[Reader-list] What after MNIC? The MIND, the final frontier.

[Taha Mehmood]

Dear Kshmendra

I have never ever claimed to be an 'intellectual' in the first place, 
nor that it amuses me now that, according to you, I stand exposed. There 
are times when one does not have to be specific in uttering, all one has 
to do is to make some nervous sounding noises and the message gets 
across. I am sorry that you need an explanation on this, because there 
isn't any. And I would like to believe that my response was apt. I find 
it hard to respond with more puerility than an idea which would want us 
to believe that national identity cards could be used to weed out 
terrorists or that technology is on the way, which could enable us to 
actually read the mind of terrorists.

But now that you have responded, please allow me to come back to the 
issue of terrorists or terror or terrorism. In this regard please allow 
me to share with you fragments of a judgment pronounced by a bench 
comprising of DORAISWAMY RAJU & ARIJIT PASAYAT of the Supreme Court of 
India. This judgment was with respect to a case pertaining to Nazir Khan 
and others v/s State of Delhi. The judgment was pronounced on 22nd of 
August 2003.

Salient points of the Judgment are as follows- terrorists have no 
religion; there is no universal definition of terrorism; in order to 
prove without doubt that such and such person is a terrorist proper 
evidence, related to a conspiracy to commit an act which may be ascribed 
as a terror act, must be examined and evidenced must be conclusivly 
proven beyond any doubt; conspiracy involves an agreement by two or more 
persons to commit an unlawful act, evidence gathered to prove such a 
conspiracy could be either circumstantial or based on confessions; 
confessions so obtained must be voluntary, Voluntary' means a statement 
made of the free will and accord of accused, without coercion, whether 
from fear of any threat of harm, promise, or inducement or any hope of 
reward.

The point being Dear Kshmendra, in order to conclusively establish the 
identity of a person as a 'Terrorist' one has to follow a proper 
procedure. Therefore any claim or defense of any such claim which seeks 
to provide a technology which will help weed out terrorists seem 
ridiculous. We have to understand that the term 'Terrorist' is a social 
construct, it is an abstraction, at best one can only subjectively 
ascertain a person as a terrorist by following a proper procedure at 
worst one can rhetorically tag persons, peoples as terrorists because of 
some ulterior motive, machines on the other hand are good at sorting out 
material or fixed entities or those abstract entities whose definitions 
are universal.

With warm regards

Taha




1. Terrorists have no religion, no concept of communal or  social 
harmony and value for human life.

2.As noted at the outset, it is not possible to precisely define 
"terrorism".  Finding a definition of "terrorism" has haunted countries 
for decades. A first attempt to arrive at an internationally acceptable 
definition was made under the League of Nations, but the convention 
drafted in 1937 never came into existence.

3.The UN Member States still have no agreed-upon definition. Terminology 
consensus would, however, be necessary for a single comprehensive 
convention on terrorism, which some countries favour in place of the 
present 12 piecemeal conventions and protocols. The lack of agreement on 
a definition of terrorism has been a major obstacle to meaningful 
international countermeasures. Cynics have often commented that one 
State's "terrorist" is another State's "freedom fighter". If terrorism
is defined strictly in terms of attacks on non-military targets, a 
number of attacks on military installations and soldiers' residences 
could not be included in the statistics. In order to cut through the 
Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 
in a report for the then UN Crime Branch that it might be a good idea to 
take the existing consensus on what constitutes a "war crime" as a point 
of departure. If the core of war crimes - deliberate attacks on 
civilians, hostage taking and the killing of prisoners - is extended to 
peacetime, we could simply define acts of terrorism as "peacetime 
equivalents of war crimes".

4.League of Nations Convention (1937) :"All criminal acts directed 
against a State along with intended or calculated to create a statute of 
terror in the minds of particular persons or a group of persons or the 
general public".


5. Short legal definition proposed by A.P. Schmid to United Nations 
Crime Branch (1992) : Act of Terrorism = Peacetime Equivalent of War Crime


6. "Terrorism is an anxiety-inspiring of repeated violent action, 
employed by (semi-) clandestine individual, group or state actors, for 
idiosyncratic, criminal or political reasons, whereby - in contrast to 
assassination - the direct targets of violence are not the main 
targets.  The immediate human victims of violence are generally chosen 
randomly (targets of opportunity) or selectively (representative or 
symbolic targets) from a target population, and serve as message 
generators.  Threat- and violence-based communication processes between 
terrorist (organization), (imperiled) victims, and main targets are used 
to manipulate the main target (audience (s)), turning it into a target 
of terror, a target of demands, or a target of attention, depending on 
whether intimidation, coercion, or propaganda is primarily sought"
 (Schmid, 1988).

7. Terrorism is the use or threatened use of force designed to bring 
about political change.  - Brian Jenkins

8. Terrorism constitutes the illegitimate use of force to achieve a 
political objective when innocent people are targeted. - Walter Laqueur.

9. Terrorism is the premeditated, deliberate, systematic murder, mayhem, 
and threatening of the innocent to create fear and intimidation in order 
to gain a political or tactical advantage, usually to influence an 
audience. - James M. Poland

10. Terrorism is the unlawful use or threat of violence against persons 
or property to further political or social objectives.  It is usually 
intended to intimidate or coerce a government, individuals or groups, or 
to modify their behavior or politics. - Vice-President's Task Force, 1986

11. Terrorism is the unlawful use of force or violence against persons 
or property to intimidate or coerce a government, the civilian 
population, or any segment thereof, in furtherance of political or 
social objectives. - FBI Definition

12. No doubt in the case of conspiracy there cannot be any direct 
evidence. The ingredients of offence are that there should be an 
agreement between persons who are alleged to conspire and the said 
agreement should be for doing an illegal act or for doing illegal means 
an act which itself may not be illegal. Therefore, the essence of 
criminal conspiracy is an agreement to do an illegal act and such an 
agreement can be proved either by direct evidence or by circumstantial 
evidence or by both, and it is a matter of common experience that direct 
evidence to prove conspiracy is rarely available. Therefore, the 
circumstances proved before, during and after the occurrence have to be 
considered to decide about the complicity of the accused.

13. "Conspiracy consists in the agreement of two or more persons to do 
an unlawful act, or to do a lawful act by unlawful means. It is an 
indictable offence at common law, the punishment for which is 
imprisonment or fine or both in the discretion of the Court.

14. Privacy and secrecy are more characteristics of a conspiracy, than 
of a loud discussion in an elevated place open to public view. Direct 
evidence in proof of a conspiracy is seldom available, offence of 
conspiracy can be proved by either direct or circumstantial evidence. It 
is not always possible to give affirmative evidence about the date of 
the formation of the criminal conspiracy, about the persons who took 
part in the formation of the conspiracy, about the object, which the 
objectors set before themselves as the object of conspiracy, and about 
the manner in which the object of conspiracy is to be carried out, all 
this is necessarily a matter of inference.

15. The provisions of Section 120-A and 120-B, IPC have brought the law 
of conspiracy in India in line with the English Law by making the overt 
act unessential when  the conspiracy is to commit any punishable 
offence. The English Law on this matter is well settled. Russell on 
crime (12 Ed.Vol.I, p.202) may be usefully noted-    "The gist of the 
offence of conspiracy then lies, not in doing the act, or effecting the 
purpose for which the conspiracy is formed, nor in attempting to do 
them, nor in inciting others to do them, but in the forming of the 
scheme or agreement between the parties, agreement is essential. Mere 
knowledge, or even discussion, of the plan is not, per se, enough."

16. Coleridge, J. while summing up the case to Jury in Regina v. Murphy 
[(1837) 173 ER 502 at p. 508] states:"I am bound to tell you, that 
although the common design is the root of the charge, it is not 
necessary to prove that these two parties came together and actually 
agreed in terms to have this common design and to pursue it by common 
means, and so to carry it into execution. This is not necessary, because 
in many cases of the most clearly established conspiracies there are no 
means of proving any such thing and neither law nor common sense 
requires that it should be proved. If you find that these two persons 
pursued by their acts the same object, often by the same means, one 
performing one part of an act, so as to complete it, with a view to the 
attainment of the object which they were pursuing, you will be at 
liberty to draw the conclusion that they have been engaged in a 
conspiracy to effect that object. The question you have to ask 
yourselves is, had they this common design, and did they pursue it by 
these common means the design being unlawful."

17. Conspiracy is conceived as having three elements: (1) agreement; (2) 
between two or more persons by whom the agreement is effected; and (3) a 
criminal object, which may be either the ultimate aim of the agreement, 
or may constitute the means, or one of the means by which that aim is to 
be accomplished.  It is
immaterial whether this is found in the ultimate objects.

18. "The very agreement, concert or league is the ingredient of the 
offence.  It is not necessary that all the conspirators must know each 
and every detail of the conspiracy as long as they are co-participators 
in the main object of the conspiracy.  There may be so many devices and 
techniques adopted to achieve the common goal of the conspiracy and 
there may be division of performances in the chain of actions with one 
object to achieve the real end of which every collaborator must be aware 
and in which each one of them must be interested.  There must be unity 
of object or purpose but there may be plurality of means sometimes even 
unknown to one another, amongst the conspirators. In achieving the goal 
several offences may be committed by some of the conspirators even 
unknown to the others.  The
only relevant factor is that all means adopted and illegal acts done 
must be and purported to be in furtherance of the object of the 
conspiracy even though there may be sometimes misfire or overshooting by 
some of the conspirators.

19.The principle therein is that confession must be voluntary. Section 
15 of TADA Act also requires the confession to be voluntary. Voluntary 
means that one who makes it out of his own free will inspired by the 
sound of his own conscience to speak nothing but the truth. As per 
Stroud's Judicial Dictionary, 5th Edn., at p.2633 threat means:    "It 
is the essence of a threat that it be made for the purpose of 
intimidating, or overcoming, the will of the person to whom it is 
addressed (per Lush, J, Wood v. Bowron (1866) 2 QB 21) cited intimidate."

20. Words and Phrases, permanent edition, Vol.44, p. 622 defines 
'voluntary' as:'Voluntary' means a statement made of the free will and 
accord of accused, without coercion, whether from fear of any threat of 
harm, promise, or inducement or any hope of reward - State v. Mullin 
(85NW 2nd 598, 600, 249 lown 10)".

21. In Words and Phrases by John B. Saunders 3rd edition, vol.4, p.401, 
'voluntary' is defined as:".....the classic statement  of the principle 
is that of Lord Sumner in Ibrahim v. Regem ( 1914 AC 599) ( at p.609) 
where he said, "it has long been established as a positive rule of 
English criminal law that no statement  by an accused is admissible in 
evidence against him unless it is shown by the prosecution to be a 
voluntary statement, in the sense that it has not been obtained from him 
either by fear of prejudice or hope of advantage exercise or held out by 
a person in authority. The principle is as old as Lord Hale".  However, 
in five of the eleven textbooks cited to us ....support is to be found 
for a narrow and rather technical meaning of the word "voluntary". 
According to this view, "voluntary" means merely that the statement has 
not been made in consequence of (i) some promise of advantage or some 
threat (ii) of a temporal character (iii) held out or made by a person 
in authority, and (iv) relating to the charge in the sense that it 
implies that the accused's position in the contemplated proceedings will 
or may be better or worse according to whether or not the statement is 
made. R. v. Power [( 1966) 3 All ER 433) ( at pp.454, 455)] per Cantley, V."

22. In Principle and Digest of Law of Evidence, Vol.I, New Edn. By Chief 
Justice M. Monir, after noticing conflicting views and discussing 
various authorities, the learned author summarized the position as 
follows:"The rule may therefore, be stated to be that whereas the 
evidence in proof of a confession having been made is always to be 
suspected, the confession, if once proved to have been made and made 
voluntarily, is one of the most effectual proofs in the law."

CASE NO.:Appeal (crl.)  734 of 2003PETITIONER:Nazir Khan and Ors. 
RESPONDENT: Vs. State of Delhi  ATE OF JUDGMENT: 22/08/2003
BENCH:DORAISWAMY RAJU & ARIJIT PASAYAT.JUDGMENT:J U D G M E N T With 
Death Reference No.(Crl.) No.1 of 2003ANDCRIMINAL APPEAL 
NO.......(D.14990/2002)