FROM OUR FOREIGN CORRESPONDENTS

The rigor of anti-terrorist laws, the seriousness of their effects on personal liberties and their potential for abuse became subjects of major controversy in India during 2001. Opposition parties contended that the fundamental rights of citizens guaranteed by Part III of the Constitution stood to be substantially diluted by draconian anti-terrorism laws. The government insisted, however, that we are living in an abnormal time and that such rigorous measures were needed to tackle terrorism, the practitioners of which are enemies of civil society and the very anti-thesis of the rule of law.

The Law Commission of India, an advisory body headed by a former judge of the Supreme Court, recommended in April 2000 the adoption of a law designed to deal firmly and effectively with suspected terrorists and their activities, thus departing from the liberal investigation and trial procedures normally in use. The Commission was of the view that the impact of terrorism, both internal and external, over the past few decades in India fully justified the measures envisaged in the proposed legislation. When the very existence of a liberal society is at stake, they opined, drastic measures meant to strengthen law enforcement and the maintenance of public order are a necessary evil. The Report of the Law Commission makes interesting reading at http://www.nic.in/lawcom/tada.htm.

Long before the world-shaking events of 11th September 2001, the Supreme Court of India had noted that terrorism and disruptive activities were a world-wide phenomenon and that India was not excempt from them. Indeed they observed that because of its peculiar historical background and geographical situation, and the diversities which make India what it is, the country has been in the

firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities... Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation....Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity... (Kartar Singh v. State of Punjab [1994] 3 SCC 569).

There have been anti-terrorist laws in India before, each one enacted by the legislature and upheld by the judiciary, albeit with some reluctance and much regret. Each one has been a temporary statute, enacted in the expectation that things would improve and that such drastic measures need not become a permanent feature of the law of the land. But after a year or two, with fresh spurts of terrorist activities, the statutes have been reintroduced with requisite modifications. The last comprehensive law along these lines was the Terrorist And Disruptive Activities (Prevention) Act of 1987 or TADA, for short.

TADA had many rigorous provisions, some of which proved to be open to gross abuse in the hands of law enforcement officials. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good. There were many instances of misuse of power for collateral purposes, however. The Act gave strong search and seizure powers to the police, who could indict any person on the basis of strong suspicion. Once indicted under TADA, the accused would be tried by a special court according to special procedures. In such trials, well known protections ordinarily available to an accused in a liberal society would be given a go by. The accused risked conviction on the basis of slender evidence which would have been insufficient for conviction by an ordinary court. Under Section 15, a confession allegedly voluntarily made before a police officer, not lower in rank than a Superintendent of Police, and recorded by such police officer in writing or by using any mechanical device such as audio cassettes and video tapes, was admissible in court against an accused (or co-accused, abettor or conspirator) for an offence under this Act. Even the ordinary safeguards available in the matter of proof and its burden were jettisoned in favor of the prosecution.

When TADA lapsed, and failed to be extended, there was a vacuum in special anti-terrorist law in India, but there was no improvement in the situation. There were several tragic incidents including the hijacking of Indian Airlines Flight IC-814 and the release of three notorious terrorists by the Government of India to save the lives of innocent civilians and crew. The released terrorists subsequently engaged in activities and made open proclamations of terrorist intent which no government could bear. Repeated attacks on security forces and their camps, including assaults by suicide squads, are new in India and add a dangerous dimension to terrorist activities. Several discoveries of substantial quantities of RDX (a form of explosives used in making bombs), arms and ammunition made in various parts of the country are among the many instances of terrorism which have aggravated the situation.

In the wake of fresh terrorist activities, the Government of India promulgated an Ordinance (an ad hoc piece of legislation made by the President), when the legislature was not in session. Ordinances lapse automatically unless approved by the legislature within six weeks of the opening of the next legislative session. This Ordinance, the Prevention of Terrorism Ordinance (POTO for short), was drafted along the of its predecessor, TADA. There was, however, stiff opposition to its enactment as a law. The opposition parties were afraid it would be misused and understood that it would make serious inroads into democratic rights of the people. They were also afraid that the ruling party might make use of its powers for unauthorized purposes viz. to victimize opposition parties and to settle political scores. All the diverse shades of the opposition were therefore united in their outcry against the proposed law. As a former judge commented in the news bulletin of People's Union for Civil Liberties (a Delhi-based NGO), "The whole exercise of issuing such an ordinance is to create psychological terror, so that the arbitrary actions of the government are glossed over and a climate is created wherein opposition to such actions may be considered anti-national."

Ironically, while the Indian Parliament was debating whether POTO should be enacted, there was an attempt to stage one of the worst assaults ever on the Parliament itself. We are not talking here of an ‘assault’ in the figurative sense, but a real attempt to cause physical harm, with guns and grenades, to the members of Parliament, including the Prime Minister and his cabinet. This sinister attempt failed due to the alertness of security personnel. Unidentified terrorists attacked the Parliament of India on December 13, 2001. In the forty-five-minute gun battle which followed, six policemen and a Parliamentry staff member were killed. All six terrorists were also killed by the security forces. The attack took place around 11:40 am (IST), minutes after both Houses of Parliament had adjourned for the day. The suspected terrorists, dressed in commando fatigues, entered Parliament by car through the VIP gate of the building. Displaying Parliament and Home Ministry security stickers, the vehicle entered with its siren blaring. The terrorists set off massive blasts and reportedly used AK-47 rifles, RDX and grenades for the attack. One of the terrorists, a human bomb, was reportedly blown to bits when he came under fire from the security personnel. Senior Ministers and over two hundred Members of Parliament were inside the Central Hall of Parliament when the attack took place. Security personnel sealed the entire premises, which saved many lives.

Referring to the incident of December 13, the Indian Prime Minister said, "It was not an attack only on the building but at the very heart of our governance and symbol of democracy". This statement reflects the mood of the nation. Terrorists, meanwhile, remain active in and around India, and the potential threat seems alarmingly real. Even as this report is being written, on 22nd January 2002, there has been a sudden terrorist attack on the police personnel guarding the American Center in Calcutta in which four people died and some seventeen were injured.

The year 2001 ended without the enactment of any new anti-terrorist law in India. The country remains tense and apprehensive, however, about the impact of cross-border terrorism, which may well lead to a major breach of the peace in the region. India’s relations with its neighbor Pakistan has already deteriorated since the beginning of 2001. Hopefully, the worst will not happen because of mutual good sense and restraint. Fresh endeavors are being made to enact an appropriate anti-terrorist law in India. The opposition parties must accept that as something unavoidable, given the current situation .

Achieving a delicate balance between individual freedom and public safety is the unenviable task that awaits the Indian Parliament in the new year. Even though the opposition has not yet given up their resistance to the proposed anti -terrorist legislation, no one seriously disagrees on the urgent need for law to tackle the menace of terrorism in the current global context.

Terrorism is a global menace to which democracies are particularly vulnerable. Concerted global action to counter terrorism and to enact measures, such as sanctions, against countries and governments sponsoring terrorist acts across international borders may well be necessary.

January 22, 2002

Pradip K. Ghosh is a Senior Advocate in Calcutta, INDIA.

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What are your views on the issues raised by this JURIST column?

• Sunday July 21, 2002 at 2:38 am
  I completely endorse the opinion of Mr.pradip Ghosh.I think rather than opposing the law, we must concentrate more on the law enforcement agencies. Every law is capable of being misused. There are very few people who have come out in support of the act(POTA).
  
  Rikhab chand
  India

• Wednesday February 26, 2003 at 2:50 am
  dear sir after the read .i would like to now bout ur org. how u haleing out the peopl.and what tipe of cases r u taking. i m in big trboul.and i need a person who can get me juttiec thanx i hope u will reply me
  
  a indain girl who realy need a halp in big trbouel
  nil
  india(delhi)

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