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No bailouts?

The Indian Express, January 15, 2009

Editorial

Even in the best of times, law enforcement and human rights are in tension with each other. Keeping the peace means arming the enforcers, arms they might misuse. Which is why a robust civil society and dogged monitoring are always needed to keep an eye on power. These are not the best of times. Terrorism from without and Naxalism from within pose a serious challenge to the Indian state and to its capacity to ensure security to its citizens. The horror of Mumbai only highlighted the need for a tough response. The state seems to have got that message, giving law enforcers additional tools. The recently passed anti-terror laws, the National Investigation Agency and better equipment are only some of the new tools law enforcers have been given to keep the peace. But a tough Terror regime must always be seen as a work in progress, and the tension between law enforcement and civil liberties should be tracked relentlessly. Look at the extraordinary measures available to the government: 180-day detention, targeting “sympathisers”, and shifting the evidentiary burden all risk violating the rights of detainees. These troubled times call for a tough law enforcement regime, but such tough laws also call for closer monitoring and stricter supervision to prevent misuse.

That possibility of misuse has come real in the case of Binayak Sen. And his case raises questions that must not be silenced. Arrested for supporting Naxalites on evidence that is fast unravelling, Binayak Sen has been in jail for 19 months without bail. Even indisputable criminals arrested on harder evidence get bail more quickly. The law that Sen has been arrested under significantly expands the definition of a “sympathiser”, casting a net wide enough to ensnare even traders who unwittingly sold cloth to Naxalites. Police officials say such a law is necessary, given that Naxalites hide under forest cover, and require supporters in urban areas to provide them with food, medical and legal aid.

Though still sub judice, the many troubling aspects of the case indicate the possibility of miscarriage of justice on a colossal scale. Given the enormity of the Naxal threat, it is inevitable — perhaps necessary — that the state responds in earnest. But the travails of Binayak Sen carry a message: when the the law is made tighter, there must be attendant thought to the possibility of misuse. Tough times need, not just tough responses, but tough monitoring as well.