Press reports tell us that security forces are 'set to take control' of Lalgarh in a few hours. It seems that the various groups involved in the conflict include 'Maoists', 'CPM-supporters', 'Trinamool-supporters' and the 'police'. There are no 'people' left in this conflict. This moving video made by a fact-finding team in Lalgarh highlights the role that the police has played in the area. Villager after villager narrates tales of rape, torture and illegal detention by the police, which acted with complete impunity. Add to that a denial of access to even the meagre social security measures provided by the Indian state, and you have all ingredients for a rebellion. Bengal, Chhattisgarh and Gujarat are perhaps only extreme examples of the police state that India is, and a colonial system of governance that continues to thrive.
The rot is set too deep. The CPM government being routed in the next assembly elections will be well-deserved. Questions of land-ownership, industrialisation and land-acquisition will require political solutions. But an important part of the problem, as the video demonstrates, is not just what the state does but how it goes about doing it. While reasonable people may disagree on industrialisation, how can there be any disagreement on torture, rape and illegal detention? Will the Mamata Banerjee administration change this colonial system of policing and ensure structural police reforms in Bengal? Will her administration repeal impunity provisions, and ensure accountability for acts of torture? Given that most of these issues are covered by the concurrent list, why doesn't the centre act towards preventing more Lalgarh's rather than merely react to them with even more force?
Opinions on Lalgarh: Saubhik Chakrabarti in the Indian Express, Telegraph Editorial, another Telegraph editorial, Hindu editorial, Kumar Rana in Kafila, Aditya Nigam in Kafila.
Some of the above call for a swift security solution to the problem. Yes, violence by Maoists must be checked, but if all we get is a security response without accompanying structural reform of policing and governance, we can rest assured people in Lalgarhs all over the country will keep 'boycotting' the police.
Showing posts with label political violence. Show all posts
Showing posts with label political violence. Show all posts
Saturday, June 20, 2009
Friday, May 29, 2009
Punjab violence: Applying the tort liability case
Recent events of violence in Punjab after the assasination of a Sikh guru in Vienna fall squarely within the type of cases that the Supreme Court intended to cover while delivering its judgment in In re Destruction of Public and Private Properties v. State of Andhra Pradesh and Others (2009) [discussed on this blog previously]. I will reproduce Namita's helpful summary of the directions given in that case:
Will the Punjab and Haryana High Court now follow these clear directions of the Supreme Court?
1. Wherever a mass destruction to property takes place due to protests etc., the High Court or, where more than one state is involved, the Supreme Court can initiate suo motu proceedings to investigate the damage caused and to award compensation.
2. In each case, the court shall appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.
3. The Claims Commissioner may seek court instructions to summon video or other recordings from private and public sources to pinpoint thedamage and establish nexus with the perpetrators of the damage.
4. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. The court will apportion liability between the actual perpetrators of the crime as well as organisers of the event giving rise to liability.
5. Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.
6. Damages shall be assessed for causing destruction to public and private property as well as for causing injury or death to a person or persons and finally for costs of preventive actions by the police and the other authorities.
Will the Punjab and Haryana High Court now follow these clear directions of the Supreme Court?
Thursday, October 23, 2008
Making violence costly
Maharashtra cabinet has approved an Ordinance to amend the Police Act apparently making a political party or an organisation liable for damages caused to property by its workers. The finer details need to be examined. I had argued for a similar proposal in the aftermath of the Gujarat pogrom. On the face of it, I think, the idea is a good one, provided
(a) it does not become a tool to gag non-violent protest,
(b) does not become an alternative to criminal prosecution for violence,
(c) targets the 'leaders' and the organising party behind the agitation rather than the foot-soldiers,
(d) compensates for damages to private as well as public interests and includes not just violence against property but also against persons.
If anyone has access to full-text of the Ordinance, please post it here.
Update - Venkatesan helpfully draws attention to the Thomas Committee, which has been tasked by the Supreme Court to look into the precise question of tackling political violence. A previous post mentioned this committee, but there is still no news on when it is submitting its report (if it hasn't done so already).
Update II - It is rather ironic that the first political organisation to have received compensation under the new law is the VHP - the case does indicate that political parties are fined rather than foot-soldiers, which is a good thing. And if this first case is anything to go by, the implementation mechanism appears to be unbiased. The news report also mentions that violence against public as well as private property will invite compensation orders. Only, the sum of compensation ordered - Rs. 20,000/- seems to be too small to have any deterrent effect (but perhaps, the cumulative effect for a regular offender may be deterrent).
(a) it does not become a tool to gag non-violent protest,
(b) does not become an alternative to criminal prosecution for violence,
(c) targets the 'leaders' and the organising party behind the agitation rather than the foot-soldiers,
(d) compensates for damages to private as well as public interests and includes not just violence against property but also against persons.
If anyone has access to full-text of the Ordinance, please post it here.
Update - Venkatesan helpfully draws attention to the Thomas Committee, which has been tasked by the Supreme Court to look into the precise question of tackling political violence. A previous post mentioned this committee, but there is still no news on when it is submitting its report (if it hasn't done so already).
Update II - It is rather ironic that the first political organisation to have received compensation under the new law is the VHP - the case does indicate that political parties are fined rather than foot-soldiers, which is a good thing. And if this first case is anything to go by, the implementation mechanism appears to be unbiased. The news report also mentions that violence against public as well as private property will invite compensation orders. Only, the sum of compensation ordered - Rs. 20,000/- seems to be too small to have any deterrent effect (but perhaps, the cumulative effect for a regular offender may be deterrent).
Monday, September 15, 2008
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.
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.
Thursday, August 14, 2008
Thomas Committee on damage to public property
Justice Thomas Committee on damage to public property, which is due to submit its report to the Supreme Court on the 31st of August, 2008, was instituted lasy year in the aftermath of the violence during the Gujjar agitation. The Home Ministry website has a document giving brief information on the committee,but it is not clear whether it has invited suggestions from the public. Its main task is to suggest amendments to the Prevention of Damage to Public Property Act, 1984.
I personally think that a civil liability rather than a criminal one is more effective in such cases of mass violence for the following reasons:
- a lower burden of proof requiring 'balance of probabilities' is easier to satisfy
- it makes sense to demand compensation and punitive damages from the perpetrators
- it is fairer to make the leadership/party that organises the violent movement vicariously liable in a civil case rather than a criminal one. criminal liability only gets the foot-soldiers, while the big fish escape
- when asked to pay damages, these leaders cannot claim martyrdom that they do when convicted in a criminal case
- of course, in cases of gross violations involving murders, civil liability can be fixed in addition to criminal liability
- of course, the civil liability has to be heavy enough to hurt, to make this work. and an institutional mechanism that can deliver speedily enough will be needed (that perennial problem in the Indian legal system)
I made a similar argument in the context of the Gujarat riots here.
I personally think that a civil liability rather than a criminal one is more effective in such cases of mass violence for the following reasons:
- a lower burden of proof requiring 'balance of probabilities' is easier to satisfy
- it makes sense to demand compensation and punitive damages from the perpetrators
- it is fairer to make the leadership/party that organises the violent movement vicariously liable in a civil case rather than a criminal one. criminal liability only gets the foot-soldiers, while the big fish escape
- when asked to pay damages, these leaders cannot claim martyrdom that they do when convicted in a criminal case
- of course, in cases of gross violations involving murders, civil liability can be fixed in addition to criminal liability
- of course, the civil liability has to be heavy enough to hurt, to make this work. and an institutional mechanism that can deliver speedily enough will be needed (that perennial problem in the Indian legal system)
I made a similar argument in the context of the Gujarat riots here.
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