An Indian law for war-time

You cannot fault the government for timing on this one. The 11 September terrorist attacks in New York and Washington and the United Nations response in calling on members to enact anti-terrorist legislation provided the perfect backdrop to resurrect the thoroughly discredited Terrorist and Disruptive Activities (Prevention) Act (TADA).

Such was the notoriety of TADA that when it lapsed in 1995, the then Congress Party government ran into problems trying to replace it. There were just too many tales of horror coming in from the north-eastern states, Kashmir and, of course, Punjab which had then just been "pacified" by supercop K.P.S. Gill's 'bullet-for-bullet" policy.

The activism of rights groups such as the People's Union of Civil Liberties (PUCL) and scathing comments from no less a body than the National Human Rights Commission (NHRC) ensured that the Criminal Law Amendment Bill was consigned to the backburner. And it stayed there for six long years because even the U.N. Human Rights Committee had looked as­kance at legislative proposals to reintroduce parts of TADA, which contravened the International Covenant on Civil and Political Rights (ICCPR).   And here again it is the familiar story of India being an enthusiastic signatory to an international convention but somewhat less keen on actual implementation back home.

Of course the times have changed since 11 September and this is clearly not the season for civil liberties. The New York Times had warned in late September that the United States would be tempted "in the days ahead to write draconian new Jaws that give law enforcement agencies or even military forces a right to undermine civil liberties." The paper may have been speaking of New Delhi. India has decided that the best way to handle that temptation is to give in to it.

And so, at the end of October the government once again resorted to bureaucratic fiat to foist on an unsuspecting public the Prevention of Terrorism Ordinance, 2001. It reads suspiciously like TADA with a few frills thrown in to mislead the human rights community, such as provision of a review committee. Closer examination, though, shows that the review committee would consist not of an impartial judiciary but the police and the executive.

Rajindar Sachar, former Chief Justice of the Delhi High Court and an activist of the People's Union for Civil Liberties (PUCL), has pointed out that it is now internationally accepted that any review committee must consist of the judiciary. The new Ordinance, he says, actually resembles the Defence of India Rules framed by the colonial British government in that bail cannot be granted to a detainee unless a court is satisfied that grounds exist to believe that he is not guilty. "This clearly violates Article 9 (3) of the ICCPR which provides that it shall not be a general rule that persons are detained prior to trial but that release pending trial may be conditional on guarantees to appear for trial," Sachar said.

Another section of the new law that rights activists find objectionable is one which renders confessions made before a police officer admissible during trial. Given the hair-raising track record of police functioning in India, this is an open incentive to third-degree and worse. "Experience with TADA already shows that if you give police and armed forces more powers, they are likely to be abused rather than used," said Prashant Bhushan, well-known Supreme Court lawyer and human rights activist. Bhushan has also questioned the useful­ ness of special powers in deterring terrorism: "You cannot deter a person who is willing to die for his cause and what is really important is to understand why he is willing to die," he said. According to Bhushan, existing, ordinary laws are more than adequate to tackle terrorism provided they are implemented properly, and the new Jaw merely gives "unbridled" powers to the executive and to the police. Besides, the police are known to protect the wealthy and the powerful while targetting those without connections, he said.

But P.N. Ghatate, a member of India's Law Commission, who helped draft the bill, denies the charges made by the critics and argues that there are many safe­ guards against abuse in the new Jaw. "Under the new Jaw an officer found guilty of abuse can end up with a two-year prison sentence and he must file an affidavit regarding the arrest, which if found false later, can result in punishment," according to Ghatate. He also cited the reduction of the period for which an accused can be held in custody before production in court from 180 days to 30 days, as an example of improvement in the new law

Ghatate further argues that with continuing violent separatism in places like Kashmir, where India claims to be fighting a "proxy war" with Pakistan, the country has no choice but to arm itself with tough laws. He thinks situations like those in Kashmir demand laws applicable during wartime rather than laws that have to do with human rights. "Any armed person who crosses a border is liable to be shot under international law," he said.

Ravi Nair, director of the South Asian Human Rights Documentation Centre (SAHRDC) points out that even the four-day custody period specified in the United Kingdom's Prevention of Terrorism Act has been objected to by the European Human Rights Court. So much for the claim that the Indian law was based on the U.K. Act.

Meanwhile, S.S. Gill insisted that there was no other way to deal with a situation in which foreign mercenaries were active on Indian territory. He says, "Religious fundamentalism, weapons in the hands of unscrupulous persons, liberal courts and bleeding hearts have created a very dangerous situation in the country." Advocates of tougher laws like Gill cite the fact that known terrorists like Masood Azhar, a Pakistan national who was detained in Indian jails without trial for years, could get away scot free because of poor legal provisions. Azhar, who was among other jehadis released in exchange for a plane with more than 150 passengers on board that had been hijacked and flown to Kandahar in December 1999, went on to form the Pakistan-based Jaish-e-Mohammed group, the assets of which were frozen by the U.S. government recently.

"Those who talk of human rights should realise the ground reality by assessing the situation in Jammu and Kashmir where terrorists have killed thousands of people and where the existing legal system has failed to combat terrorism," said N.N. Vohra, former Home Secretary to the central government in New Delhi.

According to Sachar, the atmosphere has been vitiated to such an extent that those who oppose the legislation, purportedly aimed at countering terrorism in places like Kashmir, could now find themselves accused of unpatriotic behavior by jingoistic nationalists. What the government aims to do is clear enough from the sudden ban and institute a nation-wide crackdown on Student's Islamic Movement of India (SIMI) and the incarceration of its top leaders on the grounds that they supported the Taliban and Osama bin Laden. On the other hand, Hindu fundamentalist groups, such as the Vishwa Hindu Parishad (VHP), have gotten away with an intrusion into the heavily guarded site where the Babri Masjid once stood.

VHP leader Ashok Singhal has gone on record saying the VHP did not much care for laws which obstructed the will of the people. The reference was, of course, to the Supreme Court order on the Babri Masjid site which stands in the way of the VHP declaration that construction of the temple would begin in March next year. So while anti-HIV and public health activists (such as the Abhijit Das and his wife Yashodara who were arrested and kept for weeks in jail last year under national security laws) and sweepers who go on strike (they perform a service deemed essential) may fall under the definition of "terrorist" under the new law, Singhal evidently will not.

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