorists and their support organisations. It is now time to bring Indian laws into conformity with this mandate, and also to establish efficient structures of international co-operation and exchange of intelligence to counter the international threats and networks of terrorists and organised crime actors. 

1.8 The burgeoning wave of terrorism that is sweeping across the country – and indeed, the entire world – demands a suitable, coherent and comprehensive ‘use of force’ doctrine. It must be clear that the ideas and orientation that were devised to deal with civil riots and transient political violence, are entirely inadequate to confront the scale, intensity and character of contemporary terrorist violence. As the lethality and the linkages of terrorist groups grow, this orientation will become more and more a hindrance to a co-ordinated and effective response.

1.9 Terrorism and low intensity warfare have imposed new structural challenges on law enforcement that we are yet to accommodate even at a conceptual level. Our police and paramilitary forces continue to operate under mandates and legal provisions drafted by the British colonial government, and these have, at best, been tinkered with after Independence. The Evidence Act is another anachronism in need of urgent amendment, and must swiftly incorporate the use of emerging technologies and devices in the prosecution of crime.

1.10 Although low intensity wars and widespread terrorism have ravaged many parts of the country for decades now, these conflicts are still conceived of by the national leadership and the so-called ‘intelligentsia’ as ‘non-military threats’, and an ill-equipped Home Ministry is required to deal with them. The entire orientation to low intensity conflicts is of ‘emergency deployment’ – stop-gap arrangements to deal with what are still thought of as transient emergencies. The result is that the Army is repeatedly called out in these conflicts, supposedly to ‘aid civil authority’. The fact is, neither the police nor the army, by virtue of their basic orientation and training, is properly equipped to handle these crises. In view of the future threat potential of low intensity wars, it is crucial that a radical reformation of internal security forces be initiated, creating the skills, knowledge, attitudes and infrastructure necessary to confront this danger, and possibly raising entirely new forces to grapple with this specific hazard.

1.11 The parameters within which each agency of government is to respond to such challenges need to be clearly assessed, and the powers, the range of extraordinary actions permitted in these situations, and the applicable legal criteria and context of evaluation of these actions – whether these are the same as those applicable in peacetime or are to be akin to articles of war, or are to be redefined in terms of the new category of ‘low intensity wars’ – have to be clearly determined and suitably legislated. In the absence of such legislative intervention, enforcement agencies and security forces will continue to fight with their hands tied behind their backs – and this situation is not only entirely unacceptable from the point of view of the Forces, it is suicidal for the nation.

2.         Organised Crime16

2.1 The public image of organised crime is one of extreme violence and mass intimidation. There is a measure of truth in such a representation, but to the extent that it dominates and exhausts our vision of organised criminal activity, it is false and misleading. The truth is, an overwhelming proportion of organised crime is not predatory but collusive – based on a continuing and symbiotic relationship of acquiescence between criminal enterprises on the one hand and, on the other, government agencies, officials and enterprises whose primary businesses lie within the ambit of the law. ‘Enterprise Crime’ now engages in a mixture of co-operation and competition both with governments and the larger business community.  Their growing power is based on their capacity to exploit (rather than disrupt) legitimate business and financial activities, and their ability to corrupt government and law enforcement agencies. As Boutros Boutros Ghali, the then Secretary General of the United Nations, declared in 1994, “The danger is the more pernicious because organised crime does not always confront the State directly. It becomes enmeshed in the institutional machinery. It infiltrates the State apparatus, so as to gain the indirect complicity of government officials…. (it) poisons the business climate, corrupts political leaders and undermines human rights.”

2.2 This contemporary blend of corporate and criminal cultures is not susceptible to the solutions of the past. The reliance on special forces within the police, and on the “encounter” may be highly gratifying as spectacle, but it targets only low level – and easily replaceable – operatives. Even where arrests take place, the criminal justice system fails consistently to incarcerate17 or incapacitate those who are arrested for any significant length of time – and even these, once again, are only lower or middle level operatives.

2.3 Another important reality is that crime syndicate operations are now overwhelmingly transnational. The primary organisations have established themselves in safe havens abroad; in India’s case, such sanctuary is provided by nations distinctly inimical to our interests, or whose sympathies remain ambiguous. These transnational criminal organisations [TCOs] operate through a variety of franchise alliances and subsidiary groupings that are strengthened immeasurably by the financial clout and subversive affiliations of their principals. National enforcement agencies ordinarily confront only the petty ‘retailers of crime’. The ‘prime movers’ have remained fully out of their reach.

2.4 One of the critical elements to be understood is that legitimate economic elites find that these syndicates fill an important vacuum in society. Specifically, they provide a wide network of connections and access to Government and help evade government controls; in the absence of stringent commercial codes and a viable judicial system, mobsters provide protection to businesses and a mechanism for regulation of disputes; they also provide a range of services including the systematic evasion of taxes, the transfer of money across borders, the collection of outstanding loans, possession of disputed properties, control of recalcitrant labour unions, and outright violence to intimidate or eliminate business rivals. TCOs are also an important source of finance for a wide range of otherwise legitimate enterprises. In many ways, they progressively supplant the failing State in these areas, offering arbitrage and financial services, providing employment, and guaranteeing a consistency of outcome in activities and disputes that is otherwise elusive.

2.5 Under the circumstances, directing enforcement operations and legislation exclusively against the visible operatives of criminal networks will prove both frustrating and futile. It is necessary, now, to ‘criminalise’ – that is, to attach severe criminal penalties to – all agencies and activities that co-operate with and benefit from crime. There has to be a logical escalation in the legal means used to combat the increasing scope and power of organised criminal activity, and this will have to be directed primarily at stripping criminals and their associates of their assets and blocking their penetration into the legal economy. Existing systems of documenting economic activity and our criminal records system are simply too primitive to cope with this challenge and will have to be enormously upgraded in order to introduce complete transparency in the economic, political and social life of the nation. The continuous blurring of lines between legitimate and criminal enterprises – not only in the more obvious instances such as the ‘bumping off’ of rivals or of union leaders, but in less visible day to day transactions – has to be made relatively impossible.

2.6 The pathways of untraced profits from criminal and quasi-criminal enterprises must be disrupted by a rigorous system of mandatory documentation and increasing transparency in all legal financial transactions, and the clear and definite identification of all agents in such transactions through a comprehensive system of identity numbers [the Income Tax Department’s system of PAN numbers could constitute the basis of such an identification system, but its present and projected coverage is woefully inadequate]. This must be backed by the imposition of severe criminal penalties, including harsh terms of incarceration and seizure of all assets disproportionate to known sources of income, for tax fraud, and for concealment. These measures may be complemented by a radical reduction in rates of direct taxes as long as there is a proportionate escalation and inflexibility in imposition of penalties for evasion.

2.7 The one element that is not replaceable in the criminal enterprise – as in legitimate enterprises – is profit. Systems that facilitate the identification and seizure of assets and capital originating in crime – even where they have been transferred or laundered to flow into legitimate activities – would eventually destroy the super-normal profits that create overwhelming incentives for the penetration of organised criminal activity into the nation’s economy.

3. Communal & Sectarian Violence

3.1 The legislative framework must provide for the suppression and containment of subversive and extremist activities by religious institutions and organisations, as well as by groups that resort to political violence in the name of caste or other sectarian motives. The present system has made a ‘holy cow’ out of any group or organisation that claims religious inspiration or affiliation, virtually placing these outside the bounds of the law. While Constitutional freedoms, including the freedom of belief, must be vigorously protected, the abuse of such freedoms for activities and ends that lie outside the intent and objectives of these Constitutional provisions must be punished with equal vigour. This will be something of a tightrope, but it has to be walked.

3.2 Existing provisions and penalties on mass communal violence are also far from sufficient. The record of convictions for major riots in this country is abysmal. Even where thousands have been killed – as in 1984 – there have been virtually no convictions. This is not just a matter of ‘political will’, but is, in fact, evidence that existing laws are insufficient. Current provisions look upon the riot as an individual transgression. There is no legal instrument available to contain the processes of violent religious mobilisation and engineered mass riots. Worse, where political and state collusion are a fact – as they inevitably have been in most recent cases of mass rioting – there must be some overriding legislation that initiates mandatory processes of prosecution and extraordinary penalties.

4. Judicial Reform18

4.1 As noted earlier, there is a complete abdication, indeed collapse, of judicial accountability in situations of persistent mass violence and terrorism. Legislative provisions and statutory penalties are necessary to ensure that judicial officers who fail to meet their constitutional obligations under threat or fear are penalised and removed from their positions, and that the institutions of civil governance do not systematically collapse at the first signs of personal risk to the privileged cadres of these instrumentalities of the state. Protected by the law of contempt, by the essentially closed nature of the judicial family, and by the general tendency of the public to be extremely deferential in their attitude towards the courts, the judiciary has succeeded in directing critical attention away from itself towards the failures of the other arms of government. There is, however, a growing realisation today that the judicial system and its machinery are straying from the Constitutional path and not performing their true function, a function the public has a right to expect them to perform. Despite the increasing exhibitionism of judicial processes, especially in ‘Public Interest’ litigation, the courts are no longer perceived as effective institutions for the resolution of conflict and for the administration of justice.

4.2 This was acknowledged by then Justice A.S. Anand in a moment of candour, when he stated that a victim of crime has only two options: to approach the police or the courts. “For him unfortunately,” he confessed, “neither of the two is an attractive proposition. If he is hesitant to approach the police station for reasons which are by no means unknown, his reluctance to approach the court is also not without reason.”19 Justice Anand characteristically failed to elaborate upon the reasons for the public’s reluctance to approach the courts. The judiciary has consistently resisted any objective attempts to define reasonable criteria by which its performance is to be judged, even as it has placed itself beyond the scope of political or executive review.20

4.3 The reality, however, is difficult to escape. “Most Supreme Court Judges,” the eminent constitutional expert H.M. Seervai remarked, “live in a dream world of their own. There are rhetorical passages in a number of judgements as to the intellectual and moral qualities which judges should possess and, by implication, most of them do possess. In my submission, it is necessary to point out that this picture of qualities and character possessed by most Judges, and the further view that all High Court Judges are men of integrity and are incorruptible is not justified by matters on record.”21 Seervai then proceeds to quote an interview given by the late Chief Justice Venkataramiah a day before he retired; the excerpts from the interview are singularly edifying, and refer to Judges who “are willing to be ‘influenced’ by lavish parties and whisky bottles”, and to the trend of close relatives of judges practising and influencing decisions in Courts where those judges were on the Bench.22

4.4  Integrity and corruption, however, are not the only issues. The fundamental obstacle to a credible judicial system is a minimal level of efficiency. No system that arrives at a decision after a litigation process that can extend over decades delivers anything that could deserve the title of ‘justice’. If judicial action is to have any credibility among the people, and any deterrent impact, especially on the hardened cadres of terrorist and organised crime groupings, the link between crime and punishment must be swift and inexorable. The present judicial system is simply incapable of securing the levels of efficiency and delivering the quality of justice that are required to counter and contain the enormous threats that currently exist to national security, nor does it manifest the will or the inclination to set correctives in motion on its own. Such correctives, consequently, will have to be legislatively defined and imposed. If done with intelligence and without partisanship, this would be entirely consistent with Constitutional provisions and the provisions relating to the independence of the judiciary.

4.5.1 A first step in the right direction would be to set up an independent Judicial Commission which would be responsible, not only for appointments and transfers, but also to see to it that judges perform their duties in keeping with the high traditions of the legal profession and the Judiciary, and for the investigation of, and prosecution on, charges of corruption and judicial misconduct.

4.5.2 Such a body should also be required by statute to publish an Annual State of Justice Report, with a complete category-wise Statistical Break-up of cases, pendencies and disposals; as well as a comprehensive summary of the main jurisprudential trends emerging from critical judgements. The latter would go some distance towards ensuring that, even where individual decisions apply contrary or contradictory principles, the approved jurisprudential position of the Supreme Court – and its consistency with constitutional provisions – is unambiguous.

4.5.3 No Commission comprised of people drawn from the area or the fraternity that requires reform will ever be able to bring about the requisite reforms. The proposed Judicial Commission must be widely representative - with those who have been subjected to the tyranny and the caprice of the judicial system given a prominent voice.23

4.5.4 The nexus between criminals, ‘convenient’ government servants and politicians has extensively documented, and the N.N. Vohra Committee’s Report has given official confirmation to the worst imaginings of the media and the public. However, the nexus with unscrupulous lawyers and other professional advisors needs equal attention. Where evidence of collusion, of deliberate suppression of evidence and calculated distortion by defence attorneys exists, the latter should be made criminally liable as well, just as a chartered accountant who cooks up fraudulent books of account would be.

4.5.5 Stringent penalties must also be devised to discourage a number of ‘sharp’ and unethical practices adopted by lawyers, including mediation between members of organised crime networks, particularly those who are incarcerated as undertrials and convicts, on the one hand, and their associates and cadres ‘outside’, on the other, and other relationships which go beyond legitimate advocate-client interactions; abuse of legal processes to exclude legitimate evidence from trial; abuse of legal processes to delay and protract trial, etc.

4.5.6 Provisions relating to perjury and obstructive behaviour by witnesses need to be strengthened, and courts should also not hesitate to make full use of such provisions against uncooperative witnesses.

4.5.7 A radical reform of judicial processes is also necessary. This must include computerisation, efficient management of dockets, application of modern management principles to the working of Courts, greater sensitivity to the needs of witnesses and those who seek justice, and an end to the endless and infructuous processes that have become a hallmark of India’s justice system. In this context, it is essential to note that there is an over-emphasis on the ‘shortage’ of judges, and the supporting statistics on the millions of pendancies, and poor case/judge ratio. The millions of pendancies are, in fact, substantially a consequence of inefficient legal processes and a high tolerance for frivolous litigation. Consequently, a realistic estimate of the judicial burden can only be had after a proper system of case load management and a rationalisation of judicial procedures have been introduced. That such a realistic reassessment is necessary becomes apparent if we look at some comparative data relating to pendancies in the South Asian region.

Table: Justice delayed, justice denied?24


Cases Pending Per 1000 people
Persons per judge
Cases pending per judge









The variation in pendancies clearly cannot be explained in terms of a crude ratio between population and judges, and a detailed review of the functioning of the various systems is necessary before any norms for such a ratio can be defined. Arbitrary comparisons with the practice in selected and advanced countries in the West cannot be an appropriate basis for the definition of such norms.

5. International / Transborder Initiatives

5.1 Several UN and Security Council resolutions have called for ‘appropriate legislation’ by member states to meet the challenges of terrorism, organised crime, drugs and arms smuggling, international trafficking in people, etc. India has expressed approval for many of these resolutions/declarations, and is also a signatory to several international conventions sponsored both by the UN as also by other international agencies, relating to these major issues. Regrettably, weak governments and mixed polities, with strong vested interests that challenge every effort to bring in appropriate legislation in this regard on the grounds that it ‘undermines human rights’, or that these can be handled under existing and normal laws of the land, or simply as a result of legislative inertia, have failed to integrate the principles and practices outlined in these various resolutions, declarations and conventions into national statutes. Thus, while the international mandate for stronger legal action against these various disorders does exist, we have remained trapped in a legal framework that grows more and more licentious by the day. It is necessary, now, that national laws be brought into conformity with such an international mandate in order to ensure the greatest efficiency of international co-operation on these issues, as also stronger penalties for acts of transborder terrorism and crime within the country.

5.2 National laws against terrorism must make a clear distinction between, on the one hand, offences on Indian soil by Indian citizens, and, on the other, those committed by foreigners, especially those crossing borders illegally, and must apply much harsher penalties and provisions for detention, and more stringent criteria for release on bail in the latter category of cases. This is of particular significance in view of the proxy war that is being waged by Pakistan against India. The principles, here, must be patterned on norms of military justice used against spies and saboteurs in a state of war, in recognition of the fact that we are, in fact, engaged in an undeclared war; our responses cannot, under the circumstances, be moulded on principles of civil justice.

5.3 Border management and the illegal movement of populations across international borders is another problem that has been neglected for decades in search of a ‘consensus’ that will never be found. In the interim, the demographic destabilisation that has taken place, particularly in India’s Northeast, has already resulted in enormous violence, and threatens to acquire proportions that are far more dangerous to the nation’s security and integrity than any existing threat. This is, again, an area that demands immediate legislative attention and the imposition of statutory obligations on governments to prevent and punish such illegal movements of populations.

5.4 Vigorous steps must be taken to push for a universally binding international convention on terrorism, and on mandatory laws to deal with terrorists who take shelter in other countries. Procedures for extradition should be simplified, and the practices should be brought into conformity with the extraordinary threat posed by the movement of terrorists across border.

5.5 Vigorous legislation to contain the dangers of illegal movement of funds, arms and ammunition, drugs, and trained terrorist cadres should be drafted both within the country and in international law.

5.6 Harsh international penalties must be prescribed against states the support and sponsor terrorists, especially those who those that indoctrinate, train and arm extremist cadres.

6.         Other Areas Requiring Attention

6.1       Clearly, police reforms, the strengthening of the law enforcement, investigative and intelligence structures, and enormous investment in internal security are now necessary. It is time to abandon the idea that such investments constitute ‘non-productive expenditure’. There is a peace dividend that comes with good law and order administration, and this is reflected in higher productivity in every other sphere of economic activity. Terrorism, organised crime and widespread political violence sap the sinews of the economy, destroy infrastructure, undermine investment and rob the people of developmental opportunities for decades at end. The financial and human costs of such processes have never authoritatively been calculated, but they would infinitely exceed even the most exaggerated projections of expenditures required for an effective national security apparatus. The national budget and various economic policies should take these factors into consideration at the time when allocations for policing are taken up.

6.2 Much has already been stated above about existing Human Rights practices and processes. It requires a simple reiteration here to underline the need for a review of these practices and processes to restrict the existing and enormous potential of abuse by unscrupulous and criminalised elements.

6.3 Non-governmental organisations in India have been passionate advocates of ‘transparency’ in governance, and equally passionate opponents of transparency in their own activities. There is now mounting evidence of NGO malfeasance and collusion with terrorist, subversive and criminal organisations in various theatres of conflict and crime in India, and it is high time statutory obligations of transparency were imposed on these entities.

6.4 The bureaucracies of the 19th and early 20th Century continue to dominate our internal security and law enforcement apparatus into the 21st Century, and have now become obstacles to the fundamental objectives of efficient law enforcement. The decision-making processes at the highest levels are oriented to a diffusion of responsibility and a complete failure to understand the time-frames of contemporary crisis management. There is an urgent need to create new and responsive structures of administration and accountability that are geared to the time-frames imposed by modern technologies, and to radically transform existing command, control, communication and information systems, both internally within specific agencies, and in the multi-force scenarios that are becoming increasingly common. Since initiatives for appropriate change have not emerged from the executive – which has strong vested interests in the perpetuation of the existing system – such initiatives must be legislatively imposed.

6.5 What will be the character of conflict and internal security challenges ten, or even twenty years from now? And what will be the nature of the responses that will be required to cope with these? Our answers to these question will define the structure and composition of the Forces that we believe can help us cope with these future challenges. And the degree to which, and the detail in which, we are, in fact, able to correctly assess these future challenges, and to generate appropriate responses before they become an overwhelming threat to the existing order, will be the only measure of the success of the present leadership. This process of projection, moreover, must be continuous and will need to be institutionalized as part of the basic structures of law enforcement and internal security. In addition, there is a strong case for a Parliamentary advisory board & secretariat on internal security. The existing processes and official mechanisms of information dissemination among Parliamentarians are too slow, cumbersome, and partisan to serve as an adequate and quick source of information on rapidly transforming events. There is urgent need to create a statutory institutional mechanism that would keep all parties and the Parliament continuously apprised of various aspects of the internal security situation, and to create an apparatus – under Parliamentary control – to secure data and information from all concerned agencies of government, and to research and analyse various aspects of existing and emerging internal security crises. Indeed, the Parliamentary Committee on Internal Security must also have a permanent research committee or consultancy attached to it to ensure that its deliberations go beyond the information voluntarily provided by the government, on the one hand, and by the popular media, on the other.

6.6 Finally, at the very heart of the problem, is the question of defining a coherent and comprehensive policy framework on internal security. In the absence of a coherent vision of the nation’s larger strategy, specific initiatives, especially where they are fire-fighting responses to current crises, tend to cancel each other out and often, in fact, prove counterproductive.

6.7 The very first imperative of an effective policy on internal security, consequently, requires the definition of the basic principles on which all action and policy is to be constructed. No such principles are reflected in our present policies, and there is little evidence to suggest that they exist. Once defined, these principles must be strictly adhered to, circumscribing the range and content of actions and negotiations that any government or official may engage in with regard to, for instance, terrorists or organized crime syndicates, or in situations of crisis generated by the actions of such agents of disorder. At least some of these principles must be statutorily imposed.

Our responses to terrorism, organised crime, mass political violence, and other contemporary internal security challenges in the past have not been reality-based. The Indian state must start educating itself on how it is to tackle individuals and groups that seek to undermine and destroy it. And it must learn how to arm and protect those who put their lives at stake in the defense of India’s unity and integrity. This demands a massive and unprecedented effort, one that has to be exerted within a timeframe that grows shorter by the day if it is to have a hope of success.

  1. This paper is substantially an elaboration of arguments explored in K.P.S. Gill, “The Imperatives of National Security Legislation in India,” in Seminar, “States of Insecurity”, Number 512, April 2002, pp. 14-20.

  2. A spokesman for the Pakistan Embassy in London to CNN, cited in The Indian Express, December 27, 2001.

  3. The preceding observations are based on K.P.S. Gill, “Systemic overhaul needed to fight terror,” The Pioneer, December 29, 2001. Also available at K.P.S. Gill, Freedom from Fear.

  4. “313 arrested militants costing J&K Rs 200 lakh a year”, Kashmir Times, Srinagar, April 13, 2001.

  5. “‘POTO can’t lapse retrospectively’”, The Tribune, Chandigarh, December 21, 2001.

  6. K P S Gill, “Are we imitating the Pak model?”, The Pioneer, New Delhi, October 19, 2001.

  7. Ashok Mehta, “Understanding the Army: Balancing Human Rights and operational Compulsions”, paper presented at national seminar on Security Force’s Morale and Human Rights – The Right Balance, November 30, 2001, New Delhi.

  8. Burger, Judge Warren E., Delivery of Justice, The College of William and Mary Press & West Publishing Co., 1990, p. 24.

  9. K.P.S. Gill, “Systemic overhaul needed to fight terror,” op. cit.; also available at K.P.S. Gill, Freedom from Fear, See also, K.P.S. Gill, “Politics of Justice,” op. cit.

  10. See, K.P.S. Gill, “Dubious thing called popular support,” The Pioneer, December 1, 2001. Also available at K.P.S. Gill, Freedom from Fear.

  11. See, for instance, Ajai Sahni, "The Terrorist Economy in India's Northeast: Preliminary Explorations," Faultlines: Writings on Conflict & Resolution, Volume 8, New Delhi: ICM-Bulwark Books, April 2001.

  12. For an assessment of ‘human rights’ critiques against such legislation, see, Ajai Sahni, “Anti-POTO hysteria: Delusions of Misuse”.

  13. And what I have described as the “societal Stockholm Syndrome”. See, K.P.S. Gill, “Dubious thing called popular support,” op. cit.

  14. Though it is, at the same time, extraordinarily oppressive to petty criminals who fail to secure proper legal representation, and who may languish in jail as ‘undertrials’ for periods that are, in numberless cases, many multiples of the maximum sentences they would receive if they were convicted.

  15. K.P.S. Gill, “Systemic overhaul needed to fight terror,” op.cit.

  16. The analysis of organised crime and the required state responses is substantially based on Ajai Sahni, “Enterprise Crime targets nation’s economy”, Pioneer, January 21, 1999.

  17. There are innumerable cases where the infrequent incarceration is actually a blessing for organised crime bosses, who continue to operate with impunity from jails, with the advantages of modern communications provided to them by corrupt jailers. At least some prominent criminals have actually sought out such incarceration at times when their lives or operations are under extraordinary threat.

  18. These remarks, and the observations on the judiciary that follow, are substantially taken from K.P.S. Gill, “Politics of Justice”, in K. Mahesh & Bishwajit Bhattacharyya, Judging the Judges, New Delhi: Gyan Publishing House, 1999, pp. 167-181.

  19. Subsequently Chief Justice Anand, A.S., "P. Babulu Reddy Foundation Lecture on ‘Victims of Crime: Unseen Side’,” reported in The Times of India, September 30 1997.

  20. By virtue of the Supreme Court’s majority judgement in what is known as the Second Judges’ Transfer Case [Supreme Court Advocates Assn. on Record v. Union, (‘94) A.SC. 268, (1993) 4 S.S.C. 441]. The decision itself is regarded as unconstitutional by constitutional experts. Cf. H M Seervai, Constitutional Law of India, Fourth Edition, Volume 3, N Tripathi Pvt Ltd, 1996, “The Second Judges’ Case - A Fatally Flawed Decision”, pp.2928 - 2970.

  21. Seervai, H M, Constitutional Law of India, Fourth Edition, Volume 3, N Tripathi Pvt Ltd, 1996, p. 2927.

  22. Ibid., pp. 2927-28

  23. These proposals were outlined in K.P.S. Gill, “Politics of Justice”, op. cit.

  24. UNDP, Human Development Report 2000, Oxford University Press, 2000, Table 5.2, p. 101.






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