Tuesday, May 4, 2010

India’s tryst with Anti-terror laws

India is amongst the most terror-targeted countries in the world, thanks to a hostile neighbour who had swore to bleed us with a thousand cuts (as a  retaliation of their defeat in three wars). In our quest to defend our country from the proxy war, one instrument which has been continually neglected but hotly contested by who ever came to power is the necessity of an Anti-terror law.

Our tryst with Anti terror laws began after the assassination of Indira Gandhi. The first law called the ‘Terrorist and Disruptive Activities (Prevention) Act’, popularly known as TADA, was passed in 1985. But as history has it, TADA was full of loop holes and its statutory provisions did not provide stern punishment for terrorists. It also did not deter them from attacking our country and the conviction rate under the law was a poor 2%. The law was scrapped in 1995 on the premise that ideally an Anti-terror law was meant to act as a deterrent against future attacks and that the fear of prosecution under such a law should stop abetment to terror related activities.

It was the Atal Behari Vajpayee Govt which re-introduced the legislation, this time came to be known as the ‘Prevention of Terrorism Act’ or POTA. The promulgation of POTA led to wide spread criticism and was vehemently opposed by Human Rights Activists and some sections of civil society. They called it a draconian law because of their apprehension that the Police and the state machinery would misuse it to the fullest,  which might lead to human rights violations. Certain provisions under the act were hugely disputed such as that the accused could be held for a prolonged period of detention of up to 180 days without being charged; confessions made to a police officer above the rank of SP could be admissible in court as evidence; the fear that this law would victimize journalists and that the main thing in the law was to provide legal cover for arbitrary actions of the ruling party for reasons of political expediency (just like the CBI) and finally that it limits fundamental rights guaranteed to all defendants in the criminal process. The Govt retracted by saying that the law has sufficient safeguards against the possibility of abuse and that there were significant penalties attached to cases of malicious prosecution. They argued that anti terror laws in our country were ineffective for the reason that the process of litigation extended over decades. Hence, the inefficiency and incompetence of our judicial system could not be accepted as an argument against the existence of such laws. Eventually, it was the Supreme Court that came to the Govt’s rescue by upholding the constitutional validity of POTA.

When the Congress party bounced back to power in the 2004 general elections, one of their first policy initiatives was to repeal POTA. They introduced a new law, which they claim had sufficient safeguards and did not  include the draconian provisions of the previous law. They called it the ‘Unlawful Activities Prevention Act’ or UAPA. Thankfully, this law is in place till date. The success/failure of this law was extensively debated by the ruling party and the opposition. The opposition retorted that the inception of UAPA had not reduced the number of attacks in our country which were as many as back then when POTA was in place, so why not have a law which is more result oriented?

Ultimately, the fact remains that our political establishment is only concerned about protecting their respective vote banks and do not give a damn about such issues which have grave consequences for the nation. They should take lessons from other nations, superpowers like US, UK, France and even Japan who have stringent anti-terror laws in spite of the fact they are not subjects of state terrorism.

Politically speaking, I find that the Congress party is more at fault in this case. It is very clear that the only fear they have in enacting a law like POTA is that it would jeopardize their vote banks of the minorities at the national level. No other argument holds forth for this as it is the Congress Govt in Maharashtra that has in place an act called MCOCA (pronounced makoka) or ‘Maharashtra Control of Organised Crime Act’. This law has some of the toughest provisions against criminal activities and it is generally said that offenders charged under MCOCA seldom go scot free. A near replica of this act called GCOCA (Gujarat Control of Organised Crime Act) has been introduced many a times by none other than Narendra Modi for implementation in his state of Gujarat but has been turned down each time by the centre. Why? Because they think Modi would use the law widely and only against the minorities in his state, which in turn, they want to protect, since it generates votes for them.

In the end, my take is that we actually need the toughest of tough laws to deal with terrorists and ensure that any one caught and tried in an Indian court is not let off. This can only happen if our politicos have the will power and the guts to take tough decisions.

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