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Civil libertarians must thank their lucky stars that POTO was drafted before
the Americans began to borrow heavily from the Taliban system of justice
— remember Abdul Haq’s summary execution? — to opt for kangaroo courts to
try suspects and consider the use of torture to save western civilisation.
It is very much on the cards that our saffron government would have lost
no time to argue that if the ‘land of the free’ can have such laws, why
not India?

In the US, torture is being seriously considered in the cases
of what has been described as the ‘ticking bomb’. For instance, if a suspect
is caught after the discovery that a bomb has been primed for explosion
— or a plane is heading towards the White House (which the terrorists had
missed on September 11 because they couldn’t see it among the trees) — can
the man be tortured to extract vital information?

In India, the ‘hard’State brigade comprising L.K. Advani who is today’s Sardar Patel in a rusty
armour; Arun Shourie, a former editor who has carried his pamphleteering
skills from journalism to the Hindutva camp; Arun Jaitley, the ABVP kid;
K.P.S. Gill, the ‘saviour’ of Punjab, and others will probably answer in the affirmative.

In a pre-September 11 film, The Siege, martial law is
declared in the US following attacks by Arab terrorists. When Bruce Willis,
an army commander, orders that a suspect be tortured, Denzel Washington,
an FBI agent, protests but is asked to leave. Later, when army excesses
lead to a change of course in official policy and Denzel Washington takes
over from Bruce Wills, he tells him the standard line from criminal jurisprudence
while arresting him: You have the right to remain silent...

As anyone
who has read detective fiction knows, the customary caution which a police
officer imparts before clamping handcuffs on a man is: It is my duty to
warn you that anything you may say may be taken down and used in evidence
against you... This routine procedure is incorporated in the Fifth Amendment
of the US Constitution which prevents a man from incriminating himself in
a court of law.

All these safeguards, including habeas corpus, have evolved
over centuries (habeas corpus dates back to the Magna Carta of 1215) to
protect an individual from the tyranny of the State. To the fascists, however,
all this is balderdash. Their argument is that if the terrorists can break
the law, so can the State.

But the reason why the State itself has provided
these safety catches in all democratic constitutions is simple. It is that
once a State violates these provisions, it will always look for ways to
do so even after the original danger is over. Bad habits die hard. It is
worth remembering, for instance, how the rough ways of the Punjab police
had survived the days of terrorism there.

Once when K.P.S. Gill, the ‘saviour’
of Punjab, was addressing a press conference in New Delhi on hockey, a Statesman
reporter had the temerity to ask him a few uncomfortable questions. What
happened next was instructive. The guards of Mr Gill, the saviours of the
‘saviour’, bundled the unfortunate reporter into a jeep and started driving
towards the Punjab border. The terrified man feared for his life till the
guards suddenly let him go. Subsequently, Mr Gill went to the Statesman
office to apologise.

There are two reasons why a harsh law like POTO is
unsuitable for Indian conditions. The most obvious is the dismal reputation
of the police. From the description of the force as ‘corrupt and oppressive’
by the Police Commission of 1905 to the remarks of Justice A.N. Mulla of
the Allahabad High Court half a century later to the effect that ‘there
is not a single lawless group in the whole of the country whose record of
crime comes anywhere near the record of that organised unit which is known
as the Indian police’, the image of the police has remained a murky one.

Recently, another verdict by the same High Court noted that “we would certainly
say that often innocent people are murdered by the police in the name of
encounters...” The court also accused the police of “committing dacoity,
theft, forcible extraction of money, rape, blackmail and even murder in
the name of encounters”. It is no secret that ‘encounters’ were widely resorted
to by the police during the Naxalite agitation in West Bengal and the terrorism
in Punjab.

In a letter to the editor of The Indian Express (June 5, 1997),
a doctor from Amritsar pointed out how he had been harassed by the police
for two years with the filing of false cases against him in addition to
being threatened with ‘elimination’ because the “only fault of mine was
that I was not giving false post-mortem reports on the stage-managed encounters”.

These ‘encounters’ evidently reached shocking proportions in Punjab as the
secret cremations of as many as 2,097 people, as noted by the CBI, showed.
The person who found out about these funerals, a human rights activist,
Jaswant Singh Khalra, disappeared after his chilling discovery.

However, even before POTO was conceived, Advani had the bright idea of amnesty for
the policemen found guilty of human rights violations. There is no doubt
that such measures will further brutalise an already brutal force. But it
is not only the ‘corrupt and oppressive’ administrative culture of the police
which should warn against empowering them with draconian laws, the bona
fides of their political masters in favouring such steps have also to be
taken into account.

It has to be noted that India has a home minister
who is facing serious charges before an inquiry commission for the demolition
of a place of worship belonging to a minority community. He and a host of
others in his party belong to the political fraternity which, day in and
day out, castigates the minorities for being less than ‘Indian’ in their

Their prejudices are also discernible in their unusual softness
towards any transgressions committed by a constituent of the saffron brotherhood
— whether it is the digging up of a cricket pitch or the burning down of
a hospital or the forcible entry into a makeshift ‘temple’ in violation
of judicial orders or rampant vandalism in a world heritage site.

Advani’s own tunnel vision was evident immediately after the Graham Staines murder
when he went out of his way to give a certificate of merit to the Bajrang
Dal. He was also blissfully oblivious of the riots during his Somnath-to-Ayodhya
rath yatra, as his evidence before the Liberhan Commission showed. Clearly,
he is not the right person to hold a responsible position in a pluralistic

A government and its leaders must be deemed to be fair if a legal
measure initiated by them is to carry credibility. Otherwise, it can only
have legal and not moral validity, as was the case with much of what was
enacted during the Emergency. POTO may or may not have been thought of with
the UP elections in mind. But the very fact that such a conclusion is automatically
drawn is indicative enough of the misgivings about the government’s motive.