The enactment of repressive laws does not need care, or concern for human life and liberty; nor does it require intelligence. All repressive laws have certain standard characteristics. Their definitions are wide and vague; they are always designed to include in their purview the entire populace, if need be. Court processes are inevitably subverted and the much trumpeted “rule of law” is transformed into “rule by discretion” which is a euphemism for “rule by caprice.”
Special courts for terrorists are set up, immediately leads to a presumption in the minds of people that the men and women produced before them are terrorists. Since these courts are exclusively intended for terrorists, they are heavily armed and the public cannot enter them. These courts may not be located in the complex of court buildings. Separate premises are hired to ensure that the litigant population waiting in the corridors of courts may not wander in to watch their proceedings. Despite this, however, there is usually a provision to exclude the public from such trials. Well known and time-honored principles of the criminal justice system may be dispensed with by such courts in the name of speedy trial.
The reasons for enacting such laws have always been to contain violence and for the “preservation of democracy.” This is so, whether in the case of the notorious Rowlatt Act or that of the Terrorist and Disruptive Activities (Prevention) Act 1985. Does the State really need a legislation to curb terrorism? Or is it simply enacting a new law which will provide a new framework within which it can unleash violence against dissidents?
Let us take a look at the latest encounters in Andhra Pradesh, said to have taken place in Narsapur, Warangal district, on May 28. Kavatam Saraiah, 25, of Shalevai, an accused on bail in a criminal case, goes to the house of his lawyer Prabha kar Reddy. The lawyer, who is leaving for Hyderabad that day, hands over the keys of his house and asks him to stay there,. Bhupati Reddy of Moranchapalli, 25, wanted by the police, decides to surrender in order to put an end to the harassment of his brother and father by the police. He also goes to the house of Prabha kar Reddy. The police raid the house and arrest both Bhupati Reddy and Saraiah, who are later shot in an “encounter.” The police did not need an antiterrorist law to take such action. The political objective (not translated into law), of rooting out extremism seems to have been sufficient justification for acting beyond the limits of law. However, a periodic renewal of legitimacy is required to maintain a semblance of democracy and at the same time, to ensure minimum participation by citizens in the affairs of the state.
Modern States are the worst depredators of human rights and the Indian State is no exception. Noam Chomsky and Herman have asserted, in their well-documented account of Third World fascism that “numbers tormented and killed by official violence wholesale as opposed to retail terror during recent decades have exceeded those of unofficial terrorists by a factor running into thousands. But this is no terror.” (The Political Economy of Human Rights Volume I).
“Law and order,” “public order,” ‘security of the state” are the powerful semantic tools in what Chomsky and Herman call “atrocities management” by the modern state. These terms have never yet become defined. The Supreme Court attempted to define them in Ram Manohar Lohia’s case but ended up describing them as concentric circles, the innermost being the security of the State. As the court is not concerned with the possibility of abuse of power, it ignored the reality of the crimes committed under the cover of these concepts. Discretionary powers over the life and liberty of people invariably degenerate into capricious judgments by the authority involved with no accountability to anybody. This irresponsible use of force has become a substitute for political solutions.
Political solutions to deep-rooted, socioeconomic problems have never been attempted with any measure of sincerity. The Indian State cannot assert with confidence that it has ever paid serious attention to its fundamental obligations contained in the chapter on Directive Principles of State Policy in the Constitution. The electoral politics pursued by the ruling Congress have largely been responsible for all the linguistic, communal and caste violence in the country. The violence against the rural poor continues unabated. No steps have been taken to reduce this violence, which is inherent in the social, political and economic structures in the countryside.
This structural violence takes the form of unfair wages, usurious moneylending, highly unfavorable terms of sharecropping, bonded and child labor and untouchability. Any struggle against this violence is met with private violence by the State, which intervenes in the name of law and order.
Landlords control the village panchayats, the cooperatives and the other institutional paraphernalia of development. Since the “Green Revolution” and the setting up of state sponsored development schemes, these institutions have become potent tools of oppression in the hands of the rural rich. Instead of modernizing medieval villages, these instruments of modernization have themselves been medievalized.
The management of elections and the use of force to contain discontent have been the major preoccupations of the ruling party for nearly two decades. The former produced distortions and led to the communalization and criminalization of politics and the latter habituated the State to the subversion of legal processes and violations of human rights. Mrs. Indira Gandhi ultimately became a victim of the law and orders syndrome which she so sedulously nurtured and promoted.
Her death left longstanding problems unresolved, in a more aggravated form. The recent detonation of violence in the north a legacy of the era that ended would have normally been met by a declaration of Emergency, the imposition of which can be justified even under the 1978 Constitutional Amendment. But “Emergency” has become a dirty word. The discredit it has earned still sticks to it. Fully understanding these connotations, the government introduced The Terrorist and Disruptive Activity (Prevention) Bill, 1985. It is confident that it would not encounter any resistance and in fact had the bill passed without any significant protest. The only democratic issue that was debated was the issue of Centre State relations when a Telugu Desam leader expressed his apprehension that the Centre might infringe upon his party’s right to state terrorism.
Thus, we have, by consensus, opted for State terror and have laid the foundation for the growth of an authoritarian structure without invoking the Emergency provisions.
What is important about the Terrorist Acts is what it does not define and what has not been spelt out. As we ride into the 21st century, we have added a few more terms to the existing vocabulary of ‘“‘atrocities management” “terror” and “terrorist activity” would ordinarily include violence and intimidation by the State as well. Now, in the works will have a restricted meaning, referring only to the retail violence of those who are opposed to the established order. And that is how people will begin to understand the word “terrorist” in the future. These words become powerful symbols to manipulate the public. By defining terrorists’ activity in a restricted sense, the State legitimates State terror which will always be characterized as responsive. The use of the mass media provides endless possibilities for dredging up incidents of violence against the State and selectively publicizing and projecting these to demonstrate their senselessness.
One such example which has influenced the views of many in the country was the telecasting of the recovery of arms from the Golden Temple after Operation Bluestar, repeated almost every day on T.V. That hundreds of innocent persons who had nothing to do with Sikh extremism were either killed or detained unlawfully and tortured was never in the news. The fact that children who had not even attained the age of discretion were detained as terrorists for long periods, did not receive any attention until Kamaladevi Chattopadhyay brought it to the notice of the Supreme Court by filing a writ. The government did not even file a counter affidavit, either denying the allegations or expressing regret.
The methods of torture used against young people did not come to light until, pursuant to a direction by the Supreme Court; District Judge Cheema of Patiala visited the prisons (Indian Express March 2, 1985). These are treated as incidental and inevitable injustices in a major operation to contain the threat to the State. Thus, the articulate public is being lobotomized by the State.
Violence by the State while enforcing this Act is placed in a special category. State violence under the cover of “law and order” and “security of the State” has been far more extensive in scale and destructiveness than private violence. It continues its course to ensure that there is no protest because its purpose is political. The population must be reduced to apathy and conformism because participation in decision-making will be viewed as a “threat to democracy.” Whether the State will succeed in this effort is yet another matter.
Human rights violations of the most abominable kind take place in this country. No union or group maintains the statistics of the violence. Killings in fake encounters, deaths in police custody, custodial violence and rape, torture, the blinding of suspects and illegal detention are crimes which are not taken note of, or if noticed, are handled with clinical detachment. The State, which has responded to terrorist violence with such speed, has never responded to this anomic condition of the State’s law enforcing agency. It has, on the contrary, been conferring awards and distributing rewards to the perpetrators of this violence. The security of the State, which the Terrorists Act seeks to secure, seems incompatible with the stability of the people.
The State has not been particularly concerned with terrorist crime per se, nor has it been concerned with broad terrorist programme or specific deeds. The terrorists have been far more important as a bogeyman. Once having created the scare, it is tempting to extend it to legitimate activities. Hysteria about dissidence would be so great that those honestly protesting against the abuse of the Act would be accused of being terrorists.
This is already taking place in Andhra Pradesh. Civil liberties activists who protest against the lawless conduct of the police are branded as Naxalites. They are arrested and intimidated and charged with supporting criminals and murderers.
By doing this, the State is attempting to enlist public support for its activities, deliberately sidestepping the real issue, namely whether the police are entitled to act as self-appointed executioners and dispensers of justice. Panic, fear and violence have always been the breeding ground for these repressive measures. There is nothing redeeming or democratic about them. Justice S.T. Rowlatt, who headed the Indian Sedition Committee (1917), found conspiracies all over the country. All forms of protest against misrule were seen as conspiratorial and seditious.
Pandit Motilal Nehru dealt with the Rowlatt Act in his presidential address to the Amritsar Congress in 1919. His exposition and criticism of it is relevant to a study of the Terrorist Act, 1985. He says:
“The Act supersedes the ordinary mode of trial by a special procedure, to provide for a speedy trial. This speed is achieved by doing away with commitment proceedings and the right to appeal, which in one word means speed at the expense of justice.” Parts II and III of the Act deal with two clauses on anarchical and revolutionary movements. Says Motilal Nehru: “The fact that a person is concerned with any movement either kind is, in the first instance, to be determined behind on his back, and later on, when his case is referred to the investigating authority, he has to be given an opportunity at some stage (not at all the stages) of the proceedings which are held in camera. The unfortunate person is not allowed to be represented by Counsel, he may not be told the name of his accuser, nor all the facts on which the accusation is based and is not, as a matter or right, to examine any witnesses or produce any document if the investigating authority considers it unnecessary. To crown all this, the investigating authority shall not be bound to observe the rules of law of evidence and there shall be no appeal from its findings.” He asserts: “But repression and terrorism have never yet killed the life of a nation, they but increase the disaffection and drive it underground to pursue an unhealthy course, breaking out occasionally into crimes of violence. And this brings further repression and so the vicious circle goes on. No one can but deplore violence and political crime. But let us not forget that this is the outcome of continued repression. It is due to the perversity of the executive which blinds itself to the causes of the discontent and like a mad bull, goes about attacking all who dare stand up against it.?
The similarity between the Rowlatt Act and the present measure is not surprising. The argument in favor of such measures then as now is that they do not affect the innocent and the law-abiding. The reply to that is that it is the executive that decides whether a citizen is innocent and law-abiding. The emasculated legal formalism, in the form of a trial, under the present Act fig leaf legitimacy ensures a drumhead court-martial where apprehension inevitably means conviction.
In the year of the centenary of the Indian National Congress, there has been a reversal of roles and that needs emphasis. Terrorism in the late 20th century is not merely romantic idealism: It appears to be the only way to focus the attention of the public and the State on issues which require urgent resolution. The modern State, particularly after World War II has become a technology oriented power structure with a vast capacity for manipulating public opinion. Through its control over the media, it is able to maintain and protect an exploitative and unjust system against any attacks from traditional forms of organized protest. It has rendered all traditional forms of protest effete by its impervious brutality and Dwyerian unconcerned for human life and values.
It is this systematic frustration of legitimate forms of protest by the modern State and its success (over the short run) in distorting and maligning the legitimacy of such protest that leads to terrorism. The State may arm itself with more extensive and more efficient means of repression and may seek to define more stringently the area of legitimate dissent. It would be naive to imagine that this Act of 1985 will reduce terrorism or terrorist activity. Law may at best mitigate but can never abrogate social disequilibrium.
(Courtesy Indian Express)