October 2008 
Year 15    No.135
Cover Story


Action and reaction

The threat of terrorism is real. The remedy requires a mature response

BY KAPIL SIBAL

State of insecurity

The recent terrorist attacks in Ahmedabad and Delhi have revived the debate on terror and the state’s inability to deal with it. The BJP’s strident position is that combating terror requires the revival of the Prevention of Terrorism Act (POTA) and the UPA’s obduracy in not doing so shows that it is soft on terror – that this government neither has the political will nor does it wish to arm itself with legislation that deals effectively with terror. For the BJP every terrorist attack is an opportunity to politicise the tragedy for possible electoral gain.

We need to differentiate between combating terror and dealing with terrorists, which require separate strategies. Dealing with terror requires an institutional response and dealing with terrorists requires a legislative response. This subtle distinction is lost on the BJP. The BJP’s ideological position is that if you deal with terrorists by reviving the POTA the fight against terror will have been won. The argument therefore runs that a government which does not revive the POTA is soft on, and unable to deal with, terror.

To demonstrate the flaw in this argument let us examine whether the NDA, which enacted the POTA, was able to deal with terror more effectively than the UPA. The facts somehow do not speak in favour of the NDA. Men may tell lies but statistics don’t. Here are some facts:

Ø Between 1999 and 2004, while the NDA was in power, total civilian casualties from terrorist acts were 4,405 whereas between 2004 and 2008 (until September 11, 2008) these were 1,623.

Ø Security force personnel killed on account of terrorist acts during the same period of the NDA dispensation were 2,590; during the UPA dispensation (until September 11, 2008), the number is 1,235.

Ø With reference to Jammu and Kashmir, the number of incidents of violence peaked with 4,500 incidents in 2001 and reduced to 1,000 in 2008. The number of civilians killed peaked at 1,000 in 2002-2003 and is less than 100 today.

Apart from this, while the NDA was in power the number of overall terrorist incidents was much higher. None can forget the brazen attack on Parliament. It was providential that terrorists could not succeed because of the bravery of our security personnel. Neither the POTA nor the then home minister, allegedly tough on terror, could stop these attacks. During the NDA’s rule, terror strikes targeted the Jammu and Kashmir legislative assembly, the Red Fort, Raghunath temple, Chattisinghpora, Akshardham, Kaluchak and Amarnath yatris. Terrorism was in full play despite the POTA – a convenient instrument in the hands of certain chief ministers in BJP-ruled states who terrorised common citizens and targeted members of a particular community.

Could it ever be argued that the NDA government was tough on terror when, having proclaimed zero tolerance towards terrorism, they let loose Maulana Masood Azhar, Omar Sheikh and Mushtaq Ahmed Zargar and had the then foreign minister Jaswant Singh escort them to Kandahar in their safe passage to Pakistan? The consequence was that Maulana Masood Azhar formed the Jaish-e-Mohammad, a terrorist organisation which targeted the Parliament in December 2001 besides targeting innocent victims in India. By that one act alone the NDA government demonstrated their softness towards terror despite the POTA. Omar Sheikh went on to claim the life of Daniel Pearl with his barbaric execution. Besides, the NDA remitted the sentences of five Latvian nationals and Peter Bleach of the UK, all convicted in the Purulia arms drop case which was essentially a case of waging war against India.

Clearly, the fight against terror should not be confused with the necessity of appropriate and effective legislation to deal with terrorists. The harshest of laws are not an impediment in the way of terrorist organisations in spreading terror. Terrorism postulates that a terrorist is willing to sacrifice his life for whatever cause he espouses since his aim is not to avenge a personal grouse through violent means but to terrorise the community at large, to have it pay attention to his perceived mission. No laws, no matter how harsh, can stand in his way. The most powerful nation in the world with the most modern technologies at its command cannot stop terrorist activity in Iraq or prevent American soldiers becoming victims of such attacks.

Unfortunately, throughout the NDA regime no institutional measures were taken to combat terror in the form of reforming organisational structures of the security forces, improving intelligence systems, ensuring flow of information to and from the states, or empowering our security forces with the latest equipment or for that matter improving forensic capacities. It is clear that they had no strategies to deal with terror when they were in power. They ended up attacking a particular community and used provisions of the POTA to persecute and prosecute some of them, believing that through this process they were effectively combating terror. The conceptual confusion that when you deal with terrorists through laws like the POTA you effectively combat terror still continues.

Combating terror requires institutional change. The UPA government has tried to bring that about by setting up a Multi Agency Centre (MAC) as well as recommending a Joint Task Force on Intelligence (JTFI). These institutional arrangements would allow various security agencies to share information. These mechanisms need to be strengthened. Besides, we need to invest hugely in building human resource capacities within our security personnel – establishment of specialised forces with unique skills to deal with terror and forensic abilities, which can prevent incidents of this nature.

Also, any attempt to combat terror can never be effective without a very proficient intelligence network which uses the most modern electronic devices and management systems for collection and sharing of information coupled with emergency measures which allow an effective response to terrorist acts. We need to use technologies like night vision cameras which have a range of five km and integrate them with the CCTV network. Satellites can be of aid in setting up monitoring systems. Information relating to terrorist activities must flow seamlessly from one agency to another. None of these steps can ever be effective without strengthening state security and investigation agencies and a free flow of information between them and central agencies. Civil society also needs to be conscious of security issues and of its duty in collaborating with security forces to ensure safety of civilians.

Unfortunately, this institutional framework is not yet fully in place. We need investments in hardware and in building capacities. The UPA has taken several steps in this direction. The battle is long and arduous. The journey is not without pitfalls. The UPA has the political will. Remember, both Indira and Rajiv Gandhi were victims of terror. Political parties should not use every terrorist attack as an opportunity for partisan politics.

What we talk about when we talk about law

The BJP’s consistent chorus has been that the Unlawful Activities (Prevention) Amendment Act 2004 (act of 2004) is inadequate in dealing with terror. They eulogise certain provisions of the POTA. I have already indicated that a harsh legislative framework is no panacea for dealing with terror. An exhaustive, effective legislation to prosecute terrorists, consistent with our constitutional ethos, is necessary. In essence, the difference between the POTA and the act of 2004 relates to the following:

Ø Confessional statements of an accused before a police officer were admissible as evidence under the POTA. The act of 2004 contains no such provision.

Ø Under the POTA an accused can be detained for custodial interrogation for up to 180 days. Under the act of 2004 the maximum period of such detention has been reduced to 90 days.

Ø Under the act of 2004 the accused are free to apply for bail under the Code of Criminal Procedure 1973 (CrPC). This was permissible under the POTA after one year.

Ø Under the POTA there is a presumption of guilt and the accused has to prove his innocence whereas under the act of 2004 the prosecution has to discharge the burden of proving the accused guilty.

In order to understand the rationale of not incorporating the harsh provisions of the POTA in the act of 2004 it is necessary to deal with each of the above differences seriatim:

1. Confessional statement to a police officer made admissible: Under the POTA hardly any convictions were based on any meaningful investigation. The confessional statement of an accused in the custody of a police officer was often the basis of his conviction. Such a provision of law is not even applicable against non-citizens under the PATRIOT Act 2001 in the US or under the Terrorism Act 2006 in the UK. Secondly, even in colonial India, confessional statements to a police officer were inadmissible under the Evidence Act 1872. Why a democratic free India needs such a provision needs to be understood. The only possible explanation can be that investigating agencies are unable to gather evidence against terrorists other than confessional statements. Such inability cannot provide a rational basis for invoking such a provision – an easy tool in the hands of investigating agencies. The rampant abuse of this provision led to targeting of the minority community. Even women and children were not spared. Despite this, the success rate of convictions under the POTA was abysmally low.

2. Period of custodial detention: Reduction of the period of custodial detention from 180 days to 90 days under the act of 2004 ensured expeditious investigation of terrorist offences. In England, the Counter-Terrorism Bill 2008 was introduced in the House of Commons, seeking to increase the maximum period of custodial detention from 28 to 42 days. This was passed by a majority of 315 to 306, suggesting how contentious this issue is. The matter is now pending consideration with a select committee in the House of Lords. The PATRIOT Act 2001 of the US applies only to non-citizens where the maximum period of detention is seven days, before production in court. This period however can be extended by six months at a time provided the attorney general renders an opinion that the "release of the alien will threaten the national security of the United States, safety of the community or any person". Such provisions do not apply to their citizens.

3. Bail provisions: The relevant provisions of the CrPC apply to all accused under the act of 2004. Under the POTA an accused could not be released on bail for a period of one year after arrest unless the prosecution consented and the court was satisfied that the accused would not commit a similar offence. After one year the provisions for bail in the CrPC applied. Yet Godhra accused in Gujarat have not been granted bail for six years. There is nothing to suggest that under the act of 2004 accused have been released on bail in the absence of harsh provisions for bail under the POTA. Again, no similar provision like the one for bail under the POTA exists in any other democratic nation governed by the rule of law.

4. Presumption of guilt: There are several provisions in the Evidence Act 1872 which allow presumptions to be made. Those are still applicable in the prosecution of terrorists under the act of 2004. However, to presume an accused under the POTA guilty until he proves his innocence is a burden that can rarely be discharged. Even under the US PATRIOT Act non-citizens who are prosecuted are not subject to such a disability. Neither does such presumption exist in the UK or any other democratic nation.

Even with the repeal of the POTA, India can, under the present legal framework of the act of 2004, claim to have the harshest law dealing with terrorists.

The reason why the POTA was repealed was because of rampant misuse of its provisions for settling political scores, targeting a minority community and arresting innocent citizens during the NDA regime. Tamil Nadu chief minister Jayalalitha invoked the POTA for booking MDMK leader Vaiko; Uttar Pradesh chief minister Mayawati used it against (food and civil supplies minister) Raghuraj Pratap Singh and Gujarat chief minister Narendra Modi used it as a tool to book persons belonging to a particular community. In Jharkhand more than 300 persons were arrested under the POTA, which included women and children.

Our constitutional ethos requires Parliament to enact laws which on the one hand should be effective instruments in dealing with terrorists and on the other hand ensure that the foundation of our constitutional values and our adherence to the rule of law does not falter. This government believes that wherever it can be demonstrated that certain provisions need to be strengthened or that the ambit of the law should be widened to allow investigating agencies to access evidence, in the legitimate exercise of power, that should indeed be done. Terrorism, which has taken root here, needs to be combated with determination. The strategy is twofold. One, enact laws which allow you to combat terror by use of technology, electronic devices, interceptions, satellite networks and management systems. Two, having access to such information, deal with terrorists through a legislation which is effective and inspires public confidence, consistent with our constitutional ethos.

The threat is real. The remedy requires a mature response. Partisan politics has no place in this debate. It is time for the BJP to reflect rather than accuse, to consider national interest rather than short-term political gains. The nation must stand together in this hour of crisis.

(Kapil Sibal is union minister of science and technology and earth sciences. The above article was published as a two-part series in The Indian Express on September 23 and 24, 2008.)

Courtesy: The Indian Express; www.indianexpress.com

 

 


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