Getting tough

Mediapersons at the Taj Mahal hotel on November 29.-PTI

INDIA has never before witnessed such a grossly excessive, malign and toxic role of a media gone berserk in shaping the state response to a major event as it did during the coverage of the Mumbai attacks and their aftermath. The main features of the coverage stand out unmistakably: hysterically irresponsible reporting on the tragedy, premature disclosures that forewarn the attackers and hamper police action, loutishly strident exhortations to wage war on Pakistan (E nough is Enough! being the most sober slogan), and the use of brainless celebrities to promote viciously communal, militaristic and bellicose agendas in place of sober and thoughtful reflection on the sombre developments.

The impact of the early Indian media coverage of Mumbai was electric in Pakistan. It instantly united large numbers behind the government, in particular the Army, and set the tone for an equally partisan role on the part of the Pakistani media. The media in the two countries are now substituting for politics and genuine public debate to ensure that their peoples view each other through the prism of hostility. It is as if the peace process never happened and the two decades spent in building a cross-border citizen-to-citizen dialogue had gone waste.

The United Progressive Alliance (UPA) government continues to be disproportionately influenced by our media, especially the electronic media, which now leads much of the print media by the nose. While the UPA has not allowed its external agenda to be wholly dominated by media propaganda in favour of a hard line towards Pakistan, domestically, it has capitulated to right-wing campaigns for what might be called a comprehensive new super-tough national anti-terror regime, comprising beefed-up security, new agencies, force modernisation, bloated military and paramilitary budgets, and new laws that give the government arbitrary powers to intrude into the citizens life and violate his or her fundamental rights with impunity. The media is also engaged in providing an ideological rationalisation for the new anti-terror order.

This media campaign has combined with Bharatiya Janata Party (BJP) pressure on the UPA and forced it to adopt a macho, national-chauvinist, to-hell-with-civil-liberties stance to show that it has the will to fight terrorism. This explains the deplorable haste with which it pushed through, virtually without debate, two tough laws pertaining to counter-terrorism, which erode Indias federal governance structure and seriously infringe the citizens liberties.

The National Investigation Agency (NIA) Act establishes a new organisation to investigate acts of terrorism and also offences related to atomic energy, aviation, maritime transport, sedition, weapons of mass destruction, and left-wing extremism. Significantly, it excludes right-wing extremism of the Hindutva variety, which has taken a far higher toll in India than left-wing naxalism. It is unclear whether the NIA will secure the cooperation of other existing agencies or face turf battles and sabotage. Unlike the Central Bureau of Investigation (CBI), which needs the consent of a State government before investigating crimes there, the NIA will supersede State agencies. This is a serious intrusion into the federal system. The NIA, and the special courts set up under the Act, will be vulnerable to political manipulation and abuse by the Centre.

The second law, the Unlawful Activities (Prevention) Amendment Act (UAPA), radically changes criminal procedures, extends periods of police custody and detention without charges, denies bail to foreigners and reverses the burden of proof in many instances. The Act will turn India into a virtual police state. It brings back the discredited Prevention of Terrorism Act (POTA), except for admitting confessions made to a police officer as evidence.

The UPA abrogated POTA in 2004 in response to innumerable complaints of abuse against Muslims and application to offences not connected with terrorism. But it retained all other tough laws and amended the UAPA to increase punishment for terrorism and harbouring/financing terrorists, make communications intercepts admissible as evidence and increase detention without charges to 90 days from 30 days. Despite numerous recent terrorist attacks, the UPA firmly rejected the BJPs demand that POTA be re-enacted. But now, it has shamefully caved in to the demand with an eye on the general elections.

The UAPA contains a range of draconian clauses, including a redefinition of terrorism, harsh punishment such as life sentence or death, long periods of detention and presumption of guilt in many cases. The redefinition includes acts done with the intent to threaten or likely to threaten Indias unity, integrity or sovereignty.

Under this catch-all provision, the police can arrest, search and seize the property of anyone whom they have reason to believe from personal knowledge, or any information by any person or any articles or any other thing... are involved in such acts. Even rumours and baseless suspicion fit this description. Also covered are attempts to kidnap constitutional and other functionaries listed by the government. The list is endless.

Under the Act, an accused can be held in police custody for 30 days, and detained without charges for 180 days. This is a travesty of constitutional rights. Even worse is the presumption of guilt in case there is a recovery of arms, explosives and substances of a similar nature, suspected to be involved in the acts. The police routinely plant arms and explosives and create a false record of recovery. The punishment ranges from three or five years to life imprisonment. This shows the government has not applied its mind.

Under the Act, there is a general obligation to disclose all information that a police officer thinks might be relevant. Failure to disclose information can lead to imprisonment for three years. Journalists, lawyers, doctors and friends are not exempt from this sweeping provision, which presumes guilt on mere suspicion.

Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals and to all others if a prima facie case exists on the basis of a first information report by the police.

POTA and its predecessor, the Terrorist and Disruptive Activities (Prevention) Act (TADA), were extensively abused. They targeted the religious minorities, specifically Muslims. Some 67,000 people were arrested under TADA, but only 8,000 were put on trial, and just 725 were convicted. Official TADA Review Committees found its application untenable in all but 5,000 cases.

The two new laws will increase Muslim alienation from the Indian state given that they are the principal victims of Indias recent anti-terrorism strategy. Many Muslims are also pained at the alacrity with which the laws were passed in contrast with the UPAs failure to enact the promised law to punish communal violence.

A draconian law with nasty political consequences is bad enough. What we are now witnessing is worse. This is Indias slide towards a national security state, one which obsessively pursues militaristic approaches to all conflicts and social problems and whose guardians derive their legitimacy from security- and military-based criteria and the creation and maintenance of a permanent state of fear, which would allow all manner of draconian measures to be rationalised.

Pakistan and Israel are relatively evolved national security states. The United States has long had many national security state characteristics, which were further strengthened after September 2001. All national security states try to achieve security for their citizens by citing a real or imagined enemy, to combat whom it is necessary to use Gestapo-style methods, occupy foreign territory or impose the most repugnant restrictions on the movement of those (Palestinians) viewed with suspicion and presumed to be pro-terrorist unless proved otherwise.

The UPA must rethink and reject the national security state idea. Equally, it must reform and refine its external approach, in particular its strategy to get Pakistan to act decisively against terrorist groups based on its soil. Early on, the government rightly made distinctions between four different actors in Pakistan the civilian government, the Army, the Inter-Services Intelligence (ISI) and the militants and decided to act in ways that would support moderate forces and isolate extremists.

However, in recent official statements and briefings, these distinctions have been eroded, and in the concern to signal that the military option is not closed, there is an emphasis on the culpability of Pakistans state actors, without citing adequate reasons for it.

If India is to reach out to and build alliances with moderate opinion in Pakistan, it must modify its approach and use bilateral and multilateral diplomacy creatively. This will undoubtedly entail accepting Pakistans offer of intelligence-sharing and joint investigation into the Mumbai attacks.

Surely, Indian police agencies have now gathered enough evidence to feel reassured that sharing it with Pakistan will not lead to a sabotage of the investigations. It is absurd to share the evidence with U.S. and British agencies but refuse to share it with Pakistan. That would be the best way of tying Pakistan into a co-binding relationship and getting it to accept its responsibility to go after the networks involved in the Mumbai attack, itself a grave crime against civilians on Indian soil.