"But look at Chapter V. It allows the police, the
intelligence agencies to listen in to and intercept communications
between any of us whatever means we use: electronic, wire, oral,
paging devices, tracking devices. This wasnít there in the Law
Commission draft. It is a clear license to police, IB, CBI, anyone
the Government fancies to invade our privacy."
First, about the Law Commission. While arguing that
provisions on a particular matter were not in its draft, critics
obscure the fact that the entire question of having or not having a
special law to deal with terrorist crimes and organizations -- had
been referred to the Law Commission, and that the Law Commission did
not just endorse the proposal for having such a law, it provided a
detailed draft also entitled, "Prevention of Terrorism Bill, 2000."
Second, recommendations of the Law Commission are
just one of the inputs that go into the final outcome: it is
ultimately the Governmentís job, it is not just its power but also
its responsibility to forge the instrument that is required. In this
instance, the Government had before it, in addition to the Law
Commissionís report, the laws in other countries - the UK the USA,
Canada, among others; it had before it the law as it is being
administered in Maharashtra; the laws that have been passed by the
Assemblies of Karnataka and Andhra.
The Law Commission draft did not have anything on
intercepts. Does this mean that -- even though ever so often it is
only through intercepts that the contacts between a controller
sitting in Pakistan and his agents and instruments here can be
proven -- no provision about intercepts should be included? Should
we not take account of the experience we have gained in Maharashtra,
for instance? That it is precisely through intercepts that the
Government there has been able to nail the exchanges between dons in
Dubai and their agents in Mumbai? The provision in the Law
Commission draft relating to financial dealings of terrorists and
their organizations was found on examination to be inadequate.
Should the Government have stuck to the draft even when it had
reason to believe that a more effective provision was required?
"But what about confessions being declared to be
evidence admissible in courts? People can be made to confess to all
sorts of deeds by methods that our police uses."
True, under ordinary law confessions made to a
police officer are not admissible as evidence. And to gauge the
result you donít have to look far: just see what is happening in the
Jessica Lal murder and the Gulshan Rai murder cases -- several
persons saw the victims being murdered; one eye-witness after the
other is going back on what he told the police. When conviction in
even an ordinary murder can be thwarted by such a simple device,
what will a terrorist organization -- one that can bring to bear
pressures infinitely more frightening than an ordinary criminal --
not be able to ensure?
Arun Jaitley has given a telling illustration: not
one of the persons who were eventually convicted for Rajiv Gandhiís
assassination could have been convicted had confessions not been
admissible. In the case of every single accused, the Supreme Courtís
pronouncement begins by recounting that the person has recorded a
confessional statement. Next the Court sets out the averments in
that confession which are incriminating. It then sets out some
ancillary material which leads it to believe that the confession is
true. The truth of the confession established, the Court pronounces
the person to be guilty.
Thus, Accused-1, Nalini: "The principal item of
evidence available in this case is her own confessional statement
recorded on 9-8-1991..." Ancillary factors are then listed, and the
Court concludes that this corroborative evidence establishes the
truth of the confession. Accused-2, Santhan alias Raviraj: "His
confessional statement was recorded on 17-9-1991... The
incriminating admissions contained in (it) are the following...."
Corroborative evidence establishes the truth of the confession.
Accused-3, Murugan alias Das: His confession was recorded on
9-8-1991. Confessional statement of Nalini and other corroborative
evidence confirms Muruganís confession to be true. "The active and
positive involvement of A-3 (Murugan) in the conspiracy for
assassinating Rajiv Gandhi looms large in the said confession. We
have, therefore, no doubt that A-3 was also one of the
conspirators." A-4 to A-8, confessions not recorded, and/or
acquitted. Accused-9, Robert Payas: confession recorded. Ancillary
factors "have rendered the confessional statement made by A-9 in
Exhibit P-85 as wholly true. We, therefore, concur with the finding
of the Special Judge that A-9 (Robert Payas) was very much involved
in the conspiracy to assassinate Rajiv Gandhi." A-10, A-12, A-18...
In each instance the same sequence is repeated: confessional
statement, ancillary factors confirm this as true, therefore guilty.
Nor is the point confined to what the Supreme Court
has held in regard to these particular individuals. The judgment
pronounces on the law in this regard. The Court specifically holds
that confessions are admissible as evidence; that even if the police
officer has forgotten to obtain the confessions made under TADA are
valid for charges under another statute, in this case the IPC.
Given the quarters who are denouncing a provision
like this so volubly, it is also good to note what the corresponding
provisions are under the law in operation in Maharashtra, as well as
the bills passed in Andhra and in Karnataka -- each of them provides
that the confessional statement shall be admissible as evidence
against the person who has made the confession, that it shall be
admissible against a co-accused, that it shall be admissible against
the abettor as well as against the co-conspirator.
It just so happens, and this is the point to which
I shall revert, that the Ordinance is far more restrictive than
these laws, indeed than what has been specifically upheld by the
Supreme Court even in regard to confessions. To take on specific:
under the Ordinance, confession made by a person shall not be
admissible in a proceeding against a co-accused.
"But the fellow will be tortured and made to
confess to whatever the police want."
Under TADA the accused could the kept in police
custody for 60 days, and in judicial custody up to a year. Under
this Ordinance, the limits have been cut down to 30 days and 180
days respectively. The family of the person is to be informed
immediately upon his arrest. Before he is interrogated the person is
to be informed in writing that he is not bound to make a confession.
The confession can be recorded only by an officer
of or above the rank of Superintendent of Police. It must be
recorded before a court within 48 hours. The court is to inquire of
the accused whether he has been tortured or maltreated. If he
alleges that he has been maltreated, the court is to record the
allegation, and direct an immediate medical examination. Most
important, the lawyer of the accused is to be allowed to meet him