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| Amend law to ensure full disclosure from terrorists | | | Fali S. Nariman
"What looks, smells and kills like terrorism — is terrorism." That was how ambassador Jeremy Greenstock, Britain’s envoy to the UN, defined the subject at a Security Council debate soon after September 11, 2001.
With the hindsight of time, Sir Jeremy Greenstock, now Chairman of the UN Counter-Terrorism Committee (CTC), has modified his previous statement. He now says: "Terrorism is what the members of the UN Committee decide unanimously is terrorism" — not very helpful because, after seven long years, the UN has not yet arrived at a consensus even on the definition of the term. I prefer Sir Jeremy’s original gut-reaction, because this was the reaction of the public to last Saturday’s bomb blasts in Delhi.
The timely editorial piece in The Asian Age of September 14 (Don’t let terrorists break India’s unity) must now prompt us to revamp our criminal justice system on an urgent basis. When after investigation, individuals are apprehended on a First Information Report (FIR) in offences where the punishment is a sentence of imprisonment beyond seven years, the accused must speak (in court) as to what happened. It is high time we all recognise that in heinous offences like murder and culpable homicide not amounting to murder (of innocent citizens in terrorist-like attacks) the accused’s so–called right to silence is, at best, a privilege. Although every accused has a right to be presumed innocent till he is proven guilty, the law does not absolve him of the duty and obligation to assist the judge in the discovery of the truth — because the criminal trial is not a game in which the accused can remain a mere spectator.
The Code of Criminal Procedure 1973 recognises in Section 315 (Accused person to be competent witness) that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same time. But the sting is in the proviso to that Section which reads:
"Provided that
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial."
The Malimath Committee, in its report of 2003, had recommended that the court (and only the court) should be empowered to question the accused and if the accused continues to remain silent and refuses to answer any questions put to him by the court, the court should be permitted to draw "adverse inferences as it considers proper in the circumstances". This most useful recommendation was not accepted by India’s Parliament in 2005 — fearful, perhaps, that it may invite a Constitutional challenge. Terrorism cannot be met with temerity. Strangely, the government of the day, whilst wringing its hands in despair at loss of life, and how life could be saved by terrorist-like attacks and so on and so forth, is not willing to pass a law recommended by a Committee set up by the government itself!
Our lawmakers — Members of Parliament — must at the earliest possible moment (and this should be the occasion for prompting an early session of Parliament even earlier than that stipulated — which is now slated for end of October) introduce a law on the basis of the Malimath Committee’s recommendation. All that the Parliament requires to do is delete the words "for the defence" in the substantive portion of Section 315 and to add, after the proviso to Section 315 (quoted above), that this provision would not apply in offences where the punishment prescribed under the Indian Penal Code is more than seven years imprisonment. Just this single amendment is sufficient to put the fear of God and law in those who indulge in "terrorism" — thus far with apparent impunity. And if it is challenged in courts — so be it. At best a case will be lost, not lives!
Once a group or organisation bent on disrupting peace and tranquillity in the country becomes aware that their members, when charged and tried, would have to step into the box — failing which adverse inferences may be drawn, it would be a deterrent. Because, howsoever attentive the police force, it is virtually impossible to preempt sudden terrorist–related offences (like planting bombs in market places which always creates panic amongst the populace).
The only way to deter is to tighten up our criminal justice system. How can there be any justice to victims of this tragedy and similar other tragedies if the persons accused (may be initially wrongly accused) are not obliged to step into the witness box and say where they were, what they were doing at the time and depose to their knowledge of the facts of the incident? I would respectfully, but frankly, tell the government: "The home minister and the law minister are protected from terrorists — the people are not. Pussy-footing on terrorism is no longer acceptable to the people."
Fali S. Nariman is an eminent constitutional lawyer |
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