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Ten O'clock to Bed
Insouciance in the face of Terror
Vijendra Singh Jafa*

Behind the shallow truism that ‘history repeats itself’ hide the unexplored forces which lure men into repeating their own tragic errors. 

– Arthur Koestler, Invisible Writing.

 

During the first week of March 1966, two symbols of the sovereignty of India on its frontiers – the Deputy Commissioner of Aizawl, then Mizo Hills District of Assam, and the Subdivisional Officer of Lunglei – were temporarily 'put away', as the Mizo National Army (MNA) overran the district and took over effective physical control of what is now the State of Mizoram. The Deputy Commissioner managed to take refuge in the besieged headquarters of 1st Assam Rifles, and the Sub Divisional Officer of Lunglei was kidnapped by his own office staff and taken to Burma (now Myanmar). There is nothing on record to indicate that any officer in the State and the Central Governments had warned of an imminent military take over of the entire territory by the MNA.  Evidently, either nobody was aware of the seriousness of the situation, or nobody wanted to venture an opinion against the grain of the political beliefs and thinking then current.

However, a few things that happened prior to the insurrection are noteworthy. Laldenga, the President of the Mizo National Front (MNF) demanded independence for Mizoram and expressed readiness to fight for it in a letter dated October 30, 1965 addressed to the Prime Minister, a full four months before the uprising. By this time armed parades and training by members of the MNA in school and college playgrounds, the carrying of arms and wearing of uniforms provided by the Pakistani Army, and a host of other activities which precede the build up of any insurrectionary force, were strongly in evidence in both Aizawl and Lunglei. If further evidence were needed, the MNA proclaimed their readiness for bloodshed on December 25, 1965, by killing their own self-styled 'Colonel' Laimana for passing information about the quantity and source of arms and ammunition to the State and Central intelligence agencies. Nonetheless, when a newly raised battalion of the Assam Rifles was being inducted in Mizo Hills in January 1966, Laldenga’s telegrams to the Prime Minister and the Chief Minister of Assam pleading against this induction delayed arrival of the battalion by over a month, a deferment which proved to be of considerable advantage to the MNA [1] .

Vishnu Sahai, the then Governor of Assam, visited Mizo Hills for four days from February 1, 1966. This was followed by a visit by the Pataskar Commission [2] from February 7, 1966. Nothing untoward was noticed or remarked upon by either. The Joint Intelligence Committee’s report of February 16, 1966, mentioned Pakistan having given arms and training to some batches of the MNA in a routine manner, but did not take note of the clouds of an imminent internal war building up in Mizo Hills. In fact, the report did not anticipate anything extraordinary happening for the next one year and stated that if the MNF “succeeds in capturing the District Council in the elections to be held in March 1967, the demand for an independent Mizoram will be stepped up. The movement in this connection is likely to turn violent.” Violence was predicated on electoral success a full year away.

The MNF declared independence only twelve days from the filing of this report, overran the district and started an armed insurgency that lasted 20 years. Neither the Governor nor the members of the Pataskar Commission knew that Mizo Hills was, at the time of their visit, sitting on a time bomb that would go off within a matter of days.

This happened 34 years ago.

But in the summer of 1999, the events in Kargil were a grim reminder of India's enduring national preoccupation with self-delusion, its proclivity to shun knowledge, to keep everyone in the dark with a view to maintain the status quo, to deny the existence of a new reality until it is violently forced into its consciousness and, lastly, to disperse and diffuse accountability in such a way as to ensure that nobody is finally accountable.

These examples, and a long intervening history of governance by omission, are a compelling reminder of the ill-fated Louis XVI who wrote a single word – 'rien' – in his diary of 16 July 1789, signifying that there was 'nothing notable' to write about in the journals, and that he had retired to bed at the dignified hour of 10 o’clock.  The Marquis de Liancourt woke him up later to inform him that a revolution had taken place while he was asleep.

The history of insurgencies, militant movements, and of widespread and protracted terrorist activities in India over the past 50 years is, in some measure, a history of rulers, legislators, civil servants and intelligence agencies who went to bed at 10 o’clock and failed to notice the signals of impending disasters.

The truth is that the processes of governance in India are rendered nonfunctional by crippling conventions, the art of equivocation, recurring errors of judgement, innumerable intangibles such as personal attitudes, the politics of a particular point of view, internal professional feuds, malefic one-up-man-ships within the bureaucracy, horse-trading, and acts of omission and prevarication in the face of urgent imperatives for taking bold and unpleasant decisions. These have themselves created the conditions for, or have failed to thwart or neutralise, the trends towards terrorism and separatist insurgencies in the country. There is grotesque diffusion of responsibility, and the whole decision-making process is ravaged by a pervasive sickness.

There is evidence of another important, less noticed, but far more insidious, seductive and dangerous trend. Ingrained deeply within the Indian consciousness is the indolent confidence, an unspoken sense or feeling, that the Army is always there to sort things out when other methods fail. This promotes an unhealthy sense of foreboding, an abiding anticipation of the worst that can happen, a fatalistic view of the historical process, apathy for the present, and an acquiescent, and even joyous, sense of anticipation of catastrophe. This fatal and irrational reliance on the 'final means' – the ultimate weapon in the armoury – prompts both decision- and opinion-makers to stray from the present, to disengage from the immediate social burdens and ground realities, and engage in a priori debates on questions that have no, or very little, relevance to a given situation, and to opt for a delayed response to critical problems. Such predilections create their own compulsions for an eventual resort to arms.  Having been subjugated and ruled by foreign conquerors, largely through repression and violent means for seven hundred years, the Indian psyche apprehends in its newly found truculence, symbolised by a national army, the only way to its political nirvana.  Reversion to its substantive values of liberalism and compromise is always an after-thought, a kind of restorative succour and balm for an adversary who has first been torn down. The Indian mind has a deep longing for the primeval chaos, a nostalgia for the apocalypse (maha-pralaya), and very often finds itself in the middle of the very turmoils of its imagining. This is the modern India, preferring to wait, dodge, struggle, fight and hold enquiries to 'fix accountability'; rather than pre-empt, strike, heal, harmonise and celebrate its way through crises.

 

The Languor of the Law

India’s search for an effective legal response to terrorism, with which we have lived through decades of terrible and escalating national suffering, is also caught up the ‘apocalypse syndrome’. For five years now, the most severely terrorism-affected country in the world has had no law to deal with terrorism. For five years, the fight against terrorism has been left entirely to the army and the para-military forces, while the system of criminal administration has simply retreated into the background or, perhaps more accurately, entirely collapsed in areas afflicted by the scourge. For five years, the Indian 'intellectual', jurist and policy maker has failed to see the obvious, failed to understand the threat to national stability and democracy, and failed – indeed, stubbornly refused and resisted all attempts – to evolve legal instruments to confront and eliminate the threat while this can still be done at a relatively smaller price.

As if acting under a curse, liberals to the Left and Right, however opposed their policies were in other respects, have collaborated to thwart all attempts at a rational legal response, have systematically weakened the state's initiatives to cope with terrorism within the framework of the Constitution, and have unambiguously contributed to the increasing violence and anarchy that threatens India with the very real possibility of its destruction. The attitudes of the liberal forces and 'professional altruists' have ranged from inane misconceptions of the true nature of the terrorism that has hit India on its western and eastern extremities, to passive sympathy for, and even active complicity with, the terrorists. Even those who understand terrorism in Jammu & Kashmir (J&K) and the Northeast have indulged only in rhetorical denunciations of its dangers, even while they do everything within their means to prevent the country from arming itself with adequate legal powers against this menace. Despite the mounting toll of innocent lives in J&K, they treat atrocities committed by Islamic fundamentalists, the jehad and Pakistan's grand designs for conquest as something out of science fiction. At the same time, they accept without demur, indeed with great alacrity and perhaps with some satisfaction, every tenuous allegation that Indian security forces are capable of the worst crimes conceivable.

Can the government give up, as it did when the Criminal Law Amendment (CLA) Bill, 1995, came up for discussion in Parliament, and was abandoned for fear of losing the vote?  Is a democracy bound to relinquish the very possibility of legal defence against a force that recognises no bounds of law or morality? There are certain fundamental principles and premises on which our response to these questions must be based:

Ĝ        No democratic government is under an obligation to tolerate individuals or organisations that seek to overthrow it by violent means.

Ĝ        Individuals or organisations who declare their intention to kill and massacre at will, and do so everyday, place themselves outside the law and cannot claim its protection; indeed, they invite its just wrath and the imperatives of both morality and civilisation demand condign punishment.

Ĝ        The freedom of the individual is possible only in a society that prevents some of its members from usurping the freedom of others to live.

Ĝ        A democracy's chances of survival depend upon accepting the  need for ‘selective’ tolerance – those who plant bombs and carry out assassinations and massacres are making war on society, on the nation's integrity, and on democracy itself, and it is obligatory for that government to employ all available means to contain or neutralise their threat, including: stringent and extraordinary laws, special criminal procedures and laws of evidence, a system of special courts with summary powers, and specially trained and motivated police and prosecution personnel to deal effectively with political violence in general and terrorism in particular [4] .

 

More than 200 years ago, John Locke wrote that the chief role of government is to protect people’s lives and property from the transgressions of their neighbours. The institution through which such protection is provided is the criminal justice system. As such, it can be argued that a government which lacks an effective criminal justice system has failed to uphold its end of the ‘social contract.’ [5] The collapse of India's criminal justice system in the face of a rising tide of terrorism represents the collapse of the first and most basic condition of governance, rule of law and of democracy, and undermines the legitimacy of every institution of the government, and of every initiative and action by any agency of the state.

A significant, though substantially flawed, attempt to confront the challenge was made with the Terrorist and Disruptive Activities (Prevention) Act, popularly known by its acronym TADA, which was first enacted as an Ordinance in 1985 and, on its expiry after two years, re-enacted as law in 1987. TADA was subsequently extended by Parliament until 1995, when it was eventually allowed to lapse – not because it had achieved any of its defined objectives, but, ironically, at a time when violence in J&K was at a peak, and was escalating in much of the Northeast.

Before the expiry of TADA, the Government introduced the CLA Bill, 1995, to take care of the “legal vacuum with respect to combating terrorism.” [6] A lengthy debate followed the introduction of this Bill on May 18, 1995, in the Rajya Sabha. Alongside, a determined and methodical chorus in the media, emanating from self-appointed 'guardians of liberal thought', added its weight to the opponents of the Bill in the Parliament. After more than eight hours of discussion over two days, the Government did not press for a vote on the plea of ‘absence of consensus’. The opponents succeeded, and this started a process that has moved the draft Bill back and forth between the Law Commission and the Government of India several times. The Law Commission of India was tasked to take a “holistic view on the need for a comprehensive anti-terrorism law”, and submitted a new draft in 1998. The Government of India sent it back to the Law Commission for further debate and discussion, and the final draft is now believed to be ready.

In the interim, over 5,000 lives have been lost in terrorism-related incidents across the country during the past five years. The costs of surveillance and combating have amounted to some INR 1,650 billion, [7] and public property worth several hundred billion has been destroyed. To this injury has been added the insult of the hijacking of an Indian Airlines airbus to Kandhar, and its lamentable denouement.  The liberals, however, are undeterred. Confronted with renewed efforts to resurrect the CLA Bill, which is now being projected as a 'humanised' form of TADA, their objection is not that some of its clauses are offensive and need redrafting, but that any such law is odious and violative of 'human rights' - a curious and extraordinarily perverse conception of whatever these rights might be in the light of the unending carnage that has been inflicted our citizens and quite unnecessary casualties that have been wrecked upon our security forces.

The first salvo was fired by the People’s Union for Democratic Rights (PUDR) with a report containing some significant facts and figures to show how the earlier TADA failed to meet its objectives. For example, the 'abysmal record of convictions': out of more than 76,000 persons arrested under TADA up to June 1994, cases against 25 per cent were dropped by the police, and out of 35 per cent cases that were actually brought to trial, 95 per cent of these trials ended in acquittal. A mere one per cent of the persons arrested under TADA were eventually convicted. In J&K, not a single case out of the 20,000 registered has yet resulted in a conviction. The conviction of the assassins of Prime Minister Indira Gandhi and of General A.S. Vaidya was secured under ordinary laws and not under TADA.  The report also talks about the Law Commission having ignored “the experience of ten years of TADA” and “the magnitude of abuse and hardship that it has entailed” in the “holistic view” it was asked by the Government to take on the 1995 Bill. The PUDR characterised the discussions that the Law Commission had with some lawyers, bureaucrats and police officers in December 1999 and January 2000 as “a fig leaf of ‘wider sanction’ to this draconian law”. The report strongly opposes the new Bill because “this law in its previous version failed abysmally in its ostensible purpose of tackling the terrorist menace.” [8]

The PUDR report was followed by a veritable barrage of unconstrained criticism - entirely devoid of a single constructive suggestion in terms of an alternative law, or any proposed amendments to the Draft, or any other legal solution to the challenge of terrorism. The Public Interest Legal Support and Research Centre (PILSRC) headed by an eminent lawyer, Dr. Rajeev Dhawan, called the proposed Bill “more draconian than the TADA itself.” [9] K. G. Kannabiran, detected a 'larger conspiracy' in the efforts to transform the Bill into Law: “Seen in consonance with Constitutional review and the move to introduce bi-party system in the country, the CLA Bill is worse than any repressive law enacted by the British rulers. It will stifle democratic process and narrow the scope of rule of law (sic).” [10] Nandita Haksar opined that the CLA Bill “is an outright blow to all movements for right to self-determination, culture and language, especially in north eastern States.” [11]

In a sharp deviation from the line taken by his party on the issue in the past, Kapil Sibal, another eminent lawyer and Congress (I) Member of the Rajya Sabha, stated that “the law will be used indiscriminately against innocents. This will only strengthen the separatist movements in various States as suppressive laws only foment rebellion.” This is, indeed, surprising for a person who was the Congress (I) Party’s official spokesman during the last parliamentary elections. It is, of course, possible that the Congress (I) has lately changed it official stand on this issue. But it was the Congress (I) government that first brought in TADA in 1985, re-enacted it in 1987, and kept it alive for eight years. It was a Congress (I) government, again, that sought to revive the law in a new form in the CLA Bill of 1995. In 1991, when the Lok Sabha was debating MP Syed Shahabuddin’s Statutory Resolution to disapprove the TADA Ordinance to extend the life of the 1987 Act, Mani Shankar Aiyar, MP, stated the Congress (I)’s official position in no uncertain terms: “Syed Shahabuddin asked a question as to how long it would be necessary for us to have such repeated extensions of such an Act. I can only reply that we will have to continue extending it so long as terrorism raises its ugly head.” [12]   Evidently, if Kapil Sibal’s outburst is an indication, political parties in India have no consistent policy on a national issue of such critical importance.

Broadly, five types of objections to the proposed CLA Bill underlie the various criticisms that have surfaced over the past months. In the first category is the 'sociological' argument, usually presented somewhat rhetorically. [13] Thus, the PUDR report says, “what is called ‘terrorism’ is not always a matter of mindless violence. Often its roots are socio-political and governed by distinct and conflicting ideologies. These roots cannot be addressed by an anti-terrorist law since these are political questions, and not law and order problems. An extraordinary law that claims to root out the menace of terrorism along with its political and ideological roots is not an anti-terrorist law. It is simply an anti-people law.” [14] The Report, however, does not mention which 'people' it has in mind – but these are clearly not the thousands who have already lost their lives to terrorism, and the millions who remain at risk. [15]  Perhaps it would make some ‘socio-political sense’ if the PUDR’s perception of the ‘people’ had indicated a subtle distinction between the killing of politicians and policemen by the People’s War Group in Andhra Pradesh and Madhya Pradesh and the killing of thousands of citizens and members of the secuity forces in J & K, Punjab and the Northeast over the past two decades. The PUDR have also failed to recognise that the 'root causes' of a majority of murders, robberies, dacoities, and rapes may also often lie in the social and political complexities of the prevailing order, and, going by the same logic, the corresponding sections in the Indian Penal Code dealing with these crimes should be repealed.

A variation of this thesis, however, has a startling and influential advocate – India's Union Minister for Law & Justice, Ram Jethmalani, who has apparently made his reservations on the proposed CLA clear to the Government. "Terrorism," Jethmalani has proclaimed, "is one of those rare and peculiar offences that does not lend itself to treatment by law." [16] Evidently, in this suitably ambiguous proposition, the Law Minister is articulating the inchoate theory of the 'political solution' that has seduced much of India's leadership. The theory assumes that, since the roots of conflict and political instability lie in social mobilisation, their resolution must also be sourced to the same. [17] The difficulty is that, in its focus on 'root cause', the thesis ignores the powerful proximate dynamics that are brought into being by the prevalence of terror; [18] moreover, this approach to conflict resolution is shrouded in the mystique of arcane theories from the social sciences that do not translate into practical methodologies.  The sociological attempts to come to terms with the social motivation of terrorists and to identify the ‘just grievances’ that they represent lead down a blind alley. Refusal to accept the resolution of terrorism by an effective system of criminal justice is by itself a refusal to accept constitutional and democratic norms.

Jethmalani's view is particularly disturbing in the Indian context, where the 'political solution' has, by an large, meant that the government must negotiate peace with mass murderers, and seduce or bribe them to accept the authority of the Indian state. This approach implies that no attempt should be made to prosecute or punish terrorists, and that the state must simply blink at the enormity and inhumanity of the offences they have committed against innocent civilians in ironing out a 'compromise' with the most extreme elements. Such a perspective reflects a measure of contempt for the very idea of constitutional government and the rule of law.

Nevertheless, the “just grievance” theory demands a practical answer, and this can be located in a century-old British response. Confronted with terrorism against the British in Bengal in the early 20th Century, Austen Chamberlain, Secretary of State for India wrote to Lord Charmichael on 17 December, 1915: “Although these acts of lawlessness may not be a serious menace to the state, they do seem to me a very real danger to society, and the worst of it is that the longer they continue the less will be your chance of securing the active co-operation of the population in the detection and conviction of the criminals. I am quite ready to admit with John Bright, [19] at whose feet I sat as a boy, that 'force is no remedy for a just discontent', but Bright himself never pretended that this was a reason to allow free play to the forces of disorder.”

The second set of objections come from the realm of legal positivism and natural law theory, both converging against the concept, per se, of what is known as ‘special’, ‘extraordinary’ or ‘emergency’ laws. The objections are undoubtedly based on the perception of a moral dilemma inherent in the use of special legal powers to curb terrorism and other kinds of political violence. It is universally agreed that the resort to special laws that tend to keep certain fundamental rights in abeyance is potentially a dangerous proposition. David Bonner [20] has produced an interesting array of evidence and opinions to indicate the dangers such special legal provisions pose to democratic systems: the use of emergency powers can become a habit; it may de-sensitise the population to the problems of human rights involved and increase authoritarian tendencies in law and society; extraordinary laws can become de facto permanent features; new procedures may become the norm for criminal procedure; the dividing line between emergency laws and ordinary laws may become difficult to draw; such special laws may be used to cope with ordinary crimes, and the "dangerously seductive illusion" [21] of emergency laws may indeed represent a victory for the terrorists and insurgents.  These fears, however, are juxtaposed against the duty of a government to protect the lives and property of its citizens from terrorists who are fundamentally anti-democratic and have no respect for any fundamental rights or procedural and democratic norms. This is, indeed, a vicious moral dilemma for lawyers and non-lawyers alike! But so is the moral dilemma faced by a democratic polity beleaguered by a protracted terrorism that is sponsored by a hostile neighbour as part of a proxy war. So is the dilemma of having to tackle terrorism exclusively through armed means, in the absence of an appropriate law, and ending up earning undeserved opprobrium for over-reaction, indiscriminate repression, and deaths and injury to innocent civilians. So also is the dilemma faced by the family of an innocent victim whose demand for justice and retribution is spurned as sinful by a democratic society ostensibly administered by the rule of law.

It is critically important, here, to ask what happens when an effective law, or the appropriate law required for dealing with a particular crime, does not exist? The answer is simple: the state is left with no alternative except to permit ‘selective’ use of arbitrary force, what is then, at least on occasion, translated into repression by the armed forces. There are only two other possible options: to allow the terrorists total free play in the hope that a Thermidor effect [22] would appear mysteriously, and ultimately bring terror to a halt; or, sadly perhaps, to accede to the inevitably escalating demands of the terrorists.

Theoretically, a more serious problem arises vis-a-vis the first two objections when we look into the very necessity of law in human society. To the extent that ‘order’ exists in human society [23] without ‘law’, there is no ‘state’ and perhaps no need for one. Conversely, to the extent that ‘law’ exists without ‘order’, then the ‘state’ exists only as an ideal and not in reality. The terms ‘law’ and ‘order’ correspond to the division between ‘rights’ and ‘powers’ and the belief that the political constitution consists in their convergence: all ‘powers’ should be sanctioned by ‘right’, and all ‘rights’ enacted through an ‘order’ that exactly corresponds to them. Order without law in society may be spontaneous, the ideal of the anarchists; it may also be forced, the actuality of despots. This is not to suggest that the absence of an appropriate legislation against terrorism or deliberate advocacy of such an absence would automatically and logically lead to anarchy. Nevertheless, it is important to recall that that all major Constitutionalists (certainly Hobbes, Locke, Montesquieu, and the founding fathers of the American Constitution) have argued that preaching of anarchism (the possibility of order without law) leads to despotism.

The fact that the security forces and the police enjoy vast powers in India  (as indicated by daily news of deaths of criminals as well as terrorists in encounters which do not come within the purview and scrutiny of law unless forced by public outrage), and that thousands of reported and unreported lynchings take place in the countryside every year (the expression of public outrage against the absence of law and order) are symptomatic of the anarchy inherent in this society. If the Constitutionalists are to be believed, this will logically – albeit gradually – lead to despotism.

 It is doubtful that the legal luminaries who have been involved in the opposition to the proposed Bill would subscribe to the view that unrestrained use of military power, extra-legal methods to annihilate terrorists and armed insurgents, and the power to civilian vigilantes to lynch suspected criminals, is preferable to a legislation whose use and enforcement is subject to judicial and parliamentary review and constant media surveillance.

It would also be absurd to suggest that all the persons who have raised their voice against the enactment of ‘extraordinary’ laws against terrorism are in league with those who believe in anarchy and despotism. But it is useful to recall Paul Wilkinson's observations:

More insidious, because clearly less recognisable, is the assistance rendered to terrorists by wooly-minded liberals who succumb easily to terrorist propaganda. These fellow travellers of terrorism fancy that it is always ‘progressive’ to be on the side of a rebel, and are more ready to retail a terrorist atrocity story than to find out what really happened. They make speeches about the evils of war, and yet are prepared to justify murder and massacre by terrorists. [24]

One might perhaps add, “and provide intellectual, political and socio-economic justifications for those murders and massacres”.

It is possible, of course, that what many opponents of the proposed Bill have in mind as an alternative to the elusive 'legal solution to terrorism', is the isolation of the insurgents and terrorists from their support-base among the people by winning over their "hearts and minds." [25] This method has its opponents, notably General Sir Frank Kitson, who, like any military commander fighting terrorism gave short shrift to such ideas and expressed the conviction that “once you have them by the balls, hearts will follow.” [26] But the limitations of this in a situation of widespread terrorism or insurgency would be apparent, not only to the military mind, but also to anyone even remotely acquainted with the situation on the ground. These limitations were best expressed in a private conversation by a Mizo churchman in 1969: “This method of yours is like a see-through fig leaf. What, after all, is the point in one hand trying to heal the wound inflicted by the other?” This was a most telling view of the role of civil servants naively attempting to reach out to the 'hearts and minds' of the families of those whom the security forces were hunting down relentlessly in the jungles.

There is a significant viewpoint that the ultimate basis of the resolution of all political violence could be the "coalitions of commitments or alliances, that have in-built incentives to conciliation." [27] Theories advocating this approach point to three possible ways in which political violence in an ethnically divided society can be resolved: electoral politics, re-distribution of economic resources for development, and use of military power. There are several problems with attempting to translate such an approach into policy in a situation of widespread terrorism and breakdown of law and order, and of the institutional inefficacy of the agencies of government. Even if these are ignored, and, as confirmed democrats, we eschew the policy that advocates control of terrorism through the use of military power alone, resolution through electoral politics and re-distribution of economic resources may, in actual terms, imply the elevation of terrorists to the position of legislators and ministers, and the use of money to corrupt them to buy peace. This has been tried in the Northeast with disastrous results.  A society that expends its energies in redistributing wealth instead of creating it will succumb to stagnation and eventually fail to satisfy the very expectation of wealth without work that it has encouraged. Moreover, such methods inevitably appear to 'reward' terrorism, and would deepen the conviction among other disaffected groups or opportunistic leaders that a resort to the methods of terrorism is productive and profitable.

In expressing the opinion that the proposed CLA Bill “is an outright blow to all movements for right to self-determination, culture and language, especially in north eastern States,” [28] Nandita Haksar was possibly suggesting that a more fruitful course of action would be "increased consultation with the politically violent groups and their wider participation in decision-making or consociational democracy" [29] or "fundamental revisions in the relations between the regime and its people." [30] This may mean anything from grant of some kind of political autonomy to a measure of self-determination for those whom the terrorists claim to represent in a demographically homogenous area. Without examining the validity of such claims to representation, it is important to note that the first was tried with Article 370 for J&K, and the latter through the creation of the State of Nagaland. If a micro-study of human history in its 50-year cycle is permissible, both experiments have failed.

It can only be hoped that in the rejection of legal methods to deal with terrorism, some powerful dark forces in the Indian polity are not being persuaded to look for a more radical and elaborate “fundamental revision between the regime and its people,” with the dangerously motley crowd of criminals, fundamentalists, all kinds of people on the lunatic fringe, gun-runners, desperados, bloodletters, assassins, mercenaries and hirelings hailing from such diverse places as Pakistan, Afghanistan, Saudi Arabia, Sudan, Libya and several Central Asian countries who have launched an Islamic jehad on Indian territory, or with other extremists who have no respect for or faith in pluralism and democracy!

The third set of objections is more specific: that the earlier TADA did not achieve its objectives; that the law was not enforced; that there was gross misuse of the earlier TADA between 1985 and 1995; and that the new law, when enacted, will be misused again. These arguments have been supported strongly with incontrovertible facts and figures. A very valid question has been raised: does an executive incapable of effectively using powers given by its ordinary laws deserve special and extraordinary laws?

This is the view that Ram Jethmalani expressed while opposing the CLA Bill, 1995, in the Rajya Sabha: “From 1985 ever since the statute [TADA] was passed terrorism has not decreased, terrorism has increased in volume and in the extent of its operations. This shows that there is something wrong with your remedy. ” These observations  led him to the conclusion that terrorism was “one of those rare and peculiar offences that does not lend itself to treatment by law.”

There is a history of criminal laws having been repealed when they have ceased to be necessary or when it was required to replace them with new laws based on a recognition of new realities. But has a criminal law ever been removed from the statute books, or its re-enactment opposed, because it has failed to achieve its objectives? If that was so, the demand for the scrapping of the entire Indian Penal Code could find its justification precisely because the crimes mentioned therein have not only not decreased, but have, in fact, increased in volume and frequency by about one thousand times since the enactment of this legislation 150 years ago. By this argument, one can also quite legitimately demand repeal of the Arms Act, because it has not served its purpose, because it has not been enforced strictly, and because it has been grossly misused. Otherwise, how do thousands of unauthorised and unlicensed arms float around in the country? [31] These arguments can be taken to absurd limits if we forget that criminal law is always and only a deterrent to crimes, and not a guarantee against them, and that human society would have been far happier than it is if laws alone could eliminate the possibility of criminal conduct.

Nothing can ever be absolutely perfect, or entirely satisfy the idealist's aspirations. In fact, a government is never fully healthy anywhere. There is not a single perfect legislature, executive or judiciary in the world. Nor is there a perfect police force. Nevertheless, human societies endeavour to bring about improvements in their systems almost in proportion to their perception of its weaknesses and imperfections. This is how civilisations move forward.  We do not jettison a reform because of our perceptions, howsoever correct these may be, that those who are presently in charge of its implementation are corrupt, inefficient, handicapped, or in some other way incapable of executing their responsibilities as envisaged by the reforms. We reform in the hope, and this hope has often been rewarded by the forward movement of civilisation, that those who implement them will also be reformed in the process. If, moreover, there are structural weaknesses and constraints in the very formulation of the reform, these are best addressed, not by ‘throwing the baby out with the bath water’, but by eliminating these through a stochastic process of correction.

It is true that the preservation of democracy entails constant vigilance over the individuals and organisations that enforce its laws. But an obsession with historic transgressions (whether it is the emergency of 1975 or the misuse of TADA in Gujarat) is not particularly helpful at a time when the national focus must be on protecting the country against mayhem and a concerted challenge to the sovereignty of India on its northwestern and northeastern boundaries. The country and its best brains must rise above idealistic clap-trap and their formless and inchoate prejudices to look objectively at the ground realities and arrive at a consensus on legal response to terrorism.

The fourth set of objections is purely legal in character and relates to the derogation of the Indian Evidence Act and the Code of Criminal Procedure in the proposed Bill. Among many other departures from the current law of evidence and criminal procedure which have been objected to, some of the proposed deviations that have come in for sharp comments and more focussed analysis are: sweeping definitions which can make any kind of dissent or protest – 'from pamphleetering to writing a poem' – a terrorist activity; the admissibility of confessions to the police; presumption by the court that an offence has been committed on the mere refusal of the accused to give samples of fingerprints, footprints, handwriting, photographs, blood, saliva, semen or hair; presumption of guilt in certain other types of cases; confiscation of property by the police and its ratification by an executive authority; punishment for up to two years in a summary trial; trial in the absence of accused or pleader; police custody for thirty days with provision for re-taking accused in to police custody during six months of remand in judicial custody; provision of remand for six months without charges; bail only if the court believes that accused is not guilty; appeal only to the Supreme Court bypassing the High Court; powers of civil courts given to executive authority in violation of the constitutional provision separating the judiciary from the executive; other excessive powers given to the executive, including the power of scrutiny, the latter largely of its own actions. Many of these provisions, their detractors say, would violate the fundamental rights guaranteed by the Constitution as well as the established norms of criminal law in democratic countries.

While each of these clauses demands separate analysis and evaluation, it is not the objective of this paper to attempt such an assessment. Nevertheless, it is necessary to note that the criticism of these clauses suffers from three primary defects: in the first place, it fails to perform a constructive function or to realistically evaluate the policy options available to meet the challenge of terrorism; second, it is not based on any coherent or realistic understanding of the character or magnitude of the terrorist challenge; and finally, it ignores entirely the vast body of comparable legislation that already exists in virtually all democratic nations, including the advanced liberal democracies of the West, that have experienced even the faintest threat from terrorism.

The characterisations of counter-terrorism policy, Peter Chalk observes, typically fall into one of two types. First, there is the criminal justice model which views terrorism as a crime where the onus of response is placed squarely within the bounds of the state’s criminal legal system. The second is the war model, which views terrorism as an act of revolutionary / guerrilla warfare, and where the onus of response is placed on the military and the use of, for instance, special forces, retaliatory strikes, campaigns of retribution and troop deployment. [32] In the absence of appropriate and effective legal responses, the fight against terrorism inevitably inclines towards the war model, and this has been the case in India, and more particularly in J&K.  A very valid question would, therefore, arise: are we tolerating and even encouraging anarchy in the hope of eventually finding a ‘proper’ despotic solution for terrorism? This refers to what has been stated on the fourth page of this paper.

Those who drafted the CLA Bill were far from being original, and  the Law Commission has not blazed forth any new light on how terrorism can be countered legally. The entire documentation circulated by the Law Commission is based on the legislation and experience of some western democracies and an evaluation of India's own experience in the past. In fact, the proposed Bill has borrowed from all the existing laws in a number of countries, and this is clearly acknowledged in the Law Commission's Working Paper. [33] All aspects and provisions of the Bill that have been characterised as arbitrary, violative of fundamental rights, or excessive, can variously be found in the existing legislation in the United Kingdom, USA, France, Spain, Germany, and Canada. In all the western democracies, emergency powers to combat terrorism confer wide-ranging authority and discretion on the executive, subject to ‘extremely limited’ parliamentary surveillance and minimal judicial supervision. Significantly, these powers also make serious inroads into accepted civil liberties and right of citizens. But all these countries consider this a very small price to pay for arming and enabling the state adequately for combating terrorism.

Unfortunately, the Indian debate has remained mired in exceedingly flawed and partisan perspectives on the character of terrorism, perspectives that obstinately refuse to come to terms with the sheer virulence and unremitting evil of this method of warfare aimed simultaneously at the state and its citizens. Terrorism is not an ideology of liberation or a legitimate instrument for the expression of just grievances. It is the systematic use of injury, murder, and destruction, or threat of these, to create a climate of sustained intimidation and terror, and to coerce a wider target into submitting to the political, racial, ethnic, religious, territorial or criminal objectives of its perpetrators. Its key characteristics are: indiscriminateness, unpredictability, arbitrariness, ruthless destruction and carnage, and the implicitly amoral nature of its challenge.  As a policy and a method, any terrorist strategy will lack reality until sufficient examples have been provided for the terror to become effective. Random slaughters are not the 'collateral damage' inflicted by a terrorist campaign; they are its essence.

Terrorists do often have a specific human or material ‘target’, such as a political leader, a police informer, a column or camp of the security forces, but it is integral to their methodology that they also engage in the indiscriminate murder of civilians. All men, women, and children alike, regardless of their role and position in society, can be potential victims of a terrorist campaign. Terrorists, moreover, disregard all rules and conventions of war; and non-combatants, hostages, prisoners, and neutrals have no rights in their eyes. Terrorism also recognises no international boundaries, laws or conventions, [34] and can, consequently, be more effectively employed by a hostile neighbouring state as an alternative to war, as in the case of Pakistan’s role in J&K.  The growing use of terrorism as an alternative to war, its dependence on weaponry and explosives for most of its operations, and its reliance on a military type of organisational structure has led to tremendous escalation in its threat potential and its transformation into a method of low intensity warfare, a proxy war, or insurgency, and these are the terms within which it must now be understood and dealt with.

        There have been instances of victims of assassination or mass murder having been warned in advance, but acts of terrorism are generally entirely unpredictable and arbitrary. It is in this sense valid to describe terrorism as a peculiar kind of tyranny in which the potential victim is unable to do anything to avoid his destruction because the terrorist is operating and judging on the basis of his own code of conduct, or immediate perceptions of their interests. [35] This reaons alone imposes an overwhelming moral responsibility on the state to protect a potential victim or to neutralise the terrorist or render him ineffective. A partial and inadequate understanding of terrorism has led many analysts to seek to equate terrorism with other forms of political violence, and to uncritically transfer arguments that have been advanced in support of revolutionary violence or liberation movements against colonial regimes to terrorist movements in democratic nations. But terrorism can be clearly differentiated from other forms of violence, agitation, intimidation and coercion by virtue of its extreme and ruthlessly destructive methods. These include genocide, massacre, political murder, and torture at one end of the scale, as also the persistent intimidation, physical beatings, maiming, harassment, defamatory campaigns and provocative propaganda, at the other. Unlike other political strategies that target specific elements within the population, terrorist violence and intimidation is directed against the entire population, and a sweeping policy of liquidation is often considered necessary to acquire or sustain political or psychological control. Critically, there is no ground to assume that terrorists can arrive at a notional limit to their violence. This is what makes negotiations with, or a conciliatory attitude towards, terrorists counterproductive - especially in a situation where they perceive themselves as holding the advantage.  Indeed, concessions - usually interpreted as 'victories' - feed campaigns of mass murders that intensify the general terror. Such a strategy of escalating violence is seen as an effective device for psychological control of the population because, in the aftermath of a massacre, everyone is terrified of being caught in the next wave of terror. 

Finally, what distinguishes terrorism from other forms of organised violence is not simply its severity or lack of discrimination, but its absolute amorality. Terrorists either profess indifference to existing moral and humanitarian codes or exempt themselves from such obligations. In the terrorists’ ideology, the suffering and death of innocent people is entirely justified by their political or other ends. In their most explicit and candidly amoral form, they conform to the Nietzschean doctrine of the Will to Power. Terror is justified 'as the expediency of the strong, and such religious and humanitarian notions as mercy, compassion, and conscience must go with the weak to the wall of history.'

These are the reasons why the use of special powers to combat terrorism in peacetime has been extremely widespread, and almost eighty per cent of the countries in the world are currently engaged in defending themselves against various intensities of this lethal and  pervasive scourge. India is, perhaps, the only democratic country which, though afflicted with the most intensive and extensive terrorist movements in the world, has the distinction of having a vocal segment that insists that it will not allow the necessary defensive mechanisms and appropriate laws to be evolved or implemented. Are we, as a nation, really aware that sustained campaigns of political or criminal violence currently prevalent in India are profoundly subversive of democracy?

These opponents of special laws in India may also be aware that when the state fails to fulfil its primary function of protecting its citizens against indiscriminate, unpredictable, arbitrary and ruthless murder and destruction, citizens will either take the law in their own hands or support a new form of government, or accept a criminal gang that promises to deal with the threat more effectively, or even the perpetrators of terror themselves in exchange of conditional protection. This is the tragic lesson of the Northern Ireland conflict. As Wilkinson expresses it, “Terrorism is the most flagrant form of defiance of the rule of law. It challenges government’s prerogative of the monopoly of armed force within the state. Terrorists attempt to replace the laws of the state by their own laws of the gun and the kangaroo court. It is therefore vital for the government to act speedily and forcefully against them and, above all, to preserve their power to govern”. [36]

Liberals in India must be aware that “the whole thrust of classical liberalism was directed at establishing a government of laws in place of arbitrary and despotic power, and at establishing social peace”. [37] Among modern democracies, perhaps the first rationale for the use of extraordinary laws and powers to quell a rebellion was advanced by none other than one of the most celebrated liberals - Abraham Lincoln:

Every man thinks he has a right to live and every government thinks it has a right to live.  Every man when driven to the wall by a murderous assailant will override all laws to protect himself, and this is called the great right of self-defence.  So every government when driven to the wall by a rebellion will trample down a constitution before it will allow itself to be destroyed.  This may not be constitutional law but it is a fact. [38]

Among the passionate critics of the CLA Bill are some enthusiastic admirers of the USA, the fabled land of liberty, and of the American system of governance and justice. Amazingly, they ignore the fact that, with only a few hundred casualties to terrorism, the US leads the world in terms of counter-terrorism legislation, with over 900 pages of special laws and executive orders, including the Effective Death Penalty and Antiterrorism Act, 1996, which makes the death penalty mandatory for certain categories of terrorist action. [39] More significantly, Article I, section 9 of the US Constitution makes it the only Constitution of a democratic country permitting suspension of habeas corpus in cases of rebellion or invasion, and this provision has now been extended to cover terrorism.

In the United Kingdom, prior to the enactment of the Prevention of Terrorism (Temporary Provisions) Act, 1989 and the Northern Ireland (Emergency Provisions) Act, 1998, 22 extraordinary or special laws had been enacted between 1797 and 1984. [40] The 1996 Report of Lord Lloyd, that emphasised the need for a specific and permanent counter-terrorism law after lasting peace has been achieved in Northern Ireland, was accepted by the British Government. A ‘consultation paper’ issued by the Government in 1998 conceded the need for a permanent legislation to combat terrorism, on par with the vast majority of criminal laws, since “The annual renewal of current anti-terrorist legislation… does not reflect the current reality that such powers are likely to be needed for the foreseeable future.” [41]  

These trends in national legislation now enjoy an increasing international mandate. The United Nations' Covenant on Civil and Political Rights, 1966, recognised the need for the state to override certain human rights: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." The spirit of the provision was borrowed from the European Convention on Human Rights, 1950, and was later adopted by the American Convention on Human Rights, 1969. The United Nations' Declaration on ‘Measures to Eliminate International Terrorism’ further strengthened the hands of its member states to bring about stringent and extraordinary anti-terrorism legislation. The Declaration stated that that the UN

1.    Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;

2.    Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them;

3.    Calls upon all states to adopt further measures in accordance with the relevant provisions of international law, including international standards of human rights, to prevent terrorism and to strengthen international co-operation in combating terrorism. [42]

It is clear, consequently, that the outright rejection of a law to combat terrorism, or the presumption that terrorism is one of the "rare and peculiar offences that does not lend itself to treatment by law," is arbitrary, irrational, contrary to facts and against the grain of the international consensus on the subject.

This does not mean that the proposed CLA Bill must be accepted uncritically as drafted. Indeed, there are several flaws in the present formulation, and, on close examination, it can be seen that some of the objections raised by its detractors appear to be valid. [43] At least some of the clauses suffer from the vice of “overbreadth” or the extension of their scope and definition beyond the exigencies and requirements of the situation they are meant to deal with. They comprehend actions that are outside the sphere of the activities that should rightly be penalised under such legislation. In the past, much of the misuse of TADA was a consequence of such "overbreadth," and particularly of a sweeping definition of ‘terrorism’. This undiscriminating scope was also the reason for the sustained hostility of the legal community towards this Act. For instance, irrespective of one's position on the Narmada Dam, it is not comprehensible how the law could be stretched to the point where social activist and protestor, Medha Patkar, could be arrested under TADA. TADA was, similarly, applied to labour unionists and various other categories of anti-government and anti-establishment protestors, even where such protests were entirely non-violent. The sheer scale of abuse to which TADA lent itself can be estimated by the fact that by May 1993, Gujarat, a State that was and remains unaffected by terrorism, had over 17,000 persons detained under TADA, 32.08 per cent of the total of 52,998 TADA detenus in the country at that time. J&K, where militancy was at a peak at the same time, had just 1,826 detenus under this Act. Something was clearly very wrong with TADA, and it is necessary to ensure that the same infirmities are not carried over into the CLA Bill.

There is, therefore, the need to redefine and reframe several clauses in the proposed Bill to make this law more narrowly focussed and to plug all possible loopholes, both for its misuse by the agencies of the state and for the abuse of its process by criminals and their legal representatives.

1.        First let us take the provisions that have an in-built scope or temptation for misuse, either by an exasperated police or armed force, or by a vindictive and desperate politician. Sub-clause (8) of section 3 of the proposed Bill seeks to punish ordinary citizens for their failure to disclose information relating to terrorist activities that they may come upon, and has enormous scope for abuse. In a situation, where even the members of the hallowed judiciary fail to carry out their sworn duty, and where (for instance in J & K), despite the persistence of terrorism for decades, over 23,000 killed, and more than 20,000 TADA arrests, not a single conviction for terrorist crime has been secured, it would be most unfair to impose such a duty on the common man. Such a clause would criminalise fear, a completely natural response to the indiscriminate and arbitrary nature of terrorism. Unless the state is capable of protecting its people, which the Indian state, at this point of time, evidently is not, it must not compound the threats extended by the terrorists by further threats of penalising those who fail to provide information. The right to silence is one of our greatest natural rights, and it cannot and should not be taken away by a democratic legislation.

2.        Penalties have been prescribed for “advocacy” of secessionist ideas in a number of sections [Section 4 (1) & 4 (1) (d); Section 4 (2) and 4 (3)].  This can be misused. Clauses penalising the abetment or facilitation of terrorist crime should be defined very ‘narrowly’, and should crimilinalise only explicit acts of abetment. The advocacy of ‘ideas’ cannot and should not be proscribed in a democracy. Moreover, these provisions would, once again, tend to misdirect the enthusiasm or desperation of the police and security forces against members of a community who may be sympathetic (or be regarded as sympathetic) to the terrorists’ cause, but not necessarily active in their support. The term 'advocates' and any other reference to peaceful and democratic propagation of ideas should be deleted. The inclusion of 'incitement', which is defined with precision, is, however, entirely correct.

3.        Some thought needs also to be given to redrafting Section 4 (4). While harbouring of terrorists should be punished, the ground realities must not be ignored. In a very large number of cases, terrorist coercion leads to co-operation or assistance from general public. This would amount to double punishment: first by the terrorists who obtain a hiding place or food or sexual favours under threat of death, and later by the state for extending such 'services'. Once again, the state has no right to punish those it cannot protect.

4.        There is, however, a corresponding need to impose stricter penalties where the mischief is intentional and beyond doubt. Sub-clause (7) of Section 3 prescribes a minimum imprisonment of three years and fine for intimidating witnesses.  This crime is one of the most significant aspects of the breakdown of law and the failure of the state to secure conviction of terrorists, and must, therefore, attract harsher penalties. A maximum sentence of seven years and a mandatory minimum punishment for three years would be more appropriate. Section 6, moreover, leaves a large gap for receipt of contributions – both foreign and Indian – by overground organisations supporting the terrorist cause.  There is need to ensure that the flow of funds to these so-called 'socio-political', 'human rights' and 'democratic rights' organisations is transparent. This has been the most subtle channel of support to terrorists worldwide, and more particularly in India, and an effective counter-terrorism law must take this into consideration and create an effective system to monitor the activities of over-ground affiliates of terrorist organisations. In Assam, it has been noted that some newspapers and so-called ‘human rights’ and ‘civil rights’ groups started sustained campaigns of defaming a civil or police officer if he was perceived to be successful in counter-insurgency operations against the United Liberation Front of Asom (ULFA) or the National Democratic Front of Bodoland (NDFB). Some newspapers even publish false reports of threats of abduction of children of officers who were regarded as hardliners in the fight against terrorism, with a view to create a climate of psychological terror and coercion. Such defamatory stories or hints of danger to the families have often achieved their objectives by rendering these officers less ‘enthusiastic.’

5.        Section 1(3) fixes a term of five years for the legislation to remain in force. In view of the persisting problem of terrorism, low-intensity warfare, insurgency and militant political movements in many parts of the country that are unlikely to be resolved in the foreseeable future, this legislation must be of a permanent nature like other criminal laws of the country.

The last point raises a host of other issues. The first of these, of course, is that the CLA Bill remains within the paradigm of a 'special' or 'extraordinary' law, which will remain anathema to some, and all efforts to enact the legislation are likely to run into rough weather because the idea is repugnant to certain influential segments within India's intellectual and political establishment. It is possible that counter-terrorism legislation will answer objections from these quarters if it can be brought in line with existing legal and judicial thinking. Moreover, as already stated, the idea of 'special' or 'extraordinary' legislation suggests that terrorism is a transient emergency, and requires temporary adjustments in the legal paraphernalia till the emergency has passed. This is far from the truth, and there is no reason to believe that terrorism will cease to be a menace and a critical internal security threat, for decades to come.

The law, if it is to be effective, must be a living, constantly evolving organism that recognises changing realities and adapts to them. This is far from the stagnant, quiescent, obstructive reality of the law in India today. A century and a half ago, the British framers of the Penal Code were confronted with a unique phenomenon in India, one that failed to correspond to any category of criminal conduct in their previous experience - the existence of loosely structured armed gangs that came together for the purpose of committing armed robberies, referred to by the locals as dakaiti. The essence of this paradigm of criminal conduct, however, went far beyond the simple act of commission of such robberies, to comprehend a complex of unlawful activities that included criminal conspiracy, collusion, intimidation, extortion, the illegal acquisition and possession of arms, and the membership of unlawful organisations. Nevertheless, the composite offence of dakaiti was understood to be more than the sum of its constituent parts, and therefore, demanded separate recognition in the law and exemplary punishment for what was seen to be a particularly odious compound. Good governance required that old English norms be abandoned or amended when confronted with every new challenge, and new methods and mechanisms be devised to deal with new realities. The British accepted these ground realities and coined two English words - dacoit and dacoity – corresponding phonetically to the Indian words dakait and dakaiti so that the criminal terminology could provide the Indian mind with a native social correlation of what was thought to be a criminal conduct specific to India. These were then variously incorporated into Sections 390 to 402 of the Indian Penal Code (IPC), and continue to abide there. It is interesting to note that the IPC prescribes rigorous imprisonment for a term of as much as ten years for making preparation to commit dacoity. [44] Membership of a gang of dacoits is punishable with as much as imprisonment for life, or with imprisonment of up to ten years. [45]

The British response to the unfamiliar offence of dacoity is an excellent model on which we can construct our legislative response to the challenge of terrorism, and, indeed, the provisions of Sections 390 to 400 of the IPC provide an appropriate paradigm for a draft of a permanent law for crimes related to terrorism which could be incorporated into the IPC. (A draft of the required amendments to the IPC is appended to this paper. [46] The language and format of the proposed amendment have been adapted from Sections 390 to 402 of the Indian Penal Code).

The point of this digression is that our legal remedies must conform to present realities on the ground, and not to inherited or acquired ideological dogmas. For decades now, large parts of the country have been ravaged by the scourge of an unrelenting, escalating terror, and yet the phenomenon finds no mention in our statute books. Worse, every attempt to put it there is thwarted by hysterical shrieks of horror. It is time to ask ourselves: who is most benefited by these campaigns of obstruction?

In any case, it is necessary to reiterate that the human predilection for vengeance, for ‘an eye for an eye’ and for ‘taking the law into one's own hands’, in the manner of the IRA or the Unionists’ gangs in Northern Ireland, is moderated only by the belief and conviction that a system of justice exists and that the state is fully equipped and motivated to enforce the law. This belief and conviction is at risk when criminals and terrorists appear to evade punishment through the inadequacy and weakness of the system of criminal justice, and the inefficiency or leniency of the system of criminal administration.

Terrorism, whether by itself, or as part of a secessionist insurgency, or of a proxy war, or a localised militant movement or an ethnic conflict, is the most lethal form of criminal conduct. It has taken a toll of about 2,50,000 lives in India over the past 50 years. [47]   But the reality on the ground is nowhere reflected in, or accommodated by, our parliamentary and judicial response, or in the response of our intellectuals and the media. The danger is that, if India's institutions of governance do not find solutions to the emerging realities of the situation, the realities will find their own solutions.

Those who are ultimately responsible for taking unpleasant decisions to safeguard the security of the state and its citizens must know that society cannot afford to be neutral between its own life and death. If we remain too wet and windy to inflict some pain on the terrorists - even at the risk, perhaps inadvertently and incidentally, of some harm to innocent bystanders - there is no telling what impact such cowardice and lack of direction will have on the future of the country. For all the seeming disarray and discordance, a consensus on a new counter-terrorism law is possible and must be striven for. But the search for a consensus cannot be an endless process. Sometimes decisions that are unacceptable to a vocal minority are the right decisions, and must be taken at the right time.

Public whistle-blowing appears to be a full time occupation among many arm chair liberals. But, over all these decades of terrorism, why has not a single detractor of 'draconian laws' sat down and drafted an alternative and perhaps more humane law to combat terrorism and help save the thousands of manifestly innocent lives that have been lost to this evil?

One of the most consistent and incurable traits among India's 'intellectuals' and 'liberals' is their neurotic introversion, the tendency to make statements and take actions with a view, not to their effect on the nation or on the problem to which they are ostensibly addressed, but rather to their impact on those echelons of the international or sectional opinion to which they are anxious to appeal. The question, consequently, is not: how effective is what I am doing in terms of its impact on the national environment? Rather, it is: How do I look in the mirror of international democratic opinion, in the opinion of the community whose admiration I crave, and in the opinion of the various agencies whose support I seek? Do I look shrewd, determined, defiantly committed to the eternal values of civil and human rights, imbued with the necessary vigilance before the 'oppression' of a government? If so, this is what I do, even though it may prove to be meaningless, or even counter-productive when applied to the realities of the national situation.

The one area where the power of the state in India has been steadily dwindling instead of expanding is precisely where it should be the strongest: the realm of internal security. With the continuous and accelerating spiral in terrorist and criminal violence - and the emerging complex of linkages between these - strong legal measures have become an inescapable imperative if a constitutional solution is to be sought, and if the situation is not to hurtle completely out of control. Sagacity and restraint are essential in the drafting of these measures, and the government must display greater moral courage than it has over the past five years, in recognising the real flaws and shortcomings in the proposed CLA, and, with complete sincerity, ordering immediate revision of any repugnant clauses. The greatest danger, however, is that the current and orchestrated protests may be allowed to cow down the state and its agencies, and that we will persist in muddling along in our war against terrorism without any suitable and effective legal framework. If this happens, we would be victims, once again, of a great and avoidable tragedy brought upon ourselves by a creeping paralysis of the national will, and of the penchant to ignore warning signals and go serenely to bed at ten o’clock

 

 


APPENDIX I

Proposed Amendment to the

Indian Penal Code

 

Draft Chapter XXIV

Of Offences Relating to Terrorism

 

Section 512:

When a person, either alone or conjointly with other persons, uses force, intimidation, threat of injury or death for ends and objectives that are either political, or ideological, or racial, or ethnic, or religious, or territorial in nature, and uses such force, intimidation, threat of injury or death for putting any individual or section of the public in fear, and makes use of injury, murder, and damage to life or property, or threat of the same, to create terror for publicising a cause and/or to coerce any individual, group or community or institution into submitting to its objectives, and has committed or attempted to commit any act, or has directed or organised or trained or aided or abetted or coerced any person or group of persons into committing such acts, and has caused any fear or injury or death to a person or caused damage of private or public property in pursuance of above-mentioned ends and objectives, every person so committing, attempting, or aiding is said to commit an act of “terrorism.”

 

Section 513:

Punishment for Terrorism: Whoever commits terrorism shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine and forfeiture of his movable and immovable property.

 

Section 514:

 Whoever commits terrorism with the use and help of of firearms, explosives or any other lethal instrument or weapon, and such acts result in the injury or death by the use of such firearms, explosives, lethal instrument or weapons, or in the destruction of private or public property of the value of Rs. One thousand and above, shall be mandatorily punished with death or imprisonment for life, and shall also be liable to fine and forfeiture of his movable and immovable property.  

 

Section 515:

If, at the time of attempting to commit terrorism, the offender is armed with any deadly weapon, he shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine and forfeiture of his movable and immovable property; provided that no such rigorous imprisonment shall be of a term of less than seven years if the deadly weapon with which the offender is armed is unlicensed, or belongs to a person other than the offender, or is of a make, type and calibre not ordinarily allowed for civilian use under a licence issued by a competent licensing authority.

 

Section 516:

Whoever makes any preparation for committing terrorism, shall be punished with rigorous imprisonment which may extend to ten years; and shall also be liable to fine and forfeiture of his movable and immovable property; provided that no such rigorous imprisonment shall be of a term of less than seven years if the deadly weapon with which the offender is armed is unlicensed, or belongs to a person other than the offender, or is of a make, type and calibre not ordinarily allowed for civilian use under a licence issued by a competent licensing authority.

 

Section 517:

Whoever, at any time prior to or after the passing of this Act, belongs to, or is a member of, or assists in any manner whatsoever, a group or gang of persons associated with or engaged in acts of terrorism shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine and forfeiture of his movable and immovable property; provided that no such rigorous imprisonment shall be of a term of less than seven years if the offender is armed with a deadly weapon or explosive of a make, type and calibre not ordinarily allowed for civilian use under a licence issued by a competent licensing authority.

 


Section 518:

Whoever shall be part of an assembly, group, or gang of persons who assemble or meet at any time or in any place with the objective of committing terrorism, shall be punished with rigorous imprisonment for a term which may extend to seven years; provided that no such rigorous imprisonment shall be of a term of less than ten years if the offender is armed with a deadly weapon or explosive of a make, type and calibre not ordinarily allowed for civilian use under a license issued by a competent licensing authority at the time of such assembly or meeting.

 




*       V.S. Jafa serves in the Indian Administrative Service (IAS) and is a former Chief Secretary of Assam. He studied the Northern Ireland conflict as a Visiting Fellow at the University of Oxford (1986‑87); as John D. and Catherine T. MacArthur Fellow and a Visiting Fellow at the Massachusetts Institute of Technology (1988‑89), he researched the revolutionary, ethnic and religious roots of violence, counter‑insurgency and counter‑terrorism in the context of the theory and practice of conflict resolution. He is also a Consulting Editor with FAULTLINES.

[1]       Lt. Gen. (later Field Marshal) S.H.F.J.  Manekshaw, then GOC-in-C, Eastern Command, told the author in 1968 that the armed take-over of the district by the MNA would have been difficult if this battalion had been inducted on time.

[2]       The Pataskar Commission was set up to assess the demand of the Northeastern hill tribal areas for separation from Assam, and to see how Nehru’s Scottish pattern plan elaborated for these areas before his death could be used to resolve the growing unrest. It was also after this visit to Mizo Hills that Vishnu Sahai proposed his ‘federal plan’ which envisaged a separate political unit for each hill tribe in the Northeast, based roughly on the Austro-Hungarian federation of 1867-1918. The recommendations made by the Pataskar Commission and Govenor Vishnu Sahai formed the basis of the Northeast Areas Reorganisation Act, 1971, which eventually resulted in the formation of the States of Arunachal Pradesh, Meghalaya, Mizoram, Manipur, and Tripura.

[3]       K. Subrahmanyam, who headed the Kargil Review Committee that evaluated the events that led up to the Pakistani aggression in the Kargil sector, writes:

"Above all, Kargil highlighted our lack of familiarity with the business of war, the importance of how the Army is structured to fight, and the issue of lead times for weapons and equipment procurement.

On the intelligence front, Kargil brought into the open:

·          our lack of sensitivity to intelligence at the political and bureaucratic levels

·          our inadequate understanding of the process of intelligence collection, collation and assessment 

·          the imprecise demarcation of responsibility among different agencies.

Unfortunately, there is widespread reluctance to explore the deficiencies and shortcomings in the system."

See, "Kargil: Reluctance to learn lessons," New Delhi: The Times of India, May 5, 2000.

 

[4]       For those who find the Criminal Amenedment Bill 1995 in its resurrected form totally repugnant or unacceptable, I am proposing an Amendment to the Indian Penal Code in an Appendix to this article.

[5]       Cited in Glitz, Bradley R. and Maranto, Robert A., "Underclass Rationality and Street Gang as Alternative Regime," in Low Intensity Conflict & Law Enforcement, Volume 5, Summer, 1996, Number 1, p. 89.

[6]       See Law Commission of India, Working Paper on Legislation to Combat Terrorism. The Report is fairly comprehensive and includes Chapters on I. Security Situation in India, II. Legislation Regulating Terrorism in India, III. Legislation Relating to Terrorist Activities in Foreign Countries, IV. The Necessity for a Permanent Anti-Terrorist Law in India, and V. Proposals.

[7]      Shourie, H.D., "Soft state’ and ‘zero tolerance’ don’t mix,"' The Times of India, New Delhi, February 11, 2000.

[8]       See 'TADA: Hard Law for Soft State', Economic and Political Weekly, March 25, 2000, which gives an edited version of the report, pp. 1066-1071.

[9]       The Hindustan Times, New Delhi, Sunday, April 9, 2000, p. 2.

[10]      Ibid.

[11]      Ibid.

[12]      Lok Sabha Proceedings, 12 August 1991.

[13]      A professor of political science once spoke in a humourous vein about how a sociologist looks at resolution of terrorism. “We can do many things, but it has to get worse before it gets better”, said the sociologist. “That’s bad,” said the political scientist. “It could be good. If it gets worse before it gets better, it is better than if it gets better before it gets worse,” the siologist retorted. “I never thought of that”, said the political scientist. “That’s why I am a sociologist,” was the answer. 

[14]      Op. cit., p. 1066.

[15]      Sir W. Ivor Jennings said, “On the surfarce of it, it seemed reasonable; let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who are the people.” The Approach to Self-Government.

[16]     Mustafa, Seema, "Jethmalani Objects to New TADA Laws," The Asian Age, New Delhi, Tuesday, April 4, 2000, p. 1.

[17]      See Huntington, Samuel P., Political Order In Changing Societies, New Haven: Yale University Press, 1968, pp. 33-34.

[18]      Cf. Sahni, Ajai & George, J., "Security & Development in India's Northeast: An Alternative Perspective,", Faultlines: Writings On Conflict & Resolution, Volume 4, New Delhi: ICM-Bulwark Books, 2000, esp. pp. 51-66. Also at www.satp.org.

[19]      Bright, John - 19th century British parliamentarian and pacifist and father of Britain's free trade and electoral reform.  He was the original of Mr. Turnbull, the radical character in Anthony Trollope's parliamentary novels.

[20]      Bonner, David, Emergency Powers in Peacetime, London: Sweet and Mazwell, 1985, pp. 14-20.

[21]     Hattersley, R., MP, British House of Commons Debate on the operations of the antiterrorist laws in Northern Ireland, March 18, 1981, Vol. 1, Col. 340.

[22]      In the history of the French Revolution, the Jacobin ‘terror’ was ended by the coup d’etat of 9th Thermidor (27 July 1794), followed by a strong reaction against Robespierre’s use of 'terror' as a revolutionary concept.

[23]      This refers to the view that society is not a decision-making or law-making body, and becomes one only by becoming a state.  This gives the state the right to enact a law, which, according to J. S. Mill, is the “expression of a social requirement”.

[24]      Wilkinson, Paul, ‘Terrorism vesus Liberal Democracy: The Problem of Response’, in Gutteridge, William, The New Terrorism, Institute for the Study of Conflict (no date), p. 7.

[25]      The idea of winning and influencing “hearts and minds” was in all probability propounded by Field Marshal Sir Gerald Templer in Malaya (1948). SeeThompson, Sir Robert, Defeating Communist Insurgency, London, Chatto and Windus, 1966. Also quoted in Beckett, F. W., and Pimlott, John, Armed Forces and Modern Counter-Insurgency, New York, St. Martin’s Press, 1985, p. 24.

[26]      For full analysis and discussion, see Kitson, Frank, Bunch of Five, London, Faber and Faber, 1971, Gangs and Counter-gangs, London, Barrie and Rockliff, 1960, and Low Intensity Operations, Harrisburg, Stackpole Books, 1971.

[27]      Horowitz, Donald L., Ethnic Groups in Conflict, Berkeley: University of California Press, 1985, p. 578.

[28]      Op. cit.

[29]      Lijphart, Arend, Democracy in Plural Societies, New Haven: Yale University Press, 1977, p. 165.   According to Lijphart, consociational democracy "assumes that political elites enjoy a high degree of freedom of choice, and that they may resort to consociational methods of decision-making as a result of the rational recognition of the centrifugal tendencies inherent in plural societies and a deliberate effort to counteract these dangers."

[30]      Foltz, William J., "Building the Newest Nations", inKasperson, Roger E., and Minghi, Julian V., edited The Structure of Political Geography, Chicago: Aldine Publishing Company, 1969, p. 285.

[31]      An estimated seven million small arms are believed to be circulating in South Asia, and a very large proportion of these have found, or eventually will find, their way into India. Cf. "Concern over threat from free use of arms", The Hindustan Times, 18 April, 2000, p. 5.

[32]     Chalk, Peter, ‘The Liberal democratic Response to Terrorism”, in Terrorism and Political Violence, Volume 7, Winter, 1995, Number 4, p. 17.

[33]      Cf., Law Commission of India, Working Paper on Legislation to Combat Terrorism, Chapter III: Legislation Relating to Terrorist Activities in Foreign Countries, pp. 11-30, and esp. para 3.2.11.11, p. 30.

[34]      Osama Bin Laden, for instance, is recently reported to have called upon the "youth of the Muslim World" to join his international jehad. His message in Urdu, widely circulated in Pakistan, explicitly declares, "Territorial boundaries have no importance in our eyes. All lands belong to God."  See "Osama: Jehad against US till it leaves Saudi Arabia," New Delhi: The Hindustan Times, 18 April, 2000, p. 14.

[35]      As K.P.S. Gill noted in a statement broadcast on All India Radio on 26 March, 2000, in the wake of the massacre of Sikhs at Chatti Singhpora in Anantnag: "You cannot buy peace from those who have rejected all principles of humanity and of morality. Many people in India – and not the Sikhs of Chatti Singhpora alone – believe that they, or their specific regional, linguistic or religious groups, cannot become the targets of terrorism. This is the fallacy that gives the terrorists power. It is only when we understand that these people threaten every one of us, and that it is, consequently, only when we stand together and protect each other, that any one of us will be really safe."

[36]      Wilkinson, Paul, Political Terrorism, London: Macmillan, 1974, p.12.

[37]     Wilkinson, Paul, Terrorism and the Liberal State, London and Basingstoke: Macmillan, 1977, p. 77.

[38]      Taken from the citation by M.P. O'Boyle in "Emergency Situations and the Protection of Human Rights: a Model Derogation Provision for a Northern Ireland Bill of Rights", Northern Ireland Law Quaterly , 1977, No. 28, p. 161.

[39]      Other important US antiterrorism legislations are: Effective Counterterrorism Act of 1996, Comprehensive Antiterrorism Act of 1995, Counter Terrorism Technology Research Act of 1995, Antiterrorism Amendments Act of 1995, Senate Omnibus Counter Terrorism Act of 1995, House Omnibus Counter Terrorism Act of 1995, Executive Orders Prohibting Transactions with Terrorists, Senator Feinstein’s Amendment to Prohibit the Distribution of Bomb Making Information on the Internet.

[40]      These are: Incitement to Mutiny Act, 1797; Prevention of Crime (Ireland) Act, 1882; Restoration of Order in Ireland Act, 1920; Restoration of Order in Ireland (Indemnity) Act, 1923; Incitement to Disaffection Act, 1934; Public Order Act, 1936; Prevention of Violence (Temporary Provisions) Act, 1939; Emergency Powers Act, 1939; Emergency Laws (Transitional Provisions) Act, 1946; Emergency Laws (Miscellaneous Provisions) Act, 1947; Backing of Warrants (Republic of Ireland) Act, 1965; Northern ireland Act, 1972; Northern Ireland (Emergency Provisions) Act, 1973; Prevention of Terrorism (Temporary Provisions) Act, 1974;  Criminial Jurusdiction Act, 1975; Northern Ireland (Emergency Provisions) Amendment Act, 1975; Prevention of Terrorism (Temporary Provisions) Act, 1976; Northern Ireland (Emergency Provisions) Act, 1978; Judicature (Northern Ireland) Act, 1978; Administration of Justice (Emergency Provisions) Act, 1979; Criminal Appeal (Northern Ireland) Act, 1980; Prevention of Terrorism (Temporary Provisions) Act, 1984.

[41]      House of Commons, Cmnd. 4178.

[42]      A/RES/51/210, 16 January 1997, Fifty-first session Agenda item 151, RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY [on the report of the Sixth Committee (A/51/631)] 51/210. ‘Measures to eliminate international terrorism’. gopher://gopher.un.org/00/ga/recs/51/RES51-EN.210

[43]      The following 'perceived flaws, imperfections and inadequacies' in the proposed Bill have emerged from a discussion with K. P. S. Gill and Dr. Ajai Sahni.

[44]      Section 399, IPC.

[45]      Section 400, IPC.

[46]      See Appendix I. Corresponding amendments to the CrPC and the Indian Evidence Act would also be necessary to enforce this proposed Amendment. These are not being detailed or examined in the present paper.

[47]      This figure is tentative and includes deaths of civilians, policemen and members of the security forces in all the insurgencies, acts of terrorism, localised militant movements, and ethnic conflicts related killings, more particularly in the States of Assam, Meghalaya, Nagaland, Mizoram, Manipur, Tripura, West Bengal, Bihar, Uttar Pradesh, Delhi, Haryana, Punjab, Jammu and Kashmir, Madhya Pradesh, Andhra Pradesh, Orrisa, Tamilnad, Maharashtra. All these figures have been clubbed together because the cause is common: inability of the legislatures to enact timely and adequate laws, failure of the executive to enforce the laws that are available on the statute, and failure of the judiciary to award condign punishments to those engaged in the wrecking of the society itself.  

 

 

 

 

 
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