Consensus eludes the draft bill on prevention of terrorism, recommended by the Law Commission of India.
THE overall failure of the Central and State governments over the years to improve the policing machinery's efficiency in the matter of effectively and decisively combating terrorism has forced the Centre and also some State governments to conclude that there is indeed a need for a special law to deal with terrorism. The result is the Prevention of Terrorism (POT) Bill, drafted by the Law Commission, which however has provoked a nationwide debate. The governments favouring such a special legislation see m to have chosen that rather politically convenient option, even though their experience with such laws has been anything but encouraging in the past.
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was allowed to lapse in 1995, following a nationwide uproar against its abuse by the law-enforcement authorities. Originally enacted with a validity of two years, TADA was extended by Parliament every two years, until members of Parliament cutting across party lines decided to bury it. (The POT Bill, if enacted, will be in force for five years, and its term can be extended by Parliament before it lapses.)
Many of the persons detained under TADA are still in jail, awaiting trial under the now-defunct Act. Although nearly 75,000 persons were held under the Act, the rate of conviction was less than 1 per cent. There were several instances in which the Act ta rgeted people belonging to the minority communities. This situation cost the then ruling party, the Congress(I), dearly. Interestingly, the Bharatiya Janata Party, which now defends the POT Bill, protested in the mid-1990s against TADA's continuance.
The Congress(I) government headed by P.V. Narasimha Rao wanted to replace TADA with another Act, and introduced the Criminal Law Amendment (CLA) Bill, 1995, in the Rajya Sabha. With this bill still pending before the House, the Union Home Ministry propos ed several amendments to it and requested the Law Commission to study afresh the need for suitable legislation to combat terrorism and other anti-national activities. The Commission circulated a working paper among the authorities, organisations and indi viduals concerned, inviting their views on the proposals. Two seminars were held for the purpose. In its 173rd Report, the Commission revised the CLA Bill and recommended the new, and harsher, POT Bill for enactment.
The bill in its present form contains draconian provisions and, expectedly, has triggered an intense debate. Divergent views have been expressed by political and other organisations. The Centre, however, has claimed that "a general consensus" was reached on the bill at a meeting of Chief Secretaries, Home Secretaries and Directors-General of Police called by the Union Home Ministry on June 28. Officials of some States were quick to challenge the claim. They told Frontline that it was too early to reach a consensus, as the State governments were yet to form their views on the provisions. The officials had agreed on the need for a law to replace TADA, but they reserved their views on the draft bill.
At the June 28 meeting, the Centre also came out with a proposal to constitute a Federal Law Enforcement Agency (FLEA) to deal with crimes involving modern technology and which have international ramifications, such as cyber crimes, terrorism, money-laun dering and militancy-related crimes. These are now dealt with by the law and order machinery in the States, and by the Central Bureau of Investigation (CBI), if referred to it by the State governments. The Centre has argued that the State agencies may be dogged by jurisdictional questions when called upon to tackle these crimes. The CBI, a Union Home Ministry spokesperson said, was already over-burdened, and therefore the need for a federal agency was felt.
The Centre's proposal to set up a FLEA met with resistance from the State governments on the grounds that such an agency would infringe on the States' rights and lead to an erosion of State autonomy. The Chief Secretary of Karnataka, B.K. Bhattacharya, i nsisted that the Centre should not do anything that would involve interference with the States' jurisdiction in matters of law and order. Kerala also opposed the proposal, asserting that maintenance of law and order was a State subject. The State governm ents could deal with modern-day crimes also by improving the efficiency of their police force through necessary training, it argued.
The Chief Ministers' meeting, to be held on August 5 in New Delhi, is likely to discuss the POT Bill as well as the FLEA.
ALTHOUGH the Law Commission had invited the Chairperson of the National Human Rights Commission (NHRC), Justice J.S. Verma, to inaugurate a seminar that it arranged in Delhi in December 1999 on the bill (see interview), neither the Law Commission nor the government found it necessary to seek the NHRC's reaction to the draft bill. The Centre sought the State governments' views, but did not bother to send a copy of the draft bill or the Law Commission's Report to the NHRC to elicit its opinion. (The Law C ommission's report was, however, available on the Web.) In the run-up to TADA's demise, the NHRC played a crucial role. It wrote to all the MPs not to extend TADA's life beyond May 1995, on the grounds that it was "incompatible with our cultural traditio ns, legal history and treaty obligations".
The NHRC, at a meeting of the full Commission, reviewed the draft bill, the Law Commission's 173rd report, the relevant Supreme Court judgments, and the views of non-governmental organisations (NGOs) in this regard. It concluded that there was no need fo r the POT Bill or a similar piece of legislation. The NHRC noted that in 1995 it had held the view that TADA should be removed from the statute book because it had no place in a democracy. The Commission felt that the same view should hold good on the PO T bill also "unless there were compelling reasons" to alter its view.
The NHRC was convinced that the existing laws, if properly enforced, were sufficient to deal with any eventuality, including terrorist activities. It said that the real need was to strengthen the machinery to enforce laws.
A Home Ministry spokesperson, however, said "it is the view of the government that the normal criminal laws are not designed to deal with the activities of terrorist organisations, which have bases across the border." The government announced its intenti on to build a general consensus in favour of the bill through consultations with the States and the Union Territories, besides political parties, before presenting it in Parliament.
There was, however, no indication whether the government would make any attempt to allay the NHRC's fears about the draconian nature of some of the provisions in the bill. Disputing the government's stand that the existing laws are insufficient to deal w ith cross-border terrorism, the NHRC said that any action that threatened the unity, integrity, security or sovereignty of the country was covered by Section 153-B of the Indian Penal Code (IPC). Section 121-A of the IPC deals with conspiracy to overawe the Central or a State government by means of criminal force or the show of criminal force and the offence is punishable with life imprisonment. Section 122 of the IPC deals with "collecting arms, etc with intention of waging war against the government o f India". Section 124-A of the IPC deals with sedition.
The Commission said that all the "terrorist acts" proposed to be covered by the new bill appeared to come under the purview of existing laws, such as the Arms Act, 1959; the Explosives Act, the Armed Forces (Special Powers) Act, 1958, the Unlawful Activi ties (Prevention) Act, 1967, and various preventive detention acts enacted by the Centre and the States.
The NHRC expressed the view that Section 3 (8) of the bill, which provided for punishment to those in possession of information about material assistance in preventing the commission of a terrorist act, or in securing the apprehension and prosecution of a suspected terrorist, would have a chilling effect on human rights. Section 3 (8) proposes imprisonment up to one year or fine or both for a person who fails, without reasonable reason, to disclose that information as soon as reasonably practicable to t he police. Read with Section 14, which gives powers to investigating officers to require individuals to furnish information in their possession, the bill could gravely jeopardise the work of professionals such as journalists, the NHRC said. Section 14 se eks to impose imprisonment up to three years on anybody who fails to furnish the information called for by an investigating officer on any offence under the bill.
The Law Commission, in its report, says that the freedom of the press flows from Article 19 (1)(a) of the Constitution, and it has been repeatedly held by the Supreme Court that the rights and privileges of the press are no greater than those of any citi zen of India. It says that even in the United Kingdom and the United States, no immunity in favour of journalists is recognised. However, the quantum of punishment, the Commission says, need not always be the maximum of one year's imprisonment: the court may use its discretion and sentence the journalist, if found guilty, to pay a token fine. Legal experts, however, disagree.
The Parliamentary Consultative Committee attached to the Home Ministry, which consists of 38 MP representing different political parties, met on July 17, with Home Minister L.K. Advani in the chair, to discuss the issue. The overwhelming opinion at the m eeting was against the draft bill. While a couple of members defended the bill in its current form, many others approved the need for an Act to replace TADA but disapproved the draft bill. Communist Party of India (Marxist) MP Somnath Chatterjee acknowle dged the need for special anti-terrorism legislation in view of the growing terrorist activities in different parts of the country but emphasised that any such law should be based on a political consensus and should have enough safeguards against its mis use. The Left parties - the CPI(M), the CPI, the Forward Bloc and the Revolutionary Socialist Party (RSP) - oppose the draft bill and have questioned the need for it when the existing laws, in their opinion, are sufficient to tackle terrorism.
Somnath Chatterjee clarified that the West Bengal government had informed the Centre that a special law might be required to fight terrorism. That, he said, was in tune with his statement that some sort of special provision might be helpful to combat ter rorism. However, he added that he was totally against the draft bill because it contained several draconian provisions.
Prakash Karat, CPI(M) Polit Bureau member, said that although his party was yet to formulate its stand on the question whether the existing legal provisions were insufficient to fight terrorism, it was opposed to any preventive detention law, including t he POT Bill. "Let the government first convince us that the existing provisions are inadequate," Karat said. CPI National Secretary D. Raja questioned the need for a special law to fight terrorism as such laws had always been used against innocent citize ns.
Four MPs on the Committee, Debabrata Biswas (Forward Bloc), Ali Mohmad Naik (National Conference), Viduthalai Virumbi (Dravida Munnetra Kazhagam) and G.M. Banatwala (Muslim League), opposed the need for the bill. Naik asked how many of those held under T ADA in Jammu and Kashmir were convicted. He feared that Section 3(8) of the draft bill, if enacted, would make even MPs and Ministers, leave alone journalists, liable for prosecution on flimsy grounds, as it could punish anyone who refused to share with the police any information in his or her possession on terrorists.
Banatwala argued that the safeguards provided in the draft bill would not really help an accused. For instance, the draft bill provides that the accused gets an opportunity to revise his of her confession (given to the police earlier) before a magistrate , a day after his or her statement is recorded by the police. But the fact that the accused may have to be under police remand for a period of 30 days at a stretch (which can be extended up to six months) would make it difficult for the accused to change his or her confession, which might have been secured by the police under duress. Secondly, Banatwala believes that terrorist organisations will be able to identify the witnesses even though the draft bill guaranteed their protection by concealing their identity before an accused during the trial.
With the opinion on the draft bill being so divergent, it is anybody's guess whether the Centre will risk its enactment, as recommended by the Law Commission. Even in the National Democratic Alliance (NDA), there appears to be no unanimity on the need fo r the bill. Former Law Minister Ram Jethmalani himself is opposed to the bill; MPs belonging to some non-BJP constituents of the NDA have expressed their reservations about the bill.
The Congress(I) is yet to make its stand clear. Party spokesperson Anand Sharma told Frontline that the Congress(I) was totally opposed to the POT Bill in its present form as it had several "oppressive features". Congress(I) member of the in Rajya Sabha and former NHRC chairperson Justice Ranganath Mishra has come out strongly against the bill. He explained how it would affect civil liberties.
In these circumstances, it is clear, the Centre cannot achieve political consensus on the bill before it is introduced in Parliament.
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