MONTHLY FEATURE uuu POLICE AND SECURITY uuu FEBRUARY, 1995

Dr.S.Subramanian, IPS (Retd.)

Current debate on T.A.D.A. gives one the impression, that the intelligentsia are more concerned with the Law breakers and Law enforcers and are least concerned with the silent majority of Law abiding citizens. Is it not the basic right of a citizen to live in a peaceful and fearless atmosphere without threats of death, destruction, kidnapping and remote controlled explosive devices? As rightly pointed out by an eminent American jurist, Bill of Rights is not a suicide pact entered into by a Nation for its self destruction. Constitution of India assures the citizens preservation of territorial integrity and unity. Should the rights of those who defy, defile and denigrate the Constitution, be given the protection under the Constitution to the detriment of the rights of peaceful existence of millions. Our Nation is still battling the forces of destabilisation and disintegration operating in this country with the assistance of foreign powers. In our zeal to demonstrate to the joneses in the West, that we are holier than them, let us not weaken the State and destroy the foundations of this young republic.

Peace and Tranquillity are essential for the progress of Mankind. To ensure peaceable conditions, all societies have a police system. As Democracies rest on the twin pillars of Rule of Law and Equality before Law, police systems operate under the umbrella of Law. Law being the collective wisdom of the people expressed through the legislatures, they should function as an instrument for ensuring peaceable conditions.

The commonly used phrase Law and Order is highly misleading and it takes away from our minds the basic contradictions between the two ideas. Order emphasises on the ideal of conformity and demands on the part of law enforcers, initiative, discipline, quickness of action and compliance to authority. Whereas, the Law demands observation of the ideal of legality which stresses on the rights of citizens, due process and calls for circumspection on the part of Law enforcers. Law instead of being an instrument of Order, on many occasions tends to act as its adversary. Police dilemma in a democracy hinges on the conflict between the operational consequences of maintenance of Order efficiently and effectively and the observance of Rule of Law.

Police dilemma gets aggravated, when dealing with the spectre of political violence encompassing a wide range of disruptive activities from Secessionism to extremism. Police are duty bound to assure the citizens the safety of their lives and properties and politically violent elements precisely threaten the same. Since, police have to deal with these under the Law, they need enabling legislations.

Law is the collective wisdom of people expressed through the legislatures. Laws are always reactive and a step behind the actual need. Only when a society needs to prevent some deviant behaviour, it enacts the Law. The virulence with which Terrorism descended on this country in the eighties, made Indian society to enact TADA. TADA is not a Preventive Detention Act but a specific Law to deal with a particular kind of crime. Since terrorism was unknown when the Indian Penal Code was enacted, the need for TADA did not arise then.

TADA was used effectively to combat Terrorism in Punjab and elsewhere; gang warfares in Bombay City; and mafia in Bihar. it had helped Tamil Nadu police to combat the activities of L.T.T.E. It helped Hyderabad Police to nip in the bud the communal violence. If a blood bath was prevented in the country after the Ayodhya tragedy and Bombay Blasts, the credit for the same should go to TADA alone.

It is a fact that TADA was misused by the Law enforcers in some States to harass the citizens and to deal with petty criminals. Using TADA to deal with ordinary crime is like using a sledge hammer to swat a fly. The highest court in the land has upheld its legality and has prescribed enough safeguards in procedure to prevent its misuse. Since the Supreme Court has spoken its mind on TADA, misuse has come down dramatically. It is often said, that TADA was being used against Muslims indiscriminately. Facts speak otherwise. Of the 1221 persons booked under TADA till 1994 in Bombay City, only 441 were Muslims; 688 were Hindus; and 92 were from other communities. In Madhya Pradesh, of the 306 persons booked under TADA, hardly ten per cent were Muslims. It will be appreciated, that to prevent communal conflagrations and disruptive acts, police have to act rapidly and pick up trouble makers from the dominant communities. It may not be always possible to give proportional communal representation in arrests and cases. Quick action under TADA has broken the backbone of LTTE in Tamil Nadu.

It is not our case that Police should have unfettered powers to harass people. Our plea is to retain TADA to deal with Terrorist and disruptive activities and build in sufficient safeguards in the procedures on the lines suggested by the Supreme Court. One would like to commend the procedure being adopted in Tamil Nadu. Cases under TADA can be booked only after permission has been obtained from the Addl.Director General of Police in charge of counter-terrorist activities; who in turn takes the advice of the State Advocate General and State Public Prosecutor. Even after the case is registered, further proceedings are initiated only after the records of investigation are reviewed by a high powered committee chaired by the Chief Secretary.

It is possible to introduce judicial scrutiny on a regular basis by making appropriate provisions in the Act and substituting ‘Designated Judicial Authority’ for ‘Police’ in respect of confessions etc. An upper limit for the duration of pre-trial detention could be laid down. A structured judicial review could be introduced.

Let a high-powered commission under a retired Supreme Court Chief Justice be constituted with representation to Human Rights activists, Law enforcers, Lawyers and eminent public men to review the provisions of TADA and to suggest amendments to the same. Let us not be hustled into taking hasty action by vested political and other interests.

Nation needs security from the depredations of Terrorists and their ilk. Posterity will judge us by our ability to devise legal measures for the same. let not future find us wanting at this crucial juncture in the life of our Democracy.

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