'No Special Laws, No Special Courts'

There have been news reports citing sources that the ministry of home affairs is mulling providing legal aid to those facing ‘doubtful’ terror charges. First, one doubts the seriousness of even this limited claim, given that in March this year the minorities affairs minister had presented a letter from the home minister which purportedly supported the minorities ministry’s proposal for special courts for Muslim terror accused, only for the home minister to distance himself from the letter later.

‘Legal aid’, ‘special courts’ are nice sounding phrases offering us an illusion of goodness, but scratch the surface a little and they are little more than empty rhetoric. Foremost, legal aid is the constitutional right of every citizen, and as such offering of legal aid is no great favour or concession granted to the accused. It is in fact the duty of the state to ensure that no accused, no matter what the charge, remains bereft of a competent defence. There is much to be strengthened in our legal aid mechanism, including ensuring that legal aid lawyers offered to those who cannot afford their defence are not underpaid, uninterested and pro-prosecution, as happens often. Recall how Afzal Guru’s plea to be represented by lawyers of his choice in the trial court came to a naught. Just loose ‘legal aid’ promises amount to nothing.

Now, the question of special courts. Indeed, special courts appear tempting to many, holding up the promise of speedy trials. But there are serious problems writ in it. Leave aside the social aspect of stigmatisation that these ‘special terrorism’ courts will induce, one fails to see how these special courts could mitigate or resolve the problems one is faced with today: rampant frame ups, concoction of evidence, long periods of incarceration, no bail, and a blanket of absolute impunity for the investigating agencies. 

Legally, Unlawful Activities Prevention Act (UAPA), the law under which accused in terror cases are tried, does not mandate special courts (whereas NIA does, which is why there exist NIA courts across the country). The demand for justice cannot be dismissed with the creation of designated courts for UAPA, where the law (UAPA) remains as draconian, and the investigators (Special Cells, ATSs, Crime Branches, Grey hounds) remain unaccountable; and where no reforms are initiated to ensure that there is no judicial abdication. It is the ordinary and the everyday which we need to make right instead of turning to ‘special’ solutions.

In a report on UAPA cases in Madhya Pradesh that JTSA is in the process of compiling, it is apparent that the burden of evidence is considerably reduced if not entirely shifted to the accused; that legal requirements are fairly relaxed; that violations of procedural norms are dealt with indulgently. Because we are fighting a ‘war on terror’. In Delhi, a sessions judge invoked the ever convenient and the imminently dangerous ‘collective conscience’ as a mitigating factor while sentencing Shahzad Ahmad to a life-term. Framed, damned, convicted is a hard reality of this country. How will special courts address these issues and concerns? 

Special Courts is short cut populism, which will do more harm than good in the long run by creating these dreaded ‘terrorist courts’ while keeping the system of prejudiced investigations, vengeful prosecution and judicial abdication intact. This is an ostrich approach, refusing to see the core of the problem, which is a law that is genetically programmed for abuse. Sections 3, 10, 13 of UAPA— by proscribing certain associations and declaring them as unlawful— are inherently geared towards malicious prosecution. Notwithstanding the Supreme Court ruling that mere membership of a banned organization does not attract UAPA, cases abound across the country where literature and membership forms of banned organisations are shown as seized from the accused. This then becomes the basis of prosecution and conviction (even where procedural requirements of seizures are violated with impunity). Remember that UAPA lacks even the modicum of safeguard that was vested in POTA: review committees which would examine if a case attracted the provisions of POTA, which had led among others cases, to POTA charges being dropped in the Godhra case. 

If the ministry of home affairs is serious in addressing the growing concerns of wrongful prosecutions in terror cases, it should first initiate prosecution of those police officers who have been directly involved in framing innocents in false cases. It can begin with ACP Kisan Shengal of the Mumbai ATS who contrived false confessions from close to a dozen men, implicating them in the Malegaon blasts of 2006. It can also take a look at the Advocate Ravi Chander report and punish those police officers of the Andhra Police who indulged in flagrant torture and illegal detention of Muslim youth following the Mecca Masjid blast. It can strip Special Cell’s Ravinder Tyagi of his gallantry award as he has been found by the CBI planting evidence such as RDX, J & K bus tickets and pistols on two men, Irshad Ali and Md. Qamar, whom the Special cell then charged with being Al Badar operatives. We would be only too happy to provide a fuller list of cases and officers involved in torture and frame-ups.

Repealing the UAPA and passing an anti-torture bill consonant with the Convention against Torture would have a more durable impact on malicious prosecutions than providing ‘legal aid’ or setting up special courts.