PUCL Bulletin, January 2002

Terrorist Law Again and Again

-- by K.G. Kannabiran

"Restrictive legislation is almost always a signal of repressive institutional change, but is, of course, not the cause of it…The major focus of the defense of the citizen as a person can only be on procedure, or, as we call it in our society, due process." -- Stanley Diamond

Almost a hundred years back Moti Lal Nehru in his Presidential Address at Amritsar spoke about the attempt of the British to fracture Hindu Muslim unity. He accused the British Government of making it an offence "the fraternization of Hindus and Muslims against the Government by law established!" His address was after Jallianwala Bagh and referred to not only that incident but also to the set of laws recommended by S.T. Rowlatt. We have a tradition of fighting against repressive laws. It is not only against the British. Twenty five years after Independence we carried on a struggle against repression in the form of Emergency and the most repressive of preventive detention laws the MISA, ten years thereafter we carried on our struggle against TADA by lobbying with members of parliament, by organizing meetings and campaigns and by volunteering to help people who become implicated in the prosecutions, thereby exposing its abuses. The yardstick has always been the fundamental duty set out in Art 51A of the constitution. We should cherish and promote the ideals that inspired our Independence Struggle.

After a hundred years we have the BJP, by itself in a minority in alliance with a couple of regional parties and with a few freelance socialists claiming affiliation to poor Mr. Ram Manohar Lohia -- a man who directed his party in power in Kerala to resign because of a police firing on a protesting people - has been pressing for measures which are basically undemocratic and the present POTO is one such measure. In this endeavor it has the support of the Law Commission, which formulated a permanent terrorist code for consideration.

After 11th September and the American initiative against world terrorism the government came up with this ordinance on 24th October 2001. Unfortunately BJP and its alliance parties have as much credibility, as the Congress had when the latter came up with the Terrorist Acts in 1985. 1987 and 1993. The Administrative and the Police bureaucracy in their working of the TADA marred the Ruling Party's political reputation; Tehelka tapes and the attacks on Christian minorities including Stein's murder disclose that this government and its bureaucracy is no better. Added to this BJP, as a political party functioning under the constitution never had any faith in the Constitution nor had any pretensions to democratic faith. Governance in this country and in the constituent states has been a continuing crime against the people The stupendous corruption at the political and the governmental level and the gross human rights violation leads one to the inevitable conclusion that such laws are just a pretext for large scale abuse. Therefore opposing POTO is a fundamental duty and not a crime against the nation.

We have a plethora of legislation covering the areas and activities covered by the Ordinance, The pre constitution British colonial laws, The National Security Act 1980; the Armed Forces Special Powers Act 1958; the Disturbed Areas Act 1999; the Anti Hi-jacking Act 1982; the Suppression of Unlawful Acts Against Safety of Civil Aviation CT 1982; the Disturbed Areas Special Courts Act 1976; the Telegraph Act 1885; the Information Technology Act 1999; the Essential Services Maintenance Act; the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980, the Arms Act the Explosive Substances Act 1908 with the latest Amendment providing for death sentence; and the Unlawful Activities (Prevention) Act 1967 almost cover the entire field covered by the present Ordinance. Apart from the Indian Penal Code there are several state laws including the Organized Crimes Act passed in three southern states, covering the field of law and order and public order. While assessing the justification for this Ordinance, the use, efficacy and performance these statutes have to be studied and debated. A new criminal law admitted for discussion should contain a provision repealing outdated criminal Laws and the existing criminal laws covering the same field should be suspended from operation while the proposed measure is in operation. Law and order is not going to correct social imbalances including imbalances in a representative democracy, by the presence of an array of specially enacted laws.

The problem with this type of legislation is its use. Such enactments have never been truthfully and honestly enforced and they are never intended to be. The trauma under the Ordinance as always with such laws, commences from the time one becomes a suspect. The raid to apprehend you will be in the midnight. The searches and seizures are the horrendous part of the whole process. They will turn the premises searched upside down. The destruction that take place in the process has never been recorded except by civil liberties activists. The grain you have stored, the provisions you have purchased will be destroyed in the most inconsiderate manner. The force that enters your house will not be uniformed men. They will be the "task force men" licensed by the state to act with impunity. They travel in cars without any number plate. They keep you in illegal custody and incommunicado for long periods. You will be produced before the executive magistrate, if you are not killed in an encounter or you are not caused to disappear. The judge before whom you are produced believes that the ostensible is invariably the real! You do not complain about the indignities you suffered in unofficial incarceration and your kith and kin do not complain about your arrest, the way they were treated when you were arrested or about the brutal manner in which the search took place. Your family is afraid of the midnight visits and the possible indignities that may be inflicted. You do not complain because your captivity is total and you are sufficiently advertised as terrorist and nobody will give credence to your complaints against the brutality you were subjected to. If you are yet to be apprehended your aged father or your able bodied son will be held in custody until you are apprehended. What amendments to the Act will eliminate these atrocious acts which have become part of governance since the 1975 Emergency? These practices are present as part of law enforcement. And when a new Act comes into force the abuse that was routine, low profile and manageable becomes brisk, aggressive and demanding. TADA was crucified on the abuse of its provisions by one and all. These abuses were highlighted by all civil liberties and human rights activists. The NHRC endorsed the stand of these organizations. The powers of search and seizure to the investigating agency are enormous and cannot but lead to abuse.

And the provisions for prosecution and damages are likely to be flouted by the government. The provisions of good faith and sanctions are formidable barricades against prosecutions for abuse.

Along with the historical development of Rule of Law and Constitutional democracy developed a system, which negated both Rule of Law and Constitutional democracy. Along with our training in constitutionalism during the freedom struggle the British also taught us that power that does not perform cannot be protected at all times by ordinary law, and that we need special courts defining new crimes by new criminal statutes and enlarged areas of impunity. This Rowlatt framework we carried with us as a colonial legacy. We continue these anti independence struggle laws in our statute book and it still inspires our legislative practice. This dual system of jurisprudence creates and enlarges the area of impunity. The inarticulate premise of these special criminal laws creating special courts and procedures has always been the grant of unhindered impunity and subsequent immunity from prosecution of the law enforcing agencies. L.K. Advani's endeavour to grant immunity to the police officers facing prosecutions in Punjab and J & K is a pointer to this reality. These offenders were investigators under the old T A D A.

The Ordinance like its predecessor defines terrorist act and not terrorism. There has been no agreement in the international body on the definition of the word terrorism. In the present Ordinance "overawing government by law established" is no longer a terrorist act. This expression is an imperial device to keep insurrecting natives at bay. This expression is replaced by " with the intent to threaten the unity, integrity, security or sovereignty of India". This is more or less `the nation', the real estate called Bharat. The other half of `the terrorist act' is striking terror in the people or any section of the people. These expressions are to contain minority militancy and secessionist politics based on self-determination, which our government has not recognized. The process of curbing terrorism bars all democratic dialogue and debate. In debating such law the discussion should not be confined to the interpretation of words and provisions of the statute. It is not the legality that needs to be debated. It is the politics behind the legislation that needs to be discussed and debated. That is what the BJP and we did to Ms Gandhi in the mid seventies of the last century.

The record of the court bear testimony to the fact that, from AK Gopalan's case (1950) to Naga Peoples Movement of Human Rights 1998, whenever issues of democracy and rights were put in issue they favoured anti right and authoritarian rule. After America's jihad against world terrorism litigating about this law may end up, after months of hearing, in the court advising the government to administer the act with care. The court may point out to section 51 of the ordinance, which provides for a procedure while arresting a person. In fact the Code of Criminal Procedure stipulates such procedure. None of these provisions have ever been followed. They may even refer to the non-operative guidelines culled out by NHRC from the various decisions of the court on the interpretive myth that from the existence of guidelines it can be inferred that sufficient care has been taken to protect the rights of the accused. The court earlier in Naga Peoples Human Rights case in answer to the argument that no guidelines are prescribed in the Special Powers Act to discipline exercise of powers for arrest etc it was held by the unanimous court that guidelines prescribed by the Army HQ are sufficient safeguards against infringement of Articles 14 and 21.

The enlargement of the remand period to one year in all is in fact preventive detention by other means, which avoids the high profile Habeas corpus proceedings in the High Courts or the Supreme Court. The proceedings before a criminal court will be news confined to the district or city news, and this will effectively conceal the news of daily arrests. No grounds need be shown for the arrest, just a promise of a chargesheet on the three sixtieth day.

This Act targets personal liberty, like all such statutes do, by providing a crippling procedure for arrest, investigation and trial. That procedure itself is an invitation for flouting even the minimal norms provided by the statute. The statute is an abrogation of Art.21 as defined by Maneka Gandhi's case where procedure for forfeiting your life and liberty are not informed by fairness and justice. As Art.21 is nonderogable, the war against terrorism cannot dispense with the compliance of this Article. The war against terrorism cannot be equated with and degenerate into war against democracy and human rights.

Secondly this measure makes heavy inroads into the Right to Privacy by making it lawful to tap your telephone and other electronic systems of communication in whatever licensed form the facility is available to you. Behind your back an application can be made to secure permission to tap your phone. The provisions in this regard provide a hierarchy of authorities who grant and who review the grant of permission. All these activities of the state have to be carried on behind the back of a person without his knowledge and therefore whether the required procedure has been followed or not to secure permission to erode your right to privacy will have to remain unknown to you. This is the general power. In emergencies the Additional Inspector General of Police apprehending death or physical injury to any person, or to prevent conspiracy or conspiratorial activities authorise the investigation officer to intercept and later obtain approval. All these interceptions will be transcribed into tapes or some such mechanical or other comparable devices and these will be preserved in a sealed condition for a period of ten years. The emergency power given to the Additional Director General of Police will alone become the ordinary power eroding the entrustment of the original power to the 'competent authority'.

The evidence collected by this means can be used against the accused and is admissible in evidence and mercifully the accused is entitled to copies of the interception ten days before trial, and not when the chargesheet is filed. There is an arbitrary rider to this right. This right of the accused can be waived by the court. One thought that waiver is personal to the right of the accused and on what principle is this right transferred to the court! Apart from this, several persons' right to privacy is bound to be interfered with in the process of investigation. And how is the state going to account for the needless intervention of so many persons' right to privacy. Is it valid to trample right to privacy on such large scale for targeting miniscule number of terrorists? Such large scale erosion of right to privacy, which has been held to be fundamental, is arbitrary and cannot be countenanced in a democracy and in the constitutional set up. The emergency provision alone will be functioning and this power alone exercised. The innumerable public and STD/ISD booths will be tapped and the licensees of these booths will become the police network of information system. There have always been such unauthorized intrusions. That is why P U C L initiated proceedings against telephone tapping and the Supreme Court held that Right to Privacy is a fundamental right and traced this right to Article 21and clause 17 of ICCPR to which India is a signatory.

Yet another inroad made by the ordinance is into the fundamental right to assembly and association.

A person would be a terrorist if he is a member of a terrorist gang or terrorist organization. Any person who is a member of an organisation after it has been declared unlawful under The Unlawful Activities (Prevention) Act 1967.A person who threatens a witness or any person interested in whom the witness may be interested. A person who has in his possession any information of material assistance to the police and is not willing to pass on this information to them is punishable with one year imprisonment. Press persons unwilling to act as informants, for that is what it means, will be offenders under this Act. The Print media rose in arms, not against the Act itself, but against this specific provision as affecting their right to free speech. More than affecting free speech, non disclosure of the source is an important aspect of the right to carry on business of selling news.

Freedom of speech and expression, freedom of association and assembly are interlinked and banning one will amount to banning others. A leader arrested under any preventive detention law, can no longer exercise his free speech. His speech is a threat to security of state. An Assembly of people listening to him will also be threat to security of state. The detenue cannot be allowed to participate in the activities of the association, nor can the latter avail of his services. When all the three rights are banned the state and its forces gain complete control and dissent will stand totally disarmed and the people muted not out of active consent but some out of fear, and the rest out of indifference, for nothing changed their lives for the better in all these fifty years of independence

Within a few years after independence and soon after the Constitution came into force all enumerated rights in Part III came up for defining . So also the right to association. The old colonial Criminal Law Amendment Act 1908 had a section devoted to banning organizations and association. Its stated purpose was to restrain civil disobedience. Despite its notorious role in restraining freedom movement this law was adapted by the President as the Independent Indian Government found in these provisions nothing inconsistent with the provisions of the Constitution. Free India's Madras state brought in an amendment basing the deprivation of the right of association on the subjective satisfaction of the stated authority with an advisory board thrown in by way of abundant caution to review the continuance for further periods. The drafting of this provision was patterned on the principles on which the Supreme Court expounded and validated the law of preventive detention in AK Gopalan's case. Armed with this Amendment the state government banned the Madras Education Society set up by the Communist Party of India. V.G. Row questioned the validity of the ban and the court held that the principles, which validated the preventive detention law, are not applicable to the other two freedoms. Stressing the importance of freedom of association the court laid down legislation leading to deprivation can only be by adjudication by an independent tribunal, where the grounds for ban has to be objectively established. That is how The Unlawful Activities (Prevention) Act 1967 came to be passed with a provision for an independent tribunal presided over by a sitting High Court judge to enquire into the existence of the grounds for banning the organization as notified by the government. It is only after the approval of the tribunal the notification comes into force. The time frame is fixed for notifying the tribunal and latter to complete the enquiry. Nonetheless the government has powers to ban forthwith the organization from the date of notification but for other grounds justifying the ban with immediate effect.

Under the present Ordinance the terrorist organizations are already listed in the schedule to the Ordinance. This will automatically form the schedule to the proposed Act. The executive list incorporated into the Act will become the legislative judgment for their banning. The practice of passing an ordinance just a few weeks before the assembling of the parliament has to be condemned as not acceptable. Parliament cannot be converted into a mere approving body of executive legislation. An organization listed in the schedule is a terrorist organization. Central government alone has the power to include and exclude organizations to and from the schedule. Organizations, ) which commit or participate, promote, prepare, or is otherwise involved in terrorism shall be deemed to be terrorist organizations. Persons who are accused of being members in these organizations are deemed to be terrorists. The central government's powers to remove from the list and the review committee's power to delete any organization from the schedule is offered to the people as a satisfactory safeguard of the right of assembly and as an effective alternative remedy! Perhaps the government hopes that the court will update its knowledge of these rights and their diminishing importance in the context of globalization and the current war against terrorism. It may reconsider the correctness of VG Row's formulation of a rights thesis.

How does one disprove the accusation that he is a member of the banned organization? I am appearing for some of the accused who are charged with Lashkar-e-Toiba. There is nothing to prove that such an organization exists or operates in India. When patriotic sentiments are aroused accusation is proof and as the accused happens to be a Muslim, an inference, not covered by the Evidence Act, has to be drawn. The Home and the Prime Ministers assure us that this Act is not directed against Muslims and the first ten are Muslim organizations. How does one separate the terrorist from (or in) the Muslim, and deal with the terrorist in him?

Law and order cannot be an adequate reply to questions raised by the terrorists. Those issues have political roots. The fact that certain organizations in Punjab have been listed in the schedule only tells us that state terrorism has not been a complete answer to decimation of Sikh terrorists. Impunity is unchecked in governance because law and order is seen as governance.

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