Thursday, June 20, 2013

Spare our Constitution, professor!

Professor Saswati Sarkar's opinion piece at NitiCentral about the Ishrat Jehan killing has created a bit of debate. The arguments presented however, are riddled with self-contradictions and flawed assumptions. 

The heart of her piece is a demand that security forces should be allowed to stage encounters to kill terror suspects, including Indian citizens, without a trial.

Why does Prof Sarkar believe that staging encounters is better than a fair trial? Here's her reasoning in her own words: 
1. "The police could surely have arrested the terrorists and produced them in court. In due course, they would be sentenced to jail terms and our consciences satisfied. Not quite, since before the act is perpetrated, the law enforcers rarely have evidences that would stand legal scrutiny."

2. "Corroboration  of the intelligence input in a court of law would violate the anonymity the sources deserve."

Let's look at her second assertion first: a trial in court "would violate the anonymity the sources deserve". 

First, intelligence doesn't only come from human sources. In fact, in the Ishrat Jehan case, which Prof Sarkar bases her entire piece on, information about the planned terror attack came from intercepts of the LeT's communications. This has been stated by none other than Rajinder Kumar, a senior intelligence bureau officer, whose questioning by the CBI has left Prof Sarkar 'troubled'. 
Second, even if the intercepts came from a human source within the LeT, the anonymity of that source can easily be protected by holding an in-camera trial. In fact, closed-door trials have been used in the past in Indian terror-related cases. Most notably, three senior NSG commandos were allowed to depose in-camera during the 26/11 trial to protect the techniques and skills used by them to eliminate the terrorists. There is simply no reason to assume (as Prof Sarkar has) that this protection won't be extended to future terror cases, particularly when it comes to sensitive techniques and sources. 

Now let's look at Prof. Sarkar's first assumption - that law enforcement authorities would "rarely have evidences that would stand legal scrutiny". This is by far the most bizarre and troubling assumption she makes. So let me say this as clearly as I possibly can. 

If, as you say, dear professor, the evidence won't stand up to legal scrutiny, how can you even think about labelling any person, much less a citizen of India, guilty AND have them executed in a staged encounter?! 

So why should we worry about legalities? For starters, the right to a fair trial is guaranteed by the Constitution (and the Code of Criminal Procedure and that pesky Universal Declaration of Human Rights, which India was among the first to ratify). 

But let's not be moralistic in our approach. Here's a more pragmatic concern for pro-'encounter' hawks on the Right. What if a "secular" government one day declared that it had discovered a plot by a "Hindu terror" outfit, and had eliminated its members after utilising the same "checks and balances" that Prof Sarkar prescribes? In fact, what if this was the fate that befell Sadhvi Pragya, who stands accused of one such terror plot? 

How would we know the truth behind the allegations? Would we simply have to take every government's word at face value? Would you be comfortable knowing that tomorrow, any government - BJP, Congress, or otherwise - can drum up terrorism charges against an individual and have them executed without a fair trial?

Prof. Sarkar's prescription also severely undermines a principle of jurisprudence that has, for good reason, been held sacrosanct for centuries: the presumption of innocence. In 2011, the Supreme Court of India held that this is akin to a human right. “It is equally well-settled that suspicion, howsoever, strong can never take the place of proof,” said a bench headed by Justice Dalveer Bhandari.

Prof. Sarkar's tailpiece is also interesting because it raises the oft-repeated canard that there have been no terror attacks directed at the US since 9/11. Perhaps she forgets what happened in Boston. Or what happened on NWA Flight 253, or AA Flight 63 or at Fort Hood or at Times Square, New York. Two of those attacks succeeded. The three that failed had more to do with the incompetence of the would-be terrorists than any action by security agencies to stop them. At any rate, all the attackers were arrested and tried and sentenced. None were executed in a staged encounter like the kinds Prof Sarkar would like to see legalised.

Of course, it would be wrong to suggest that the US has not been far safer than India since 9/11. Primarily, this is because America has decimated the ranks of terrorists leaders and forced others to go underground, making it nearly impossible for them to coordinate large-scale attacks. The result is the lone-wolf attacks like the ones I noted above, the recent murder of a British solider on the streets of London, and the attempted murder of a French solider in Paris just days later.

In response to this point, Prof. Sarkar mentions the killing of Osama bin Laden by US forces in Pakistan. This is a terrible analogy for three reasons. 

One, unlike an Ishrat Jehan (or, heavens forbid, a Sadhvi Pragya), Osama bin Laden was not a citizen of the country he had attacked. He was a foreign terror leader actively engaged in a 'non-state' war against the United States. In fact, the Obama Administration faced a legal challenge in the one case in which it knowingly executed a US citizen without a trial.
Two, bin Laden has claimed direct responsibility for attacks that have killed dozens of US citizens, including the 2000 bombing of the USS Cole in Yemen and the 1998 bombings of US embassies in Tanzania and Kenya. 
Three, bin Laden continued to call for and support acts of terrorism carried out against US citizens, remaining a persistent threat. 

A more apt analogy for bin Laden would be Hafiz Saeed. However, the reasons why India cannot carry out a drone campaign or send special forces teams into Pakistan are well understood. 

Prof Sarkar would do well to re-examine the assumptions she makes in the construction of her arguments. As for her 'cure', as I have noted, it may well be worse than the disease. 

I felt I should add what I believe would close some of the legal loopholes that Prof Sarkar is afraid of with the current system. 

 Certainly, India could use special anti-terror courts. These could have the resources and capacity to rapidly try and sentence terror suspects. Judges and lawyers who work there could receive special training on things such such as terror financing laws, international anti-terror treaties, and they should have an inclination towards security matters. For example, the judges would be sympathetic towards an in-camera trial when intelligence sources are discussed. I think that would make Prof. Sarkar happy as well.

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