Terrorism & Legal Policy in India
The authority and legitimacy of modern nation states has come under a severe challenge as a result of rising trends in terrorism. Confronted with one of the most brutal forms of violence, a suitable or adequate response to terrorism is still to be framed, even as a proper context of evaluation and a sufficient understanding of its causation and methodology remain elusive. The uniqueness of terrorism lies in its complex inner dimensions, its continuous and rapid adaptations, and its wide variations across different theatres. Significantly, the transformation of terrorism over the past twenty years has been startling, with rising anxiety over its burgeoning lethality.
Traditionally, terrorism was considered to be a coercive tactic, sometimes adopted as part of a larger guerrilla strategy, in that actions created threats of worse to come if political demands were not met, and these demands tended to be geared to ending foreign occupation or to securing the objectives of a secessionist movement.1 The rise of modern terrorism, however, has been far more complex, tied to diverse ideological and political goals, and often astounding in the scale of violence and the ambitions of its practitioners. The weapons used in the modern terrorist attacks have grown deadlier and far more accurate than the archaic guns and daggers of the early revolutionary terrorist and as terrorist groups make increasingly persistent efforts to acquire radiological, biological and chemical and weapons of mass destruction, the future outlook becomes more ominous. The situation is compounded further by the availability of enormous financial resources and new communications equipment that has immensely empowered both the terrorist ‘footsoldier’ and his masters.
The power of the media has also dawned on violent players, as is evident in the more symbolic ways in which acts of violence are executed or their targets selected. Yonah Alexander notes that terrorists have used the media to, first, enhance the effectiveness of their violence by creating an emotional state of extreme fear in target groups, and thereby ultimately alter their behaviour and dispositions, or bring about a general or particular change in the structure of government or society; and, second, to draw forcibly and instantaneously, the attention of the whole world to themselves in the expectation that these audiences will be prepared to act or, in some cases, to refrain from acting, in a manner that will promote the cause they presumably represent.2 Terrorism, then, like advertising, increases the effectiveness of its messages by focussing on spectacular incidents and by keeping particular issues alive through repetition.3 This is a far cry from the age when ‘anarchists’ met behind close doors, relying on mouth-to-ear communication to mobilize support for the ‘cause’, to project their secret and forbidden ideologies, and for the effective execution of their missions.
The recent spurt in terrorist incidents across the world, especially the 9/11 attacks, and the growing recognition of a burgeoning danger have prompted a number of countries to pass anti-terror laws to meet new contingencies. The spurt in anti-terror legislation appears to reflect a measure of surprise among governments around the world at the magnitude and character of the new wave of terrorist activities. A natural corollary to this legislation and to new curbs that some of this legislation places on what are believed to be integral rights and freedoms, is the question: Do we really need new anti-terror laws to check this menace? At least some cynics have suggested that, far from being a necessary part of an effective and efficient response to terrorism, such legislation actually represents a knee-jerk and substantially misdirected reaction to the more dramatic incidents of terrorism.
There are always questions of morality when new laws are enacted, especially when these relate to basic human rights and freedoms. Roscoe Pound clarifies the need for new laws in a very succinct way in terms of two ‘needs’ that determine philosophical thinking on the subject:
Nevertheless, reservations have always existed regarding the exercise of the power to refit laws to unexpected situations; such reservations are rooted in considerations of morality, the fear of criticism, and the fear of high-handedness. Nevertheless, the exercise of power is often a necessary imperative of history. As Fukuyama puts it,
Much of the reluctance in accepting the need for special anti-terrorism legislation is based on the fallacy of equating ‘terrorism’ with other forms of violence, and the consequent argument that the prevailing or ‘ordinary’ laws that have been enacted to deal with the latter are sufficient to take care of the former.6 Thus, Walter Laqueur describes how it was widely believed that terrorism was a response to injustice and that the terrorists were people driven to desperate actions by intolerable conditions, be it poverty, hopelessness, or political or social oppression. Following this reasoning, the only way to remove or at least to reduce terrorism is to tackle its sources, to deal with the grievances and frustrations of the terrorists, rather than simply trying to suppress terrorism by brute force.7
This reasoning is, however, substantially flawed and ignores the unique social, political and ideological factors that contribute to, and are exploited by, the processes of terrorist mobilization. There is, further, little empirical evidence of a direct linkage between specific socio-economic conditions and the emergence of terrorist movements.8 There is, moreover, an element of defeatism in this perspective, to the extent that it insists that the issues of violence cannot, or should not, be addressed until the last possible grievance has been resolved – a task, in any world outside the realm of pure fantasy, that would necessarily remain perpetually unfulfilled. Essentially, the core issue of terrorist violence and criminality is, here, not being addressed, and the focus has been shifted to the purported ‘causes’ that are believed to have led to terrorists taking up arms. Further, the very idea that terrorism grows out of legitimate social grievances and upheavals cedes, without evidence or argument, the moral high ground to the terrorist: society can never be perfect and, consequently, there will always be ‘just cause’ for terrorism to survive. Worse, the terrorists are entirely exempted from all norms of morality, even as the most unrealistically exacting morality is applied to ‘society’ and the ‘state’. It is precisely this thinking that has obstructed, stalled, diluted and constantly opposed specific anti-terrorism legislation over the years, and continues to stifle and hamper prosecutions under such laws by putting forward vague and disconcerting objections.
The lack of agreement on a definition of ‘terrorism’ has been another major obstacle to meaningful international countermeasures and laws. Cynics have often commented that, "one man’s terrorist is another man’s freedom fighter," an argument at once immensely strong and entirely superficial. But this argument is based, as Ajai Sahni rightly notes,
If, however, terrorism is defined strictly in terms of attacks on non-military targets, a range of attacks on military installations and soldiers’ residences would escape the scope of the definition. In order to cut through the Gordian definitional knot, terrorism expert Alex P. Schmid suggested in 1992, in a report for the then United Nations (UN) Crime Branch, that it might be a good idea to take the existing consensus on what constitutes a ‘war crime’ as a point of departure. "If the core of war crimes – deliberate attacks on civilians, hostage taking and the killing of prisoners – is extended to peacetime, we could simply define acts of terrorism as ‘peacetime equivalents of war crimes’."10
Difficulties with the definition of terrorism, nevertheless, persist, many of them motivated by those who engage in, support or benefit from, activities widely perceived as such. Nevertheless, it is possible to clearly identify the essential considerations that would enter into an assessment of such acts: terrorism can, thus, generally be described as the systematic use of terror or unpredictable violence against governments, the public, or individuals, to attain a political objective. Terrorism has been used by political organizations with both rightist and leftist objectives, by nationalistic and ethnic groups, by revolutionaries, by groups pursuing particular political or ethical ends, and by the armies and secret police of governments themselves.
Counter-terrorism legislation is, moreover, entirely consistent with a jurisprudential history of special laws that have been enacted from time to time to deal with special situations, and India’s record is no exception. The first preventive detention law was introduced by the British in 1793, and was aimed solely for the purpose of detaining anybody who was regarded as a threat to the British settlement in India. The East India Company in Bengal subsequently enacted the Bengal State Prisoner's Regulation, which was to have a long life as ‘Regulation III of 1818’. An extra-Constitutional ordinance, opposed to all the fundamental liberties which the colonial state would later pretend to be bound by, Regulation III provided for the indefinite confinement of individuals against whom there was insufficient ground to institute any judicial proceeding. Regulation III was the most effective tool in the hands of the British to quell any political violence.
The beginning of the 20th century witnessed an increase in the revolutionary movement in India, with the birth of many underground groups pursuing the goal of independence through violent means. The period also marked the emergence of several legislations to quell the rising tide. In 1908, the government passed the Newspapers (Incitement to Offences) Act and the Explosive Substances Act and, shortly thereafter, the Indian Press Act, the Criminal Tribes Act, and the Prevention of Seditious Meetings Act. A majority of these legislations were aimed at breaking the back of the revolutionary movements by curbing meetings, printing and circulation of seditious materials and propaganda, and by detaining suspects. The Foreigners Ordinance of 1914 sought to restrict the entry and movement of foreigners in India. The Defence of India Act (1915) allowed suspects to be tried by special tribunals, whose decisions were not subject to appeal.
The Defence of India Act was to expire shortly after the end of the First World War and the British Government had to come up with a new law to counter new tendencies. Based on the recommendations of Justice Rowlatt, Chairman of the Committee appointed to curb seditious movements in India, the Rowlatt Act, also known as the Anarchical and Revolutionary Crimes Act, was passed in 1919, giving unbridled powers to the colonial Government to arrest and imprison suspects without trial and crush civil liberties. The violent movement was blunted in the 1930s by the tough regulations passed by the Government, including the Constitutional Reforms of 1935.
After attaining Independence, the violence witnessed during Partition forced the Government of Free India to pass the Punjab Disturbed Areas Act, Bihar Maintenance of Public Order Act, Bombay Public Safety Act, and Madras Suppression of Disturbance Act, aimed at curbing forces that were using religion to incite violence. The rise of the Naxalite (Left-wing extremist) movement prompted the West Bengal government to pass the West Bengal (Prevention of Violent Activities) Act of 1970.
The last three decades have witnessed a number of legislations being enacted to tackle various specific contingencies: Jammu and Kashmir Public Safety Act (1978); Assam Preventive Detention Act (1980); National Security Act (1980, amended 1984 and 1987); Anti-Hijacking Act (1982); Armed Forces (Punjab and Chandigarh) Special Powers Act (1983); Punjab Disturbed Areas Act (1983); Chandigarh Disturbed Areas Act (1983); Suppression of Unlawful Acts Against Safety of Civil Aviation Act (1982); Terrorist Affected Areas (Special Courts) Act (1984); National Security (Second Amendment) Ordinance (1984); Terrorist and Disruptive Activities (Prevention) Act (1985, amended 1987); National Security Guard Act (1986); Criminal Courts and Security Guard Courts Rules (1987) and the Special Protection Group Act (1988).
Although these laws were enacted to meet special situations, most of them were not directed against the larger menace of terrorism. The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, and the Prevention of Terrorism Act (POTA), 2002, are the only Acts, which can correctly be termed anti-terrorism laws. The state, through these two laws, for the first time attempted to create legislative instruments to curb terrorist activities in India, recognizing the fact that terrorism was a special crime that needed special laws for an effective response to be created.
A clear distinction between ‘ordinary crime’ and terrorism is, consequently, important as is well illustrated by the Supreme Court’s observations in Hitendra Vishnu Thakur vs. State of Maharashtra that,
The Court added further that,
Anti Terror Laws: Legality, Controversy & the Judicial Response
The ground realities in India are stark and statistics provide a grim reminder of the increasing threat that terrorism constitutes. India has lost over 56,000 lives to terrorism over the last decade in the major irregular and sub-conventional wars that have afflicted the country.13 A majority of these fatalities have occurred in Jammu and Kashmir (J&K) and in the Northeast alone as a result of the Pakistani proxy war in the former, and a range of separatist insurgencies in the latter. A significant number of deaths have also occurred due to Left wing extremism (referred to as Naxalism in India) and retaliatory violence in some areas of the States of Andhra Pradesh, Maharashtra, Madhya Pradesh, Orissa, Chhattisgarh, Jharkhand, Uttar Pradesh, West Bengal and Bihar.
Since Independence, free India has had to contend with a number of disparate elements and groups seeking political ascendancy through violence, or pursuing secessionist goals. The Northeast has long been a troubled area, with a heady mix of the assertion of tribal identities and a few influential leaders, secessionist movements grew in this part of the country into large scale agitations which, in many cases, transformed themselves into terrorist movements. In the 1980s and the 1990s, the secessionist movements in Punjab and J&K provided no respite to the state and its security forces. The proliferation of terrorist groups in the country has also been tremendous, indeed, unprecedented in comparison to in any other theatre of conflict in the world. In J&K alone, there are reportedly 32 terrorist groups operating independently, and occasionally in tandem.14 In the Northeast, some 60 terrorist outfits have been involved in terrorism related brutalities.15 As compared to other countries where terrorism is ordinarily localised to a particular area or region, India has witnessed the pugmarks of terrorism across the whole country. An analysis of terrorist incidents demonstrates the sheer spread of the phenomenon. Major terrorist attacks have, for instance, been witnessed in places like, Vellithirippur, (1998)16 and Marudayar (1987)17 in Tamil Nadu; Faizabad in Uttar Pradesh (2000)18; Kolkata in West Bengal (2002)19 and Mumbai in Maharashtra (2003)20, to name a few. Between 1992 and 2003, at least 21,497 civilians and 7,046 security forces personnel have been killed in terrorist attacks, while 26,072 terrorists have been killed in counter-offensive.21
The saddening part in this war against terrorism has been the absence of a proper legal apparatus in the country, which could provide a mechanism for the conviction and legal punishment of the terrorists arrested in counter-terrorism operations. The difficulties in taking a terrorist up to the point of conviction have been pointed out by Veeranna Aivalli, Commissioner of Security (Civil Aviation), Bureau of Civil Aviation Security, in a letter to the Law Commission of India, dated February 12, 2000, where he stated,
Both anti-terror laws have come under sustained and substantial criticism on different grounds. Primarily, they have been attacked as being ‘draconian’, oppressive, unconstitutional and against the principles of natural justice. As a result from time to time, the Indian judiciary, especially the Supreme Court has been petitioned to assess whether their various provisions are within the bounds of the Constitutional framework and the principles of natural justice. Some of the most important provisions that have come under judicial review include the following:
1.1 In 1994, the Supreme Court, in the landmark judgement of Kartar Singh vs. State of Punjab dealt with various provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and upheld the constitutional validity of the Act. From the very outset, the Court, looked into the matter in a broad perspective. Acknowledging the fact that the existing situation in the country was peculiar, the Court observed that,
Further, realising the severity of the situation, the Court noted: "No one can deny these stark facts and naked truth by adopting an ostrich like attitude completely ignoring the impending danger."24
1.2 Apart from this danger of physical violence, there is the further complication of existing prison realities. Prisons in India are overwhelmingly populated by undertrials. According to statistics compiled by the Custodial Justice Cell of the National Human Rights Commission, 225,817 of 304,893 or 74.06 per cent of the total prison population is comprised of those awaiting trial. The total jail capacity in India is for 232,412 prisoners, which makes the total prison population 31 per cent higher than capacity, clearly emphasizing the urgent need for a speedier justice mechanism.25
1.3 The right to speedy trial is not incorporated in any provision of the constitution, yet it is an inherent principle of any criminal justice system. A delayed trial harms the prosecution as well as the accused. Delayed prosecution means weakened prosecution, as witnesses are hard to find and memories become hazy as time goes by; there are also increasing probabilities of witnesses turning hostile if the trial is prolonged. For the accused, the delay in the trial means no end to incarceration in one of the numerous and pitiable jails in the country.
1.4 The Supreme Court in Kedra Pehadiya vs. State of Bihar had observed, "It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.''26 The Court added further:
Justice Bhagwati in the Hussainara khatoon vs. Home Secretary, State of Bihar also observed
1.5 This principle of providing speedy trial was reiterated and reaffirmed in the Kartar Singh case, even as the question of enactment of new procedures for speedy trial of terrorists under TADA was challenged.
1.6 Under the TADA Act, designated courts were to be established with special powers to deal exclusively with cases relating to terrorism. Further, Section 14 of the Act laid down the procedure and powers of the designated courts, which included the speedy disposal of cases. The Act also provided for the discharge of the accused by the designated court even before the evidence stage, if a prima facie case was not made out by the prosecution. The Prevention of Terrorism Act (POTA) Act also provides for trial in absentia, with Clause (5) of Section 30 declaring,
This provision was incorporated with the objective of enhancing speedy trial in the event of the failure of the police to apprehend the accused, which is often the case in terrorist crimes.
1.7 The incorporation of these provisions to initiate speedier trial by establishing special courts and special procedures was challenged on the grounds that terrorists were being treated differently from ordinary criminals, and that this was discriminatory. But in Kartar Singh, the Court rejected this position, explaining that
Moreover the establishment of special courts and special laws was entirely in keeping with Constitutional provisions, since Article 247 of the Constitution empowers Parliament to establish courts. Indeed, a Constitutional Amendment was passed for the creation of Special Debt Recovery Tribunals across the country under the Recovery of Debts Due to Banks and Financial Institution Act, 1993. Speeding up the debt recovery mechanism is, no doubt, an important, but far less urgent imperative than the containment of terrorism which threatens the very foundations of democracy. There is, clearly, no illegality involved in establishing special courts to tackle special situations, and terrorism certainly qualifies as such.
2.1 One of the matters of great concern for human rights activists with regard to POTA is the provision relating to the admissibility of ‘confessional statements’ as evidence under the Act. The National Human Rights Commission (NHRC) has expressed the view that the validation of confessions made to police officers would increase the possibility of coercion and torture in securing confessions, and would consequently be inconsistent with Article 14 (3) (f) of the International Covenant on Civil and Political Rights (ICCPR) which requires universal entitlement to the guarantee of not being compelled to testify against oneself or to confess guilt.33
2.2 Earlier, Section 15 of TADA had laid down:
Clause (2) of the section laid down further that,
2.3 This provision was one of the main grounds of a legal and constitutional attack against TADA launched by former Law Minister Ram Jethmalani. Concerns were primarily raised on the methods that would be employed by the police to gain confessions from the accused.
2.4 However, this procedure to record confessions was streamlined by the Supreme Court in Kartar Singh, where six safeguards were defined, which was to be employed while recording a confession. POTA incorporated these safeguards in its Section 32, which required that,
2.5 These substantial changes with regard to the admissibility of and safeguards relating to confessions under POTA have been appreciated by earlier critics of TADA. Ram Jethmalani, who had vigorously denounced TADA, stated, "I would have opposed POTA, but it must be said to the credit of the Government that all six safeguards suggested by the majority of the judges have been introduced."36 He noted that the "amazing degree of dangerous sophistication which has been achieved by ruthless terrorists certainly is a material change from the situation in which TADA operated."37
2.6 Interestingly, confessional statements made by the accused are also held to be admissible as evidence under various other acts: under Section 12, Railway Protection Force Act, 1957; Section 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966; Section 108 of the Customs Act, 1962; and Section 40 of the now defunct Foreign Exchange Regulation Act (FERA), 1973. In Kartar Singh, the Court observed that
Therefore, although the provision with regard to confessional statement may be a departure from ordinary penal laws, the safeguards provided by the new POTA considerably reduce the scope of its misuse.
3.1 The bail provisions under anti-terror laws have also been criticised for their unwarranted stringency and apparent harshness. Under POTA, bail is to be decided on a prima facie finding that the accused is not guilty. Section 49, Clause (6) states:
Section 49, Clause (7) adds,
Section 49, Clause (8) further adds,
Finally, Section 49, Clause (9) states,
3.2 These provisions are definitely different and harsher than the existing bail provisions under the Code of Criminal Procedure. On the other hand, however we are faced with the fact that under ordinary bail provisions, it has been relatively easy for terrorists to get bail and return to the killing fields to inflict greater harm. As the former Director-General of Punjab Police, K.P.S. Gill, notes
In Bimal Kaur vs State of Punjab, the Punjab High Court opined that
3.4 The Forty First report of the Law Commission rightly questioned the application of bail provisions of the Code of Criminal Procedure to cases of terrorism: "Can it be said with certainty that terrorists and disruptionists, who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail?42
3.5 Further, the Supreme Court in Kartar Singh had pointed out that the language of sub-section (8) of section 20 of TADA (which is related to ‘bail’) was in substance no different from the language employed in section 437(1) of the Code of Criminal Procedure, section 35 of the Foreign Exchange Regulation Act, 1976, and section 104 of the Customs Act, 1962. The Supreme Court had, accordingly, upheld the validity of Sub-section (8) of section 20 of TADA, holding that the respective provisions contained therein were not violative of Article 21 of the Constitution, which declares that, "No man shall be deprived of his life or personal liberty except according to the procedure established by law."
3.6 Nevertheless, in order to streamline the procedure of granting bail to the accused under anti-terror laws, Justice Sujata V. Manohar in Shaheen Welfare Association vs. Union of India & Ors, categorised TADA detenues in four groups with regard to their entitlement to bail:
Adopting these criteria, the Court was of the opinion that undertrials falling within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b) would have to be dealt with differently, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the Court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant or witnesses. Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively.
By establishing these criteria, the Court has gone a long way in rationalizing the approach to the grant of bail in cases of terrorism, rightly distinguishing between various levels of the gravity of offence, and the threat to witnesses and society at large. This approach also underlines the fact that, while bail is definitely a matter of right, its grant must also be weighed against a possibility of greater public harm which may be afflicted by too easy and mechanical a process for grant of bail in cases of terrorism. Justice Manohar’s directions in this regard, are of crucial importance in the jurisprudence governing the subject.
4.1 Further, a majority of terrorists go unpunished due to the unavailability of witnesses. As criminal prosecution hinges on witnesses and the availability of a witness to any crime is the sole test to establish the soundness of the prosecution – particularly in the Indian system, where technical and forensic evidence is usually weak, and in cases of terrorism, often worse that it would be in other cases – a provision which aims at protecting witnesses by concealing their identities is crucial, but is bound to create strong opposition among those who have a vested interest in a weak prosecution. Characteristically, in the prosecution of crimes involving bodily harm, witnesses are hard to come by, as there is always a lurking fear in their minds of the possible consequences of deposition.
4.2 Provisions for the protection of witnesses are envisaged under Section 16 (2) of TADA and Section 30 of POTA. Section 30 (2) lays down that,
Under this provision, the right of cross-examination of witnesses is not denied to the defence, but the identity and addresses of the witnesses can be withheld.
4.3 Generally in trials involving ordinary crimes, when the accused persons are known to be trouble-mongers, it is seen that witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. This proclivity is even more noticeable in cases involving organised criminal gangs. Clearly, when it comes to the trial of terrorists and disruptionists, witnesses would be far more reluctant to depose at the risk of their lives.
4.4 Doubts have, however, been cast on this provision and its jurisprudence. Whatever the reasons for non-disclosure of the identity of witnesses, it is argued, the accused persons, who are liable to severe punishments under these special laws, are placed at a disadvantage with regard to the possibility of effective cross-examination and exposing the previous conduct and character of the witnesses. In general, consequently, in order to ensure the purpose and object of the cross-examination, the argument continues, the identity, names and addresses of witnesses should be disclosed before the trial commences. However, it is reasonable that this principle should be subject to an exception where the court, in extraordinary circumstances, may in its wisdom decide to withhold the identity and addresses of witnesses, especially in cases of potential witnesses whose life may be in danger. As such, section 30 of POTA gives discretion to the court to decide whether the identity of the witnesses should be protected, creating ample scope for safeguards that would prevent any prejudice against the accused.
5 Given the difficulty of securing witnesses to provide concrete evidence against an accused terrorist, there is a need for greater reliance on technical evidence. Section 27 of POTA, consequently, provides that the court may, on the request of the police officer, direct the accused to give samples of hand-writing, finger-prints, foot-prints, photographs, blood, saliva, semen, hair and voice of any accused person, reasonably suspected to be involved in the commission of the offence under this Act. Human rights groups have argued that this amounts to forcing the accused to incriminate themselves, and thus violates Article 20, Clause 3, of the Constitution, which states, "No person accused of any offence shall be compelled to be a witness against himself." This, however, is entirely unsustainable logic. The courts have repeatedly held that "‘to be a witness’ is not equivalent to ‘furnishing evidence’ in its widest sense".45 The right against self-incrimination is established only where the possibility of coercion and abuse of the human rights of the accused are involved, and does not extend to the withholding of evidence. Securing scientific evidence to prove a crime does not inflict any violence on the accused, go against any human rights and this section is not a departure against the established mode of proving the guilt of an accused under the Evidence Act, which contains provisions with regard to forensic reports and handwriting reports, which have been employed even in ordinary crimes. It has, further, been held that giving thumb-impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’.46 Excluding new technologies of gathering such scientific evidence, such as DNA, blood, saliva and other such bio-profiling techniques on the grounds that these techniques have not been used before misses the spirit of the law, and cannot be considered reasonable. It is useful to note, moreover, that these techniques have all been admitted into evidence in the more advanced Western countries, including those whose concerns for the protection of human rights are no less serious than ours. Indeed, Indian jurisprudence has, in this regard, tended to lag far behind technological developments and progressive international norms.
6.1 It is certainly the case that the powers of investigating officers as well as of the police in general are significantly increased by various provisions under anti-terrorist laws. The possibility of abuse of such enhanced powers cannot be ruled out. As the Supreme Court observed in Kartar Singh,
Moreover, the possibility of abuse cannot be grounds for striking down or diluting a law. In State of Rajasthan vs. Union of India, the Supreme Court noted:
Similarly, in Collector of Customs vs. Nathella Sampathu Chetty, the Court observed that, "the possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity."49 In Kesavananda Bharati vs. State of Kerala, Justice Khanna noted,
6.3 However, the possibility of malicious action by police officers has been explicitly recognized under POTA and, as a safeguard, Section 58 of the Act lays down that any police officer who exercises power corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this Act, shall be punishable with imprisonment which may extend to two years, or with fine, or with both. Further, if the special court is of the opinion that any person has been corruptly or maliciously proceeded against under this Act, the court may award such compensation as it deems fit to the person so proceeded against, and it shall be paid by the officer, person, authority or government, as may be specified in the order. This section ensures that police officers will not easily abuse their powers under the Act, and would not falsely accuse a person of committing a terrorist crime, knowing fully well that such an officer may be held personally accountable for malicious prosecution.
7.1 POTA, according to some critics, also threatens the freedom of the Press, and "the provisions in POTA for making it obligatory to reveal the source of information, the provisions making the mere act of receiving a mail, even if unsolicited, a crime, aim at taming the media."51 The Press has complained vociferously against Section 14 of POTA, which according to them, violates Article 19(1)(a) of the Constitution of India, which guarantees the right to freedom of speech and expression, from which the freedom of the Press derives. Section 14 of POTA imposes an obligation on any individual, including journalists, to furnish information that may be useful for the purposes of the Act, that is, information that relates to possible crimes that fall under its mischief, failing which the individual shall be punishable with imprisonment for a term that may extend to three years.
7.2 Once again, these concerns are based on a misunderstanding of the character of the Press and the scope of constitutional protection. The right to freedom of speech and expression, and concomitantly the freedom of the Press, is not unfettered, and is subject to ‘reasonable restrictions.’ At a practical level, it is useful to note, further, that the information that journalists ordinarily possess with regard to terrorists or their activities seldom have any operational value. In almost all legitimate interactions that a journalist may have with a terrorist, operational strategies are not discussed and neither is the journalist given any idea of the hideouts or movements of the terrorist. Furthermore, the Police would incline to be extremely circumspect in their use of this clause, and would avoid trying to rub the Fourth Estate the wrong way to the greatest extent possible. Few individuals and institutions of governance have been impervious to the power of the Press in India, and even those at the highest echelons of power tend to treat the Press with a high measure of deference. The Police is not, and has seldom been, an exception to this rule.
7.3 There are, moreover, legitimate limits to the freedom of the Press. "The liberty of the Press," said Lord Mansfield, "consists in printing without any previous license, subject to the consequences of the law."52 Closer home, the Supreme Court in C.G. Janardhan vs T.K.G.Nair, stated that "The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go, so also may the journalist, but apart from the statute law, his privilege is no other and no higher."53
8.1 The easy availability and movement of finances has been another major contributory element in the support of terrorism. The easy availability of funds and the concomitant free flow of these funds across international borders through ubiquitous ‘hawala’ channels has enormously empowered the terrorists, made the sponsorship of terrorism easy, and its control immensely difficult. After September 11, 2001, most of the discussion about the darker side of the globalisation of financial markets turned away from its distributional effects and tendencies towards periodic instability, and began focus on the manner in which it facilitated the transfer of funds that enabled global terrorism. The new challenge of financial market globalisation was how to track and freeze the financial assets of global terrorist networks.54 The UN Security Council through Resolution 1373 decided that all States should prevent and suppress the financing of terrorism, as well as criminalize the wilful provision or collection of funds for such acts. The funds, financial assets and economic resources of those who commit or attempt to commit terrorist acts or participate in or facilitate the commission of terrorist acts and of persons and entities acting on behalf of terrorists should also be frozen without delay.55
8.2 In India there have been no attempts on the part of the lawmakers or enforcers to address the issues raised by UN Security Council, prior to POTA. Before the passing of the Act, Hawala crimes were prosecuted under the Foreign Exchange Management Act, 1999, which describes Hawala as a civil offence and imposes a maximum penalty of payment of three times the money involved.
8.3 However, under Section 6 of POTA, no person shall hold or be in possession of any proceeds of terrorism and if the property acquired is through proceeds of terrorism, under Section 7 of the Act, an officer (not below the rank of Superintendent of Police) investigating an offence committed under this Act, shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred. This provision is a far cry from the earlier provisions, which allowed the terrorist to bring in money into India and be let off by paying fine. Already the functioning of this provision has had considerable impact, even as countries like USA and UK have clamped down on terrorist finances by freezing their assets. In India, however, a clear functioning of this clause has not been witnessed as in many cases the funds collected for and by terrorists are often transferred and are unaccounted for, which gives an added headache to the investigation agencies, as tracing these funds often leads to a dead end. The Indian Hawala market is one of the largest in the world and, therefore, needs stricter laws for its eradication. It is only when funds stop flowing into the pockets of terrorists that terrorism will be contained. Section 7 and 8 of the POTA are mere infant steps towards the annihilation of the process of transfer of funds for terrorist activities.
Faulty Legislation or Faulty System?
Unending debates over the working of the anti-terror laws, TADA and POTA, in judicial, political and social circles have cast aspersions on the need for such a specific law. Yet, it can hardly be denied that that terrorism is here to stay, and constitutes the greatest contemporary threat to individual and collective security. No legal instrument can be perfect, and no law can attain such a measure of flawlessness that it cannot be bent or broken, as long as the human instinct to do so survives. Inherent deficiencies in the framing of laws, moreover, are magnified manifold within the context of a criminal justice system which is in as poor a state of health as India’s. It is an accepted fact that convictions for any offence, whether minor traffic violations or murder, take an extraordinary length of time. The courts are overburdened, and recent estimates indicate that there are around 3.1 million pending cases in 21 high courts and 20 million in subordinate courts in the country.56
There has been negligible effort on the part of successive Governments to streamline the judicial system in the country. Attempts to create fast track courts to tackle pending cases have been largely unsuccessful. Even in areas where such courts have been established, prosecution continues to be delayed. The Recovery of Debts due to Banks and Financial Institutions Act of 1993 was one such law that established fast track courts to recover money from debtors. With nearly 44,000 cases pending in various Debt Recovery Tribunals (DRTs) involving around Rs. 380 billion, the processes and procedures of these courts have also fallen into the mould of ‘normal’ courts in the country.57
The fault lies, not in the legislation, but in the system that implements the law. Delays are chronic, right from the stage of issuing summons to the defendant, which, in some cases, can take several months, as processes are delayed on flimsy grounds. Delays in civil cases hurt particular individuals and institutions; but the failure to expedite the prosecution of the accused in criminal cases – especially of serious criminal offences such as terrorism – is a cause of alarm, as it constitutes a threat to the life of the individual and to the security and stability of the state.
TADA was victim to this process as well, and was widely criticized because its conviction rate was less than two percent. This was, curiously, advanced as grounds for scrapping the law by its critics. The argument is certainly eccentric: rape, for instance, has among the lowest conviction rates for violent crimes in India; this, however, has rightly been the basis of strident demands for strengthening of the law, and harsher penalties.
The situation is nor irreparable, and the experience with the Maharashtra Control of Organised Crime Act (MCOCA), 1999, deserves special attention in this regard. This legislation was passed by the Maharashtra Assembly in view of the growing menace of organised crime. ‘Organised Crime’ bears an uncanny resemblance to terrorism: neither phenomenon is confined by international borders; both organised crime and terrorism involve murder, kidnapping, arson, robbery, burglary, extortion, dealing in narcotics or dangerous drugs, intimidation and violence; finally, the support structures and sources of finance are often the same for both.
The MCOCA has been an extraordinary success in Maharashtra, with a conviction rate as high as 78 per cent in some years. Many of the provisions of MCOCA are similar to those under POTA. For example, both acts have identical provisions with respect to
There can be no doubt that, if a clear anti-terrorism strategy involving the police, the executive and the judiciary could be formulated and executed on a national scale, the successes of MCOCA could be replicated under POTA.
Regrettably, political indulgence and high-handedness have constantly undermined the implementation of counter-terrorism laws, and have infinitely complicated the terrorism debate. Among the aspects that have most frequently come under criticism is the abuse of such laws to carry out arrests of political opponents and a wide range of activists who are not covered by the intent and purpose of such laws. Indeed, TADA was used far more often against those who would not be covered by any definition of terrorism, than it was against terrorists. Similarly, a review of the arrests made under POTA over the first year of its operation projects the Act in poor light. According to the Union Home Ministry, the total number of those arrested and put in jail across the country under the POTA was 257.58 The data indicates further, that it is not in the terror wracked State of J&K that POTA has been extensively used, but in Jharkhand. This newly created State has the ‘distinction’ of detaining the highest number of persons under POTA, at 113, as against 104 detained in J&K. Worse, among those detained in Jharkhand were a 12-year-old child and an 81-year-old man. Others in the POTA list are Delhi with 20 detainees; Uttar Pradesh and Tamil Nadu with 10 each.
It has also been nigh impossible to work out any kind of political consensus on the implementation of anti-terrorism laws. In a shocking development on June 4, 2003, the J&K Government decided that it would not invoke POTA in the State, and that detainees who had ‘no serious cases’ against them would be released. J&K is the worst terrorism affected State in the country, but is not the only one to refuse to implement POTA; Governments in Manipur, Karnataka, Punjab, Assam, Tripura and Madhya Pradesh have also said that the law would not be used in their States.
This negates the very purpose for which the anti-terrorism legislation had been enacted. J&K is the major theatre of terrorist conflict in the country, and its past record of convictions of arrested terrorists under any law has been abysmal. The populist and politically motivated refusal to implement POTA can only weaken the enforcement agencies in their fight against terror.
POTA is, of course, far from perfect. The difficulty with counter-terrorism legislation in this country – indeed, with much other legislation as well – is that once it passes through Parliament, it tends to be looked upon as an immutable whole, to be accepted in full, or, like TADA, cast out in entirety for its deficiencies. There was certainly a high measure of gross abuse of TADA in certain States – but this was valid grounds for re-examination and amendment of the law, not for throwing the baby out with the bathwater. To bury legislation which provided the only effective legal instrument to bring terrorists to justice on the grounds that it was susceptible to abuse was nothing short of foolhardy. What is needed is a constant process of review of the law in action, the identification of its strengths and weaknesses, and the streamlining of processes and provisions through marginal amendments that would ensure its greater efficiency in securing the ends for which it was legislated, and limiting any existing possibilities of abuse.