ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Dangerous Drift

Even as the security agencies are harsh on certain social groups whom they hunt down with unbecoming vigour, their lack of investigative skills and intelligence gathering acumen is a serious cause for concern.

COMMENTARYEconomic & Political Weekly EPW august 2, 200813Dangerous DriftGautam Navlakha Even as the security agencies are harsh on certain social groups whom they hunt down with unbecoming vigour, their lack of investigative skills and intelligence gathering acumen is a serious cause for concern. Afew days have passed since the twin serial bomb attacks in Bengaluru and Ahmedabad, within 24 hours of each other. Once the viciousness, especially the heinous plant-ing of bombs near hospitals timed to cause maximum damage to human lives, is con-demned, one has to take stock of things. Beyond condemnation differences remain over identifying the reason for the failure to prevent such attacks, or even more damaging, to arrest the culprits. Follow-ing the occurrence of such mass murder, there are complaints that the centre does not provide “actionable intelligence”, that India is a “soft state” which exhibits little will to fight “terrorism” and that there is a need for a strong law. We are, by now as a ritual, reminded by all and sundry that India has been fighting the menace of terrorism for nearly a quar-ter of a century. Yet, we are not told that over this period various legal and other means have been tried, starting with the Terrorist and Disruptive Activities (Pre-vention) Act (TADA), followed by the Pre-vention of Terrorism Act (POTA). There is enough empirical evidence to show that stringent laws have definitely not helped curb such crimes and may indeed have contributed to furthering such acts out of a sense of revenge. These laws serve, plausibly, like preventive detention Acts. Under TADA, whereas only 4 per cent of the 70,000 people detained were charge-sheeted, the conviction rate was just about 1 per cent. POTA not only exhibited a simi-lar trait of being used as a means of deten-tion for the few thousands held, it failed miserably to act as the deterrent its votaries claimed it was. Further, in its application, it targeted Muslims and deliberately kept fanatic Hindu groups out of its purview. Failure of Stringent LawsPOTA proved unsuccessful in bringing criminals to justice, this despite the fact that under both laws,TADA andPOTA, confessions made to a police officer were ruled as bona fide and both Acts relaxed the rules and procedures governing col-lection and recording of evidence. Instead of resulting in a higher conviction rate, they acted as an incentive to making police less exacting in their investigations. Because of the relaxation of rules and pro-cedures, the police departments were tempted to adopt short cuts and cut cor-ners. Both, the Red Fort case, where no extraordinary laws were used, and the Parliament attack case, where POTA was used, show that it was not the presence or absence of stringent laws that is the issue. In both cases, shoddy investigations tri-umphed. With stringent laws, the chances are greater for shoddiness to prevail in police investigations because they relax the rules of evidence and place the onus on the accused to show his/her non- involvement in the crime. Moreover, the judiciary, by and large, protects the investigators from strictures even where people get implicated falsely. The increas-ing recourse, in recent times, to narco-analysis, where a person is drugged to ferret out information, and where the dividing line between reality and fantasy gets blurred, makes the already poor investigation skills poorer. Common sense suggests, for instance, that if an accused is willing to make a con-fession, then he/she can as well make it before a magistrate. So why allow confes-sions to police when the chances of forced extraction are higher and temptation for coercion greater? Is it that once an accused is freed of police custody, he/she may decide to change his/her mind? If this is indeed the fear then, surely, doubts must be raised about the worth of such confes-sions made to investigators in police cus-tody. In other words, the skills required to question an accused cannot be substituted by licence to torture. Similarly, relaxing rules and procedures acts as a disincentive to undertake rigorous and thorough inves-tigation. If even in gruesome crimes, such as the Arushi-Hemraj murder case, the Noida police destroyed evidence at the scene of the crime, how does one inspire confidence that the police force will carry out a better job in heinous crimes under stringent laws? This is not an isolated inci-dent. Reportedly, the Surat police ended up destroying evidence when they handled Email:
COMMENTARYaugust 2, 2008 EPW Economic & Political Weekly14two of the vehicles found with explosive material on July 28, smudging likely fingerprints and other leads that forensic experts could have gathered. In Mumbai, despite invoking the Maharashtra Control of Organised Crime Act, the Mumbai police did not reveal any great sleuthing expertise in probing the bomb blasts in the suburban trains on July 7, 2006. In other words, a stringent law is not a magic wand which can turn unskilled investiga-tors into skilful sleuths. Lack of Trust Insofar as the lack of actionable intelli-gence is concerned, it is elementary that human intelligence, i e, information pro-vided by people, is of a much higher value and credibility than any technical surveil-lance mounted by official agencies. Unfor-tunately, the reluctance of people to pro-vide relevant information is linked to antagonising an already beleaguered com-munity and acting as a protector of the other. If Muslims feel targeted, then those who developed links of trust with police or intelligence operatives find themselves in a bind because the police have failed to prevent carnages and pogroms or go after the culprits among the Hindus. The impact of the Babri masjid demolition and the Mumbai and Gujarat carnages could have been salutary if the authorities care to introspect. These events drove home the message of distrust of the law enforcing agencies. This not only snapped the links the intelligence bureau had developed over decades but also meant that a major source of information dried up. For instance, as a consequence of fake encoun-ters carried out by the police in Gujarat post-Godhra, the crime and intelligence branches found that they no longer had sources willing to provide leads. The peo-ple became reluctant to hobnob even socially with police personnel. A trust deficit cannot be compensated by plati-tudes. It requires real and tangible delivery of justice. The point is that policing is not about the raising of armed police battalions and declaring a priority list of internal security threats that are to be fought militarily, but of upgradation of skills of prevention and detection of crime, combined with neigh-bourhood beat constables as the eyes and ears on the ground, maintaining a tab on what is going on. Contrary to conventional wisdom that blames civil liberties groups for getting shrill over the human rights of alleged terrorists, it is the criminal negli-gence of the obvious areas of policing which are singularly responsible for heinous crimes remaining unsolved. It is elementary that if heinous crimes, includ-ing mass murders committed by the state or Hindu communal groups, are assidu-ously solved and the guilty brought to justice, there would be greater confidence all around among the people about cooperating with the police. Elevating Security Considerations Upendra Baxi recently wrote about how the Malimath and Jeevan Reddy commit-tees’ “advocate a politically expedient agenda for criminal justice and police reform elevating ‘security’ considerations over the fundamental liberties of Indian citizens” (Indian Express, July 18, 2008). The point he was making was the danger-ous drift in reasoning that calls for the jettisoning of liberties in order to fight crimes. If one were to take the argument further, justice does not mean subversion of the principles of liberal jurisprudence but greater and uniform compliance with them. Mass murders cannot be fought by claiming that since most terrorists are Muslims, it is therefore justified to target Muslims. Also, there is a genre of “national security” laws that already provides mus-cle to the law enforcing agencies. What is needed is a police force with the requisite skills and imagination not to turn these laws into a bludgeon against one commu-nity, while mollycoddling the other. Going after soft targets such as political dissidents or proscribing legitimate politi-cal expression, such as disallowing the Students Islamic Movement of India to function or propagate its views, is counter-productive. It is when legitimate areas of work are shut out for anyone, be they Muslims or Naxalites, that such proscrip-tions act as a force multiplier for violent response. While under no circumstances is it acceptable to justify or condone targeting of civilians or acts of mass murders, it must be emphasised that societies have to be mindful of the methods they employ to pre-vent and detect crimes and whether all such crimes are brought to justice without fear and favour. In short, it is poor investi-gative skills and poorer intelligence gather-ing acumen which are cause for concern. It is here that the Indian state exhibits slack-ness. The same force is acutely harsh on political dissidents and social groups whom they hunt down with unbecoming vigour.ISED AD

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