Spotlight on the New Anti- Terror Laws

Guest Column by Dr Geeta Madhavan

(The views expressed are author’s own.)

Being among those who have been consistently speaking and writing about the need for a new and specific law to tackle terrorism in India, with the UPA government ( in the aftermath of the terrorist attacks in Mumbai ) successfully getting the two Bills — the Unlawful Activities (Prevention) Amendment Bill, 2008 and the other Bill to set up a National Investigation Agency passed in the Parliament , there should have been a sense of mitigation. That there has been a need for a special law to deal with the growing terrorist activity in the country and that the existing laws were insufficient to deal with the extraordinary nature of these violent act was not questionable, but how far the new Bills have really addressed the issues and concerns are subject to some deliberation.

Prior to the attacks in Mumbai , numerous attacks had occurred in several major cities in India : blasts had taken place in Delhi, in Bangalore ,in Jaipur and serial bomb blasts had shaken Ahmedabad . The UPA government after each of these incidents stated that there was no need for special laws and that the existing laws were adequate to tackle the terrorist threats as well as their activities. Emerging from lassitude subsequent to the cunningly executed Mumbai attacks and pummelled into action by the angst of the citizens, the UPA government changed its previous stance and plunged into activity hastily tabling two Bills in the Parliament – an amendment to the Unlawful Activities (Prevention) Act of 1967 and another to set up a National Investigative Agency. It has been evident that the UPA government did indeed have serious reservations to enact any law that contained provisions that could in any manner resemble the draconian measures that had existed in the repealed terrorist legislations : the Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities Prevention Act (TADA) . The abuse of several provisions of TADA and the gross misuse by some states to stymie opposition to the ruling political forces had been the underlying reason for repealing the extremely harsh Act. Past experiences under such laws, therefore, underlined the need for caution in enacting laws to counter terrorism. Although, I emphasised the raison d'être for newer and specific legislation to deal with the growing threat of terrorism and the spate of attacks on civilian targets , certain caveats were also proposed by me. However, on perusal of the Amendment to the Unlawful Activities ( Prevention) Amendment Bill 2008, the hope that finally a forceful and comprehensive law has come into effect to counter terrorism in India is followed by a sense of trepidation. No doubt alarmed by the intensity and the ferocity of the Mumbai attacks the political establishments of the country seem to have spoken with one voice against terrorism, yet the haste with which the Bills went through Parliament raises reasonable questions about the abandonment of detailed debates and proper scrutiny on the distinctions and the implications of the two Bills.

The Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987) was repealed in 1995. The Indian government introduced the Prevention of Terrorism Ordinance (POTO) on October 2001 and the legislature passed The Prevention of Terrorism Act (POTA) in March of 2002. Both the laws did result in gross abuse of human rights during their implementation and there is sufficient evidence to uphold these allegations. The laws had abhorrent features that violated fundamental freedoms enshrined in the Constitution of India. The two laws to deal with increasing terrorism in India were severely criticised as they violated human rights and vitiated the due process of law. The uproar in all sections of society led to them being consequently repealed. That they flouted the basic concepts of the legal system is irrefutable but they also did not have any perceivable effect in curbing or curtailing terrorist activities. They had several inherent flaws viz: 180 days detention was permitted without charges being framed; there was presumption of guilt of those subject to the law; there were summary trials and trials in absentia - all of which violated norms of equitable justice. The sketchy review procedure came under severe criticism. The gross misuse of the laws by the state machinery especially in Tamil Nadu, Gujarat and Maharashtra where the laws were used to quell political opposition or to settle personal scores, which is supported by statistics, occurred due to these and other factors. The texts of these laws were too broad and the term terrorism included almost everything. The generalised term covered ordinary criminal activities which were already covered by the penal laws of the country like theft and murder. The interlocutory orders of the Special Courts set up under the new laws could not be reviewed. Since the state governments had powers equal to the Central government under these laws there was erratic application of the laws at various times and application also varied from state to state.

In my earlier paper (http://www.southasiaanalysis.org/papers29/paper2846.html) about the need for a new law to tackle terrorism in India I had stated:

Terrorism is not a passing phenomenon and a new counter terrorism law is urgently required to deal with it effectively.

There still is no doubt in my mind about the veracity and relevance of that statement ; however, based on the evidence of the erroneous application of the earlier laws, there were suggestions to incorporate some rudimentary concepts in the enactment of a new law to tackle terrorism , which enactment I vehemently supported. I have reiterated those points from the earlier article below:

The new laws must, however, incorporate certain features that ensure that there can be no misuse by the enforcement machinery.

The primary concern is the rule of law. Laws are not to be enacted that in any manner operate outside the realm of rule of law.
The definition of terrorism has to be sufficiently narrowed to exclude criminal activities: if intention to terrorise is missing, mere criminal activity should not fall within the purview of the special law. Similarly, an act that would not be criminal but would be permissible under freedom of speech and expression should be deemed an act supporting terrorism if the intention is to garner support or is supportive of a proscribed organisation.
Witness protection would have to be incorporated under the new law to ensure greater co operation from fringe elements and sections of society aware of such organisations and their activities.
Another important aspect to be considered would be the uniform and consistent application of such law by the enforcement authority throughout India.
Transparency and review procedures would have to be clearly set out in the newly enacted law.
There should be a centralised system to prevent inconsistent application and interpretation of the law throughout the territory. Establishment of a central judicial agency for even application and uniform interpretation should be set up.
Special agencies should be set up so that the overburdened enforcement agency in the state is not required to handle the activities under the special law. Such agencies should also be sufficiently trained and sensitised about the application of the law.
Specific fund allocation by the government for the agencies that apply the law has to be made as part of the states serious intention to cub terrorism. No agency can function without proper infrastructure, manpower or technology.

I had further stated: This will address the fears that any law dealing with terrorism will abrogate human rights and will place all organisations with genuine concern for addressing social issues under the purview of the state agencies who will then use the laws to curb opponents and settle political scores. (http://www.southasiaanalysis.org/papers29/paper2846.html - 16 Sept. 2008)

In the light of the above observations it becomes absolutely essential to analyse how far these expectations have been fulfilled and whether the fears of a legislation seeking to counter terrorism becoming a probable tool for gross misuse by the state establishments have been allayed.

The first point made was that any law that comes into force must be within the rule of law. There had been great stress on this point by me that - Laws are not to be enacted that in any manner operate outside the realm of rule of law.

It is therefore disconcerting to note that the grimmest provision in the amending Bill is the one that sanctions the special courts to presume that the accused is guilty under certain circumstances. For instance, if it is proved that weapons and explosives used in a terror attack are seized from an accused or if his or her fingerprints are found on the site of the attack, then the court "shall presume, unless the contrary is shown, that the accused has committed such offence." The presumption of innocence, the primary bulwark of criminal jurisprudence and the basis of equitable justice placed for the fundamental protection for the person so accused, has been negated. Thus reversing the burden of proof undermines the credibility of the criminal justice system and raises serious questions of the inviolability of individual rights as affirmed by the Constitution.

The increase of the period for detention without charges from 90 to 180 days at the discretion of the court does not conceptually raise the possibility of conviction. The same provision under POTA was found to be abhorrent. If the period of enhanced detention is meant to act as a deterrent for perpetrators of violent terrorist activity it rests on the presumption that such persons have acted without thought to their actions. On the other hand, increased detention period presumes that the interrogating agencies will be able to gather more information and evidence with the passage of time. However, the increase in the period without charges lends itself to overall abuse as has been reported in innumerable instances under the earlier laws - here, as well as in other in other countries where such laws are or have been in use.

The provisions for bail under the amending Bill have been made rigid; the courts may deny bail when they feel the charges against the accused are prima facie true – thus the entire issue of bail which was within the purview of ordinary criminal law has been made rigorous. The amending Bill to this extent seems to have duplicated the provisions that existed under POTA. Further bail can also be denied if the court feels that the charges against the accused are prima facie true. Besides, foreign nationals who have entered the country illegally and are being accused under this law shall be denied bail. There are some provisons that are not only noteworthy but also desirable. The provision denying bail: "except in very exceptional circumstances and for reasons to be recorded in writing" is significant as it allows indefinite detention of those who perpetrate terror attacks as the one in Mumbai. It must be noted that the schedule of banned outfits can also be expanded under the Act to include all organisations proscribed from time to time by the UN under the UN Prevention and Suppression of Terrorism Order, 2007. Also under the Act the entry or transit through India of proscribed individual terrorists can also be banned.

The Unlawful Activities (Prevention) Amendment Bill has certain other features that have to be deliberated.

First, the definition of terrorism has been adopted from the resolution passed by the United Nations which has now been universally accepted. The working definition is broadly the adaptation of the description of the UN panel in 2005: any act "intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act." The Act extends the definition of a terror act to include attacks on a public functionary and kidnapping or abduction of a person with a view to compelling the state to do or abstain from any act. The definition of a "terrorist act" has been further expanded in the Bill to include terror funding, organisation of terrorist camps and recruitment of people for committing terrorist acts. The Bill also provides the power to freeze, seize or attach funds and other financial assets of individuals or entities listed as terrorists and those who are suspected to be involved in terrorism. The investigating officer has been authorized under the Act to seize credit cards and debit cards if he is satisfied that they are being used to fund terror. Widening the ambit thus allows for dealing with the financial and logistic aspects of terrorism and does not confine the term to merely the actual violent acts of terror. These significant changes are acceptable but the broadening of the definition to include in the definition of terrorism militancy, insurgency and Naxal extremism should have been subjected to proper discussion to prevent subversion of those terms later for all activities conducted in opposition to the political establishment at some later date.

Secondly, a redeeming feature that has been incorporated is the check placed on the power of the police to misuse the law: after the investigation is complete, an agency set up by the Centre or the State Government would decide whether the accused should be prosecuted. The law also provides for an independent judicial review board before the commencement of prosecution for the purpose of scrutiny. The question, however, remains open whether this will really lead to uniform and consistent application of such law by the enforcement authority and consistent application and interpretation of the law throughout the territory.

Thirdly, it is stated that it would be punishable for anyone either in India or abroad to directly or indirectly raise or collect funds for commission of terrorist acts. The amendment to Section 17 says that such a person would be punishable with imprisonment for a minimum of five years and maximum of a life term. This should effectively deal with the illegal financial activities but there are terrorist organisations that through legitimate business generate and raise funds for their activities. To what extent such legitimate business activities can be brought under the scope of this provision is to be seen.

Fourthly, despite pressures from other parties, the UPA has not acceded to the demand that confessions to the police be admissible as evidence. This has allayed the fears that the enforcement machinery would use all impermissible means to obtain confessions. The organisation to be set up under the new Bill, the National Investigation Agency has been given the power to investigate and prosecute offences affecting the sovereignty, security and integrity of India. . How far have the investigative agencies been empowered to monitor organisations suspected of or capable of terrorist activities and whether the leaders and other leading members of such organisations will be placed under constant or intermittent surveillance as they already pose threats or are capable of doing so , is also not clear. There is a need to permit admissibility of electronic and other evidence obtained during such surveillances. Whether this can be permitted is also a matter for discussion.

This Bill also envisages the setting up of special courts to fast track the criminal justice delivery system. This is a measure that needed to be taken to set aside interminable delay in the existing system of protracted judicial procedures.

The hope is that the counter terrorism measures taken will strengthen the police, the interrogation agencies and the intelligence agencies sufficiently without creating any fear that there will be misuse of powers invested in them. However, certain features that would have complemented the tenability of new laws seem to have been overlooked viz. witness protection, transparency and review procedures and central judicial agency for even application and uniform interpretation of laws. Galvanized laws cannot eliminate terrorism but without a legal system to pre-empt and counter the threat of terrorism and laws to deal with persons who commit terrorist acts or seek to do so and those who instigate , provoke and support such acts the security of society and the nation will be constantly threatened. The Bills have been passed by the Parliament more to appease those who have accused the state of being soft on terrorism and to placate those who have exhibited anger towards the entire political establishment of the country than as a positive step to curbing terrorism and in that perhaps lies the inherent weakness of the legislation which aspires to address the new threats and yet imitates to some extent the earlier ones.

(Dr. Geeta Madhavan is an analyst working in areas related to international security and Terrorism. She can be reached at: geeta.madhavan@gmail.com)