First Person | Dangers of Law

Sometimes the saviours turn into villains

Ghazala WahabGhazala Wahab

A few weeks back, American author and professor of journalism, at the University of California, Mark Danner wrote an essay in the New York Review of Books compiling the stories of the terrorist suspects who were incarcerated outside Guantanamo Bay in friendly countries under the US GWOT (Global War on Terrorism) policy of extraordinary rendition. Once these suspects – including the well-known Khalid Sheikh Mohammed (KSM), also accused of killing American journalist Daniel Pearl and handed over to the US by Pakistan during Musharraf’s tenure – had confessed to whatever they had to, they were deemed of no further value and were transported to Guantanamo to await trial where in October and December 2006, the International Committee of the Red Cross (ICRC) were given access to them to record the stories of their terms and treatment at these various prisons. These confidential records were meant only for the senior officials from the CIA and not for dissemination to the public. Finally, the ICRC report was submitted to the acting general counsel, CIA, John Rizzo on 14 February 2007. Sometime back, Danner came across this document.

The stories that he narrates are chilling and the treatment meted out to the prisoners shocking, not because of the cruelty involved but because according to the then US President George W. Bush, these procedures were vetted by the US Department of Justice which deemed them lawful and not amounting to torture. The procedures included regular beating, water boarding, collaring of the neck, denial of clothes and starvation. Yet, none of these amounted to torture. But clearly, they must have inflicted some suffering on the suspects for them to sing enough for the interrogators to get convinced that there was no further need to hold them back.

Criticising the Bush administration is not the point of this article. Worse things happen in other countries, including our own, where disappearances, custodial deaths and encounter killings now induce such a sense of ennui that we don’t even pause when we come across such news in the newspapers and sometimes even gloss over them. The victims are no longer human beings but statistics, which do not move us because the people affected are either criminals (hence deserving such treatment) or unfortunate poor who we are unlikely to ever meet in normal course. We draw comfort from the fact that our democracy is a big bulwark against all kinds of power-driven ills that ail totalitarian societies. We take pride in the fact that our democratic government, coupled with a free and socially-driven media as well as independent judiciary collectively ensure that ordinary citizens are protected against human rights violations, torture, injustice and other such offences which a totalitarian state can and is often tempted to indulge into.

While all this may be true, another disconcerting fact is that despite all its blessings, a democracy, including ours is no guarantee against draconian measures, which our government, both at the Centre as well as in the states, allows to be carried out in the name of security. People can be arrested without charges (one high profile example being Dr Binayek Sen who has been in prison in Chhattisgarh without bail for two years even as police keeps asking for more time to furnish enough evidence against him), tortured or even killed in cold blood if the government or its law enforcing bodies deem so and all of this under the rule of law.

Laws like Unlawful Activities Prevention Act, Disturbed Areas Act, Armed Forces [Special Powers] Act, Maharashtra Control of Organised Crime Act and Officials Secrets Act among others give the law-enforcing agencies like the police (and in case of AF[SP]A, the army) unrestricted powers to detain people for an extended period without formally filing the charges or even registering the detention in their records. While this may help in ensuring conviction of some criminals and terrorist suspects, the very nature of these laws make them hugely susceptible to misuse by vested interests, which can either be individuals in law-enforcing agencies or even the state. After all, the now infamous Maintenance of Internal Security Act was used by the Central government in the 70s to defang the Opposition. Prevention of Terrorism Act was also grossly misused. Such was the notoriety of POTA that allowing it to lapse became one of the achievements of the government. And gross misuse of OSA is no secret either.

Yet, despite all this, the enforcement agencies still demand stricter laws as do some politicians. Succumbing to these pressures, the government strengthened the UAPA after the Mumbai attacks without including the provision of confession made to the police admissible in the court of law as was the case in POTA. However, critics argue that confession to the police is admissible in the courts in other countries. Perhaps, but given the propensity of our officials to use such provisions in the law as a short-cut to proper investigation, by making confession admissible we will only be legitimising torture. Given that it is the law of the land that can protect or harm the citizens, every time we add a tooth to it, we have to be very careful about who it may bite.


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