The Tribune, Chandigarh, India

OPINION

ISSUE OF NATIONAL SECURITY
Military & decision making in India
by N. B. Grant
IMMEDIATELY after the Kandahar hijacking episode, the three Service Chiefs together had an interview with the Prime Minister. They expressed their combined feelings in no uncertain terms that, as the national security of the country was as much the Services’ responsibility as that of the National Security Adviser, they must always be taken into confidence with regard to the decision making process where national security is involved, as only the Services are composed of true professionals to tackle it.

Citizens’ rights and the law
by H. L. Kapoor
CITIZENS of independent India should know their rights granted by the Constitution. The framers of the Constitution have ensured equality before the law. Article 14 of the Constitution lays down that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

MIDDLE

Auto hotline
by S. Raghunath
DELHI’s transport department has set up an “auto hotline” for the benefit of harassed commuters. Using the hotline, victimised autorickshaw passengers can contact the authorities concerned round the clock and get justice in a jiffy.

POINT OF LAW

Nailing the lie on lie-detector test
by Anupam Gupta
“THERE is,” writes Prof H.E. Burtt, “actually no such thing as a lie detector any more than there is a tuberculosis detector or an appendicitis detector.” The physician, he says, does not have a fool-proof gadget that flashes red for appendicitis and green for fried clams. He merely notes a combination of symptoms such as body temperature, blood count and location of pain and makes a diagnosis.

DIVERSITIES — DELHI LETTER

R-Day rehearsals throw life out of gear
by Humra Quraishi
TRAFFIC chaos continues. No, the traffic cops aren’t striking. This time its because of the rehearsals for the coming Republic Day celebrations. As I had mentioned last week the very (traffic) system is so fragile that one single event is enough to upset it and cause the worst possible harassment to commuters.

75 years ago

January 24, 1925
Wazir Begum to go to Bombay
WAZIR Begum, mother of Mumtaz Begum, a victim of the Malabar Hill outrage, was leaving for Bombay last night and had wired to her daughter to that effect; but she suddenly changed her mind at the railway station, on hearing of certain apprehensions in the way.

Third N-E package

IT is not as yet a constitutional obligation but enjoys the force of convention. Every Prime Minister has to go the North-East for a high-powered meeting and brainstorming within months of taking over. Mr Deve Gowda did it and unveiled a spontaneous package worth Rs 6000 crore. The local people greeted it with a yawn and others with cynicism. This hostile reaction did not deter his successor, Mr I.K.Gujral. He too went on a quick tour and announced a total grant of Rs 7000 crore for a variety of small and medium projects. Now it is the turn of Mr A.B.Vajpayee. More confident of completing a full term and adjusting the amount for inflation, he opened the Centre’s purse generously and promised over Rs 10,000 crore. This is not a package though. The BJP’s preferred word is agenda, in this case “the Agenda for socio-economic development”, an annexure to the National Agenda for Governance. One reporter got suspicious and pored over the facts and figures. Soon the statistical jugglery was out. One, the ongoing programmes of the two previous packages have been scrapped and the unspent portion of the funds will probably be repackaged as part of the agenda. Work in progress to tighten security in the border areas like new roads and fencing, for which Rs 1335 crore has already been allotted, forms part of the agenda. There is a simple transfer entry of Rs 500 crore from a fund that does not lapse on March 31 every year — that is, from some obscure account to the agenda proper. Finally, and this is curious, the agenda covers projects like building roads (Rs 1335 crore), bridges, schools, dispensaries and mini hydel power stations. All these are the responsibilities of the state government, if not the district administration. This is self-evident as a bulk of the funds will come from Plan allocation. Is the Centre taking over these mini programmes or is it merely funding the execution? Also, the Prime Minister’s Office will monitor the progress of these activities. This last decision will raise eyebrows, at least in those circles who place their total faith in decentralisation of power..

Nobody admits it but everyone knows that the Rs 10,000 crore agenda has one major item — to induce the militants to give up their ways and the others to isolate them. The Prime Minister acknowledged this by offering a peace bonus to Mizoram for being law-abiding for 14 long years and avoiding clashes with the security forces. (Punjab is going through the ninth post-militancy year and has now acquired a right to demand a similar payment.) For those states still wallowing in bad old ways he has promised to a new security force, and additional companies of CRPF to the two worst affected, Tripura and Manipur. The Centre will reimburse half of the expenses incurred by these states in fuel for police jeeps and related items (Rs 1420 crore). There is one announcement which goes against the spirit of liberalisation and also flies in the face of happy experience. He wants the Central government to open computer training centres in every block. This job rightly belongs to the private sector. Boys and girls have been trained and the country pushed near to the top in software by private enterprise. Why go against that trend? Finally, there is another record the Centre ignores. Developmental packages leave the people — all people — of militancy-affected states cold. First in Punjab and then in Jammu and Kashmir this approach was a thundering failure. Come to think of it, the North-East has regularly rebuffed economic allurements and not surprisingly. In that distant region the struggle is to safeguard the cultural identity from outsiders and to demand a reasonable share of the wealth the rich natural endowments like tea gardens create. There is some merit in their complaints of continuing social attack (on their identity) and economic exploitation. Roads and bridges alone do not solve them; they have not in the past.

Time to be proactive

SATURDAY morning's meticulously planned and heavy Pakistani attack on a moderately equipped Indian position in the Akhnoor area should be seen in its truly grave form. There is a tendency in the official information circles to relate the incident to "preparations by the saboteurs to create large-scale disturbances on or before Republic Day". This view is manifestly unrealistic. One has to understand the logistics and the happenings in the Kargil-Dras-Batalik region from May to July last year to have a proper perspective. The unclearly reported incident of the capturing of two snow-covered Indian posts in the Batalik sub-sector a few days ago is just not merely disturbing! Akhnoor or Palanwala has sent clear signals indicating Pakistani designs, the main aim of which is to grab more strategic land. One has to remember a few facts. Akhnoor, a part of the erstwhile Chhamb sector, was the site of heavy and relentless enemy attacks during the 1961 and 1971 wars, both of which saw quick escalation. (Chhamb was captured by Pakistan in 1965.) The Line of Control (LoC) meets the international border in the foothills there. This belt is extremely sensitive and evokes unpleasant memories in New Delhi. The sooner the strategic attention is widened, keeping 1965 and 1971 in view, the better it would be. It is a matter of satisfaction that the surprise attacks not only near Palanwala but also close to Sunderbani were repulsed, making the misadventurists pay a heavy price in terms of life and equipment. The USA and the UK told Pakistan last week in unambiguous words not to try to "capture Indian posts or occupy territory in Kashmir." The mentors of General Pervez Musharraf should take note of the latest belligerence and appear serious and fair in the eyes of the international community.

However, we have to carry our own cross and fight the adversary until he is pushed deep inside his cloister after facing the final defeat. The past wars have been perceivedly defensively conducted by India, putting more than warranted stress on politico-military civility and magnanimity. It is time to use our formidable might ruthlessly. The political decision taken by the Union Government last Tuesday to pursue a proactive policy has a ring of resoluteness in it. It goes much beyond Home Minister L.K. Advani's rhetoric of 1998 vintage. The new unified command has to be made effective in respect of internal security and for the protection of the borders. When retaliatory action was taken three days ago, Pakistani troops, with "jehad" booklets in their pockets, dropped dead on the Indian soil which they wanted to grab and their ammunition dump was blown up, killing the back-up group. Such minor successes call for vigorous proactivity. As General Bindra, chief of the Northern Command, has said, "there is an attempt to create trouble on the LoC". And, remember, there is Indian land across this line too. Pakistani propaganda is Goebbelsian. Every dictator in Pakistan, when there has been a war, has asked people to live with the same old element—falsehood.

ISSUE OF NATIONAL SECURITY
Military & decision making in India
by N. B. Grant

IMMEDIATELY after the Kandahar hijacking episode, the three Service Chiefs together had an interview with the Prime Minister. They expressed their combined feelings in no uncertain terms that, as the national security of the country was as much the Services’ responsibility as that of the National Security Adviser, they must always be taken into confidence with regard to the decision making process where national security is involved, as only the Services are composed of true professionals to tackle it. This is not so today, and the Services are only called in at the last moment, to bail out the country of the chaotic situation arising out of bureaucratic blunders.

On January 7 the BBC also interviewed Gen V.N. Sharma, an ex-COAS, on this matter. The General was fully in agreement with the views expressed by the three Service Chiefs, and added that the Services must be fully integrated with the Ministry of Defence, in the Chief of Defence Staff concept, as is the case in most other countries like the UK, the USA, France and even Russia. At a request from the Defence Minister, Mr George Fernandes, the three Service Chiefs have already submitted proposals for restructuring the Defence Ministry for removing this unpleasant situation. Their implementation, however, are still awaited.

To say that the strategic landscape remains unsettled would be an understatement. In the brief 50 years since Independence, the Indian military has fought three major wars, undertaken numerous “non-traditional” humanitarian and peacekeeping missions, struggled to adjust to a variety of social demands such as the full integration of women in officer ranks, and at the same time attempted to prepare for the twenty-first century. What is more, the armed forces have been asked to do all this with the worst budgetary constraints during these 50 years. As a result, the Indian military faces a dilemma: how to respond to the uncertainties of the new domestic and strategic landscapes, maintain a healthy relationship with civilians and yet retain its core raison d’etre, which is to deter or win war against the nation’s enemies.

For a brief period after World War-II, since Independence, the Indian military has been facing this dilemma following the 1962 Chinese debacle, the two inconclusive wars with Pakistan, the 1984 Sri Lanka fiasco, and the Kargil operation forced on it at short notice. At least one lesson clearly emerged from those experiences: the military profession dare not withdraw into an ethical cocoon and take on a defensive posture as it appears to be the case today. Instead, it must make a prudent and positive response to the travails imposed on it, and not shrink from articulating its views in the public square. In short, senior military officers must reshape the very notion of military professionalism, by candidly admitting the impact of politics on the military’s ability to do its job, and daring to practice constructive political engagement.

The above views would appear to violate the sacred code of silence because of which the Indian military is strictly apolitical, offers technical advice only, and goes out of its way to honour the principle of civilian control. But only through constructive political engagement can military professionals legitimise their role in policy debates, provide a clear boundary between defence policy and partisan politics, and give the Indian public a clearer understanding of military life and culture. Nor are constructive political engagement and loyalty to the country, the civilian leadership, and the Constitution in any way incongruous. Indeed, such constructive political engagement, far from threatening to make the military an independent actor, pre-supposes that the military is dependent upon a variety of political factors and the public at large. It is because the Indian military is under such tight civilian control that it needs to make its voice heard in civilian councils.

Any number of issues might fall within the scope of constructive political engagement, but the two most critical ones are the so-called “democratisation” of the military (the convergence or divergence between the military and society) and the problematic utility of the military force in the foreign policy contingencies of the century to come. These issues are inter-connected and have a profound impact on the military’s operational effectiveness.

Nothing makes the point more eloquently than the last Sri Lanka episode, the mismanagement of which forced military professionals, especially in the Army, to go through an agonising reappraisal of the meaning of the military profession. In the broader policy arena, the failure of senior military leaders to speak out with a realistic military perspective on that war provides an enduring lesson for military professionals. In the past, the role of the Chiefs of Staff in the decision to go to war and in its conduct has been studied and found wanting, precisely because these “three silent men” do not give voice to their professional doubts, but instead submerge themselves under a cloak of political deception.

What is forgotten is that a top soldier is a citizen first and a soldier second, and that troops under his command are an instrument of the people’s will. The Indian Army is really a people’s Army in the sense that it belongs to the Indian people who must take a jealous proprietary interest in its involvement. The Indian Army is not so much an arm of the Executive as it is an arm of the Indian people. Therefore, as military professionals, they must speak out, give counsel to our political leaders, and alert the Indian public that there is no such thing as a cheap war. The Army must make the price of involvement clear before it gets involved, so that the country can weigh the probable costs of involvement against the degree of non-involvement.

Most importantly, the military brass should not hesitate in providing the President, who is also the Commander-in-Chief of the armed forces with their specific and clear opinion on important military issues. Disagreements that arise among the military, the President and the members of Parliament should not be stifled, but aired honestly without prejudice to the military’s obedience to and the implementation of civilian directives. Nor should the armed forces wait until a debate occurs before presenting their perspective and objections to a given policy line. Military professionals ought to be free to make known their technical judgements without conjuring fears that they are trying to escape civilian control. The alternative, after all, is to perpetuate the timidity, extreme defensiveness and fear of criticism from the public and Parliament that seems to pervade the military today.

The wide range of civil-military contacts enumerated above would seem a basis for challenging the notion of the widening gap between the military and society in India. But to the extent the military and society do exist in two worlds, such a “gap” would only seem to underscore the need for a more politically streetwise military, one attuned to certain values and institutions. Indeed, to ensure that the needed equilibrium between the military and society is not thrown out of balance, military professionals must engage the political process. Such engagement would lead to a clearer civilian understanding of military culture, and help to correct the distorted views and unrealistic images that currently threaten the effectiveness of the military. For the real danger today is not the military dominance of the civil government, but rather a civilian policy elite dominating a military of which it has only the most superficial understanding, and thus imposing on the military frivolous “reforms” and imprudent commitments without regard to long-term consequences.

Let our Army speak out in order to institutionalise decision making in the country. We cannot afford insecurity-driven policies, leading to polarisation and vendetta moves. The Kargil operation and the recent hijacking incident are good examples of this. Unless that is done, the existing divide between the defence bureaucracy and the armed forces will remain there.

(The author is a retired Brigadier and commentator on military matters).

Citizens’ rights and the law
by H. L. Kapoor

CITIZENS of independent India should know their rights granted by the Constitution. The framers of the Constitution have ensured equality before the law. Article 14 of the Constitution lays down that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

Equality before the law implies that among equals, the law should be equal. The principle which guides this Article is that “all persons and things similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed”. The equal protection of the law, however, does not mean that all laws must be general in character and universal in application, and that the State has no power of distinguishing and classifying persons or things for purposes of legislation (ref. AIR. 1953 SC404-SCR30). Further, the Constitution (Article 15) prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

Very few people know that they have certain constitutional rights even when they commit an offence and are arrested by the police in cognisable crimes (when the police can arrest them without a warrant from court). The police has no power to keep anyone in illegal confinement. Where such laws are infringed by those who are supposed to uphold the law, the citizens have the right to approach the court against such confinement. The constitutional rights of the persons charged with an offence and those who have been arrested by the police are as under:

Article 22 provides that the persons arrested must be informed about the grounds of arrest. In case the grounds for arrest are not communicated, this will amount to contravention of the provisions of Article 22. Clauses (1) and (2) of Article 22 guarantee four rights to persons who are arrested under an ordinary law. These are the right to be informed, as soon as possible, of grounds of arrest, the right to consult and be represented by a lawyer of their choice, the right to be produced before a magistrate within 24 hours, and freedom from detention beyond the said period, except by the order of the magistrate.

These fundamental rights guaranteed to arrested persons by Clauses (1) and (2) of Article 22 are available to both citizens and non-citizens, and to persons arrested and detained under any law providing for preventive detention. Even a person arrested in connection with a bailable offence is entitled to bail. It is the right of the citizen to be released on bail in bailable cases. The police officers/SHO shall give him an opportunity to offer bail. No citizen can be kept in police custody beyond 24 hours, except under orders of a court.

No citizen who is charged with an offence can be compelled by the police to be a witness against himself. Explaining the scope of this clause, the Supreme Court has observed that this right embodies the following essentials: it is a right pertaining to a person who is accused of an offence; it is protection against compulsion to be a witness; it is protection against such compulsion resulting in his giving evidence “against himself”.

The Supreme Court has held in Nandini Satpathy’s case (91/978-SC 1025), when she was prosecuted u/s 179, IPC, for refusal to make a statement, “... that a police officer was a person in authority. Compulsion to answer questions under pressure within the police station’s atmosphere was unjustified when there was no safe ground against duress, intimidation, threats of prosecution etc.” It was held that this was a clear violation of human rights under Article 20(3) of the Constitution.

Every woman must know that she cannot be called to any police station for questioning. It is the right of the woman under law to be examined at her place of residence. The law provides that no woman shall be required to attend any place other than the one she is residing. It is her right to be questioned in the presence of male/female relatives and that she will not be put to any inconvenience. Likewise, no child (male) below the age of 15 can be called for questioning by the police, at any police station. It is the right of a minor child to be examined at his place.

The woman and the child can only be taken in by the police when they are formally arrested. However, the police can summon all men above 15 years through a notice under Section 160, Cr PC. Failure to attend on being summoned constitutes an offence u/s 174 IPC. Whenever a citizen is required by law to answer questions, he is legally obliged to do so. Refusal to answer the questions wherein a citizen is legally obliged constitutes an offence u/s 179, IPC. However, a citizen has a right to remain silent when the answers are likely to expose him to a criminal charge, as mentioned above.

As and when any search is conducted by the police, the citizen is entitled to see the search warrant and satisfy himself that it has been issued by a proper authority, and the address and the name given are correct. Further, the scope of warrant is limited to a place. Search can also be made of a person present in the place of search, who may be reasonably suspected of concealing some article in relation to the search.

A police officer can even search a place without warrant if reasonable grounds exist for believing that any evidence relating to the investigation may be found. The grounds for such belief have to be furnished to the magistrate concerned. Under Section 1653, Cr PC, every citizen is entitled to a copy of an FIR lodged by him, free of cost. The police is duty-bound to give him the copy under law.

Article 21 of the Constitution lays down that “no person shall be deprived of his life or personal liberty except according to procedure established by law. The words “personal liberty” are not confined to bodily restrain or prison only. The domicillary visits at night by the police at the residence/private house of a bad character for the purpose of making sure whether that person is staying at home or has gone out, is violation of Article 21. The Supreme Court has described that such visits are “an invasion on the part of the police of the sanctity of the man’s home and an intrusion into the personal liberty of the individual unless the visits were authorised (AIR 1963 SC 1295 Kharak Singh vs State of UP).

Under the Representation of People’s Act, 1951, as amended in 1989, every citizen of or above the age of 18 years is entitled to cast his/her franchise. Where citizens have certain rights, they have also been given responsibilities under the law. Every person is bound to assist a magistrate or a police officer reasonably demanding help in the taking of custody or preventing the escape of any person whom he is authorised to arrest or in the prevention of a breach of peace or to prevent damage to public property. Failure to assist is punishable u/s 187 IPC.

Every citizen is bound under the law to give information of offences committed against the state or offences which disturb public peace and tranquillity. These include rioting, offences relating to payment or acceptance of illegal gratification, offences relating to the adulteration of food and drugs, offences affecting the life of a person, offences relating to robberies and dacoities, offences relating to a criminal breach of trust by a public servant, mischief against public property, offences of trespass, counterfeiting currency notes, etc.

Various organisations the — Citizens’ Advance Bureau, the Legal Aid and Advice Board, the Indian Council of Legal Aid and Advice, the High Court Legal Aid and Advice Committee, the Legal Aid Cell for Women, etc — have been set up to help people. It would be in the fitness of things if seminars are arranged to bring about general awakening among the masses.

(The writer is a former Assistant Commissioner of Police, Delhi.)

Auto hotline
by S. Raghunath

DELHI’s transport department has set up an “auto hotline” for the benefit of harassed commuters. Using the hotline, victimised autorickshaw passengers can contact the authorities concerned round the clock and get justice in a jiffy.

Hello, auto hotline? Look, I’ve been brazenly swindled and you got to help me. I engaged an auto and distinctly told the driver that I wanted to go to Karol Bagh, but he has set me down in Trilokpuri in Trans-Yamuna colony and is demanding triple fare.

I think you ought to do something about your speech and diction, sir and I don’t mean to be rude and offensive when I say that you’re talking as though you’ve got a hot potato and an outsized adult frog in your mouth.When you said, Karol Bagh, I swear I heard you as Novosibirsk, Siberia and no doubt, the poor auto driver got confused. I suggest that you engage the same auto, meekly pay up the triple fare he’s demanding and go to Karol Bagh and again pay the return fare. Have a happy journey, sir and don’t forget to consult a good speech therapist.

Hello, auto hotline? Look, I’ve been taken for a ride, literally and you are my last resort. I got into an auto at the Old Delhi railway station, wanting to go to the Kingsway Camp, just across the road. After travelling thru’ Patna, Kailas-Manasarovar, Darjeeling, Bhopal, and Jaisalmer, he has set me down at my destination and the fare meter reads Rs 99,989.05. What do I do?

If you’ve the spiritual bent of mind, sir you’ll appreciate that there’s more than one path to the same goal and why blame your driver if he has set you down at your destination after taking a circuitous route? It’s the destination that matters and not the route, isn’t it? I’m afraid you’ll have to pay the full fare, but according to su-section 8)f) of the new Motor Vehicles Act, auto passengers can write off the fractions in their fares. So kindly pay your driver just Rs 99,989 which, I think, is a reasonable fare considering the steep increase in petrol prices.

Hello, auto hotline? I’m calling in the middle of a bitter fracas with my auto driver. He claims that my wallet and soft spectacle case constitute heavy luggage and that I’ve to pay extra charges and he’s asking me if my mother was married.

Sir, auto hotline is there to help passengers in their distress, but I’m afraid auto drivers have the right to decide what constitutes heavy luggage, and therefore, I’d advice you to pay the extra charges he’s demanding without demur. The new Motor Vehicles Act now in force favours and driver whenever he gets into an argument with his passengers and he’s well within his right to demand to know your parentage when the exchanges become mean and ugly. I’m sorry I can’t be of much help, but thanks for calling. By the way, was your father married?

Hello, auto hotline, I’ve been outrageously cheated and I’m not going to take it lying down. When I engaged the auto, I was the only passenger, but my driver stopped near the Boat Club lawns as people were coming out after a political rally and he took on more people and I’ve now got a couple of nifty children sitting on my lap, four adults hanging to the bumpers and a woman sitting on top of the auto singing comic songs. I’ve got a good mind to call up the Chief Minister and complain.”

“Don’t you know that two’s company and three’s a crowd? Why are you whining if your driver has loaded his vehicle with people? Be a good host, chat up with the kids sitting on your lap and tell them a few fairy tales. You can talk politics with the adults and say a cheery hello to the woman sitting on top. As for complaining to the Chief Minister, I wouldn’t advice you on that because she’s waiting on the other auto hotline to complain that the auto she engaged to take her to the Old Secretariat in Civil Lines is demanding excess fare and that people are gathering to watch the fight.

Nailing the lie on lie-detector test
by Anupam Gupta

“THERE is,” writes Prof H.E. Burtt, “actually no such thing as a lie detector any more than there is a tuberculosis detector or an appendicitis detector.”

The physician, he says, does not have a fool-proof gadget that flashes red for appendicitis and green for fried clams. He merely notes a combination of symptoms such as body temperature, blood count and location of pain and makes a diagnosis. Similarly, the psychologist using a polygraph (or lie detector) studies the graphic record of breathing, blood pressure and electrical resistance of the skin obtained while questioning the suspect, and concludes whether the record indicates guilt or innocence.

Greek for “many writings” or something that records a number of items simultaneously, “polygraph” (adds Prof Burtt) is a better term than “lie detector” which “implies a simplicity and a certainty quite at variance with the facts.”

It is this immense simplicity of nomenclature that, more than anything else, creates an aura bordering on myth around the lie detection test. A product of applied psychology first devised by Marston at Munsterberg’s laboratory at Harvard in 1915, the lie detector has a potential to impress and deceive non-scientists, judges included, far exceeding its scientific capability to detect deception by criminals.

In puncturing the myth, therefore, though in purely legal terms (as I wrote last week), the National Human Rights Commission has done a singular service in the cause of criminal justice.

There is a vast difference, holds the NHRC, between a person telling the police: “I want to take a lie detector test because I wish to clear my name,” and a person being told by the police: “If you want to clear your name, take a lie detector test.”

This distinction between volunteering, on the one hand, and being asked to volunteer, on the other, is of crucial significance in the context of the constitutional guarantee against self-incrimination in Article 20(3).

Whether the nature of “evidence” hit by the Article is construed broadly, as done by the Supreme Court in M.P. Sharma’s case in 1954, or narrowly as in Kathi Kalu Oghad’s case (1961), the information sought to be elicited in a lie detection test, says the NHRC, is “information in the personal knowledge of the accused.”

It would, as a necessary consequence, be unconstitutional to elicit such information unless the test is undertaken voluntarily under non-coercive circumstances.

Spelling out those circumstances in meticulous detail, the NHRC weaves a web of protection around the suspect said to have “volunteered” for the test, with a view to ensuring the genuineness of his consent.

A suspect in custody who is willing to submit to a lie detection test, says the Commission, should be given access to a lawyer and the “physical, emotional and legal implications of such a test” must be explained to him.

His consent, if any, must be recorded before a Judicial Magistrate after a hearing wherein again he is represented by a lawyer.

The Magistrate, on his part, must consider all factors relating to the suspect’s detention, including the length of the detention and the nature of the interrogation, before proceeding to record any consent.

More significantly, or perhaps most significantly from the angle of the law, the Magistrate must also tell the suspect “that the statement that is made shall not be a confessional statement to the Magistrate, but shall have the status of a statement made to the police.”

A confession made by an accused before a Judicial Magistrate during the course of investigation, covered under Section 164, Cr PC, is admissible against him at the trial even if he later retracts from the same. A statement made to the police, or any statement having the “status” of such a statement, is however totally inadmissible as corroborative prosecution evidence by virtue of Section 162 of the Criminal Procedure Code.

Like a confession, therefore, made during the course of investigation, a valid consent to take the lie detection test must be recorded before a judicial officer and none else. Like any other statement made to the police, nonetheless the factum of consent cannot be used in evidence against the accused.

In thus coupling the provisions of Sections 162 and 164, Cr PC, and granting to an accused confronted by a lie detector the benefit of the protections contained in both, the NHRC has shown conceptual creativity of a high order.

But that is not the last of the Commission’s caveats against evidence that may so easily pass off as scientific evidence.

The actual recording of the lie detection test, holds the NHRC, must be done “in an independent agency (such as a hospital) and conducted in the presence of a lawyer.”

That about drives the last nail in a coffin that might never be opened.

R-Day rehearsals throw life out of gear
by Humra Quraishi

TRAFFIC chaos continues. No, the traffic cops aren’t striking. This time its because of the rehearsals for the coming Republic Day celebrations. As I had mentioned last week the very (traffic) system is so fragile that one single event is enough to upset it and cause the worst possible harassment to commuters. With the mention of Republic Day let me fit in that perhaps it would have been in the fitness of things if on the golden jubilee of our Republic the window of the slain Australian missionary Graham Staines had received some recognition, not only for the work she is doing amongst the lepers in the villages of Orissa but the remarkable strength shown by her — unmoving from the very place where her husband and two young sons were charred to death, exactly a year back.

Here, in New Delhi, the United Christian Forum for Human Rights held a memorial service at the Free Church (Parliament Street) for the three “martyrs” on January 22. One of the noteworthy aspects of this memorial service was the presence of diplomats from the embassies of Panama, PLO, Austria, Australia and the UK. No, there seemed no representation from the government end — either from the GOI or from the Orissa government. Also, not a single politician from any of our political parties could be spotted. A pity, a clear sign of our decaying times. And going by reports it is been widely stated that some of the independent probes do not go by the Wadhwa Commission’s findings. To quote John Dayal, the national convener of UCFHR — “No just the Christian community but the judicial and legal community and civil society have expressed their shock that despite concrete evidence on the political background and affiliation of Dara Singh, Justice Wadhwa failed to find any link between Dara and the Sangh Parivar....”

Continuing in the Republic Day mood let me also fit in that perhaps the most unusual of floats at the parade will be the one put up by the Ministry of Tourism concentrating on the 1000-year-old monasteries of Ladakh, it will depict the Lamayuru monastry. In case you are under the illusion that this is the brainchild of one of the bureaucrats manning this ministry, let me add that the focus on these decaying monasteries has been brought about by Benoy K. Behl of the Cultural Documentation and Conservation Foundation. Behl says these 1000-year-old monasteries (there are 108 such monasteries) were made under the patronage of king Yeshe Od, who ruled Tibet and Ladakh in the 11th century. Today these are greatly endangered and almost crumbling because of total neglect and he, together with his associate Sangitika Nigam, have taken up the restoration work of two of them — the Lhakhang and the Wanla monasteries.

Let see whether after all this Republic Day hangama the Tourism Ministry continues to focus attention on them and on their upkeep or in keeping with the typical (government) attitude turns away its head, after the initial hype.

Focus on the apple man of HP

At a dinner hosted by Uma Vasudev I met Asha Sharma grand-daughter of Satyanand Stokes and the woman who has written his biography “An American in Khadi” (Penguin). I haven’t read the book but Asha told me that she spent a decade collecting the material and writing the book. She was only six-year-old when he had died and as she says her grandmother was very reserved and couldn’t come up with relevant details so Asha banked on” oral history, Stokes’ books and journals and the numerous letters he exchanged with Gandhi, Lala Lajpat Rai and C.F. Andrews”.

And though this biography has been very recently released here by the US Ambassador to India, Mr Richard Celeste, but unfortunately very few came to know of it because the very invite was rather vague or if I may say incomplete. There was no mention of Stokes nor a word about the publishers. To make up for this the author ought to have another book released function so that focus comes on this American who had made Himachal not only his home but even showed a way for the economic upliftment of the people of this state — by introducing the delicious variety of apple. In fact, the destined turns in Stokes’ life are so interesting that a film ought to be made on him. I will recount some of these as outlined by the author — “Stokes arrived in Simla Hills in 1904, barely 21 years of age, to work at the leper home there, having left behind a prosperous family and a promising future in Philadelphia. In the early years he lived a life of absolute poverty and even formed his own order of Franciscan friars. A few years later, though, he chose the life of a householder, marrying a Pahari girl and eventually converted to Hinduism. For the rest of his life he lived by the rules of the local community of Kotgarh, the village he made his own...”

Kashir Channel — for whom?

Doordarshan’s much publicised channel ‘Kashir’ concentrating on Kashmir is already being met with much criticism. Details of the criticism will follow in my next week’s column. As for now, just the basic criticism — going by the official estimate that most parts of J&K will receive power for only five hours per day who will be able to see the programmers on this new channel. Perhaps, not even a handful.