Short on strategy

Saturday, December 13, 2008

THE war on terror in Mumbai is sure to revive the debate on whether the Central and State governments are soft on terror, with the repeal of the Prevention of Terrorism Act (POTA) in 2004 being cited as a manifestation of this laxity. The campaign by the Bharatiya Janata Party (BJP), whose National Democratic Alliance government enacted POTA in 2002, for a tough anti-terror law to contain the alarming rise of terrorism in the country obfuscates the real issues.

The Supreme Court held both the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985, and POTA constitutional, in spite of their draconian provisions. It was the political class that repealed these Acts because of their grave potential for abuse by those responsible for implementing them. The Supreme Court refused to strike them down merely on the grounds that they could be abused, maintaining that such a challenge could be mounted against any law. The court sought so that that the law provided for proper checks and balances to ensure due process and protection of individual liberties were guaranteed, as prosecution could continue in cases registered under these Acts even after their repeal and lapsing. The history of the two anti-terror laws is ample testimony to the fact that we tend to substitute legislative response for institutional response. The country has not been able to win the war on terrorism because it lacks an institutional response. Strange as it might seem, both TADA and POTA could not “prevent” terrorist acts although that is what they were intended for. This is because prevention of a terrorist act is largely a result of the work of an efficient intelligence agency, which helps to apprehend the suspects before the commission of an offence. The legislative framework becomes relevant once the investigating agency takes over and the suspect becomes the accused and is prosecuted in accordance with the law. It is assumed that successful investigation and prosecution of suspects depends on a legal framework that enables doing away with certain legal safeguards, which are seen as loopholes by the accused. These safeguards give opportunities to the accused to seek to establish his/her innocence and minimise the scope for the investigating agencies to resort to short cuts in resolving a case.

It is naive to assume, for instance, that the terrorists who struck in Mumbai would not have done so if our legal framework did not have these safeguards. These terrorists were ready to lose their lives and even risk police torture if caught alive. Even the harshest of laws would not have dissuaded them from taking the risk.

On the contrary, there is enough evidence to prove how the anti-terrorist legislation lent itself to abuse. Take TADA, for instance, which was allowed to lapse in 1995. Union Minister of State for Home Rajesh Pilot stated on August 24, 1994: “Of the approximately 67,000 individuals detained since TADA came into force, 8,000 were tried and only 725 persons were convicted. Some 59,509 people had been detained with no case being brought against them. The TADA Review Committees found that except in 5,000 cases the application of TADA was wrong and asked for the withdrawal of cases. Despite the admissibility of the confessions made to the police as evidence – which were invariably made under torture – the conviction rate was less than 1 per cent. Yet, thousands of people underwent prolonged detention without ever being convicted. The maximum numbers of arrests under TADA were not made in Punjab, Jammu and Kashmir or north-east India but in Gujarat, which had no record of terrorism. The majority of the victims belonged to religious minorities.”

The experience with POTA, 2002, does not inspire any confidence about the effectiveness of safeguards against its abuse. In Jharkhand, where the highest number of POTA cases and detainees were registered, there is evidence to suggest that the tribal community was targeted. In Gujarat, all except one of the POTA detainees belonged to the Muslim minority. The Central POTA Review Committee’s conclusion that POTA was inapplicable against the accused in the 2002 Godhra train tragedy case is an instance of how the State government sought to abuse the law. The State government refused to abide by the committee’s decision and did not withdraw POTA charges against the accused for nearly three years. The cases were withdrawn only after the Supreme Court held recently that the committee’s decision was binding on the State government.

The three POTA Review Committees that were set up under the POTA Repeal Act in September 2004 submitted their findings to the Union Home Ministry in September 2005. These findings indicated that of the 1,529 POTA accused the committees had examined in the 263 POTA cases, no prima facie evidence was found against 1,006, suggesting that POTA was not applicable to two-thirds of the accused. Nearly 100 of these 263 cases were lodged in Gujarat and Jharkhand. In Jharkhand, those arrested under POTA included women and children.

The United Progressive Alliance government at the Centre amended the Unlawful Activities Prevention Act (UAPA), 1967, to incorporate some of the provisions of POTA pertaining to the definition of and punishment and enhanced penalties for terrorist activities, and specific procedures, including the banning of terrorist organisations and interception of communications.The amendment dropped some of the following POTA provisions that were widely perceived as draconian: treating the confessions to a police officer as admissible evidence and the prolonged period of custodial detention, that is, 180 days. The amendment reduced this period to 90 days, in accordance with Section 167 (2) of the Code of Criminal Procedure (CrPC). The only possible justification for treating the confessions of an accused to a police officer as admissible evidence is that the investigating agencies are unable to gather evidence against terrorists other than through confessional statements, which can be secured through torture, the safeguards against involuntary confessions not being very effective. The reduction in the period of custodial detention could ensure expeditious investigation of terrorist offences. The reason that prolonged detention could help the police investigate an offence better is not very convincing.Similarly, under POTA, an accused could not seek bail for a period of one year after arrest without the consent of the prosecution and the satisfaction of the court. POTA also provided for presumption of guilt of the accused and the shifting of the burden of proof of innocence on to the accused. The amended UAPA does not retain these provisions. The absence of these provisions has, however, not weakened the legal mechanism as the courts, under the CrPC, retain the discretion to deny bail in cases of terrorism and the prosecution is free to establish the guilt of the accused beyond reasonable doubt.

The Second Administrative Reforms Commission (ARC) submitted its eighth report on “Combating Terrorism: Protecting by Righteousness” to the government in June this year. It has reiterated its recommendation made in its report on “Public Order” for the creation of a specialised division in the Central Bureau of Investigation to investigate terror offences. The need for a federal agency to fight terrorism has been widely felt in recent days, to ensure coordination between the Centre and the States not only in gathering and sharing intelligence but in investigating terrorist crimes. The commission has also recommended an amendment to the National Security Act (NSA) instead of the UAPA, in order to ensure an adequate legal framework against terrorism, and comprehensive police reforms. The ARC’s recommendations may not be sufficient to guarantee the requisite institutional response against terrorism, but they can at least make a beginning in that direction, if accepted by the government.


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