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"Social
interest in individual liberty may well have to be subordinated to
other greater social interests."
Introduction.
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.
*****************************************
More Related Topics:
Anti-terrorism laws in India & The need of
POTA
Repeal Of POTA - Justified
India launches
anti-terror law
Some Useful
Links:
# Vinay Lal, Normalisation of Antiterrorist Legislation in
Democracies:
Comparative Notes on India, Northern Ireland, and Sri Lanka, Manas:
History and Politics, at
www.sscnet.ucla.edu/southasia/History/Independent/anti_terr.html
(last
visited on the 5th of July, 2006).
# Nakkeeran Editor Gopal's Bail Cancelled, Indo-Asian News Serv.,
Sept.
26, 2003, at
http://in.news.yahoo.com/030926/43/281qd.html (last
visited on the 5th of July, 2006).
# State of Tamil Nadu v. R.R. Gopal Nakkeeran Gopal, 2003 (12) SCC
237.
Human Rights Watch, In the Name of Counter-Terrorism: Human Rights
Abuses Woldwide (2003), at 15, available at http://www.hrw.org/un/chr59/counter-terrorism-bck4.htm#P252_51825 (last
visited on the 5th of July, 2006).
# Special Correspondent, Illegal Detention of Muslims in
Gujarat: Amnesty, Hindu, Nov. 7, 2003, www.hindu.com/thehindu/2003/11/07/stories/2003110702351200.htm
(last
visited on the 5th of July, 2006).
# CrimC (TA) 092134/02 Israel v. Marwan Barghouti [2002] IsrDC_,
available at
http://www.newyork.israel.org/mfa/go.asp?MFAH0mz80 (last
visited on the 5th of July, 2006).
# Russ. Federation Fed. Law No. 130-FZ, July 25, 1998, translation
available at
http://www.fas.org/irp/world/russia/docs/law_
980725.htm
(last visited on the 5th of July, 2006).
# Renwick Mclean, Key ETA 'Commando' Leader Arrested, The
International Herald Tribune, Oct. 3, 2005, at 3, available at
www.iht.com/articles/2005/10/03/news/spain.php (last visited on
the 5th
of July, 2006).
# This quote is attributed to Benjamin Nathan Cardozo and is
available
at
http://www.happyotter.com/hoquote/Quote_1Page12.html (last
visited on
the 5th of July, 2006).
|
Should
India Revamp Its Anti- Terrorism Laws After The July 
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