One Hour From Midnight

“The truth is rarely pure and never simple.�
- Oscar Wilde

With the tide of terrorism rising rapidly and threatening to submerge India in chaos, the glow of candle-light vigils and the intensity of the HMI or quartz lights in television studios are proving somewhat inadequate as visual navigational aids in strange waters.

Inevitably, the somewhat sluggish vessel of public opinion has lost its bearings and is drifting in the general direction of the enactment of 'tougher' laws, the creation of a federal agency to fight terrorism, and police reform and....military action against Pakistan.

Sooner than later, it will run aground on reality and tear its hull wide open....

Let us follow the direction of this drift and see where it takes us.

In a manner of speaking, it is reassuring to note that, the circumstances notwithstanding, some people are still talking about laws, tweaked or otherwise. It suggests that urban upper and middle classes in India are still wary of vigilantism. But then, these sections of Indian society have everything to lose if the bulwark of the law which protects them from the rapacity of the Great Unwashed were to be dismantled.

But tougher laws? Well, here again, upper and middle class India have been staunchly in their favour for entirely self-serving reasons such as the preservation of status quo.

One would have imagined that the societal memory of a country which, not so long ago, had witnessed executive excesses spawned by the suspension of the Constitution during Emergency and the consequent loss of the rule of law and due process, would have proved strong enough to ensure that they never occur again, ever.

But, memories fade. Wounds heal. Generations give way to successive generations. Some values change. Others, such as those shared by upper and middle class India, do not. And the refrain that rang through the land then can, once again, be heard faintly today: "Trains must run on time, must they not?"

And so, the dominant classes in India, are once again trying to prevail over those of their fellow countrymen who, at one time, had vowed that they would never allow the suspension of the Constitution again, and to convince them of the dire necessity for a disabling of some of its critical components through the introduction of harsher laws to deal with terrorism, deftly side-stepping the fact that there is no act of terrorism which is not covered under the existing laws – even though they may not make a specific reference to terrorism and/or terrorists.

The serfs, for their part, couldn't care less. They are doomed, laws or no laws.

One wishes that the government does, in fact, legislate into necessity the reading of the Indian Penal Code of 1860 (IPC) and the Code of Criminal Procedure of 1973 (CrPC) by all tax assessees in the country. They will find, that these codes are comprehensive and, consequently, have stood the test of time. As indicated above, the overwhelming advantage that these codes have is that they deal with just about any act that can be committed by terrorists -- and then some -- without getting mired in definitions of terrorists and terrorism, dicey at the best of times, and constitutionality issues.

The police may have a different take on the subject -- they tend to be distinctly wary about any tenet of law which makes it difficult for them to arrest people on whim, torture them, railroad them into jail or kill them and other such universally standard law enforcement practices. But that is neither here nor there.

Levity apart, it is crucial that upper and middle class India understand that if they clamour for more stringent laws, the government of the day is bound to heed them, sooner than later. After all, no political party or coalition of parties in India today can be trusted to resist a demand for a police state. And when that happens, the dominant classes are not going to like it one bit.

Look at the record: Attempts at enacting 'tougher' laws introduced purportedly to deal with terrorism have invariably proved ineffective at the very best and disastrous at the worst.

It all began in December, 1967, with the legislation of the Unlawful Activities (Prevention) Act, 1967 (UAPA), structured solely so as to address agencies or activities threatening the territorial integrity of India.

Parliamentarians cutting across party lines were of the view that the law should be limited in such a manner that the right to association was firewalled and the exercise of executive powers to intrude into the activities of the established political parties proscribed. Thus, UAPA was meant to deal exclusively with matters which represented a threat to the territorial integrity of India. By and large, UAPA (in its original and amended version) has served the nation well, primarily because it falls entirely within the purview of the Central list in the 7th Schedule of the Constitution and, along with the National Security Act, 1980, or NSA, are the only two terrorism laws to have survived changes in governments and social mores to this day.

However, it bears noting that the second Administrative Reforms Commission (ARC), in its eighth report submitted to the Prime Minister in July, 2008, has recommended an amendment to the NSA and the addition of a separate chapter to it. According to ARC Chairman Veerappa Moily, "A comprehensive and effective legal framework to deal with all aspects of terrorism needs to be enacted. The law should have adequate safeguards to prevent its misuse. The legal provisions to deal with terrorism could be incorporated in a separate chapter in the National Security Act, 1980."

In specific, the ARC has identified funding as crucial to the spread of terrorism and noted: "The new legal framework on terrorism may incorporate provisions regarding freezing of assets, funds, bank accounts, deposits, cash etc, when there is reasonable suspicion of their intended use in terrorist activities. Such actions may be undertaken by the investigating officer with the prior approval of a designated authority, subject to adequate safeguards."
Predictably, The Bharatiya Janata Party (BJP) has rejected the ARC report because, in the words of party spokesperson Arun Jaitley, "It's not a punitive law."

And then, there was the Terrorism and Disruptive Prevention Act (TADA), enacted in 1985, modified in 1987, renewed in 1989, 1991 and 1993, and mercifully allowed to lapse in 1995 following innumerable instances of abuse -- in specific, its misuse against the minorities, particularly Sikhs in eighties , and Muslims after the 1993 Bombay bomb blasts. It suffered from a plethora of deficiencies. Its title notwithstanding, the Act did not define the term 'terrorist.' It presumed that the accused was guilty. And , last but not least, it had a conviction rate of less than one per cent -- in spite of the fact that a confession before a police officer, even though given under torture, was considered admissible as evidence in court.

Although TADA has been a long time gone, hundreds of people arrested under it continue to be in incarceration to this day.

TADA was replaced with another 'tough' law called the Prevention of Terrorist Activities Act (POTA), first introduced in Parliament in the March, 2002, with the stated objectives, in the words of the then Home Minister L.K. Advani of ensuring an expedited trial of those accused of indulging in or abetting terrorism and curbing "state-sponsored cross-border terrorism." Parenthetically, one hopes that Advani was -- and is – not of the opinion that state-sponsored terrorism is just fine, as long as it does not come from across the border. Be that as it may, the objectives were not very persuasive -- the fast-tracking of trials can and have been achieved without the violation of the fundamental rights set out in the Constitution -- and the legislation was opposed vehemently by human rights organisations and right-thinking individuals who, quite rightly as it turned out, argued that POTA would be misused.

The government at the Centre changed, the Congress-led UPA assumed power and, on September 17, 2004, in consonance with its Common Minimum Programme, the Union Cabinet approved ordinances to repeal POTA -- and amend the Unlawful Activities (Prevention) Act, 1967, (UAPA) so as to transfer many of the penal provisions of POTA to it. Much to the chagrin of the advocates of POTA, the government further knocked off the notion of strict liability. Essentially, what this meant was that the burden of proof shifted from the accused to the police -- and UAPA did not provide for a presumption of guilt.

In 2004, the Unlawful Activities (Prevention) Amendment Act was passed. Nobody was wholly happy with it. The liberals were of the view that the Unlawful Activities (Prevention) Amendment Act, 2004, was basically POTA in disguise in that several POTA provisions were imported into it. The hardliners were miffed because they believed that POTA and UAPA were completely different even though they looked pretty much the same in dim light.

Finally, one arrives at a piece of abomination called the Maharashtra Control of Organised Crime Act, 1999, or MCOCA, introduced in 1999. This law, designed specifically to deal with organised crime in general and the Mumbai underworld in particular, oddly enough features a definition of "terrorist" considerably more elastic than the one in POTA. MCOCA can, perhaps, be referred to as POTA Plus.

As already stated, it has a fairly inclusive perspective on who a terrorist is. In addition, under POTA, the onus of proving a person guilty rests with the prosecution while, under MCOCA, the accused is presumed guilty unless he or she is able to prove his or her innocence. And then again, POTA stipulated the prosecution of police officers found guilty of its misuse but MCOCA does not.

One would have assumed that with this alphabet soup of tough laws being enacted, amended, allowed to lapse and so on whenever our legislators find the time and inclination to put in a bit of law-making, all terrorists would long since have fled India in fear and disarray. The evidence, however, is that they have not -- which should tell us something.

The above represents a purely pragmatic view of the matter.

On another, perhaps more important plane, we as a nation must understand what due process is all about and value it.

Simply stated, due process means that either everybody counts or nobody counts.

More elaborately, the term 'due process' (shorthand for 'due process of law') refers to the principle that a government must respect all the legal rights accorded to a person under the law of the land. In action, due process places limitations on laws and legal proceedings so that judges, as against legislators, guarantee fundamental fairness, justice, and liberty.

The question that we need ask ourselves at this stage is very simple: If we pass a welter of laws in which the rights of all individuals, including terrorists, mobsters who may be involved with terrorists and so on, are compromised in any manner or to any degree, we will regress to a level of inhumanity indistinguishable from that of the terrorists who, we all agree, do not represent the acme of civilization precisely because they subvert due process and the spirit that the idea represents.

Before tinkering with the law, should we not give some thought to Friedrich Nietzsche's warning that if you gaze into the abyss, the abyss gazes also into you? Actually, what Nietzsche said, in its entirety is "Battle not with monsters, lest ye become a monster, and if you gaze into the abyss, the abyss gazes also into you".... but we are really not in a situation in which we can say that we'd rather not battle with monsters.

(Perhaps the terrorists who attack India, whatever be their religious convictions, affiliations or attributed affiliations, may consider, in a spirit of bilateralism, mulling over another one of Nietzsche's observations: " A casual stroll through the lunatic asylum shows that faith does not prove anything.")

The irony is acute. Not many remember that New Delhi was the venue of an international gathering of over 185 judges, lawyers, and law professors from 53 countries tagged the International Commission of Jurists in 1959 with "The Rule of Law in a Free Society" as its theme. The New Delhi Congress defined the concept of the rule of law and developed the principles and procedures underlying it.
The Congress adopted what is referred to as the Declaration of Delhi which reaffirmed "the principles expressed in the Act of Athens adopted by the International Congress of Jurists in 1955, particularly that independent judiciary and legal profession are essential to the maintenance of the rule of law and to the proper administration of justice, and recognised that the rule of law "is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized;

We have come a long way from 1959 and the Declaration of Delhi -- but our national love of jamborees persists. Why, then, can we not have another conclave of the more intelligent members of the legislative, the executive, the judiciary and the legal profession and, of course, civil society to study and, where necessary, deep-harmonise the laws currently in force so as to make them effective in the management of terrorism?

Further, the meeting could probably consider the feasibility of adopting, with suitable modifications, the system of ‘vertical prosecution’ followed in parts of the USA.
Essentially, vertical prosecution entails the involvement of the office of the public prosecutor in the review of all requests from law enforcement agencies for a criminal complaint and, of course, the prosecution of all cases for which a complaint has been issued. The knowledge that a lawyer is looking over its shoulder at every stage of an investigation is usually sufficient to ensure that law enforcement agencies get religion.

But, meeting or no meeting, it is imperative that we ensure that the rule of law and the notion of due process which is embedded, as it were, in it, are not diminished, whatever be the provocation. We have enough barbarians at the gate….

One admits that, at this point of time, the whole idea of treating a terrorist as another human being with a set of rights tends to stick in the craw -- but an exercise of the nature outlined above will not be so much about the terrorist but about us as a society and its commitment to natural justice.

Pending a deep-harmonisation of the existing laws, it is equally imperative that we do not legislate "tougher" laws. If we do, the candles at the various vigils held by the citizenry will be extinguished, affording the protection of darkness to terrorism.

The demand for the creation of a federal agency to combat terrorism is also a precipitate one. The rationale underlying the demand is the lack of "coordination" among the various agencies, national and state, mandated to maintain law in the land -- and the bizarre conviction shared by the trendoids of urban upper and middle class India that anything American will work for India.

The lack of "coordination" is a fact -- and, as we shall see, one which is not going to vanish handily with the creation of a 'federal' agency.

To begin with, the trendoids are a bit hazy about what the term 'federal' means. Federalism describes a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units such as states, districts and so on. Quite simply, it is a system in which the power to govern is shared between national and state governments in a federation. It does NOT mean a centralised agency controlled by the Central government....of which we already have an inordinate number, none of them worth a damn.

When the advocates of a 'federal' agency argue its merits, they probably envisage a highly disciplined hierarchy of hard-body men and women dressed in designer combat fatigues, all working together in perfect amity and selflessness to maintain the integrity of the country. They must be off their meds....

If we do create a 'federal' agency, it will be headed a professional sycophant and will be as riven by religious, regional, linguistic and other equally bizarre considerations external to its mandate as any existing central or state level agency.

Given our national proclivity towards the farcical in administration, it will, in all probability, be called the Indian Terrorism Service (ITS) and placed under the administrative control of the Union health ministry on the grounds that the latter, through its public health programmes, has probably killed more people than terrorists ever have or ever will.

The upside is that terrorists will probably laugh themselves to death at the spectacle of Union Health Minister Dr Anbumani Ramadoss appearing on any television channel willing to give him air time, explaining his plans to ban terrorism in public places as it is injurious to health and seeking a humongous budget allocation for them.

The creation of a 'federal' organisation of this sort will exacerbate tensions and escalate turf wars between state and central intelligence agencies, the police and so on and will eventually result in a situation in which all of them will talk to their respective political bosses -- but not to each other.

It will further throw up a whole bunch of piquant administrative issues. How much will the ITS people be paid? Will they be paid more than the Intelligence Bureau, Research and Analysis Wing wallahs? More important, will they be paid more than the terrorists who come through as high-maintenance people with a substantial income and a commensurate penchant for exotic and expensive purchases? If they are not, they will promptly resort to rent-seeking, an academic term for what the Prevention of Corruption Act, 1988, refers to delicately as ‘largesse.’ The Wikipedia, which is not constrained by Emily Post’s charming homilies, says that, in economics, rent seeking occurs when an individual, organization or firm seeks to make money by manipulating the economic and/or legal environment rather than by trade and production of wealth. The term comes from the notion of economic rent, but in modern use of the term, rent seeking is more often associated with government regulation and misuse of governmental authority than with land rents as defined by David Ricardo."

Security Advisor M K Narayanan, who has shown a commendably bureaucratic disinclination to fall on his sword after the Mumbai massacre and who, as head of the Intelligence Bureau, had earned a considerable reputation among other spooks as the author of intelligence reports which were not merely non-actionable but also unintelligible, couldn't have put it better.

While we are on this subject, it is interesting to revisit a prophetic article written by Maj-Gen Ashok K. Mehta (Retd) in The Tribune (February 03, 2005) titled: "Weak national security system - An opportunity to overhaul is missed."

Maj Gen Mehta has fought in every war and counterinsurgency operation that India has engaged in between 1957 and 1991 when he retired. He is one of two officers in the Indian Army to train in both the US (Fort Leavenworth) and the UK (Royal College of Defence Studies).

In his article, he wrote: "It took just three weeks and several rounds of consultations by Prime Minister Manmohan Singh with security experts to confirm Mr M.K. Narayanan as the National Security Adviser (NSA). The furious debate over the infirmities in the National Security Council (NSC) and the role of the NSA ended in a whimper, alas missing an opportunity to overhaul the national security system."

"Although the role and functions of the NSA have not been spelt out, presumably he will be the security adviser to the Prime Minister and not the NSC as originally envisaged. The person in the post of deputy to the NSA who, in fact, began as coordinator of the NSC Secretariat will also be changed shortly. Separate emissaries are being appointed for strategic dialogue with Pakistan and China, previously the domain of the NSA. If that was not enough, a foreign advisory council is expected to be established to assist the Prime Minister to animate foreign policy. "

"So how will Mr Narayanan, an intelligence security specialist, fit as the driver of India’s national security? It seems far from untying old knots, new ones are being created. We are appointing individuals without nurturing the existing institutions. We are trying to fit a US presidential national security apparatus to a parliamentary system which also suits the Prime Minister of the time.. "

Precisely.

Let us now look at the demand for military action against Pakistan raised by those who've been overdosing on Tom Clancy.

The demand is a truly pernicious one for a multiplicity of reasons other than the obvious one: loss of life and immense suffering.

Those who sit in television studios and talk knowingly of surgical strikes, hot pursuit and the rest of it don't have a clue what they are talking about.

They speak from a position of reckless disregard for the fact that the world economy is in the grip of a recession and that India too is inevitably in for a very rough ride indeed, the soothing noises made by the government notwithstanding. Everybody, other than the Tom Clancy acolytes presumably, knows that the most effective means of reviving a faltering economy is war. If there's one thing that history has taught us, it is that there's nothing quite like a spot of good, old-fashioned bloodletting -- other people's blood, course -- to revive demand for a whole range of goods and services, channelise the tax payers' money into private pockets and eliminate displaced labour in the most drastic manner imaginable. If the television studio warriors keep up their clamor for action, Big Capital will be able to leverage "public" demand to persuade the government into a course of action which everybody, except Big Capital, will regret. Incidentally, this applies, in spades, to Pakistan too where the army and its personnel constitute Big Capital of an especially predatory kind.

Even as we speak, a television channel belonging to an exceptionally profit-driven media group is engaging in prime time jingoism of the most virulent order. Till recently, it was acting as the public relations agent to the National Security Advisor, reporting, among his other brilliant insights, the one involving the deployment of terrorist funds in the bourses. Yaaaawn. However, after he was caught nodding when the Mumbai massacre occurred on his watch, the NSA has discreetly gone off the air and the steady reportage of his views has been replaced by the television channel with anti-Pakistan reports, attributed to American "sources," presumably in the lame-duck Administration, which are intensely inflammatory and well beyond the ambit of responsible journalism.

It is possible that the channel is driven by skewed patriotism -- but not probable. The media in India is owned by Big Capital and represents its interests. There is only one way in which a democracy committed to the freedom of expression can curtail rogue journalism which serves private as against public interest: through the power of boycott. If the Television Rating Points (TRPs) start falling and the advertising income slows down to a dribble, the channel in question can be counted upon to develop a revised, somewhat more balanced, perspective on patriotism. But that’s not going to happen. Tele-voyeurism is here to stay.

And then again, the moneybags who are so bent on sending other people to their deaths must realise that they too are vulnerable. Pakistan is a country with a nuclear arsenal. India opened that particular door and we can't close it now. Moreover, it is a country in which the elected government is not all there, so to speak. Push it to the wall -- and Big Capital will know at first hand that it glows as much in the dark as the infantry foot slogger.

Finally, plain common sense suggests that it pernicious in the extreme to tempt a government with war in an election year. The dangers are too obvious and manifest to require elaboration.

The Pakistan government too must surely understand that this is not the time to play chicken with the Indian government.

So...what does one do?

This writer, for one, doesn’t have the foggiest, possibly because he is neither a television news anchor nor a talking head nor the National Security Advisor.

All that he knows is that India and Pakistan are caught now in that dread time: One hour from midnight.