13 June 2005

Playing on fear, from Godhra to Guantanamo

June 13, 2005
The Hindu

Opinion - Leader Page Articles

Playing on fear, from Godhra to Guantanamo

Siddharth Varadarajan

As governments across the world realise that the fear of terrorism can be made to serve a political purpose, the distinction between `ordinary' crime and terrorism is being deliberately blurred.

FIFTY-NINE train passengers — all Hindus — were burnt or asphyxiated to death on board the Sabarmati Express at Godhra on February 27, 2002 in a mysterious fire the cause of which is still unknown. Despite the absence of proper information or evidence, the Bharatiya Janata Party Government in Gujarat decided the fire was an act of jihadi terrorism and set in motion, facilitated and allowed a cycle of `retaliatory' violence that went on to claim the lives of some 2,000 Muslims across the State. The existence of a BJP-led government at the Centre allowed the Narendra Modi regime to get away with this.

In the immediate aftermath of Godhra, the `terrorist' tag was used to create a siege mentality amongst the Hindus of Gujarat and India and help legitimise the genocidal violence unleashed. The police, however, correctly assumed the charge of `terrorism' to be largely driven by political imperatives and did not bother to refer to the Godhra incident as a terrorist act in the first chargesheet filed on May 22, 2002. Indeed, formal charges were laid in the case under the Prevention of Terrorism Act (POTA) only on September 20, 2002, nearly seven months after the original crime. The number of persons charged under the Act — since repealed under public pressure — was more than 100.

Despite this, the police remained unsure about the applicability of POTA to the Godhra case. On March 5, 2003, the investigating officer filed an affidavit before the Gujarat High Court stating that "having realised that there is not sufficient evidence and material to attract the provisions of Pota, the same came to be dropped." However, this affidavit was subsequently withdrawn and POTA reapplied — on the basis of a confession one of the accused is alleged to have made in custody on February 5, 2003, i.e. a whole month earlier.

So peculiar is this sequence of events that it is evident factors other than logic, forensics, and common sense were operating. The Narendra Modi Government in Gujarat had made a political determination that the Godhra incident had to be treated as a case of terrorism. The reasons were two-fold. First, to present the train fire as a pre-planned jihadi conspiracy, and second, to use the provisions of POTA to secure convictions on the basis of evidence that might not stand up to judicial scrutiny in a regular court of law.

No case for POTA

On May 15 this year, this whole shabby exercise was brought to an end by Justice (retd.) S.C. Jain in his capacity as chairman of the Central Review Committee (CRC) on POTA. After examining the prosecution's case, Mr. Justice Jain ruled that the Godhra incident did not occur as part of a conspiracy envisaged under the provisions of Pota. There was no evidence to suggest the mob was privy to the alleged conspiracy and even for the alleged ringleaders, he noted, "this theory of conspiracy does not seem probable on the case of the prosecution itself... The cause of the incident is a quarrel of one of the [passengers] with the tea vendor of Muslim community at the platform itself when the train halted."

The retired judge accepted that the incident occurred at the date, time and place stated by the police but said the accused persons may be tried under the ordinary provisions of criminal law and not under the special provisions of POTA.

The immediate effect of this ruling is that the Godhra detenus must now be freed of the POTA charges. In an April 13, 2005, ruling upholding the validity of the CRC, the Gujarat High Court stipulated that if the CRC so recommends, the public prosecutor must apply for withdrawal of prosecution under POTA "without any delay." Despite this clear-cut guideline, however, the Modi Government decided last week not to seek the withdrawal of POTA charges.

Apart from holding out the promise of relief to the Godhra detenus, most of whom have been held without bail for more than two years, Mr. Justice Jain's ruling has a wider relevance for the manner in which the so-called `war on terror' is being prosecuted around the world. Stressing that a difference has to be made between a terrorist and an ordinary criminal, he said, "every `terrorist' may be a criminal but every criminal cannot be given the label of a `terrorist' only to set in motion the more stringent provisions" of anti-terrorism legislation.

A similar argument in the international context was made last year by Professor Kalliopi K. Koufa, the U.N. Special Rapporteur for Terrorism and Human Rights, in a path-breaking report to the U.N. Sub-Commission on the Protection and Promotion of Human Rights. Prof. Koufa, a leading Greek expert on international law, has produced a scholarly analysis of the complex legal interplay between the war on terror and the protection of human rights. Though she has made a number of observations and recommendations that every country should sit up and take note of, the report has hardly received any media attention. Last month, the U.N. Commission on Human Rights voted to publish her report for wider dissemination. The United States was one of the few countries to oppose the move.

Production of panic

The reasons for this are not hard to find. Prof. Koufa notes that a number of States have national counter-terrorism laws, measures or practices "that unduly [and on occasion severely] violate human rights and humanitarian law norms as well as long-established principles of criminal law." Among these is nullum crimen sine lege, the principle that `there is no crime without a law.' In keeping with U.N. practice, Prof. Koufa takes no names but the reference to the indefinite detention without charge of suspected terrorists by the U.S. in Guantanamo is obvious. Apart from being used to curtail the rights of persons accused of ordinary crimes unrelated to terrorism, she points out that some of these measures "have also been shown to be ineffective in countering terrorism."

Where Prof. Koufa breaks new ground is in her argument that "the fear of terrorism out of proportion to its actual risk ... can have undesirable consequences such as being exploited to make people willing to accept counter-terrorism measures that unduly curtail human rights and humanitarian law." Noting in particular that the fear of terrorism "is heightened by repeated and often exaggerated if not unlikely references to weapons of mass destruction potential in the hands of terrorist groups or certain States," she recommends that states' responses to terrorism should accurately reflect real risk and "refrain from generating undue fear of terrorism."

The orchestration of fear though colour-coded alerts and other means is what allowed the Bush administration to pass the USA Patriot Act soon after 9/11. Today, the Senate Intelligence Committee is considering the Patriot Reauthorisation Act, which will further expand the power of the authorities to go through the private records of people who are not even terrorist suspects. Fear is what allows the alarming slippage that has taken place in the U.S. on the question of torture and indefinite detention without charge. Fear is what makes the U.S. courts, which once prided themselves on their independence, shy away from confronting this abuse of civilised norms by the executive. Fear is what allowed the Blair Government to overturn the Law Lords' landmark December 2004 ruling on the unconstitutionality of the British Prevention of Terrorism Act. In India, one example of the political use of fear was the manipulation of public sentiments following Godhra. The killing of alleged terrorists in "encounters" that almost always occur in the heart of the city — in a shopping mall like Ansal Plaza or outside Pragati Maidan, with the policemen involved never getting injured — is another way in which the production of fear takes place.

Prof. Koufa's report also points out that a number of crimes not related directly or indirectly to terrorism have been included in national counter-terrorist laws. "Sometimes acts, merely symbolic ones or vandalism at the most, targeting economic entities, are being considered as terrorist acts. Addressing these merely criminal problems, while necessary, is not countering terrorism and the national or international public is not made any safer from terrorist risks." Finally, she calls on governments to ensure that there is no "undue investigative or prosecutorial advantage" in ordinary criminal cases "due to improper confusion with terrorist cases." In Godhra, this is precisely what the Narendra Modi Government is trying to do by pushing ahead with POTA charges when the evidence simply does not warrant it.

When ordinary crime is talked up to the level of terrorism, the definitional dilution allows real terrorists to lose themselves in the overgrown thicket of those whom the state regards as suspects. The price, of course, is paid twice over by ordinary citizens, who must put up with restrictions on their rights that do not in fact enhance their security in any meaningful sense.

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