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Systemic overhaul needed to fight terror

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, a spokesman of the Pakistan Embassy recently stated, "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?"

The question is impossible to answer – except in terms of the weak quibble that there have, in fact, been a handful of convictions. But, with over thirty thousand killed in Kashmir alone – and nearly eleven and a half thousand of these civilians – over the past decade, how is it that convictions have been returned in that State in just six cases; and, with one exception, all these have been on entirely trivial charges?

There is a great deal of posturing going on about terrorism nowadays, much talk of "bombing them out", of "hot" and "cold" pursuit, massive movements of troops along the borders, talk of a "final resolution" and the ludicrous "nuclear option", the tired old prattle about "proactive policies", declaring terrorist organisations illegal, disrupting financial linkages, freezing resources, and whatever else is the slogan of the day. All this will wane. Eventually, the "war mood" that is being artificially drummed up since December 13 will subside, and the reality of these embarrassing questions will return to haunt us, just as the challenge of confronting the changing and corrosive presence of terrorism in theatres across the country, with its linkages and networks around the world, reasserts its primacy once again.

This is not a challenge that can be met by political theatrics. It requires 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 violence and activity across the country – and of the world. What is needed 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.

Here, I think it is important to state this clearly, the police and the security forces – for all their alleged brutalisation and corruption – have still carried their burden with greater courage and commitment than others, albeit within the limitations of their constitution, their training and equipment, and their basic orientation. It is these men who have confronted the enemy again and again, risking and sacrificing their lives in the defence of the nation, while others sit back and criticise from positions of comfort and security.

Regrettably, other branches of civil governance have been far less forthcoming in sharing the burden, and the judiciary, in particular, has taken an obstructive attitude of active hostility in many cases. This is truly extraordinary, particularly when it is contrasted with the judicial response in other parts of the world – and particularly the democratic West – where members of the legal profession stand strongly against terrorism and organised crime, often at great personal risk.

Of course, ‘established procedures’ are a favoured excuse here. But the judiciary has been extremely active in a wide variety of other ‘politically correct’ spheres of litigation, and, indeed, has on occasion given short shrift even to the Evidence Act – certainly in the cases against officers of the Punjab Police, many of whom were convicted on manifestly concocted evidence. The judicial inability or refusal to act against terrorists can, consequently, only be ascribed to a failure of nerves. It is now high time this nation asked itself if the judiciary can really be permitted to stand aside in safety till the problem is over, and then reclaim its mantle of ‘justice’ – and the halo that apparently goes with it. Perhaps this is a point that can rightly be referred to a special Constitutional Commission, with a time-bound mandate to suggest reforms that could eliminate and penalise such an unconscionable abdication of responsibility.

The real question that arises 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 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 terrorists. I have had the opportunity to meet an extradited 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 have been arrested after the September 11 attacks in the US – many of them described, not as suspects, but as ‘material witnesses’ – are even now, more than three months after the event, being held in solitary confinement. 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.

Our success against terrorism, both within India and internationally, will depend enormously on our abilities to develop efficient policing and investigative practices, a large database, the meticulous documentation of all terrorist activities and the activities of the legal and quasi-legal support structures of terrorism, as well as consistent and quick prosecution. These initiatives are necessary, equally, in order to establish our case in the international community, to provide the ‘evidence’ that is constantly demanded when – despite the thousands dead in J&K and other theatres – a deliberately uncomprehending world denies that what is happening in India amounts to terrorism.

The effort, moreover, cannot be restricted within India alone. There has to be enormous international police and judicial collaboration, efforts to crystallise workable international conventions against terrorism, and an increasing assault to demolish the structures of ‘deniability’ that allow deeply criminalised states such as Pakistan to carry out covert aggression for extended periods of time with utter impunity.

Eventually, the dust over Afghanistan will settle, the heat over the attack on India’s Parliament will dissipate – as will the artificial ‘war clouds’ over the sub-continent. It is then that the long haul of the war against terrorism will take centre stage, and in this, it is a new paradigm of policing and justice administration – both national and international – that will provide the crucial underpinnings of success.

(Published in The Pioneer, December 29, 2001)





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