Saturday, May 29, 2010

Air Disaster and the Law


Can Indian law, its lawyers, the public interest law movement and legal aid system cope with the misery of a disaster? What remedies are available to the victims of a disaster?

On 22nd May 2010, an Air India plane crashed in Mangalore. 158 persons were killed. Air India (AI) is a financially diseased airline. Discounting the fact that AI’s Canada’s flight of 1985 which was bombed by the Sikh terrorists, AI has an abysmal record including crashes in the Arabian sea in 1978 (213 killed), in Mumbai 1982 (17 killed), in Ahmedabad (1988 – 124 killed), Bangalore in 1990 (92 killed), Imphal in 1991 (69 killed), Aurangabad in 1993 (55 killed), Patna in 2000 (Alliance Air – 60 killed), Mangalore in 2010 (158 killed).

To this may be added the design faults. The Mangalore Airport was created in 1951. Manmohan Singh’s plane could not land there in June 2006. The “table top” runway was reincarnated in a new 2450 metres replacement. Its new terminal building of 2009 is useless to those who die while landing. India has now other table top vulnerables.

Who is responsible? AI certainly. But also the Airport Authority of India and the government. In the Bhopal disaster case of 1989, the Supreme Court placed the government in the position of parens patriae. What is the big parent going to do? In the Air India disaster (1985), Justice Kripal’s special report was sidetracked in favour of business, treating the victims’ predicament as collateral. The ‘terrorist’ angle escalated into drama. The victims were paid routine sums. The ‘Bhopal Gas Tragedy’ led to a much criticized settlement on 14 February 1989, resulting in disbursements with more drama than substance. In the ‘Uphaar’ case the total sums were not sufficient. When Ansals refused to pay, I resigned as their lawyer. But in the Tata Jamshedpur Fire case their counsel left it to the court; which left it to the ex-Chief Justice Chandrachud who dispensed funds of limited significance. In the Punjab Swimming case, the sums were equally dispensed by an intuitive approach by the Supreme Court, which lost the woods for the trees. India’s disaster law is badly trapped in the jurisprudence of common law and motor vehicle cases. Justice Ravindran’s Supreme Court judgment in the Sarla case (a motor vehicles case) sought to standardize death cases by a formula which reduced the damages for death to penurious sums. His reason that ‘formula’ justice would result in immediate payments by insurance is remote from reality.

The response to the Mangalore disaster was typical. Sympathy was offered. Dead and wounded were carried to the destinations. The Chief Ministers of Kerala and Karnataka offered help and support. In honour of the victims two days mourning was declared in Kerala. Ex gratia sums were speculated. This is the routine Indian response to disaster.

Where have the lawyers gone? India’s PIL movement claims great victories. However, it is missing in ‘disaster’ cases – with the possible exception of Bhopal Tragedy, where 25 years later the case lives on. In America, lawyers who go for death cases are “ambulance chasers”, who demand a large percentage of the damages. But PIL and legal aid lawyers are not ambulance chasers. They are expected to perform a public service. As a legal case, one choice of jurisdiction is India – others being place of issue of ticket, domicile or place of business of airline and so on. Earlier, India incorporated the Warsaw Convention 1929 (amended by the Hague Protocol 1972) in the Carriage by Air Act 1972. Now India has joined the Montreal Convention 1999 (signed by 95 countries). What rules will prevail? The old rules limited death liability to $20,000 (or Rs. 9 lakhs) and for baggage $20 per kg. The new Montreal rules increase all this 7 times to $1,40,000 in death cases and maximum liability for lost baggage approximately to $1,400 per passenger.

This is a test case for India. In the Patna Alliance case, the compensation was Rs.5 lakhs – later raised to Rs.7.5 lakhs. The Gujarat courts raised the stakes slightly for the Ahmedabad crash of 1988 – with some issues unresolved. Air India’s major concern will be its damages for the aircraft. Its fleet is insured for $8.59 billion, with an annual premium of $24.3 million. The insurance is backed by a consortium of insurers – traceable to London, with General Insurance Corporation (GIC) stake of 14% of the portfolio. After some haggling, the aircraft will be replaced, but the dead cannot be. Already, the insurance people are seeking to apply the motor vehicles and common law formula based on loss of income and number of dependants. This is Justice Raveendran’s Indian Supreme Court formula to lower damages and routinize low sums on payments. The common law (which our courts follow) has always favoured the rich. The value of an Indian life (even on international travel) is devalued. The unwritten placard on airplanes should say: “If poor from a poor country, your life is valueless to us”.

For the Mangalore air crash, India has to decide whether to follow the Montreal Convention and pay minimally. This is an important decision which insurers, corporates, government and airline will try to short change. Defenseless victims’ families may have their lawyers also take them for a ride. To whom should the victims’ families turn? Given its past record, the Indian legal system may fail them, unless someone takes an activist interest in their predicament. India’s public interest law is very selective in its approach. Disaster resulting in death should not further be perpetuated by legal disaster.

If India wants to be fair to the Mangalore victims, it should ask Air India and its insurers to pay at least $1,60,000 or Rs.75 lakhs or so. This should be minimum for each passenger. This should be the absolute liability figure for Air India. But there are also gross design faults and other negligence of the Airport Authority; for this, a round figure of $2,00,000 should be the minimum amount.

But will this happen? Most disaster cases get settled. This is true of Dalkon Shield, Agent Orange, Bhopal, Thalidomide and many others. The airlines and insurance companies use the best lawyers to fight back with legal brownie points. Bhopal had Nariman! Each brownie point costs lakhs. What we need in this case: (i) A clear statement by Minister for Civil Aviation (Praful Patel) committing Air India and the government to a $2,00,000 per person figure as a minimum figure; (ii) Air India needs to carry the insurance companies with it; (iii) The Union Ministry, Bar Council of India and the National Legal Aid Authority of India should approach a group of lawyers to provide full legal aid and support; (iii) A Public Interest Litigation (PIL) in the Supreme Court should monitor this.

Unfortunately in the past, an Indian life has been treated as having a dramatically lesser value than that of a person from powerful white nations. Indian governments and companies struggle to limit liability. International travel should mean international rates for all. India lacks the will to deal with disaster and death, except with funeral ceremony. For once let us align entitlement with responsibility.

Indian law is hopeless in dealing with disaster. Its disaster makers get careless. AI needs to learn many lessons. Recently, I saw a AI plane on the tarmac. Its tyres were bald. Typically, playing with disaster. If so, honour the victims with their due.

Thursday, May 20, 2010

Sacking Governors

Sacking Governors
Rajeev Dhavan

The Supreme Court’s judgment on governors in B.P. Shinghal’s case (2010) was welcomed. But it is not enough. The legal controversy revolves around the Governors being appointed (a) at the President’s pleasure to be sacked when the Prime Minister wants or (b) for the guaranteed term appointment of 5 years. The Sarkaria Commission (1988) revealed that between 1947 to 1986 out of 154 tenures, 104 did not complete their five year term! The merry-go-round has continued. The Bhagwan Sahay Committee (1971) did not tackle the issue even though Governor Dhavan raised it. The Sarkaria Commission shielded away from giving Governors security of tenure. The Constitution Commission recommended a fixed five year term with removal only by impeachment. In the Constituent Assembly, Ambedkar’s summary response was that prescribing reasons for removing governors was a matter of detail.

The Supreme Court examined the issue with legal detachment, overlooking that successive Union governments treated the Governor as an agent, saboteur and doormat to be dismissed at pleasure. Even government peons have better protection.

The Supreme Courts response was half-hearted. It gave priority to the “pleasure doctrine” over the constitutionally prescribed 5 year term. It failed to restrict the compelling reasons for removal to physical/mental disability, corruption or conduct unbecoming. It refused to require reasons for removal. It failed to accept its role of rigorous judicial review. In other words, the Supreme Court recognized the problem but failed to resolve it. Governors will continue to be as vulnerable as they were before, to be removed for silent reasons. The Court also lost sight of the Constitution Commission’s recommendation for new collegiate appointment systems so that arbitrarily appointed governors are not arbitrarily dismissed.

Disappointment increases when we realize the Governor is a head of State. He is not a beck and call appointment to be used and abused at pleasure. The whole system needs to be changed by constitutional amendment.

Saturday, May 15, 2010

Narco Tests - Supreme Court Falls Short


In the last days of the reign of Chief Justice Balakrishnan, the Supreme Court delivered a number of significant judgments including on Governor’s tenure, Khusbhu’s free speech, Reliance, the tribunal system, the validity of the panchayat amendments and, of course, the use of Narco tests. The Narco judgment of 5 May 2010 took over two years; and is painful to read because of its cut and paste abstractions from lower American courts. A jurisprudence based on imitating cosmopolitanism seems to continue to mesmerize Indian courts with neo-colonial insistence.

The narco test became legally controversial. It was upheld by the Bombay and Madras High Courts in the Dalmia and Telgi cases. Police all over used Narco tests in the Bombay Train blasts, the Nithari and Arushi (Delhi), Beer serial killer (Mumbai), Suhrid Dutta and Bauria (Kolkata), and the Sister Abhaya cases – all lurid tragedies excited into the public domain. It has been used against gangs (Bongaon case of an alleged ISI agent) and terrorists (Malegaon bomb blasts). On 3rd May 2010, a Rajasthan court permitted narco tests against Devendra Gupta, accused in the Ajmer Blast case. This was one day before the Supreme Court judgment which unconstitutionalized the narco test. The Delhi High Court, in the Maoist Kobad Ghandy case, preferred to wait for the Supreme Court to decide the Narco case. In other words, legal chaos reigned.

But, the above examples also indicate that in dramatic, high-profile cases where the police are under pressure to show immediate results, narco is used to portray guilt to satisfy the public’s thirst for news, revenge and populist justice. ‘Guilt by narco’ rends the air before the trial has begun. There is little sympathy for murderers, serial killers, terrorists and bomb-arsonists – even if falsely accused. Narco plays to the gallery. The second cousin of the Narco test is the lie-detector.

The problems with Narco are two fold: (i) the first is whether these tests are credible and reliable; (ii) the second is whether such invasive tests are a violation of life and liberty, in that they invade a person’s body and being contrary to article 21 of the constitution; and, the protection of every accused not to be made a witness against himself (article 20(3) of the constitution).

The various lie detector tests have been used for criminal investigation, espionage, employee screening and so on. These tests show the manner in which the body shows signs of physiological anxiety through sweating, pulse rate and the like when subject to interrogation. In other words, if you sweat and the body seems anxious, you are a liar. The ‘cool’ criminal will pass this test with aplomb. Research throughout the world – especially reports from US (2003) and UK (2004) – show the test to be unreliable. Even criminals churlishly say, “Give us a lie detector to prove our innocence”. Indeed, in an American case, it is the accused who wanted a lie detector test to prove his innocence. The Supreme Courts of the US in Scheffer (1998) and Canada in Beland (1987) found these tests to be unreliable. In fact, the use of the lie detector test is a cruel joke that plays to the public imagination as truth, when it is nothing of the sort.

The second and third tests are the narco analysis and brain mapping. Both are invasive and plant things into a person to loosen their minds to make a confession or make their brain render evidence against them. In Narco, a truth serum (like scopolamine) induces a hypnotic trance and, allegedly the truth pours out from the inner consciousness. We need not go through Balakrishnan CJ’s super reliance on American lower courts; or examine the retrograde US Supreme Court judgment in the Arkansas case (1987) which held that hypnotically-refreshed testimony is admissible. What weight do we attach to this jungle of US cases? Brain mapping is no less invasive. It relies on ‘P300 Waves test’ to show ‘event-related brain potential (ERP)’. Just because we give acronyms and numbers for tests to disguise their inadequacy, the speculations of neurology, injections and probes cannot reify such prodding into scientific objectivity – even if a future ‘Brave New World’ may be induced to think otherwise.

But beyond reliability, lies the question of ‘forced incrimination against oneself’ forbidden by our Constitution. Cases have to be proved by facts, not induced confessions. In 1954, India’s Supreme Court gave broad protection against self-incrimination. An eleven judge bench in Oghad’s case (1961) permitted handwriting, signature and finger-hand impressions as not being examples of self-incrimination. This was extended to urine and blood samples. Even if giving a blood sample is physically invasive, it was permitted because it does not force confession but simply states a fact as to the blood type. Nor can we ignore Nandini Satpathy’s case (1978) that suspects are not accused – and both have a right to silence.

With all this behind them, the Supreme Court in the Narco case (2010) should not have taken over two years to deliberate and decide that lie detector, narco and brain mapping tests are invariably outlawed by India’s Constitution. But, the Supreme Court made a tragic mistake. Having outlawed involuntary tests, it decided that if a person wants to take these tests he can do so, under conditions of legal advice and magisterial supervision, without the confessional outcome being admissible. In criminal cases, even voluntary acceptance of these tests should not be permitted – especially if they cannot be admitted into evidence. What would be the point? This is India. People can be forced into voluntary confession. Police will force confessions under threat and the accused will have to pretend that it is voluntary. Having decided that narco and other tests are constitutionally invalid, the Court should have stopped both voluntary and involuntary tests. The wood was lost for the trees.

This is equally true of the NHRC’s guidelines followed here. I remember writing an opinion on this for NHRC, for the, then, Chairman Justice Venkatachaliah. The reason why guidelines were issued was because the NHRC could not invalidate these tests, and chose only to discipline them. But the Supreme Court is the highest constitutional authority. It has the power to invalidate unacceptable practices. People may say that consequentialism requires that individual rights shall give way to the public interest in tracking down dangerous crime. But ‘truth’ cannot be established by unreliable, evasive and invasive methods simply because a media fed public opinion thinks it represents the public interest, which, alas, must also include defending the possible innocence of an accused.

Lastly, there are civilization questions. Societies are known for the kind of proof they seek – both socially and for justice. Earlier, people walked over fire or were boiled in oil to prove their innocence. No less civilized is extraction by torture. Narco and other tests are barbarities of past, dressed up as science. Forensic investigation is permissible. Barbaric invasiveness is wrong – both if it is without consent or given voluntarily. The same science that brings many goodies, also, lends itself to inhuman nonsenses.

Tuesday, May 11, 2010

Split the Supreme Court

Split the Supreme Court
- Rajeev Dhavan

Designed as a Supreme Court (SC), it has now become like a High Court (HC). Its jurisdiction is too wide, its jurisprudence too unwieldy. Drowned by with arrears of cases, its pivotal constitutional work suffers. Its 50,000 cumulative pendency may be nothing compared to 38 lakh arrears in the HCs and 3.6 crores in the Lower Courts.

Our justice system has become something of a lottery. The SC contributes to the lottery. Judges working at breathless speed cannot deliver an even handed and consistent justice. It does not matter how hard the SC judges work. They are drowned by it. Desperate measures have not made a dent. Today, some benches (notably Justice Katju’s bench) dispense quick justice when the judges think they have understood the file without fully reading it. Quick intuitive justice is no justice.

Despite this, the SC surpasses itself. Constantly in the news, it decides issues of national significance. Its work is often likened to T20 cricket. If test cricket is played, it is always in a hurry. Under the circumstances, the judges have done well. But for how long, with what loss of quality?

The present strategy of increasing judges and hacking down pending cases is not the answer. The Court needs to split into two: a separate court of appeal and a constitutional court. Between the HCs and the SC, there should be a Court of appeal for all civil, criminal, tax, reference and other cases. This Court could have twelve benches of 3 judges – each of whose decision would be final. The SC should become a constitutional court with 9 judges sitting together en banc and a new procedure whereby it would select what it wants to hear. At present this selection takes 50% of the SCs time. Its jurisdiction would be limited to (a) fundamental rights (FR) cases (b) federal disputes between states (c) any matters relating to the interpretation of law, and governance, under the Constitution – broadly covering the Writ jurisdiction of most of the High Courts (HCs). If it works for the HCs, it should for the SC. In this regard, the federal jurisdiction would be exclusive. FR cases could come directly or by appeal as would other constitutional and administrative law issues. The ‘Advisory Jurisdiction’ would remain. The judges sitting together would make the Court’s work more cohesive.

The SC’s pronouncements on governance are spectacular¬. But, it has become an overburdened goods train with a broken down shatabdi express engine. The new solution would require a better selection of judges through wider collegiates not the present inward looking ‘SC’ cabal. The ages of all High Court, Appeal Court and Supreme Court judges should be 65 years. This will take the edge off competitive rivalries and selection. A better registry and management will save time. Judges will have time to consider and think issues through. If politicians are custodians of the political texts of the Constitution, judges are custodians of the justice texts; and, indeed the Constitution itself. Improving unit cost efficiency in disposing cases will not achieve justice or good governance. Structural changes are needed. Things can go wrong. They have.

Friday, May 7, 2010

Death for the killer: Are two views possible?


The Death penalty is a form of state legicide as a permissible retributive justice. Controversy abounds on the death penalty. For the purposes of Kasab’s case, it is not necessary to enter into the precincts of that dispute. The Supreme Court closed that controversy by upholding death penalty in Bachan Singh’s case (1980 – over Justice Bhagwati’s dissent). The Court felt that in the right circumstances “it was not possible to hold that…death penalty as an alternative to punishment for murder…is unreasonable and not in the public interest.” The imposition of death penalty on Kasab invites inquiry on the parameters laid down by the Supreme Court. True, Machi’s case (1983) decided that death should be imposed only in the “rarest of rare” cases and that “a balance sheet of aggravating and mitigating circumstances had to be drawn up to effect a conscientious exercise of this power”. If more direction was required, Devinder Pal’s case (2002) listed five kinds of instances which should attract death penalty (i) brutal, “grotesque, diabolical, revolting…dastardly” inflicted murders which would “arouse intense and extreme indignation of the community”; (ii) cold blooded murders which evince “total depravity and meanness”, especially by one in a dominating position or one of trust; (iii) murders of scheduled caste and minorities, bride-burning, dowry deaths, killing of wives to remarry “in circumstances that arouse social wrath”; (iv) murders which are “enormous in proportion”, including large scale or multiple killings; (v) killing of innocent children, women and the infirm, where there was a duty of protection or a public person figure generally loved and respected by the community. Thus motive, manner of killing and social wrath which shocks the social and judicial conscience attracts the death penalty. Social opinion examines the conscience and is not a license to lynch by public opinion, which many want to do in Kasab’s case.

Despite this, in Rameshbhai’s case (2009) two judges disagreed in the Supreme Court on the rape and killing of a 10 year old girl by a watchman. Justice Pasayat was for the death penalty but not Justice Ganguly. An Amnesty Paper reviewing death penalty cases in the Supreme Court from 1950-2006 suggests the imposition of death penalty cases was a “legal lottery”.

Kasab was found guilty for over 80 charges punishable under the Indian Penal Code and was given the death penalty. The death sentence was on five counts –of murder, conspiracy to murder, abetting murder, waging was against the country and terrorism. Classical international law may well assert that only nations can declare and fight wars. But, such classical law cannot govern our present discontents. Earlier these wars were called low intensity operations. But the war that Kasab was engaged in was a Pakistan sponsored covert war which does not have to be declared and is sustained till whenever the aggressor wants it to do so. We are at covert war with Pakistan for which Kasab was a willing trained and armed terrorist. That Pakistan is itself the victim of its own self created terrorism does not take away from its ‘covert’ war against India. I say this because in order to consider Kasab’s case the facts need to be told as they are. Kasab murdered seven people directly and was part of a conspiracy that led to the murder of 166 others. It was cold blooded, gruesome and deadly, with deliberate planned intent. It falls into the ‘rarest of rare’ categories. The fact that police were killed includes them only amongst the murder of the innocent. I do not believe in the death penalty. But that is irrelevant for discussing whether the death penalty was correctly awarded under Indian law. It is not an inter-personal killing but a large, well worked conspiracy to kill innocent civilians.

Kasab was waging a war. To his Pakistani handlers, he was a ‘war’ hero. For India and under Indian law, he is a dangerous criminal. The handlers are no less guilty. Implicit in the Kasab conviction is a message to Pakistan that the Indian legal system regards this as waging war, irrespective of international law definitions. Macaulay’s Indian Penal Code created a very wide definition of ‘war’ under section 121 to include all forms of ‘armed insurrection and invasion. This is very same section that exists in Pakistan’s Penal Code. Pakistan will continue this war. But Kasab is not a ‘soldier’ but a terrorist who at Pakistan’s instance waged ‘war’ in an invasion of India. The significance of the Kasab judgment is that it legally states what diplomacy holds back.

In this situation of covert war, Kasab does not have the rights of a prisoner of war. The killing of civilians as part of a terrorist plan to murder and wage war against the innocent cannot classify him as a war criminal. As a pacifist I do not accept Grotius’s distinction of a ‘just war’ through which Imperial nations conquered the world. Kasab was not to be repatriated to Pakistan, which, in any case, disowns him and the gruesome conspiracy he was a part of. He was also guilty of crimes against peace and humanity. But Judge Tahaliyani fitted Kasab’s crimes within the Indian Penal Code; and rightly so.

So, the answer to the issue of Kasab’s rights is that he was entitled to a fair trial. Did he get it? The answer is that he did. A distinct feature of his trial was that it was held in prison. The same Judge heard the case through. On 29 November 2008, Kasab confessed to the police and on 20 February 2009 made a confession before Magistrate Waghule. On 20 July 2009, Kasab pleaded guilty in court, but denied charges later in December to retract his plea of guilty in January 2010. Kasab was defended in court by Anjali Waghmare and later by Abbas Kazmi who was replaced by KP Pawar as Kazmi was wasting time. On other defence lawyer was shot. But Kasab got legal representation. DNA sample identifies Kasab with articles in the Kuber ship which was hijacked and whose crew was murdered. The 1522 pages judgment considers the testimony of 296 witnesses. Prima facie, it cannot be said that Kasab did not have a fair trial with due process - even though he tried to sabotage the trial himself with many antics.

But Kasab verdict is the beginning of a process which cannot be treated as a forgone conclusion. His right to appeal to the High Court and Supreme Court entitles him to the complete defence by the best Indian lawyers. Even in the Parliamentary attack case, Gilani was acquitted. The mercy petition process will take longer. Of the 308 persons in the death row, 256 are before the courts and 56 have filed mercy petition. If unconscionable delays occur so that the impending noose threatens his being, this, too, may be considered.

Indian justice is notorious for changes in judge at various stages. Justice Tahaliyani has been exemplary in the trial from beginning to end. All cases should proceed day to day on this basis.

To want capital punishment to be abolished is merely a wish which does not and cannot condone Kasab’s actions. Both legally and morally, Kasab is a criminal and to be treated as such – with the care and courtesy of a fair trial. Throughout my lifetime, I have seen continuing covert wars in various parts of the world. To condone these wars is to abjure humanity.

Saturday, May 1, 2010

Snooping: Need for a Joint Parliamentary Committee


Beyond “telephone tapping” lies the awesome world of surveillance, of which tapping is a part. The excuse for all this is anti-terrorism. The principle put forward: “Trust the government”. The revelations in April 2010 show Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat’s phones were tapped. This was political espionage. It did not have the remotest nexus with terrorism. The targets of snooping were political competitors and opposition. Like Watergate. But Watergate brought down a President. India’s Manmohan Singh does not even want a Joint Parliamentary Committee (JPC). Way back when I was arguing the phone tapping case, I relied on L.K. Advani’s dossier of 1988 which showed that the targets of tapping were Messrs Vajpayee, Charan Singh, Jagjivan Ram, Chandra Shekhar, GK Reddy, Arun Shourie, Kuldip Nayyar, Tavleen Singh, President Zail Singh and Y.V. Chandrachud, Chief Justice of India. This did not prevent the Supreme Court of India permitting a broad power to tap to Government while recognizing the absence of legitimizing procedure under the archaic overbroad Telegraph Act of 1885. Confusion was created by lawyer Kapil Sibal conceding acceptance of system “short of prior judicial scrutiny”. Judicial permissions precede “search and seizure”. Surveillance and tapping should be no better. In 1997 the Supreme Court was content with “guidelines” on who, what, how and oversight. A Joint Secretary could authorize specific taps, valid for two months and extendable (destruction of materials if not required) and with an Oversight Committee consisting of Government Secretaries drawn from the Ministries of Home, Law and Telecommunications. Enmeshed in secrecy, the “guidelines” were a flop. The Supreme Court lost its chance to counter invasions of privacy while blessing an invasive surveillance.

Terrorism has provided some kind of false utilitarian justification for surveillance. Post 9/11 in 2002, the President of America authorized intercepting communication in what has come to be known as the “Terrorist Surveillance Programme”. This was publicly acknowledged after revelations in the New York Times in 2005. Codename Pinwale of 2005 devised how a data base of electronic communications could be used and misused. The original US law of 1978 was breached and went beyond orders given by the Foreign Intelligence Surveillance Court – not just of phones but also email - in massive exercises of “over-collection”. The Bush regime’s practice was legitimized by a 2008 amendment which meant much of spying would be authorized and undetected. In the Al Haramain’s case (2010), Judge Walker declared that following Congressional Statutes was not optional. Though federal Judge Anna Taylor in 2006 declared unauthorized wire-tapping illegal, the case lost its adversorial charm by appellate reversal on facts that tapping itself was not proved. Ironically when the Bush changes were made in 2008, the then Senator (now President) Obama voted for them! The present law now requires a warrant for eavesdropping on an American citizen or organization in America, but not for the rest of the world; or for all of us!

After considerable fumbling when an internal Lord Diplock Committee looked at taps after the event, UK’s Interception of Communications Act, 1985 was superseded by a Regulation of Investigatory Powers Act 2000 which along with the Police Act 1997 permitted covert surveillance. These changes came because the House of Lords in Khan’s case (1997) showed amazement at the lack of statutory regulation on snooping. The present UK legislation has been called a “snooper’s charter” and may be specifically “directed” or generally intrusive. Covert and especially intrusive surveillance even though authorized by authority (eg. Secretary of State) is too widely permitted for a broad spectrum of serious crime prevention, economic well-being and national security.

We concentrate on the US, England and Europe who have declared unofficial war against terrorism to enable them to conquer countries through war in the name of peace; and, maintain a global surveillance, for the purposes of arrest, torture and rendition. The European Court in Khass (1978) and Koll (1998) frowns on unauthorized surveillance. But the world of "intelligence" has grown into an uncontrollable monster of which India is an inefficient but dangerous part. It is now well-settled that UK's war on Iraq was contrived. Surveillance of Muslims leading to their house arrest in UK was set aside by the House of Lords in June 2009. What kind of place does India want in this 'global network'? We stoop to conquer, to try and get access to Headley; and are spurned, with arrogance, by a brazen US, who does not even pretend to be wily. Our location on this greatest of all global surveillance is that of a junior cadet – trusted when convenient.

But is a US-directed snooping over the whole world a good thing – an evil necessity? To be sure, intelligence is needed even if it has failed us in Mumbai or Dantewada. To some extent, POTA admits to access to phone records as part of investigation. But questions of admissibility of evidence do arise where evidence is illegally obtained. India follows the rule that even if the evidence comes from an illegal poisoned tree, it may be admitted. How far can all this go? It can be ruthlessly argued that our phone privacy is less important than national security. But that is not how it works. The recent revelations show that espionage, surveillance and tapping have little to do with security issues. A state machinery can and has been twisted to work for its own ends – including the personal, private, political, evil and selfish. It is master-minded by those who have a sophisticated machinery of gigantic proportions in their hands. Can such a surveillance machinery, including phone tapping, be left without surveillance over-seeing its processes?

Unfortunately the Supreme Court of India’s phone tapping decisions (1997), left the whole exercise to semi-senior bureaucrats who may not be (and, often, are not) above corrupting political influences or personal vendetta. But, even these “guidelines” have been breached. Who authorized the present taps? No one is spared – not even politicians. No less unfortunately, the Prime Minster does not want a JPC. The reason is obvious. Beneath and behind every surveillance, there is a can of worms – which may, or may not lead to Race Course Road or even Janpath.

True, JPCs’ have been used rarely since Bofors (1987), stock market fraud (1992 and 2001) and pesticides (2003). But we need a JPC. Not a Liberhan style Commmission. A JPC would (a) investigate the efficacy of Supreme Court’s guidelines; (b) punish infractions (for this is as bad as Watergate); and (c) carefully consider a proper system of surveillance – an exercise that has never taken place in India since the nineteenth century. The Opposition should stop playing games with “cut-motions” to embarrass the government and precipitate musical chairs to ward of confidence-motions. It should not just be concerned with dislodging the government, but with good governance itself. Today “good governance” requires a thorough investigation of those who snoop into our lives with possibly malevolent intent to misuse the information. Only a JPC can form an effective probe. Denying a JPC suggests there is something to hide. The world of “Big-Brother” is upon us – the Leviathan of our times. Someone has to watch “Big-Brother” before he gets bigger to cease to be a brother.