Democracy demands a fair trial

To my mind, the distinction is inapt. Many ‘terrorist’ suspects languishing in jail were merely conduits or harbourers caught amidst the seamless terrorism network. How many masterminds behind those heinous crimes have we been able to nab, let alone try? Even if we assess on the basis of a spectrum of social harm caused by such ‘acts of terror’ and the intangible public interest in convicting such perpetrators, the distinction between ordinary crimes and terrorism-related offences is merely one of degree. The intensity of our outrage may be less in the case of a gruesome murder rather than a bomb blast killing 50, but it nevertheless remains in both cases and the investigating team is duty-bound to bring to justice both categories of offenders.

In a democratic nation, the right of an accused to a ‘fair trial’ is quintessential. An unfair trial is an anathema to the rule of law. The European Court of Human Rights has labelled it in absolute terms from which no abridgment is possible. It would be startling, if not disturbing, if ‘special’ rules sanctioning torture and indefinite detention without charge on alleged ‘terrorists’ could prevail in our democratic set-up. History teaches us that this carries the potential to become a means for oppression of others who do not present that sort of threat. Yet by classifying terrorism-related offences distinctly from ordinary crimes this is not only imminent but inevitable.

While we must ensure the impact of a dastardly terrorist act does not convolute the right of fair trial guaranteed to every accused, there are several legal measures designed to combat crimes that have not been considered to breach the ‘fair trial’ guarantee. This is because, though the right to a fair trial is considered absolute, its concomitant rights, such as the presumption of innocence and the right to remain silent may, in appropriate circumstances, be restricted provided the overall fairness of the trial remains. Thus, Indian courts as well as their counterparts in South Africa, England and Canada countenance ‘reverse-burden’ provisions in anti-drug trafficking laws which throw the burden on the accused to show that illicit drug possession was not for the purpose of drug trafficking.

In England, after the Criminal Justice and Public Order Act, 1994, was enacted, the right to remain silent in court and even at the pre-trial stage is now restricted and may entail the drawing of adverse inferences against the accused if the accused has been cautioned to that effect and the prosecution is able to show a prima facie case against the accused. As the law stands, an accused is entitled to remain silent but is cautioned that such silence may not only enable the drawing of adverse inferences against him in the courtroom if his silence could only sensibly be attributed to his having no answer but may also dislodge any subsequent alibi or defence at his trial which he could have proffered to the police upon questioning at the first instance but deliberately chose not to do so.

Interestingly, in India the right of silence is in any case restricted. An accused is statutorily obliged to assist in the criminal investigation with respect to all relevant facts which do not incriminate him. The Malimath Committee (2003) recommended that even this restricted ‘right of remain silent’ vis-a-vis ordinary crimes may warrant adverse inferences being drawn in appropriate cases against the accused just like in England. There is therefore no compelling reason to treat terrorism-related cases differently from ordinary crimes in this regard.

There are, however, certain measures which would be impermissible to adopt. Measures which would render the overall trial unfair or constitute an affront to the human dignity of the accused are but glaring paradigms. It comes at too high a price. It would be ironic if, in our alacrity to tackle terrorism, we would sanction the subversion of those liberties which provide sustenance to our democratic fabric.

The writer is a Supreme Court advocate