Session #2: Friday, 9 January, 15.45 – 17.30 (CSLG)
Panel coordinator(s): Ujjwal Kumar Singh and Julia Eckert (ujjwalksingh@gmail.com/eckert@eth.mpg.de )
Chair/discussant: Bimol Akhoijam, Associate Professor, Centre for the Study of Social Systems 2, JNU (bimol_akoijam@yahoo.co.in)
Panelists, paper titles, and abstracts
This paper looks at the narratives about the motivations of those classified as terrorists. These narratives about motives explain terrorism to security agencies and a public. Such narratives of motivations are shaped by wider societal understandings of the causes of deviance and the relation between the individual and society as well as by the dominant interpretation of the conflict at stake. These narratives then shape security measures in that they inform the categories and scenarios of prevention. Prevention relies on the detection of future deeds, of planning, of intentions or even potential intentions. The ‘detection’ or construction of potential intentions
relies on the assumption of specific dispositions. The identification of such dispositions relies on the narratives about motives and the narratives of the conflict in question. These they will determine what “characteristic” of an individual or a group indicates a potential threat and therefore lay the base for the categorisation of people as potentially dangerous or potentially harbouring malevolent intentions. The criminologies underlying security policies thus are a glimpse into the relation between societal understandings of threat, danger and difference and the practices of security agencies.
This paper will explore the career of sections 109-110, often termed the badmaashi sections over various modifications of the criminal procedure code. The `preventive’ jurisdiction of the district magistrate were very important to the terms on which law makers such as Henry Maine and J.F.Stephen were able to convince British officials of the feasibility of codification in the colony in the aftermath of the 1857 rebellion. I shall argue that the very formulation of such sections was such that the line between legal and illegal executive action tended to get breached, forcing the High Courts thereby to keep issuing circulars to keep magistrates to the path of righteousness. Yet despite the seeming instability between the realm of the legal and the illegal which these sections introduced to the criminal procedure code they have displayed a remarkable persistence in it. From 1898, we find one clause after another being added to section 110. The Indian intelligentsia critiqued the combination of judicial and executive powers in the hands of the district magistrate, and resisted `preventive policing’ when it was directed against political activity, but there was very little criticism of the badmaashi sections. In fact, after world war one, the badmaashi provisions formed a kind of template for various habitual offender and goonda acts passed by local legislatures, now with considerable Indian representation. This was so even though the constant complaint was that the really `big fish’ were never netted, and that such `preventive' laws created another area of dangerousness, that of police power unchecked and possibly complicit with an illegal world of information, influence and contraband markets.
This paper will look at the troubled relationship between ‘confession’ and the law, examining in particular the ways in which this relationship is sought to be eased (a) by construing the confessional statement as unimpelled and uncoerced by external constraints, reflective of an overwhelming private/inner desire by a person ‘consumed by guilt’ to speak the truth and bear the consequences; (b) by prescribing procedural safeguards to dilute the ‘fruit of the poisonous tree’ doctrine. Through an examination of specific laws and judgements, in particular those under the extraordinary provisions of TADA and POTA, this paper will show that (i) most judgements, while emphasising repentance and contrition that brings into play the private or ‘inner court of conscience’ of the confessor, give credence to another ‘private’ aspect of confession i.e., custodial confession, or confession to a police officer. This credibility subsequently comes to play a major role in legal trials as admissible evidence. While confession in the religious tradition was followed by acquittal or exoneration, in a criminal trial, it becomes a ground for punishment. Thus while the act of confession itself may be private (within the confessional box of the church) or secluded (within a police station), it is ultimately judged on the basis of its public consequences, and justified on grounds of social responsibility and public sensibilities. When the confessor authors his admission of guilt, he/she speaks against himself. While thus giving evidence against him/ herself, he/she speaks for the law, his personal condemnation becoming a public affirmation of legal truth (ii) the confessional process itself become a surrogate for the attestation of the power and authority of the state. TADA and POTA cases have shown that confessions made to a police officer subsequently came to play a major role in trials as evidence. Moreover, since these confessions are not verbal, but ‘written’ and attested by the confessor through his/her signature, the relationship of confessions with structures of power and authority becomes evident; for in its written form, the confession became an enduring public statement of legitimation of the existing political and social order. Significantly, while accepting confessions as evidence justifying punishment, judgements have emphasised one aspect or the other, i.e., the intrinsic purificatory value of confessions, or the wider public concerns, but have often chosen to disregard procedural norms that were intended to restrain authority. Procedural norms, when emphasised, have often become a surrogate for ‘proper confession’, and as shall be seen in the discussion of some cases, far from eliminating violence, they have made it invisible; (iii) through a mutual sharing of provisions between ordinary criminal law and extraordinary laws, there is a general tightening up throughout the statutory law, which becomes symptomatic of as Paddy Hillyard expresses it, ‘an insidious circular process in which draconian laws soften us up to similar laws which become the desired standard for further measure’. The extraordinary impartation of evidentiary value to confessions in anti-terror laws was embedded in legitimising discourses of ‘national security’ and ‘democracy’, shrouding the ways in which law becomes an integral part of the organisation of state violence, manifested not only in the relationship between torture and confession, but also in the ways in which it has become acceptable in ordinary jurisprudence as reflected in the suspension of the right to silence, under the proposed reforms suggested by the Malimath Committee on the reform of the criminal justice system (2003) and the reports of Administrative Reform Committee (2008).