'Terrorised by Legislation?' - A talk by Vrinda Grover and Saeed Mirza
Cinematographer: Sanjay B., Hakim L.
Duration: 01:06:14; Aspect Ratio: 1.778:1; Hue: 30.557; Saturation: 0.112; Lightness: 0.235; Volume: 0.355; Cuts per Minute: 0.981; Words per Minute: 142.545
Summary: On January 30, 2009, Insaaniyat organised a talk titled 'Terrorism and Democracy: Resisting the Cultural and Legal Backlash', with lawyer and human rights activist Vrinda Grover and filmmaker Saeed Mirza. It was chaired by Mihir Desai.
From the Insaaniyat press release: "Tough laws do not enhance peoples' security. They only strengthen authoritarian tendencies in the State. The aftermath of the November 2009 terror strikes in Mumbai has seen a rapid recourse to draconian legislation. It is based on the presumption of guilt, which is contrary to international law. We are also seeing a concerted drive to impose a de facto ban on performers, literature, music, etc. from Pakistan. What can we do to resist such bigotry and cultural fascism?"
http://chandni.posterous.com/talk-on-terrorism-and-democrac
Vrinda: Most of the people sitting here have been engaged, in different ways, with huger Socio-political affairs. So one doesn't need to give too much of a preference to this. The one thing that we did hear post the Mumbai attack, was that this was departure, this was a watershed, and that something different has happened, which was a kind of an attack which India has never seen before. I'm not going to go into whether that statement holds true. I think there are many ways one can discuss that. And it ought to be discussed. What I'm going to look at is the response the government had, and, was that a departure from the past in any way. Because this line that Mumbai was a departure wasa line that the government has been espousing repeatedly.
Press Club of India, Mumbai
Vrinda: And if Mumbai was a different kind of an attack, what was the response of the Government of India, or of the State in that sense? -The response was an old response. And what the Government did is what it has done on many occassions in the past. In fact, the provisions of the law, some of which I'd like to just highlight here, is nothing more than regurgitating the past and spewing it back to us. The anger, the anxiety and the wrath that people felt, not only in Mumbai, but even in many other parts of the country- because prior to that Delhi had seen blasts, Jaipur had seen blasts, many parts of the country had seen bomb blasts- and I think its only fair that we accept and acknowlege that there is a level of anxiety and insecurity that all of us do feel today. We need to take that into account when we present anything from a human rights perspective, and not to discount that altogether.
Vrinda: The other thing that we need to take into account is that there isa growing feeling of helplessness and somewhere the wrath is- 'What do we do?' ...Is there anything we can do? Or is there nothing we can do?And a lot of the anger that is against the system in asking for accountability- the kind of response that the government had, it seems to have got away with it, to a very large extent, its almost like hoodwinking the poeople- and its interesting that it works- is to bring an amendment in an existing law something that the UPA had, in its common minimum programme, very clearly said that they would repeal POTA- which they did in December 2004, and that they would create a law which would protect minorities and others from communal violence- which they have not done and their term is about to get over . And the 2 things need to be seen somewhere together also.
Vrinda: For a government that stood and resisted this whole appoach of 'Bring in a Draconian law', 'Bring in harsher laws'- something that the BJP kept on mouthing over and over again. Every time a bomb blast took place, the one thing that was said immediately was "Bring POTA back. Bring an anti-terror law." -How that would add to security is a question that needs to be asked very very loudly in this country. There is a feeling of helplessness and we feel insecure, and people don't know where the next attack is going to happen- which is the time we are liiving in. But is the law going to provide the answer?- Or the security?
Unlawlful Activities Prevention Act - 1967
http://www.satp.org/satporgtp/countries/india/document/actandordinances/the_unlawful_activities_act1967.htm
Vrinda: I think we need to take 2-3 things into account- What is the idea of Law Terror? What is the larger purpose that law plays in our lives or in society?- There are both pholosophical and other explanations for that. Does it set out what is the kind of conduct acceptable? Does it set out a code of rights and it protects certain kinds of rights?- We have laws across the spectrum. ...How does a law protect pople from the kind of terrorism that we are seeing? The UPA amendment clearly says 'A Law for Prevention and Coping with Terrorism'. So prevention therefore is an important objective that the law has taken upon itself. And if you are to have a glance at the kind of amendments that have been done, there is not a single provision in that law which would in any way give you assurance that you are going to be protected fom the next bomb blast or the net terror attack- which for anyone to discount- it sounds horrible to say it, but it will happen. It is not going to stop simply because the government passes an amendment- a law.
Vrinda: The other thing that we need to see when we are looking at provisions of law is not only the text of the law, but how does it play out and what is the exercise of power that has taken place. And for that we need to look at experience that people have had. A lot of experiences of people in this city who have fought cases of '92-'93 and some of our friends are here who have been fighting those cases and have seen how the police work, how the laws work, although that may not be written in the provision and I think we need to go into that a little bit. The Chidambaram statement was that we are balancing civil liberties ...in interests of national security. -So very much like globalization with a 'human face', we are now told we have an anti-terror law which we are told has a 'human face'. We've had similar laws before, and the 'human face' of it has been more than explicitly shown. ...POTA was repealed precisely because of that.
TADA - Terrorist And Disruptive Activities (Prevention) Act, 1987
http://www.satp.org/satporgtp/countries/india/document/actandordinances/Tada.htm
POTA - Prevention Of Terrorism Act, 2002
http://www.satp.org/satporgtp/countries/india/document/actandordinances/Tada.htm
Vrinda: What does it mean to ammend UAPA? I think we just need to also remember that there is...we've had anti-teror laws in this country from olonial times- from British times. There's always been,- with few years in the interim when there has been no anti-terror law, -this is not a post-independence phenomena. It has been continuing through, and there is a colonial legacy that it harks upon. Post POTA, in December 2004, with the repeal of POTA, in the very same month, in the very same session of parliament, huge chunks of POTA were very easily slipped into the Unlawful Activities Prevention Act, which dates back to 1967, and underwent a major amendment in 2004- which almost went unnoticed by general public. The media didn't really pick it up in a big way. And that was a very significant change that took place. Because till now whatever was a temporary emergency provision, was for the first time made part of a general law. which is going to stay there. And what these laws always do says is that Mumbai is an extraordinary terror attack- the light of which India has never witnessed; so, there has to be an extraordinary response that the law must give to it. And an 'extraordinary response' means that the ordinary law is not adequate, and there must be departures from the ordinary law, to meet an extraordinary situation. And that is the logic that anti-terror laws and emergency provisions have always held.
Unlawlful Activities Prevention Act - 1967
http://www.satp.org/satporgtp/countries/india/document/actandordinances/the_unlawful_activities_act1967.htm
Vrinda: In December 2008 when the government brought in certain changes, already the UAPA which has application and jurisdiction across the country- unlke TADA which started only with certain areas of the State, and POTA which had a more nation-wide application- here you had UAPA coming in which has a nation-wide application, and is permanently on the statute. Its not a law that is going to get reviewed, its not a law that has what is called a 'Sunset Clause'- where it comes up for review, and if its not renewed again its going to lapse- there is no such provision. Its there to stay. It already had many of these anti-terror provisions and definition of terrorist organisations, definition of terrorist act, definition of unlawful activities... And December 2008 provided a fantastic opportunity to actually completely open up that definition to include huge number of other things- which now includes a terrorist act- where the 'act' would be using bombs, etc, using chemical substances...and then it goes on and adds over there, or by any means- whatever.
Vrinda: And these are the clauses that have always been. There is a history -documented history of this- in case law, a documented history of this in humab rights documentation- that these are the gaps and the over-broad, over-arching provisions where you slip in anything that is uncomfortable and politically inconvenient. While on the surface of it, it doesn't appear so, there is such an extraordinary application, that these laws have always had, that there is no-...what is the logic, why should it be thought that this is not going to recur this time? -Simply because the Congress government in power sometimes shows a slightly benign face towards the muslim- is that enough of a reason to believe?
And in any case these laws have never been used only against the minorities. They have been used against social movements, against political activists,... And there are versions of this law available in different states.
Vrinda: Not only will it expand the definition to include an over-arching kind of act, but the mental element that is required, is that it may threaten the unity, integrity, security, sovereignty of India- which is all very well- If somebody is going to threaten the unity of India with a bomb or with a chemical substance, then you call it a terrorist act- but then it adds to it- 'Or likely to threaten'- somebody who will overawe the state- the people- or, likely to overawe. So there is what is called the Jurisprudence of Suspicion that is inherent inthese anti-terror laws. Because there is no ...it is a subjective interpretation, that what is likely to. Would a resistance- and it includes a range of things, it is not only about overawing people or taking captive public function, but also includes- and this is a post 90's phenomena where this has been added to the definition, and obviously the linkage is to the globalization of the Indian economy- where disrupting essential services has now been made e terrorist act.
Vrinda: So if there is..there are tribals in Orissa and they did do this a while back, after there was a police firing, they blocked the highway for many weeks, demanding that certain enquiries be held and the land not be acquired. They did disrupt national highway traffic and goods being taken through the state. It is a disuption of essential services. And there is an attempt to "overawe" the state, and its functioning. Why would that not fall within the category of the UAPA, and why would it not be categorised as a terrorist activity? We know that a tailor and an electrician in Chhatigarh are today being prosecuted under the Chaatisgarh Special Public Security Act, because they stitched uniforms, allegedly for Naxalites.
Vrinda: So there is this area which has always been used. And therefore to say, what is always said, that 'Oh, of course all laws are subject to abuse. And all laws are subject to misuse.' And the example that is now being invariably cited is laws made for protection of women against violence. The point is not that this law is going to be abused or misused. The point is: law is designed for misuse. It is the way it is going to operate is that these spaces are left for subjective political interpretation of any kind of political act, any kind of political behaviour or political conduct, in a democratic framework which is inconsistent or inconenient, will be booked under this, because that is exactly what a literal interpretation of the text implies.
Vrinda: It also now has an extra-territorial jurisdiction, which the law did not have earlier. It can actually extend beyond the territorial boundaries of India. And with it is coupled a change in burden of proof. I remember I was listening to a talk show in which Harish Salve, who was a very senior advocate of the Supreme court of India, was saying that burden of proof has been shifted even otherwise. Its true, burden of proof has been shifted, and 2 very prominent sections where it was shifted is of custodial rape and dowry death. And the reason why that was done is that the ebidence and the information only they are privy to. Nobody from the outside knows what is going on inside the matrimonial home, and the burden of poof is shifted only to the extent that once cruelty is proved then it will be presumed and the accused has to rebuke the legal presumption. Similarly in custodial rape, the person is in a position of authority and therefore the burden of proof is shifted.
Vrinda: Why does the burden of proof get shifted here? The burden of proof here is shifted say, if the person is found in possession of bombs, or any other arms or ammunition, or his fingerprints are found on the site or on the vehicle used for the offense, etc.- sounds very good on the face of it.
Vrinda: In November the CBI filed a chargesheet in a Delhi court saying that 2 Kashmiris who the Special Cell, which is the premier anti-terror cell in Delhi had picked up these 2 persons, said they were part of Al-Badar, and had chargesheeted them for waging war, and said that they were with so many kilograms of RDX. The CBI conducted an enquiry, it was found they had been police informers, they had fallen foul with the Head of the police on some exchange of money and that the case against them was completely false, and that, including the hero of Batla house, even the Ashok Chakra, Mr. MC Sharma, was at that time too in charge of this particular case.
Vrinda: RDX has been planted on people - earlier it was what in Hindi is called a 'Kutta'- a knife- because under TADA having a knife with a blade longer than certain inches was also a terrorist act. Nowadays it is RDX. It is not uncommon for the police to have access to these tools. It is very common practice for the police to plant these on people.
Vrinda: To find finger prints of a range of people, you could find finger prints of the taxi driver on the taxi who drove those people in Mumbai. So how are you going to make these distinctions?
The reason why these are things seen with suspicion is because the systems work in a certain manner, we have experience of those systems, experience of the police doing both hackneyed and prejudiced investigations. And therefore, where does one have the confidence to say that this will not recur or this will not repeat?
Vrinda: Chidambaram's take on it is that: yes there is protection of civil liberties because he has not shiften the burden of proof completely as it was done in the past. He has only done it when there is possession of these things. But possession of these things is very common practice. To plant these things is very common practice. And anobody who has an interest in this or who has seen criminal trials- you could list out a range of these.
Vrinda: The other thing that an anti-terror law usually has, since we're always trying to compare and refer to what is found abroad in US and UK and Canada and Australia, say as example, is that there is an aim. Here its very interesting- they make no distinction actually between a criminal act and between a terrorist act. I'm not saying that the violence is in any way indistinguishable, and I in no way would ever try to condone what is being done. But in order to make a distinction between what is a terrorist act and what is a criminal act an organised gang can also try to overawe the state without wanting to pursue some ideological or political aims however foul or false they may be, which is totally missing from any definition. You do not know whether they are talking about ordinary criminality, or they do see terrorist acts as distinct in themselves.
Vrinda: Because it is an extraordinary act therefore an extraordinary deprture. So all provisions of arrest which are otherwise binding by Supreme court judgement of D.K. Basu has now anyway been incorporated by an amendment in January 2008- It says you should inform the accused of reasons for arrest "as soon as may be". Who is going to make this determination? And what kind of subjective determination? How does it matter that the accused knows what he is arrested for? It doesn't actually impair the investigation, and anyway he is in custody.
Vrinda: The most dangerous, and which is repeatedly done, and which actually gets a lot of sanction from everybody is the extension of the pre-charge detention. And prior to this amendment actually having been made, both in Gujarat High court and in Delhi High court, the extension of remand had taken place- those who were accused of Delhi blasts and Jaipur blasts and had been picked up in the Batla house encounter and from other parts of the country- after every 2 weeks the police lodges a new FIR and so a new remand period runs. So actually some of them have now been in police remand for up to 2 and a half months. This was challenged both in the Delhi High court and in the Gujarat High court. At that time...the UAPA amendment obviously does not apply to them because a criminal law cannot have retrospective application. The courts in any case, condoned it. They said 'Cases like this...there is a nexus all over the country. You need more time to investigate. So 90 days is not enough, you need 180 days.' Does this necessarily lead to better investigation and better skills? I'd be happy to accept if it does. But if somebody was to pull out the kind of chargesheets that have been filed in very high profile cases like the Parliament case- the absence of evidence is not because there is lack of time in investigation. The absence of evidence is because they know that the minds of the court, the public is prejudiced enough. You do not have to investigate.
Vrinda: How does it matter what is the evidence pulled up ...placed before the court in Qasab's case? Qasab is condemned and the cops know it. They don't need to do any work. This is not to say that Qasab should not be convicted or that Qasab has not committed a crime, but its to say that-...or if you take a completely different example- actually the Criminal Procedure Code does not stop you from filing supplementary chargesheets. In (?) case which is going on in Raipur, the theird supplementary chargesheet has been filed, because the witnesses that came earlier have now all collapsed. There is no evidence from the earlier chargesheet. So a third chargesheet has been filed. So a fresh set of witnesses have to be examined. Which means that actually nothing stops them in law from continuing an investigation to filing supplementary chargesheets. What this does do- is that a) it gives you a longer period to hold that person in pre-charge detention and therefore after 6 months you can say "Well, we didn't find anything, now let go of that person." Actually, most people don't think that's a problem because its not 'me' who is going to get picked up. The person who is going to get picked up- usko thoda bahut maar pitayi hoga aur theek hai- (-ok...he'll be roughened/beaten up a bit...)- he anyway belongs to that "community", or that "group", or that "organisation" where some of this message needs to be sent home. And that is what we're condoning.
Vrinda: In Hyderabad we know 21 of the young people who were picked up have now been acquitted by the court witth absolutely no evidence. They cannot even file for compensation because this law has what is called a 'Good Faith' clause, and this provides immunity to any action done. So actually you are telling the cops- "Don't work." That's the message this law gives out- "Don't work. You don't need to collect any evidence, don't bother with forensics. The only saving grace that it did do is that it did not bring in confessions made to a police officer or to a judge as being admissable, which both TADA and POTA had. And that's what is being harped upon as the big concession to human rights.
Vrina: Soli Sorabjee, the former Attorney General of India, in a recent show on television said that actually confessions made to a police officer should be made admissable. This is the 'liberal', 'progressive' intelligentsia of this country. They are willing to make even more concessions than are being made presently under the law. And the only reason that is not being made is because there is a documented history of abuse, and there is a strong resistance to that kind of clause being brought in.
Vrinda: The Right to Fair Trial, which is seen as a very fundamental human right, which again Harish Salve- I think most of debates and discussions these days take place only on TV chatrooms and I am addicted to TV news and so I watch it- He said that there is no biblical prescription for fair trial. -Actually, there is! There is a biblical prescription to fair trial. Its laid out in the International Covenant on Civil and Political Rights , its laid down in the Constitution, and its laid down in the Criminal Procedure Code. While all these amendments actually...because now there is a universal discourse on 'War against Terror' and we are now one of the second runners in that- or the third runner in that... In fact the preamble to the amendment cites the Security Council Resolution of 1373 which said that everybody should take anti-terror measures- it doesn't bother to cite the ICCPR which India ratified way back- and which we are bound by after ratifying. In any case we are still bound by the Constitution of India and by the Criminal Procedure Code.
ICCPR (International Convenant on Civil and Political Rights)
http://www2.ohchr.org/english/law/ccpr.htm
Vrinda: So while we are ready to say there is no prescription actually exists- Right to Silence which is regarded as absolutely sacred and Article 20, Clause 3 of the Constitution clearly says you cannot compel somebody to self-incriminate themselves in a criminal proceeding- Is the other very very mandatory clause which is trying to be rooted- it has not yet been fully rooted, however, a recent seminar in Delhi 4 days ago, from the reporting that was made, somebody who has usually stood up for human rights issues, somebody like Fali Nariman- has said the Right to Silence should be taken away from a terrorist.
There is a watershed and seachange of opinion after Mumbai. Whether Mumbai demands that kind of seachange of opinion is a subject of discussion.
Vrinda: The other part that I've said about- basically what this law is going to do is to routinise and normalise extraordinary provisions which are otherwise in emergency laws. Because tihs is now a permanent law there is no need to review it or to renew it. It stays on the statute books, it applies across the board to all of us.
Just to take examples of what is happening- I think most of you would have heard what Justice Prasad had said at the same seminar- 'terrorists have no rights, they have no human rights because they are animals'.- Here is the 3rd seniormost judge of the Supreme court of India. How is one to tackle this kind of opinion? How does it matter what is written in the text of the law? The constitutionality of anti-terror laws has always been upheld by the supreme court, whether it was TADA or it was POTA. The Naga People's Movement for Human Rights challenged the Armed Forces Special Powers Act- in the judgement the Supreme court gave a long list of guidelines of do's and don't do's for the security forces. One of which was that the person after his arrest must be as soon as possible handed over the the Civilian authority, ie to the police.
Vrina: Recently there was a case in the Supreme court filed by the widow of a Kashmiri lawyer who claimed that her husband had been killed by the army in an encounter- Masooda Praveen case. I just want to read out 2 lines that the Supreme court said in that case. In order to understnad how overwhelming the discourse of national security is and how there is anyway a departure from what the law demands and these departures are only reinforcing some of that.
It says: "We agree with te lawyers that in the short time available to the army patrol, it was perhaps not feasable, not practical to first inform the police station. We are also not unmindful of the fact that prompt action by the army in such matters is the key to success. And any delay can result in the leakage of information which would frustrate the very purpose of the army action."
And then it adds this line, which you don't know what to do with: "We re-emphasize however, that the guidelines laid down in the cited case must be scrupulously observed and any deviation should be frowned upon by the court."
Vrinda: But the court in this case permitted the dilution! That is precisely the challenge, that it did not abide by the guidelines and it permits and it condones that departure because it is mindful of the national security situation in, and the role that the army is playing in Kashmir... And then says 'but you know, we must follow this'.
Who is to follow it? And why should the army follow it when they know that there is clear contradiction of it?
Vrinda: In terms of pre-charge detention, again a very very dangerous provision which says you can go back into police custody from judicial custody. A provision that has always been argued against because that is where torture always remains a big threat. And torture is condoned by the courts across this country.
Vrina: In the Parliament attack case Mohammed Afzal claimed that he had been tortured very severely with electric shocks etc by the STF. It is part of the record of the court in a statement of accused that he made before the court. The court of course did not even look at it. It was irrelevant for the court to even mention it. Alright. Thereafter, CNN IBN conducts a sting operation, which is a few years ago, in which the person who he named- says on camera, in detail, how he tortured Mohd Afzal - who is a senior person in the STF (Special Task Force) in Kashmir. Nobody takes any action. Not the MHRC, not the Supreme court of India. We are all part of this conspiracy to keep silent on torture. Torture is routine, is commonplace, torture is condoned by the courts.
Vrinda: I was at the Haryana Police Academy 2 months ago, speaking to young people who had just entered the judicial service for examination, the lower judiciary. And after a long day of debate and discussion in which the policemen kept saying 'Don't encourage torture, its not good for investigation. It actually gets us off track. We don't want people tortured, because when you torture you get exactly what you want to hear. 55% of the judicial officers sitting there said- (these are Punjab and Haryana young judicial officers)- they said 'We will condone torture, its the only way forward in this country.'
Vrinda: You know judiciary is not going to stop torture. How are we going to stop this torture? Who is going to raise his voice? Where is this impunity going to end? Who is going to be made accountable?- These are issues that we do not have answers to today.
I'm just going to quickly wind up...And of course now narco is being seen as some non-coercive method of doing it which requires in itself a lot of debate and discussion.
Vrinda: A little bit on what happens when these become a part of the permanent laws, how it gradually starts seeping in. There was a commission put up during NDA rule under Justice Nariman which made a lot of recommendations for the Criminal Justice system. And one of the recommendations was that the court has to play an active role. The law cannot sit limply while those who are accused get away scot free. And while it calls this 'quest for truth' by the court, it says very categorically that the Right to Silence cannot be maintained, and the Right to Silence must give way, so that the accused has to inform and tell the court what it has done.
Vrinda: There is a creeping in of these provisions that always t akes place. First you have a parallel system and you have ordinary criminal law system. Then this parallel system disappears and everything becomes part of the ordinary criminal law system, but for 'certain' kind of offences, And very soon the way the police is investigating, the way the court is conducting its cases, all of them actually start working under these so-called 'extraordinary provsions' which have apprently been created only for extraordinary circumstances.
Vrinda: I think the crisis that we are facing is very very severe. There is a crisis of security, there is a crisis of anxiety and there are no easy answers out of it. But the bigger crisis is that the state gets away by using this opportunity to actually strengthen itself and to increase its coercive, its authoritarian powers. The ones who lose out in it- are those who are anyways saying that there is something wrong with the system. Actually the space tosay that has been dramatically shut off. And this is the response that people get when they are out on streets, when there is a huge expression of lack of faith in the system- the system just turns around and gives itself a few more powers, and says 'OK, now things will be alright', and that all those who've been functioning, nobody is going to be any more accountable- you've just given them a few more spaces to get away with.
Vrinda: Also these convenient camera trials- the trials in Lucknow are presently being held in UP jail. Lawyers are not defending them. There was one lawyer, Mr. Shoaib who was defending some of them, he was beaten up, he has been removed by the Bar Association. The Bar Associations are extremely nationalist. Most of them have said that these people should not be defended. One seniorlawyer of the Supreme court claimed that the right to legal aid is only available to citizens. We have obviously stopped reading the Constitution- Article 21 clearly uses the word 'person'- So maybe right to legal aid in the Criminal Procedure Code is available to 'citizen'. But you cannot have a trial of a person without him being represented by somebody. Bombay has seen what has been happening with lawyers who are standing up and saying we may want to stand up and represent him in court.
Vrinda: The other issue that is happenign is that- who is believing what truth? Yesterday in Delhi there was a train load of people who had come from Asangarh, saying they want an enquiry into the the Batla house encounter. They do not believe a word of what has been put out. Many have asked for the enquiry, but the government has not yet ordered one. They have ordered some sort of enquiry but its not a judicial enquiry.
Vrinda: Ashoka Chakra has been given to M.C. Sharma or the NHRC(National Human Rights Commission) guidelines say that a gallantry award should not be given to anybody who has engaged in encounter death, until and unless the matter is finally resolved. So, completely contrary to the 2003 guidelines, Ashoka Chakra has been given. They don't believe that the boys who had been picked up are... The larger fear is that you have a society where people have their own versions of truth. What the court says is going to be irrelevant. Decisions of the court are not going to carry people with them. And this larger crisis is not going to be addressed by the UAPA amendment. What the UAPA amendment has done, that this government or any other government that may come to power, has certainly armed itself much more than it had before Mumbai. And we are just a little more vulnerable than we were before.
Thank you.
(clapping)
Saeed Mirza: You have just painted a bleak picture. Yesterday, on television there was this program of these 3 Pakistani writers at the Literary Festival in Jaipur, and a question was asked to them about: 'Do you think peace can improve between our 2 countires?' -And one of the writers said, and the others agreed with him- he said 'You know what's happened?- We've lost control over ourselves. The people in both countries seem to have lost control over what can be done to improve the situation between each other. And somewhere above the people lies the State.' He said- 'I don't know how long its going to take, for those people at the top who rule the State to be removed, so that ordinary people and their vision of a future can come to the foreground.'
Saeed Mirza: And it was a kind of a hopeless position that those writers took. I just thought to myself- 'If we take beyond the jingoism, beyond the ultra-nationals that (?) through the media, or the politicians across both sides of the border... If we take a general survey, what would the results really be? -I don't know, but I believe what's happened in the past 10 years- a kind of media / political juggernaut has been unleashed, in which there is a kind of desperation to mould people's minds into the realm of hate, into the realm of the 'other', into the realm of suspicion- and its back. As Vrinda was saying- the entire movement that occured in the city of Mumbai after these attacks, surprisingly it was a reaction of ordinary citizens against the State. And look what's happened as a net result- how that anger has been co-opted, diverted, and we have come to these laws. How did it come to pass? How did it come to pass that the ordinary concerns of the people of a city, or even of a country can be so easily diverted without any discourse, no debate, and today become a law. I just don't know what's happening.
Saeed Mirza: I am writing a book. Its about the past and the present and perhaps the future. Its got to do with the transference of ideas from India and China and Mesopotamia, and Greece...Egypt...and how tohse ideas were picked up by scholars and they wrote... and they wronte it into Arabic, into Latin and into Greek and how those ideas travelled from Asia into Europe across North Africa into the west. And to me, I was reading- this has been my concern for the past 6 months now- if you take a man like Al-Biruni- has anyone heard of him? He lived in a time...he lived from approximately 973 AD to about 1045 AD. I read his book on India and I'm amazed.
Saeed Mirza: And he's just one scholar who actually wrote about the customs, the philosophy, the astronomy, the language, the religion of India. He translated the Vedas, he translated the Upanishads into Arabic, he translated the Bhagvad Gita into Arabic- so that a newly emerging (?) would get to understand what is the civilisation (?) What is it really all about? And he's just one! And through him I understand about Aryabhatta and Brahmagupta, and I read about the Mahabharata and the Panchatantra. This is 9th century AD. And the give and take of ideas, mathematics, science, philosophy, music, literature, poetry- Its crossing lines. Its reaching out. Its reaching out and reaches the world. And surprisingly this transference of ideas and information and knowledge and how its picked up by the west. And suddenly you have ..Cartier, we've got Dante, we've got Chaucer, we've got (?), we've got Cervantes- picking up...picking up information, wisdom and writing entails.
Saeed Mirza: What does it mean to me now when I see the incredible amount of narrowness of vision today- the incredibly blinkered view that we see for ourselves? And how do we see a future? It is so incredibly disturbing. I have run away from the city of Mumbai. When somebody asked me why, I said I just wanted to get out of the state of Maharashtra primarily becasue I cannot be angry every time I think of the Shiv Sena. I want to be out of that state... because why should I get up every morning and get angry because I do not want to be sucked into this vortex of anger, frustration, hate- I want to reach out somewhere else. Perhaps get to some kind of wretched poetry that still perhaps remains in my life.
Saeed Mirza: That's what's happened. The poetry is over. The poetry is over and what are we left with? What are we left with? -These laws which will not cure anything? It will make things more divisive, more suspicious, more hurtful, more painful to ordinary citizens. We will get by- I belong to the ruling elite, I'll get by. I have a few contacts, I can make a few phone calls- I will not be touched because I have those contacts. What about the ordinary citizen- who are going to be enmeshed,
pisao-ed (crushed) in this whole wretched ordeal of laws and the need to get people convicted because the times are such. At any cost, you have to get people convicted through the media, and then people's names better come up as quickly as possible, otherwise the state collapses. And in the process of nedding people's- names, events, fingerprints...I don't know what... How incredibly facile, cowardly and brutal!
Saeed Mirza: That's it. Its not just here. Its across the border. Its across the world. And I also believe, somewhere down the line, that the more you have an economic crisis looming, which is going to lead to further social schisms, watch it get worse. You have already seen it. You have the Gujjars in Rajasthan demanding those rights. You have the Meenas opposing them. You have a job being advertised for 6 openings for the police force at Nasik and 2 and half young men applied. For 6 jobs. There was a
laathi charge, polide firing, 6 people died. You've got the MNS here, you've got Kannada versus the Tamils in Karnataka. I'm not talking of Kashmir or the North-East. This is in the heart land. Its all happening here. It will get worse. I don't know what organisations like us can do. How do we retrieve poetry when its just been taken away from ordinary people. And poetry is not necessarily to do with ones'...
(tape ends. Missing transcript in 'Descriptions')
Tape ends.
Vrinda: ...bail, it does not come for the asking in this country. Bail is not available easily. Even if these clauses were not added, there is no judge that I know of, who is going to grant bail to anybody who has been arrested even for assisting, aiding, advocating, abetting, whatever. I think Binayak Sen's case is a stark illustration of that. Its been over a year and a half now that he's in jail.
And the burden of proof will be shifted if the person is found in possession of certain things, or his finger prints or other things are found- thereafter the court shall assume that he has committed the offence, and he has to show that he did not. And it is extremely difficult in a court of law, to show that you could that you could not do something. How do you prove the negative, is a challenge that is very very hard to meet.
(inaudible comment: I just want to say for the record, its a passion of mine (?))
Vrinda: On the accountability business, we have a provision in the Criminal Procedure Code, Section 197, which grants immunity to all public servants. Until and unless we dislaud the immunity that we have granted to them, they are not going to become accountable. And that is where we need to make the shift. We have said this is not only about insulation from executive(?), we need to recognise that the police are: a) acts with impunity because they have power, and b) because there is also an institutional bias which was there in '92-'93, it was there in '84, it was there in 2002, and its time that we at least recognise it, so that we can start talking about it and then challenge it.
Q(?): I just want to say that I have no disagreement with what you said in terms of the community's participation. Only thing is- it should be something which has to be really grass-roots, because one doesn't know ...because tomorrow, a (?) can be sent to me...a community police...so one has to be very careful about this community policing. I don't disagree with the principle, but I think one has to be very careful.
...
Amu: I wanted to ask Vrinda- but to preface it- I think that Mihir or somebody mentioned that- I feel that after the Bombay attacks there is no great demand for laws from the people. There was a great demand for greater accountability and for greater security. But the people did not necessarily link it with stronger laws. It was the BJP which did that, and the Congress seems to have agreed with the BJP that that is how security is being brought in. The issue that I wanted to raise with you Vrinda is, you said that the most dangerous part of this UAPA amendment is the extension pre-charge detention. And you quoted the example of Ajmal Qasab here, that he is being detained, even without the UAPA, he is going to be detained for 180 days. They are doing this by splitting up the charges against him. So every so many days they go and get the Majistrate into the crime branch place where he is being kept and so it is extended. So ultimately they shall have the 180 days. But you seem to feel that you don't- the police does not need that much time even after the Mumbai attack. I wonder whether that is actually true.
Amu: I feel that its this Bombay attack and the extraordinary capture of a live terrorist. The usual round is that they are all shot above-...Internally, even those so-called terrorists inside India are simply shot above waist and they are dead. And then they are discovered with something (?). This is a very extraordinary instance where we have somebody who has been captured. And its got implications which are very different. That is how it is different from either the Parliament attack, or the Jaipur attack, or anything else, because he has been caught alive. It has got what I call cross-border implications.
Amu: So I feel that they do need more time. I'm not for the time being ...an too distressed to look at the possibility of torture. But I am talking about a wholly other kind of invetigation, of his interogation, capture of Kuber, the GPS analysis and putting it all together perhaps needs a greater time. So my question to you is that whether it would be worth it to make a disctinction between cross-border terrorism and the what is called the 'domestic' variety? This is a distinction which has been made by the Chief Justice K.G. Balakrishnan, he had that great international judiciary or something like that- some judicial convention in December post 26/11. I wonder whether this distinction can be made. Its also a concern- twisting of pre-charge detention is made. What I noticed is that when you have somebody who is clearly from another country who has committed several terrorist attacks and is captured, he is going to be treated on par with those who are suspected of terrorist activity- merely suspected- his finger prints might be there. This is a completely unjustified collation which violates, according to me, one of the criteria that the Chief Justice has spelt out which is that of reasonable-ness. I think this is very unreasonable for me to...
...
Vrinda: I agree with you Amu, that different situations need to be looked at differently. And if the police needs more time to investigate they should be given. I would have no dispute with that and I would be very happy if the police was to give us a better investigative chargesheet at the end of 180 days. The only thing to fall back on is, the kind of intestigation and the kind of police practice that there is. Parliament attack was also in a sense a cross-border attack. There were 5 people who they were investigating who were absconding. They said the conspiracy was actually hatched as well....
Amu: But nobody was caught there...
Vrinda: Ya ya I follow you... in fact if you're caught alive it becomes easier because ...he is telling them things. When they are not caught alive they are literally groping for evidence and how do find the evidence? It becomes harder and you need more time. In practise it doesn't work like that. When I was talking to Jairus and Rohini in the afternoon - there was so much forensic evidence that must be at each of the sites that these attacks took place,...I don't know...I'd be very happy to be corrected, but I don't know if anybody actually collected that forensic evidence. Because what are you going to investigate? You can keep asking Qasab any number of questions you want. We can keep working on him. But investigation means much more than getting it from the mouth of the accused. Actually that is the- earlier it was torture direct- it still is...Now its narco analysis. We are still getting it from the mouth of the accused. We have no other scale of investigation that we work on in this country. It doesn't have to do with Mumbai- you can't even solve a murder in Noida. Because you forgot to pick up the weapon, you forgot to take fingerprints. That is the problem. 180 days will lead to more shoddy investigation, because the guy doesn't know how to do it any other way. And therefore when one talks of police reform- you are absolutely right- the demand that came up from Mumbai was 'Get your act together. Strengthen the intelligence. Put the police training in place. Get the coast guards in place.' None of that happened.
Vrinda: The simplest thing for the State and the cleverest thing for the State to do was to actually pass this amendment- whether the BJP helped them or they would have been happy to do it on their own- who knows. And to think that you are actually going to actually scare a suicide bomber. We are in the era of suicide bombers. You are scaring a suicide bomber with a law? Its a joke! The law has to have deterrent value. Who is getting scared? For all you know, Qasab is probably turning up in court and saying 'Yes I did it. Hang me.' We know that people of 9/11 have said that in court rooms. So there is no deterrance. There is no punitive value. What is this law doing over here- nobody knows. Except ofcourse the larger picture that the state has in mind.
Vrinda: I would be happy if this 180 days leads to something more. I don't think it will. PAst experience- just to give you one illustration of how this works- Parliament attack was a very high profile attack in the country. One would have thought the Special Cell is going to do the best investigation ever. Against professor Gilani they had an intercepted phone conversation in Kashmir. They didn't even transcribe it. They have a translation of it. A translation that was obviously challenged by those of us who were representing him, because we said its not an accurate translation of the conversation. Now if you have a transcript before the court, then you can't fudge it. You're saying that this is what was said.
And who do they call to translate it?- a conversation in which there are English words like prospectus, etc used- they find a fruit vendor from sabzi-mandi! That is how the police works. They know they don't have to do anything, the court is happy to hang. That's where this comes from. It works in another way.
J: I'd like to just ask Saeed... one of the key themes in what he said was about the overwhelming power and tyranny of the media, which is so obvious to all of us because we have been living with it for years now. But you know, it shapes the majorities in a certain way as well. I agree with you that we represent a majority, but still its an implicit majority, Its not a majority conscious of itself. That's the difference. Its a fragmented and civilized majority, which is still very much under the domination of these very powerful sources. Drawing from your own experience as a film maker, let's say outside the mainstream, how do you think its possible for people who stand for a radical and subversive culture, let's say, in everyday life? And in the State that we live and in the society that we live in, how is it possible to construct an organised resistance to the media? Because its not as if we live outside the media. We live within the media and our whole perception of the world is mediated through it, shaped by it, controlled by it, interpreted through it, etc.
J: One of the most horrifying things about the aftermath to November is the very ragged way in which everything was backed up- as if truth has been packaged now and circulated for consumption throughout the world. This is the offical version, -in fact there is no official version- but this is the offical version, this is the version people agree with, this is the version the media agrees with. Not a single journalist disagrees with it, not a single news channel on TV disagrees with it. And you ...influential media icons argue in this Pranav Roy and Barkha Dutt and so on- day after day. Its horrifying the way in which an artificial consensus is constructed so rapidly, when in fact there is no transparency at all about most of what has happened. Even something as elementary as - how many people were actively involved in executing these operations in November- Something as elementary as that we haven't a clue about today.
J: Because I remember for the first 3 days of TV viewing, they kept repeating the figure 20-25 and 20-30, and suddenly it was scaled down to 10. And they didn't even say "At least 10"! They could have said "At least 10", but no, they said "At most 10" as if a political dictate had appeared from somewhere. passed down the line, saying "No no, at most 10". Now how can you believe the state? We know that the state is something inherently untrustworthy. It operates in terms of control. And if deception is a means of control, fear is a means of control, intimidation is a means of control, then they will have recourse to all of those methods, including deception. The point about deception is, that its relayed across the world on news channels. So its taken as fact. If you see it in print, its taken as fact. How do we contribute to building a culture which is subversive, simply in the sense of being disbelieving- skeptical- not accepting, swallowing everything that you are told?
Saeed Mirza: I think its in meetings of this kind at one level. You do have some magazines and things that are trying their best to ..but they don't get the kind of readership that is required at a mass level. But I believe, over time, the concept of the media and the state will come together to control people's opinions. That somehow gets sensed. I believe that what occured in Mumbai in November, a lot of people are asking these questions which both the state and the media did not ask. Its being asked in the streets. Why do you think you are asking it Jairus? Its being asked on the streets of the city of Mumbai. You are not alone. And its not just us asking these questions we want to know. And therefore, now if that is given a voice through the media, which it never will, something else is going to happen. Because a Barkha Dutt, or a ...whatever...the other fellow...Pranav Roy...or Rajdeep...or anybody else, they will end up at the Taj and the Trident. They will not get to VT station. There's a reason. And suddenly they are told and suddenly they reverse and it happens ...they get to VT station also to check what happened over there. Its VT station where the questions are being asked. At the street level. How does one build on that?
Saeed Mirza: Like I said ...those people marched! We marched all over the world and it is a... I'm aware in a sense that ...like for example when we made Nukkad, it was a slightly romanticized version of a street corner and it was a television programme. It will not be allowed to be made today. It will not be allowed at the level of mass media, because of something very simple- In the nature of the state, and with globalisation, its very simple logic that follows. People never get to ....what's the phrase...people never get what they like, but they get to like what they get. Its over time. So what is it that you can create an issue and make an issue over time. You can create something which becomes a headline, well in fact it was really a headline. It should have been on page 7, actually, I'm abandoning the footnote.
Saeed Mirza: The linkages that I can now see today with mass media and the state- incredible! Mass media and the state- its linkages are so clear- and if one feels that I am conjecturing about my thesis- I have travelled across this land, for the past 20 years - I've just travelled - and what I've come up with is that when you go beyond rooms and a TV image and you read people, they go beyond the image now, and they go beyond the written word. The point is, how is that going to be coalesced and made or strengthened? That is not being hear. That is not being heard nor understood. And there is a anger of not being bothered, being disenfranchised in your country- of not being heard, and the wrong questions asked and wrong answers given and nobody is questioning the industry. Why was this question posed in the first place? We've stopped questioning question. We've accepted the question, then there is a corresponding answer. Nobody is questioning the question in the first place. And that's our tragedy, at least at the level discoursed. But I think beyond certain- ordinary people are asking this- Why aren't we being heard?- And there is an incredible anger and I think angst in a strange way. Unfortunately, if it is chanelised in directions that can lead the other way, it can be quite frightening. And there are political parties that are just waiting to play those games out.
Q: I just wanted to move back a bit. ...Where internationally there is an economic and political crisis. But with the collapse of the vanguardist league there is no alternative. I think the problem lies there. There is no political alternative to this mess that we are in today. And thereby you find its so easy to analyse all this. These are all symptoms of the balance of...someone can pass a law, someone can do sonething to the cops. We understand it but we can't do anything about it. We don't have agencies through which to operate.
(end of tape)
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