Old wine in a new bottle?

Print edition : October 27, 2001

If Parliament fails to endorse the Prevention of Terrorism Ordinance, that will only encourage further militant adventurism in the country.

EVEN as the American offensive in Afgha-nistan continues unabated and the fear of bio-terrorism in the form of anthrax stalks Washington and New York streets, a high-voltage debate in Parliament on how to tackle terrorism in India seems very much on the cards. The focus of attention is going to be not on any lack of preparedness on the part of the government or any poverty of imagination in its foreign policy initiatives to cope with the current dynamics. Ironically, a lot of heat is likely to be generated in Parliament on the pros and cons of the Prevention of Terrorism Ordinance (POTO) approved recently by the Union Cabinet.

I am not for a moment questioning the need for a debate. A collision of ideas precedent to arriving at a consensus is certainly the hallmark of a vibrant democracy. What is agonising is the belief that we may get dreadfully distracted from our priorities at this crucial moment. The savage militant attack on October 1 on the Jammu and Kashmir Assembly premises - denounced even by the normally slow-to-react U.S. State Department - and the open uninhibited support to the "freedom struggle" in Kashmir by the Al Qaeda should be sufficient to highlight the gravity of the situation and the wisdom of guarding ourselves against any dissipation of energies. We should take a leaf out of the U.S. example of the Democrats falling solidly behind the Republican administration in the aftermath of September 11, notwithstanding their serious reservations over Bush's ability to take the nation forward. This is a profile of striking political maturity and sagacity, which does not excite many in our polity.

The Central government is being faulted for the timing of the ordinance. But we should remember that this is no sudden spark of genius. It is also difficult to look upon it as the product of any political machination aimed at boosting the government's image. It is an entirely different matter if this incidentally helps to project the impression that what we have now in New Delhi is a strong and decisive government that will go hammer and tongs at the terrorist. The government had been exploring for quite some time ways and means of filling the vacuum caused by the extinction of the exceedingly controversial Terrorist and Disruptive Activities (Prevention) Act, or TADA, of 1987. A draft Criminal Law Amendment Bill had been floating around for years as a TADA substitute and being discussed without any finality. It was plagued by sharp differences on a fundamental question: do we need any new legislation at all in the light of the TADA experience?

Against this scenario came the U.S. holocaust. Even the dumbest observer of the scene knows that September 11 has serious implications for us. The Islamic fundamentalist is sore at our firm adherence to the Kashmir policy and the phenomenon of Hindu-Muslim coexistence under the roof of a single nation. He definitely wants to hit us, hit rather badly. This being so, if we did not respond in the manner in which the Vajpayee government has, we could be in serious trouble. The shelling of some Pakistani border posts and bunkers across the Line of Control (LoC) in Jammu and Kashmir a few days ago by the Indian Army, in a remarkable and uncharacteristic show of strength and aggression, possibly sets the tone for our immediate agenda. We cannot handle the situation with kid gloves. We need to send the message across that we mean business. POTO apparently fits in with this scheme of things.

According to one report, the ordinance - yet to be promulgated as I write this column - will be on the lines suggested by the Law Commission in its 173rd report, which conceded the need for appropriate legislation to combat terrorism. Government sources claim that there will be enough safeguards in the POTO against any misuse of powers by law enforcement agencies. In particular, the views of human rights organisations will be taken into account, in the light of the strident criticism against the way TADA was employed. For instance, an FIR drawn against an individual under the ordinance will have to be reviewed and confirmed by the Director-General of Police within 10 days. The case will have to go before a Review Committee for similar ratification within a month. What could provoke the detractors of the government move is the provision that a confession made before a police officer of the rank of Superintendent of Police will be admissible in evidence under POTO, unlike other confessions, which are hit by Section 25 of the Indian Evidence Act. Further ammunition comes from the penalty contemplated against those who suppress information regarding terrorist acts or who cause disruption of essential services. The press is particularly incensed over this, and rightly so because the authorities could do some arm-twisting to extract information from them in order to identify the source from which such information had been received.

A car in flames in Srinagar on October 1 after a car bomb exploded outside the Jammu and Kashmir Assembly building.-SAJJAD HUSSAIN/AFP

The fears about POTO are necessarily to be evaluated against our experience with TADA. The rate of conviction of persons hauled up under TADA was miserably low, pinpointing police inefficiency and arbitrariness. In this context it is pointed out how even a notorious terrorist like Ahmed Omar Saeed Sheikh, a principal link between the IC 814 hijack of Dece-mber 25, 1999, and the September 11 attacks, was acquitted by a Special Court under TADA in 1998 after the police had failed to prove his association with the Harkat-ul-Ansar. There have been other equally shocking acquittals elsewhere in the country, raising serious doubts about TADA's effectiveness. Also relevant are proved and unproved accusations of bias and settling of scores by the political party in power and the police in specific instances.

Critics of special legislative measures against terrorists hold the view that the benefits accruing from such measures are too insignificant to justify the loss of liberty suffered by the law-abiding citizen. This is the crux of the debate that has been raging in the U.S. as well in the context of enhanced powers sought by the Attorney-General. I firmly believe that the effort to gauge the gains of such legislation through a merely statistical approach is preposterous. I concede that there were many more prosecutions under TADA than were warranted, especially in Gujarat, and this was the undoing of a reasonably conceived law whose constitutional validity had in fact been upheld by the Supreme Court.

The impact of laws such as TADA is more on prevention than on detection. It will be unfair to go merely by statistics of failures in court. We will never know, even in a setting of high terrorist crime, how many offences have in fact been deterred by the greater discretion and freedom of field operations that the police enjoy under enactments such as POTO. The Maharashtra Control of Organised Crime Act (MCOC), which at the State level remarkably filled the breach caused by the expiry of TADA, is often cited as one piece of legislation that permits the police to act freely without committing any gross abuse of authority. I will not be surprised if the Centre has drawn inspiration from the MCOC Act while drafting POTO. We have reasonable safety mechanisms such as the National Human Rights Commission (NHRC) and an aggressive media, which should play the watchdog in respect of POTO. But before all this, how sanguine are we that the POTO will pass muster with Parliament? The Congress and the Left parties have already served notice on the government. If POTO does not meet with Parliament's endorsement, I will be terribly disappointed because a reverse for the government here will only promote further militant misadventure. In such a scenario, several stern measures in the past few weeks, such as the ban on the Students Islamic Movement of India (SIMI) and the proposed amendment to the Indian Passports Act, 1967, permitting an authorised officer to impound or cancel passports for a period of four weeks - a measure possibly intended to prevent mischievous individuals from going abroad to indulge in anti-national activities - will prove comical.

Against this backdrop, the signing of a Mutual Assistance Treaty with the U.S. in matters of crime during the recent visit to New Delhi by Secretary of State Colin Powell could not have been better timed. Not that such assistance had been lacking. We have had positive help in the matter of some Sikh militants who had sought American sanctuary using various stratagems. The treaty only serves to formalise an ongoing exercise. But the euphoria generated by such a visible demonstration of goodwill should not blind us to the tortuous legal processes that stymie the handing over of accused persons or the transfer of valuable evidence.

My own experience in the Central Bureau of Investigation (CBI) has been one of frustrating delays between countries which otherwise maintain the utmost cordiality. It is a pity that the Interpol has more often than not been a passive spectator, not because it is unwilling to help but because its dismaying lack of authority has been a damper. Member-countries under obligation to execute red-corner notices issued by this agency for the detention and arrest of wanted criminals found in their territory have disregarded such notices with impunity. It is this ludicrous situation that permits the likes of Dawood Ibrahim, wanted in the Bombay blast case, to move about freely in climes of their choice. International cooperation in tackling terror has thus been tardy, and in some cases non-existent.

I am happy that a distinguished former policeman, Prakash Singh, who served the Uttar Pradesh Police, the Intelligence Bureau and the Border Security Force with great distinction, has now chosen to put down his thoughts on the terrorist movement in different parts of the country. Kohima to Punjab (Rupa 2001) is an absorbing account of how counter-insurgency operations are often set at naught by a wide spectrum of factors, including, I believe, a lack of political will. Prakash Singh deserves to be read with some seriousness for the lessons we need to learn at this hour of crisis.

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