Dr. Rajkumar Singh
India’s record in anti-terror laws and its combating has been far from satisfaction, to say the least. In general, people feel that we have not given enough thought to improving our methods of dealing with terrorism. Our methods will have to be radically improved. The laws are lax, judicial responsibility is absent, police knowledge of criminals is inadequate, preventive action is almost nil, computerization of information is not fully developed, the watch on suspicious strangers is negligible, and growth of slums has made it difficult to spot terrorist hiding there. The availability of weapons is almost unchecked because our traps for them are never laid continuously (Rustamji, 1999). However, the anti-terror laws, no matter how harsh they are, cannot by themselves prevent terrorist attacks; they can help in the successful investigation and prosecution of cases against terrorist and those who aid and abet terrorist acts (Menon, 2009). A popular criticism of these laws has been based more on the manner in which they are implemented than on any modifications in the laws and procedures. Had the regular criminal justice system performed its task with reasonable results, there would have been no need for special laws or institutions to deal with terrorist acts.
Indian strategic response to terrorism has been a delicate blending of the hard and soft power of the state which at times, invites snide comments like a democracy that has room even for violence. Besides safeguarding national security interests, Indian response has been conditioned by its democratic polity; need to accommodate communal sensitivities and safety of its citizens. The global and regional settings, the complexity of relations with neighboring countries and international obligations on the terrorist front have also influenced the response (Doval, 2007). Some analysts also say that the anti-terror laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of the law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications. The problem lies with the implementation of laws and the abuse of powers conferred on the authorities under the special laws.
Terrorism has immensely affected India. The Indian Supreme Court took a note of it in Kartar Singh vs. the State of Punjab in 1994 and observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with a bloodbath, firing, looting, the mad killing of women and children and reducing those areas into a graveyard, whose brutal atrocities have rocked and shocked the whole nation. Deplorably, determined youths lured by hard-core criminals and underground extremists attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.
The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. Islamic terrorism in India is essential for an imported variety. The manpower, weapons, finances, ideological motivation and plans that go in terrorist actions largely have its origin in its neighborhood. The terror has affected not only Kashmir, Punjab, Mumbai, Delhi but other regions of the country and the North East. We have had an insurgency in the North East for more than 50 years; where the draconian Armed Forces Special Powers Act has been in force for the last 50 years. It would seem that the insurgency has hardly waned; despite “tough” military response by the state. Political initiatives to placate the disaffected people have been slightly more successful (Verma, 2008). Ethnic unrest and rebel violence have been major Indian security concerns since the Chinese-aided Naga and Mizo separatist insurgencies flared in the 1960s (Weiner, 1978). Terrorism covered a large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh, and Jharkhand right up to the Nepal border. We had insurgency and terrorism in Tamil Nadu. We lost two of our former prime ministers to this kind of terrorism.
Regarding our sovereignty, unity and integrity and our feeling of nationalism, terrorism strikes at each one of them. This is the enormity of the problem that we are addressing. It is a sad reality that crime in India has become a low-risk business. It is a high-profit business with a 93% probability that you can commit a hard crime and get away with it. In that kind of situation it becomes necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit brought to book and does not go scot-free just because of the loopholes and lacunae in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India and can have such stringent laws why cannot we have such laws. The criminal justice system is not designed to deal with the types of heinous crimes that have appeared in our country in the last 60 years. As a temporary measure, the country needs special laws that empower the government to combat terrorism. Hard crimes and soft justice cannot co-exist for long if security is desired.
Laws in Independent India
The Independent India enacted a series of laws to deal with terrorism and terrorist activities. The first law made in this regard was the Unlawful Activities (Prevention) Act 1967. It followed the National Security Act 1980, Terrorist and Disruptive Activities (Prevention) Act,1987 (TADA), the Maharashtra Control of Organized Crime Act (MCOCA) in 1999, Prevention of Terrorist Act (POTA), 2002 amended Act of the Unlawful Activities (Prevention) Amendment Act, 2004 and the National Investigation Agency (NIA) Act 2008. The Unlawful Activities (Prevention) Act (UAPA) was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party affiliation, insisted that its ambit is so limited that the right to association remained unaffected and the executive did not expose political parties to intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication of a tribunal, control of funds and places of work of unlawful associations, penalties for their members, etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution. It came into force on 30 December 1967.
The National Security Act of 1980 was enacted to check terrorism in India, while the Terrorist and Disruptive Activities (Prevention) Act, 1987, was the second major act came into force on 3 September 1987. This act had much more stringent provisions than the UAPA, and it was specifically designed to deal with terrorist activities in India. When TADA was enacted, it came to be challenged before the apex court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good. However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. Another major anti-terrorist law in India is the Maharashtra Control of Organized Crime Act, 1999 which was enforced on 24th April 1999. This law was specifically made to deal with rising organized crime in Maharashtra and especially in Mumbai due to the underworld. The MCOCA, in the definition of a terrorist act, is far more stretchable than the POTA. For instance, POTA did not take note of organized crime as such while MCOCA not only mentions that but, what is more, includes promotion of insurgency as a terrorist act. Again, the onus to prove a person guilty under POTA lies on the prosecution while under the Maharashtra law a person is presumed guilty unless he can prove his innocence.
The constitutional validity of the prevention of the Terrorist Act, 2002 was challenged in the apex court of the country and the case of People’s Union for Civil Liberties vs. Union of India (2004) the court said that the Parliament possesses power under Article 248 and entry 97 of the list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same. Once the legislation is passed, the government had an obligation to exercise all available options to prevent terrorism within the bounds of the constitution. However since its making the POTA remained controversial in and outside the judiciary. Finally, on 17 September 2004 the Union Cabinet in keeping with the United Progressive Alliance (UPA) government’s Common Minimum Program, approved ordinances to repeal the POTA and amended the Unlawful Activities (Prevention) Act, 1967. By the promulgation of Ordinance No. I of 2004, it repealed POTA, a law specially designed to deal with the menace of terrorism with its repeal; the state apparatus combating terrorism has been debilitated.
The Unlawful Activities (Prevention) Amendment Act 2004 was promulgated by Ordinance No.2. By this virtually all the penal provisions of POTA concerning terrorist organizations and activities were transferred to the pre-existing milder sounding Unlawful Activities (Prevention) Act 1967. In the said Ordinance the definition of unlawful association has also been expanded to include any association which has for its object any activity which is punishable under section 153 An of the Indian Penal Code, or which encourages or aids persons to undertake any such activity or of which the members undertake any such activity. Section 153 A is about promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorist may roam free under the bail a rule, jail an exception dictum, but all terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act.
The Amendment Act of 2004, as reported by The Indian Express UAPA is more draconian than POTA when it comes to the admissibility of evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given more scope than before to plant evidence in the form of interception. In a nutshell, the new law has retained all the operational teeth of POTA or it has made an only cosmetic change. The difference between POTA and UAPA is substantial even as a lot of provisions are in common. In addition the new Act has also defined the word terrorist act, ‘whoever’ with intention to threaten the unity integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite, other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or many other substances of hazardous nature, in such a manner to cause, or likely to cause, death of, injuries to any person or persons or loss of, or damage to, or destruction of any property or equipment used or intended to be used for the defense of India, or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act as Section 15 of the new law. Likewise provisions regarding death or imprisonment for life, and offenses, punishment have also been incorporated in it.
But gradually, as terror attacks went on the rise in different parts of the country it was felt that timely, accurate intelligence and current databases on terrorist elements are essential to evolve strategies to counter terrorist activities. In the direction the most important change brought about recently is in respect of streamlining the investigation and prosecution of terrorist offenses at the Central level. Under an Act of 2008, the National Investigation Agency (NIA) was established for effective handling of terrorism-related offenses. Parliament passed the law with near unanimity, which indicated the willingness of different political parties ruling the States to enable the Centre to act on the issue. Combating terrorism is a joint responsibility of Central, State, and local governments. The NIA Act envisages Centre-State partnership in the investigation of terrorist cases but includes the offenses against the state and offenses relating to currency and bank notes in the scheduled offenses for NIA responsibility.
At the same time, the second piece of legislation-the Unlawful Activities (Prevention) Amendment Act 2008 was also passed that makes some substantive and procedural changes to empower the NIA to act effectively and decisively on terrorism-related activities. Under the passed law, the power of the police to arrest and search have been tightened. Sections 43 A to 43 F have been substituted with provisions that enlarge the power to search any premises and arrest any person about whom such an officer knows or who the officer has reason to believe as a design to commit an offense covered under the Act. The provision of anticipatory bail (Section 438) does not apply to offenses under the Act. Also the new law is more significant for the procedural modifications brought about than for any substantive changes that are attempted. Section 43 E introduces the principle of presumption of guilt in respect of a terrorist act when arms, explosives or other substances specified in section 15 are recovered from the possession of the accused, and there is a reason to believe that substances of a similar nature were used in the commission of the offense. Similarly, the presumption is raised when fingerprints or any other suggestive evidence involving the accused is found at the site of an offense. Finally, the Act empowers the Central government to freeze, seize or attach the financial assets of those engaged in or suspected to be involved in terrorism. These are strong measures if imaginatively and responsively employed in combating terrorism. Legitimate power is to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies.
Terrorism and Regional Co-operation
With each passing day, the issue of terrorism is becoming the biggest existentialist challenge for the countries of the world. As a general rule, the external support is often found in every operation of terrorist acts in any part of the globe whether in the context of interconnection between a group and its rival group, a group, and its enemy state, or a state and its unfriendly state. Combating terrorism at the regional level is becoming effective and popular. In the spirit of regional cooperation every state is supposed to refrain from organizing, instigating, assisting or participating in acts of civil strife on terrorist acts in another state or involved in organized activities within its territory directed towards the commission of such acts as well as prosecuting and punishing the perpetrators of terrorist acts.
The vexed issue of combating terrorism through effective regional cooperation was raised at the 4th meeting of South Asian Association for Regional Cooperation (SAARC) Interior/Home Ministers held in Thimpu (Bhutan) on 23rd July 2011. Addressing the gathering P. Chidambaram, India’s Minister of Home, without naming Pakistan, said, ‘As long as the territory of a country is used by non-state actors to prepare for terror attacks, that country owes a legal and moral responsibility to its neighbors and the world to suppress those non-state actors and bring them to justice. We have no alternative but to deploy the best instruments and resources at our disposal in our fight against terrorism (The Hindu, 20 July 2011). In the meeting, he emphasized the need for examining the existing mechanisms for countering terrorism, drug trafficking, trafficking in human beings, arms smuggling and counterfeiting, including organized production and distribution of fake Indian currency notes. He termed the terrorism as the most significant existential challenge to peace and security in South Asia and said that it was the single largest hindrance to socio-economic development in the region. He added further that the threat of terrorism, which was a common challenge in the region, could be tackled only with the fullest cooperation amongst the member-nations of the SAARC. The 3rd Conference of the Home Ministers of SAARC countries was held in Islamabad in June 2010 where too the member nations agreed on the broad contours of cooperation to combat terrorism. As early in 1987, the South Asian countries recognized the importance of combating terrorism at the regional level and consequently, signed a Convention titled the “Convention on Suppression of Terrorism 1987” and ratified it.
Conclusion and Pathways
As one of the world’s major victims of terrorism, India needs to be in the vanguard, not in the margin of combating the menace. In this context to analyses the best strategy to mitigate the risk of terror strikes, we would look at the past success and failure of anti-terror measures. Success is when the state has managed to degrade the capacity of the concerned terrorists regarding weapons, strike capability, viciousness, anger, desperation, etc. over the years. While failure is defined by a steady and unrelenting up gradation of the capacity of the terrorists regarding weapons, strike capability, viciousness, anger, desperation, etc. over the years. In India when we look at success-is the Khalistani terror of the 1980s and the Naxalite terror in West Bengal and Kerala of the 1960s, which no longer pose a great threat to the security of the country. At best the twin policy of the time led to this success which included;
Tough action against violence helped with strong intelligence;
Deliberate efforts not to demonize any group of people., and
Helped by measures to identify and address root grievances.
On the other hand, there are regions and places in India where the terror has refused to go away even if this is temporarily subdued from time to time. In those areas, there is still constant and continuing threat of terror strikes with the result that the anti-terror apparatus and infrastructure cannot be sealed down, where the terrorists have become more sophisticated and organized over the years. This happened today when, apart from dozens of designated custodians of national security, such as Prime Ministers, Home Ministers, Directors of the Intelligence Bureau and Chiefs of the Research and Analysis Wing (RAW), we have had any number of well-meaning, intelligent, dedicated, and committed men in various security outfits who must have had the occasion and opportunity to introduce new ideas in dealing with threats from professional terror-vendors (Khare, 2007). It is a sad state of affairs that even today we are far from having a national strategy that would mobilize our collective resources and energy to protect ourselves.
In the final analysis, what is crucial in any anti-terrorist strategy or measure is proportion, discrimination, balance, and efficacy. Indian political system established following the independence of the country has failed in introducing conditions, habits, and thinking to equip ourselves to deal effectively with the trouble makers. On the issue of combating terrorism, the divided political leadership in India is unable to infuse a sense of purpose in security agencies to move beyond their routine bureaucratic turf battles. They are also not prepared to recognize the imperative of pooling in a meaningful way the vast resources, national and state level, in a centralized force dedicated to fighting terror. The time for argument is over.
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