Comment

Countering terror or terrorizing the law?

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IN the aftermath of the horrific Mumbai terror attacks and resultant siege in the heart of India’s commercial capital in November 2008, the ruling UPA government quickly pushed through two significant pieces of legislation. First, the Unlawful Activities (Prevention) Amendment Act, 2008 (UAPA) and second, the National Investigation Agency Act, 2008 (NIA). For a start it is debatable whether such new laws were necessary to stop eleven odd men from making their way through naval and coast guard patrolled waters in a dinghy. Is it that the entities meant to guard the waters and the hotels that had apparently been warned about a possible strike, need legislation to follow intelligence briefings?

Further, the second statute, the NIA, while ostensibly dealing with a new investigative agency, mostly details the establishment of ‘Special Courts’. We need to ask whether the Mumbai attacks, mostly critiqued as a failure of intelligence, can be meaningfully addressed by the creation of an investigative body (investigation being a post-fact activity), managed by upper level officers from the existing system that clearly could not prevent such an attack. And a look at existing ‘special’ courts tells the tale of how ‘unspecial’ they really are, merely copying regular courts in terms of the lengthy time taken for trials while ignoring procedural safeguards.

The UAPA essentially further revised the age-old Unlawful Activities Prevention Act, 1967 that has been in force and utilized for the last forty two years. This statute was quietly amended shortly before the much-celebrated repeal of the Prevention of Terrorism Act (POTA) by the same government. Unfortunately, even as many committed to democracy and rights heralded the death of POTA, few wrote about these revisions to the UAPA that went further than POTA or the Terrorist Activities (Prevention) Act, 1987 (TADA), or for that matter any so-called anti-terror laws, including negating periodic legislative review, and dropping safeguards like Section 58 of POTA which made it an offence if a police officer ‘exercised power corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this act.’

Ujjwal Kumar Singh, in his book on anti-terror laws, neatly summarizes that the four new chapters (IV, V, VI, and VII) of the UAPA, 2004 (that replaced Chapter IV of the UAPA, 1967) essentially included ‘terrorist activities’ alongside ‘unlawful activities’, specifying different procedures to deal with each.1 According to him, with this substitution, specific provisions of POTA pertaining to definition, punishment and enhanced penalties for ‘terrorist activities’, and specific procedures, including the banning of ‘terrorist organizations’ and interception of telephone and electronic communications, were inducted into UAPA. This article will mainly focus on the legal amendments since the 2008 Mumbai attacks, and the alleged ‘reshaping’ of the approach to tackling terror attacks.

It is important to point out that ‘extraordinary laws’ like TADA and POTA, as they have been referred to,2 come with provisions that enable any investigation or legal proceeding that may have been initiated while the acts were in force, to continue as if these acts had not expired.3 This means that the ceremonial repeal of any such ‘extraordinary’ law post the initiation of state action – whether by the police or the courts – is pointless.

Further, in the context of the law, exceptions in fact reshape the general law by virtue of precedent and resultant jurisprudence. Interestingly, when confronted with exceptions to well established and familiar rules of evidence and procedure, judges usually balk at the application of the exceptional law, since they lack precedent and the amended law often seems counter-intuitive to legal principles and training.

So, for instance, in the face of lax burden of proof and evidentiary requirements by a so-called ‘anti-terror’ statute, what can be termed as a law facilitating lazy investigation, courts respond the way the Supreme Court did in State of Rajasthan v Ajit Singh and others.4 This case concerned a few men allegedly involved in transporting arms and ammunition from Pakistan to Punjab to be used towards the creation of Khalistan. The case emanated out of the judgment dated 2-12-2000 of the ‘Designated Court for Rajasthan at Ajmer’, a special court created by statute, that heard this case – titled TADA Spl. Case No. 1992, applying almost unbelievably the twice removed TADA law, already repealed in May 1995. The point of this description is that a specially designated court took eight years to decide an alleged terror case, which in turn took a further eight years to be decided by a rightly-reticent Supreme Court. In all, this ‘exceptional process’ to probably an unfortunately common situation in this violence-hit country, took almost seventeen years to decide a case, involving a repealed statute, that now looks far less draconian than the ones in place!

The Supreme Court in a judgment by Justice Harjit Singh Bedi, while dealing with alleged confessions of the accused to the police, made a significant observation – that TADA is a ‘harsh penal statute and its provisions must be construed in that perspective.’ The judge noted that the admission as evidence of a confession made to a police officer under TADA was ‘a clear departure from general law.’ In this case, the judge noted that the accused had been in police custody for almost 45 days and that the record of the confession of the accused showed that a mere 15-30 minutes time was given for reflection before the actual confession was recorded. Therefore, the court felt that ‘sufficient cooling off time had not been given to the accused, in the background that they had been in police custody over a long period of time.’

Justice Bedi referred to the time-tested legal principle that the prosecution should prove the involvement of the accused by other evidence first and further that the confession of an accused can only be used as corroborative and not as a substantive piece of evidence and that too only against the maker based on safeguards within the Evidence Act.5 It is only when the other evidence tendered against the co-accused points to their guilt that the confession duly proved can be used against such co-accused if it appears to lend support or assurance to such other evidence.6

The prosecution in this case had also argued that the arms and ammunition allegedly recovered from the accused were found to be used in terrorist activity and thus a heavy onus lay on the accused.7 The judge in turn rightly relied on established legal principles that the presumptions of TADA would apply only once if it were in fact ‘proved’ that the arms had been recovered from the accused, or that they had any knowledge of the ultimate destination and end use of the weapons. Accordingly, the appeal of the State of Rajasthan was dismissed.

The other significant change instituted by the government, post the Mumbai attacks, was the establishment of a National Investigation Agency. The National Investigation Agency Act, 2008 (NIA) was formulated in the wake of the widespread criticism of the current government about alleged intelligence lapses connected to the Mumbai attacks. The NIA states that notwithstanding anything in the Police Act, the central government will constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the acts specified in the ‘Schedule’.8 The constitutionality of the exercise of power by the central government has been discussed elsewhere, including in the Commonwealth Human Rights Initiative paper on this enactment.9 The CHRI paper points out that the areas of ‘policing’ and ‘public order’ lie within the legislative competence of the states and not the Centre, as per Article 246 read alongside the Seventh Schedule of the Constitution. The Union list has within it only the provision for a Central Bureau of Investigation – an already existing overused and overworked body.

The NIA also enables the central government to constitute Special Courts for cases or classes of cases that may be notified – essentially cases covered under the Schedule.10 This is merely a continuation of the same ‘exceptional’ process whereby alleged terrorists are tried in Special Courts with little acceptable evidence, resulting in the kind of scenario that the case above dealt with.

Further, the NIA provides that the superintendence of the agency shall vest with the central government, and that this shall include the appointment of a Director General (DG). The new DG of the agency is Radha Vinod Raju, a Jammu and Kashmir cadre IPS officer, who has been part of the CBI for over fifteen years.11 The NIA is reportedly aspiring to have over 100 investigators, including 25 IPS officers.12 The agency is to have a ‘crime intelligence unit’ like the CBI special crime unit, whose mandate is to focus on terror related activities.13 And that the NIA will be linked to the MAC (Multi Agency Centre) for information sharing among various intelligence agencies.14 It has also been decided by the Home Ministry that the NIA will not deal with the Mumbai attacks case since it is already being investigated by the erstwhile agencies. Of course, when one looks at the structure in place, and the fact that there is already an agency coordination system, and that existing IPS officers will provide the upper level management of the agency, it seems fair to question the utility of yet another agency staffed with the same people from the same system?

It is significant that the statute deals with a national level ‘investigation’ agency, as opposed to the refinement, reorganization and enhancement of ‘intelligence’ capacity. The Mumbai attacks, if anything, represent a failure of intelligence gathering, i.e. warning systems to pre-empt such attacks. Investigation usually connotes a police-based function, i.e. a post-fact process. Blacks law dictionary defines investigation to mean ‘to inquire into (a matter systematically), to make a suspect the subject of a criminal inquiry – the police investigated the suspect’s involvement in the murder.

Webster’s defines ‘intelligence’ as information concerning an enemy or possible enemy or an area. The point is that it is intelligence that provides leads which in turn enable investigation by the police. The NIA statute instead focuses on policing; it does not address intelligence lapses, the acute lack of expertise, political infighting and absence of independence that define our intelligence agencies. It is not clear how a new statute replicating police functions can help us understand how a few men in a dinghy crossed the 12 nautical miles that the coast guard was meant to patrol.

The NIA allows for investigation related to offences under Statutes listed in the Schedule. These are – the Atomic Energy Act, 1962, the Unlawful Activities (Prevention) Act, 1967, the Anti-Hijacking Act, 1982, the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982, the SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993, the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 and offences under Sections 121 to 130 (Offences Against the State, including conspiring or waging war against the Government of India) and 489A to E (Counterfeiting Currency Notes) of the Indian Penal Code.

Of all these, the NIA functionaries draw their power essentially from the Unlawful Activities (Prevention) Act, 1967 and the new amendments that were passed soon after the Mumbai attacks. The amendments make three notable changes; first, in the definition of what is a terrorist act; second, in defining what is funding of terrorism and setting forth a punishment (minimum of five years to life imprisonment); and finally, defining and punishing training of terrorists in camps, with a minimum sentence of five years extendable to life imprisonment.

Section 15 of the Unlawful Activities (Prevention) Act, 1967 virtually reinstates the old POTA definition of terrorism that the government had earlier repealed. It states that a terrorist act is ‘any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.’ The only change from the past is that this definition initially attempts ‘a means’ delineation. Therefore, a terror act would be bomb making, using firearms or biological weapons, or ‘any other means of whatever nature’ that causes death or injuries to people, or loss of property etc.

Linguistically, ‘terrorism’ comes from the root word ‘terror’ or in Latin, ‘terrere’ – meaning ‘to frighten’. Whether simply fear can ever be, or must be allowed to become the basis for exceptional jurisprudence is a question that must be answered by our legal system. However, for now the focus of this piece will be these new legal provisions that apparently assume a consensus on what is ‘terror’ and what we must ‘fear’ in order to protect our common interests.

It is significant that the ancillary or subsidiary clause, ‘any other means of whatever nature’, is part of this definition of terror. This is a ‘catch all’ legal clause that enables rampant abuse of an extraordinarily harsh penal statute. For instance, this could mean that an alleged bomb-maker and someone supplying him or her with milk could both be detained under this kind of extraordinary law.

According to Amnesty International, in 2006, ‘Around 77,000 persons had been arbitrarily arrested under TADA. Of those arrested, around 72,000 were later released without having been charged or tried. Even a decade after the TADA lapsed, 147 persons are still under detention for offences under that act, including some held in connection with high profile cases for which trials are still ongoing.’15

Any government serious about countering terror needs to do the following: First, commit that it will not perpetuate the politics of fear and encourage the jurisprudence of exceptionalism through extraordinary statutes. Second, that it will not focus on persecuting dissent. This not only violates the Constitution and harms democracy, but distracts the state from tracking down those few who really are guilty, and furthers alienates the many that are innocent. Finally, instead of resorting to Special Courts that are usually not special in any way, a finite time-line for an accelerated trial, for instance one year or eighteen months, must be set side to complete the trial of a person accused of a terrorist act. Moreover, that the trial be conducted utilizing established criminal and evidentiary rules while never discarding the fundamental legal principle of the presumption of innocence and the need for the prosecution to prove guilt.

At the time of writing this article, the Supreme Court, through a bench comprising Justices Pasayat, P. Sathasivam and Aftab Alam requested the Chief Justice of the Gujarat High Court to set up six ‘Fast Track Courts’ (FTCs) to try the 2002 Godhra and post-Godhra riot cases in Gujarat and vacated the order staying the trials. In his order Justice Pasayat asked the Chief Justice of Gujarat to appoint senior judicial officers so that the trials can be concluded as soon as possible, given that they had already been delayed by seven years.16 Correctly, the Supreme Court asked for a fast-track court process in terms of the time to be taken to dispose of these cases, and not for the setting up of Special Courts with special procedures based on exceptional statutes.

In this case, it is an exasperated Supreme Court that has set up a Special Investigation Team, led by a former CBI Director, to re-examine the clearly compromised and stalled investigation of the riots by the local police. Obviously, seven years is a death-knell in terms of criminal trials, which are so dependent on the gathering and retention of evidence necessarily soon after an event, and the testimony of witnesses where verifiable memory plays a significant role. However, even if the Fast Track courts culminate with a single conviction, amid a fair trial, based on independent investigation and diligent prosecution, public belief in the justice system will be bolstered, the victims of the Gujarat massacres will be strengthened, and the horrific alliance between the political elite, the police and the bureaucracy that is so common in our country, in states of all political persuasions from Kashmir to Gujarat to Chattisgarh, will be dealt a blow by the legal system.

In the end, a fair and just legal system is the key for enhancing faith in the country. When ‘we the people’, came together to form this nation, we did so despite great historical differences – hailing from princely states, presidency towns, different religious persuasions, speaking varied languages, separated by privileges and the oppressions of caste, gender and class. The basis for our new nation was that it would be premised on redistributive justice – bolstered by an individual and a collective freedom and dignity of all that live within it – a vision charted in the Constitution. So-called ‘Anti-Terror’ or ‘Exceptional Statutes’ diminish that vision and the text by a politics of fear. This is why such laws must be dismantled.

Menaka Guruswamy

 

Footnotes:

1. Ujjwal Kumar Singh, The State, Democracy and Anti-Terror Laws in India, Sage Publications, Delhi, 2007.

2. Ibid.

3. Sections 1(4) TADA and 1(6) POTA. See also Singh, ibid.

4. (2008) 1 SCC 601.

5. Para 14.

6. Para 14 and 16.

7. Para 17.

8. Section 3, NIA.

9. http://www.humanrightsinitiative.org/programs/aj/police/india/police-reforms/issues_paper_on_the_national_investigation_ agency_act_2008.pdf

10. Section 11(1) of the NIA, 2008 provides that the central government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.

11. Ace Investigator Raju Appointed First NIA Boss, The Times of India, 16 January 2009 at http://timesofindia.indiatimes.com/ India/Ace_investigator_Raju_appointed_first_NIA_boss_/articleshow/3986226.cms

12. Ibid.

13. Ibid.

14. Ibid.

15. Public Statement by Amnesty International, 20 September 2006 at http://www.amnesty.org.ru/library/Index/ENGASA20026 2006?open&of=ENG-2S4

16. J. Venkatesh, ‘Court: set up six fast track courts to try Godhra and riot cases’, The Hindu, 2 May 2009.

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