Terrorism, the Law and the Accused

Posted in Constitution, human rights, society, Terrorism by Gautam on December 19, 2008

A few months back I wrote a post on the findings of the Tribunal on Minority Rights conducted in Hyderabad in August which maybe accessed at ‘Holy Cows and Scape Goats’ and II; these two posts aimed to provide very broad shades of anti-terror legislations in the country and their implications on the rights of the accused; a very basic understanding of the implications of such laws.

The recent events in our country have lead to a changes in our approach to terrorism; most of these changes being legal. One of the significant changes comes in the form of an amendment to the Unlawful Activities (Prevention) Act. It is my understanding that this Amednment may in some way further the realities of the posts I wrote above. It is also my understanding that whatever maybe the circumstances, the rights of the accused must be given premium consideration while enacting laws that seek to maintain law and order. The aim of an adversarial system of jurisprudence being to place the accused and the State on an equal footing in trial- this is done to prevent the State form abusing its vast trial resources; this amendment seeks to present changes in this system of jurisprudence by introducing facets of the inquisitorial system. Two major results of this amendment are:

  1. A change in the ‘Innocent until proven guilty’ protection to the accused.
  2. Modification of the ‘Burden of proof on the prosecution’ clause.

An aspect of the above is also to draw adverse inferences from the ‘silence’ of the accused ; thus in violation of of the ‘self incrimination’ protection afforded by our Constitution. The justification behind these modifications to our system of jurisprudence is the overburdening interest of the State to prosecute the perpetrators of Terror. We conveniently forget the underlying principles of the previously championed guarantees that ‘not one innocent be convicted’. I shall say no more.

The aspects of these laws and viewpoints on them are very well put by Arun and also here and here.  The post on ‘legal aid‘ on the social blog has unexplicitly raised the issue of unaccountability.  The point being that while it is the judges that are responsible for dispense of legal aid, they cannot be held responsible for its malfunction due to the protection given to them under prevailing law.


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