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
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!