I recall 9/11 in 2001. Soon thereafter, the Indian
government realised that "Terrorism has now acquired global dimensions and
has become a challenge for the entire world". So the first step was to ban
SIMI (the Students Islamic Movement of India): this was on September 26,
2001. The ban still continues and has since been confirmed by the Delhi
High Court. One could legitimately assume that there would be greater
vigilance in respect of the activities of a banned organisation. Yet the
suspects in the bomb blasts in Mumbai on July 11, 2006 are all SIMI
members.
On October 1, 2001 the Jammu & Kashmir Assembly was
attacked (not by members of SIMI). On October 24, 2001, the Prevention of
Terrorism Ordinance was promulgated. Even though the ordinance was in
force, it could not prevent ‘five terrorists’ from attacking Parliament
House on December 13, 2001. Finally, POTA (the Prevention of Terrorism
Act, 2002), the law, came to be passed by Parliament on March 26, 2002 and
received the president’s assent on March 28, 2002.
The object of the law was to prevent acts of terrorism.
The Statement of Objects and Reasons of the Act says that there "is an
upsurge of terrorist activities, intensification of cross-border terrorist
activities and insurgent groups in different parts of the country". It
further says: "The reach and methods adopted by terrorist groups and
organisations take advantage of modern means of communication and
technology using hi-tech facilities in the form of communication systems,
transport, sophisticated arms and various other means. This has enabled
them to strike and create terror among people at will. The existing
criminal justice system is not designed to deal with the types of heinous
crimes with which the proposed law deals."
What is the corresponding provision in POTA relating to
"communication and technology, transport and sophisticated arms"? The only
provision relating to communication is Chapter V, which deals with
interception of communication in certain cases. It provides for the
appointment of a competent authority with whose permission the police can
intercept electronic, oral or wire communication while in cases of
emergency the police can do so even without such permission. The material
so gathered could be tendered as evidence. To think that such interception
was possible only because of laws like POTA or its predecessor, TADA
(Terrorist and Disruptive Activities (Prevention) Act), is misleading. Our
intelligence agencies have always been capable of (and must have been)
intercepting all cross-border and internal communication in the name of
internal/external security. Under the Indian Telegraph Act, 1885 (Section
5), the government has ample powers to intercept all such communication in
the name of external and internal security of the nation and in any event,
where public interest demands. Even otherwise, in the course of
investigation the police have every right to collect any information that
is available. How, for that matter, did the American intelligence network
recently intercept transmissions to inform London and Delhi about the
threat to international airways? As regards transport and sophisticated
arms, there are enough provisions in the Indian Criminal Procedure Code
and the Arms Act.
Plainly, POTA could not and did not prevent any acts of
terrorism taking place in the country. Parliament was attacked while the
ordinance was already in force and as POTA was being debated in the House.
There was then an attack on the US Information Centre at Kolkata on
January 22, 2002. The Akshardham temple was attacked on September 24,
2002, the Raghunath Mandir on March 30 and November 24, 2002, followed by
bomb blasts in Mumbai: in Ghatkopar on December 2, 2002, in Vile Parle on
January 27, 2003, in Mulund on March 13, 2003 and two blasts, at Jhaveri
Bazar and at Gateway of India, on August 25, 2003. According to the then
attorney general (2003), in the year 2002 there were 4,038 terrorist
related violent incidents in Jammu & Kashmir despite the presence of the
army, the police and other security personnel who were backed by laws like
POTA and the Armed Forces Special Powers Act.
Even earlier, when TADA was in force, the bomb blasts of
1993 in Mumbai could not be prevented. So it is a myth to believe that the
existence of a law like POTA will prevent another bomb blast in Mumbai or
elsewhere. Eternal vigilance and improved intelligence, not harsh laws,
can seek to contain another bout of terrorist acts.
In fact, a law like POTA (or TADA) comes into operation
after the event, not before. However, the law by itself does not
provide for any improved methods of investigation. Though the statement of
objects mentions that, "the existing criminal justice system is not
designed to deal with the types of heinous crimes with which the proposed
law deals" the law does not spell out any rational or effective system to
deal with these terrorist acts. On the other hand, the law tends to
sustain and justify the traditional third-degree methods of investigation
that are widely and notoriously prevalent in all police stations of the
country.
No real terrorist was ever prosecuted or tried under
either TADA or POTA. In the 1993 Bombay blasts case, the real culprits are
abroad. In the Parliament attack case, the terrorists were all killed on
the spot – for which no special or other law was required. So too in the
Akshardham temple and Ansal Market incidents where the terrorists were
also killed on the spot. In Jammu & Kashmir, in the year 2002, the number
of ‘terrorists’ killed on the spot was 1,707, of which 508 were said to be
foreigners. All the arrests made subsequent to the actual incidents were
based on the hypothesis that the accused were conent stages, the evidence
being the so-called confessions of these very persons. The courts have
seldom acted upon such confessions. This has only resulted in greater
injustice than ever before, both to the accused and also to the victims.
Under TADA, about 77,000 persons were arrested all over
the country. Later on, over 72,000 were released without a trial, as there
was not enough evidence to even charge-sheet them. But they were all
forced to remain in jail for a long period and they were all tortured to
extract ‘confessions’. Further, even among those who were actually
prosecuted, the conviction rate was hardly 1.8 per cent. TADA’s
inefficiency in combating terrorism was self-evident from the statistics.
The conviction rate under POTA is not significantly higher.
TADA and POTA do not identify any new offences as defined
under the law. Since the phenomenon of terrorism is complex and since no
country could define terrorism in precise legal terms, the only way was
for the statute to define ‘a terrorist act’ as one in which the use of
violence is the most important ingredient. However, violence itself is
also a very important ingredient in other offences such as murder, arson,
loot, rioting, causing injury, etc. under the Indian Penal Code (IPC) or
under laws like the Arms Act or the Explosives Act. These offences are the
very offences specified under POTA.
However, if a person is charged under the provisions of
POTA instead of the IPC, the police would obtain legitimacy for all they
do at the police station, namely, the infliction of torture on the
accused. This has also enabled the police to resort to selective
discrimination. In Gujarat, all the accused in the post-Godhra riots in
different parts of the state (mainly members of the sangh parivar) were
charged under provisions of the IPC while the accused in the Godhra train
burning incident were all charged under POTA. The police can thus pick and
choose whom to charge under POTA. The accused would then be denied bail,
forced to sign confessional statements and be subjected to unfair trial
procedures. So, overnight, they become "terrorists" in the eyes of the law
while the other accused remain without any such appellation although the
commission of acts are all alleged to be of the same type. In fact, this
has led to the observation that POTA is actually a "Production of
Terrorists Act"!
The legislative policy of our criminal justice system has
always been that a confessional statement obtained by a law enforcement
officer is inadmissible in evidence. This is based on the assumption that
it provides easy opportunities for a police officer to extort confessions
from an accused by coercion or by enticement and as such can never be
considered voluntary. Departing from this sound policy, laws like TADA and
POTA led the police to presume that a case could be solved by confessions
alone and without any genuine investigation. In fact, the police have
since seemingly lost the art of investigation.
If the police want a law like POTA to investigate the bomb
blasts of 7/11, it is only to extract so-called ‘confessions’ from the
suspects and to get credit from the public that the case stands solved. As
we know, following the 7/11 attacks, the police rounded up over 800
persons. As expected, the police promptly raided nearby Padgha village
(Thane district) – as if terrorists involved in any terrorist act that
takes place in Mumbai can always be found there. However, without the
provisions granting legitimacy to extracted confessions, the police had to
let them go after a few days in custody.
As someone recently said, very often the police structure
a case and pronounce that the ‘real and true culprits’ have been
apprehended. The media then propagates this as the truth. The judiciary is
then persuaded to justify that as truth. Society at large is made to
approve it as truth. Yet nobody knows what the truth really is!
The question is, do we really need a special law, special
courts, special public prosecutors and long periods of pre-trial
detention? Is it legal to prepare bombs, stock ammunition, plan or
perpetrate attacks against civilians or otherwise engage in terrorist acts
under the IPC or other existing laws? If the answer is no, why can’t we
deal with terrorists under such ‘normal’ laws?
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