Reign of terror

Anti-terror laws such as TADA and POTA are erroneously associated with a strong state.

EVERY terrorist act resulting in the death of innocent people is followed by a political diatribe against the attributes of a soft state which repeatedly invite such horrific crimes by secessionist forces within the country and outside. One such attri bute, according to the opposition Bharatiya Janata Party and its friends, is the failure and refusal of the United Progressive Alliance government at the Centre to create and sustain an effective legal regime to contain and apprehend potential terrorists.

However, it is naive to assume that laws alone can deter a potential terrorist, as a terrorists aim is to create terror and disaffection among the people, irrespective of the consequences to self, in terms of retribution by the state. The function of the laws, therefore, has to be seen in terms of their assistance in investigation and trial of terrorist crimes and conviction of those found guilty of committing those crimes.

Through the meticulous study of several cases of terrorist crimes, their investigation, trial and convictions, Ujjwal Kumar Singh demonstrates in his book The State, Democracy and Anti-Terror Laws in India that extraordinary laws as distinct from ordinary laws, which are applicable to all the crimes irrespective of whether terrorist or not are erroneously associated with a strong state.

He finds it a paradox that such extraordinary laws, which mark a departure from the universally recognised principles of criminal jurisprudence, are justified as being indispensable for democracy. As the author discovered in his study of the use of the Prevention of Terrorism Act (POTA), the state tends to use such laws as political instruments, thus eroding the basic principles of the rule of law.

To begin with, the author poses the question: What makes laws like TADA [Terrorist and Disruptive Activities (Prevention) Act, 1985] and POTA, 2002, extraordinary? While TADA was allowed to lapse in 1995, POTA was repealed in 2004. These laws, according to the author, were born out of the need to respond to specific problems of extraordinary nature. Therefore, the lives of these laws were coterminous with the extraordinary events they intended to overturn, and were constitutive of an extraordinary provisions pertaining to arrest, detention, investigation, evidence, trial and punishment.

Providing a historical context to the current debate on anti-terror laws, the author recalls that Home Minister Sardar Vallabhbhai Patel spent sleepless nights after introducing in 1950 the Preventive Detention Act (PDA), a measure that was repugnant to the ideal of free and democratic government. (The first extraordinary detention law after the Constitution was enforced in 1950, the PDA was used against the communists in Telangana.) His anxiety was resolved by his conviction that the curtailment of the liberties of a few did not matter.

Such historical nuggets of information enliven this book. In 1951, when the PDA was extended for another year, C. Rajagopalachari, who became the Home Minister after Sardar Patels death, advocated rigorous implementation of the Act against mischievous and violent elements. This included an assorted group of fanatical communists, blackmarketeers, and communalists. The government kept on extending the PDA up to December 31, 1969, with the Act becoming a normal feature of Indian political life even though the number of persons being detained under it declined substantially.

The author suggests that since the 1960s, through the Defence of India Rules, the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA), the repeatedly articulated concern with national security involved a simultaneous alienation of entire groups of people from the national mainstream.

TADA was introduced in 1985 with the primary purpose of curbing the movement for Khalistan. At the time of its introduction, the Act was meant to be a temporary measure for two years. It was, however, extended four times every two years, the last being the two-year extension in 1993. It is significant that by now TADA became so routine and so much part of the ordinary that only eight Members of Parliament (excluding the Minister presenting/defending the Bill) participated in the discussion, which lasted merely an hour and ten minutes.

Extraordinary laws come with the provision that the expiry of the law shall not affect any investigation, legal proceeding, etc. that may have been initiated when the Act was still in force, which shall continue as if this Act has not expired. As the author remarks, the experience with TADA has shown that the provision of continuation after expiry imparts a prolonged life after death to the Act. Cases under TADA continue to be tried in various designated courts and the Supreme Court several years after its expiry.

Article 20(3) of the Constitution of India declares that no person accused of any offence shall be compelled to be a witness against himself. The author says that both TADA and POTA, however, allowed certain confessions made to police officers to be taken into consideration, making a departure thereby from the ordinary law and constitutional principles.

In Kartar Singh vs. State of Punjab, the Supreme Court, upholding the validity of TADA, affirmed the existence of a class of offenders under TADA, namely, terrorists and disruptionists, as distinct and separate from ordinary criminals who could be tried under normal laws, as well as a distinct class of offences, namely, terrorism an aggravated offence both, requiring the special provision of admissibility of confession before a police officer under Section 15.

Following this reasoning, the court had no difficulty in holding that the provisions of Section 15 were non-discriminatory and not in the circumstances unjust, unfair and oppressive.

The author points out that the Supreme Court decisions upholding the constitutional validity of POTA and TADA may be seen as attributing legality to the various procedural exceptions these laws prescribed. Yet, he says, there are layers within the judgments and the other judgments that followed (for instance, the Parliament attack case), where spaces of substantive liberty are sought to be carved out by the Supreme Court.

Yet, Ujjwal Kumar Singh says, substantive liberty remains inadequately realised, precisely because the safeguards are sought to be woven into laws founded on principles of procedural exceptionalism. The book brings out in great detail the tension between procedural safeguards and political goals of anti-terror laws, specifically with respect to bail, confession, banning of organisations and review procedures.

The books chapters on POTA and the Construction of Suspect Communities, in the context of Godhra, and Akshardham attack cases, and the one on National Security Syndrome offer detailed analysis of the hearing of important cases in the courts, and draw certain provocative generalisations.

The repeal of POTA was accompanied by the amendment of the Unlawful Activities Prevention Act (UAPA), 1967, in 2004. The author says specific provisions of POTA percolated into an existing law, giving extraordinary provisions a hitherto elusive permanence and making it a surrogate for POTA. This erosion of the boundaries between the ordinary and the extraordinary is seen by the author as the preferred official policy which, according to him, was best articulated by the Malimath Committee for the Reform of Criminal Justice System.

The book has to be read in the backdrop of the contemporary debate on the need for a federal investigative agency to investigate terrorist crimes across the country as proposed by Prime Minister Manmohan Singh in the wake of the recent Jaipur blasts. Although the book does not deal with this issue, which has acquired political overtones, it is reasonable to suggest that such an agency has to be State-centric, with a mechanism for coordination at the national level, in order to provide checks and balances against arbitrary exercise of power by the proposed agency.

The repeal of POTA and the amendment of the UAPA have not led to an overwhelming climate of public opinion against extraordinary laws. States such as Gujarat, Rajasthan, Andhra Pradesh and Uttar Pradesh have their Control of Organised Crime Bills awaiting the Centres approval for introduction in the respective Assemblies. The legitimacy of the Maharashtra Control of Organised Crime Act, 1999, is likely to come under review as the Supreme Court is set to hear a petition challenging its validity.

Most of these extraordinary Acts/Bills enacted/proposed by State governments, purportedly to control organised crime (as distinct from terrorism), have those exceptional provisions that TADA and POTA had.

Ironically, the State governments have no compunction in admitting that they need these laws to prosecute those accused of committing acts of terror. Curiously, there is not much information available in the public domain about these Bills and the Centres concerns over them, which have apparently come in the way of their approval. Perhaps, there is a need for another scholarly work in this area, if only to expose those State governments that intend to bring POTA-like laws through the back door.