Legal judgements given by courts follow a familiar template. They eschew facts except those relevant to the legal principles relevant for determination. This familiarity in style and structure while maintaining a fidelity to function loses a narrative. The loss is often in factual details, not pleaded by lawyers, absent from legal memorandums, considered irrelevant for legal determination. But sometimes this results in the loss of a person itself.
Consider the recent Supreme Court judgement on encounter killings. The judgement was initially greeted for laying down “tough” standards in cases of encounter killings but slowly came to be greeted with cynicism. At the heart of this varying reading was the order that in all cases of encounter killings, a criminal case should be registered. A natural reading of the language would suggest that immediately after a person was killed in an encounter by the police, a case would be registered to inquire whether the death was legitimate. This could lead to criminal charges against the police officers who used armed force resulting in the death. However, as human rights advocate Colin Gonsalves pointed out, the unfortunate phrasing of the order would lead it to be circumvented. Already in the past, cases of encounter deaths have led to criminal investigations on the deceased and not the police. No cases were lodged and no inquiries were made into the necessity of the death. Since criminal law (at least at present) does not prosecute the dead, a limited case was registered against the deceased, which was soon closed.
Without the safeguards it intended to prescribe being expressly stated, the judgement is little more than a summation of various police encounters, where the dead are reduced to mere numbers. These dead speak through Manisha Sethi’s book, Kafkaland : Prejudice, Law and Counterterrorism in India. Kafkaland comes through as a book built not only from within the comfort zone of legal analysis but personal interviews and deep research. Its commentary on various anti-terrorism laws is through individual cases which demonstrate their abuse. To preface that these instances are not outliers, the author presents a powerful statistic. She states that out of the 76,036 arrests made under TADA (an anti-terror law in force between 1985 and 1995) only 1 per cent ended up in convictions. Similar numbers are furnished for POTA (in force between 2002 and 2004) for which 1,031 arrests were made, out of which 18 trials had been completed, resulting in the conviction of 13 accused.
The book humanises the accused and the acquitted, the convicted and even those who have been murdered. It profiles not only the victims but also the perpetrators. It details the questionable methods of extracting confessions by a person referred by the security apparatus as Dr Narco. Some of these confessions form the basis of prosecution in several cases, which are commented on later in the book. Most of these cases lead to acquittals.
The acquittals do not occur instantly. Prior to them, the accused are yanked out of the struggles of their daily life to a jail cell where they spend years as undertrials, receiving every conceivable torture. Most of them confess, only to later detail the brutality they suffered. Courts often in such cases throw out the questionable evidence presented before them. These are not cases where reasonable doubt as to the guilt of the accused is present, rather there is a reasonable doubt as to the accusations made by the police itself. These narratives are not muted in Kafkaland, which challenges various received truths about terrorism and its alleged perpetrators.
Not limiting its commentary to law enforcement, the author also questions deferential commentary surrounding terrorism. She details mainstream analysis that rubbishes fundamental principles of liberty and due process established by the Constitution. Posing inconvenient questions on the number of young Muslim men who are prosecuted and subsequently acquitted by courts, she asks, does the state have a prosecutorial bias? Also, does popular commentary not only permit but encourage it?
Reading Kafkaland is bound to cause some discomfort if not introspection. This is where the author has borrowed a metaphor which could not be more accurate. Beyond flirting with the practice of law, or later writing a novel on a maddening criminal trial, Kafka’s books have one unmistakable effect. They prompt similar thoughts long after the book has been read and kept aside.
This article was originally published in The Indian Express on November 29, 2014.
Apar Gupta