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TADA is dead, will Memon live?

Manisha Sethi Delhi
“TADA is dead. Long live TADA”. With these words, G.M. Banatwalla introduced a Private Members’ Bill in the 13th Lok Sabha to provide for withdrawal of all legal cases under TADA, despite the law having lapsed in May 1995.  It had been four and a half years since the Parliament refused to extend the dreaded law, but pending cases continued to be prosecuted under the draconian provisions, and new names were often added to the list of accused in many of these cases.  According to figures presented to the Rajya Sabha by the Ministry of Home Affairs, at the end of 1996, almost two thousand persons continued to be incarcerated under the TADA.
Banatwalla’s bill fell through, of course.
Originally promulgated for areas designated as ‘terrorist affected’ – essentially Punjab – TADA quickly spread out, and at the time of its expiry, enveloped 23 states and two union territories. Its appeal lay in its usefulness as a tool to quell dissent, suppress movements and torment minorities – all through a law legislated by the Parliament and sanctioned by the Supreme Court. By 1995, TADA had been in operation for over a decade. A mountain of evidence pointed to its inherent abuse and lawlessness. Its various sections enabled the police to detain suspects for long periods of time without charging them; simple suspicion became grounds for arrest, confessions before police became admissible – in contravention to the established law of evidence, which protects an accused from incriminating himself – and prosecution could produce secret witnesses against the accused. In early 1995, the incumbent Chairperson of the NHRC, Justice Ranganath Mishra, made an appeal to Parliamentarians to not renew the law, dubbing it “draconian in effect and character” and “incompatible with our cultural traditions, legal history and treaty obligations”.
There are varying estimates about the total number of people arrested under TADA but none pegs it below 65,000.  That less than 8000 were brought to trial shows how TADA was used essentially as a means of preventive detention.
Though TADA lacked the provision of review unlike its successor POTA, the Constitution Bench of the Supreme Court in the Kartar Singh case suggested the setting up of a review committee at the central level as well as administrative reviews at the state level in order to make its operation more transparent. According to data provided by the government in response to questions raised in the Parliament, close to 24000 cases were dropped during review. This, when the process of review was cursory and uneven, and often a farce.
But it was TADA’s partisanship that was its most striking feature. It was invoked against striking workers and trade unionists in Gujarat, against Dalit landless labourers and Communist activists in Bihar (but never against upper caste private militias), against Muslims accused of perpetrating bomb blasts in Mumbai (though of course not against those who killed, looted and terrorized Muslims in the ghoulish violence that preceded the blasts).
 In 1994, the National Commission for Minorities documented that 409 out of the 432 arrested under TADA in Rajasthan belonged to minority groups. In Punjab, thousands of Sikhs were rounded up, detained, incarcerated for years.
TADA had ensured its own afterlife.  Section 1(4) of the Act provided for legal proceedings once instituted under TADA to continue even after its expiry as if the Act had not expired. Banatwalla’s bill had sought to strike this section down, to ensure that those still facing investigation or prosecution would now be tried under ordinary law.
As late as 2007, Justice Markandey Katju in Baldev Mishra v State of Maharashtra, opined that the continuation of cases under the lapsed law defied common sense – for how could an act be defined as a criminal offence one day, and not the next day – but was also ultra vires of Article 14 of the Constitution, which promised equality before law.
And this is the law under which Yakub Memon will be executed. We will be sending Memon to the gallows under a law that stands discredited as a malevolent instrument of oppression, as the antithesis of our Constitutional values, a law that has proven to be naked prejudice, and which we in our collective wisdom decided to abandon because it was too terrible to endure.  We pretended that the wheels of justice were turning through the long years of the Mumbai blasts trial in the TADA court.
Why must Yakub hang? There is little evidence of his direct involvement in the blasts. The former Intelligence officer B. Raman’s article in a web portal – published posthumously – has given credence to the rumours that have circulated for years: that Yakub struck a deal with the Indian agencies for his return. Raman laments that this mitigating circumstance seems to have been hidden by the prosecution in their urge to secure death penalty. The Indian state, with all the might and force of law at its disposal, continues to insist that Memon’s life must be terminated. Someone must expiate for the loss of lives caused by the bombs in Mumbai in 1993.
“Sacrificial crisis” is how the French philosopher Rene Girard described the process through which early political systems restored social and political equilibrium. The sacrifice of a scapegoat – in absence of a judicial system – would ensure the end of a spiral of bloodshed and violence.  The Indian state seems to be afflicted with the sacrificial crisis from time to time. The impulse to sacrifice though is not simply to win the struggle against violence and eventual destruction, as Girard had envisioned it. It is also to commemorate certain kinds of collective violence as national tragedies – to the exclusion of others. Such sacrifice tells us which events of violence are worthy of redress, and which may be allowed to fall by the wayside and forgotten. It therefore also marks out of certain sections of people as scapegoats – good material really for ritual obliteration.
 Our tragedy is that this sacrificial apparatus exists not as a substitute for the judicial system but in conjunction with it.

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