The State, Democracy and Anti-Terror Laws in India
A study of extraordinary laws in a democracy frequently revolves around the need for striking a balance between two of its important values pitted against each other: preserving the security of the state believed to be under threat, and maintaining the character of the state as a law abiding state. While the focus of this book remains the same, i.e. debate on extraordinary laws albeit with a focus on Prevention of Terrorism Act (POTA) in India, it does not seek to situate itself in either of the camps. Instead, it focuses on an ontological study of extraordinary laws in India, i.e. a study of the nature of extraordinary laws to understand its efficacy. In turn, the author digs deep into both sides of the argument in order to discover and unravel the various underlining aspects of extraordinary laws, rich in meaning and powerful in impact. In doing so, the author highlights the way these elements, that get suppressed in the dichotomous debate, have deep ramifications for political processes, institutions and democracy. It is these elements that the author deconstructs layer by layer in a systematic, coherent and powerful manner.
The book is based on the premise that the justification, inception and repeal of extraordinary laws is rooted in the reasons of state i.e. in political power and ideological configurations. The author illustrates this through an examination of the idea of exception that informs extraordinary laws, demonstrating how it unfolds what he identifies as a politics of erosion, exclusion and suspicion. This, the author further argues, has ramifications for people's lives, political institutions, the rule of law and democratic functioning, referred to as the 'violence of jurisprudence', a term he adopts from Paddy Hillyard.
The definition of the idea of exception then constitutes the most striking conceptual lacuna identified by the author. Determining situations which are not normal or ordinary assumes two things- "the presence of an authority that decides on the existence of an exceptional situation, and second, the notion of a 'normal' situation, existing as a counter correlate of the 'emergent'." Therefore, determining the idea of exception legally and procedurally becomes a platform for assertion of sovereign authority. The working of extraordinary laws therefore results in the state of emergency becoming permanently entrenched, thereby redefining state of normalcy. By exploring this angle, the author not only brings out the inefficiency of legal determination in a democracy to account for the establishment of inevitability of exception but also rightly questions the apparent dichotomy between law and violence.
The focus of the book is then to demonstrate how the politics of suspicion, exclusion and erosion embedded in extraordinary laws unfold. For instance, extraordinary laws require/allow the determination by the state of 'mainstream' political community and identification of those that threaten it as 'harmful' elements that cannot be resolved through normal law. Through a detailed study of specific cases of the misuse of extraordinary Laws, be it TADA against Sikhs in Punjab or slashing of POTA against Vaiko in Tamil Nadu and Raja Bhaiya in UP, the author demonstrates how the leeway to determine the 'enemy' results in a clear demarcation between 'us' and the 'others'. The other-ing of certain groups within a society results in a process whereby identity struggles and struggles for self determination get subsumed as terrorist and disruptive acts. Their ramification transcends affirmation of state authority, to creating an 'outside space' within a political community. It broadens the parameters available to the state for defining threats to national security. In doing so, he goes beyond highlighting the open misuse of the law to questioning the right of the state to use expressions like mainstream in defining boundaries of democratic politics.
He further demonstrates the unfolding of the politics of suspicion injected into extraordinary laws through a study of the communal use of POTA against Muslims in Gujarat and the use of POTA against Dalits in Maharashtra. The objective of the author again is to go beyond highlighting the misuse of POTA on communal lines. By examination of the official justifications of POTA, the author demonstrates how the logic of exception informing extraordinary laws- as necessary correctives directed against a clear enemy- facilitated the state to draw lines of conflict around groups and communities. In effect, the author is able to identify the long term consequences of extraordinary laws- targeting of minority communities not only results in rendering an entire community suspect in the eyes of law, thereby perpetuating a state of fear within the community; but it also recognizes communal disharmony as a legitimate punishable offence.
The politics of erosion manifests itself through self perpetuating provisions in extraordinary laws that are inserted as 'exceptions' to procedures of investigation and trial. For instance, accepting the provision of voluntary confession as evidence, like in the case of POTA, inherently implies recognition of the right of the listening authority the power to exonerate. Therefore, conceptually, the idea of confession is deeply entrenched in the structure of power and authority. In addition, it defies the right of the accused against self-incrimination. Similarly, by providing for arrests without warrant, extending the period of police and judicial custody, and the period within which the charge sheet is to be finalised, extraordinary laws facilitate prolonged detention. All these exceptions allow a departure from normal practice of law, irrespective of whether the procedures are followed or not, and threaten to create an alternative system. Through an assessment of the working of these provisions in specific cases (be it the The Case of G. Prabhakaran, 2002, exemplifying the working of the stringent bail provisions or the Kartar singh vs. State of Punjab case, and Mohammad Afzal and others vs. the Union of India case no. 53/2002 on the working of the provision for confessions), the author exhibits how they brought into practice principles and procedures that served to 'suspend the normative universal of the rule of law', and affirmed the sovereign authority of the state.
The objective of the book clearly is then to "read between lines", to "extricate issues and unravel strands" embedded in extraordinary laws. Through a systematic, layer by layer deconstruction, he reaches the conclusion that by the very nature of extraordinary laws, they gradually become enmeshed in the ordinary laws, thereby leading to a process whereby the draconian laws soften the desired standard for further measures. So the term extraordinary law that is supposed to be structurally and conceptually temporary belies its very nature by containing strands that are self-perpetuating. In this way, a completely different view of justice is created which legitimizes minimal due process, increasing the powers of the executive, perpetuating- in the words of Upendra Baxi- a parallel legal system of preventive detention system. This is perhaps the most striking achievement of this book- to expose the 'permanency' embedded in 'temporary' law.
The real triumph of the author however ultimately lies, not as much in his trenchant critique of the politics of extraordinary laws in a democracy, but in his clarity of intelligence. The book is a work of logic. It scores on the ground that the author is able to advance a logical assessment in an objective, meticulous yet impassioned manner. While the book is not a theoretical exercise, i.e. it proceeds through a dissection of empirical cases; it nonetheless exposes basic inadequacies in the legal justice system of a democracy through a scrutiny of the relationship between law and politics, thereby inadvertently constructing a theoretical critique. At the end, therefore, its significance does not remain confined to students and scholars of law alone; it also merits recognition by scholars of politics, sociology and human rights for its incisive reflections on ideas of justice, liberty and democracy.