By denying Dzhokhar Tsarnaev his
Miranda Rights, and by conducting secret executions, citing prioritisation of
public safety, USA and India - two torch-bearers for democracy - are
jeopardising the very virtues they strive to protect.
The recent events in both India
and the US have revealed some startling truths about democracies. In the last six
months, India has secretly hanged two terrorism convicts, after a span of eight
years on the death row; meanwhile, in the US, Obama’s Department of Justice has
pushed for the Boston bombing accused, Dzhokhar Tsarnaev, to be questioned
before he is read out his right to an attorney, thus challenging the very ethos
the two democracies are based on. The two countries have successfully played up
the threat to democracy from terrorism, to an extent where the both the US and
India have been bending laws to suit the prevailing attitudes towards the
convicted.
For the “greater good”
India executed two high profile convicts
in a span of four months - Ajmal Kasab, hanged in November 2012, was one of the
terrorists involved in the attacks on Mumbai in 2008, while Afzal Guru, hanged
in February 2013, was one of those accused of the attack on the Indian Parliament
in 2001. One of the main reasons India’s Home Minister cited for conducting the
two executions in secret was “to maintain peace and keep protests to the
minimum”. In the case of Afzal Guru, who received support from various groups
especially in the turbulent Kashmir Valley, the Government attempted to justify
the secret execution by stating that it was the only way to ensure a smooth
passage to the gallows. Minutes after Guru was hanged, the Valley was put under
curfew and security was increased to avoid any violent clashes or mass protests
against government establishments.
In the American case, the Obama
administration had already allowed for the retracting of Miranda Rights for
terror suspects, in March 2011, thus permitting investigators to question such
suspects without a lawyer, for as long as they deemed necessary to obtain as
much information as possible. This, according to lawmakers and investigators,
could help in acquiring critical information which could be used to prevent further
attacks. In the wake of the Boston bombings, influential lawmakers, including Senator
Lindsey Graham, called for interrogating Tsarnaev before reading him his Miranda Rights since he, as a terrorist,
posed a greater and more complex threat to American society than any other
criminal.
But how is a country that is
capable of abridging laws on a temporary basis, fit to protect its people and
their shared values? How can a democracy make an exception to its laws when this
is the very same fabric that it uses to protect its people in ordinary times
and in times of turbulence?
Tailoring the law to one’s convenience
The Indian government has erred
on several counts.
According to both International
and Indian law, a death penalty case deserves to be considered for clemency if
the convict has been kept waiting for too long. The emotional trauma to both
the convict and the family is to be taken into account before confirming the
death sentence to a convict who has been waiting for a prolonged period. By
disregarding Guru’s prolonged wait, the government defied the Supreme Court of
India and the International Court of Justice. Moreover, in order to prevent any
further delay in Guru’s execution, the President had rejected Guru’s petition
in February 2013 and this decision had not been made public. Since he was
charged with terrorism and was portrayed as an enemy of the nation, it was
tough for Guru to find legal representation, making it easier for the
government to cover up its misconduct.
In the case of Pakistani
terrorist Ajmal Kasab, the Home Minister said the execution was conducted in
secret to prevent any human rights activists or others from filing a petition against
the death sentence and delaying the process.
According to Article 21 of the
Indian Constitution, no individual can be deprived of life except according to
the procedure of law. This would include informing the family well before the
execution so they may say their final goodbyes. In the case of Kasab, the
Government of India had supposedly intimated his family in Pakistan, who were
unable to visit him before his execution. However the same was not done for
Guru, an Indian citizen, whose request to be shifted to Srinagar prison so that
he could be visited by his family, including his ailing mother, was rejected,
and no timely intimation of his impending execution was sent to his family. Guru’s family received a letter two days after he was executed, denying them the
right to say goodbye or challenge the Presidential rejection of clemency in the
Supreme Court. This, compounded with the fact that Guru’s body was buried
within Delhi’s Tihar Jail without his family’s participation in the funeral,
makes the execution an obscene affair. The act of secrecy and denying Guru’s
family the right to have his body is not only a violation of human rights but
also against the law, and by bypassing the necessary procedures, the government
has undermined the justice system, making the handling of the entire situation
unconstitutional.
Similarly, in USA, Miranda Rights
were put in place to prevent any mistreatment of the accused in the hands of
investigators. Withdrawing Miranda Rights for a suspect arrested on American
soil could set a precedent that might lead to misappropriation of the power
wielded by investigators of terrorism-related crimes.
Real challenges to democracy
Is the threat against a nation’s democracy, national security
and sovereignty so large that the governments must abridge due processes and
bend an entire structure of law to do whatever may be necessary to safeguard the
nation’s social fabric?
In Guru’s case, he was not allowed the judicial recourse
every convict in India is entitled to under the Indian Constitution. It is a
legal requirement to inform Guru of his rejected appeal, and allow him to contest
this decision in court. Moreover, it is unconstitutional to suggest that the
government was compelled to carry out the execution in secret as a fair legal
procedure would have attracted mass protests and disturbed peace. As a
democracy, are we not entitled to non-violent mass protests?
Defending their decisions, both
India and USA have taken a firm stand against terrorism, saying that they would
take extreme measures to keep terrorism and terrorist activities off their
soil. The US has gone so far as to declare war against anyone who takes up arms
against the nation. Additionally, the American Supreme Court has allowed for
the Miranda Rights to be retracted in the case of ‘public safety’; given that
an average of 31,537 people in the US become victims of gun violence every year[i]
as opposed to 400 US casualties on average in Afghanistan[ii],
this should be applicable when interrogating shooters too. However, there is no
evidence to prove that shooters, a larger threat to public safety in the US,
have their Miranda Rights rolled back.
In such cases where the law is
abridged to provide terrorists with stricter punishments, the two democracies
need to be able to put an end to arbitrary distinctions between them and other
criminals – who are an equal threat to public safety – to justify the former
deserving rare or strict punishments. How does a democratic state distinguish
between a terrorist, a shooter, a serial killer or a rapist in terms of
treatment at the interrogation and/or when handing out punishment? Both states
have failed to convey how one is a larger threat to public safety than the rest.
For democracies that are built on
values of fairness, equal opportunity and a well-defined justice system, it is
worrying when their governments are ready to disregard these very laws even
temporarily. The move is self-defeating in a way that it marginalises the
accused even further. This, as we have seen in the case of Kasab and Guru,
makes it difficult for them to avail of legal help, thus challenging the very
system put together to protect its people. This blatant disregard for the laws
of the land and International Law undermines the ethos and shared values of
these democracies.
Such abuse of the law can result
in disenchantment among marginalised sections of society, making it easier for
terrorist organisations to recruit from them. This in turn affects the manner
in which the country can respond to terror threats, making nations more
vulnerable, and thus undermining public support and international co-operation.
The democratic ethos need to be
protected, even in times of crisis. Every time we allow governments to bend
legal provisions on a case by case basis, we could very well be paving the way
for them to take further liberties with our rights.
For India, the list of secret
executions may not have ended. Devender Pal Singh Bhullar, a Khalistani
extremist accused of the 1993 car bombing in New Delhi, has been on the death
row for 20 years. His mercy petition was recently rejected by the Supreme Court
despite the long wait. Given the two decade long trauma and laws suggesting
that a delay in execution allow for commutation of the sentence, the government
may take measures in its own hands as it has done before. Unfortunately, if the
laws have been bent once to favour the government, there will be little to no
hesitation to do so again, especially given that there are too few voices
expressing dissent.
What is required is a strong
collective voice that prevents the government from acting unconstitutionally,
no matter how heinous the crime. Justice is meant to be a deterrent, not a tool
to extract revenge.
*An abridged version of the blog has been published in The Heptagon Post: http://www.heptagonpost.com/Rao/When_Democracies_Make_Wrong_Decisions
[i]
Brady Campaign to prevent gun violence (http://www.bradycampaign.org/xshare/Facts/Gun_Death_and_Injury_Stat_Sheet_3-Year_Average_FINAL.pdf).
[ii]
Years 2002-08, Centre for Strategic and International Studies (http://csis.org/files/media/csis/pubs/080808_war_casualties.pdf)
