A security state

Print edition : June 10, 2016
In all cases that touch on the twin issues of national security and civil liberty, the Supreme Court’s judgments are short on legal analysis and rich on patriotic rhetoric on security.

ON April 28, 1976, the Supreme Court of India delivered its infamous judgment in the habeas corpus case to deny the writ to citizens during the fraudulent “Emergency”. Forty years later, April 15, 2016, marks another black day in the court’s chequered career.

The Chief Justice of India, Justice T.S. Thakur, and other judges of the court went in for a private briefing by National Security Adviser Ajit Doval, former Director of the Intelligence Bureau. Sheela Bhatt reported in The Indian Express on April 15, 2016, that the briefing covered “the internal and external security situation of the country”. She added: “It is learnt that Doval shared information on an ‘Indian master plan’ to strengthen national security and listed threats to the country.”

Prashant Bhushan was the only advocate to criticise the judges’ conduct. What must be the outlook of judges who submit themselves to such a secret briefing? One misses H.M. Seervai on such occasions.

“Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge. I wish I might have found the time and opportunity to pursue this subject farther. I shall be able, as it is, to do little more than remind you of its existence. There has been a certain lack of candour in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of the conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (Benjamin N. Cardozo; The Nature of the Judicial Process; Yale University Press; 1921; pages 167-168; emphasis added, throughout).

The “forces” which the great judge alluded to are of a most illiberal kind that is working in the minds of most judges of the Supreme Court of India. Its rulings on the constitutional validity of the Terrorists and Disruptive Activities (Prevention) Act, 1967 ( Kartar Singh vs State of Punjab (1994) 3 SCC 69) and the Armed Forces (Special Powers) Act, 1958 ( Naga People’s Movement of Human Rights vs Union of India (1998) 2 SCC 109) reek of an illiberal preference of security over liberty, as does its judgment upholding TADA’s successor, the Prevention of Terrorism Act (People’s Union for Civil Liberties vs Union of India (2004) 9 SCC 580).

Article 21 of the Constitution says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the AFSPA case, the court did not even refer to Article 21, though the Act confers on the armed forces a “licence to kill”.

Read the entire report of the case, from pages 109 to 158 from the headnotes onwards, and you will not find even a mention, let alone a discussion, of Article 21, the one constitutional provision that alone suffices to invalidate the Act. The issues which the judgment discussed pertained to Parliament’s legislative competence to enact the law; the scope of Parliament’s residuary powers of legislation regarding the declaration of disturbed area; the right to equality (Article 14); Article 22 on the production of the arrested person before the magistrate; the sanctions provisions and related issues of construction.

Shockingly, there is not a word of discussion about Article 21 in a judgment delivered on November 27, 1997, by which time it had acquired an expanded meaning and high salience in legal discourse. This, in a unanimous judgment, a rarity, delivered by Justice S.C. Agarwal on a bench that comprised Chief Justice J.S. Verma and three others who became CJIs —Justices M.M. Punchhi, A.S. Anand and S.P. Bharucha.

For aught we know, the point was not raised by any of the distinguished counsel who appeared in the case. But as far back as March 31, 1952, the Supreme Court remarked, also in a unanimous judgment delivered by CJI Patanjali Sastri, that as regards the fundamental rights, this court has been assigned the role of a sentinel on the qui vive by the Constitution ( State of Madras vs V.G. Row (1952), SCR 597).

In all such cases the court’s judgments are short on legal analysis and rich on patriotic rhetoric on security. In the case of Afzal Guru, the Kashmiri who was convicted in the 2001 Parliament House attack case, the court said his life should be made “extinct” in a judgment that ignored all the gross failures to observe the minimum guarantees of a fair trial.

In 1963, in Kennedy vs Mendoza-Martinez, the United States Supreme Court reaffirmed the basic principles in these words: “It is fundamental that the great powers of Congress to conduct war and to regulate the nation’s foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action” (372 U.S. 144 at 164; 9 L. ed. 2 d. 644, 659). Distaste for a citizen’s politics should not warp judgment. As Justice Felix Frankfurter warned, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” ( U.S. vs Radanovich (1950) 339 U.S. 56 at 669.)

In the very first major case decided by the Supreme Court of India, shortly after the Constitution came into force, it ducked the challenge ( A.K. Gopalan vs State of Bombay; AIR 1950 SC. 27). It was on a petition for a writ of habeas corpus by a prominent Communist leader. Article 22 makes preventive detention immune from the reach of fundamental rights. Nonetheless, the fundamental right embodied in Article 21 was relevant if properly construed. But the majority (4-2) ruled: “The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the court; it is the function of the Constitution. To read the word ‘law’ as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt ‘due process of law’ it was considered that the expression ‘procedure established by law’ made the standard specific. It cannot be specific except by reading the expression as meaning procedure prescribed by the Legislature….

“It is obvious that in that clause ‘law’ must mean enacted law.… The word ‘established’ according to the Oxford Dictionary means ‘to fix, settle, institute or ordain by enactment or agreement’. The word ‘established’ itself suggests an agency which fixes the limits. According to the dictionary, this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of ‘jus’ to ‘law’ in Article 21.”

The effect of this ruling was well summed up by Gopalan’s counsel, M.K. Nambyar, an erudite constitutional lawyer. Article 21 was a stillborn child. “Article 21 became otiose, though, under canons of constitutional construction, no word, clause or Article of a Constitution should even be held superfluous. Any legislative enactment prescribing any sort of procedure would now suffice to deprive the life or liberty of any person. If an Indian legislature passed an Act like that passed by British Parliament (22 Henry XVII C. 9) that ‘Richard Rose, the Bishop of Rochester’s cook, be boiled to death’, Article 21 would afford no protection. If again, an Indian legislature were to pass an Act moulded on the Statute de Heretico Comburendo, which confirmed the Church’s right to have heretics burned by the common hangman, Article 21 would be of no avail.

“Almost at the inception of the Constitution, at the very threshold of its life, one of the main Articles declaring life and liberty as fundamental rights became stillborn. Article 21 is dead, and buried, and there is little hope of its resurrection. Life and Liberty have no effective protection against legislative action in India.” ( Life, Liberty and Property; Swarajya (Annual Number) 1964; pages 49-61; reprinted in S.P. Aiyer and R. Srinivasan; Studies in Indian Democracy; Allied; page 260.)

The court gave life to Article 21 only in 1978 when it ruled ( Maneka Gandhi vs Union of India (1978) 1 SCC 248) that the law must conform to other fundamental rights as well and the procedure it establishes must be fair and reasonable. Thus was restored the “procedural due process” doctrine of the U.S. Supreme Court. This trend did not last. The Supreme Court retraced its steps on issues where the security of the state, or its own prestige (contempt of court), was involved. Nor is its record on freedom of speech altogether free from blemish. Witness Arundhati Roy’s case.

India least liberal

Of all the superior courts in democracies governed by the rule of law, the Supreme Court of India is the least liberal. Contrast its approach with that of the Supreme Court of Canada in its judgment in Charkoui vs Canada delivered on February 23, 2007. A unanimous bench of nine judges headed by Chief Justice McLachlin ruled in favour of the appellant.

The opening paragraphs of the judgment provide a flavour of the rest. “One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance. “In this case, we are confronted with a statute, the Immigration and Refugee Protection Act, S.C. 2001 c. 27 ( RPA), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the ‘Minister’), and the Minister of Public Safety and Emergency Preparedness (collectively ‘the ministers’) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.

“I conclude that the IRPA justifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent in the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention.” Throughout the judgment, concern for liberty is never subordinated to that for security—quite unlike the pronouncements of the judges of the Supreme Court.

Shami Chakrabarti’s excellent book, impassioned without loss of rigour in analysis, should be read by every Indian who is concerned with the state of civil liberties in the country. She is Director of Liberty, successor to the National Council for Civil Liberties (NCCL) founded in 1934.

“Our founders formed the National Council for Civil Liberties to keep watch over the entire spirit of British liberty. Today they might have blogged and tweeted this resolve. After their inaugural meeting on 24 February 1934 in the crypt of St. Martin-in-the-Fields in Trafalgar Square, they announced their new organisation in a letter to the Manchester Guardian. The signatories included Clement Attlee, Vera Brittain, H.G. Wells, Edith Summerskill MP and the first Secretary of the NCCL, Ronald Kidd. Kidd was a civil servant, journalist, publisher and even actor before finding his place in the world as a civil liberties campaigner. He and a small group of brave people of values and ideals set in motion a campaign which would become the oldest human rights group in the U.K.”

The book is the richer and far more instructive for its account of the author’s life and career as a committed civil libertarian. She left a cushy job as a lawyer in the Home Office for a newly created job as in-house Counsel at Liberty just a day before 9/11. She was a member of the panel of the Leveson Inquiry and is Chancellor of Oxford Brookes University, Honorary Professor of Law at the University of Manchester, Visiting Fellow of Nuffield College, Oxford, and a Master of the Bench of Middle Temple.

Work in the Home Office on terrorism did not affect her outlook one bit. “The ultimate fiction and grand abuse of language was the ‘War on Terror’ itself. President Bush’s speechwriters had gone to war with an abstract noun that was ever part of the human experience to create a ‘long war’, ‘new normal’ or permanent emergency. Obviously, to those in the middle of an actual war, that war self-evidently feels indefinite, as it is impossible to know precisely when it will end. At the height of the Blitz, Londoners had no idea when exactly the war would be over and normal life (including temporarily suspended rights and freedoms) could resume. And yet they knew that when that time came, they would be able to verify it with their own senses (the end of hostilities, the signing of a peace treaty). This could never be the case with a ‘War of Terror’.”

The book appears at a time when some in the U.K. would walk out of the European Convention on Human Rights and drastically change, if not repeal, the Human Rights Act.

The House of Lords did not share our Supreme Court’s dread of terror. It rejected the Court of Appeal’s view on the Bill of Rights’ protection of immigrants (8-1). Lord Hoffmann observed: “This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

“…The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” (Lord Hoffman, from paragraphs 96 and 97 of A and Others v Secretary of State for the Home Department.)

The Malegaon acquittals after years in prison make the author’s remarks very apposite. “Lives are no doubt blighted by such an experience, but have you ever seen someone actually complain at the door of the Old Bailey when eventually acquitted? I suspect not. Instead, routinely flanked by their stalwart solicitor (we all love lawyers when we need them), family, friends and supporters, they deliver emotional speeches of varying eloquence about how they always knew that the truth would out and justice would be done.

“Lengthy detention without charge—or ‘internment’ as it is properly called—is different. Here a person is effectively ‘disappeared’ without warning. It is the stuff of nightmares. Imagine the 5 a.m. knock on your front door: you are then taken from your life, work and loved ones on suspicion of some sort of terrorist activity —but you don’t really know, because you’re never properly told why you’ve been taken. In a short time, your life can change irretrievably.”

Politicians undermine judicial independence by cosying up to judges. “Just as politicians can undermine the judiciary with dangerous, disrespectful rhetoric about unwelcome judgments and the unelected status of the judiciary, they can equally, and invidiously, undermine the rule of law by co-opting it and making it too cosy and complicit with administration in general and the secret state in particular. Why should a kid on a council estate respect a magistrate’s order if a Prime Minister won’t respect the highest courts in the land?”

It is preposterous to suggest that in this day and age parliamentary debates have lost their value. The author quotes the stirring speech in the House of Commons on June 11, 2008, by Diane Abbott: “I am a Londoner and I heard the last major IRA [Irish Republican Army] bomb, at Canary wharf, from my kitchen in east London. Like thousands of Londoners, I waited for the early-morning call that assured me that friends and family on their way to work and school had not been caught up in those bombings. I will not take lectures from ministers about not taking terrorism seriously.

“I do not believe, as ministers continue to insist, that there is some trade-off between our liberties and the safety of the realm. What makes us free is what makes us safe, and what makes us safe will make us free….

“…Of course the people whose rights some of us are trying to defend are unpopular and suspect. But if we as a Parliament cannot stand up on this issue, and if people from our different ethnic communities cannot come here and genuinely reflect their fears and concerns, what is Parliament for?”

India has never had a civil liberties movement worth the name. The organisations set up in the past and the ones functioning now have done some service. But they work spasmodically; are none too well endowed with legal equipment bar some exceptions and tend to be politically partisan. In 1974, this writer suggested to Jayaprakash Narayan that he sponsor a body like the NCCL in the U.K. V.M. Tarkunde advised him to the contrary—civil liberties are not enough; there are other issues like electoral reform. I withdrew my offer to serve as secretary to a civil liberties body. Tarkunde presided over the “Citizens for Democracy” which, predictably, acquired a tag of partisanship.

I am reminded of that selfless man S.G. Vaze of Pune. He published a Civil Liberties Bulletin some 60 years ago. Its annual subscription was Rs.3. He was learned in the law, Indian, British and American cases, and was non-partisan.

In no other field of social endeavour is the saying more true—knowledge is power. The law grows at a rapid pace. A civil liberties advocate needs to keep pace with it. The institution must be staffed with such; its vigil must be continuous, not occasional; and, of course, it must be manifestly non-partisan. In course of time it will gain the respect and confidence which Liberty and its Director Shami Chakrabarti command today. The last word must belong to the sage Solon. Asked how a people can preserve their liberties, he replied: “Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured.”

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