Let us not abdicate our responsibility

ARUN JAITLEY

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WE are debating a very important piece of legislation. Whenever we legislate, the content of the law must have some relationship with the problem that it seeks to address. India’s struggle and fight against terrorism, primarily cross-border terrorism, as also some forms of domestic terrorism, did not start on 11 September of last year. We have, for the last 15 years, been victims of this terrorism, so much so that when we frame a law it is not for some ordinary crime that we are dealing with.

It is normally said that terrorism is a low intensity war. This country has fought four high intensity wars and in those wars we have lost a total number of 5468 people. But in this ‘so called’ low intensity war over the last 15 years, we have already lost 61013 civilians. In addition, we have lost 8706 security personnel. Almost six lakh people in this country have become homeless as a result of terrorism. Outside the expenditure on our armed forces, merely for maintaining the entire set up to fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore.

Each one of us here (in Parliament), for the states and constituencies we represent, day in and day out ask for various facilities – hospitals, schools and roads. But here is Rs 45000 crore being spent by this country, collectively by the states and the Centre, merely on account of anti-insurgency. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times. We have no record of the explosives that have been used in various parts of the country. We have a record of crime. But the explosives that have been confiscated by our security agencies weigh 48000 kilos. If our security forces had not been vigilant enough to confiscate these explosives, they would probably have been enough to take care of every inch of Indian soil.

What are the regions that are affected? It is not only Kashmir; Punjab too has suffered. Also Mumbai, Delhi and other regions of the country like the North East. Development has suffered, the economy has suffered. You have now a brand of Maoist terrorism; People’s War Group and other groups. A large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh and Jharkhand right up to the Nepal border is affected. We had insurgency and terrorism in Tamil Nadu. We lost two of our former prime ministers to this kind of terrorism.

What is the effect of all this? Terrorism undermines every political system. It undermines democratic values because people then say we must use strong measures against terrorism. It undermines the faith in the democratic process. It halts economic progress. In Andhra Pradesh, when the People’s War Group started striking at business establishments, all of us were concerned because here was a state that was making great economic progress and the object was to somehow try and halt it.

 

 

Investors do not invest in those areas where jehadis move around with guns. The economy suffers. Not only this, when counter-terrorism measures are taken, at times, they result in alienating a section of people. Therefore, in terms of our sovereignty, unity and integrity and our feeling of nationalism, terrorism strikes at each one of them. This is the enormity of the problem that we are addressing.

It is not that the problem is over. I will just briefly illustrate how there are people who encourage international and cross-border terrorism and whose evil eye is targeted at us. May I just quote from President Musharraf’s speech of 5 February 2000 at Amdore Camp: ‘Jehad is not terrorism. Mujahideen organisations are not terrorist organisations. Jehad has been revived during the Afghan War and now, it is Jehad in Kashmir. Muslims from different parts of the world who are coming to support are oppressed brothers and sisters.’

‘Fighting Jehad against India is a beauty of "such and such world". The Kashmir issue cannot be resolved by any other means other than Jehad.’ This was said by Osama bin Laden on 27 August 2000. Masood Azhar who got himself released by virtue of that hijack says: ‘Our mission is not Srinagar; we have to capture New Delhi.’

This is the menace that we seek to fight. When we think in terms of legislating today, the legislation must actually address this problem. A very simplistic argument often advanced is that we have enough existing laws. But it is also said that our criminal law systems have broken down; it seems to be a sad fact to accept. Are we aware of the conviction rate under the so-called ordinary laws? At times we try and conceal the figures and say that in India the conviction rate is 40%. But that 40% is actually a camouflage because every time there is a challan and somebody pays Rs 100 as fine, it is recorded as a conviction. Every time somebody feels guilty and pays a fine under company law, we take it as a conviction and then claim that the conviction rate is 40%. In heinous crimes like murder, the conviction rate under the so-called normal processes has come down to 6.5%.

 

 

There are several reasons for this. One is that when we deal with hardened criminals, some of our old notions of criminal law have to change. It is a sad reality that crime in India has b ecome a low risk business. It is a high profit business with a 93% probability that you can commit a hard crime and get away with it. But when laws have been hardened, when a replica of this law against organised crime has been implemented in Maharashtra, what is the conviction rate under MOCA? I am aware of the fact that is has to be tried for a reasonable period of time to arrive at the rate. But in the last couple of years, under Maharashtra’s law, which is similar, the conviction rate so far has been over 75%.

I will go into the reasons as to why the conviction rate is over 75% under MOCA. But before that I will come to two major points as far as this law is concerned. One criticism is that this law must have a definition, and that the definition must be precise. It is very easy to demand that the definition be precise. There were only two specific suggestions that came from Shri Jaipal Reddy about the definition, which cannot really be accepted. According to his reading of the law, trade union activity would be affected because whoever disrupts essential supplies would be covered under POTO or POTA. Let me read the definition to show how this is demonstratively wrong. It says: ‘Whoever with the intent of threatening the unity, integrity, security and sovereignty of India or strike terror in the minds of peopleÉ’ We may agree or disagree with this. But at least our trade union leaders are nationalist leaders. Nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.

So, the first precondition and definition is that you must threaten the unity, integrity, security and sovereignty of India. The trade union movement does not do that. Obviously, it is not covered.

 

 

The second condition is, ‘Éor to strike terror in the people or any section of the peopleÉusing bombs, dynamite, explosives or other inflammable substances.’ So, the second precondition to disturb India’s unity and integrity is that you must use bombs, the kind of activity the PWG has been doing. By the use of these two conditions, if you commit the following acts, you will be booked. One of the following acts is to disturb essential supplies. You go and bomb the power station, or disturb the entire water supply to a city. Any terrorist group which, in order to threaten unity and integrity, uses bombs and explosives and threatens supplies, will be covered under POTO. Somebody who simply goes on strike is not covered under POTO. This is a misreading of the definition.

The second reason given for opposing the law – probably in order to add a communal tinge to the argument – is that under TADA terrorism was defined. There is a good reason why we changed that definition. It is a sad reason why we had to change that definition. You do all these acts and the result of these acts must be either of the two – it must either cause terror or fear in the minds of the people or bring disaffection between the communities. So, if the People’s War Group bombs business establishments and says that there is no disaffection between the communities, the provision of TADA could not be attracted. All investigators under this Act said these were the major handicaps. The Supreme Court gave several judgements in this regard. The saddest judgement in this regard was in the case of the assassination of our former Prime Minister, Rajiv Gandhi. The Supreme Court said that the LTTE had some problems because of the Accord. They wanted to take revenge. They killed him. So, where is disaffection between the communities?

 

 

Therefore, TADA was not made out even when Rajiv Gandhi was assassinated. These two preconditions made the definition very narrow. They added unreasonable pre-conditions. In fact, when we changed them – the senior-most officers investigating the crimes in the SIT said: ‘Thank God, you have changed this definition because under that definition, it was becoming very difficult, if not impossible, to book anybody under TADA.’ Today, to create communal disaffection, if somebody uses bombs, if he threatens the integrity and sovereignty of India by using bombs, he is automatically covered by this definition. The restrictive definition has gone because, even in that most important case under TADA, it made it impossible to bring the accused under that law. I would request you not to introduce a communal colour to this argument. It was done because of reasons of criminal law investigation; it was done because the law compelled us to revise the definition and make these changes.

 

 

What else does this law say? In simple language, it says that after defining terrorism, membership of a terrorist group is prohibited. If you become a member of a terrorist group, if you support terrorist activities of that group, then POTO is attracted against you. Initially, when the draft was prepared, this chapter was not there. But, over the last 10 years, not only in India but also in other countries, there is a considered international legal and judicial opinion about how to tackle terrorism.

The law will punish the terrorists. It is now to be based on international experience. When we looked at various chapters internationally, we found that as far as membership of a terrorist group is concerned, the British law has an exclusive chapter on banning terrorist organisations. After banning a terrorist organisation, membership of a terrorist organisation, ipso facto, becomes a punishable act.

May I now ask a question? There is a power to review that is given. After the review committee, you may go to the High Court or the Supreme Court. We have a judicial system in India. The whole objection being raised is: ‘Why should the government have the power to ban a terrorist organisation?’ Our country has paid such a huge price for terrorist activity. How can there be an argument saying that these terrorist organisations should not be banned? Why should the political system sympathise with them? Britain, one of the more liberal democracies in the world, has a complete chapter banning terrorist organisations. We have studied this chapter and had it legally examined. We felt that it is absolutely necessary. In the case of every effective anti-terrorist law, you need a chapter to ban a terrorist organisation.

The second component that was not there in TADA is, if you try and earn money through a crime, that is, through terrorism, there are two offences which flow out of that. Whoever funds terrorism is also held guilty. By funding terrorism you are abetting terrorism. You are giving resources to terrorism. The old terrorist laws the world over never had a chapter on funding of terrorists. But now you must create a fear and scare in the minds of those who fund terrorists.

 

 

I used to ask myself the question: Why is the United States not banning the Jaish-e-Mohammad? Why are the United States and England not banning the Harkat-ul-Mujahideen? Why is the Lashkar-e-Toiba not being banned, why are their accounts not being frozen? Our foreign policy and our diplomacy were put to test and trial. We persuaded the civilised world to ban these organisations and confiscate their assets. After succeeding, we are told: ‘Do you yourself also want to confiscate their assets and ban those organisations?’

Now we are being told that, at our request, let the US and England do it. But in India, if we have the power to ban such organisations or confiscate their assets, then this is something draconian and an unprecedented law. In no civilised society is anyone allowed to retain the profits earned out of crime. This Parliament passed a law – the Congress Party moved it when it was in power – that if you smuggle goods, the wealth earned out of smuggling would be confiscated. The Congress Party brought another law, that if you are in the drug trade or arms racket or arms dealing or the narcotics business and you earn profit out of narcotics, drugs or arms running, you cannot keep the profits. They will be confiscated because they belong to the state.

 

 

What you earn out of crime is not your private property, it is against public interest and must belong to the state. The UN passed a draft Money Laundering Bill which all of us have been debating. The whole concept of money laundering is that profits out of crime must be confiscated because they cannot belong to an individual. Is it the argument today that since India is now to have a provision where profits from terrorism will be confiscated, it is a draconian provision?

It is said that TADA was misused. Probably it was misused. I would like to point out that one of the great weaknesses in TADA – a structural defect – was its dependence on witnesses; eyewitnesses and humble citizens appearing against terrorist groups. Anybody from Punjab, Mumbai or Kashmir will testify that the average citizen is scared of coming and honestly deposing before these institutions. We had a case where a former Chief of the Army Staff was assassinated. When the police went and investigated, even family members were reluctant to come out and give evidence. They said that they had seen the consequences and that they did not want to face them. This is a threat that the witnesses face against terrorist acts.

When the Law Commission prepared a draft, we circulated it to all the states. The states approved the draft, and one state government made a very valuable suggestion. I must express my gratitude and thanks to the Government of Maharashtra. It said that the law was incomplete since people do not come and give evidence against terrorists. It said that terrorists and mafia have become technology savvy, they carry wireless phones, satellite phones, and they have the best weapons. So, it requested us to bring in a provision that when terrorist gangs communicate with each other, intercepts of their communication should be allowed and these intercepts should become admissible evidence in court.

So, when you arrest terrorists, you do not need a humble citizen to come and give evidence against them. You produce the recording of that intercept. At that moment, it becomes admissible evidence. Under normal law it is not admissible evidence. We examined the suggestion and accepted it. One of the strengths of this law is actually on the question of intercepts becoming admissible evidence. It is one reason why in Maharashtra, the conviction rate has reached 75% plus under MOCA.

 

 

There are two other provisions that I wish to deal with at length. It is argued that the bail provision in this case is a very hard one; that the normal bail provision should apply. The comparisons made, in my respectful submission, are inaccurate with the law in the USA and the UK.

I can assure you that this bail provision is not the ingenious thinking of this government. We have had the benefit of several good governments in the past. They had good legal thinking. Those governments brought forward several laws. I can obviously get up and say: Well, in Andhra Pradesh and Karnataka you have a law against organised mafia; in Maharashtra, you have worked that law out; in West Bengal, it is at the proposal stage. These laws are applicable against organised criminals – the mafia.

The argument is that when you deal with these local domestic swadeshi goondas, have a very hard bail provision; the moment you have the same law against terrorists, my God, it becomes draconian! How can the same bail provision be good against local mafia and become draconian when it comes to terrorists?

 

 

Our laws need not be compliant with the desires of criminals because it is only the criminals who want such relaxed bail provisions. Let me show the contradiction. We are dealing with terrorists, we are dealing with suicide squads, and we are dealing with people who either die or kill. We saw that in the 13 December happening. Are we so innocent and gullible as to assume that if anyone is ready to give his own life, and he has the luxury of being released on bail, he will come back and respect our judicial process and appear in court?

This legislature must not abdicate its responsibility. The legislature must show that it is this problem that we are trying to face. It is our country’s unity and integrity that is threatened, our economy that is threatened. And to this terrorism, we cannot say that the legislature is unwilling to legislate, we abdicate our responsibility, let the judges now save us from terrorists because we are unable to legislate!

I am not reading out the provisions in the Maharashtra and Andhra Pradesh Acts because they are not identical. Those provisions are applicable throughout the case. In the three states the law says, there will be tough bail provisions throughout the case. POTO says, this tough bail provisions will apply only for one year. Thereafter, the normal law will apply.

Second, in those three states, the law says, ‘One of the conditions is that he is not likely to commit the offence again.’ In Kartar Singh’s case, the Supreme Court made some observations about that condition. They sent the draft back and we have removed it. So, our bail provision is actually lighter than the bail provisions in the three states.

This language of a bail provision, the CrPC normal bail provisions, will not apply: ‘That no person will be released on bail unless the public prosecutor has an opportunity or where he opposes the application, there is a reasonable opportunity of believing that the person is innocent and shall not commit an offence.’ This was the language under TADA. We have diluted this language under POTO.

 

 

There are several other laws at the Centre and in the states that we can bring out. Today, the argument is that when the bail provision is applied against organised criminals in Maharashtra, Karnataka and Andhra Pradesh, this is a valid provision; when the same tight bail provision is against drug smugglers, it is okay; when it is applied against black-marketeers and hoarders under the Essential Commodities Act, they must be very toughly dealt with. But when it comes to terrorists, the general principle becomes one where the normal law should apply; and why should poor innocent terrorists be subjected to a hard bail provision?

Under TADA, the provision was that any confession made to a police officer of the level of SP and above was admissible and there was a reason for it. The reason relates to the anatomy of a terrorist offence. The anatomy of a terrorist offence is this. Take the 13 December attack on Parliament. Somebody is trained, provided funds, arms and ammunition, indoctrinated in some other country. He is given support. He comes to India. Newspapers reported, and the investigating officers confirmed that some Gazi Baba helped them. They come to Delhi and some local people, professors and various people helped them with the logistics. This suicide squad of five people comes and attacks Parliament. When the attack on Parliament takes place, it is foiled and they die. In several other terrorist offences, they managed to hit various camps and escape.

 

 

So, the suicide squad either dies or is killed. Very few of them are in the hands of our security forces for trial. Then the investigators start investigating. From phone bills they find who their contacts were; from interrogations the entire linkage of those who gave logistic support in Delhi; they move backwards right up to Kashmir, Gazi Baba and his team and get evidence of Lashkar-e-Toiba or whichever organisation is involved.

Now, the argument is, apply the normal law. Who, but members of that gang, are aware of who trained them? Who, but members of the gang, will know where they got the RDX and explosives? Who, but members of the gang, will tell you about the identity of Gazi Baba, the links with Pakistan and where the training camps are? And who, but those people, could have told you about the training camps and the facilities which Lashkar-e-Toiba and Jaish-e-Mohammed and other organisations gave them?

Our investigating machinery, on your argument, should not be so weakened that it must say that whatever these people have told us about Gazi Baba, about training camps, about Lashkar-e-Toiba, my God, how can this become evidence?

Our former prime minister was assassinated in front of thousands of people. The killers died on the spot. When the rest of the conspirators of Rajiv Gandhi’s assassination were arrested (but for Section 15 of TADA and that also after holding TADA is not applicable), it was only the IPC which was applied because of the tight definition. But by saying that it was a trial under TADA, we were able to hold confessions as admissible – the conviction was based entirely on that. There was not a single other eyewitness. Supposing Section 15 of TADA was not there, and now you say Section 32 of POTO should be taken away, that it should not be made admissible, then we would have looked a weak nation in a situation where our former prime minister was assassinated, and where we could not sustain a conviction because our laws were so defective.

If your advice is to be yielded to and those statements are to be made totally inadmissible as evidence, let us then give up, at least, the legal fight as far as terrorism is concerned.

 

 

The consequences of that will be extremely serious. The argument that is given by many civil libertarians is that if you give the police power, then the police will always misuse it. This is a fear that everybody has, that this power should not be given because it is likely to be misused. The alternative will be even more dangerous. Do not give legitimate power to the police, but keep putting pressure on the police to deliver. Tell the DGP, Kashmir, you have no POTO, nor any other act to try them. Tell the DGP, Andhra Pradesh that lawful power under any law is not being given to you; try them under normal laws. Every time you catch a PWG activist or a Hizbul Mujahideen jehadi, get an eyewitness against him.

If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy. Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies.

‘Confessions could be made admissible evidence.’ In respect of confessions, we have given the facility of video recording. After that, within 48 hours, the person should be produced before a magistrate. The magistrate will ask whether it was voluntary or not. If the accused says that it was not voluntary, that he had been assaulted and coerced, the magistrate will have a medical examination done. So, a safeguard has been put in.

 

 

I have read somewhere that we have changed the onus of proof. In TADA, there were several provisions, like if a weapon were found there would be presumption of guilt and the presumption had to be rebutted. We have brought that presumption down to a lower level of proof. There is now only an inference.

We have said that there would be a review committee headed by a sitting or a retired judge. At times, sitting judges are not available. Therefore, there could be a sitting or a retired judge. In TADA, there was no review committee. In the three states where new laws have been legislated, the chief secretary heads the review committee. Here, if the power is misused, we have a review committee headed by a sitting or retired judge of a High Court. If a wrong organisation is banned or if somebody’s property is unfairly taken away, there is an internal review and then a review before a court.

We have also put in a provision that in case any police officer misuses this law for his own personal purposes or for collateral reasons, he will be prosecuted under POTO itself.

Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively.

 

 

In India, we have a law that if you are arrested, you must be produced before a judge within 24 hours. There is a period up to which police remand can be there; there is a period up to which judicial remand can be there; there is a period up to which denial of bail can take place. In America you have laws dealing with terrorism that are much harsher. Power to detain for seven days under the Patriot Act is permitted without any charge, while in the police stations in India you can do so only for 24 hours. In America, after seven days, you have to take him before a judge and state the charge under which he has been arrested. In India, you have to do it on the expiry of 24 hours.

Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure.

A criticism is made that we have brought this Bill in a hurry when the Parliament session was being convened. The Law Commission made its draft proposal a year and a half ago. It was widely circulated. It was taken to the Consultative Committee of Parliament. It was discussed there and thereafter, copies were sent to every state government. There is a charge that the introduction of the law is political. I must tell you that all the state governments, including the state governments headed by the Congress Party, who know where the shoe pinches, were consulted. Almost every state government of the Congress Party not only supported this law but also gave very valuable suggestions to improve upon this law. Initially, the first proposal from the West Bengal Government also supported the law. It was only after the then chief minister made a speech that the state government wrote another letter saying that they were withdrawing their suggestions.

 

 

The charge is whom had we consulted. We spent one year in consulting every state government. We have a genuine federalism in action today where you have one party or the other in power in every state. We consulted each one of them. We consulted the state governments. We consulted the Consultative Committee of Parliament. When the complaint was still made that we had not initiated wider consultations, we had a second meeting of the consultative committee. We had a meeting of the chief ministers of the states. We had a meeting with all opposition leaders. Having done these wide-scale consultations, today there is no basis to this charge.

We have the international experience; we have the experience of our state legislatures that have been effective in tackling this menace.

Learning from this experience, I would urge the honourable members who are opposing this law to once again consider their stand because posterity eventually will decide that this country, for its integrity, certainly needs this law.

 

* Extracted from the discussion in the Lok Sabha, 18 March 2002, on the introduction of POTO.

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