Assorted Monologues

    Bangalore, Ahmadabad, Delhi… what next? It could be any other city in the country… it could be any place in any city…Railway stations/Shopping Malls/Theatres/Markets. Can’t this be stopped? The mail sent by the militants brazens it out, “In the name of Allah, Indian Mujahideen strikes back once more. … Do whatever you can. Stop us if you can!” ‘The common man’ in the recently released Hindi film ‘A Wednesday’ (a beautiful film by the way), aptly points out- the terrorists are asking us an open question, “We are going to continue such killings; Can you stop us?” Do we have the answer? This question drives me back to the old debate of Security V/s Liberty. It reminds me of POTA, an anti-terror legislation now ‘Resting in Peace’ in some academic annals. Is it time to bring it back?

    BJP has taken vows to restore the law if it comes back to power. Most of the other parties stand in opposition and echo the view expressed by many human rights activists & organizations, labeling it a ‘draconian legislation’. Some legal luminaries, including the Verappa Moily Reforms Commission have favoured enacting a more stringent anti-terror law on the lines of POTA.

Demon of Terrorism

    Does the country need stringent Anti-Terrorist laws? Before we plunge ourselves into seemingly unfathomable waters of this debate, it would be pertinent to note the amount of damage this demon of Terrorism has inflicted. There’s hardly any State immune from mayhem caused by terrorism. No city can boast to be safe from any terrorist attack. The Number of civilians who have lost their lives out of terrorist acts in this country is ten times the number of soldiers we have lost in four major wars that we have fought. Did you know that the weight of explosives confiscated so far by our security agencies has crossed the 50,000 kg mark? The economic cost (excluding the military expenditure) has surpassed Rs 50,000 crores. It’s a serious proxy war, make no mistake.

What’s the Need of Special Legislation?

    Indian Criminal Justice System as we see it today was formulated in Victorian Era…literally. Indian Penal Code, providing punishment for criminal wrongs was enacted in the year 1860. The Criminal Procedure Code & the Evidence Act are equally ancient and clearly ill-equipped to deal with new challenge of terrorism. The Indian Evidence Act abides by the famous good-old maxim of protection of innocent persons even at the cost of letting loose few guilty ones. It’s high time we question the relevance of such maxim in current era.

    There are numerous lacunae in our procedural laws. It cannot be denied that ‘Bail is a rule & jail is a rarity’ here. The conviction rate is abysmally low. The 40% conviction rate advertised to justify the present judicial system cannot be a cause of jubilation for a mere fine of 100 rupees is also counted as a conviction. A rate of conviction in more serious & heinous matters barely manages to cross the figure of 7%. So crime scenario in India paints a gloomy picture where it’s very easy to commit a crime & get away with it.

Besides in cases where conviction is the final outcome, it takes years & decades to bring the accused to books. And with no special courts to deal with these cases, this delayed justice is equivalent to justice denied. Half a million cases are pending for more than 10 years in the High Court & more than 1 million in the lower courts.

Prevention is always better than cure. Instead of catching the terrorists in the aftermath of loss of hundreds of life, what India needs is prevention of such acts. But no law in India functions as a specialized ‘preventive law’. It is argued that we have National Securities Act, 1980. But the Act was never intended to curb terrorism. It does provide preventive detention; but that’s about it really. The Unlawful Activities Prevention Act, 1967, even with all its amendments, can at best be used for preventing unlawful assemblies & preserving national integration. There is stark absence of strong & all-comprehensive Act.

So the need of the hour suggests that we need a law that will overcome the procedural lacunae, will support stringent administrative actions, will provide for separate judicial machinery & thus speedier justice, will increase the conviction rate in such crimes and most importantly will help prevent them in first place. Could POTA be the answer?

POTA: What can it offer?

    Before we embark on the debate of whether we need POTA or any similar legislation, let us go through the basics of what POTA had to offer.

1. The Act, as it was enacted in 2002, provided for criminalization of ‘abetting’ a terrorist. Means the presumption of guilt was prescribed for a person ‘associated’ with an organization labeled as ‘terrorist’. And the onus of proving his innocence now rested on the accused and not the prosecution (Principle of Strict Liability). Now this provision, unfair as it might seem to few, can act as a great deterrent force and prevent the free growth of terrorist outfits. Bringing those, who are harbouring the terrorists, within the purview of criminal prosecution is the need of the hour.
2. Under S. 49(2) of POTA, police could detain a suspected person for 90 days and this period could be extended for another 90 days if State could persuade the Court about the pressing need.
3. Denial of bail (unless Court reads abuse of power or lack of prima-facie evidence) was another POTA feature.
4. Confessions before Police have no evidentiary value under normal rules of Evidence. But under POTA such statements form substantial part of evidence.
5. To deal with cases of terrorism, POTA had provisions to establish Special Courts, having discretion to hold trials in non-public places like prisons. Even the power of withholding trial records from public had been vested with these Courts.

Sciolistic view at the POTA features, thus might allow us to deduce that POTA is the panacea for all the aforementioned lacunae in regular Criminal legislation. However, this piece of legislation is not without shortcomings, some serious shortcomings!

POTA: Is it a Draconian Legislation?

    Many champions of human rights & liberty, including NHRC (National Human Rights Commission) have opposed this legislation on various grounds.

1. Under POTA, confessions before police have evidentiary value. So the fear is raised that police would use coercive force and third degree to compel the innocent accused to give confessionary statements. Though this possibility cannot be entirely disregarded, there are some safeguards in place. Magistrate may, if the accused claims that the confession was involuntary & taken under coercive force, order the medical examination of the accused. Besides, the confessionary statements unless backed by corroborative evidence cannot be relied upon solely to attract conviction. Hence the possibility of an innocent being framed is pretty less.
2. Evidentiary value of intercepted phone calls is zero under normal law; but the Acts like POTA allow such phone –tapping. Some human rights activities say that this is gross violation of individual’s privacy guaranteed under Article 21 of the Constitution; but the same is common under many anti-terror laws in many countries as we will see and has also been upheld by our Supreme Court under provisions of Acts like POTA & MCOCA (Maharashtra’s Organized Crime Law).
3. The discretionary powers of the Special Courts to hold trials in non-public places like prisons were also under attack. But Criminal Procedure Code already allows the Courts to hold trials in such places for security reasons. So nothing new here.
4. ‘Jail is the rule & bail is rarity’, they say under POTA. Hence the natural allegation is the possibility of abuse of such unfettered powers by the police, especially if they act as tools of reigning politicians. Police might use this power arbitrarily to settle personal scores & take personal vengeance. Again the possibility cannot be ignored and in fact POTA had notorious history of abuses. But interestingly, POTA provides for punishment (two years of punishment & fine) for the police officer found guilty of malafide action, which MCOCA does not. And still review of MCOCA in 2003 reported no abuses. In fact POTA did provide a slew of safeguards to prevent such abuse like necessity of State sanction before Court could take any cognizance, compensation to victims in cases of abuse etc. In T.T. Anthony v/s State of Kerala 2001, the Court observed that the plenary power of the police to investigate a cognizable offence is not unlimited…if no offence is disclosed or if no cognizable offence is disclosed, police would have no authority to undertake investigation.

But it cannot be denied that POTA suffered from dubious record. At times it was made a tool of retribution against political opposition; at times as a weapon to target minorities. The Peoples Tribunal in Delhi opined that misuse of the Act is inseparable from its normal use; means the Act had some inherent flows. And the UPA government, buckling under pressure from many activists & NGOs, repealed the enactment.

It would not be impertinent here to observe the stands taken by various countries to fight against terrorism and status of anti-terror laws therein.

Anti-terrorism Laws across the Globe:

    Post 9/11, the world was made to sit up & take notice of this most dangerous evil of the 21^st century. Almost all the countries now have anti-terror laws in place. 9/11 did shake US; but after that it has been extremely successful in avoiding repeat of any such attack. And for this credit must go, among other things, to the new USA Patriot Act. The Act, apart from creating new crimes, new penalties & introducing new procedural efficiencies to fight against domestic & international terrorism, gives federal officials greater authority to track & intercept communications to the extent that has raised quite a hue & cry especially from human rights activists. The definition of terrorism was alleged to be over-inclusive. Possibility of prosecution in case of ‘material support’ to terrorism was also under scanner. But US government has gone ahead with the Act & is now clearly reaping the rewards.

    Israel’s Prevention of Terrorism Act, 1948 confers broad authority to the military to detain & try suspected criminals. In case of State of Israel V/s Marwaan Baraghuti, the Court ruled that terrorists who attack civilians are not ‘lawful combatants’ & hence not entitled to the status & rights of Prisoners of War.

    Legislators in Spain have gone a step ahead in prescribing that a mere support to a terrorist organization may lead to prosecution. The anti-terror legislation in Spain also provides for preventive detention (that too for 5 days without bringing the suspect before a judge), use of incommunicado detention (i.e. detention without any right of communication), secret legal proceedings & pre-trial detention up to four years.

    The provisions of Pakistan’s Anti-Terror laws are by far the most barbaric. The Anti-terror laws exist in France, Italy, Belgium, Australia, Canada, New Zealand, South Africa & many European & Latin American countries. In Britain, they have Anti Terrorism Law, 2006 and now the Counter-Terrorism Bill (that is pending before the Parliament) seeks to increase the limit of pre-charge detention for terrorism suspects to 42-days.

    Most of the nations are thus clearly going ahead with more & more stringent laws to curb terrorism and here we have our Minister of Information & Broadcasting, Mr. Priyaranjandas Munshi, repudiating in clear terms the need of Anti-terror laws like POTA.

Anti-Terror Laws in various States:

    With recent controversy of GUJCOC being denied Central nod, it would be interesting to compare anti-terror laws of different States. If anti-terror laws are in place in Maharashtra, Karnataka, Andhra Pradesh & Delhi, why can’t Centre or Gujarat have such laws?

Apparently, citing the strong support of many senior police officers at Central & State levels, our NSA (National Security Advisor), Shri M.K. Narayanan has batted for such anti-terror law. On one hand we allow MCOCA to prevail and deny possibility of POTA & GUJCOC and that too when MCOCA is even more stringent than POTA. Definition of terrorism under MCOCA is wider than that under POTA. While POTA provides for punishment for police officers found guilty of malafide actions, MCOCA has no such provisions. And has MCAOCA succeeded? It indeed has with 70% of conviction rate. (Even if we take into account the fact that this law was very rarely used against terrorists & was mainly used to crack down the underworld, the conviction rate is still quite impressive).

The Final Musing:

We clearly are missing a federal statute that would define terrorism and would provide requisite procedural framework. On one hand, with no anti-terror law in place, we deprive our security agencies from necessary administrative & legal powers and on the other hand expect them to deliver every time. Is this all not leading to anarchy?

America when was made to lose 3000 people in 9/11 incident, wedged an international war against terrorism. And after being target of repeated terrorist attacks for three decades now, after losing more than 60,000 people & 8,000 security personnel, our Home Minister advises us to show restraint & maintain calm. POTA brings the person responsible for attack on our Parliament to books and awards him death sentence only to find that subsequent political games & vote-bank politics suspends the punishment.

These terrorists know no rules. Men, women, children…their mindless & brutal killing spares no one. Do we still need to sympathize about the rights of terrorists? In this context, observations of the Apex Court in case of Devendra Pal Singh v/s State of N.C.T. of Delhi, 2002 are certainly noteworthy. It observed that such terrorists who have no respect for human life do not deserve any compassion as it would be totally misplaced & unwarranted sympathy and would frustrate the very purpose of enactment of the Act.

    For all the talk about human rights violation & deprivation of personal liberty, one thing should be kept in mind. Benjamin Franklin had once remarked that those who give up liberty for security deserve neither liberty nor security. But does his statement hold true even in the context of current terrorism? The statement finds its roots in democratic setup. We sit here in a democratic nation and talk incessantly about personal rights & liberty with one potentially fatal incorrect assumption; that we are fighting an enemy who thinks the same way we do. But terrorism does not. It knows no values, no patterns and no minimum principles to adhere with. This is something we need to understand if we are to prevail in this battle against terrorism.

If we have on one hand the possibility of violation of few human rights of individuals and on the other, the likelihood of human slaughter of hundreds of innocents, it shouldn’t be exactly a rocket science to decide which side to prefer.

    Yes, we need a strong Central Anti-terror Law to combat terrorism. It may be POTA itself or anything on the lines of it. But that alone would not ensure the ultimate security. What we need, apart from this, is of course, augmenting & streamlining the intelligence machinery, use of advanced technology, a dedicated Research & Analysis Wing, radical reforms in police system and better communication & mutual assistance between Centre & States. Until all these steps are taken, the common man will keep marveling whether he would see for sure the sunrise the day after?

    
 

    

    And just when I thought I have had enough of this political drollery, Indo-US deal continues to entertain.

First there was domestic political farce amongst the government, the Left & the BJP. Left had to oppose the deal because they have to oppose America. BJP’s stand looked most confusing and instead of taking credit for the deal (which was initiated by Brajesh Mishra), it kept harping on the issue of Indian Sovereignty. The Left threatened to withdraw and finally did so only to find that the government was living safely & merrily.

The confusion continued as to its impact on India’s military nuclear programme, the exact scope of fuel reprocessing rights, the timeframe defined, the definition of ‘state-of-art’ reprocessing facility & so on.

    Then at the NSG meet, China did some summersaults and at the end could hardly save its face as smaller countries did budge under strong political muscles. Austria kept repeating that there were some fundamental disputes and when they surrendered eventually, they had to take refuge in the statement of Pranab Mukharjee, which incidentally proclaimed nothing new and only endorsed India’s age-old stand of unilateral moratorium.

    Then there was that letter leaked ‘through’ the Washington Post. And just when the Indian government had managed to somehow sidetrack the issue, Bush has now declared that US is under ‘no legal obligation’ to provide uninterrupted fuel supply to India.

    Now what does this really means? Bush prefers to describe this agreement as a ‘framework agreement’ & hence not binding one. Now are there any ‘types’ of international agreements? As far as my knowledge of international law goes, international agreement is an international agreement. And it is binding just like any other treaty between the nations. What US domestic law says is not of any relevance to India as only thing that will matter is 123 agreement. Even as per Article VI of the US Constitution (as interpreted by US Supreme Court), obligations of an international agreement supersede provisions of domestic laws.

    It is true that our 123 agreement has one clause missing when compared with 123 agreement that China got viz. Clause 2.1 which says that “the parties recognize, with respect to observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. But that does not mean that provisions of Hyde Act trump the 123 agreement. Because Indian negotiators did manage to push through another clause i.e. Clause 16.4, “that the agreement shall be implemented in good faith & in accordance with principles of international law”. Now this phrase ‘in accordance with the principles of international law’ refers to Article 27 of the Vienna Convention of Law of Treaties, which clarifies that, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Same effect!!!

    So legally speaking, it doesn’t matter what Hyde Act says; it doesn’t matter what leaked letter says; it doesn’t matter what Bush says; the only thing that matters is 123 agreement, which unequivocally declares through Para 5.6 that US commitment of uninterrupted fuel supply would continue even after termination of 123 agreement.

But it is equally true that with muscly country like US, legal obligations may not always be enough. If we see, in such declarations and that too by none other than America’s Head of State, the reflections of ulterior intentions of US government, the path ahead needs to be treaded cautiously. We simply cannot afford to invest around 300 lakh crores in building nuclear infrastructure only to be left stranded without an ounce of fuel supply. However this danger looks least likely. Now that we are through NSG hurdle, whole of international market is open for fuel supply and we are not exclusively dependant on US.

US sources are saying that the latest statement from Bush comes out of domestic political compulsions (and thus would aid in getting the deal through Congress) and fuel assurance is very much part of 123 deal. It’s hard to buy this ‘domestic political reasons’ part though. Are they trying to say that Bush is trying to fool US Congress into believing that 123 agreement is just a political promise & nothing else? Whatever it might imply, one thing’s for sure, this epic melodrama of Indo-US deal has all the masala for a blockbuster movie. Any takers from Bollywood?