America's War Terrorism and Constitution.

                            America’s War on Terrorism and Constitution.ß      

The end of the twentieth century has been called the era of terrorism. Terrorism is not a recent phenomenon. It has existed in all the ages. Terrorism has spread its tentacles everywhere in every sector of the society. Terrorism has taken the shape of such menace which threatening the very existence of a civilized society. Terrorism is essentially a faceless and a bodiless phenomenon. The rule of law is predictable but rule of terror is unpredictable.[1] Terrorism poses a challenge not only to the state power but also to the national security. Terrorism is one of the serious problems faced by the world today and holds the democratic institutions at ransom. The attack on 11 September 2001 on the World Trade Center in New York City, attack on tourist facilities on Bali in 2002, on commuter trains in Madrid in 2004, suicide bombings in London in 2005 and attack on the Taj hotel in Mumbai on 26 November 2008 all demonstrate the continuing threat that terrorism can pose. The perpetrators have come from all walks of life and have used a variety of deadly and diabolic weapons to carry out their plans. Whatever their origins and their methods, however, the outcomes are the same: the injury and death of innocent people.

The American “War on Terrorism” has many successful stories. The then American President George Bush from zero ground of World Trade Center of New York on September 14 2001 after terrorist attack, He said to terrorist “I can hear you; the rest of the world hears you. And the people who knocked these buildings down will hear all of us soon.”[2] Further his request of cooperation from other nations was in the tune of imperialism “Either you are with us or with them.”[3]The Bush government’s policies of Self-defense on terrorist led to fall of Taliban regime in Afghanistan.[4] Expansion of his doctrine of self-defense to preemptive self-defense led defeat of Saddam Hussein’s regime in Iraq.[5] On 14 December 2003, Saddam was captured in operation “Red Dawn” and spokesperson of USA announced, “We got him.”[6] The biggest man haunt ever known in the history of humankind in terms of economic, time, use of intelligence and equipment's and networks, and use of police or military personal which started in the year 2001 came to an end, when the seal command of USA military gunned down the notorious and hardcore terrorist Bin Laden in his house in Abbott-bad of Pakistan in the early hours of May 2, 2011, in operation of “Neptune Spear” thereafter President Barrack Obama addressed the USA and announced, “We killed him”.[7] Overwhelming happy American people felt at last ‘Justice’ is done to those 3000 people who were killed in the horrible attacks of terrorist on various parts of US on September 9, 2001. US is successful even in toppling the Col Muammar Qaddafi government in Libya who was supporting the terrorists to attack America, with NATO forces, encasing on uprising of democracy movements in Arab World and Qaddafi was executed in cold blooded.[8]

On the other hand, the darker side of the American war on terror has been not properly communicated around the world. The liberty statue in the heart of New York City, which is symbol of American’s commitment to values of civil and political rights, is undermined by the means adopted in the war on the terror by the Bush regime, particularly in the light of Guantanamo Bay detention camp in Cuba. Norms applied to the Guantanamo Bay detention camp grossly and blatantly defied the American Constitution, which is known for its Rule of law and Bill of Rights. Guantanamo is an insult to human civilization and American values, but it is survived as prison for nearly a decade largely because successive US administrations have peddled the myth that its cell blocks are vital front line in the global war against terror.[9] This Myth has been now exploded by the release and publication of more than 700 official Pentagon documents by the Wilileaks.[10] Therefore, it is difficult to distinguish between the terrorist and Bush regime because both believed ends justify the means. Detainees of Guantanamo Bay have fought long drawn legal battle from 2001 to 2008 to acknowledge their human rights by American government through lower court to higher court of USA legal system. Finally the Supreme Court of USA in Lakhadae Boumediene  v. Geroge Bush President of the United States by 5-4 majority held that the prisoner of  Bay camp are having right  to  habeas corpus under the United States Constitution and that the Military Commission Act of 2006 (MCA) was unconstitutional  which has suspended the right of habeas corpus.[11]   

            American Constitution is the second oldest and shortest in the universe.[12] American Constitution is highly influenced by the Locke’s philosophy of Natural Rights.[13]Therefore, USA Congress incorporated the Human Rights in the Constitution by first ten amendments that are known as Bill of Rights.[14]The Fifth Amendment is most important because it says person’s life, liberty or property would not be deprived without due process of law. The history of the Bill of Rights clearly showed that the authors of the amendments intended to apply only to federal laws but not to state laws.[15] In Barron v. Mayor and City Council of Baltimore, USA Supreme Court held that none of the first ten amendments could apply to the state governments because the history of the Bill of Rights supported their application only to the activities of the newly formed central governments.[16] The Supreme Court’s interpretation in Dred Scot v. Stand Ford,[17]  that the Black Slaves were not citizen of USA and they were properties of their master led to the civil war in America. The end of civil war promoted the House of Congress to apply “due process clause” to state laws also. Therefore, 14^th amendment was done to the USA Constitution of which section one says “… nor shall any State deprive any person of life, liberty, or property, without due process of law….” Since 1934 there has been a steady process of judicial inclusion of provisions of the Bill of Rights into the fourteenth amendment. Finally, Incorporation of all Bills Of Rights into 14^th Amendment was completed in the year 1968.[18]Due Process of Law is concept of Common Law, which became explicit statutory concept in USA’s Constitution.[19]

            Due process is the principle that the government must respect all of the legal right that is owed to a person according to the law. Due process holds the government is subservient to the law of the land and protects individuals from the state. Due process is either procedural or substantive. Procedural due process determines whether government entity has taken an individual’s life, and liberty without the fair procedure required by the statute.[20] It may involve the review of the general fairness of a procedure authorized by legislation. When a government harms a person without following the exact course of the law it constitutes a due process violation that offends against the rule of law. Substantive due process means that the judicial determination of the compatibility of the substances of a law with the Constitution. The Court is concerned with constitutionality of the underlying rule rather than the fairness of the process of the law.[21]Therefore, every form of review other than that involving procedural due process is a form a substantive review. Due process in this sense judges instead of legislator may define and guarantee fundamental fairness, justice, and liberty. This interpretation has been proven controversial, and is analogous to the concepts of natural justice. This interpretation of due process is some times expressed as a command that the government shall not be unfair to the people. Various countries recognize some form of due process under their legal system but specifics are often unclear. The process of government, which deprives a person’s life and liberty, must comply with the due process clause. However, the “Due Process” is not term with a clear definition and the nature of the procedure clause depends on many factors.  

Largely the following ingredients are considered as part of due process of substantive and procedural in respect of criminal justice system.

1. Adversary process is best method to safeguard the interest of accused.[22]
2. Adequate notice of charges to the accused.[23]
3. Neutral or impartial Judges of Court or Tribunal.[24]
4. Accused is presumed to be innocent until the prosecution proves his guilt beyond reasonable doubt.[25]
5. Trial Right to Jury.[26]
6. Right to speedy and public trial.[27]
7. An opportunity to make oral representation before the Judges or Jury.
8. An opportunity to present evidence or witness.
9. Right to confront and cross-examine the witness.[28]
10. Right to compulsory process of witnesses.[29]
11. Right to pre-trial discovery of evidence.[30]
12. Right to transcript of the proceedings in the language of accused.
13. Right to be represented by an Attorney of accused choice.[31]
14. Right not to deny the excessive bail and punishment shall not be cruel.[32]
15. No accused shall be witness against himself.[33]
16. Right not to be punished twice for the same offence.[34]
17. Ex post facto law. No retrospective effect of criminal law.[35]
18. Decision of Court must be supported by the reasons, i.e. speaking order.
19. Right to appeal against the error of judgment.

Whenever the USA government violates the above rights of accused, the accused is at liberty to seek the justice form the court. Further, section 9 of Article 1 of USA Constitution says that writ of Habeas Corpus shall not be suspended except in cases of rebellion or invasion of the public safety.

America’s war on the terror began after the horrifying incidence of 9/11 attack on various parts of USA by Bin Ladden’s Al Queda terrorist organization. The Security Council (SC) took swift and unprecedented action in the wake of the events of September 11 2001. The SC felt that it was necessary to offer the United States a stronger form of support than sympathy. Accordingly, it recognized in its 1368 resolution the inherent of individual state or collective self-defense in accordance with the Charter.[36]The SC regarded the attacks of September 11 as threats to international peace and security, but it did not call for collective action. By invoking a state’s right to self-defense, it handed over this responsibility to individual states because United Nation (UN) was aware of its limitations. The US and UK gave notification to SC of action of self-defense against the Taliban régime of Afghanistan and war in Afghanistan began on 7^th October 2011. Armed forces of US, UK and the Afghan United Front (Northern Alliance) launched “Operation Enduring Freedom.” [37]

Guantanamo Bay Camp.

           

            The Guantanamo Bay is part of Cuba but the United State assumed territorial control over the Southern portion of Guantanamo Bay under 1903 Cuban-America treaty which granted perpetual lease of the area.[38] The US by virtue of its complete control maintenance ‘de-facto’ sovereignty over the territory and Cuba retains the de-jure sovereignty. The Guantanamo Bay detention camp is detainment and interrogation facility for the danger terrorist captured in Afghanistan and Iraq by the US which is established in 2002 by the Bush Administration.[39] The facility is often referred as Guantanamo, G-Bay or Gitmo. The justice department has deliberately advised the Bush Administration to establish detention camp at G-Bay because it could be considered as outside the USA’s court legal jurisdiction. The Bush Administration asserted that detainees were not entitled to any of the protections of the Geneva Conventions. The first 20-captured terrorist arrived at Guantanamo on January 11 2002. Since October 7, 2001, when the war in Afghanistan has begun nearly 775, detainees have been bought to the G-Bay camp, which were described as the “worst of the worst terrorist”. Of these most have been released without charge or transferred in their countries. As on 30 April 2013, nearly 100 prisoners are still languishing in Guantanamo Camp.[40]

Military Tribunals or Commissions in USA.

           

            Courts martial generally has the jurisdictions over the members of their own military and some times, civilians present with them. Court martial by and large comply the essential feature of judicial proceedings. A military tribunal is a kind of military court to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. Military tribunal or commission is distinct from court martial. A military tribunal or commission is an inquisitorial system based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, and sentenced by military officers’ against a member of  alien force.[41]The USA has history of custom to prefer the military commission than court martial to try the enemies during the times of declared war or rebellion. General George Washington used military commission during the American Revolution. President Franklin D Roosevelt ordered military commission for eight German prisoner accused of planning sabotage in the USA as part of Operation Pasrotuis, which was upheld by the US Supreme Court in Ex prate Quirin.[42] George Bush passed the executive order to establish the military commissions to try the terrorist who are non-citizen of USA captured in the Afghanistan and Iraq on 13 November 2011.[43]No doubts the military commission provides speedy justice but not free form blames. Proceedings of military commission do not satisfy the protections guaranteed under the Bill of Rights of USA Constitutions. Accused are held in detention for indefinite period without trials. Trials are held in secrecy. Judges, prosecutors and witness are from military authority. Not all evidence would be revealed to accused and heresy evidence is admitted. Accused would not be given meaningful right to defend, accused is presumed to be guilty than innocent and standard of proof of the guilt is always below par. Decision of military commissions is never in the form of speaking order. In spite of these serious flaws, American Presidents have not stopped using the military commissions and USA Congress has also supported the Presidents by enacting Military Commission Act of 2006 and 2009, which authorizes him to establish military commissions.

Legal challenges to Guantanamo Bay detention camp.    

   

                        The detainees had to knock the doors of the U.S courts several times to challenge the strategy adopted by the Bush administration in combating the terrorism. The detainees have fought hard legal battle nearly about 8 years to force the US administration to acknowledge their human rights and justice. There are nearly four historical cases on these matters. The Bush administration had made up mind that the detainees of non-citizen of USA at Bay Camp are “Enemy combatant” or “Unlawful Combatant” and they do not deserve the protection of Vienna Convention of War. Military Commission adopted the arbitrary procedure, which has blatantly defied the all norms of due process clause. In Rasul v. Bush,[44] voluntary organization filled two Habeas Corpus petitions challenged the indefinite detention of detainee, not conducting the trial, not informing the charges to detainees and not providing access to their counsel. The major issue before the Supreme Court of US, whether U.S courts could exercise the jurisdiction over the Guantanamo Bay detainee camp. On 28^th June 2004, the US Supreme Court by 6-3 majority answered affirmatively. Justice Johan Paul Stevens who wrote majority judgment held that detainee at Bay Camp are entitled to seek the assistance of US courts to issue writs to get justice. Terrorist Rasul was British citizen challenged his detention before the Washington, D.C., District Court, and court dismissed petition on the ground that the US courts do not have jurisdiction over the Guantanamo Bay Camp because it is not the Sovereign territory of USA. District Court relied on the judgment of Johnson v. Eisentrager, in which the Supreme Court has ruled that U.S Courts had no jurisdiction over the Germans war criminals held in a U.S. administered German prison. An appeal was filled in the Court of Appeals for the District of Columbia Circuit of United States and court affirmed the decision of lower court.[45] The case came before the Supreme Court by way of appeal. Government argued that according to treaty, U.S has “complete jurisdiction” but Cuba has “ultimate jurisdiction” of dejure. Hence, the courts have no jurisdiction. On the other hand, detainee argued that whatever treaty might say the fact that U.S has full legal control over the camp and hence courts should have jurisdiction. Justice Stevens distinguished the present case from the Eisentrager, held that U.S for all practical purpose has complete jurisdiction and Cuba’s mere technical sovereignty jurisdiction does not disqualify the U.S courts from exercising the jurisdiction.

            Yaser Hamdi captured in Afghanistan and detained in Bay camp without trial for indefinite period who was later found to be citizen of USA. His father-filled petition of habeas corpus before the court of Eastern District of Virginia, which held that Hamid detention was inadequate because it was based on hearsay. The court ordered production of secret numerous documents for camera review. The government appealed to Fourth circuit court of appeal, which reversed the lower court order and held that it is not proper for any court to hear a challenge of enemy combatant status of detainee. An appeal was made before the Supreme Court. U.S. Supreme Court consisting of 9 judges’ bench in Yaser Esam Hamdi v. Donald Rumsfeld, recognized the power of the government to detain enemy combatant but ruled that detainee who are the citizens of USA must have the ability to challenge their enemy combatant status before an impartial tribunal.[46] Justice O Connors who wrote majority judgment said due process requires that Hamdi must have meaningful opportunity to challenge his enemy combatant status before the impartial military tribunal and Hamdi undoubtedly has the right to legal counsel in such proceedings. The courts need not interfere with such findings of military tribunals. The issue and judgment was related to the detainee of USA citizen. Nevertheless, the government conceded that these privileges would be extended to all detainees. The Department of Defense of USA established the “Combatant Status Review Tribunal” (CSRT) to determine the status enemy combatant of each detainee and allowed the right to legal counsel from the advocate panel prepared by government based on Supreme Court guidelines.

Detainee Treatment Act of 2005.

            Not a single terrorist was convicted by the military commission even by the end of 2005 which has commenced in the November 2001. In April 2004, picture of abuse of Iraqi prisoner by U.S troops in Abu Gharib prison surfaced.[47]Moreover, the credible evidences are emerging from different sources in the newspapers about the gross human rights violation and torture in Bay Camp.[48] The Abu Gharib and Bay detainee camp scandal intensified public outcry and criticize the tactics and legal justification used by Bush in executing the war on terrorism Further, Supreme Court has empathetically asserted that US courts have jurisdiction over the Bay Camp and even it is leaning towards interference in the proceedings of military commission to protect the detainees. Bush’s war on terror is almost converted into legal war between human right organizations on behalf of detainees and government. USA Congress wanted to control the damage by prohibiting the unethical means of interrogation of terrorist to boost its nation image of pro-civil rights. On the other hand, Bush wanted to restrict the interference of US courts in the matters of military commission proceedings in the terrorist trials. The US Congress passed the Detainee Treatment Act of 2005, which was signed by the Bush on December 30 2005. The Act has established improved standard for detainee’s treatment and interrogation techniques and it prohibited the use of cruel, inhuman and degrading (CID treatment) tortures.[49] Critic of this Act is that it explicitly restricted the jurisdiction of US courts to entertain the writ petition of Habeas Corpus by the detainees. The Act has authorized only the U.S Courts of Appeals for District of Columbia Circuit to hear the appeals for detainee to review the final decision of CSRT and final decision of Military Commissions.[50]The jurisdiction of U.S Supreme Court is excluded in the matters CSRT and Military Commissions findings.

            Salim Ahmed Hamdan a citizen of Yemen and bodyguard of Bin Laden was first person to be tried before the military commission established by the Bush regime.  Hamdan filed writ petition of Habeas Corpus before the District Court of Columbia on the ground that establishment of military commission is unconstitutional, violation of Geneva Convention of War and the United States Uniform Code of Military Justice. The Geneva Convention of War gives protection of certain rights to the soldier captured in the war and US Uniform Code of Military Justice prescribed minimum procedure, which has to be followed by the military tribunals. Judge James Robertson of District Court of Columbia ruled in favour of Hamdan by holding establishment of military commission was not proper. On appeal by the government, Appellate Court of District Columbia upheld the legality of military commission on the following grounds,

1. Military Commissions are legitimate forms to try enemy combatants because Congress has approved them.
2. The Geneva Convention is a treaty between nations and it does not confer individual rights.
3. Under the terms of the Geneva Convention, Al Qaeda and its members are not covered.

            Hamdan filed appeal to the Supreme Court. In Salim Ahmed Hamdan v. Donald Rumsfeld, U.S. Supreme Court on June 29, 2006 by 5-3 majority held that establishment of military commission without authorization by the Congress legislation is ultra virus.[51] The military commission constituted on the executive order and did not comply with the US’s Uniform Code of Military Justice and Geneva Convention of War. Justice Johan Paul Stevens wrote majority judgment and dismissed the government plea that jurisdiction of SC is debarred because of Section 1005 of Detainee Treatment Act of 2005. Court asserted that it is duty of Supreme Court to enforce the Constitutional rights of human being so its jurisdiction cannot be excluded but it did not say any thing about the constitutional validity of that section. Court opined that President’s executive power to establish military commissions must be in accordance with “Laws of War” otherwise those tribunals must be created by the authorizations of the Congress legislation. In this case, the military commissions did not comply with the norms of US’s Uniform Code of Military Justice (UCMJ) and Geneva Convention of War. Article 36(b) of Uniform Code of Military Justice requires that proceedings before court-martials and military commissions must be uniform as far as possible. The court observed that military commission must observe minimum protection given under Article 3 of the Geneva Convention. The Bush regime’s military commissions violated both these conditions. Therefore, their establishment merely on the executive order is unconstitutional.   

            The US Congress decided that Bush’s war on terror should not be letdown. Therefore, Congress with majority in senate by 65 to 34 and in House by 250 to 170 passed the Military Commissions Act of 2006, which was signed by the President Bush on October 17, 2006.[52] The Act authorized the President to establish the military commissions to try alien unlawful enemy combatant engaged in hostilities against the United States.[53] The Act provided some protections to terrorist in the proceedings before the military commissions but provisions related to speedy trial, protection against self-incrimination, and protection of pre-trial investigation of Uniform Code of Military Justice explicitly not made applicable to military commissions.[54]                                       The norms of UCMJ in Toto were not incorporated in the Military Commission Act. Further, it explicitly stated that, No-alien unlawful enemy combatant who is subject to trial by military commission would get the protection of the Geneva Convention of War.[55] MCA being retrospective effect has jurisdiction to try the offences committed by enemy unlawful combatant before, on, or after September 11, 2011.[56]This gives wide discretionary power to military commissions to try any terrorist committed offences at any time. The misery and nightmare of US citizen terrorist ended because it is applicable to only non-citizen of USA. Most controversial aspect of the MCA is it revokes the U.S. Courts Jurisdictions to hear Habeas Corpus petitions by all alien in U.S Custody as enemy combatant which reads as,

No Courts, justice or judge shall have jurisdiction to hear or consider an application for a writ of Habeas Corpus filed by or on behalf of an alien detained by the United States who has been determined by the United   States to have been properly detained as an enemy combatant or is awaiting such determination.[57]

Whatever the inroads made by the U.S Supreme Court in protecting the right of terrorist is undone by the MCA of 2006. Now the U.S. Congress is also standing behind Bush as rock and overwhelming Bush commented that

Today, the Senate sent a strong signal to the terrorist that we will continue using every element of national power to pursue our enemies and to prevent attacks on America. The Military Commissions Act of 2006 will allow the continuation of a Central Intelligence Agency (CIA) program that has been one of America’s most potent tools in fighting the “War on Terror”.[58]

            The war of legal battle between terrorist and U.S Administration did not seem to end soon because of the intervention of MCA. Naturally, Lakhdar Boumediene, detainee of Bay camp, who is citizen of Bosnia and Herzegovina, filed writ petition before the U.S Supreme Court challenging the constitutional validity of MCA. On June 12, 2008, the U.S Supreme Court in Boumediene v. Bush, held that section 7 of MCA of 2006 is unconstitutional.[59] Justice Kennedy delivered majority judgment by 5-4 asserted that United States by virtue of its complete jurisdiction and control, maintains “de facto” sovereignty over the Guantanamo Bay Camp therefore the aliens detained as enemy combatant on that territory are entitled to the writ of habeas corpus protected in Article 1, Section 9 of the US Constitution. Court opined that only Rebellion or Invasion of Public Safety could suspend the writ of Habeas Corpus, which is not in this case. The court declared that except section 7 remaining sections of MCA is constitutional.

            By this time, most of the detainees were realized and as on may 2011, only 171 detainees are in Bay camp[60]and intensity of Bay Camp has boiled down.  President Barrack Obama during his Presidential election said Guantanamo Camp is sad chapter in American history.[61]On 22 January 2009, White House spokesperson announced that detention facility would be shut down within year. Congress of USA enacted the Military Commission Act of 2009 on October 28 2009 and replacing MCA of 2006, which made reformations and provided more protections to the detainee in the proceedings of the military commissions. Congress strongly opposed closure of camp and pressurized the President Obama to sign Defense authorization Bill on Jan 7 2011, which prevented the transfer of detainee to mainland or other foreign countries, and thus it effectively stopped the closure of detention facility. President Obama even after his second term election as President could not succeed in closing down the Guantanamo Camp. Still around 100 detainees are languishing in the camp even after lapse of 12 years since their arrest without trial.

Conclusions.

The fight against terrorism cannot be used an excuse for slackening efforts to put an end to conflicts and defeat poverty and disease. Nor can it be an excuse for undermining the bases of the rule of law—good governance, respect for human rights and fundamental freedoms. The long-term war on terrorism requires us to fight on all these fronts. Indeed the best defense against these despicable acts is the establishments of a global society based on common values of solidarity, social justice and respect for human rights.                                                                                                                       

                                                               -----Kofi A. Annan, October 2001.[62]

The International community outraged and stunned when the credible evidence of transgression of human rights in Bay Camp by the authority started surfacing. On July 2 2008 the International Herald Tribune revealed that U.S. military authority has used the Chinese Communist torture technique which used by Chinese in Korean War to obtain the coercive confessions. Military authorities have abused the religion of the detainees by disrespecting the Qur’an, tearing the Quar’an, writing and commenting on Qur’an in front of the detainees.[63] Guantanamo officials have reported 41 unsuccessful suicide attempts by 25 detainees since the U.S. began taking prisoners to the base in January 2002.[64] On June 10 2006 Pentagon authority announced that three detainee were committed suicide.[65]Amnesty International organization alleged that attempt to suicide by detainee are the result of years of arbitrary and indefinite detention.[66] Forced feeding accusations by hunger-striking detainees’ began in the fall of attempt to suicide. Detainee said large tubes were forcibly inserted in their noses and stomachs, with guards using the same tubes from one patient to another.[67] Human Right Watch in its paper presentation before 59^th session of UN’s Commission on Human Rights described that the detainee originally held in open-air facilities with chain link wall until moved to newly constructed facility, their they spend twenty four hours in small single prison cells, except for two fifteen minute periods of solitary confinement including interrogation session.[68] As early as January 2002, reports about the situation of detainees held at Guantanamo drew the attention of the standing Special Reporters of the UN Commission on Human Rights to report regularly on torture. When credible reports and evidence generated about pathetic conditions of detainees of Gauantanamo Bay the General Assembly went on record “deploring the occurrence of violations of human rights and fundamental freedoms in the context of the fight against terrorism.”[69]                                             

           

            The UN Commission of Human rights issued a sharply critical report in early 2006 that stated, “The continuing detention of all persons held at Guantanamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR”. Called on Washington to “either expeditiously bring all Guantanamo Bay detainees to trial, in compliance with articles 9, paragraph 3, and 14 of ICCPR, or release them without further delay”, and insisted on prompt closure of the facility.[70] United Nation “seemed more worried about counter terrorism measures than about terrorism itself” was the early reaction of USA to the UN’s attempt to highlight the pathetic situation of detainees in Gauantanamo Bay.[71]What guiding rules or principles should constitutional democracies follow in their efforts to combat terrorist violence? Walter Schwimmer then the Secretary General of the Council of Europe said Terrorism must be defeated with the utmost vigour. However, not any cost, certainly not at the cost of the fundamental values we have learned to cherish in tragic times and have placed at the very centre of our collective functioning.[72] Society is willing to defend itself efficiently but not any cost. History taught lesson to us that if community allow excessive state violence, arbitrariness, contempt of law, discrimination,  community not only risk shaking the pillars of the democratic societies that painstakingly emerged from the World War II and from the end of communalism, community also risk feeding terrorism or increasing the understanding and support for terrorism.[73] 

           

            Draconian type of anti-terrorist laws leads for State terrorism that would ensures the victory for terrorist. Terrorist theoretically see it as major aim to force government to pass the increasingly server laws. This victory will be enhanced if the legislation is operated in such way as to alienate that part of the community, which the terrorists claim to represent. If that happens, they will not only be likely to gain increased support from the within community, they will be assisted to project themselves as its legitimate protectors.[74]The need to respect human rights is in no circumstances an obstacle to the efficient fight against terrorism. On this subject, the General Assembly has passed number of resolutions at appropriate time providing and reminding the legal framework of human rights while combating terrorism by state. General Assembly resolutions under the title of “Measure to Prevent the International Terrorism” had requested the States to observe the human rights other wise its gross abuse would provide fertile ground for breeding the terrorism.[75]General Assembly cautioned the enthusiastic States at regular time that in the process of combating terrorism they must not overstep their authority by remanding their obligation to respect the international standard of human rights under the resolutions titled as” Measures to eliminate international terrorism”.[76]

            General Assembly adopted another series of resolutions for the protection of human rights under the headings of “Protection of human rights and fundamental freedoms while countering terrorism”.[77] Unique feature of these resolutions that certain human rights are recognized as non-derogable under any circumstances in accordance with the article 4(2) of the International Covenant on Civil and Political Rights.[78]Terrorist violate human rights, including the right to life. Suspected terrorist often claim respect for their human rights-some of the very same rights they have violated themselves in their acts. This raises the question whether terrorist too should be allowed to enjoy rights. The answer is ‘yes’. People accused of terrorist acts have human rights. That is exactly difference between a situation of the Rule of Law and situation where law is arbitrary.[79] Do they have the same rights as victims? Again, the answer is “yes”, although this might go against our own feelings of justice.[80]

           

            State can derogate from certain human rights during an emergency. Nevertheless such extraordinary measures should be limited in scope and time. Steam and broad repressive measures alienate large sectors of society from the government and tend to produce new recruits for terrorist organizations.[81]Terrorists know very well that overreaction by government to their provocative attacks can play into their hands.-though at times, overreaction has also led to the elimination of terrorist organization. In the words of the Secretary-General

“While the international community must be resolute in countering terrorism, it must be scrupulous in the ways in which this effort is perused. The fight against terrorism should not lead to the adoption of measures that are incompatible with human rights standards. Such developments would hand a victory to those who so blatantly disregards human rights in their use of terror. Greater respect for human rights, accomplished by democracy and social justice, will in the long terms prove effective measures against terror. The design and enforcement of means to fight terrorism should therefore be carried out in strict adherence with international human right obligations”. ,[82]

United Nations organs have reaffirmed repeatedly that terrorist acts are unjustifiable under any circumstances, wherever and by whomever committed. Nevertheless, the major standard-setting achievements of the UN in the field of human rights and numerous pronouncements of its organs teach that human right violations are also unjustifiable under any circumstances, wherever and by whomsoever committed.

        

        

---

ß S.G.Goudappanavar, LL.M. Associate Professor, gouri1000@gmail.com S.C.Nandimath Law College, Bagalkot, Karnataka.

[1] Justice Eswara Prasad, “Forfeiture of property-Terrorism and other crimes” journal 2005 Cr L J P.70.

[2] www.en.wikiquote.org/wiki/Gerpge_w_Bush. Accessed on 15 October 2011.

[3] President Bush address to joint Session of Congress and American People  on Septmber 11, Availble online at http:// www.whitehouse.gov/news/realse/2001/09/200010921-8. Accessed on October 2011.

[4] Security Council Resloution 1368 of September 2001, Article 51 of Charter of United Nation.

[5] The National Security Strategy of the United Nations of America document issued by White House on, 17 September 2002.

[6] www.en.wilipedia.org/wiki/Saddam_Hussein. Accessed on 15 October 2011.

[7] www.whitehose.gov/blog/2011/05/02/osmon-bin-laden-dead. Accessed on 15 October 2011.

[8] “The Killing of Qadhafi”, Editorial, The Hindu, Hubli  (Ed.), 22 October 2011.p.12.

[9] “America’s shameful secret Wiki leaked”, Editorial, The Hindu, Hubli, (Ed.), April 28 2011.p.10.

[10] Ibid.

[11] 553 U.S. 723 [2008].

[12] Draft of American Constitution was finalized on 17^th September 1787 and nine states ratification is required to commence the Constitution operation. By July 26 1788 eleven states were ratified the Constitution and Constitution was made functional on 13^th September 1788. Originally USA Constitution contained only seven Articles but now it contained 33 Articles, it means 26 Articles are added by way of Amendments. The last 26^th Amendment to the Constitution was done in the year 1971.

[13] Great political philosopher Locke who propagated the idea that person’s “Property Rights” were inalienable and cannot be deprived by the government without the consent of the person. The property rights are the gift of nature, therefore government should make effort to promote property rights rather than its restriction and destruction. The concept of “Property Right” includes life, liberty and property. See, Edgar Bodenheimer, ,Jurisprudence, (Delhi: Universal Law Publishing Co.Pvt.Ltd, 2001) .p.50

[14]The first ten amendments came into effect on 3November1791.However only first eights Amendments talked about the protection of human rights.

[15]Johan Nowak, Constitutional law, (St Paul Minnesota:St paual Minn, west publishing Co, 1978),p.387.

[16] 32 U.S. (7 Pet.) 243 [1833].

[17] 60 U.S. (19 How.) 393([1857).

[18] Duncan v. Louisiana, 391 U.S.145 (1968).

[19]The word “Due Process” in the V and XIV amendment of USA is traced form section 39^th of Magna Carta, which was personal treaty between king Johan and the enraged upper class created in 1215. “Due” means, “what is just and proper”.  Section 39^th says, “No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and by the law of the land.”[19] In 1225, Henry III altered that section and became final form of Magna Cart. The official phase of “Due process of Law” was probably first time used in 1354, see, Mott, Due Process of Law, (New York: Da Copa Press.1973).p.3.

[20] Johan E Nowak, op. cit., p.381.

[21]. Ibid.

[22] Ibid.

[23] VI amendment of USA Constitution.

[24] Ibid.

[25] Mullaney v. Wilbur, 421 U.S. 684 (1975).

[26] V amendment of USA Constitution. Duncan v. Louisiana, 391 U.S. 145(1968).

[27] See, VI amendment of USA Constitution. Klopfer v. North Carolina, 386 U.S. 213 (1967).

[28] See, VI amendment of USA Constitution. Pointer v. Texas 380 U.S. 400 (1965).

[29] See, VI amendment of USA Constitution. Washington v. Texas, 388 U.S. 14 (1967).

[30] Jencks v. United States, 353 U.S. 657 (1957).

[31] See, VI amendment of USA Constitution. Powell v. Alabama, 287 U.S. 45 (1932).

[32] See. VIII amendment of USA Constitution.

[33]See, V amendment of USA Constitution. Malloy v. Hogan, 378 U.S. 1 (1964). Miranda v. Arizona, 384 U.S. 694 [1966].

[34] See, V Amendment of USA Constitution. Benton v. Maryland, 395 U.S. 784 (1969).

[35]See, Section 9 and 10 of Article 1 of USA Constitution.  Lindsey v. Washington, 301 U.S. 397 (1937).

[36] SC/RES/1368 of 12 September 2001.

[37] www.en.wilipedia.org/wiki/war/_in_Afghanistan_[2001-present]. Accessed on 31 October 2011.

[38] www.en.wikepedia.org/wile/Guantanama_Bay. Accessed on 25 October 2011.

[39] www.en.wikipedia.org./wiki/Gauntanamo_Bay_detention_camp. Accessed on 25 October 2011.

[40]CNN News on 30 April 2013, BBC News on 30 April 2013, Al Jazeera English  News on 30 April 2013.

[41]www.en.wikipedia.org/wiki/militry_tribunal_in_the-unitedstates//jursduction.Accessed,on25 October 2011.

[42]www.en.wikipedia.org/wiki/militry_tribunal_in_the-unitedstates//jursduction.Accessed on 25 October 2011.

[43]“Military Order-Detention, Treatment and Trial of Certain Non-Citizens in the War against Terrorism.” Executive order dated November 13, 2011, 66 Fed, Reg, 57833.

[44] 542 U.S. 466 (2004).

[45] Al Odha v. United States, App. D.C. 189 (2003).

[46] 542 U.S. 507 [2004].

[47]CBS broke the story on April 28 2004 on its show 60 minutes II. Court martial in Iraq, CBS television broadcast on April 28 2004.

[48]Initially the detainees were held in captive in open prison facing the mercury and laying on the naked surface of the ground, their legs and hands were chained for all the twenty-four hours, even it was not taken off during their meals, they were beaten, assaulted, battered, tortured for getting information, when detainees were on hunger strike to protest for their treatment, they were forcibly fed liquid food by tube which was causing considerable pain to detainees., detainees were not allowed to  write or receive letter or interact or meet with their relatives. See, “Amnesty international Guantanamo Bay Scandal”, http//www.amensty.org/pages/guantanamobay-index-eng. Accessed on Jan 22 2006.

[49] Section 1002 and 1003 of Detainee Treatment Act of 2005.

[50] Section 1005 of Detainee Treatment Act of 2005.

[51] 548 U.S. 557 (2006).

[52] www.en.wikipedia.org/wiki/Militray_Commission_Act_of_2006. Accessed on 5 November 2011.

[53] Section 948b of Military Commissions Act of 2006.

[54] Section of 810, 831, and 832 of Uniform Code of Military Justice under chapter 47 read with    948b of Military Commissions Act of 2006.

[55] Section 948c of Military Commissions Act of 2006

[56] Section 948d of Military Commissions Act of 2006

[57] Section 7 of the MCA of 2006.

[58] www.en.wikipedia.org/wiki/Militray_Commission_Act_of_2006. Accessed on 5 November 2011.

[59] 553 U.S. 723 (2008).

[60] Sky News on 19 may 2011.

[61] Brude Mary, “Obama:Gitmo likely won’t close down in first 100 days”, ABC News on Jan 11 2011.

[62] UN Press Release, SG/SM/7999 AFR/344, October 22 2001.

[63] “Religious abuse at Guantanamo” BBC on 16 April 2007.

[64] www.en.wikipedia.org./wiki/Gauntanamo_Bay_detention_camp. Accessed on 25 October 2011.

[65] “Triple suicide at Guantanamo Camp” BBC on June 11 2006.

[66] www.amnesty.org. Accessed on 7 November 2011.

[67] “Guantanamo detainee pleads to die”, Aljazeera,net on 18 March 2006.

[68] http//www.hrw.org Accessed on 7 November 2011.

[69] GA/RES/ 60/158 of 16 Dec 2005.

[70]Situation of Detainees at Guantanamo Bay, Commission on Human Rights, E/CN.4/2006/120, 27 Feb 2006.

[71]Jeffery Laurenti,, “The United Nations and Terrorism”, in Democratic Response to Terrorism, Leonard Weinberg, [Ed.], (New York: Routledge,2008 ) .p.78.

[72]Wolfgang Benedek, Anti-Terrorist Measures and Human Rights, (Boston:Martinus Nijhoff Publishers,2004 ) .p.v.

[73] Ibid. at, p.vi.

[74]Krishna Mathur, Police, Law and Internal Security, (New Delhi: Gyan publishing house 1994), pp.111-112.

[75]General Assembly Resloution No/44/29 of 7 Dec 1987, GA/RES/42/159/ of Dec 1987, GA/RES/46/51 of Dec 1989, GA/RES/40/61 of Dec 1989.

[76] General Assembly Resloution No/49/60 of 17 Feb of 1995,GA/RES/50/53 of 11 Dec 1995, GA/RES 51/210 of 17 Dec 1996, GA/RES/52/165 of 15 Dec 1997, GA/RES/ 53/108 of 8 Dec 1998,  GA/RES/54/110 of 2 Feb 2000, GA/RES/ 59/ 46 of 16 Dec 2004, GA/RES/ 60/ 43 of 6 Jan 2006

[77] GA/RES/57/219 of 27 Feb 2003, GA/RES/58/187 of 22 March 2004, GA/RES/59/191 of 10 March 2005, GA/RES/60/158 of 28 February 2006.

[78]See, 2^nd Paragraph of GA/RES/59/191 of 10 March 2005.

[79]Alex Schimid, “United Nations Measures against Terrorism and the Work of the Terrorism Prevention Branch: The Rule of Law and Terrorism”, in, Wolfgang,[Ed.],  Anti-Terrorist Measurers and Human Rights, (Boston: Maritinus Nijhoff Publishers).p.59.

[80] Ibid.

[81] Ibid.

[82] Kofi Annan, Message to the African Union’s High Level meeting on Terrorism. Algiers, 11 September 2002.

Anti-Terrorist Laws in India; Forfeiture of Property:Severe Punishment. Innocent are Punished.

Anti-terrorist laws in India :Forfeiture of Property: Severe Punishment.  Innocents are punished.

TADA 87, POTA and UAPA 2004 have contained unique provision of forfeiture of property free from encumbrance of persons who are convicted for terrorist offences.[1]Forfeiture of property is one of the recognized punishments in the legal system but used seldom in traditional offence unless the accused has made illegal gains by commission offence. Forfeiture of property is effectively employed in economic offences where offender has made illegal gain which is justifiable. Fine is not substantial amount that is common punishment sanctioned in general crimes which is also justifiable because in default of fine, person generally undergoes alternative punishment or it may be recovered from his property. Terrorist acts are class by itself and aggravated from of crimes. Undoubtedly forfeiture of property for terrorist offence works as additional deterrent factor. But the manner in which Indian Anti-terrorist laws have adopted the forfeiture of property raises concern about human rights. Supreme Court in Karatar Singh case per curriam rejected the contention of petitioner that section 8 of TADA is voilative of Art 14 and 21 of the Constitution because it has not provided any guidelines for exercising the authority of forfeiture of property, it may amount unmerited punishment on third party who are honest creditor of such property and held that it intra virus.[2]However, it said even though attachment of property is made under section 8(2) but order of forfeiture of property has to be made in section 8(1). Thus, it has corrected the anomaly existed in that section and made forfeiture of property is discretionary. The Designated Court should forfeiture property of convicted person only and give reasons for such order.

Yet certain issues are unaddressed by the Court. Order of forfeiture of property would vitally affect the interest of honest creditors and dependent of that property. Such order should not be passed unless the interested parties are heard. Thus, the provision of forfeiture of property should have accommodated rules of natural justice.[3]Further, provision should have been made in respect of honest creditors of property who have no knowledge of terrorist act. POTA and UAPA 2004 have protected the interest of honest, bona-fide purchaser of terrorism property.[4]When such protection is given even in case of tainted terrorism property why not the same yardstick to be applied in the personal property of terrorist which is nothing to do commission of terrorist act. Forfeiture of property amounts double punishment for poor terrorist. Terrorist personally suffers imprisonment and forfeiture of property in fact punishes the dependent of the property who are innocents. Moreover the property in joint family always in the name of elder person and property is earned by common effort of family. Under such circumstances head family is proved to terrorist then it would be disaster for the rest of family members.

Secondly, putting all the terrorist in one basket is the contravention of equality itself. Every terrorist cannot be treated equally unless they are graded upon their role. Terrorists who are abettor, conspirator, and harbors have to be treated differently from the one who is hard core terrorist and played active role in the commission of offence. Thirdly, provisions of forfeiture of property are silent on the matters of quantum of property to be forfeited. It leaves no discretionary power to court effectuate proportionate of forfeiture of property of terrorist upon the nature of offence. The punishment should not be disproportionate to the corresponding criminal act. Therefore, forfeiting entire property of terrorist including movable and immovable irrespective of his nature of role played is arbitrary and unjust. Fourthly, Supreme Court has already admitted that most of the Indian population is poor, justice is dearer, and making appeal to Apex Court is beyond the means of average Indian. Under such circumstances, how could a poor terrorist effectively defend his case before Designated Court and Supreme Court without means to afford it? Forfeiture of property would defiantly affects terrorist’s right to be defended by lawyer of his choice and right to seek qualitative justice which are considered to be integral part of Article 21 and 22.      

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[1]Section 8(1) of TADA 87 says that where any person is convicted for any offence under this Act or rules, the Designated Court may in addition to awarding any punishment; by order in writing declare that any movable or immovable property of belonging to convicted person shall stands forfeited to the Government free from all encumbrances. Further section 8(2) says that during the period of trial of such accused, the Designated Court shall attach movable and immovable property till trial is over and where such trial resulted into conviction, so attached properties shall stands forfeited to the government free from all encumbrance. The section 8(1) and (2) are not properly drafted because there is apparent conflict between those two sections. Section 8(1) uses the word “Designated Court may”, it means forfeiture of property of convicted person is discretionary. Section 8(2) authorizes the Designated Court to attach the property of accused during the period of trial. Further at the end of section, it uses the words “where such trial ends in conviction, the properties so attached shall stand forfeited to the Government free from all encumbrance.” It means that attached property during the period of trial automatically forfeited on result of conviction of accused even it is not necessary for the Designated Court to pass express order to effect  that forfeiture. Therefore power of Designated Court to forfeiture of property is not discretionary. Section 16(1) and (2) of POTA removes this anomaly, says Special Court may attach property during the period of trial, and on conviction it may order for forfeiture of property free from encumbrance. Section 7 of UAPA 2004 which inserted section 33(1) and (2) to UAPA 1967 incorporated the same provision of POTA.  

[2] Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at 656.

[3] Section 9(1) of POTA obligates Special Court not to pass the order of forfeiture of property of terrorism unless concerned parties are given an opportunity of making representation in writing and also reasonable opportunity of being heard orally. Same kind of provision should have accommodated even in the section 7 of UAPA 2004.

[4]Section 9(2) of POTA says that no-order of forfeiture shall be made, if  person establishes that he is a bona fide transferee of such  proceeds for value without knowing that they (transferor) represents proceeds of terrorism, section 27(2) of chapter V of UAPA 1967 which is interested by section 7 of UAPA 2004, incorporates same provision of POTA.

Subhash Goudappanavar: Comparative study of Indian and USA Constitution.

Subhash Goudappanavar: Comparative study of Indian and USA Constitution.: Comparative study of American and Indian Constitution * American Constitution is shortest and second oldest, where as India ’s is len...

Comparative study of Indian and USA Constitution.

Comparative study of American and Indian Constitution*

American Constitution is shortest and second oldest, where as India’s is lengthiest Constitution in the Universe. The US Constitution was finalized in the convention held on the September 17 1787 which required minim 9 States to ratify for the enforcement. By the end of July 1788 eleven States had ratified and Constitution was put into operation on 13^th September 1788. American Constitution originally consisted only seven Articles and added 27 more Articles by way of amendments. The Indian Constitution was actually put into enforcement on 26^th November 1949 but officially adopted on 26^th January 1950. Originally India Constitution consisted 395 Articles in 22 parts with 8 schedules. and 22 parts. Now it consists  448 Articles in 22 parts with 12 schedules. Author of the article has tried to analyze the dissimilarity between the US and India Constitution. America has adopted the doctrine of dual ship in respect of Constitution and citizenship. It has two Constitutions, one, for America as whole and second one for each State. American people have two citizenship, one of USA and another of their respective State. India has one constitution and one citizenship for its entire people.

Nature of the Constitution.

American Constitution is described as truly federal Constitution because it was ratified by 50 Independent States. Further, federal government and States have their own Constitution and does not interfere with function of each other. On the day India got its independence, most of the States in India were already under the rule of government of India and other few sovereign States were forced to join the Indian Constitution. We have one Constitution in which the federal government interferes with functions of State government in the form of appointment of governors, governor reserving the States bill for the consent of President and central government power to impose the president rule in the States which makes the State government subordinate to the central government. Because of all these reasons the constitutional intellectual are not unanimous in holding the Indian Constitution is federal. Sum jurist also say it is neither unitary nor federal but “quasi-federal” Constitution.

Nature of Democracy.

America has adopted the Presidential form of democracy in which the executive President is directly elected by the people who is powerful and not accountable to House of Congress. American President Term is 4 years, he can hold the office of the President for only two terms and only natural citizen of US can become the President, and not a person who has acquired the citizenship. President can appoint his own staffs who are neither member of House of Representative or Senate in assisting the administration of government who are also not accountable to the House of Congress. It means that President is independent in the administration of government and directly responsible to the people of USA.  India was under the rule of British at the time of independence and this influenced us to adopt the democracy of Parliamentary System of Common legal system. President of India is executive head of Indian government who is indirectly elected by the legislators of central and states and not accountable to the Parliament. President shall run the government with aid and advice of the Prime Minster and Council of Ministers. Prime Minster and Council of Minsters is subordinate staff of the President being the members of the Parliament, therefore they are accountable to the Parliament. Unlike USA Indian President holds the office for five years, he should be citizen of India and citizenship might be natural or acquired. Further, he can be  elected for any number times. The impeachment of the President by the legislator is only similarity of both Constitutions.

Veto Power.

The Indian President is called as puppet or rubber stamp because he has to act on the advice of Council of Minster who are accountable to Parliament. This is not so incase of the US President. He can call shots on his own judgment more- ever the subordinate staff appointed by him is accountable to himself but not the House of Congress.  US President has explicit power to return the bill passed by the House of Congress with objections otherwise he has to the sign the bill within 10 days excluding Sundays. If President does not sign nor returns the bill within 10 days the bill is deemed to be law. When both House of Congress reconsiders the objection and passes the same bill with 2/3 majority, the bill would become the law without the signature of the President. And getting 2/3 majority by either Democratic or Republic party at both Houses at same period is remote possibility that’s why the American President power of rejection is called veto power and makes him real and  powerful executive President. In India too the President has power to send back the bill to Parliament for reconsideration. When the Parliament has reconsiders the bill and passes with simple majority the President has no option but sign the bill. The Prime Minster and his Cabinet always enjoys the simple majority except in coalition government so it would not be major hurdle for Prime minster and his cabinet to get the signature of the President for the bill. Hence Indian President is called a puppet. Unlike US, the Indian Constitution does not prescribe the time limit for signing the bill by President. Therefore he can keep the bill without signing for indefinite period under the disguise of consideration which can frustrate the Prime Minster and his cabinet. Obviously the question arises whether India’s President implied negative power of veto is more powerful than the US President’s explicit positive power of veto. 

Date of Retirement and Oath.

Unique feature of US Constitution is that it has prescribed the date and timing of the retirement of outgoing President and Members of the Congress. The terms of President and Vice President shall end at noon on the 20^th day of January in which their term would have ended. It means that the New President and Vice President shall take oath of the office on 20^th January at noon of their first year of office.  The election of the President and Vice president are held in the month of November and in the same month results are announced. Thus Americans are informed much earlier to their new President.  Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or impeachment occurs the Vice President shall become the President for remaining period. In this way duration of President is kept intact and next elected President takes oath on the schedule date. In India, if President dies or impeached, or submits resignation, the Vice President becomes the President till the fresh election are held and new elected President holds the office for full term of five years. Hence the time schedule of American system cannot be maintained.

The Members of the Representative and Senate terms comes to end on 3^rd January. America’s House of Representative and Senate are permanent Body. Entire world holds the American democracy in high esteem because of its impeachable of holding elections on time fixed schedule. In India, during the emergency duration of Lokshaba can be extended by one year, and the duration of Lokshaba can be shortened by holding pre-matured election. The Prime Minster and his Cabinet Ministers forms opinion that their party chances are bright in the next election; they may recommend for the dissolution of Lokshaba and suggest the President to hold the election at appropriate time which is based on political expedicy.       

Doctrine of separation of power.                                                                           

US Constitution has strictly adhered to the doctrine of separation of power invented by the Locke and Monotosque, 18^th century political philosopher. House of Congress enacts the law and President executes the law and Supreme Court interprets the law. American President has no privilege of law making power; moreover he is neither member of House of Representative nor Senate. By confirming veto power and equally not confirming law making power to President, the Congress controls Presidents and vice versa. In this way checks and balance are maintained. Theoretically we say that doctrine of separation of power is adopted in our Constitution, but it is not so. Prime Minster and Council Ministers are real executive of Indian government because the President has to act on the advice of Prime Minster and his Colleague. Prime Minster and Council of Ministers are from the majority party in the Parliament. Therefore, they  have dual capacity, one, in capacity of executive and another in the capacity of law maker. Prime Minster in the capacity of leader of the ruling party, enacts a law which is convenient for his administration. Prime Minster and his Council Ministers enact the law and execute the same which is blatant violation of doctrine of separation of power.

Human Rights.                    

America has incorporated the “Bill of Rights” and India “Fundamental Rights” into their Constitution.  American Constitution has provided the additional human rights which are not in the Indian Constitution. Freedom of press is explicitly provided under the 1^st amendment of the US Constitution, in India it is impliedly read under the Article 19[1] [a], freedom of speech and expression. Petition to the Supreme Court is fundamental right in India, where as in US it is petition to the government. The world “government” gives wider meaning covering not only higher judiciary even the executive also. American people have the right to keep the arms and guns for the protection of their life and property which is provided under 2^nd amendment. Therefore, the guns and arms are sold like commodity in US without legal hassles, where as in India it is totally contrast because it is not fundamental right and moreover it is highly regulated legal right. Vth amendment of US Constitution guarantees that the accused will be tried for criminal offence with system of “Grand Jury”, in India criminal trials are adjudicated by the judges only. Grand Jury means common people are selected by the government randomly representing the community, those will decide the guilt of the accused persons. Number of selected persons varies from 6 to 12 or even more if the case is controversial. No person’s life and liberty shall be deprived without “due process” of law in US. Due process means the content and procedure of law must be just, fair, and equitable which will be decided by the judiciary. Legislative power of depriving the person liberty is restricted and scrutinized and evaluated by the judiciary. In India the person’s life and liberty shall be deprived according to procedure established by law. The world “procedure established by law” gives wide discretionary power to the legislator to restrict the liberty. Nevertheless, the Supreme Court in Menaka Gandhi case, even though the court did not use the world due process, it held that the procedure established by law must be fair, just and equitable. Indian Parliament deleted the right to property from the list of Fundamental Rights in 1978. Where as in US the right to property is still fundamental right and no property shall be acquired without just compensation. Accused person of crime enjoys certain explicit rights under the VI Amendment of US Constitution; those are speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and assistance of legal counsel of his choice. All these rights in India are not expressly mentioned in the Constitution, nonetheless these rights are provided by the Supreme Court by broadly interpreting the life and liberty under Article 21. Further the VIII amendment of US says that the bail shall not be denied to accused, the imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also made available to Indian people because of well established precedents pronounced by the Supreme Court under Article 21. IX amendment of USA Constitution is most important because it says that mere enumeration of certain rights in the Constitution shall not be interpreted to deny the other rights retained by the American people. In spite of the statutory rights in the Constitution people enjoy the other rights which are given by the nature. American Constitution is highly influenced by the Locke’s philosophy of inalienable natural rights of human being. Indian Constitution does not contain such notable Article; therefore Indian people enjoy only those rights recognized by the Constitution which is based on the philosophy of Austin and Bentham theory of law.

Distribution of Legislative Power.

Seventh Schedule of Indian Constitution distributes the legislative power between the Central and State governments. The Central and State governments have exclusive power to make laws on the 97and 66 matter listed in the Union and State list respectively. On the 47 matter of Concurrent list both Central and State can make law, in case of conflict laws the law of Central would prevail. 97^th matter of Union list says any surfaced new matter which is not in any other list would confer power to Parliament to make law. Our constitution makers have created strong Central and weak State governments which depend upon the financial assistance of the Central government. It is contrast theory in US, where there is no elaborative mechanism is provided. Few expressly mentioned matters are with the federal and rest of the matters with State governments. Therefore in America the States are financially stronger than Federal government.

Emergency and Suspension of Writs.

In India the emergency can be declared on the ground of War, Aggression of War, and Armed Rebellion. During such emergency all fundamental rights except the right to life can be suspended. American Constitution does not use the phrase of emergency but says that in case of Rebellion and invasion of public safety the writ of Habeas Corpus can be suspended.  

Judiciary.

In America the President has final say in the appointment of Supreme Court Judges. He suggests the names of judges to Senate and with advice and consent of Senate, judges are appointed by the President. Judicial committee of Senate plays very significant role in evaluating the cardinals of the proposed judges of the Supreme Court. They make the investigation of the background of judges, they hold the face to face interaction with judges, the judges are queered and grilled and questions are put. The whole process happens in public and in transparent manner. The citizens of US has any information about judges integrity, they can send the information with evidence to the Senate Judicial Committee which will  make the further investigation and make sure that no unworthy candidate will be appointed as judges to the Supreme Court. In the appointment of Judges the people of US also participates and the judiciary of US has no role to play in the appointment of judges. The entire process of appointment of judges is crystal clear.  Judges of US holds the office for lifetime. In India the entire process of appointment of judges happens in the darkroom between the judiciary and executive. The people of India would come to know of their judges only after the appointment. Neither the peoples are informed in advance nor the executives makes open enquiry of judges. President appoints judges to Supreme Courts on the recommendation of the Prime Minster and Cabinet. The prime Minster and Cabinet consults the judiciary  in which the Chief justice and  four senior judges of SC plays very dominant and decisive role in preparing the list of  judges which will be sent to President for the appointment. The entire process of appointment of judges happens in the backyard and under the carpet without involvement of the people which is serious flaw of the Indian legal system. Judges holds the office up to the age of 65.

Amendment of Constitution.

Amendment of US constitution is very rigid and complicated; in case of India it is easy and flexible. According to V Article House of Congress with 2/3 majority can proposes for amendment of the Constitution. States can make application for calling convention for amendment of Constitution with support of more than 2/3, the convention shall be called and proposed amendments shall be valid. In US both House of Congress and States have power to amend the Constitution. The amended Constitution has to be ratified by more than 3/4 States to take effect. The Stares have very decisive and vital power in validating the every amendment of the Constitution. In India, it is only Parliament can propose for the amendment of the Constitution and States do not have role to play anything in this matter. Some of the Articles can be amended with simple majority, special majority and in some limited Articles with ratification by more than half of the States. Majority means majority of the Member of the Parliament present on the date of amendment not in relation with total strength of the Member of Parliament. The fact that US Constitution amended only 27 times in the last 225 years shows how rigid it is to amend the Constitution. Indian Constitution amended more than 95 times in the last 60 years proves how easy to amend the Indian Constitution.

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* S.G.Goudappanavar,LL.M. lecturer, gouri1000@gmail.com  S.C.Nandimath Law College, Karanatak.

Comments on Consumer Protection of Act 1986.*

The necessity of Consumer Protection Act was being felt for considerable time as the consumer was being exploited by the manufacturer, trader also service provider.

Protection of consumer right is not new concept. Of course, in India it is recent phenomenon. It is the by-product of industrial development and socio-economical advancement. During late 20^th century consumers, rights were rigorously highlighted and bought to the notice of legislators. Consumer is being centre point of today’s market yet he is taken for granted and exploited. To protect him from such exploitation special legislation with enforcement machinery is required. Hereinafter the Consumer Protection Act 1986 is called as CPA. The experience proved that the protection of consumer from various wrongs for which the remedy under ordinary law for various reasons has become illusory.[1]

There is some legislation enacted to protect the interest of consumer but failed to protect because the enforcing machinery is either corrupt or inefficient.  The CPA has come like a boon to the consumer as legislation ensures cheap justice, speedy justice and hassle free justice. It cannot be denied that CPA has fulfilled to considerable extent the aspiration of the consumer. The remedies under the CPA are in addition to remedy under other laws and not in derogation.[2] Remedy under other general laws continues along with CPA.

The Act came into force on 15 April 1987. Further, the act was amended in 1991, 1993 and 2002 to make wider application and more effective.[3] CPA defines consumer, service, consumer dispute, deficiency, defect, restrictive trade practice and unfair trade practices. Act is deserver to be appreciated because sale of goods and service by public under taking is also not spared along with co-operative society and private sector. CPA has provided the three qusi-judical authority with well-defined jurisdiction with appeal system to adjudicate the consumer dispute. Consumer can present the case before the authority without hiring advocate. Registered Consumer association and state is empowered to file case on behalf of consumer.

Who is consumer?

Consumer means any person who

1.      Buys any goods for consideration that has been paid or promised or partly paid and partly promised or under any system of differed payment.

2.      Includes any user of such goods other than the buyer when such use is made with consent of buyer.

3.      Does not include a person who obtains goods for resale or for any commercial purpose. Commercial purpose does not include use of goods by buyer for earning his livelihood by way of self-employment.[4]

 Consumer may be either natural or legal person whether registered or unregistered including co-operative society. Consumer may be person of any age and need not be sound-minded person, where as in Contract Act and Sale of goods Act the consumer has to be major and sound-minded person because the transactions between the buyer and seller is governed by principles of contract. Consumer definition is not confined to the buyer himself it includes person who uses goods with the consent of buyer. For example. Relatives of buyer, friends of buyer. Consideration for goods may be in any kind not necessarily in cash and need not be adequate and need not be tendered immediately also. CPA covers variety of transactions like sale of goods for goods, sale of goods for service, and omission as consideration for goods. Under sale of Goods Act, the consideration for sale is price so the Act has very limited application,[5] where as in CPA consideration is not defined in terms of money. The well settled unambiguous definition of consideration of Contract Act is made applicable.[6] However, Dr V.K. Agrwal in his book suggested that the word consideration is confusing and it should be replaced by price or money.[7] Author submits that it is not right suggestion other wise it would exclude variety of transaction in the market and makes limited application of act.

The term consumer does not include a person who buys goods for resale and commercial purpose. Consumer means the person who is ultimate user or end in himself. Commercial purpose is not defined but explanation is added by way of amendment in 1991. Commercial purpose does not include person who buys goods and uses for earning his livelihood by means of self-employment. A person purchases taxi, runs taxi and earns his livelihood by way of self-employment is consumer and not considered as commercial purpose. The Act has differentiated between the person who buys goods for resale and commercial purpose. Incase of commercial purpose, the person who buys goods and by using such goods earns his livelihood is called consumer and others who uses goods in large scale and earns more money is not consumer. Such classification in commercial purpose is reasonable and appreciable. The same logic should have applied in case of resale. Main employment in India whether rural or urban area is small ‘kirani’ shop where goods are resold. Here also the owner of ‘kirani’ shop instead of using the goods merely sells good to earn his livelihood is also self-employment but he is not considered as consumer so he has been treated differently which is harsh. Equal protection of law is integrated doctrine of equality. Benefits of CPA is offered to small earner on self-employment under the commercial purpose and it is denied to other small earners on the self-employment basis in resale is hard to digest. Use of goods must include resale of goods for self-employment.

The second category of consumer is related to the hire or user of service. Consumer for the purpose of service means any person who

1.      Hires or avails of any service for consideration that has been paid or promised or partly paid and partly promised or under any system of differed payment.

2.      Includes any beneficiary of such service other than hirer, when such service is used with the consent of the hirer.

3.      Does not include a person who avails of such service free of charge, under contract of personal service and for any commercial purpose. Commercial purpose does not include a person who availed service for earning his livelihood by way of self-employment.

Consideration, tax or fee.

Utilize the benefit of the CPA the person must have offered the consideration for goods or service. One third of India’s population lives below poverty line and depends upon goods and service rendered by the State. State being welfare has certain obligation to uplift the poor people by implementing social welfare scheme. The cost of such goods and service is incurred by the state fund that is collected from the people by way of tax. Naturally, the service and goods offered to such person by the state is not free but paid one. Even though the person has not paid consideration individually, yet he has to be considered as consumer under the act. The question before Supreme Court in Indian Medical Association V. V.P. Shanta and others [8]whether the service rendered to the poor people in the government hospital at free of cost is covered under the Act, Supreme Court answered negatively. The Supreme Court differentiated between fee and tax, consideration under the CPA has to be fee not tax.[9] The distinction between a tax and fee lies primarily in the fact that tax is levied as part of common burden while a fee is a payment for special benefit or privilege.[10] The patient in the government hospital is not consumer because he is not paid the consideration. On the other hand, for private hospital Supreme Court held that where the hospital is charging fee for some patients and not charging to some other patients, the patient to whom the free service is offered is called the consumer because his service expenses generally met from the other affluent patient’s expenses. The Supreme Court observed that,[11]

           To hold otherwise would mean that protection of the act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result … We are of the view in such a situation the persons belonging to poor class who are provided service free of charge are the beneficiaries of the service, which is hired or availed of by the paying class.

Supreme Court rightly appreciated that CPA is enacted with object of protect the poor consumer and any contrary interpretation would result in injustice. Nevertheless, right now, it restricted this philosophy to the hospital that is offering service with cost and free of cost to the rich patient and poor patient respectively.[12] The Supreme Court might have thought that the time is not ripe to extend the CPA to the persons who are getting the goods and service from the government on the basis of tax as  consideration otherwise it would leads to opening of the flood gates of consumer cases.

The Supreme  Court has expressed that all doctors whether government or private have total obligation to extend medical aid to the injured immediately to preserve his life without waiting legal formalities to be complied.[13] In Paschin Bang Khet Mazdoor Samati v. state of W.B., the Supreme Court has held that denial of medical aid by government hospitals to injured person amounts to violation of right to life under article 21.[14] Preservation of human life is of paramount importance. Failure on the part of governmental hospital to provide timely medical treatment to person in need of such treatment results in violation of his right to life guaranteed under article 21 and court could award compensation also to poor victim.[15] In Kirloskar Brothers Ltd v. Employees, State Insurance Corp. Supreme Court further extended this philosophy by holding that right to health is fundamental right of worker, which can be enforced not only against government but against the private industry also.[16] The adventurous path taken by the Supreme Court in protecting the poor patient’s right under the shelter of Article 21 sounds sweet and deserves to be applauded. 

The grim reality is that this fundamental right has been observed more in breaches than in observance because of lack of effective enforcing machinery. The CPA has filled this gap by providing efficient and effective enforcing machinery, which will makes the fundament rights are real and meaningful to the poor persons. Basic principles of interpretation guide courts to interpret the social welfare legislation in the widest sense. Therefore, the people should not be deprived by the benefit given by the act.[17] On these premises, consideration under the CPA has to be interpreted, as fee as well as tax. Such interpretation would further enlarge scope and application of act, which is just and rational. Until that, the CPA has better protected the consumers right is half-truth.

 District forums are established at each district having pecuniary jurisdiction of Rs 20 lakh which, easily accessible and less expensive for consumer to file complaint under the act. The cost service of housing, insurance, finance and other estate business at the district places has scaled up and generally cross more than 20 lakh, under such circumstances the pecuniary jurisdiction of district forum need to be enhanced otherwise customer has to go to capital to file complaint that is expensive and inconvenient.

Consumer can file complaint against any unfair trade practice or restrictive trade Patrice adopted by the trader and defects in the goods sold by trader and deficiency in the service. Trader means the person who sells goods or distributes goods and includes the manufacturer of the goods. Consumer can file complaint not only against the seller but also against the manufacturer because the remedies against manufacturer is effective than remedies against the seller which is very important development in the CPA. This section negates the doctrine of privity of contract of Contract Act and Sale of goods Act that has caused considerable injustice to buyer in the earlier days.

Seller is under obligation to sell the goods that are free from the defects and in case of service, free from the deficiency that makes the doctrine of caveat emptor is dead letter. Now seller has to careful while selling the goods rather than buyer is careful while purchasing the goods.

Consumer Protection Act protects the consumer from the defects in the goods and service does not protect form the dangerous premises where the goods are sold. Seller in either shop or office sells goods and service. Naturally, the shop and office must be safe for consumer. The moment consumer enters the premises of seller his safety has to be considered. Suppose consumer suffers injury because of slippery of floor, defects in the rack of goods, or fan falls on him under these circumstances the consumer has no remedy under the Consumer protection Act. CPA has taken care of defects in the goods and service but not the defects in the premises where the goods and service is sold. There fore, protection of consumer rights under CPA is incomplete. The consumer suffers any injury because of danger in the premises of shop or office, naturally the seller being occupier of the premises held liable under the Tort but not under Consumer Protection Act. Safety of the consumer against danger premises in which the goods or service is sold should have been provided in the Consumer protection Act. Omission of this is serious lapse in Consumer Protection Act in protecting the consumer rights.

Conclusion.

Undoubtedly, the Consumer protection Act is hallmark in the protection of consumer rights and our legislator is second to none in enacting such kind of laws. If enactment of legislation were parameter for evaluating the civilization then India would have been best-civilized nation. Law needs to be implemented and enforced to achieve desired results in which India has failed miserably. No doubt, the act has fulfilled its objectives to a considerable extent but Indian legal system has to go long way in protecting the consumer rights in real and meaning full manner. The government does not provide the sufficient funds to consumer authority to function in efficient manner. Shortage of staff and equipment is common feature of consumer forums. The success of the consumer protection would depend on the development and establishment of strong board based consumer organizations at the grass root level. Our consumer organization is financially weak because neither the government provides sufficient fund nor consumer contributes. Non-government consumer organization finds very difficult to educate consumer and institute the complaint the before the authority. The ignorance of the Indian consumer of their rights and remedies is the single major obstacle in the growth of consumer movement. Affluent and educated consumer is not vibrant because of their negligence or indifferent attitude. Unless the consumer changes his attitude towards their rights, the law can do little.  Mass education of the consumer is need of hour to make them conscious of their rights. Looking towards the illiteracy, ignorance, poverty, and backwardness of consumer, there is lot of work to be done to create good and healthy environment and protect the rights and privileges of consumers otherwise the protection of consumer rights will remain as distant dreams.

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* S.G. Goudappanavar, lecturer, S.C. Nandimath Law College, Bagalkot, Karnataka.

[1] Agarwal, V. K. Consumer Protection Law and Practice, [5^th Ed,] New Delhi: B.L.H Publishers Distributors Pvt, Ltd. [2003]. P.10.

[2] See, Consumer Protection Act, 1986. Sec, 3.

[3] Agarwal, V.K. op ,cit, pp.12-13.

[4] See, Consumer Protection Act, sec,2[1] [d] sub clause [I]

[5] See, Sale of Goods Act, 1930, Sec, 4.

[6] See, Indian Contract Act 1872, Sec, 2[d].

[7] Agarwal, V.K. op ,cit, p.81.

[8] [1995] III CPR 412 (SC)

[9] Ibid.

[10] Southern Pharmaceutical and Chemicals V. State of Kerala. [1982] 2 SCR 519.

[11] [1995] III CPR 412 at 427.

[12] Ibid.

[13] Paramananda Katara v. Union of India, AIR 1989 SC 2039.

[14] [1996] 4 SCC 37.

[15] Ibid.

[16] [1996] 2 SCC 1225.

[17] Justice Sing, G.P. Principles of Statutory Interpretation, [9^th Ed.], New Delhi:Wadha and Company Nagapur, [2005].p.733.