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The underpinnings of dangerous thinking

BJP ideologue Arun Shourie's new book Courts and Their Judgments is illustrative of the blinkered thinking and blind zeal that informs the government's draconian new antiterrorism legislation, says Parsa Venkateshwar Rao Jr

The problem with anti-terrorist legislations, like the Prevention of Terrorism Ordinance (POTO), and its predecessor, Terrorist and Disruptive Activities Act (TADA), is that they never manage to get the terrorists. For every terrorist caught, these laws enable the brutal police force in this country to arrest, torture and kill scores of innocent and poor people. The State becomes a monster because it wants to save the people from other monsters. It is a heavy price to pay at the worst of times.

And anyone opposing anti-terrorist legislation is accused of sympathising with the terrorists, and the vulgar rhetoric of jingoism is whipped by the high and the low in the ruling party.

Though many, especially in the media, are concerned about the restrictions that the new ordinance imposes on journalists, what is even more dangerous is the fascist philosophy of a "strong state" which underpins it.
This philosophy is preached without any apologies or nuances by the best of people in the present Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government. Though people like Home Minister L K Advani, a known hardliner, is an enthusiastic proponent of arming the state to the teeth with inflexible laws, the rationale, and the most blatant kind at that, is provided by the ideologues in the party and the government.

We need not look too far for the ideological statement behind the ostensibly anti-terrorist legislation, which this government wants to impose on the country. Minister for disinvestment and controversial author Arun Shourie has recently written a book called, "Courts and their Judgments". Aptly titled "Some rules of thumb", chapter 11 sets out the case on behalf of the police with a dangerous kind of naïveté:

"'Sir, for a moment put yourself in the kind of situation in which we are every other day,' a police officer said. 'A young girl has been kidnapped. The kidnapper has been caught. But the girl has not yet been recovered. Where she is being held is not known. One member of the gang of kidnappers is caught. He is brought to the police station. Should the investigation officer offer him a cup of tea, and try to cajole into revealing the whereabouts of the girl, or should he use third-degree methods and extract the exquisite information from him?'"

Shourie tells us that the police officer made this remark during a discussion organised by the Delhi police on "balancing human rights and the needs of law enforcement".

And he quotes a senior lawyer at the discussion saying, "We should leave that decision to the policemen on the spot, but he should lean towards the side of law."

Shourie is not too happy with even that bit of moderate caution. He retorts in the following paragraph, "The presumption behind even such a cautious remark is that policemen do not adhere to the second part of the senior advocate's rule: that all too often they overstep the limits prescribed by law."

In an enraged tone, he argues, "The problem is that the rest of us stick to neither part of the rule. Imagine that the girl is someone we know - our sister, a niece. We would want the policeman to do whatever he wants, so long as he extracts the whereabouts of the girl from the kidnapper, and rescues her.

"Similarly, when the policeman on the spot has in fact taken the decision and acted accordingly, and especially once the problem is over, we march in and arraign him for doing what he thought was appropriate. Not just what he thought was appropriate, we arraign him for doing what we ourselves were screaming to do. What else explains the prosecutions of policemen in Punjab that we just considered? Prosecutions which have been instituted after a concerted campaign by religio-politicos who went from congregation to congregation exhorting people to file complaints against those who had prevented Khalistan from coming into being. Prosecutions that have been instituted in contravention of the substance, if not the letter of the law."

A book on courts and judgements, we would expect, would give both sides of a case, which is what "judiciousness" is all about. It does not occur to Shourie to raise some simple questions. For example, in the case of the kidnapped girl, it is perfect if the kidnapper is tortured to save the innocent victim. But what if the wrong person is accused of being a kidnapper, a thief, or a murderer, and is tortured to get a confession out of him for a crime the person had not committed. Shourie does not even consider the possibility that the police catch innocent people and torture them. So blinkered is the frame of mind, that the issue of the fallibility of the police force does not arise in his argument.

Similarly, he does not ask how many innocent young people were tortured by the Punjab police, and how many of them were killed? He does not even talk about how innocent people, who were arrested and tortured, went on to become terrorists. And he does not consider remedies for protecting the innocent from police atrocities.

The philosophy behind the BJP's POTO is informed by one-sided blind zeal of the Shourie kind, and that is why it poses a danger to democracy. And it does not really answer the challenge posed by terrorism.

Surprisingly, an eminent Supreme Court lawyer, Rajeev Dhawan, and a teacher of philosophy at New Delhi's Jawaharlal Nehru University, Pratap Bhanu Mehta, who had reviewed Shourie's book in The Hindustan Times and The Telegraph found the book useful. While Dhawan refrained from taking issue with Shourie's jurisprudence, Mehta found it praiseworthy. It seems the arguments quoted here did not disturb them at all.

There is also a need to look at the complex reasons that went into the success that marked the fight against terrorism in Punjab. It was not just the ruthlessness of the police force that did the trick. In Punjab, the ordinary people were fed up with terrorism. In Punjab, after a point of time, Pakistan stopped supporting the terrorists. And these are no insignificant reasons.

It is both a dangerous and foolish idea that terrorism can only be fought through unbridled police brutality. Laws like POTO end up making the police more tyrannical than ever.

The threat of terrorism should not be used as a ruse to make the State more tyrannical than it already is.

And people should not fight shy of opposing POTO, because it allows BJP ideologues like Shourie to throw the accusation that we are fellow-travellers. There are people who differ with the ideological persuasion of the right-wingers, and are just as determined to end the menace of terrorism. Patriotism is not the monopoly of the party in power (

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