Media Coverage, Mumbai Attacks and Censorship

The February issue of Halsbury’s Law monthly deals with the media coverage of the recent Mumbai attacks and more broadly with freedom of speech and censorship. As previous posts on this blog (here, here and here) and elsewhere have pointed out, there has been much criticism of the way the attacks were covered on television. M.G.Divan puts this in perspective when she notes that neither the media nor the government was prepared with a code of conduct for such situations. She says:

…[T]he problem that we faced during the Mumbai attacks was not just that the media was unprepared with a code of conduct for such situations, but more importantly, the government was as clueless about the consequences of live coverage and indiscreet information volunteered by its officers, including security personnel, all being aired while the siege was on. It appears that the government was unmindful of the necessity to issue basic directives to the media and it is highly unlikely that in a situation of such gravity, news channels would not have co-operated with reasonable requests in the interest of public security.

Culpability of the government in letting its personnel give freewheeling interviews to all and sundry and the role it played in this tragedy have not attracted the attention they deserve. Having seen how conflicting assertions by different people played its part in the recent Jamia encounter controversy, the same question needs to be asked about our investigating agencies as well.

She points out that the wide ambit of the Cable TV Act, 1995 renders any proposed amendment redundant and the government could order blackouts or censorship as per existing provisions. She argues that a code of conduct by the broadcasters association may not be of much help because (1) it only binds organizations that choose to be bound by it and (2) other forms of media such as blogs can easily circumvent such restrictions – we saw this happen during the recent Burmese uprising (before the junta shut down access to the internet). She prefers an independent media commission or tribunal set up by the government but manned by ‘independent’ media and law experts empowered to adjudicate media related complaints and order payment of damages.

Justice P.B.Sawant talks generally about the role of freedom of speech in a democracy, role of mass media and the press council and the need for responsible reporting. R. Hazari reviews case law pertaining to censorship of motion pictures on ground of obscenity and how the norms of acceptability have undergone a shift since the early decades. He concludes by pointing out that movies with social messages have been given wide latitude. It would have been more informative to read about more recent cases which he unfortunately does not discuss. Dr.S.Sivakumar reviews freedom of speech briefly in the UK and the US and provides examples of where the Supreme Court has upheld censorship on the ground of offensive or hate speech. He also talks of the dangers of commercialization, trials conducted by the press and the importance of protecting journalists. Jagdish Sagar provides an overview of the evolution of entertainment law with a discussion of recent and pending cases.

Assorted Links

1. Outcome of the Saudi rehab program for jihadists: A previous post regarding this can be accessed here. Now the Saudi government has announced that eleven former enrollees in this program have returned to join terror groups. If you include prominent figures in that, the recidivism rate appears quite high.

2. There are several articles on surrogacy and the ART bill in IJME:

a. Social and ethical basis of legislation on surrogacy: Need for debate by Imrana Qadeer

b. Regulate technology, not lives: A critique of the draft ART (Regulation) bill by Chayanika Shah

c. The draft ART (Regulation) Bill: in whose interest? by N.B.Sarojini and Aastha Sharma.

3. An interesting debate on the future of civil liberties as technology grows (link via The Volokh Conspiracy) written with respect to the US but more generally relevant as well.

a. The constitution in the National Surveillance State by Jack Balkin

b. The National Surveillance State: A Response to Balkin by Orin Kerr.

4. Nature and Science have published special editions on account of the 200^th anniversary of the birth of Charles Darwin and 150^th anniversary of the publication of Darwin’s On the Origin of Species. Below are some articles that might be of interest.

a. A debate on whether race and IQ ought to be scientifically studied or not owing to their ramifications on society.

i. Should scientists study race and IQ? No: science and society do not benefit by Stephen Rose.

ii. Should scientists study race and IQ? Yes: The scientific truth must be pursued by Stephen Cici and Wendy Williams.

Readers may also recollect the controversy evoked by James Watson’s comments to The Sunday Times on the intellectual inferiority of Africans and a robust defense of Watson by Jason Malloy.

b. Human nature: the remix (PDF is here) talks about ‘human universals’, i.e., human commonality across cultures in matters such as emotional expression, language, religion, math, morality and intertwining of biology and culture.

c. Bracing for Islamic creationism by Salman Hameed dwells on teaching of evolution and popular acceptance of the theory in the Islamic world.

Mr.John Yoo's friends in India

Mr.John Yoo, known for his work during 2001-03 in the U.S.Justice Department's Office of Legal Counsel, might have found himself out of favour with the new administration, after the inauguration of President Barrack Obama. Yoo had contributed to the U.S.PATRIOT Act and wrote memos in which he advocated the possible legality of torture and that enemy combatants could be denied protection under the Geneva Conventions, whereas President Obama is determined to reverse some harsh aspects of Bush's War on Terror. Yoo was also accused of war crime for authoring such memos. But Yoo may be surprised to know that he has won new friends in far-away Indian judicial fraternity. On January 27 at a seminar organised by the Indian Law Institute, New Delhi, Justice Arijit Pasayat of the Supreme Court and the Solicitor General, G.E.Vahanvati both found themselves in Mr.Yoo's company for what they said about fighting terrorism in India. I understand that the Solicitor-General, Mr.G.E.Vahanvati, spoke impromptu at this seminar, while it is not yet clear whether Justice Pasayat too departed from his prepared speech. This editorial in Indian Express today found Justice Pasayat's speech too jarring.

Both Justice Pasayat and the Solicitor-General may consider the ongoing debate in the U.S. following the Inauguration very relevant to what they have said about terrorism in India. While Yoo chastised President Obama in a recent article(Obama made a rash decision in Gitmo)another commentator, Charles Fried, in the course of defending officials like Yoo, made the following observation, which succinctly sums up the discomfort of those defending the indefensible while pursuing harsh counter-terrorism policies. He said:

"Our physical survival is not what is of overriding moral importance (people give up their lives all the time for some higher value) but our survival as decent human beings acting for a decent society. And we cannot authorize indecency without jeopardizing our survival as a decent society."

Right against terror

In this lucidly written piece, Abhinav Chandrachud, perhaps nurtures undue expectation from Soli Sorabjee's writ petition in the Supreme Court against terror.(W.P.[c]591 of 2008). His view that the outcome of this case will influence the fate of judicial activism and constitutional legitimacy in the coming decades, is perhaps a bit far-fetched. The comments our earlier post on this attracted show that the petition was a contradiction in terms, as the petitioner himself has been a critique of judicial activism in similar matters. Having read three recent books - one comparative, another empirical and the third theoretical - all pointing to the fallacy of the thesis that Supreme Court is seeking an activist role for itself, I am unable to share the author's rather exaggerated view of likely intervention by the Court in this matter. The next date of hearing of 'right against terror' case in the Court is on Feb.2.

Lesssons from Mumbai: Rand Corporation's Study

This study by Rand Corporation is worth reading, even though it relies much on the published secondary literature in the Indian media after the attacks, and does not reveal anything new as such. The study assumes significance if only because it was considered during the Opposition Leader, L.K.Advani's interaction with security experts in New Delhi yesterday.

Enemy Alien under the Indian Constitution

The concept of enemy alien began to intrigue me ever since I attempted to write this article. Therefore, I tried to find its basis in our Constituent Assembly Debates (link introduced on the left), but drew a blank after reading the debate for draft Article 15A on September 16, 1949. One Member,Mahavir Tyagi referred to it, but said it was agreed. Originalism appears to be of no help to know why Article 22(3)(a)was inserted in the Constitution.

Looking Inward- the lesson of Mumbai

I have written a short piece here in India Together on the lessons that we can learn in the aftermath of the Mumbai attacks. Essentially, I argue that our governance institutions are seriously undermined and there is a governance crisis in the country. Except for a few commentators (like Arun Shourie and Pratap Bhanu Mehta), very few have focused on the crisis of governance following the Mumbai attacks. The majority seem to be happy to blame an outsider for our problems (which while probably true in the current incident will not help us in future), but I argue that blaming the outsider is of little use when we are facing an internal governance crisis. I stress the need for developing a personal, societal and institutional integrity if we are to revive our governance mechanism.

Treating Terror

The latest attacks have not produced many new ideas (I am guilty of this as well) on tackling terror (virtually none at all in the Indian media as far as I can tell) with most commentators repeating existing alternatives albeit occasionally in a new light. Regardless of what yesterday’s arrests mean, it is unlikely that they will affect the phenomenon itself very much (see this report). I am posting here links to the few relatively new approaches that I have come across (some of you might have already read them but I think it is still worthwhile to post them here).

It is worth noting that the jihadi phenomenon shares features of other social maladies such as drug abuse and alcoholism. Like them, recruitment happens commonly through social networks. A recent book argues that the religious learning often comes afterwards and many of the recruits initially have little more knowledge of religion than the average secular person (you can read a review here). Actual practice provides the ‘high’ which is also reinforced by interaction within the network as well as the retribution where it materializes. Will a similar approach of behavioral therapy therefore work? Yes claim the Saudis who are using a counseling and rehab model to address the problem (see this article).

There are of course inherent problems in this approach (particularly but not uniquely in the Indo-Pak context) not the least being access to the recruits and desire for reform. One point Sageman makes in this regard is that since online fora are an important place for motivation and recruitment, introducing moderate viewpoints in such places may have a beneficial effect. This may again not be very useful for organizations such as the LeT which reportedly use more traditional recruiting methods.

For another, it may be argued that if religion is not the primary motivating force behind joining the ranks of the jihad, then religion-based therapy may not be of much help. Also, a graded approach like the one adopted for drug addicts is difficult to do here. But behavioral therapy has been reported to have been used with some degree of success in domestic violence and if found to be efficacious, may potentially have a role to play here as well.

The other has been Kagan’s proposal. Here is a critique that explains why it will not fly.

Diplomacy: The New Opium for the Masses

Some of you might have heard of virtual reality software (here is one example) where whoever signs up is given an avatar that does all the things that real people do and much more – buy property, set up businesses, entertain oneself, etc. All with one major difference. There, one can have the perfect fantasy life one aspires for but is unable to achieve in real life. It seems very much like the sort of world many of our news commentators live in today.

Pankaj Mishra, writing in NYT says that the answer is to resolve Kashmir. He appears to have completely missed the fact that Lashkar-e-Taiba has never set its sights as low as the resolution of Kashmir. Not in 1993, not now. He also seems blissfully oblivious of how the current jihadi movement has achieved the level of success that it has, i.e., as a direct fallout of the victory of the insurgency in Afghanistan. If India were to make concessions in response to these attacks, is there any doubt how that will be seen by the LeT and their supporters? When 9/11 happened, no one in the mainstream American media - not even the NYT which published this article - actually said that Al Qaeda and Bin Laden would be pacified by solving the Palestinian question. Yet, we are now being told that the answer to the Mumbai attacks is a resolution of Kashmir.

His advice to Obama: reject military force and embrace political and economic reconstruction. The honorable author should kindly inform us how he will rebuild a country when the schools being constructed are being destroyed, the girls who try to go there are attacked, the roads and bridges being built are blown up, the personnel doing all this reconstruction are being killed and how he will bring around the elements that have no compunctions about engaging in any of this. Why just stop at rejecting force? Why not sing kumbaya?

Amitav Ghosh wrote yesterday why this is not India’s 9/11. The first reason he gives is that this is just one more in a long series of attacks India has faced. True but does that mean the same hand waving that has characterized our previous responses should be repeated again? Apparently so:

“The question now is this: Will the November invasion of Mumbai change this? Although there is no way of knowing the answer, it is certain that if the precedent of 9/11 is taken seriously the outcome will be profoundly counterproductive. As a metaphor “9/11” is invested not just with the memory of what happened in Manhattan and at the Pentagon in 2001, but also with the penumbra of emotions that surround the events: the feeling that “the world will never be the same,” the notion that this was “the day the world woke up” and so on. In this sense 9/11 refers not just to the attacks but also to its aftermath, in particular to an utterly misconceived military and judicial response, one that has had disastrous consequences around the world.

…The Indian government would do better to focus on an international effort to eliminate the terrorists’ hide-outs and safe houses, some of them deep inside Pakistan. India will also need to cooperate with those in the Pakistani government who have come around to a belated recognition of the dangers of terrorism… A buildup would indeed serve no point at all, since this is not the kind of war that can be fought along a border, by conventional armies. The Indian government would do better to focus on an international effort to eliminate the terrorists’ hide-outs and safe houses, some of them deep inside Pakistan. India will also need to cooperate with those in the Pakistani government who have come around to a belated recognition of the dangers of terrorism...It is clear now that Pakistan’s establishment is so deeply divided that it no longer makes sense to treat it as a single entity. ”

Siddharth Varadarajan who normally writes more sensibly seems to have caught the same bug:

“In the quest for a stern and fitting response, all options, including casually-bandied about military ones like ‘surgical strikes,’ flounder on a simple fact: the only force capable of defeating terrorist groups like the Lashkar-e-Taiba, the Jaish-e-Mohammed, the al-Qaeda and the Taliban which operate from Pakistani soil is the Pakistani state itself. And the Pakistani state needs to take up this task urgently if it is to avoid imploding or becoming the next target in Washington’s ongoing ‘war on terror’.

… Rather than threatening a ‘limited war,’ surgical strikes or a suspension of the peace process, the logic of this metastatis is the most compelling argument India can marshal in its quest for the international community to insist that the Pakistani military make a final break with jihadi groups. The war that was launched in Mumbai will only end when the Pakistani military is compelled by the world and its own people to end its war on its own society. India can help this process by finding ways to help tilt the balance of power further in the direction of the civilian government. At the very least, it should do nothing that will tilt things the other way.”

I wonder where either of these authors has been all these years when attempts have been made to do just that, i.e., get Pakistan to shut down the terrorist infrastructure in their territory. It has not succeeded before and the summary rejection of India’s demands for handing over any of the men on the list of 20 suggests a replay of the very same events. Today’s NYT quotes an Indian official saying why even the composite dialogue has not helped this process at all: every time a lead is handed over to Pakistan, it is simply returned with the stock reply that it did not check out (B.Raman, without saying in so many words also asserts that this counter-terror mechanism is a farce). So, what is the solution if all this pressure does not succeed as Ajai Sahni predicts (and is widely expected)? More hand wringing? More demarches/protests? More debates/ resolutions by the diplomatic genteel in air-conditioned chambers?

Yet, we are told, a 9/11 type of response is not the answer. Apparently, the fact that a number of Al Qaeda leaders have been caught or killed including Khaled Sheikh Mohammed, the mastermind of 9/11 does not matter. Nor does the fact that the organization has since been denied the benefits of a regime and a country that aided its efforts or that no further attacks have taken place on American soil. No, we are asked to follow the example of Spain which incidentally faces a threat nowhere near that of India. We are nevertheless supposed to keep up the talking perhaps in the fond hopes of exhausting our enemies through sheer verbosity!

Another argument is that we can no longer treat Pakistan as a single entity but must acknowledge that there are multiple centers of power. Unfortunately, the jihadi groups have no diplomatic corps of their own that we can talk to. Nor for that matter does the ISI or rogue factions in the army which have allowed them to operate freely. We talk to the same folks we have always been interacting with and only come to know of the outcome when we are informed about it. Their internal power dynamics being largely beyond our control, what difference does it make how many centers exist so long as those in office cannot offer us anything worthwhile or keep their word when they do so? Is it any more comforting to know that President Zardari is unable, not unwilling, to act against these outfits? In fact, if the problem comes from a part of their governmental apparatus that is not open to public scrutiny, that is all the more reason for outside intervention.

Another brilliant analysis and suggestion comes from Sitaram Yechury (incidentally seconded by The Hindu and partly by John Cherian in Frontline) who blames the nuclear deal for our tragedy. How convenient. Never mind that these attacks have grown in intensity and their focus has expanded well beyond the borders of Kashmir long before the deal was even conceived – the attack on Parliament is a case in point.

And his answer? Approach the UN Security Council. Mr.Yechury ought to let us know how this UN committee will magically enforce what none of the big powers has so far been able to do. Barring the US, other powers are not even willing to try. There has been enough grumbling from the European members of NATO to contribute troops for combat even in Afghanistan, let alone extend the mandate to Pakistan. As Ajai Sahni wrote, Pakistan has weathered many such storms and can be expected to do so this time as well. If there is a better way to give the terrorists a free pass, I could not conceive of it. Is it any surprise then that Hamid Gul, the foremost defender of jihad, has embraced our communists?

The EPW published an editorial on the Mumbai attacks that contains not a single word on what needs to be done, only on the things we have to avoid. If repeated horrific attacks orchestrated from outside only make our leading commentators respond with stoicism, sullen acceptance and self-incrimination of this sort, it signifies pathology more ominous than the pathetic weakness that is already evident.

We have long been advised by these and other worthies that all terrorism is dastardly and our answer, apart from verbally condemning it, should be to maintain harmony and stand firm. Right through this latest attack, our society has managed to do just that. Yet, not only have the attacks not stopped but have accelerated in frequency, enhanced in potency and enlarged in scope over the years. When the effect of this old mantra started to wane, we were told that aggressive diplomacy to build international pressure would have greater success. Following several anti-terrorism resolutions as well as a ban on the LeT (in 2001), the country has been made painfully aware of the lie this always was.

Now the same medicine is being administered once again this time in combination with an opioid to calm our nerves by weaving a new fantasy that claims that Pakistan itself will implode or become Washington’s next target should it fail to act. For one thing, we are unable to convince those who are killing us (or aiding the exercise) of this logic. Nor do they seem to care what excuse we make up for our own inaction (perhaps it reinforces their prior perceptions of Hindu weakness; after all much of their literature extols the achievements of Ghauri and Ghazni in that light). Secondly, if only a small number of committed and focused attackers who are not expected to survive the operation are provided the sort of specialized training that was on display here, their handlers have little to fear from random actions or of misdirected effects.

Thirdly, the heightened domestic violence has if anything only undermined the authority of their civilian government which is thought to have little control or say in any of this. So who stands to gain from an atrophied civilian apparatus unable to meet popular expectations? Surely it is the unaccountable branches of government and their supporters outside. The emergence of the Pakistani army as an independent state-within-a-state has not been an overnight transformation but a gradual one aided by the repeated failures of civilian leadership. The enormous success of LeT’s parental organization, the Jamaat-ud-Dawa in raising funds, building schools, colleges and hospitals can likewise be equally attributed to the failure of their state to provide these services. If the religious proselytization and terrorist training can hasten the transformation of their state along fundamentalist lines governed by an emasculated civilian authority, so much the better for their own future. Why would such a governing structure that benefits so much from such a coalition want to voluntarily forego it all suddenly by succumbing to international pressure? More importantly, is there even a semblance of a basis to the fond but deluded hope of such a radical shift from within? Yes, the government may ban the organization and arrest its top leaders temporarily but do we seriously expect it to muster the will to shut it down entirely and choke its finances? That is quite a tall order given the extensive network they have built over the years and the goodwill they have accrued through their charitable activities.

Lost amidst all these prevarications is how the jihadi groups and their supporters in government perceive our non-response. Following the success of the parliament attacks and the withdrawal of our army from the border, Masood Azhar emerged a hero to the far right. If the storm abates again this time with our retribution restricted to diplomatic chambers, we can expect Hafiz Saeed to be feted as a glorious warrior in the most hallowed Islamic traditions who has stood up to the great tyrant, India. Not only does this bode ill for any government looking to tamp down on his activity, it will only serve to strengthen his organization in one form or the other (assuming the current avatar is banned) and augment its capacity for future mayhem.

The last argument for inaction is that it will unite all the jihadi groups with the Pakistani army against the common foe, India. This view has gained some ground following a preliminary effort at rapprochement between the two sides. If we buy into this argument, we must be under no illusion about the costs. The status quo would prevail indefinitely into the future (the war against the Taliban is nowhere near conclusion) in which case, India will continue to hemorrhage without end. If things take a turn for the worse with a weakened civilian dispensation, that will be no less dangerous to us. The example of piracy emanating from anarchic Somalia is right before our eyes. Finally, if and when the time indeed arrives when we decide to confront the menace, for the reasons mentioned above, we will likely face a foe with more resources and a reach greater than what it currently has.

That our domestic surveillance and intelligence apparatus needs to improve is not in doubt. I would also second the idea of an inquiry commission on the lines of the 9/11 commission set up in the US to apportion responsibility and make recommendations. But given the nature of the attacks we have faced in recent times, it is clear that virtually anyone can be hit anywhere and with relative ease. Markets, hotels and even a scientific institution have been attacked. Corporate offices have been reportedly targeted. That takes care of pretty much any one working in any building leaving only urban residential areas. We do not know when apartment complexes may be hit but it is not beyond the range of comprehension. It is a humongous and perhaps ultimately futile task to equip all of these places even to face bombs let alone be battle ready at all times to deal with fidayeen strikes. An attack on any of these places will guarantee a minimum number of deaths and destruction that may be considered adequate pay off for the investment made by the individual or organization planning it. Even if the individuals come from outside the country, a success rate of one in ten that achieves a spectacular display of carnage could be deemed sufficient to justify the effort. All this is apart from the fact that it will take years to reform our security organizations to live up to this task. The notion that we can somehow protect ourselves from this growing menace without being able to get to its source is an delusion of gigantic proportions that we can ill afford.

The PM’s idea of an investigative agency may have its advantages but is relatively worthless from the standpoint of either prevention or diplomatic persuasion. Those willing to believe our claims have already come around to our view point while those who refuse to be convinced show no sign of changing their position. Besides, the foot soldiers involved here are ready to die during the operation and their masters are beyond our reach. With an enduring supply of cadre at their disposal, they can afford to use a fresh group for every attack. That means convicting those found this time is of no help to prevent the next outrage. Why this has suddenly become an urgent priority is therefore not clear.

To paraphrase Churchill, we have repeatedly chosen dishonor over war. War has therefore now been thrust upon us. It is time to strike back.

Salve at Oxford - Terrorism and (a political analysis of) PILs

Mr Harish Salve, former Solicitor-General, gave a talk last night (03 December 2008) at Exeter College, Oxford. The two themes he discussed are summarised below:

On terrorism:
Mr. Salve noted that this attack has been perceived differently, whether or not it was in fact different (he acknowledged, without accepting or rejecting it, the explanation that this may have something to do with the fact that this time the rich were targets). But he did say that the thing most different about this attack was the reaction of the 'middle classes'. Speaking as a lawyer, he lamented that the most immediate fall-out is likely to be a thorough discrediting of the human rights discourse. He also referred to the intense pressure the government is under to act swiftly and decisively, and worried that this might lead to hasty actions. Whatever the outcome, he believed that the incident has the potential to reshape the geo-political realities of the region, and perhaps the world, and also have very important implications for domestic politics in India.

My Comments -
Arun has referred to Darryl Li's brilliant analysis on this blog, which argued against the dangers of seeing this incident, dastardly as it is, to be unique and transformative. Mr. Salve indicates that whether we like it or not, the preception is definitely that this is India's 9/11. My own hypothesis is that in being a drawn out rather than an instantaneous event, captured live on television and CCTV cameras, must have something to do with our perceptions. Images can be powerful, especially if they linger. Its real parallel with 9/11 might lie in the role playes by these images in shaping our perceptions of the events (remember the planes hitting the twin towers?).

On public interest litigation:
Some of the talk entailed detailed explanations for an international audience, but it did contain some original analysis which might be unfamiliar and will interest us here. Mr. Salve contextualised PILs as a tool used by the Supreme Court to establish its identity as 'a relevant institution of government'. This is the same theme he elaborated upon in his last talk in Oxford, which was reported on this blog.

He proceeded to give a historical account of India's judicial system, with its roots in colonial times. He mentioned anecdotally that low-caste villagers involved in land-disputes would join the British army to become eligible to access the colonial government's courts rather than the local panchayats (and thereby improving their chances of success).

He then traced the foundation of the Indian Supreme Court in the image of the US SC, although the young Court remained fairly conservative till the mid-60s. Mr. Salve offers a very interesting analysis of the right-to-property cases of its early years. He explains that the Court had no problem when the government took on feudal powers, abolition of zamindari being an example. It was mainly when capitalist institutions like banks and industries were interfered with by Mrs. Gandhi that the SC took up the mantle to defend them.

He then outlined the embarrassing role played by the SC during emergency (in ADM, Jabalpur) and the subsequent need to reinvent itself institutionally. He mentioned the part played by judges like Krishna Iyer and Bhagwati through the '80s. This decade saw great strides in cases relating to prisoners and other marginalised sections of society. Although these cases can be seen as disturbing the institutional balance of branches of government, they did not invite any serious opposition from the other branches of government because they left the political elite largely undisturbed.

In the '90s, he said, the PIL jurisprudence came to focus on two broad themes
(1) environmental activism, which has largely continued in the new century.
(2) activism relating to transparency and good governance. Cases like Vineet Narrain took on the political elite which was hitherto undisturbed. This led to a backlash from the political elite we have seen in recent years. The judgment in Association for Democratic Reforms, discussed previously on this blog, is an indication that the SC is prepared to backtrack on this issue.

In response to a question, Mr. Salve said that the SC has consistently refused to apply the same standards of transparency to itself and what we have instead is obscurity on the functioning of the Court itself (he particularly mentioned the unsatisfactory manner of appointment of judges). In response to another question, he said that the presence of someone like Justice Katju has forced rethink on the Court's institutional role and might force the court to put PILs and separation of powers on sounder doctrinal footings.

Disclaimer - I have tried to report honestly, but there might be errors due to miscomprehension on my part. I reserve the right to made suitable modifications if such error is pointed out to me by the speaker or any of the attendees.

Mumbai attacks: Why calling it "India's 9/11" is problematic

Today's Indian Express features an op-ed by Darryl Li - who is part of the legal team that is defending the Guantanamo detainees - addressing the point raised in this post's heading. Li's analysis is interesting and thought-provoking, especially because he self-identifies as an American. Here are extracts from his piece:

" ... India does not need to invoke 9/11, either to summon the kind of solidarity and courage found on that day, or to justify the kind of repression that followed; it is amply capable of both on its own, or of charting a completely different path.



What having one’s “own 9/11” does mean, however, is to possess an Event that somehow transcends history or context, and therefore politics or justice. In reducing so much to that single point on the calendar, too many Americans elevated it above what came before and what followed. This insistence on saturating discussion and imagination with only our own suffering came at the precise moment when what was needed most was a capacious commitment to fostering common human security based on a foundation of justice.



The initial and oxymoronic codename for the invasion of Afghanistan, Operation “Infinite Justice”, captured this mentality perfectly: infinitude promises a be-all, end-all (yet never-been and never-ending) “solution.” It cannot coexist with any meaningful notion of justice, which requires the very finite concepts of balance, responsibility, and reconciliation.



Seen in proper perspective, the enduring significance of 9/11 was that a very small part of humanity was suddenly exposed to the kind of existential vulnerability that a significantly greater proportion lives with every day — and then largely refused to recognize that commonality. Yes, there are obvious analytical and normative distinctions between different kinds of political violence in the world. But one need not accept a “moral equivalence” between state and non-state violence to recognize that an honest conversation is not possible if only one side defines whose suffering counts and whose does not.



Invoking 9/11 has too often been a way to close one’s eyes to terrors experienced elsewhere in the world, including India. Which is why for Indians or anyone else to seek possession of their “own 9/11” is strange. Rather than selectively enlarging the exclusive club of those who can blithely dismiss the fears of others, it would seem that the task demanded by human solidarity is to dismantle that privilege altogether."

Li’s analysis should give pause to the pundits and media personalities who are throwing the term around quite loosely. (The original formatting of this post apparently gave rise to the impression that this included some of my own analysis - I've changed the format to make things clearer).

Sibal on the UPA's approach to tackling terrorism

Today's Indian Express features an op-ed by Kapil Sibal who seeks to respond to the call for reviving POTA, while explaining how the UPA government views the issue of tackling terrorism. Given that Sibal is a Cabinet minister in the current government, the piece also seeks to make political points, and has the flavour that one can expect in such pieces. However, some of the statistics he lists are interesting to the extent that they demonstrate that India was not necessarily better off under the NDA regime when there was both a 'tough' anti-terrorism law (POTA) and a tough talking Home Minister (LK Advani).

In the rest of the piece, Sibal focuses on the need for institutional responses beyond enacting anti-terrorism statutes. This seems quite persuasive, even if one may want to hold judgment on the efficacy of the institutional responses he says have been set up by the UPA government. The thrust of Sibal's argument seems to be in the following lines:

"We need to differentiate between combating terror and dealing with terrorists, which require separate strategies. Dealing with terror requires an institutional response and dealing with terrorists requires a legislative response. This subtle distinction is lost on the BJP."

This may make for good rhetoric, but I am unsure whether this is based on sound logic or good sense. I will readily confess that the "subtle distinction" is lost on me as well. By itself, 'combating terror' doesn't seem significantly different from "dealing with terrorists". Sibal's forced distinction reminded me of the controversies which have surrounded the Bush administration's use of the phrase, "War on Terror."

In the latter half of his piece, Sibal explains that in his conceptualization, 'combating terror' would require providing and buttressing an institutional framework that focuses on improving cooperation among security and intelligence services, and also invests in the scientific equipment and human resources that will be required to monitor and track activities of those suspected of engaging in acts of terrorism. This only drives home the inadequacy of his semantic distinction, because at least some of the strategies he enumerates will require legislative sanctions in order for them to be developed within existing institutional security and intelligence frameworks.

Sibal's overall argument is persuasive, and is also in line with global lessons drawn in the seven years that have passed since 9/11: that enacting harsh anti-terrorism laws which engender fear and hostility in Muslim populations, and are sometimes used to persecute them, is counter-productive in the long run.

ARC report on combating terrorism

The Report released by the Administrative Reforms Commission on combating terrorism is here. The report requires a detailed analysis. To begin with, it appears it favours a return of POTA, but is sheepish to admit it. On the question of making confessions to police admissible evidence, it says it favours it, but only after comprehensive police reforms are introduced. On bail provisions and period of detention, I don't notice any substantial difference between POTA and the report. It favours a federal agency to combat terrorism, and empowering CBI for the purpose through a special law. The state police is expected to provide logistic support to the CBI for investigating terror crimes. Whether it will be an effective substitute to a federal agency is not clear.

The Report is against the state laws on organised crime, and finds MCOCA as insufficient in its definition of the organised crime, safeguards against abuse, and competence to deal with crimes with inter-state ramifications. But the unravelling of the Delhi blasts has shown that even without a proper mechanism to facilitate inter-State exchange of information, Gujarat police and Delhi Police were able to exchange intelligence, and help investigation. An inter-State agency involves massive efforts in resource mobilisation, and is probably against the federal scheme, let alone the time it may take to create it.

But there is a silver lining. ARC has recommended that there should be a ‘Review Committee’ to examine each registered case within 30 days of registration to assess whether a prima facie case has been made out by the investigative agency. This, the report boasts as a significant safeguard.

How should liberals respond to terrorism?

Jaipur, Ahmedabad, Bangalore and now Delhi. There seems to be no let up in terrorist violence this year. How should liberals react to the deplorable violence perpetrated by terrorists, in the midst of a clamour for more 'stringent laws'? If the history of anti-terror legislations in India is anything to go by, this stringency will reflect in POTA/TADA-like laws liberals tend to dislike - reverse onus clauses which presume guilt rather than innocence, death penalty, admissible confessions to police officers, privacy violating surveillance. And yet, terrorism itself violates the core liberal value of respect for the individual person.

Pratap Bhanu Mehta, in this interesting article published by the Indian Express yesterday, identifies the following politico-legal solutions:

"So many obvious things to be done, creating cross-party structures to evolve a shared understanding of the problem, better coordination between the Centre and the states, legal reform, more imaginative forms of engagement with different communities to enlist their proactive help in defusing this phenomenon."

Some of these responses may be more effective than the idea that that even more stringent punishments will deter terrorists. Disappointingly, Mehta does not elaborate upon 'legal reform', but it is doubtful that this is a call for a law like POTA (his dislike for POTA was discussed on this blog three years ago in the aftermath of a previous terrorist attack on Delhi! Unfortunately Mehta's older piece linked in that post is not accessible and I couldn't find it on google either.)

In fact, yesterday's article discusses legal responses only marginally. Mehta speaks primarily to the terrorists:

"But what sort of a jihad is this, characterised by rank cowardice and bereft of even the diabolical martyrdom that usually characterises such visions? There is the appeal to a fight for justice. But what sort of conviction is this in the justice of one’s cause that it can be articulated only anonymously, and can speak only the language of bloody revenge? Then there is the narrative of victimisation: portrayals of a community at the receiving end in assorted episodes from Babari Masjid to Gujarat. But this narrative of victimisation seems to become simply a pretext. It has its own self-fulfilling logic, so that everything that happens is simply more grist for the victimhood mill. Every political party, every state organ, every media intervention is portrayed as one vast conspiracy to reduce Muslims to victimhood, as if there are no spaces left to address legitimate grievances. There is something of a subterfuge by which these groups contrive to create an impression that they are nothing but voices of the oppressed. If this is a battle on behalf of Muslims, what sort of a battle is this? For if nothing else, these acts make life more, not less difficult for Indian Muslims."

The important point to note above is the unequivocal rejection of the apologist position sometimes adopted in sections of the Left - one that identifies 'a deeper malaise' as the cause of terrorism. Mehta, of course, accepts 'a deeper malaise' but is clear that it is neither an explanation nor a justification of terrorism. Note, in the following quote, that he identifies the sense of (real or perceived) 'victimisation' in all communities, implying that the solution cannot be community specific. He poses his question to the state thus:

"The disquieting challenge is going to be this. While there may be widespread revulsion against terrorism, what will be the form of politics that will overcome the sense of victimisation that is now creeping in on all communities? How will we break the vicious circle the Indian Mujahedeen have identified: that any action taken by the state, investigation or punishment will be taken as further evidence of victimisation? Can the state overcome the accusations from all sides that it is partisan in the prosecution of its core duties? It may turn out that our biggest vulnerability is not communalism; it is a state structure now floundering for credibility, legitimacy and effectiveness."

He goes on to commend the frustration of the main goal of recent terrorist attacks - to spark a backlash:

"The silver lining is that so far the backlash this dare intends to provoke has not occurred. It is clear that these groups do not appear to have an interest in justice; they have an interest in polarisation. In so far as this polarisation does not become visible, at least something of a resistance to terrorism is being offered."

Finally, Mehta laments that 'No state has more experience of handling terrorism than India, yet there seems to have been no institutional learning, reorganisation or innovation in dealing with it.'

I think it is a very well-written article, but it left the lawyer in me dissatisfied (it seems that his inaccessible older article on terrorism addressed some of the issues I am about to raise). I know I don't want the return of POTA. I believe that majority and minority intolerance feed on each other and every jihadi terrorist attack strengthens the Hindu Right (and vice versa) - so, I desperately want this government to 'do something'. But mere appearances will not be enough. I want the state to do everything it can to prevent terrorist attacks and prosecute the perpetrators, without violating civil liberties. How does one achieve all of these goals? Can intelligence agencies be restructured to be more effective? Can the problem of centre-state co-ordination be solved by institutional reforms? How does one protect a community from harrassment and innocent individuals from becoming scapegoats when a case is 'cracked'? Does a solution really lie in addressing the 'deeper malaise' through fairness-enhancing measures like anti-discrimination laws? Then, what does one do in the short term, if anything? Are POTA-like laws even effective against terrorism, or are they just for keeping up appearances? Has there been any criminological study to examine this?

Perhaps terrorism needs a political and societal response rather than a legal one, and a belief that laws (stringent or otherwise) will solve the problem itself is misplaced. But even then, what shape should a political response take? How can a non-partisan understanding on terrorism come about? What is the role of political leadership in the immediate aftermath of a terrorist attack? I hope the Prime Minister is asking himself similar questions.

This Day That Age

To have our own version of This Day That Age, I searched June 16, 2000 (that is the earliest year available with The Hindu online edition) to read the opinion piece it carried on that day. What I found was an interesting piece by Rajeev Dhavan on the Law Commission headed by Jeevan Reddy, just on the heels of its report on the Prevention of Terrorism Bill. Dwelling on Justice Reddy's free speech jurisprudence, when he was on the Supreme Court, Rajeev Dhavan regretted his volte-face as the head of the Law Commission.