July-August 2006 
Year 12    No.117

Cover Story


New laws, old offences

Special laws to combat terrorism only serve to provide the police with a dubious carte blanche

BY HOSBET SURESH

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?

(Justice Hosbet Suresh is a former judge of the Bombay High Court.)

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