Terrorism: are stronger laws the answer?

By Prashant Bhushan
Published on Hindu, January 1, 2009

Post-Mumbai, ‘anti-terror’ legal amendments have been rushed through Parliament with virtually no debate. Far from curbing terror, draconian laws used by a corrupt and communal police are creating conditions that will make the problem worse. The real problem lies with the implementing agency, the police.

The terrorist attacks in Mumbai have led to a lot of jingoism and muscle flexing in the media and on the streets. ‘Enough is enough,’ ‘we will not pay our taxes,’ ‘we must destroy terrorist training camps in Pakistan’ are the kind of cries heard most frequently. ‘Get tough on terror’ is the new mantra and, among other things, getting tough means bringing tougher laws.

The United Progressive Alliance government, which repealed the Prevention of Terrorism Act (Pota) just four years ago because it was found to be draconian, misused and counterproductive, has now used the jingoism to enact a tougher terror law in the form of amendments to the already draconian Unlawful Activities Prevention Act. These amendments were introduced in Parliament on December 15, 2008 and adopted the next day. There was virtually no debate.

Those clamouring for tougher laws often do not know what makes the law tough or how ‘tougher’ laws might deter or prevent terrorism. In the first place, a law can only help keep in custody and prosecute and convict a person arrested. No law, however tough or draconian, can deter or deal with terrorists willing to die before they are caught. The prospect of no bail or of being convicted is hardly likely to deter the kind of terrorists who attacked Mumbai. In Iraq, the security forces and the Army have been empowered to detain indefinitely or shoot down any person at will. There can be nothing more draconian than that. Yet these powers, far from bringing down terrorism in Iraq, have led to conditions that have led to more people blowing themselves and hundreds of people up every day.

When Pota was repealed, some of its draconian provisions had been engrafted into the Unlawful Activities (Prevention) Act. Those provisions, along with the Chhattisgarh Public Security Act, which makes it an offence to provide any kind of assistance to a banned organisation or a person belonging to a banned organisation, have been used to incarcerate Binayak Sen, general secretary of the People’s Union of Civil Liberties. Dr. Sen, a selfless activist, spent a good part of his life in setting up public health clinics in remote areas of Chhattisgarh. He has been in detention for the last year-and-a-half on the charge of ‘assisting’ Maoists who were in jail by passing on their letters to their comrades. It matters not that the letters he is alleged to have carried did not contain anything subversive.

Denial of bail under Pota allowed investigative agencies to keep under detention innocent persons against whom the agencies had no evidence. No court would grant bail anyway to a person against whom there was any evidence of involvement in any terrorist act. No government has ever come up with a case that some terrorist act was committed by a person who was arrested earlier but released on bail because of the absence of ‘stronger laws.’ Similarly, everybody knows that police confessions can be obtained from anyone by torture or under the threat of torture. They are a totally unsafe and unreliable basis for charging or convicting any person.

These draconian provisions of Pota and its predecessor, the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Tada), only encouraged the police to detain innocent persons indefinitely, charge sheet them on the basis of police confessions, and prosecute them in trials that have gone on for years. On arresting and charge sheeting them, the police claim the case has been solved. During this time, these persons are usually tortured in custody, and forced to confess. That most persons charge sheeted under these draconian laws were innocent is clear from the fact that more than 98 per cent were eventually acquitted. But the acquittal came after an enormous toll was taken on their reputation, health, lives, and the economic survival of their families. This has not only caused great injustice to thousands of innocents and has been identified as one of the major causes of the insecurity, alienation, and anger of the minorities against the police, the criminal justice system, and the ruling establishment. This is indeed the finding of several People’s Tribunals, which have included eminent jurists like Ram Jethmalani, retired Justices H. Suresh and K.G. Basu, two retired Chief Justices, and K.G. Kannabiran, who have heard testimony from large numbers of people victimised by these Acts.

The amendments that have, post-Mumbai, been rushed through in the Unlawful Activities Act make it more draconian by giving more powers to the police to search, arrest, and keep in police custody and in jail persons on mere subjective suspicion – even if there is no evidence of their being involved in any terrorist acts. The newly introduced Section 43A of the act empowers an officer of a designated authority to search any premises or arrest any person about whom he or she has “reason to believe or knows” that he or she has a “design” to commit an offence under the Act.

Further, police officers investigating an offence under the Act have been empowered to require (with the approval of a Superintendent of Police) any organisation or any individual to furnish any information that the officer may demand for the investigation. Failure to furnish such information has been made punishable with imprisonment up to three years. Such a provision can and is likely to be misused by the police to harass all kinds of activists, lawyers, doctors, and journalists who stand up for, or provide any assistance – even legal or medical – to an alleged terrorist.

The maximum period of keeping persons in police custody has been extended from 15 to 30 days. Police custody is sought for ‘custodial interrogation,’ which quite often turns out to be a euphemism for custodial torture. India has the highest number of custodial deaths in the world. It is among the few countries that have not ratified the United Nations convention on torture. Although the Constitution provides that no one can be compelled to be a witness against himself, the courts are allowing ‘custodial interrogation,’ which is coercive, for months without end. Abu Basheer, the Azamgarh cleric who has been dubbed as one of the many ‘masterminds’ of the serial blasts in Ahmedabad, Jaipur, and Delhi, has been kept in continuous police custody for more than six months by arresting him serially (every 15 days or so) in one after another of the 25-plus First Information Reports registered in Ahmedabad, Jaipur, and Delhi for the serial blasts.

The Code of Criminal Procedure provides that if the charge sheet against an arrested person is not filed within 90 days, he will be entitled to bail. This is because otherwise it will be virtually impossible for an arrested person to get bail before the charge sheet is filed, even if the police have no evidence against him. The new amendments extend the maximum period for filing a charge sheet in the relevant cases to 180 days.

Another amendment virtually rules out bail even during trial. It provides that an “accused person shall not be released on bail or on his own bond, if the court on a perusal of the case diary or the report made under section 173 (the charge sheet) of the code is of the opinion that there are reasonable grounds for believing that the accusations against the persons are prima facie true.”

These amendments make the Unlawful Activities (Prevention) Act more or less as draconian as Pota. Mercifully, the one draconian Pota provision left out in this Act is the admissibility of police confessions.

We find that far from curbing terror, draconian laws used by a corrupt and communal police are creating conditions that will make the problem worse. The normal laws of the land are adequate to deal with terror offences. The problem lies with the police, which is the implementing agency. In September 2006, the Supreme Court issued many directions to implement unimplemented police reforms recommended by a number of expert agencies of the government over the years. The reforms included the setting up of independent State and national security commissions, police establishment boards, police complaints authorities, and giving a minimum tenure to heads of field police officers at all levels, including police chiefs.

The thrust of these recommendations was to make the police and investigative agencies accountable to the law and simultaneously to free them from the strangulating control of the political executive. Neither the central government nor most State governments have implemented the directions of the Supreme Court on the police reforms. None of the major political parties is prepared to relinquish political control over the police.

The implementation of reforms within the police and intelligence agencies is guaranteed to improve security and strengthen the country’s capability to prevent terror attacks. But that will not eliminate the problem. Israel, with the most efficient intelligence, security, and police, has not been able to eliminate the problem, despite the small size of the country. There have been suicide attacks almost every month. No amount of intelligence or security can stop terrorists willing to give up their lives. They can be stopped only if their motivation is eliminated. That will require what Noam Chomsky sagely advised in the wake of 9/11: “As to how to react, we have a choice. We can express justified horror; we can seek to understand what may have led to the crimes, which means making an effort to enter into the minds of the likely perpetrators…We may try to understand, or refuse to do so, contributing to the likelihood that much worse lies ahead.”

(Prashant Bhushan is a public interest lawyer and the Convenor of the Campaign for Judicial Accountability.)

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