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

[Kshmendra Kaul]

Dear Taha
 
Most of what you have written has nothing to do with the conversation exchange in this particular thread which you started with a 'stand-alone' and 'referring to nothing' Hindi Maxim (reproduced below)
 
You say that what you have called your own 'nervous sounding noises' were meant to serve the purpose of "message gets across".
 
Well, they didn't because what you have called your 'nervous sounding noises' referred to nothing.
 
You have said that I 'need an explanation on this'. No I do not, nor did I ask for one.
 
I only pointed out to you that what you have called your 'nervous sounding noises'  was  not only puerile and revealed you as a pathetic character  but bizarre too because your "stand alone" quoting of the Hindi Maxim referred to nothing. 
 
You believe this what you have called your 'nervous sounding noises' was an apt response. Perhaps it could be considered so, but wait a minute, it cannot be considered so because you gave no indication then what it was you were responding to.
 
You now state that this 'puerility' of yours was prompted by the much more puerile 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."
 
Now, with this, what you have called your 'nervous sounding noises' make some sense since you have explained what prompted them. I have no issue with that.
 
Though unconnected with this particular conversation thread that started with  what you have called your 'nervous sounding noises' you have now expressed some thoughts and references on "the issue of terrorists or terror or terrorism.". 
 
Very informative and educational. Thank you.
 
I fully agree with your 'Dear Kshmendra' point that 'in order to conclusively establish the identity of a person as a 'Terrorist' one has to follow a proper procedure.'
 
Nor do I disagree with your comment that "any claim or defense of any such claim which seeks to provide a technology which will help weed out terrorists seem ridiculous"
 
I would like to qualify that with my comment that at this point of time there is no credible technology that could in an irrefutable and unchallenged manner evidence what is on someones mind. 
 
Even the two 'support for investigation' procedures "tapping into the Mind" that are currently employed; Lie Detector Test; Truth Serum Brain Mapping although having been around for quite a few decades are still not generally acceptable as being sources for Legal Evidence. 
 
In the scenarios dealing with the issues of "terrorists or terror or terrorism" (even if at some point of time there were any such technology that could provide evidence from "Mind Mapping') there is the more important and critical predetermination to be made as to whether a particular act to start with can be designated at all as an 'act of terror'. As you rightly pointed out "  the term 'Terrorist' is a social construct".  
 
Kshmendra
 
  

--- On Sat, 4/11/09, Taha Mehmood <2tahamehmood at googlemail.com> wrote:

From: Taha Mehmood <2tahamehmood at googlemail.com>
Subject: Re: [Reader-list] What after MNIC? The MIND, the final frontier.
To: kshmendra2005 at yahoo.com, "reader-list" <reader-list at sarai.net>
Date: Saturday, April 11, 2009, 9:04 PM

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)
--- On Sat, 4/11/09, Kshmendra Kaul <kshmendra2005 at yahoo.com> wrote:
From: Kshmendra Kaul <kshmendra2005 at yahoo.com>
Subject: Re: [Reader-list] What after MNIC? The MIND, the final frontier.
To: "Taha Mehmood" <2tahamehmood at googlemail.com>
Cc: "reader-list" <reader-list at sarai.net>
Date: Saturday, April 11, 2009, 7:52 PM

Dear Taha
 
With this kind of a peurile response, you have only stripped off from
yourself the veneer of intellect and revealed yourself as quite a pathetic
character.
 
What is worse, your attempt at humour, even when accompanied by the use of
punctuating (and very nervous sounding) "lol" becomes all the more
bizzare when your (stand alone) post does not give any indication of what it
refers to.
 
Kshmendra


--- On Thu, 4/9/09, Taha Mehmood <2tahamehmood at googlemail.com> wrote:

From: Taha Mehmood <2tahamehmood at googlemail.com>
Subject: Re: [Reader-list] What after MNIC? The MIND, the final frontier.
To: kshmendra2005 at yahoo.com
Cc: "reader-list" <reader-list at sarai.net>
Date: Thursday, April 9, 2009, 9:22 PM

Dear Kshmendra

I think the only thing that comes to my mind is a  Hindi maxim which goes on
like this- Khisyani billi khamba noche!!! lol

Taha