PUCL Bulletin, June 2001

Judicial Redress
K.G. Kannabiran

From Karamchedu onwards Guntur has been a scene of gruesome murders and always the affected alone reacted. The reaction has always been for judicial redress. Towards the last week of October 2000 a young woman student was murdered by a young man, right in the college premises, in the presence of the staff and students. Having killed the girl the assailant drank pesticide in a bid to end his life. He was apprehended, taken to the hospital, and the attempt on his part to put an end to his life was successfully foiled. He was revived and put to trial. The way he was put to trial, the way the proceedings were bulldozed leading to conviction and death sentence is something we should always guard against. The Bar in collective rage called upon its members not to defend the accused. The advocate who volunteered to defend retired after the examination of eleven witnesses. The accused could not appoint any other advocate from the town. He had to procure an advocate from the neighbouring districts. One thing led to the other and ultimately the judge himself donned the role of an advocate, completed the trial, convicted and sentenced him to death.

The killing of the woman was ghastly, as killings are. The killer should be proceeded against and punished according to law. It did not happen here. We cannot convict, sentence, and execute an undefended accused. There is a sea change in our interpretation of Rule of Law. A judge should not assume the role of an advocate in any proceedings before him; the expansive interpretation of Art.21 accommodated the right to be defended by a lawyer. Providing legal aid became a Constitutional obligation of the State under Art 39A of the Constitution. Advocates and judges are effectively prevented from arriving at a consensus to set aside these Constitutional principles for whatever reason. The advocates Association came into existence in exercise of the freedom of association of the members and the dominant purpose is to promoter Rule of Law in the administration of justice. In this case, while exercising their right the body stifled the right of the accused granted to him under Article 21 & 22 (1) of the very same constitution, by passing a resolution which deprived him of the right to defend himself.

This decision was set aside by the High Court; the irregularity was vacated. But that does not erase the mindset that led to the impugned proceeding. It portends and facilitates the emergence of an authoritarian structure. As this case was progressing the government also was planning to pass an arbitrary measure ostensibly to reference to bail, sentence and other rights the suspect enjoyed and judges who have no belief in prescribed or established procedure will hasten erosion of civilised and democratic values. Sessions judges are the candidates for the special courts. This enactment is known as the "A Control of the Organised Crimes Act 2001." It reproduced certain provisions of TADA and the rest is verbatim reproduction of the Maharashtra Act XXX of 1999. Of course Bal Thackeray and his men are excluded from the Act. So also here the members of the ruling having a crime record and also excluded from the provisions of the Act.

Hitherto interception of telephonic conversation by intelligence agencies of the State was done under the provisions of the Telegraphic Act. In a petition filed by the PUCL in 1997 the Supreme Court recognised and traced the right to privacy to Article 21 of the Constitution. Now for any law to be valid it has to comply with the twin requirement of Article 21 viz. Fair procedure and the right to privacy. The present Act introduces provisions, which give power to the police to intercept telephonic conversations and record them. This Act heralds Hi-Tech devices for being used against organised crime, a laudable objective. But the record of governments has been one consistent and continuous abuse of law and authority. This has been our experience for over two and half decades. We have torture to wring out confessions, powers to transform an accused into an approver and wire-tapping; the "dirty business" as the Americans called is added on to the list. The act empowers one officer to authorise wire tapping on written application and ) an in-house review by three secretaries to the government. All the same it would be proper to inform the government that right to privacy is a human right under clause 12 in the Universal Declaration of Human Rights 1948, & Article 17 of the International Covenant for Civil and political rights to which India is signatory though not Andhra Pradesh!

Towards the end of the definition of "organised crime", are included the words "promoting insurgency". Insurgency is not defined in the Act. It means rebellion. It is related to internal security and after the 44 Amendment would provide a ground for invoking Emergency. It is exclusively a subject matter of legislation by the Union government. It is the tail that is going to wag the entire machinery set up under the Act under the pretext of investigating into insurgency phones in every alternate home will be invaded and the people terrorised and also blackmailed. An agitation for a Telengana State can be characterised as promoting insurgency and the machinery in the Act set in. The interception of telephones and other such instruments is also an exclusive field of legislation of Union Government. This would help decentralisation of repression and so the President may give his assent leaving the citizens to litigate. After all ours has been a litigious Republic!

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