Should India Revamp its Anti- Terrorism Laws After The July 11 Serial Explosions on Trains In Mumbai?

"Social interest in individual liberty may well have to be subordinated to other greater social interests."

On the 11th of July 2006, India witnessed one of the most dastardly acts of terrorism in recent times. Seven fatal explosions were carried out on the lifeline of the city of Mumbai, paralysing the city by leaving over 180 dead and over 900 injured. Justice for the innocent victims of the July 11 serial bombings will predominantly depend on the ability of India's criminal justice system to undergo a radical metamorphosis in order to deal with the exigencies of the present times. Since independence India has faced terrorist movements in Punjab, Jammu and Kashmir, and insurgent movements in the northeastern States. With over one-hundred thousand casualties, terrorism has taken more lives in India than any other country. This threat exacerbates the seemingly intractable tensions between India and Pakistan, which have fought three wars since the countries obtained independence in 1947. The Indian government has repeatedly asserted that anti-Indian terrorism has been both covertly and overtly supported by Pakistan and such an act is tantamount to a proxy-war being waged against India. Moreover, the genesis of terrorism in India can be traced to various ethnic and regional conflicts. With ethnic and social cleavages imposing strong pressures on the State, it is unsurprising that India has established a complicated legislative and constitutional framework to deal with the scourge of terrorism.

Need for an Anti-Terrorist Legislation In India

Under Article 355 of the Indian Constitution, the Central Government has a duty to protect States from internal disturbances. Furthermore, the bedrock on which the edifice of any criminal justice system rests lies in the protection of the rights of the innocent and thereby punishing the guilty. There currently is a view that the Indian Criminal Justice System, which was devised more than a century back, has presently become ineffective as in a plethora of cases a large number of guilty go unpunished. Moreover, this system takes years to bring the guilty to justice and has thus ceased to deter perpetrators of heinous crimes.

Economist Bibek Debroy, has noted: Half a million cases in the High Courts have been on hold for 10 years or more, and almost 1 million in the lower Courts. Current trends indicate that terrorism is not a temporary phenomenon, but one that will continue and perhaps increase in the future. As a result, the effect of counterterrorism policies on civil liberties will be a substantial concern in coming years. The dramatics of the December 13th attacks on the Parliament building, combined with the September 11th atrocities in the United States, gave rise to the need of increasing the power of security forces despite the long history of past abuses.

The United Kingdom's adoption of the Prevention of Terrorism Act and the United States' PATRIOT Act strengthened the notion that other countries had acknowledged the need to move beyond traditional domestic criminal procedure in order to properly battle terrorism. Thus, the Indian Government had enacted the Prevention of Terrorism Act [hereinafter POTA] which served as an anti terrorist legislation. It must be noted that on paper POTA did incorporate certain safeguards by which the Police were expressly barred from using coercion in order to obtain a Statement from an individual. Moreover, the State could punish any police official found abusing his authority with a fine and up to two years of imprisonment.

POTA also assured defendants a statutory right to appeal in a criminal conviction to a High Court of the concerned State both on facts and on law. Supporters of POTA have contended that sections 52(4) and 52(14) are in line with Article 22 of the Indian Constitution, which exempts the State from providing legal counsel to a person being held for "preventive detention" and implicitly places some limitations on the confidential relationship between a lawyer and client. With respect to the latter point, the Supreme Court of India has noted that lawyers do not have an absolute, "sacrosanct right" to keep privileged all communications from clients particularly those involving POTA-related crimes.

Malimath Committee On Criminal Justice Reforms

The Malimath Committee on criminal justice reforms has opined that some of the intrinsic merits of the Inquisitorial System (followed in France, Germany and other Continental countries) can be incorporated into the Adversarial System (presently followed in India) in order to make it more effective. This includes the duty of the Court to search for truth, to assign a proactive role to the judges, to give directions to the investigating officers and prosecution agencies in the matter of investigation and leading evidence with the object of seeking the truth and focusing on justice to victims. The committee had further recommended that Courts should resort to a paradigm shift in the standard of proof, in which the standard of proof should be higher than preponderance of probabilities and lower than proof beyond reasonable doubt described in different ways, the proof should be one of a 'clear and convincing' standard in order to increase the conviction rate. It is further imperative that the victim should have a right to be represented by an advocate of his choice and thereby produce evidence, both oral and
documentary.

Anti-Terrorist Legislation In India

Over the years India's antiterrorist laws have consistently been used beyond their originally prescribed scope to bypass the normal rules and safeguards afforded to criminal defendants under both the Indian Constitution and the Code of Criminal Procedure. While various governments have endowed the law enforcement machinery and military with a greater amount of power to diminish the threat of terrorism, it is submitted that there is scant evidence that this increase in power has had its desired effect. It shall be my endower to establish in the course of this article that with, each piece of additional legislation
to deal with terrorism, resulting in a slight diminishment of criminal defendant rights, aggravates the threat that such a power can be grossly abused.

The Terrorist And Disruptive Activities (Prevention) Act, 1987

Armed Forces Special Powers Act [hereinafter AFSPA] is a controversial legislation, promulgated to deal with the insurgency problems in the north eastern States as it empowers law enforcement personnel to shoot and kill any person who is acting in contravention of any law or order for the time being in force in an disturbed area. When India presented its second periodic report to the United Nations Human Rights Committee [hereinafter UNHRC] in 1991. Members of the UNHRC asked numerous questions about the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR (governing the suspension of some of the Covenant's rights). It is submitted that despite this extraordinary power given to the armed forces and the police, AFSPA has "manifestly failed" in solving the problems caused by the insurgency and has further isolated the residents of the troubled region from the central government.

The Terrorist And Disruptive Activities (Prevention) Act, 1987

While AFSPA dealt with a targeted, troubled region within India, The Terrorist and Disruptive Activities (Prevention) Act of 1987 [hereinafter TADA] was an antiterrorist legislation that was meant to apply throughout India. TADA allowed for the admission of confessions of detainees, in police custody, in legal proceedings against them. While the Criminal Procedure Code required identification to be made at a test identification parade, TADA allowed identification to be based on a witness having picked out the detainee's photograph. Section 2(1)(a)(ii) of TADA had defined Abetment as the passing on of "any
information likely to assist . . . terrorists." The Supreme Court struck down this broad definition as it had criminalized an association with a terrorist even in situations where there was no criminal intent. Furthermore, TADA proscribed various "disruptive activities," which included not only acts that disrupt the sovereignty or territorial integrity of India, but also acts which "question" such sovereignty or territorial integrity, or "support any claim... directly or indirectly... for the cession of and part of India, or secession of any part of India from the Union." Any of these advocacy crimes were punishable by up to life imprisonment. TADA also provided for the creation of "Designated Courts" which had the exclusive jurisdiction to try violations of its provisions. These Courts were closed to the public, and provided significantly diminished procedural protections for suspected terrorists. For example, where the potential punishment was not more than three years, the Court was authorized to conduct a "summary trial," though it was free to recall witnesses or rehear a case where circumstances warranted. Finally, TADA created a presumption of guilt in situations where arms or explosives were found, in the possession of the accused, which were similar to those used in the terrorist act or in cases where the accused's fingerprints were found at the scene or vehicles used in the terrorist act, or where the accused rendered any financial assistance to a person accused of or reasonably suspected of a terrorist act. Of the 52,998 people detained under TADA at the end of 1992, a mere 434, or 0.81%, had been convicted. It is submitted that, the shadow of TADA continues to loom as, even though TADA is no longer in effect, as the State retains the power to charge suspected persons retroactively for crimes committed during its enactment.

Preventative Detention Laws In India

The genesis of prevention detention laws in India can be traced to the brutal assassination of Mahatma Gandhi, upon which the framers of the Indian Constitution were convinced that preventive detention was the only way to save the "infant nation from being engulfed by communal riots and social unrest. In addition to laws such as TADA, the Indian constitution implicitly authorizes the central government to provide for preventative detention in matters related to foreign affairs, defense, or security. Unlike in the United States, the Indian preventative detention provisions could be employed without criminal charge. Since independence, the Indian parliament has enacted several statutes authorizing preventative detention, the most recent of which is the National Security Act of 1980 [hereinafter NSA]. Under the NSA, the Central government, or any State government, may order the detention of an individual in order to prevent him or her from acting in a manner "prejudicial to the defense of India, the relations of India with foreign powers, or the security of India." The statute sets a maximum detention period of twelve months.

The Prevention of Terrorism Act, 2002

On the 13th of December 2001, five Pakistani Terrorists attacked the Indian Parliament, killing seven people and placing the country into a heightened State of alert. In response to the domestic pressures for the failure to crack down on terrorism, like its American counterpart, the Indian central government in March 2002, passed the Prevention of Terrorism Act, through a joint session of parliament, to enhance India's ability to crack down on possible terrorist threats. The criminalization of "abetting" a terrorist, which had been struck down in TADA by the Indian Supreme Court, was revived under POTA. It criminalizes the
membership of an organization labeled "terrorist" by the Central Government, regardless of criminal intent or activity. The statute, however, was silent as to how the State must prove that a person indeed is part of such a terrorist organization.

Section 20 of POTA presumes that an individual charged with being a member of a terrorist organization is a terrorist unless that person can show that he or she has not participated in terrorist activities and that the organization itself was not declared illegal by the State at the time when the person joined. Hence by placing this type of onus on the individual, the State inevitably inhibits those peaceful persons who might wish to join a non-mainstream association but fear that doing so could subject them to potential arrest, or at the very least to the hassle of having to prove their innocence. Furthermore, Section 57 of the Act gives governmental authorities immunity from prosecution under POTA, as long as the actions taken to combat terrorism are done in good faith. POTA had also retained the admissibility of confessions, a provision that many had pointed to as one of the sources of the high incidences of torture and brutality during TADA interrogations. Terrorist acts were placed outside the parameters of the criminal procedure code, which has been established to balance the rights of criminal defendants with the interests of the State. Moreover, POTA had established special Courts to handle cases of terrorism.

These special Courts were vested with the discretion to hold trials in non-public places such as prisons and would have the power to withhold trial records from the public. Under section 49(2), of POTA the police may place a suspected terrorist in jail for up to ninety days without any Court proceedings. The abovementioned period may be extended by another three months if the prosecution submits a report to the Court explaining the State's need for additional time. When an individual is charged under POTA, section 49(7) permits the denial of bail to the accused for up to one year, as long as the prosecution's opposition to the bail request satisfies the Court.

Section 52(4) States that the accused is not entitled to have a lawyer "present throughout the period of the police interrogation." Section 14 additionally States that "any individual" (not excluding defense lawyers) is obligated to provide to the State information of anyone who may be in violation of POTA. These limitations contravene the spirit of the United Nations Basic Principles on the Role of Lawyers [hereinafter BPRL] in two major ways.

Firstly, Article 1 of the BPRL mandates that clients should have access to their lawyers during an entire police interrogation. Secondly, Article 22 of the BPRL emphasizes that the confidentiality between a lawyer and a client must be respected by the State; any effort to undermine this relationship are incompatible with international norms on the rights of the detained. On the 11th of July, 2002, in the State of Tamil Nadu, Vaiko, a leader of the opposition political party, was arrested and charged for the violation of section 21 of POTA which prohibits the promotion of any terrorist group explicitly banned by the statute. Viko had made remarks in support of the Liberation Tigers of Tamil Eelam, an organization deemed terrorist by the central government. According to the State government, on the 29th of June, 2002, Vaiko in a speech allegedly stated, "I was, I am, and I will continue to be a supporter of the LTTE. Two weeks later, P. Nedumaran, another opposition leader in Tamil Nadu, was arrested under POTA for similar charges. In April 2003, Vaiko petitioned the Supreme Court to declare section 21 of POTA as unconstitutional. In December 2003, a two-judge bench of the Court refused to grant his release and upheld the validity of section 21, however it opined that the Special Courts could not find an individual guilty of violating this section for expressing only a "moral support" to a banned terrorist group.

A Special POTA Court in Delhi hearing the parliament attack case found Shaukat Hussain Guru, Geelani and Mohammad Afzal guilty of violating section 3(2) of POTA read along with section 302 of the Indian Penal Code and sentenced them to death. The Court also ruled that Afsan Guru was guilty of concealing knowledge of the conspiracy and sentenced her to five years in prison and a fine of 10,000 rupees. The Delhi High Court sustained the verdicts against Shaukat Hussain Guru and Mohammad Afzal, although in January 2004, the Supreme Court issued a temporary stay of the execution orders until it could more fully review the matter. The convictions of Professor Geelani and Afsan Guru, however, were set aside by the Delhi High Court.

The Supreme Court reversed the Madras High Court's ruling that bail should be granted to journalist R.R. Gopal, who was arrested in April 2003, for possessing terrorist weapons and other materials prohibited by POTA. Gopal had contended that the State retaliated against him as he published stories critical of and embarrassing to members of the Tamil Nadu government. In overturning the Madras High Court's ruling, the Supreme Court deferred to POTA's provisions on bail: that when the prosecution opposes a bail request, a Court may grant bail only when there has been an abuse of discretion on the part of the government. It is reverently submitted that the Supreme Court's ruling, that a prima facie case had indeed existed, and that the Madras High Court should not have allowed its sympathy for the defendant's argument to cloud what was an obviously an easy call to deny bail is erroneous.

In Uttar Pradesh, twenty-five Dalits were arrested under POTA between April and July 2002. Tribals in the area claim that POTA has been used to characterize their struggle for worker's rights as membership in the banned, extreme leftist Maoist-Leninist groups known collectively as Naxalites. In one district, "nine out of twelve people arrested were bonded laborers who refused to return to work because of the physical abuse of their employer." POTA has been used in a similar way in the State of Jharkhand. On the 19th of February 2003, almost 200 people were arrested under POTA, including "a twelve-year-old boy and an eighty-one-year-old man."

After the Gujarat communal riots, the Gujarat police arrested hundreds of Muslims and charged them with violating POTA, not a single Hindu has been charged under POTA. Article 14 of the Constitution of India reads, "the State shall not deny to any person equality before the law or the equal protection of the laws." Furthermore, Article 15 reiterates this tenet more specifically by prohibiting the State from discriminating against any citizen on the basis of "religion, race, caste, sex, place of birth or any of them. Although much of the litigation involving these two Articles has predominantly dealt with promoting affirmative action-type policies on behalf of lower castes and women, the preeminent Indian constitutional law scholar, S.P. Sathe, has noted that the Indian Supreme Court has explicitly held that the right to equal protection extends to all State policies.

American Legislative Response To Terrorism

Terrorism in the American context is often characterized as the result of a "clash of civilizations", a concept which was propounded by Samuel Huntington in 1996. Under this view, anti-American terrorism is an assault against the West, with America as its hegemon. Furthermore, it is the result of a set of grievances that while definable, is best described as a vague notion of "American foreign policy." The PATRIOT Act was ostensibly the government's reaction to protect the United States from any further terrorist activity. An over-inclusive definition of terrorism has allowed the government to prosecute those whom the legislators had never intended to come under the statute. Of greater controversy is the expansion of the definition of pen registers, and trap and trace devices to include devices which allow the tracking of e-mail and internet usage.

The power of the executive to label a U.S. citizen an "unlawful enemy combatant" was upheld by the U.S. Supreme Court in the World War II case Ex Parte Quirin. During the military operations in Afghanistan, a handful of U.S. citizens were found to have been taking part in the combat against U.S. forces, and upon their discovery in military detention, were labeled "unlawful enemy combatants." In Rasul v. Bush, the U.S. Supreme Court had rejected the argument of the executive that the fourteen individuals, who had been detained in the military hostilities in Afghanistan, had no right to challenge the grounds of their detention in a U.S. Court.

Jose Padilla (an American citizen born in Brooklyn), was arrested by federal agents in May 2003 at the O'Hare International Airport in Chicago. Padilla had been accused of planning to detonate a "dirty bomb" on American soil. The case of Mr. Padilla demonstrates the worst fears of civil rights groups, as a citizen, born in the United States, accused of committing a crime in the United States, and arrested on American soil, was not in a position to avail himself the protection of criminal justice system because the government accuses him of being a terrorist. However much to the relief of civil rights groups, the Second Circuit Court held that the President's constitutional powers "do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat." Enemy combatants were, according to the Bush Administration, "unlawful combatants," occupying a gray area between laws--neither prisoners of war protected by the Geneva Conventions, nor criminals subject to the benefits of the U.S. criminal justice system.

Israeli Legislative Response To Terrorism

Anti-Israel terrorism is the result of either Israel's existence (which upon creation, it is argued, forced Palestinians from their rightful lands), or Israeli policy in the Occupied Territories, depending on one's point of view. The most significant legislation, to combat the scourge of terrorism, is Israel's Prevention of Terrorism Ordinance, enacted in 1948. While terrorism is not defined in the Ordinance, management or membership in a terrorist organization is punishable by imprisonment up to 20 years. Other provisions of the penal law also provide Israeli Courts with extraterritorial jurisdiction in the cases of crimes against humanity, against the State of Israel, or against Israeli residents or national. The final consideration for understanding Israeli anti-terrorist legislation is the Proclamation on Law and Administration which was made at the time of Israeli occupation of the West Bank and the Gaza Strip. These regulations granted broad authority to the military to detain and try suspected terrorists. The legal obligations in the occupied territories were complicated, given the concurrent applications of Israeli, military, and local law. In State of Israel vs. Marwaan Baraghuti, the Tel Aviv District Court ruled that terrorists who attack civilians are not "lawful combatants" entitled to "Prisoner of War status".

Russian Legislative Response To Terrorism

Over the past few years post-Soviet Union Russia has faced terrorism similar to that faced by the United States and Israel. The terrorist attack on the school at Beslan was the most egregious form of terrorism as it resulted in the willful killing of hundreds of children. Article 3 of the Russian Federation Federal Law No. 130-FZ defines a terrorist crime as a crime committed for terrorist purposes. An organization is deemed to be a terrorist group if even one of its structural components carries out terrorist activity with the knowledge of one of the organization's leading organs.

Spanish Legislative Response To Terrorism

On the 11th of March, 2004, 198 Spaniards were killed and more than 1,400 were wounded in Madrid, as ten bombs exploded in commuter trains, just three days prior to a national election. According to most commentators, the objective of the attacks was to influence the election and to compel Spain to withdraw its forces from Iraq, where they had been a part of the coalition fighting against the regime of Saddam Hussein. Spain's sovereignty is also threatened by the Euskadi Ta Askatasuna (Basque Fatherland and Liberty, or ETA) has waged a decades-long campaign against the Spanish government in the hope of establishing an independent Basque State. Article 571of the Spanish Criminal Code defines terrorism as "belonging, acting in the service of or collaborating with armed groups, organizations or groups whose objective is to subvert the constitutional order or seriously alter public peace" The significance of this legislation is that mere support to a terrorist organisation may lead to prosecution under the law. The low threshold required for prosecution is reminiscent of the "material support" clause of the Patriot Act and POTA. The primary distinction between the treatment of terrorists and criminal defendants is that, whereas a non-terrorist must be brought before a judge within 72 hours, a suspected terrorist may be held for up to five days without seeing a judge (an additional 48 hours). Article 55(2) of the Spanish Constitution provides procedures whereby fundamental rights may be suspended in terror cases. Spain's anti-terror laws permit the use of incommunicado detention, secret legal proceedings, and pre-trial detention for up to four years. In November 2002 the United Nations Committee against Torture expressed serious concern about incommunicado detention under Spain's criminal laws.

Conclusion
This article has sought to address the legislative responses of countries to terrorist attacks with specific reference to India. For the students of the war on terror, the classroom has no walls. One of the most interesting international political developments in the post-Cold-War world is the growing realization by the nations of the world that terrorism--the only real threat to modern society--must be combated globally. Before and after September 11, 2001, national security and counter-terrorism concerns drove, and are still driving, nation States to introduce draconian laws and amendments curtailing or restricting citizens' fundamental rights in democracies. A balance between countering terrorism and promoting human rights is attainable as long as the "reasonable" constitutional provision is developed and Indian law evolves in conjunction with the efforts of the inter-governmental and non-governmental organizations in protecting civil liberties while combating terrorism. As Benjamin Cardozo said: "We are what we believe we are" thus, we should be careful to fashion our response to terrorism--after all, posterity will judge our responses.

The author can be reached at: [email protected] / Print This Article

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