Terrorism and Judicial Reforms
Shivanand Kanavi interviewed Justice Hosbet Suresh (Retd) recently regarding several topical issues regarding terrorism and the law and urgent reforms required in the judicial system in India. Here are excerpts:
Shivanand: Justice Suresh there are several topics I want to cover in this conversation for my education as well as others. There is an argument that has been put forward for more than 25 years in India, that to deal with terrorist acts or terrorism we need laws which are so-called stronger than the current penal code and procedures. This justification has been given to enact special laws for preventive detention earlier and later TADA, POTA and MCOCA. This argument is again and again being put forward after the November Mumbai terrorist attack. It is said that for the Kasab trail we needed and MCOCA since IPC would not have helped. What is your view on that?
H Suresh: I remember, years ago when TADA was dropped, repealed in 1995, there was a seminar at the Tata Institute of Social Sciences where the top police officers, including Padmanabhayya who became later Home Secretary at the Central government, (for sometime he was also in charge of North-East) were present. He said, we cannot control the situation, unless there is a harsh law. I asked him, “what do you mean by ‘harsh law’. Is it a law that allows cutting your hands, cut your nose, allows confessions by use of torture, special procedure for the trial”!
The statement that you want a ‘harsh law’ has nothing to do with the act of terror, what you want is means to extract confession. This is fundamentally against our criminal jurisprudence. Our criminal jurisprudence has a very good feature, namely, any statement made to the police is not admissible by law, because you don’t know what the police have done to extract it. No confessional statement made to the police is admissible in law because we don’t know what happens in the police station. If at all the criminal wants to make a confession, he has to be taken to the magistrate under section 164 in the CrPC and the magistrate should be satisfied. Normally when the Magistrate records a confession he will send the police out. Then he will ask “do you want to make a confession? Has anyone induced you? Are there any problems; is there any pressure by anyone?” I found many cases where the magistrate says – no I am not recording go back. That is the procedure recognized under our criminal jurisprudence.
After this, the case goes before a sessions judge, a higher court, the case might rely on the statement. But again the accused can retract his statement, he can give any reason and in that event the judge will not rely on the statement. Even if the prosecution relies on it, the magistrate who recorded the confession is summoned and he will give evidence in the court. The magistrate can be cross-examined. These are safeguards because our experience shows that whenever power is given to the police to extract confession, they always use pressure. Pressure need not be only at the police station, pressure could be elsewhere. In Bombay in the bomb blast case, when they recorded all the statements of the accused, that was done cruelly, which you cannot describe in words. I wrote an article, where I said, “this is not 3rd degree, this is 4th degree”. They brought women folk from the homes of the accused. Brought them to the police station stripped them naked and said you think over it, otherwise we will engage in all sorts of acts. Then many gave their confessions. But in all such cases what happened was they went back to the prison and stated that this is how our statements were recorded under pressure. Therefore, you cannot use this kind of procedure at all.
When TADA was challenged in the Supreme Court with a very important case called Maneka Gandhi’s case, where the Supreme Court said, “not only the law must be just, but the procedure should be just as well”. Here the law itself is harsh and the procedure is equally harsh. Rarely in any TADA cases have the judges relied on the confession to convict the accused. In 98% of the cases they have not accepted the confessional statements.
SK: Nowadays, increasingly, SMSes, mobile transcripts, conversations which have been tapped, emails which have been tapped, or even the narco analysis etc are being cited as evidence in the media. Is that admissible under law as evidence?
HS: How do you admit a video recording as evidence? There are guidelines on how to record. I have conducted in a case, the Shivsena case, I am talking of 91’ elections, when Shivsena had recorded a video tape, which they displayed in different booths. A tape consisting of so many things about Hindu religion, Hindutva, and Bal Thackrey’s provocative speeches. There was no TADA at that time. In the court, a TV set was brought, the Tape was put there, and a metre was kept. Metre started at point number 1, goes on to a certain point and in between we have seen the following scenes. 1, 2, 3 …4 they have a record, and then they again started. What was the conversation…record. The transcript was prepared. How do you prove this was shown? The witnesses who have seen must come. The candidate challenging Shiv Sena brought his witnesses. So they were questioned if they would be able to identify what they see. They said yes. So again we start the same video tape and he will say yes this is what I saw. When you went there what was the scene that was going on? He will say ok at this point, and then we stop there. Witness identifies at this metre reading and the picture is of this scene. How long you were there? For ten minutes. What was the last scene you saw? This was the last scene. Nine times I had to display that in the court. It was a tedious job, but we did it.
As far as the Narco test is concerned. We have always felt that it is torture. We record evidence, it is a sort of statement, the person is not completely in control of his faculties, so in law that is not admissible. However, the question was how to get a statement by this, but this is an act of torture and you cannot do that. The court did not agree on that, still the matter is pending in the Supreme Court, there are 2 matters pending, one saying that Narco analysis could be allowed. But there is another matter also. And the judges have not given their ruling. Recently another petition has been filed challenging the Varun Gandhi case, the court will decide and that is also pending. I always felt, Narco analysis is infliction of torture. Torture has been defined in the international covenant as inflicting pain to extract information. This is what the police are doing, that is torture and torture is banned! Even our government has said and this is a not right! This right you cannot even repeal or take away. It is an important right, but courts are not observing, they are not taking it into account. It depends up on the matter under investigation. In most of the cases in India there are very few trained persons who know genuine investigation, most of them only know beating, torturing and so on. This is the sort of investigation that is being done!
After the TADA law allowed extraction of confessions, the police have lost the art of investigation. They think all cases can be solved by torturing and getting a confession. Conviction in TADA law is only 1.8% because the court would not accept that kind of statement. This whole thing is an exercise in futility and there is no sense in having that kind of law.
SK: I was informed that even in Guantanamo Bay, where terrorist suspects have been kept by US, despites being tortured for almost 8 years hardly 1% or 2% have been brought to trial.
That means, whatever has been obtained through a confession, even if it is made in front of a magistrate, and not in a lock up, it is just one piece of evidence. You need additional pieces of evidence to prove a terrorism charge.
HS: Actually it is a weak piece of evidence.
You need all kinds of corroboration and witnesses and so on and so forth to make the state’s case strong. You cannot rely on confession as a sole piece of evidence. However it seems to have been the main piece of evidence presented in terrorism related cases. If there is a diligent judge, they fail.
SK: By the way, is this a part of the English law that we inherited? - This issue of judiciary mistrusting the police and their methods.
HS: There are two views there. In England and even in America a confessional statement made to a police officer is admissible. But there they say that you don’t have to make a statement against yourself, but if you do, we will record it and use it against you. In India, however even during the British times, a statement made to the police is not admissible. So, the law itself, doesn’t trust the police. I would justify that.
Even in Kasab’s case some people raised in newspapers, ‘why should there be a trial, the whole world has seen what he has done, so he should be hanged’. I posed a question to the students, when I was lecturing on Human Rights, I said what are the human rights involved in the case of Kasab? I told them – article 9 and article 14 of ICCPR (International Covenant on Civil and Political Rights). Right to fair trial is a human right. They are all there in the ICCPR, our criminal jurisprudence by and large includes all those principles. We are making aberrations now, because we have failed in the evidence department.
There is one provision in the evidence act, section 27, if I am not mistaken, that a statement made by the accused to the extent that it leads to the discovery of a weapon or anything of that kind, can be admitted. For example – if a murder takes place with a knife, the murder weapon has to be found by the police, which will determine the measure of the wound, it would contain finger prints and so on. But you don’t know where the weapon is hidden. But at the police station, suppose the accused is willing to say where it is, then the police will record his statement, which will be in a form of a panchnama, in the presence of two witnesses. ‘I so and so know where this weapon is kept and I further say with which I committed offence’. This is again not signed by the accused but by the two panchas. Later when the case goes on, the panchas will have to be called as witness. They will have to say, ‘We were called to the police station where the statement was recorded by the police and we have signed’. But is the whole statement admissible in the court as evidence? Answer is – to the extent that the weapon is hidden, that part is admissible, but “with which I committed the murder”, is not allowed. So, judges like me, when that is given, we look into it and we tell the prosecutor, look this part is admissible and the other part is not, we put a bracket. So, only part of the statement is admissible and the weapon has to be recovered and panchas have to be there at the time of recovery also.
At a police station, to extract this information, torture is used. Sometimes weapons are also bogus, so they do a whole drama and go with the panchas and recover the weapon and make the accused sign a statement. Suppose a knife is used and has the blood stains of the victim. What they do, the knife and the blood soaked shirt are sent to the laboratory for forensics, the knife and shirt are sent together, and so from the shirt itself the blood could transfer. So, it’s also important how they were sent to forensics. The constable will say I packed them together and sent. Then we won’t accept that. But to get this done they inflict torture.
SK: Suppose there is a terrorist act – there is a bomb blast or whatever; there are witnesses who can say some things. Or there may be circumstantial things like it happened in the 93’ case, where they said something was hidden in a scooter and so on and so forth. Someone is caught and followed up and somebody confesses. But there is another aspect to terrorism and terrorist laws which is being talked about a lot, which is to do with preventing terrorist acts.
For example they say US has managed to prevent a terrorist attack after 9/11. It is given as a shining example for all states. They say they have been able to do it by stopping conspiracies, even UK has done that. They claim to have busted some sleeper cells and all kinds of things. In these instances it is purely based on confessions and maybe some other evidence, they will say we recovered a laptop and emails and so on. So, what is your view on that kind of a thing? Conspiracy by definition is something that is hidden so it is not documented.
HS: Well, it is a difficult thing to prove. But prevention of a crime is not only a matter of law, but more a matter of vigilance. If they need to arrest someone then of course the law is needed. There are provisions in the criminal procedure, if someone is likely to commit crime, 151 CRPC. If a police officer thinks he is likely to commit an offence, he can arrest him. The limit in that case is, he must prove it before the magistrate within 24 hours. If there is no justification the magistrate will release the person. So, it is vigilance plus law. Enough laws are there if they want. Years ago I wrote an article, Sec 151 is worse than TADA. In all cases where a poor man protests, he is arrested, then after a few hours he is released, under what law?-Under 151. The police will say he was going to commit an offence and put him in the lockup. This kind of thing goes on.
There is a poet in Hyderabad, Varavara Rao, he was detained over 13 times under 151. He was always let off on the 23rd hour. When he wanted to challenge, the court said, what is the need, you are free now.
How do you know by looking at a face that the person is capable of committing a crime? It is bound to be misused. Anyway there are many provisions that can be used. They don’t need a special law for doing what they want. A new law they have brought is the Unlawful Associations Act, preventive act. It has been used against SIMI. It is not that all of them are breaking the law, they are all members of a particular group, one or two may have indulged in some crime or even a bomb blast. But you round up people because of that association, that is fundamentally wrong.
SK: I have met and had discussions with some of them long back before they were banned, their ideas seem crazy but that doesn’t mean they are terrorists.
HS: Nowhere in the world, terrorism has been controlled by law. Even in England and America, they might have brought any kind of law, but they could not control terrorism by law. It can only be controlled by vigilance and general improvement of the society.
SK: Recently in Pakistan, before the offensive against the Taliban an agreement was made in the SWAT valley. They also have Macaulay’s law, in which there is a long delay. So they wanted these quick courts where many things are settled at community level. The current justice system is not giving them justice or it is delaying it so much that people are looking for some alternate dispute settlement mechanisms. At times people could even go to a local dada.
HS: Varadarajan did that in Bombay, he used to conduct regular courts. I was the judge at the city civil court, I resigned and started to practice at high courts, could not do lower courts. One day one party came to me with an appeal at the high court. What had happened is he had been ordered to vacate, he and his children. He had lost everywhere and hence came to the high court. I told him sorry you cannot succeed, you will not get anything. But we still filed it, but we told him that nothing could be done. After about 10 or 15 days the policeman came with the landlord to throw him out. He had no place to go, so he went to Yusuf Patel (a well known under world element). He asked the landlord how much he would get if the man vacated, he said 6 lakh. So Patel told him to give 3 lakh to that man and he would vacate. We could not have done that in court, we could not have compelled the parties to come to such an agreement. At the same time we cannot depend on such individuals for justice.
SK: You have seen the Indian Judicial System for 5 decades or more than that and there have been many attempts to reform it. People’s complaints are well known about the delay. You have said time and again that there is no piece meal solution. But still, looking at the current situation, what do you think needs to be done by any rational government?
HS: First thing we have to do is to increase the number of courts. It should be doubled or tripled straight away. In the 1987 law commission report, they said the total judge strength was around 10.5 judges per million commoners. They suggested that it should reach at least 50 judges per million populations and by 2000; this number was raised to 100 judges per million populations. Now we are in 2009, what have we done? Our judge strength is around 13 or 14 per million population. This is totally inadequate. In America it is nearly 200 judges per million population. One of the things which was suggested years ago was to run two shifts in courts.
I went to Philippines many years ago, in the capital Manila, in the magistrate’s post there are two shifts, one in the morning, and one in the afternoon. Morning starts at 9-9:30 and goes on till about 2 or so. And second from 2 to 8:30. So, you get double the courts straight away and the benefits are many. Suppose the witnesses are working they can request to come after 5:30. That is a good thing. We could have done this; even today we are not doing it. So, one important thing is the judge strength.
Second important thing is, more intensive training. Today most of the judges are not trained. Delays in trial in most cases are due to inefficiencies, incompetence. In fact, I thought in the bomb blast case in Mumbai in 1993, the case which ended in 2007, the trial took so long. Ok forget that, but even after the arguments were over, for three years he did not give any judgments at all! Then somebody filed a petition, some news item came in the press. He said, 'no I am keeping the matter for judgment'. He delivered his judgment in proceedings unknown to law that is everyday he would call 2 of the accused and read out and say I hold you guilty. Even in those cases where they were found not guilty they were not released. This procedure went on everyday for about 4 or 5 months. For sentencing again he called like this. So, totally he took over 13 or 14 months to complete the judgment. This procedure is not known to law. First of all, he could have prepared the judgment immediately, in stead of taking 3 years. He could have handed a copy of the judgment and finished the sentencing in one day, but no! All this shows, you require a competency commission. This judge in his lifetime has conducted only one case, which is this bomb blast case. This man who has no competence, no experience has been promoted to high court judge! So, we need better judge selection and of course we can simplify the procedure. They can seriously consider, what are the laws which can be codified. The more the laws, the more the offences.
SK: What is the difference between law and codification?
HS: There are laws which overlap here and there and even judgments, there could be re-establishment of judgments. Supreme Court has been there for more than 50 years now and has laid down many laws. If you go through these laws you will find many of them contradict each other. I think the American Court did that – restatement of American judgments. So, here Supreme Court can appoint a commission to go through all past judgments and that commission can see and say, this is a law and this is not. This way you don’t have conflicting judgments and you save so much of time.
When I was young there was a committee which came up with around 32 points to eliminate such errors, but they were not influential. For years, number of commissions have stated how the entire judicial system can be changed. But till today it has not been followed and it is all on paper.
SK: There are also special courts for various issues like motor vehicles, environment courts etc. What is your view on such specializations?
HS: In the Bombay high court, we thought of how to reduce arrears and decided to have a separate tribunal for bank related cases. That way the pressure on the high court is lessened and the bank tribunal will also develop expertise. Similarly for family and services tribunals. Dr. Sathe, from Pune, who is a professor of law has written a book about this and has analyzed about 77-78 tribunals, he concluded that all these tribunals have failed to bring in expertise, as a result they are all failures. The tribunals are there, but they have to be streamlined and properly manned, etc. By and large information commissions are independent from the judiciary. They have done fairly well, but in all these cases where we have appointed tribunals, we appoint retired judges and officials. Why? Why can’t we have a regular tribunal?
SK: Classic case is the river water tribunals, like Kaveri.
HS: That is because it is an interstate dispute. This Kaveri dispute has not been settled for years. I remember Justice Mukherjee was there for sometime, then he left and there is somebody else, this kind of thing.
SK: What is your view on recent agitations for transparency in the judiciary, accountability and to lay down some sort of a procedure for impeachment of a judge if needed, who are the judges accountable to and so on and so forth. You have written about it.
HS: Impeachment has failed. We had one experiment with Justice Ramaswami. That didn’t work. In America since 1936, there has been no impeachment. Only in exceptional cases, the judge can be impeached. But with the question of corruption, incompetence and minor aberrations, there is no procedure so far. Judges Enquiry Act of 1968 is there. If the Rajya Sabha wants to impeach a judge some 50 members have to sign a resolution. For Lok Sabha it is some 100 or more, and then it has to be passed by one of the houses. That will be referred under this Act. In the constitutional tribunal, one Supreme Court judge, one judge from any of the high courts, and one jurist has to be there. If the enquiry commission holds him guilty, then that has to be presented before the parliament. Each house should pass that resolution with a majority of 2/3 in each house.
SK: What do you think should be done?
HS: According to me, the constitution should be amended and there should be a provision of impeaching a judge of High court or Supreme Court on the charge of misdemeanor, inefficiency. There should be an independent tribunal, which could consist of, a judge of the SC (Supreme Court). The composition should be such that the tribunal should be more independent. That report should be sent to the chief justice, he can then send before the president requesting dismissal. In Malaysia, there is a provision to remove a judge of the High Court, on the ground of inefficiency, which we don’t have. Hong Kong, there is a provision for holding enquiry against sitting judges, by a committee of three judges of the local court. Even in England, they are thinking of having a performance commission and we can also have it here! Here the same collegiums in the Supreme Court are treated as the appointing committee. This is where we are stuck, this is not a solution. If a judiciary thinks that by not facing an enquiry they can maintain independence and confidence of the public, they are mistaken.
SK: One last question. Did our judicial system originate in the philosophy of Nyaya which tries to find truth, proceeding from doubt! You said earlier that truth and justice are two different things. Can you elaborate on that?
HS: The function of the judiciary is to establish whether an offence has been committed or not, according to the definition and the evidence that comes before the court. Whether it is true or not is not the point for the court. No body can know what the truth is. Even grama nyayalaya is subject to doubt because it is plagued by caste politics. Similarly village panchayats, today we are not sure. Ambedkar asked in the court, ‘Gandhi says India lives in its villages, but you cannot get justice there, it is all caste driven’. Ancient days are over; you have to have a modern system. It can work, but it has to be made to work.
SK: There is also another issue-- in the socialist countries it was initially there--Judges being more responsible and accountable to the community itself. The normal objection is that the judge needs to be an expert in law so how can he be elected.
HS: Yes that is there, but a judge cannot say he is not accountable because he is an expert. They have to be accountable to the constitution at least; they cannot say they are above. In England there is a committee, they lay down and define accountability. All conduct except their judgments are subject to accountability.
SK: This highly publicized trial which is going on of Kasab under media glare, which gets highly politicized is used to evoke passions. What is your observation on that?
HS: Kasab was the only terrorist we caught; let’s accept a theory that there is some kind of conspiracy. There is no direct evidence just a statement from Kasab and stuff from here and there. I have a feeling that the government now wants to show to Pakistan, all the evidence of this case has been played before the judge and he has accepted that. There is no challenge to that. So in the presence of the world, this is all only to gain a point! But if a judge is right he will say ‘what is the point of recording evidence in the absence of accused’? You have to have a case and accused has to be there, else it is not binding. The Prosecutor of this case thinks he is the ultimate actor. I don’t approve of his conduct in this case; he has no right to take sides. They are only there to present the case and preserve the innocent; people don’t understand what it is to preserve the innocent.
No officer connected to prosecution should assume that he is guilty, everyday he talks nonsense. This is all such a drama. Till it is argued and proved, he is innocent!
SK: In the case of wrongly accused innocents, who have been tortured and been in jail and finally when they are acquitted there is no compensation. Does the system not allow any kind of compensation?
HS: There is no provision. So many from bomb blast case have been acquitted but their whole life is gone! 15-16 years they have been dragged out, some of their wives and children have become destitute. There is no compensation, but we have to provide for it, there should be a provision. But we don’t have it!
SK: Onus has to be put on the prosecuting officers and all, because otherwise they will do whatever they want.
HS: I agree completely. Lucknow Development Authority case is there. If something goes wrong, the government will recover the compensation from the officers that is a good judgment. But how many follow this I don’t know which is very unfortunate.
SK: Thank you sir.
HS: You are most welcome.