Something About The Law

The screenshot’s from Serve.gov, a U.S State website that encourages community service and volunteer work. Ever since the Obama administration took office at the beginning of the year, the White House has embraced online social interaction, using tools like YouTube, Facebook and Twitter to facilitate a two-way flow between Government and civil society. Web 2.0, which is the collective term for new age tools of online interaction, was instrumental in Obama’s successful presidential campaign, and his office was quick to realize its importance in governance as well.

Compare this to the situation in India, where online interaction in the administrative sphere is viewed with great suspicion. Ministry websites are archaic relics, often providing outdated information, with little avenue to obtain feedback and viewer response. The functioning of the bureaucracy is veiled from public glare, with direct Government orders in certain cases (for Foreign Service officers) against using social networking tools in office. There’s no wonder then,  why the Right To Information Act has been so successful, as it provided a much-needed gateway to information that had been hitherto been unavailable.

Instead, a case may be made out for  the State to employ tools of Web 2.0 , which is not only an espousal of the democratic cause, but minimizes the burden on the RTI. As it stands now, the Act of 2005 mandates an RTI Link in websites of all public organizations/institutions. If such information were to be provided using modes of online interaction, tensions would be eased and would also foster a sense of participation amongst citizens.

A number of arguments may be pre-empted against employing such modes of interaction. The most important one is with regard to the user base that uses Web 2.0. Admittedly, it is not a priority for the rural citizenry, and is rapidly burgeoning primarily amongst the urban middle and upper classes. Yet,  social networking only augments e-literacy – basic e-literacy programmes employed in several Indian states have been found to be hugely successful. Thus, addressing the problem from the spectrum of necessity is bound to yield results.

What do I mean by this? For the urban classes, online interaction is aimed more towards the end of social and business networking, and an increasing need to stay connected for personal and professional reasons. For rural India, concerns lie elsewhere, in economic sustenance and a constant source of livelihood. At the same time, the latter constitutes our biggest electoral base, and it is important that informed decisions are taken in exercising franchise. Thus, it is the rural segments that stand to benefit from Govt-initiatives that promote a two-way flow of information online.

In addition, the advantages in building on extant social welfare measures are many if Web 2.0 is employed. Lets take the instance of using Twitter for an NREGA social audit. Twitter can be effectively employed to publicize the aims and agenda of the social audit (not just to villages, but also in cities and towns), the minutes of the social audit meeting and conclusions from it, and thereby bring larger public participation into the process. True, it requires villages near and remote to have steady internet connections and proper training (through e-literacy programmes) – but it is a heady investment and can reap significant benefits. Twitter is just one example – even Facebook can, say, be used in scheduling a public gathering for an RTI meet or a social audit and to create campaign groups in rural environs as well. YouTube could be  a forum to create channels and upload videos of these social audits and meetings. If outsourcing businesses to rural india is the new trend (see a NY Times article on the same), LinkedIn can be used as a potential employee database, without involving middlemen.

Its easy to dismiss the idea as far-fetched, purely because it needs strategic planning and considerable investment. But at a time, when ‘headless’ rural-to-urban migration is the norm, generating innumerable slums and acute living conditions for the poor, online connectivity can go a long way in  measuring the public pulse – consequently, improving governance and ameliorating torrid conditions of livelihood.

Amidst all the hype and hoopla that surrounds Obama’s first days in Office, it maybe worthwhile to take a step back and evaluate the implications of the Bush Presidency. Seldom has the post-Cold War world seen such tectonic shifts in many matters of global concern. These eight years, starting right from the doorstep of the new millennium, have dictated our thought, outlook and course of action. From January 20, 2000 to 2009, the most powerful political position of responsibility today was held by a mercurial personality, who managed to emerge both as the most and least popular President of the United States of America. Whether you adored him (like the corporate and industrial lobbies of the US) or loathed him (pretty much like the rest of the World), you just could not ignore George Walker Bush Jr. Here’s our take on what the Bush Era has meant for tomorrow.

1. Iraq, Afghanistan, the Middle East and the War on Terror.

Within one year of his taking over the US Presidency, George Bush witnessed the first major terrorist attack on an American metropolis in decades. 9/11, hence immortalized through its suffering and consequence, was pivotal in influencing the Bush administration’s foreign policy outlook towards West Asia and the Middle East. Following the launch of a global ‘War on Terror’, a belligerent Bush pursued the Al-Qaeda to the footsteps of the Taleban. Months later, Afghanistan was left in tatters, besieged by the armies of the West in a futile attempt to capture the masterminds behind the WTO strikes.

The President then trained his guns further East, onto Iraq, where the ‘outrageous’ and ‘tyrannical’ regime of Saddam Hussein had allegedly held Weapons of Mass Destruction. Portraying Iraq to be a threat to the precarious stability of the Middle East, the US assumed the patriarchal role of a superpower to chastise the rogue nation. The extant situation in Iraq is left for everyone to see; while the US is fighting a trillion-dollar war, Iraqis are struggling to find a foothold on the world map.

As the Bush Presidency is all set to be a bygone era, the world has been left reeling from an increased spate of terrorist attacks, raising incisive questions of the efficacy of a costly ‘War’.

2. The Environment and Climate Change

As a presidential candidate, Bush began his campaign with a pledge to clean up power plants and reduce greenhouse gas emissions. During the initial months of his first Presidency, he even sought to commit billions of dollars to fund ‘clean-energy’ technology. The President also assured the Congress, environmental groups and the energy industry of his full co-operation to secure a reduction in emission rates within a reasonable period of time. However, his subsequent volte-face on the matter, terming greenhouse gas reduction to be adversely affecting energy prices, shocked the environment-conscious community.

The Bush Administration also refused to implement the substantive content of the Kyoto Protocol, stating that “ratifying the treaty would create economic setbacks in the U.S. and does not put enough pressure to limit emissions from developing nations”. After years of subservience to the powerful oil and energy lobbies, environmental surveys  at the end of  Bush’s tenure indicated a marked increase in the US’ contribution to global warming and sustained ecological recklessness.

3. Human Rights and Guantanamo.

Guantanamo merits a separate post. The connecting link will be uploaded in a day’s time.

4. The State of the Economy.

The fag end of George Bush’s stint as the President witnessed the implosion of the mighty US financial sector, triggering a global economic meltdown. A consequence of hasty and often unmonitored actions of the corporate lobby, the financial downturn meant a loss of jobs for millions of people around the world in professional services. The chain-reaction of such a collapse is yet to cease, and major banks and industries continue to be bailed out by the day.

While we may have to dig deep to find positive lessons from the Bush regime, it is suffice to say that the period is dead and gone. May the Bush Presidency rest in peace.

Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.

1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).

2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.

KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.

Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.

On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.

Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:

Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.

Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.

The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.

Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;

It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.

The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.

At the outset, I must thank Aditya for giving us a casual glimpse of the Mumbaikar’s genuine reaction to the terror attacks in the city. Everything in that mail, right from the mode of addressal to the syntax, conveyed a stunning portrayal of the grim picture; something that a discourse can never hope to achieve.

Yet, it is necessary that we look forward to the future and appraise ourselves of the impact that the attacks have had on our country. Its heartening to see a spirited sense of unity that has gripped the country in our time of crisis. Political and bureaucratic accountability is rapidly becoming a buzzword in media circles, and heads seem to have begun rolling. India’s citizens want to see an efficient anti-terror system in place, and there can be little compromise on national security. The Government has, at last, responded to this rallying call, promising to usher in sweeping changes in the legal regime.

Amidst the simmering hype and hoopla about tougher anti-terror laws and a new federal security agency,however, it is imperative that we thoroughly comprehend the legal framework placed before us. The importance of public opinion on the proposed legislative solutions cannot be overstated. India has been hurt, and hurt badly. The law cannot be mere eyewash but must efficiently tackle this menace haunting us. Steps taken must not be solely curative, but must strike at the root of the matter, enforcing preventive measures. Another attack of this magnitude could have adverse consequences, well beyond our imagination.

(To be continued..)

(This post is the first among a three-part article; the subsequent ones would

a) list out the proposed changes in the legal regime and b) through an analysis of these proposals, attempt to debunk the myth of tougher terror laws.)