A stringent law to counter terror

India has been vulnerable to terrorism for a long time now. Yet, it is shocking that we do not have adequate and effective laws to counter terror, thanks to a corrupt political system. Y. P. Singh says it is now time to act before it is too late.

Anti-terror laws have been in existence for long in various countries of the world. However, in its modern form, India was one of the first countries to have enacted a special law on terror in the year 1987. This enactment was done in the wake of terrorism which had engulfed Punjab in the early 80s. That law was named as Terrorist Disruption Activities (Prevention) Act 1987 or the well-known TADA.
TADA was renewed every two years up to the year 1995. However, since the definition of the word terrorist as contained in TADA was loose, as such, this law degenerated to gross misuse. In states like Gujarat even conventional offences involving violations were classified as acts of terror and the draconian TADA was applied. Alarmed by such misuse of TADA, on directions of the Supreme Court in the case of Kartar Singh, the government formed review committees in various states, comprising senior officers from police, bureaucracy and law departments to review all the cases under TADA.
Notwithstanding the attack on Mumbai by terrorists through 13 serial blasts by using RDX in the year 1993, which killed about 300 persons and injured about 1000, and despite the fact that large quantities of RDX and AK-56 rifles were seized during the said time, TADA was allowed to lapse. From the point of view of expediency, what could have been done was to have made TADA watertight, so that it could become impervious to misuse and that it could have been possible to apply the same only against genuine terrorists.
Considering the vulnerability of the country to terrorism and the vacuum created because of the lapse of TADA, the Government of India promulgated the Prevention of Terrorism Ordinance, 2001. This ordinance was replaced by the Prevention of Terrorism Act, 2002 (POTA). This Act contained stringent provisions analogous to those in TADA. It also created special provisions to deal with organisations which were declared as terrorist organisations. This enactment, however, could not have a smooth sailing because of narrow political considerations related to minority appeasement. As such, a lot of politics entered this sphere.
It was also seen that POTA was used to pursue political priorities. For example, the then Chief Minister Mayawati in U.P. used POTA to imprison a political leader Raja Bhaiyya. Similarly, the then Chief Minister of Tamil Nadu Jaylalitha kept her political rival Vaiko in prison under POTA for almost two years.
The cumulative effect of misuse and minority appeasement was that there came a tough opposition from political parties to POTA. Despite the fact that the gruesome incident of attack on Parliament happened, POTA was withdrawn by the government and accordingly the Act was repealed in the year 2004. This was despite the fact that our country faced a very severe threat from terrorism. It was indeed unfortunate that selfish political considerations prevailed upon the glaring exigencies of security of the country. Thus came a situation where in several states like Maharashtra, there were draconian laws, such as Maharashtra Control of Organised Crimes Act, 1999, (MCOCA) to curb gangster activities, yet for a more serious act of terror there was no such similar draconian law.
Considering the vulnerability of our country to the brutal acts of terror and the complexities associated therein, it is more than apparent that conventional laws are not capable of handling these issues. There are enough loose ends in the conventional laws which could be misused by terrorists to wriggle out of any adversity heaped on them. Further, there are no adequate mechanisms in such laws to prevent terror attacks. The conventional laws also have a narrow domain of tackling terror and that it is insufficient to frame and give effect to a comprehensive integral plan to curb the multi-dimensional aspects of terror.
The typical aspects of terror law could be many. It has got stringent provisions with reference to release of under trial persons on bail. That way, once a terrorist is apprehended he may not be let free so as to inflict further terror. It provides for special provisions in intercepting electronic communications and to use them as an evidence to secure a credible conviction of a terrorist in the court of law. It provides for special courts to ensure that there are no delays in the trial and the same could be done effectively. The punishment provided for terrorism is very stringent and to impose death penalty on conviction doesn’t seem to be difficult. It provides for deterrent punishment for those who possess and distribute arms and explosives in an unauthorised manner, which could be used by the terrorists. The person sponsoring terror activities also becomes liable not only for punishment but also for forfeiture of their assets. Such enactments give more power to the police for search and seizure and also the period of police remand and time limit to file charge sheet gets enhanced. Under a conventional law, a confession made before a police officer is not admissible under law. However, laws related to terrorism make such confession made before senior police officers admissible under law. Anti-terror laws can also provide for tough regulations imposed on financial institutions not only to enable the investigators to follow the dubious money trail, but also to make it more difficult for such terrorists to use banking channels to pursue their diabolical ends. Such laws can also provide for preventive detention of those suspected to be organising terror movements and for issuing a religious diktat for conscription in this vicious realm.
Almost all the major countries in the world have got special laws related to tackling terror, the salient features of which have been enumerated above. Unfortunately, in India for the reasons of political wrangling and for the considerations of expediencies of seeking votes during elections, and for the purpose of minority appeasement, an excellent law on terror which was there with us, has been shelved completely. This has indeed been very unfortunate.
Most of the countries have comprehensive legislations to tackle the menace of terrorism. There are ideal terror laws which are in use in Australia, UK, USA and other nations.
In fact USA, which otherwise is a very liberal country from the point of view of human rights, has been so obsessed with terror that they have detained terrorists of Taliban and treated them as prisoners of war and deported them to Guantanamo Bay to be tried by military tribunal rather than by conventional civil judiciary. Several persons have been detained without even a specific charge being slapped on them.
While such arbitrary acts assailing the human rights of individuals are unwelcome, and that human rights organisations such as Amnesty International have rightfully decried such deeds, for India, at least we must learn some lessons from that. We can have a comprehensive terror legislation set in place which is within the four corners of our Constitution.
Unfortunately, in India narrow political considerations have always taken precedence over our national interests. Just as populist considerations have prevented us from making tough laws to control our population, which in turn is taking our country towards poverty and misery, perhaps similar populist considerations are preventing the promulgation of a comprehensive legislation on terror. But now, indeed, the time has come to say – now or never – are we to live or perish forever.

The writer is a former IPS officer who is currently practising as a lawyer in Mumbai. He has authored two books Carnage by angels (about corruption in Mumbai police) and Vultures in Love (about corruption in CBI and revenue departments)..

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