Are Tougher Laws The Answer?

The terrorist attack on two five star hotels in Mumbai has led to a lot ofjingoism and muscle-flexing in the media, and on the streets. "Enough isenough", "We will not pay our taxes", "we must destroy terroristtraining camps in Pakistan" are the kind of cries that are being heard veryfrequently.  "Get tough on terror" is the new mantra and, among otherthings, getting tough means bringing tougher laws.  The UPA governmentwhich repealed POTA just 4 years ago because it was found to be draconian,misused and counterproductive, has now used the jingoism to enact a "tougherterror law" in the form of amendments in the already draconian UnlawfulActivities Prevention Act. These amendments were introduced in Parliament on the15^th December and passed the next day with virtually no debate andwithout any opportunity to civil society to study, digest and debate theimplications of the amendments.

Those who have been clamouring for tougher laws often do not know what makesthe law tough, and how "tougher" laws would deter or prevent terrorism. In the first place, it must be understood that a law can only help to keep incustody, prosecute and convict any person who has been arrested. No law,however tough or draconian, can deter or deal with suicidal terrorists who arewilling to die before they are caught.  The prospect of no bail or theprospect of being convicted is hardly likely to scare or deter the kind ofterrorists who attacked Mumbai. In fact, in Iraq, the security forces or theArmy can detain or keep in detention indefinitely or even shoot down any personat will. The police or security forces cannot have more draconian powers thanthat. Yet, those powers, far from bringing down terrorism in Iraq, have only ledto conditions, which have created more terrorists who are blowing up themselvesand hundreds of people every day.

When POTA was repealed, some of its draconian provisions had been engraftedinto the Unlawful Activities (Prevention) Act. Those, along with  TheChhattisgarh Public Security Act, whose provisions make it an offence to provideany kind of assistance to a banned organization or a person belonging to abanned organization, have been used to incarcerate Binayak Sen, the GeneralSecretary of the PUCL. Sen unquestionably one of the most selfless activists,spent a good part of his life in setting up public health clinics in remoteareas of Chhattisgarh. He has been in detention for the last one and half yearson the charge that he has "assisted" Maoists who were in jail by takingletters from them and giving them to their comrades.  It matters not thatthese letters he is alleged to have carried did not contain anything subversive. The mere fact that he is alleged to have carried letters from an alleged Maoistis enough to charge him with "assisting" an unlawful (Maoist) organizationand thus a terrorist act.

Denial of bail under POTA had only allowed the investigative agencies to keepunder detention innocent persons against whom the investigative agencies had noevidence of terrorism.  No court would grant bail anyway to a personagainst whom there is any evidence of involvement in any terrorist act.  Nogovernment has ever come up with a case that some terrorist act was committed bya person who was arrested earlier but had to be released on bail because of the absence of"stronger laws".  Similarly, everybody knows that police confessionscan be obtained from anyone by torture or under the threat of torture. They are a totally unsafe and unreliable basis for charging or convicting anyperson.  These draconian provisions of POTA and its predecessor TADA hadonly encouraged the police to detain innocent persons indefinitely, chargesheetthem on the basis of police confessions and then prosecute them in trials whichgo on for years.  Once having arrested the persons and chargesheeted them,the police claims that the case has been solved. During this time, these personsare usually tortured in custody, and forced to confess.  Their prolongedincarceration leads to the permanent loss of their reputation and the economicdestruction of their families.  The fact that most of the personschargesheeted under these draconian laws were innocent is clear from the factthat  more than 98% of them were eventually acquitted. But their acquittalcame only after an enormous toll on their reputation, health, lives and theeconomic survival of their families.  This has not only caused greatinjustice to thousands of innocent persons who have been unfairly arrested andvictimized by the investigative agencies in this manner, it is one of the majorcauses of the insecurity, alienation and anger of the minorities against thepolice, the criminal justice system and indeed the ruling establishment of thecountry.  

This is indeed the finding of several People’s Tribunals that haveextensively heard the testimonies of large numbers of persons who werevictimized by these Acts. The People’s Tribunal on POTA consisting of eminentjurists such as Ram Jethmalani, Justice Suresh, Justice D.K. Basu, K.G. Kannabiran,and other eminent persons, opined in their report in 2004: "Our reviewof victim and expert testimony shows that the misuse of the Act is inseparable from its normal use. It is astatute meant to terrorise, not so much theterrorists as ordinary civilians – particularly the poor and disadvantagedsuch as Dalits, religious minorities, Adivasis and working people."

A People’s Tribunal on the terror investigations of the police in variousstates of the country was held in Hyderabad in August 2008. The jury consistedof two former Chief Justices, several other eminent, academics, lawyers andsocial scientists. They came to the unanimous conclusion that:

"The testimonies showed that a large number of innocent young Muslims havebeen and are being victimized by the police on the charge of being involved invarious terrorist acts across the country. This is particularly so inMaharashtra, Gujarat, Madhya Pradesh, Andhra Pradesh and Rajasthan, though notlimited to these States.

This victimization and demonisation of Muslims in the guise of investigationof terror offences, is having a very serious psychological impact on the mindsof not only the families of the victims but also other members of the community.It is leading to a very strong sense of insecurity and alienation which may leadto frightful consequences for the nation."

The amendments now rushed through in the Unlawful Activities Act undoubtedlymake it more draconian by giving more powers to the police to search, arrest,keep in police custody and in jail persons on mere subjective suspicion even ifthey have no evidence of their being involved in any terrorist Acts. The newlyintroduced Section 43A of the act empowers an officer of a designated authorityto search any premises or arrest any person of whom he has "reason to believeor knows" that he has a "design to commit an offence under the Act.

Further, police officers investigating an offence under the Act have (withthe approval of the SP), been empowered to require any organization or anyindividual to furnish any information that the officer may demand for hisinvestigation. The failure to furnish such information has been made punishablewith up to 3 years imprisonment. Such a provision can and will easily be misusedby the police to harass all kinds of activists, lawyers, doctors  andjournalists who stand up for, or provide any assistance, even legal or medical,to an alleged terrorist.

The maximum period for keeping persons in police custody has been extendedfrom 15 to 30 days. Police custody is sought for "custodial interrogation"which we all know is a euphemism for custodial torture. India has the highestnumber of custodial deaths in the world and is among the few countries whichhave not ratified the UN convention on torture. Though the Constitution providesthat no one can be compelled to be a witness against himself, yet such coercive"custodial interrogation" is being allowed by the Courts for months withoutend. 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 beencontinuously kept in police custody for more than 6 months now by arresting himserially (after every 15 days) in one after another of the more than 25 FIRsthat have been registered in Ahmedabad, Jaipur and Delhi for the serial blasts.

The Code of Criminal Procedure provides that if the chargesheet against anarrested person is not filed within 90 days, he will be entitled to Bail. Thisis for the reason that till the chargesheet is filed it is virtuallyimpossible for an arrested person to get bail, even if the police has noevidence against him. The new amendments also extend the maximum period forfiling a chargesheet against an arrestee to 180 days. Another amendmentmakes bail virtually impossible even during trial. It provides that an"accused person shall not be released on bail or on his own bond, if the courton a perusal of the case diary or the report made under section 173 (thechargesheet) of the code is of the opinion that there are reasonable grounds forbelieving that the accusations against the persons are prima facie true"

These amendments make the Unlawful Activities Act as or more draconian thanPOTA. The only draconian provision of POTA left out in this Act now is theadmissibility of police confessions.

Far from curbing terror, we find that draconian laws used by a corrupt andcommunal police are creating conditions which will only exacerbate the problem.The normal laws of the land are adequate to deal with terror offences. Theproblem lies with the police which is the implementing agency. The SupremeCourt had issued many directions in September 2006 to implement police reformswhich several expert agencies of the government had recommended many years ago,but which had not been implemented. They included, setting up independent Stateand National Security Commissions, Police Establishment Boards, PoliceComplaints Authorities and giving a minimum tenure to heads of field policeofficers at all levels including Police Chiefs etc. The thrust of theserecommendations was to make the police and investigative agencies accountable tothe law and free them from the strangulating control of the political executive.Neither the central nor most of the state governments have implemented thedirections of the Supreme Court about police reforms. None of the majorpolitical parties are prepared to relinquish their political control over thepolice. 

Implementation of reforms within the Police and Intelligence agencies shouldcertainly improve security and reduce terror attacks. But that will noteliminate the problem. Israel, with the most efficient intelligence, securityand police has not been able to eliminate the problem, despite the small size ofthe country. There have suicide attacks almost every month. No amount ofintelligence or security can stop terrorists who are willing to give up theirlives. They can only be stopped if their motivation is eliminated. That willrequire what Chomsky advised in the wake of 9/11. He said: "As to how toreact (to 9/11), we have a choice. We can express justified horror; we can seekto understand what may have led to the crimes, which means making an effort toenter into the minds of the likely perpetrators ... We may try tounderstand, or refuse to do so, contributing to the likelihood that much worselies ahead."

Eventually, understanding the motivations of the terrorists and dealing with theinjustices that pervade our society, and repairing the institutions of justice,particularly the police and the judiciary, will be a much more effective way offighting terror, than laws which give more draconian powers to corrupt and insensitive police organisations.