Something About The Law

Since beginning in early January this year, we’ve had a fantastic response to our posts, events and online discussions. 2009 has been a happening year for the world and India, and that holds for us too. The graduation fromThe Social Blog has been phenomenally well-received by our readers, and thanks to you, Something About The Law can now boast of an extensive network among Indian law schools. We have a number of events/ideas in mind for 2010, and look forward to your encouragement and support. From the editors at SATL, here’s wishing you a fabulous year ahead!

Here’s a year-end compilation of some of our best (most-read, commented and appreciated) posts in 2009. They are in no specific order, and clicking on the title will take you to the full post.

1. The Socio-Legal Debates

Academic circles across premier law schools of the world have been characterized by the presence of an intellectual and interactive atmosphere among students and faculty members. In India, however, we are yet to see the inception of a platform that promotes stimulating, real-time legal discourse outside classrooms. In an attempt to bridge this scholastic divide, Something About The Law has sought to conceptualize a monthly debate-cum-discourse among legal practitioners, academia and experts on a host of socio-legal topics.

2. Attacks on Students: Reflections from Australia

The recent spate of attacks against members of the Indian community in Australia has spawned numerous allegations of racial abuse and discriminatory practice; the Australian Government is currently under immense pressure to bring such perpetrators to justice. The Indian media has whipped up a storm, devoting several hours of airtime to the matter; quite understandably, the nation is quite concerned with such disturbing developments Down Under. Amrita Khemka (a student from NALSAR who is currently at the University of New South Wales, Sydney on an Exchange Program) expresses her views on the matter. In addition, she has garnered diverse views from Indians who are currently studying/employed in Australia. Read on

3.  J.M Lyngdoh on Electoral Reforms in India

We are a nation of sorts; created out of the fundamentalist and acrimonious partition of the   continent’ Against this backdrop, India chose a democracy and have everyone participate in governance.

In the last 60 years, the constitution has had remarkable success. Significant is the involvement of the underprivileged in politics.

4. Musings on the Death Sentence

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

5.  Child Sexual Abuse in India

The Children We Sacrifice, a documentary by Grace Poore, a South Asian feminist writer and activist of the Voices Unheard Sisters Unseen fame, deals exclusively with child sexual abuse (CSA). Though I haven’t watched the documentary, the message it seems to be sending across is this: CSA is an everyday reality for about half of India’s children, however, somehow, it remains the least undocumented offences in the country. It, therefore, is not surprising that no legislation specifically deals with the issue which can rightly be categorised as one of the darkest and most worrisome blots on the Indian society.

6.  Why Telengana is a terrible, terrible idea.

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years. It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced.

7.  The Collegium, Judges’ Assets and Justice Dinakaran’s Case

Below is a short version of my Speech for the Constitutional Law Society’s debate on The Collegium, Judges Assets and Justice Dinakaran. It was a laudable effort on the part of the CLS to organise the same and kudos to them.

8. Implications of a New Direct Tax Code

Neha Pathakji, Lecturer in Taxation Laws at NALSAR, writes on the proposed Direct Tax Code, and its impact on the society.) The nation is witnessing winds of change these days, especially in the age old Tax system. Just when a new indirect tax regime is round the corner in the form of GST(Goods and service tax), likely to be implemented in April 2010; the release of brand new Direct Tax Code has leased a fresh life in the Direct Tax system.

9. The Downs – and Ups – of Free Distribution

Why are text messages limited to 160 characters? Why not more – surely we seem to have a lot to say to each other – or less? Why not 200, or even 150? A recently published article in the Los Angeles Times reveals a fascinating, yet somewhat disturbing, story.

I was in Jammu and Kashmir recently, to witness a two-day dialogue on issues of autonomy, sectarian violence and Indo-Pak relations vis-a-vis the Kashmir Valley. To be naively frank, the complexities on the ground were mind-boggling to me. Ensconced in ivory towers, myths have been created by the self and the other about the situation in the Valley – as I observed discussions between local politicians, academics and social workers, these myths were being demolished, in rapid succession. Needless to say, it was shocking to wake up to the amount of disinformation and ambiguity surrounding one of India’s most troubled and beautiful locations.

The air of confidentiality surrounding the dialogue mandates that I be discrete with the particulars of the same. Consequently, I’ve jotted down a couple of issues which I think are of great contemporaneous relevance to the problems faced by the Kashmiri people.

The most important, is undoubtedly, the question of autonomy. During a sideline conversation that I had with a young Kashmiri friend, he told me the Kashmiri youth were overwhelmingly in support of Azaadi, and if a plebiscite was held, there would be few who would choose to be part of the Indian polity. Yet, the great irony lay in the fact that the same people who wanted Azaadi did not know what to do with it! The political space on Azaadi (and the moderate demand of Autonomy) of the Kashmiri people is filled with confusing discourse of the political parties in the State. How else would you explain the six-odd voluminous reports that have been issued by every major political party in J&K, right from Sheikh Abdullah’s Naya Kashmir to the PDP’s Self-Rule Document?

At the heart of the Kashmir problem, yes, with all of militancy, unrest and dissent, lies the issue of governance. It is so profoundly simple, and yet so complicated that clear solutions have become the distant future. For years, indeed, since the time of Independence, the State has felt the need for free and fair elections. The number of people I met, who exhorted that J&K State Governments were blessed by the Centre rather than its people, is many. Governance has been a tricky issue for the Central Government because Kashmir has had a tortuous history – right from claims of the Instrument of Accession being non-existent, to conspiracy theories  as to why the Indian Army did not go after what is now PoK – there are many thorns in the establishment’s path. But in venturing down this dangerous path, one feels, after listening to countless people in Kashmir, that the pulse of the public is yet to be gauged.

What has spawned off a movement for Azaadi and autonomy has now resulted in decades of militancy and unrest. I left for Kashmir a strong Unionist, and remain one, because I believe that there can be no compromise on the territorial integrity of our country. At the same time, it was heart-wrenching to know and hear about the plight of fellow citizens in a far corner, treated and often understood as ‘different’ from the Indian mainstream. Demands of autonomy, I often felt, were justified, if it meant that the people of Jammu and Kashmir had access to better, effective governance. But amidst all the internal turmoil, be it between Jammu, Kashmir, Leh, Kargil or the Chenab Valley, it is important that top priority is accorded to developmental needs of the State. In thrashing out a plan for autonomy, or governance within the federal framework, either through Chidambaram’s ‘quiet diplomacy’ or other modes, its important that the solutions are responsive and reactive.

On the foreign policy front, I do believe that it is time for India to restart negotiations with Pakistan. The latter is in a dire internal situation, and has repeatedly emphasized its willingness to get back to the table. Rather than watching the show unravel in Pakistan, the Indian Government must engage in a composite dialogue on Kashmir. CBMs have shown the way forward, and must be kept in place to further continuity of relationship. Trade and economic relations must improve to benefit J&K, and for once, the hawks must be ignored to take our relations with Pakistan forward.

(The immediate future of Indo-Pak relations will also form the subject of the next post)

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years.

It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced. Perhaps, emotional anguish was most directed against the ripping-apart of a State that has probably been one of the better governed in the country.

Before the Telengana empathizer starts to dig their nails into this post, let me explain why I think the split was a terrible, terrible idea.

My argument, interestingly, stems from Malini Parthasarathy’s tweet about the division being a political result and not historically ‘explained’. Fully in agreement, I think there ought to have been a modus vivendi between the creation of a separate State and the problems of the undeniably underprivileged segments in the region. The States Reorganisation Commission, constituted in 1956 was assigned to do the demarcation on the basis of linguistic lines. Consequently, Andhra, Rayalaseema and Telengana fell within the larger Pradesh, though there were dialect differences to reckon with. In the realm of policy-making, Andhra Pradesh witnessed acts of gross discrimination against the people of Telengana, especially the coastal regions, in issues of public-sector jobs, educational opportunities and standards of living.

Telengana has always been used as a trump card, by N.T. Rama Rao, by Channa Reddy, by Nara Chandrababu Naidu, by K. Chandrasekhara Rao, and by countless other political figures. The objective, in tune with the demand, became political. Unlike Potti Sreeramulu’s hunger strike which resulted in the creation of AP (and his death),  KCR demand’s pertain primarily to administration, and not recognition per se.  In the process of the cause being articulated, especially amongst civil society, it has been viewed as a recognition of Statehood akin to the creation of AP itself.

The Congress has always responded to the Telengana cause politically, which I personally believe,  has been the right way to go about it. But in suddenly relenting to the demand, India’s oldest party has shown that it dearly lacks the acumen and iron hand of someone like YSR.

To cut through the brass tags, let’s take a look at the infamous Red Corridor. Which states do some of the most lawless, most violent and dangerous parts of India comprise? Chattisgarh and Jharkhand. Rings a bell?

I’m not going to the justifiability of the demands that led to the creation of C and J (socio-cultural identity, of course, was the predominant one). What I am going to dwell on, is the administrative facilities available in a nascent State.

Andhra Pradesh has had a long-standing history of Maoist insurgency, with the naxals constantly infusing doses of violence in society. Not only has the Telengana movement provided ample cover for Naxal stirs, the separate, autonomous region will also house significant chunks of radicals. The new administration will find it increasingly difficult to manage the hostile demands of Maoist groups, but will also see Andhra Pradesh and the Union Govt reticent to come to its help without a concrete plan of action.

Consequently,equitable and effective governance, which has been the rallying cry for the creation of Telengana, will not materialize. The difficulties in formulating public policy that gauges the pulse of the secessionist sentiment, will be gargantuan. Not just because the sentiment is mixed with emotion and rhetoric, but is a classic case of the political thumping the real needs of those affected. The naxal problem is merely one thorn in the administrative flesh, and the problems faced by new States are for everyone to see.

Well then, why is it a problem, if the long run sees a developed Telengana that has won its wars with itself? The irony lies in the fact, that Telengana is being created from a State that has been the only one to have successfully combated naxalist violence. Status quo, to which I will respectfully allude to now, is the product of years of negotiation, and years of counter-insurgency (sometimes ruthless, and cold-blooded). The question to be asked is, will all roads lead to the same Rome, though disguised as populist sentiment?

As usual, I escape, without talking about the modus vivendi or other viable alternatives – but this time, its because there’s no point in crying over spilt milk.

(I would like to reiterate that this post has been the consequence of emotional, rather than rational outpour – Comments and criticisms are most welcome.)

Four years from the murder of Shanmughan Manjunath (who was killed in an attempt to expose misgivings in the petroleum lobby in U.P), corruption remains rampant in India. No instance exemplifies this better than the 4,000-crore scam involving Madhukar Koda which has sent shockwaves through the political establishment in the country.

Whistleblowers are yet to get adequate legal protection in India, and  stories of Manjunaths and Satyendra Dubeys not only potray the plight of righteous individuals in civil society, but also deter citizens from standing out against corruption.

Here’s a piece written much before Manjunath was murdered (or Dubey for that matter, in 2003) on the necessity of a Whistleblowers Protection Act in India. The article has been republished from the Hindu Open Page dated March 25, 2003 – Author: K. Ashok Vardhan Shetty.

If you must sin, sin against God, not against the bureaucracy. God may forgive you, but the bureaucracy never will!”

— U.S. Admiral Hyman Rickover

BACK IN 1971, Daniel Ellsberg — a former Marine and Vietnam War veteran, who was working as an analyst at the Rand Corporation — `blew the whistle’ on a top-secret Defence Department document on the Vietnam War, which came to be known as the Pentagon Papers. Claiming to be driven by his conscience, Ellsberg revealed to the New York Times and the Washington Post how successive U.S. Presidents had dragged the country into an immoral and unwinnable war, and had lied to Americans about its course and outcomes. His disclosure played a major part in turning the tide of public opinion against the Vietnam War. The U.S. Government responded by prosecuting Ellsberg on 12 charges, leading to a total sentence of 115 years if convicted. That was not all. The dirty tricks department at the Nixon White House launched a smear campaign against Ellsberg; engaged the Watergate burglars to break into his psychiatrist’s office in the hope of finding something defamatory; tapped his telephones; engaged thugs to physically attack him; and tried to influence the trial judge with the offer of the post of FBI Director. When these plots were exposed, the judge had to abandon the trial and acquit Ellsberg. Nixon’s machinations against Ellsberg formed the basis of two of the three articles of impeachment against him. The Guardian recently named Daniel Ellsberg “the most important whistleblower of the past half century.”

The term `whistleblowing’ is a relatively recent entry into the vocabulary of public and corporate affairs, although the phenomenon itself is not new. It refers to the process by which insiders `go public’ with their claims of malpractices by, or within, organisations — usually after failing to remedy the matters from the inside, and often at great personal risk to themselves (adapted from Nick Perry, 1998). It is this willingness to stand up for a principle and court risk openly that distinguishes whistleblowing from such related practices as in-house criticism, anonymous leaks, and the like. The whistleblower is considered a hero or a traitor, a do-gooder or a crank, a role model or a non-conformist troublemaker — depending on one’s point of view. Whistleblowing is a universal phenomenon. India has also had its share of prominent whistleblowers from V. P. Singh to Manoj Prabhakar to P. Dinakar.

It is true that under normal circumstances, an organisation is entitled to total loyalty and confidentiality from its employees. But when there is serious malpractice or when people’s lives are at stake — as in corruption and fraud in defence procurement; deaths in `encounter’ of innocent persons; toxic leaks from a chemical factory; non-adherence to flight safety standards by an airline; creative accounting and false declarations by a company; cheating and plagiarism in scientific research, for example — the overriding public interest may lie in protecting the public’s right to be told, and the whistleblower’s right not to be punished for doing so. Without whistleblowers, we may not get to learn about problems until it is time to mourn the consequences. In the words of the noted U.S. journalist Reed Irvine: “Coal miners used to carry caged canaries into the mines with them. When the canaries stopped singing, they knew they were in trouble and they had better get out fast. Whistleblowers in government and other large organisations are, in a way, our canaries. When they are free to `sing,’ those institutions are healthy. When they are silenced, we are in trouble.”

No doubt, audit, ombudsman, vigilance commissions, regulating agencies, the media, civil society, and courts all play a role in deterring government and corporate transgressions to some extent. But however formidable their investigative skills, that initial inside information provided by a whistleblower is crucial. Even a powerful Freedom of Information Act, which discloses information without the need for leaking, offers only a partial solution. As the journal Index on Censorship (1995) put it: “Users would have to specify what they wanted to know. But where there is no reason to suspect that something is amiss, no one may bother to ask.”

The whistleblowers Hall of Fame

In December 2002, Time magazine created history of sorts by naming three whistleblowers: Sherron Watkins of Enron, Coleen Rowley of the FBI and Cynthia Cooper of WorldCom as its `Persons of the Year’ for 2002 for their bravery in exposing how American institutions, from corporations to government agencies, really operate. Their stories are too well known to need repetition here. But the past three decades have seen a number of even more courageous whistleblowers whose disclosures attracted international headlines. Let us recapitulate a few of the more prominent cases:

* Frank Serpico is the legendary ex-cop of the New York Police Department (NYPD) whose story was the subject of a best-selling book, and a film starring Al Pacino — both titled `Serpico.’ When he became a cop in 1960, payoffs, kickbacks and protection rackets were rampant in NYPD. Refusing to look the other way, Serpico complained to the Police Commissioner and the Mayor, but they ignored him. Frustrated, Serpico revealed NYPD’s dirty laundry to the New York Times in 1971, after which the cops as well as the criminals started gunning for him! Matters came to a head when he was shot in the face during a raid; his colleagues did not come to his help. Serpico quit NYPD in 1972 but NYPD has become a more honest force since his time.

* Peter Wright worked in Britain’s Security Service M15 between 1955 and 1976. In his whistleblowing autobiography The Spycatcher (1987), Wright described the shadowy world of the secret services that often transgressed propriety and the law — how the M15 had `bugged and burgled its way across London’; how it had conspired to discredit the Labour Prime Minister Harold Wilson; how the M16 had plotted unsuccessfully to assassinate Egypt’s President Nasser during the 1956 Suez crisis; and so on. The British government’s attempts to ban the publication of the book on the ground that `he owed a life-long duty of confidentiality,’ and to extradite him from Australia where he had settled after retirement, were unsuccessful — with the House of Lords declaring that in a free society `public interest sometimes required the disclosure of confidential information.’

* Jeffrey Wigand is the one-time head of R&D of America’s third largest tobacco company, Brown & Williamson. In a 1995 interview to “60 minutes,” he spoke about the company’s knowledge of nicotine’s addictive properties, its reckless use of harmful additives, its quashing of research on safe cigarettes, and a variety of other abuses. He was the central witness in the U.S. government’s lawsuit against the tobacco industry, which eventually led to the $246 billion federal tobacco settlement. The story of his whistleblowing and subsequent harassment was made into a critically acclaimed movie, `The Insider,’ starring Russell Crowe.

* Dr. Stephen Bolsin is a former anaesthetist at the U.K.’s Bristol Royal Infirmary (1988-95) who blew the whistle on a large number of unnecessary deaths of children occurring during heart surgeries due to the incompetence of the hospital’s surgeons. Ostracised by other doctors, Dr. Boslin was forced to emigrate to Australia in 1995. But his disclosure led to enquiries by the General Medical Council and the government; the debarment from future practice of two surgeons and the hospital chief in 1998; and also several far-reaching reforms in the National Health Service (NHS). It also acted as a catalyst for the enactment of the U.K.’s Public Interest Disclosure Act of 1998.

The high cost of `going public’

It is evident from these case studies that whistleblowing is not for the faint of heart. Instances of the whistleblower being fired, demoted or punished in other ways while the organisation denies, ignores or quietly buries the disclosure are universal. Apart from the social pressure against turning one’s boss or colleagues in, there is the legal bar in the form of the Official Secrets Act and Conduct Rules in the public sector or `a non-disclosure agreement’ in the corporate sector by which employees are gagged from disclosing matters to the public on pain of incurring criminal or civil liability for any breach.

It follows that no measure to curb government and corporate transgressions in India or elsewhere will bear fruit unless legal immunity and protection against retaliation is given to responsible and conscientious whistleblowing. It is unreasonable to expect employees to sacrifice their jobs and their future in order to protect the public interest; a few brave souls may do it but the vast majority of employees will not. In trying to protect whistleblowers, we are actually trying to protect ourselves. Many employees may be afraid to speak out even with the legal protection, but its very existence will deter government and corporate wrongdoings to a considerable extent.

Protection initiatives

The U.S. Whistleblowers Protect Act of 1989 (amended in 1994) protects public interest disclosures by federal employees. An Office of Special Counsel (OSC) was created to aid whistleblowers in the investigation of their disclosures and prevention of retaliatory action against them. It has had only modest success due to a series of hostile judicial rulings undercutting the protection afforded by the Act. More than 40 States have passed similar or even stronger legislation in respect of State employees.

After the spectacular collapse of Enron and WorldCom, U.S. Congress passed the Sarbanes-Oxley Act of 2002 granting sweeping legal protection to whistleblowers in publicly traded companies. Anyone retaliating against a corporate whistleblower can now be imprisoned for up to 10 years. The Department of Labour (DoL) is required to complete its adjudication of whistleblower cases within 180 days, failing which the whistleblower may either elect to stay with DoL or seek a de novo trial in court. Remedies include reinstatement, back pay with interest, compensatory damages, special damages, attorney fees and costs.

The U.K.’s Public Interest Disclosure Act of 1998 is a unique piece of legislation providing protection to employees in the public, private and non-profit sectors, including those working outside the U.K. Under the law, employment tribunals have power to `freeze’ a dismissal and make unlimited compensation awards.

South Africa has followed the U.K. example in providing protection to employees of all organisations through its Protected Disclosures Act of 2000.

A number of countries such as Australia, Canada, South Korea, Argentina, Russia, Slovakia, Mexico and Nigeria have enacted or are in the process of enacting whistleblowers protection legislation (but only to government employees).

Protecting whistleblowers in India

During the past decade, scams, swindles, and rip-offs have become a regular feature of the Indian political and corporate landscape, costing taxpayers, investors and banks thousands of crores of rupees. Enactment of a Whistleblowers Protection Act is even more necessary for India than it was for the U.K. and the U.S. Together with the Freedom of Information Act (which received Presidential assent on January 19, 2003), it can be a potent tool for promoting good governance in the country. What we lack at the moment are public interest groups like the Government Accountability Project and the National Whistleblower Centre in the U.S., and the Public Concern At Work in the U.K., to lobby for whistleblowers’ rights and defend employees against retaliation.

Based on the experiences of other countries, I wish to suggest a set of general principles, which could usefully underpin any effective Indian legislation on the subject:

* With the consent of the required number of State governments, Parliament should try to enact a single Act for all employees working in any tier of government (including employees of any instrumentality of government whether autonomous or semi-autonomous), and also for employees working in any form of organisation in the private and voluntary sectors. Employees of contractors, sub-contractors and agents of an organisation; applicants for employment, former employees and overseas employees; attorneys and auditors should also be covered.

* The Official Secrets Act should be overridden to provide for a public interest defence and the `gagging clauses’ in employment or severance contracts should be declared void in respect of public interest disclosures.

* It is a moot point whether the Act’s protection should be extended to members of the armed forces, the secret services and the police. In my opinion, it should be — subject to the condition that the disclosures shall not jeopardise operations or endanger the lives of personnel. The judiciary may have to remain outside its purview unless the Contempt of Courts Act is first amended to provide for a public interest defence.

* What constitute `public interest disclosures’ need to be clearly defined. In my opinion, the protection should apply to specific disclosures only involving an illegality, criminality, breach of regulatory law, miscarriage of justice, danger to public health or safety and damage to environment, including attempts to cover up such malpractices.

* The whistleblower must reasonably believe that his information about a malpractice is substantially true, and must act in good faith. Those caught making anonymous or pseudonymous leaks should not be protected. The period of limitation for filing a complaint must be sufficiently long (say, 1 year).

* The Act must encourage employees to raise the matter internally in the first instance and mandate organisations to establish suitable mechanisms for this purpose. Where it is not reasonable to raise the matter internally, or where attempts to remedy the matter from the inside have been unsuccessful, employees who make an external disclosure in a specified way should also be protected. What should be the `specified way’ is a matter of debate. In my opinion, apart from certain `designated offices’ (such as SEBI, Pollution Control Boards, etc.), public interest disclosures to MPs and MLAs; employee unions and associations; and reputed public interest groups must be protected. Disclosures to the media may also be protected in rare cases but the burden of proof to show reasonable cause must be overwhelmingly on the whistleblower. The protection should extend to all forms of retaliation and the remedies should be similar to those provided in the Sarbanes-Oxley Act, including criminal liability for retaliation.

* There should be a `fast track mechanism’ for adjudication of cases on the lines of the Sarbanes-Oxley Act. Whether the existing Administrative and other tribunals should be strengthened to do the job or new agencies created are points for decision.

Zero tolerance

As things stand today in India, the chances of enacting such legislation may seem remote. But whistleblower protection measures are gathering a momentum of their own around the world, aided partly by spectacular government and corporate scandals. It is just a question of time before we shift from our present culture of zero tolerance of whistleblowing to a culture of zero tolerance of whistleblower retaliation.

This is a court of law, young man, not a court of justice

- Oliver Wendell Holmes

When Khalid Sheikh Mohammed and four other self-confessed perpetrators of the 9/11 attacks stand trial in the Southern District Court of New York  next year,  something about the law that’s unique to the justice system in such high-profile, polarizing instances will come to light.

Its indeed an “honourable” decision to put the detainees to task within the framework of the legal system (see The Hindu’s editorial today) – it would have been far more easier to hold the trial in a military tribunal – and probably come out with the death penalty. In a country where the death penalty has its ardent supporters, even its vocal opponents would’ve hesitated to challenge the verdict in such a heinous act. Sure, the prosecutors would’ve had trouble with issues of torture and waterboarding – but when the jurisprudence of a nation is emphatically in support of the ‘national security’ paradigm, in comparison to the ‘civil liberties’ one, no earth-shattering conclusions are expected.

So why is the case being referred to a civilian court, where the standards are admittedly higher than in military commissions? Does it signify the Obama administration’s commitment to human rights and fair trial? Yes and No. The whole process is angled at Gitmo’s closure, and to move the detainees to a high-security prison near Illinois. And a trial under federal laws is necessary to move them to federal soil, for which the Congress must be given prior notice. Incidental, is the encouragment given to a proper hearing; or rather, it is the price of closing Guantanamo Bay. After all, the detainees must be ‘disposed’ before the facility is closed!

But that’s a debate for another day. What the administration does not realize (or probably does, but is helpless) are the law’s ‘fancies’, to be a little dramatic. When KSM has been waterboarded no less than 183 times, and his comrades tortured to equal extents, will the NY Court accept a confession made under such circumstances? Will jurors,  sworn under oath and required to be selected from the Southern District – minutes away from Ground Zero – be really unbiased? Can the classic doctrine of ‘personal interest’ be really effective here, when jurors have lost friends, families and relatives? And at the end of it all, will the Court actually consider the confessions vitiated, even as the glare of the public eye gets stronger by the day?

There’s no point in calling these trials a farce, as we now realize that something about the law which is unique to cases of such nature. When Kasab, now being tried in a lower court in Mumbai for 26/11 confessed, Judge Tahilyani took the confession on record and sought to continue with the hearing. He could afford to do that, knowing full well that an expected result against the young terrorist will now be substantiated by his own words, while presenting the judgment as an evidence-based verdict. Similarly, when Khalid Sheikh and his fellows have confessed, the inadmissibility of such evidence is not really relevant. Sure, there are thousands of documents and testimonies waiting to be presented in Kasab’s and KSM’s case (heck, Kasab was caught on national television during the act). But if one looks closely, these are frivolous compared to that single statement of admission that the trial must extract, to mete out maximum punishment. But in the process of extraction, there is a disconnect between what society wants to hear, and what the law says about making the detainee say it. And therein lies the problem of balancing the law and pandering to public pressure.

Justice, as it is said, must not just be done, but must also seem to be done. Will justice seem to be done if Sheikh is let off with a lesser punishment,  if he decides to retract his confession  and claim a mere minor involvement in 9/11? (Kasab has sought to do exactly this). The law must act against torture, and the standard to award the death penalty is high. These standards must go beyond moral aspirations – but then, is the law’s justice equivalent to the people’s sense of it?