India’s political leadership to blame: Wall Street Journal

28 11 2008

New York: India’s ruling United Progressive Alliance (UPA) has done little to launch an effective fight against terrorism and may “pay a price for its incompetence” in the elections next year, the Wall Street Journal said in its lead editorial on Friday.

“A lack of political leadership is to blame,” The Wall Street Journal said as India’s financial capital continued to battle terrorists who had struck in 10 places in the city Wednesday.

The Mumbai terror attacks, in which at least 125 people have been killed, have been covered extensively in both the print and online edition of this New York-based daily financial newspaper.

“It (the ruling party) may pay a price for its incompetence at the national polls next year,” the newspaper said.

“Yesterday Prime Minister Manmohan Singh promised that ‘every perpetrator would pay the price’. Yet his Congress Party has done little more than bicker with its coalition allies over the past five years on how best to fight terrorism,” the journal said.

Observing that the attacks are a reminder that India is at the top of the terror target list, the newspaper said this is because India is an easy target.

Not only are its intelligence units understaffed and lack resources, coordination among State police forces is also poor. “The country’s anti-terror legal architecture is also inadequate; there is no preventive detention law, and prosecutions can take years,” it said.

“Wednesday’s attacks should arouse Indians to better confront the terror threat, while reminding all democracies how dangerous that threat still is,” it said.

In another opinion piece published by The Journal, author Sadanand Dhume blamed the Congress for scrapping the anti-terror law POTA. “On taking office in 2004, one of the first acts of the ruling Congress Party was to scrap a federal antiterrorism law that strengthened witness protection and enhanced police powers,” he wrote.

“The Congress Party has stalled similar state-level legislation in Gujarat, which is ruled by the opposition Hindu-nationalist Bharatiya Janata Party. And it was a Congress government that kowtowed to fundamentalist pressure and made India the first country to ban Mumbai-born Salman Rushdie’s ‘Satanic Verses’ in 1988,” he said.

Dhume, a Washington-based writer and author of “My Friend the Fanatic: Travels with an Indonesian Islamist”, said the Indian approach to terrorism has been consistently haphazard and weak-kneed.

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Terrorism and India ::Arun Jaitley

13 10 2008

Lalit Doshi Memorial Lecture
Terrorism and India
Arun Jaitley
August 2, 2002

source: hvk

Mrs. Doshi, Mr. Arun Bongirwar, Mr. Bharat Doshi, Mr. Jayant Kawale, ladies and gentlemen.

I am extremely grateful to the Lalit Doshi Memorial Trust for having invited me to deliver the 2002 Lalit Doshi Memorial Lecture. I have been asked to speak on Terrorism and India, a subject on which, in the last one decade a lot has been written and spoken about. But, when the debate goes on and on, one of the impressions which is formed by an average reader or an ordinary citizen, is one of great frustration. Why is it that we are not able to contain this menace? At times some of us even do not aptly realize what the major dimensions and consequences of this issue have been. I recollect on 9/11 when the World Trade Center in New York was attacked and the Pentagon was partly damaged, more than 3000 lives were lost. In his first address to the World, the President of the United States started off by saying that “a War has been launched on us”. It was one major incident, highly deplorable, killing about 3,000 people, probably one of the most severe terrorist attacks in the World anywhere, and the US President rightly commented so. We, in India, have had conventional wars. We had a conventional war in 1947. We had with Pakistan a conventional war in 1965 and in 1971. We had a conventional war with China in 1962, one recently in Kargil. I think the consequences or the effect, the final drubbing, that our neighbour received in the other three wars, perhaps brought about a change in thinking. Our conventional strength far outmatches them and therefore in the last 15 odd years a different form of proxy war has started. It would also be erroneous for us to restrict this proxy war only in the context of Jammu & Kashmir. We have in the last 15 odd years, seen 5 different kinds of terrorism emerging in India. Of course the most significant one, is the one we see on account of cross border insurgency in Jammu & Kashmir. The second, in the Punjab, which we saw through the 1980s and early 1990s, which we were fortunate to have been able to overcome. The third we saw a severe problem, since then partly diluted, in the South from the LTTE. We have had continued insurgency in several parts of North East and the latest to join these categories has been the kind of terrorism which has spread along various parts of central India, the Maoist insurgency from Andhra Pradesh, Chattisgarh, parts of Madhya Pradesh, Orissa, Bihar right up till the Nepal border. No less severe, the kind of terrorism which we see inspired by various other external agencies.

A number of people have still not realized the consequences, the price and the cost that we have had to pay for this. I remember early this year when there was a debate on a proposed Anti-Terrorist law. I tried to collect several figures, I have updated those figures as to what is the cost involved as far as India is concerned. And compare it to the cost United States had to pay when their President said “a War has been launched on us”. In the four conventional wars that we have fought, I am also including Kargil in it, the total number of people who lost their lives, i.e. the security people, is 9,857. So, little less than 10,000 people lost their lives, in all the conventional wars that India has fought till date. In the last 15 years, the number of civilians who have lost their lives to terrorism is 62,221. A figure almost 6 to 7 times more than those who have lost their lives in conventional wars. The security personnel killed in various terrorist actions is again over 9,000. You can add this to the 62,000 figure and you can find that conventional wars, which now don’t seem to be a recurring occurrence, is very insignificant in comparison to this proxy war which has continued. Number of people rendered homeless is close to 6 lakhs.

The total amount of money spent and this doesn’t include the amount that we spent on our security forces, army and so on, on merely relief and rehabilitation, on the special paramilitary forces that we deploy for anti-insurgency – the figure now crosses Rs.45,000 crores. More than Rs. 45,000 crores is what is deprived to our villages in terms of electricity and power, in terms of health care, in terms of education, in terms of roads. That is the kind of money which has actually been employed in just the anti-insurgency measures. Merely the increase in budget on agencies involved in fighting terrorism, since the early 80s, is 2600 per cent. That is the cost involved as far as terrorism is concerned. What is the kind of methodologies the terrorists employ? I will just read out one figure, I have several others, sharing the kind of seizures which our security agencies have made. What has been already deployed in killing these 62,000 and 9,000 people is something separate. Just the seizures alone of explosives and I am not referring to the details of rifles, pistols, grenades, machine guns, in the seizure and you can exclude the ones (explosive) which are utilised in this, is more than 49,000 kgs. Close to 50,000 kgs and I asked one of the security experts, as to how much is this figure of 49,000 kilograms plus, what is the damage potential that it has, and I was told that the damage potential that this has had is actually to strike out and blast every inch of Indian soil. That is the kind of insurgent effort as far as India is concerned. And if we geographically test it out, there is hardly any region of the country which remains unaffected by this. These are just numerical figures, but these numerical figures in relation to terrorism, in terms of money spent, the national effort wasted is only one aspect of the picture.

There is another great aspect — as to what are the other hidden costs, which are involved as far as terrorism is concerned. Firstly, there is a large political cost. The political cost involved is that terrorism tends to undermine democratic values. It undermines democratic institutions. It assaults each one of them and then a feeling gains ground that in order to deal with terrorists, you need certain strong methods to deal with them and therefore you have to depart from what is the chosen democratic cause itself It has an adverse effect as far as economic growth and development is concerned. How much did one of India’s most affluent States, the Punjab, suffer on account of terrorism in 10 years?

It then leads to the strong anti-terrorist methods which are employed as part of counter terrorism, the end result is what is normally a phrase used in the areas affected by terrorism, a sense of alienation. Because a sense of alienation builds in when strong counter terrorism methods are used; because innocent citizens at times may also become victims of counter terrorist methods. We hear this phrase repeatedly in the context of Kashmir. Why don’t you take steps in order to prevent alienation of population. The security forces don’t go there to alienate the people there, they go there in fact to protect the people from the terrorists. When the security forces act, the kind of propaganda which builds up, results in alienation of people. I was recently going through some very interesting figures when we discussed this alienation. For different years, I tried to pick up and this is the non-security expenditure from the planned and the non-planned expenditure by Government of India, which is an assistance given to various states. What is the per capita expenditure that we undertake on every citizen of India in each state. What is the all India average when it comes to the rest of the country and what is the comparative amount that we spend on citizens living in Jammu & Kashmir. And I found that in the last 10 years, when I ran through the figures, each year the difference was ranging between 1 to 7 or 1 to 10. So in terms of expenditure you are spending on an average citizen of Jammu & Kashmir 7 to 10 times more in terms of central assistance than you are spending on an average citizen of rest of the country. And despite that a sense of alienation can get built-in, because when terrorists strike them, people don’t like investing, where Jehadis are moving with guns, even traditional income avenues suffer; sense of security suffers and counter terrorism measures at times end up in alienating people. And then this defies the real logic. I looked at the second figure, in 1999-2000 the national figure of population living below poverty line is 26%. In the last three years it may have come down a little bit but that is the last figure which is available.

An affluent State like Punjab compared to this national figure of 26% living below poverty line (BPL), was close to 6.5 per cent. On the strength of this entire central assistance which is given, I was curious to know what was the BPL figure, the below poverty line figure in Jammu & Kashmir. It is lesser than Punjab- at3.8%! So, you can have 7 to 10 times more grant, you can have a BPL figure of 3.8% and still a message can go nationally and internationally that there is a growing sense of alienation, because of the entire environment created by the terrorists.

They have undermined democratic values. They have had an adverse impact on the growth rates in the State, they lead to an increased sense of alienation. They assault social cohesion of the society. You have had migration of population. You had dissatisfaction between different groups of population. One community, the Pandits, had to move out completely. The valley has discontentment for its own reason. If you go to the Ladakh and Jammu region, there is discontentment that we don’t get our share of the entire assistance and development and the root cause of this discontentment that builds up, is the kind of impact that terrorism leaves on a civil society. There is also on other areas a serious adverse effect, that it can have on the defence preparedness of the country. Because, if a large part of the national resource is to go into various other anti-insurgency measures and the costs involved therein, then you tend to neglect areas where you should conventionally have been spending These are several areas with which different agencies and instruments of the government have been fully seized of. In fact now the realization that the state is having repeatedly, that the conventional wars are not the real threat. It is the on-going proxy war by way of terrorism, which can have a far more dangerous impact on a society and far more difficult to fight with.

I will just quote one or two paragraphs for instance from the deliberations of the group of ministers on national security. This is May 2001 – “while instances of inter-State wars have significantly declined and are expected to continue to do so, there is an increase in cross border interference by one State in the internal environment of another, arising out of territorial, religious, cultural, ethnic factors and the easy availability of sophisticated weaponry in the international market. This trend is likely to continue at least in short and medium terms”. The National Security Advisory Board observes – “In the foreseeable future, international terrorism and induced domestic terrorism will pose a greater danger to our national security than a conventional war. National response to terrorism in its varied form is presently inadequate, of an ad-hoc character and generally ineffective”. The Kargil review committee almost said the same thing. “Pakistan has ruthlessly employed terrorism in Punjab, Jammu & Kashmir and the North East. In the present international security environment proxy war and terrorism have become preferred means of hurting a neighbour’s social, political and economical well-being”.

Now this is the real challenge, and for this real challenge we have various forces, substantially outside the country some of them even aided by small groups within the country and I for one believe we should never be misled by the kind of ostensible stand that people take when put under various international pressures so that they get to escape out of a given situation -convenient stands of the kind which our neighbour has taken. May I just highlight this by quoting what the real intention, and here I am just going to quote 5-7 people as to what their real intention as far as employing terrorism as an instrument of state policy by our neighbour is concerned or by various groups, which at least our neighbour now wants us to believe and wants the world to believe, are functioning without its patronage or authority. General Pervez Musharraf, I am reading one of his year 2000 statements — “Jehad is not Terrorism”. This is the philosophy he tried to espouse. Mujahideen organizations are not terrorist organizations. Jehad has been revived during the Afghan war and now it is Jehad in Kashmir, Muslims from different parts of the world were coming to support their oppressed brothers and sisters”. It is a different matter that after 9/11 he decided to have a different policy, having publicly taken a stance that what was happening in Afghanistan was actually Jehad. He decided to create a distinction between what he wanted to do on his western border as against what he wanted to do on his eastern border. On the western border he joined the global war against terrorism. The forces which had organized terrorism in Afghanistan had actually been sponsored and promoted by the Afghan bureau of the ISI. He distanced himself when put under international pressure but for some reasonable period of time had a completely contrary stand when it came to the western borders. “Fighting Jehad against India is a duty of the entire Muslim world. Kashmir cannot be resolved by a means other than Jehad” – This is Osama Bin Laden on August 27th. Masoor Azhar one of the terrorists who got released after the hijack- “Our mission is just not Srinagar, we have to capture New Delhi”. And the tactics which are deployed — when I mentioned the deployment of tactics like attacking social cohesion in Indian society — you have the head of the Deendar-e-Anjuman chief — this is the organization which was banned after several churches in Karnataka and Andhra Pradesh were attacked — “The Mujahideen will fight, you must cause loss to the government property and divert its attention when I enter India through Kashmir with 8 lakh people, money should be looted for financing the activities”. And the next sentence is very significant in the context of what this organisation Deendar-e-Anjuman had done. “Attack Christians so that international pressure will be built on government and on India”.

This is really the magnitude of the threat that we face today. How do we try and answer this threat? The threat, this can really surface by various methodologies which are reached. There is a lot of ideological inspiration which goes in, there is a lot of training which goes in. The kind of training, which almost inspires you and motivates you to die yourself In fact, the suicide squads which have created an impact in several parts of the world, United States, India being some of their prime targets, are organized by people who are actually not scared to die and therefore, with their ability to hit out at a target which is not prepared for such an assault, the danger level seems to be very high.

What then is the real answer to this? The answers are several. For one, you need a very powerful, not only domestic but with international cooperation a very strong link, a grid, virtually a national and international grid, as far as the intelligence systems on these people are concerned. You need to have knowledge of their activities in advance because terrorists always choose the time and place of their assault. They never give you a warning in advance and therefore targets are taken by surprise. You need a genuine and a powerful international cooperation as far as terrorists are concerned. You need a powerful security regime as far as terrorists are concerned and finally you need a very strong and powerful legal regime. How to deal with them once you are able to get hold of them. As far as the international regime is concerned, over the last few years it has slowly been building up. After 9/11 hopes have really been raised that the international regime against terrorism is actually going to be very powerful and strong. In fact, I do recollect, this is what the Home Minister had mentioned yesterday in Parliament, that there was one impression of the World during the cold war regime. There were identified groups, identified poles in the World with which smaller nations had their own friendships and therefore their stands were well known in advance. But once the World moved towards more being a uni-polar world, coupled with the new terrorist threat, the World has started actually having a newer methodology of looking at all this. And particularly in this context, when we meet our friends from the United States of America, one of the surprises which we always express to them, or the concerns which we express to them, that today the regime for having two different standards on dealing with terrorist organizations or on dealing with democracies world over is entirely different. And, therefore, whenever an effort is made to give at least some more time, if not benefit of the doubt, to those nations which are responsible for sponsoring terrorism in this region and trying to destabilize the region it becomes quite un-understandable, particularly after 9/11. Our war or battle against terrorism did not begin on 9/11. We been fighting our lone war for almost 10 to l5 years prior to that. 9/11 only enabled the World to wake up to the reality of the consequences of terrorism. And the World having woken up to that reality when 3,000 people unfortunately lost their lives in New York, labeled it as a war which is launched on the United States of America; then with more than 70,000 people having suffered the same fate, terrorism on our soil cannot be taken to be any ordinary war and therefore, the world leaders of the global alliance need not at this stage merely advise restraint. They equally have a responsibility to be on the forefront of fighting this terrorism because their war against terrorism is not selective, it is global.

There are several positives, if I may mention. The several positives which have taken place in the last few years, particularly through the decade of the 90s when this whole war started. In Punjab we were able to overcome. In one or two regions of North-East, we been able to overcome. In fact, one of the States there is now getting a peace bonus. As far as Kashmir is concerned, there seems to be a significant improvement as far as the intelligence systems are concerned. The international opinion on Kashmir also has undergone a sea change in the last decade or so. On various international forums Pakistan had successfully attempted to internationalize the issue of Kashmir and take it beyond the realm of a bilateral discussion or a bilateral solution. Today, particularly in the post Kargil era, more so on the post 9/11 era, events after 13th December attack on Parliament, two major attacks on Jammu- have also demonstrated that today the World focus in the context of Kashmir has more been on internationalization of cross border terrorism. India’s efforts to internationalize Pakistan as a sponsorer of that terrorism seem to have succeeded more than Pakistan’s attempts to internationalize the Kashmir issue which it traditionally has been trying for over the last 50 years. There is also a considerable amount of pressure on Pakistan if not in actuality at least ostensibly to try and alter its position. It has on several occasions, its new head of state, has been mentioning how the country is trying to keep terrorist organizations at bay, trying to suppress some of them or ban some of them; also indicating that at times they themselves are victims of these organizations. But these statements seem to be highly doubtful, particularly in the context of every attack in India seems to have originated from Pakistan; the attackers seem to be people belonging to that state, in fact several intercepts, messages and other hard evidence seems to be indicating that, it’s that country which is really acting as a base for giving refuge to all these organizations.

One aspect is of at least ostensibly changing your position. But words are no substitute for action. What really is required to be done is that the various formats of infrastructure for terrorism which exists requires to be dismantled and dismantling that infrastructure for terrorism, is perhaps the most important responsibility as far as Pakistan is concerned. There is infrastructure availability in terms of centrality of Pakistan in sponsoring terrorism, sabotage and subversion, there is infrastructure in terms of terrorist training camps; there is infrastructure in terms of providing the entire logistical support; there is infrastructure in providing hardware, there is infrastructure in providing money, there is infrastructure in even providing at times regulars from the security forces for this activity. And then pretending ignorance of these people originating from Pakistan. The real test of Pakistan being not sponsoring terrorism or not being a supporter of cross border terrorism or not allowing infiltration to continue, has to be as to how quickly it can really dismantle this entire infrastructure for sponsoring terrorism which exists in that State. There are other positives also, in fact the security forces, the army, the other paramilitary forces, in the last several months or years, if I would say so, are increasingly getting an upper hand against the terrorists. We normally find figures, if we read between the lines, how many security people lose their lives for every one terrorist that they kill. In days of high terrorist activity the figure was almost one against one. Today there is a very wide difference. Today the security forces have been able to actually overreach a large number of them except in cases where they are able to take targets by surprise and that is the real challenge which we face — as to how do we protect the soft targets whenever these soft targets are made targets of terrorist attack itself. One of the important areas as far as terrorism is concerned is also having a strong legal regime in dealing with terrorism. And strong legal regimes World over have provided enough ground to several organizations to actually start complaining that the legal regime is bit too tight. Britain over the last two years has formulated such a regime, the United States has its laws, which are far tougher than ours and there are several components of this legal regime which are required. The first being, you must have a clear cut definition of what is terrorism and a very harsh punishment for terrorism. You make funding terrorism an offense.

Funds are to be confiscated. In fact, when funds used to be passed on to organizations earlier it could well have been offences under much lighter laws such as FERA or now FEMA. But once it becomes funding of terrorism and gets identified as a terrorist act itself, this becomes a major deterrent action as far as terrorism is concerned. And that is why one of the major demands that countries, which are victims of terrorism, made to several other nations from where the funding comes was to block sources of funding. The next ingredient of a strong anti-terrorist legal regime has to be that profits of terrorism which then provide an infrastructure to terrorism itself, should be confiscated. It is a rule of law in any civilized society that no person can be allowed to retain to himself profits of crime. In fact 30 years ago we legislated a law where profits of smuggling under SAFEMA (Smugglers and Foreign Exchange Manipulators [forfeiture of property] Act) are to be confiscated. No man can enrich his pockets by profits of crime. Gun running, drugs, narcotics, arms, if you deal in these areas and earn profits, no civilized society can allow you to enrich yourself. And, therefore, one important component of anti-terrorist legal regime has to be that whatever is earned through loot or blackmail, whatever properties it is converted into, whatever bank accounts or liquid cash which is converted into, the same doesn’t belong to the person who converts and the same is liable to be confiscated. Banning terrorist organizations and making membership or activity of terrorist organization subsequent to the ban to be an offense — the ban has several consequences.

Why were we expecting the United States to ban Hizbul Mujahideen or Lashkar-e-Toiba, why were they the first to ban Al-Qaida.

When we ban organizations in one part of the World consequences flow out of that. And therefore one civilized nation expects another as part of the global alliance to start banning terrorist organizations. Two of the most important instruments in law which have been used against terrorists and hardened criminals world over have been the use of modem technology. Terrorists no longer operate in the forests. They are no longer desperados who live away from mankind. They may be living in your buildings, apartments next to your house. And one of the methodologies by which police has been able to track down hardened criminals is the use of modem technology, i.e. intercepts. In the good old regime till the 1970s and the 80s when anybody thought of giving police the power to intercept communications, a liberal society always stood up and said “well big brother, watching this is not conducive to a liberal society”. What does an investigator do, what does an anti-insurgent police force do, particularly when terrorists never announce their targets of attack. It is a part of their usual intelligence gathering that you must be informed in advance as to how and what their next target and next planned activities are going to be. In fact in most of the cases where the Bombay Police under the Maharashtra law has been able to achieve some success is through the intercepts which are made. And intercepts World over — the British Law now allows it, the American Law allows it — intercepts have been — in fact the Maharashtra Law was the first Indian Law which allowed intercepts to a police — have become important instruments, in not only intelligence gathering but also in securing conviction. Ordinary denials will have to be proved in a normal court of law, because the policeman is at odds to prove various facts and the accused is entitled to benefit of doubt and many others. But when faced with his own voice not many are able to deny, what their real intent was. Therefore, lawful intercepts by the police, but these lawful intercepts should not be misused. Therefore, there has to be a safeguard regime in terms of having who you intercept, being approved in a post-decisional hearing by a specialized review committee.

There are also special rules of evidence, special rules of trials which are required. The United States has gone to the extent of having secret military tribunals and one of the reasons they have secret tribunals is that there are large number of ordinary citizens who in open trials are not prepared to come and depose against these hardened criminals. The kind of protection to be given to the witnesses, the more difficult bail provisions — these are all important legal instruments of a powerful regime which is an anti-terrorist regime. We must in this context analyze the issue with a little greater depth than some of the surface reactions as to the changes which we make to the law. I will give three examples, two recent and one a well known illustration. The Parliament was attacked on the 13th of December. The five gentlemen of the terrorists who attacked the Parliament were killed on the spot. In every suicide action to get the Fidaheen alive is very difficult. They either kill the security people and escape or get killed themselves. And therefore to find out any better evidence from them is normally very difficult. All five died on the spot. How does an investigator move under the normal law. Under the normal law the investigator has to find out who were the people behind these five. Who were the people who gave them the entire logistical support who were part of conspiracy to blast India’s Parliament. The five are dead. One clue leads you to the first person and it leads you to second person, third person and then somebody breaks down and says well we were all brought into the picture and money was given to us by some gentlemen hiding in the hills at Pahalgam called Gazi Baba and the other man says he provided us with money which came from across the border, we went several times across the border and had training. They were members of a banned organization. The most important pieces of evidence are not going to be ordinary eye witnesses who were present in the Parliament somebody like me. Because, eye evidence can only be against those five who are no more alive. But to get behind who is behind these five you have to crack up one of those five. And that leads from one to another. And therefore the traditional rule of confessional statements not being admissible is one procedural aspect which had to be changed. It has been changed in anti-terrorist laws in various parts of the world. But for that component how are you able to then establish the whole chain. A recent major case came in, when one of the leaders of a separatist organization in Kashmir was arrested for having received huge funding. How does the investigators get the first clue about funding. The clue was intercepts. Intercepts between international funding groups — and whenever you go to foreign countries and ask for repatriation or extradition of those people who have been funding these, you require evidence.

In the modern technology but for the intercepts being permissible, but for confessional statements with safeguard being made admissible, to go behind these conspiracies is going to be very difficult. In fact the most significant case — and that was a case when TADA was still in force. The campaign against TADA had started because of its misuse after the Bombay blast cases. But when the late Mr. Rajiv Gandhi was assassinated in 1991, TADA was still in force. The people who killed Mr. Rajiv Gandhi died on the spot. When the special investigating team went behind and started investigating all those who were a part of the conspiracy all that they could find in terms of evidence besides little circumstantial evidence, who gave the money, who gave the weapons, who gave the inspirations, who provided them shelter, who provided them with vehicles, were their own statements. And finally when the Court was dealing with the case, I re-read and re-read the judgment of the Supreme Court in the assassination case of Mr. Rajiv Gandhi. TADA had a similar provision, a much tougher provision for recording confessional statement and admitting them. The difference between TADA and POTA was that in TADA it could be recorded before a senior police officer and that was enough, in POTA it is to be recorded before a police officer and within 24 hours ratified before a Judge. So there is a safeguard. You have to first do it here and then go before a Judge. You take those 4 or 5 statements which these people had made against themselves out. There was no other legally admissible evidence. So we would actually have had a situation where a former Prime Minister gets assassinated before a crowd of several thousand people, the assailants die on spot and the entire conspirators, but for the fact that a special rule of evidence did exist, there was no other way where evidence against them would have been forthcoming. Therefore, one of the very important aspects of a fight against terrorism has to be the establishment of a strong anti-terrorist legal regime. When you establish strong regimes, as I said in the very beginning, whether it is a security regime, or it is a legal regime even if you try and put in the best kind of safeguards, human rights groups world over complain that the possibility of some form of aberrations or violations of human rights may take place.

And therefore even when this regime is being implemented, a democratic society can never lose sight of the fact that to fight terrorism you don’t have to get into an exercise where police has the power to actually go and haul UP the innocent and there being no remedy as far as law is concerned. To that extent the concern has to be appreciated. There are a large number of human right groups, citizen groups, political groups, state human rights mechanisms which therefore in this situation have a very important role to play. As responsible organizations they have to watch out that no innocent really should become a victim of a tough regime but that is as far as human rights groups genuinely concerned with human rights are concerned. There is a second category of human rights groups also which has emerged. And the second category of humans rights groups, I regret to say, have been the over-ground face of the underground — every underground insurgent movement carries with it an over ground human rights organization. These are to be seen in contradistinction with some of those, the statutory ones and the other genuine ones and one of the objects of these organizations is to actually continuously carry on a campaign which indirectly goes to the benefit of terrorists. So every time the Peoples War Group in Andhra Pradesh attacks an industrial establishment you will find the same old faces coming up and saying it is the repressive machinery of the state we are fighting. They are always silent about what the Peoples War Group has done to the people of Andhra Pradesh or to the economy of the State or the industrial establishment or the individuals it is trying to target. You will find similar campaigns carried on in relation to several other areas where terrorist attacks take place. And, therefore, as a matured democracy, a responsible society, we must be very careful of this second category of human rights organizations which now experience has taught us have actually become an over-ground supporter of what is otherwise a banned or an insurgent or a terrorist activity itself. Well these are all challenges which a matured society has to face.

Terrorism’s capacity to destroy life, to destroy economy, to destroy sovereignty of countries, is tremendous. Its ability to devalue democratic tradition is tremendous. Foreign insurgencies also gain support when they are given refuge from segments of the domestic society and therefore the maturity of the Indian society is always on trial when the country is trying to fight these agencies. It is a war which India cannot afford to lose, it is a war which has to be fought through the mechanism of intelligence, with the mechanism of removing some of the social discontent which in some areas does cause terrorism. These are several aspects to it but as I said today, it is perhaps one of the greatest challenges as far as Indian society is concerned. Thank you very much for having invited me to deliver this address. I must mention that I did not have the privilege of personally knowing the Late Mr. Lalit Doshi but from what I read about him and from the kind of response his friends and admirers all seem to have given to him, some of whom are present today, I can only say in civil service it is very difficult to leave after leaving strong footprints behind but he seems to be one of those who certainly has left them behind.

Thank you very much.

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Biography of Mr. Arun Jaitley
Senior Advocate and Member of Parliament

Mr. Arun Jaitley was born on 28” December, 1952. He did his schooling from St. Xavier School, New Delhi (1969-70). He graduated in Commerce from Sri Ram College of Commerce, New Delhi (1973). He passed his Law from the Faculty of Law, University of Delhi in 1977. During his career as a student he was the recipient of several distinctions for his outstanding performance both in academics and extra curricular activities. He was President of Students Union of Delhi University (1974). During Internal Emergency (1975-77) when civil liberties were suspended, he was under preventive detention for a period of 19 months. He was a prominent leader of a movement against corruption launched in the year 1973 by Late Shri Jai Prakash Narayan. He was the Convenor of the National Committee for Students and Youth Organisation appointed by Late Shri Jai Prakash Narayan.

He has been practising law before the Supreme Court and several High Courts in the country since 1977. He was designated Senior Advocate, in 1990. He was the Additional Solicitor General of India for the Government of India in the year 1990. He has authored several write-ups on legal and current affairs. He authored Laws relating to Corruption and Crime in India before the Indo-British Legal Forum. He was a delegate on behalf of the Government of India to the United Nations General Assembly session in June, 1998 where the Declaration on laws relating to Drugs and Money Laundering was approved. He has delivered lectures on many important subjects including IT Convergence, the Broadcasting Laws of India, Disinvestment and on the Review of the Functioning of the Indian Constitution. He has also been connected with the educational institutions. He was the Chairperson of the Governing Body of Kamla Nehru College, Delhi (1993-1998). He is also President of DDCA the body which administers cricket in Delhi.

Mr. Jaitley joined the Union Ministry headed by Shri Atal Bihari Vajpayee on 13 October, 1999 as Minister of State (Independent Charge) for Information and Broadcasting. He was elevated to Cabinet Rank on 7 November, 2000 with Law, Justice & Company Affairs under his charge and also given the charge of the Ministry of Shipping. Mr. Jaitley was holding the portfolio of Ministry of Information and Broadcasting till 30 September, 2000 before moving to the Ministry of Law, Justice and Company Affairs. He was the first Minister of the newly created Department of Disinvestment. Mr. Jaitley relinquished this charge when he was given additional charge of Law, Justice and Company Affairs.

Mr. Jaitley has been a Member of the National Executive of the Bharatiya Janata Party since 1991. Elected as Member of Parliament (Rajya Sabha) from Gujarat and represents Kheda constituency.

He is married with two children.





Anti-terrorism laws in India & The need of POTA

13 10 2008

Siddharth – Law student Source: legal services

In the new millennium, we face the very real and increasing prospect that regional aggressor, third-rate armies, terrorist groups and even religious cults will seek to wield disproportionate power by acquiring and using weapons of mass destructions – Secretary Of Defense William Cohen Of U.S.A.

Introduction
First in Varanasi then in Delhi then in Mumbai local trains and I do not think there is even a need to mention the continuing terrorist’s barbaric activities in Kashmir. The bomb blasts have outraged every patriotic Indian. No civilized nation can allow this kind of barbaric inhumanity to be partly or fully supported or sponsored by any neighbor or domestic insurgents. The only way we can combat it is to minimize, if not eliminate, such occurrences. Prevention is crucial; and laws like Pota can prevent such occurrences. Acquittals even in a case like Parliament attack occurred because of poor prosecution rather then because of Pota.

After the 9/11 attacks on the world trade center the world’s outlook towards the terrorist and terrorist organization has changed the laws have become much more stringent to curb such activities. The Indian outlook also changed specially after the 13 December attack on the Indian parliament which is seen as a symbol of our democracy then it became necessary to enforce a law which would be more stringent so that the terrorist can not go Scot free because after the lapse of TADA in 1995 following the wide spread complaint that it was being abused there was no law which could be used as a weapon against the rising terrorist activities in India.

India is facing multifarious challenges in the management of its internal security. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country. Terrorism has now acquired global dimensions and has become the challenge for the whole world. The reach and methods adopted by terrorist groups and organization take advantage of modern means of communication and technology using high tech facilities available in the form of communication system, transport, sophisticated arms and various other means. This has enabled
them to strike and create terror among people at will. The criminal justice system was not designed to deal with such type of heinous crimes. In view of this situation it was felt necessary to enact legislation for the prevention of and for dealing with terrorist activities

In 2002 March session of the Indian parliament the Prevention Of Terrorist Activities Act was introduced and it had widespread opposition not even in the Indian parliament but throughout India especially with the human rights organization because they thought that the act violated most of the fundamental rights provided in the Indian constitution. The protagonists of the Act have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abetting terrorism. POTA is useful in stemming “state-sponsored cross-border terrorism”, as envisaged by the
then Home Minister L.K. Advani. The Prevention of Terrorism Act, 2002 (POTA), was seen as a controversial piece of legislation ever since it was conceived as a weapon against terrorism.

What is terrorism?
The term “
terrorism” comes from the French word terrorisme, which is based on the Latin verb terrere (to cause to tremble). It dates back to 1795 when it was used to describe the actions of the Jacobin Club in their rule of post-Revolutionary France, the so-called “Reign of Terror“. Jacobins are rumored to have coined the term “terrorists” to refer to themselves. Terrorism refers to a strategy of using violence, social threats, or coordinated attacks, in order to generate fear, cause disruption, and
ultimately, brings about compliance with specified political, religious, or ideological demands. The European Union includes in its 2002 definition of “
terrorism” the aim of “destabilising or destroying the fundamental political, constitutional, economic or social structures of a country.” Terrorism is defined in the U.S. by the Code of Federal Bureau of Investigation as: “.the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The FBI further describes terrorism as either domestic or international, depending on the origin, base, and objectives of the terrorists.

Anti-Terrorist Laws in U.S.A. and Pakistan.
In Pakistan-
In 2002, ordinance was issued for the inclusion of military officers in the panel of judges to try
terrorist offences. This not only
undermines the independence of the judiciary but makes the anti-terror law in the country even more draconian Described as necessary that appropriate administrative and judicial measures
be adopted to fight a spate of terrorist activities and
commission of heinous offences in Pakistan these anti-terrorism laws opened the door to grave violations of human rights including the right to life, the prohibition of torture, the right to liberty and security and the right to fair trial. Inter alia, they provide for the creation of anti terrorist courts and give wide powers of arrest and interrogation to the police and army.
Amnesty International has criticized the legislation in its report,

Legalizing the Impermissible: the new anti-terrorism law. It is important to note that the existing legal and judicial system is already equipped to deal with offences referred to in the act. The problem then seems to be a lack of implementation, not a lack of laws. However, in an attempt to hide this inefficiency, Pakistan adopted the anti-terrorist acts which provide speedy trial without necessary guarantees for the accused, unfair trials and license to kill etc.

The right to shoot to kill 1997 Anti-Terrorism Act Under Section 5(2)(1): an officer of the police, armed forces and civil armed forces may: (i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, and it shall be lawful for any such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof The enactment of broad provisions empowering summary executions is not the way a modern civilized state ought to act. Rather the government should set strict limits to the circumstances in which firearms could be used to prevent arbitrary killing by the security forces. The broad powers given to the police and consequently, to the military and civil armed forces contravene major international standards of human rights. Indemnity for acts done in good faith: Section 39 of the act says: No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under this act.? This is tantamount to providing impunity to the security forces for abuses, including extra judicial killings. To explicitly place any acts of police or other law enforcement personnel, including possibly random resort to lethal force, outside scrutiny and accountability may give law enforcement personnel the impression that they may commit such acts with impunity if only they can claim to have done them in good faith. It breaches a basic requirement of the rule of law, namely its equal and exception less application to everyone. Confessions to police made admissible in court: The provision in the act in section 26 which says: The special court may, for admission of the confession in evidence, require the police officer to produce a video
tape together with the devices used for recording the confession
.

Article 14(2) of the Constitution of Pakistan prohibits the use of torture, though only in the limited context of extraction of confessions: No person shall be subjected to torture for the purpose of extracting evidence. However, Pakistani law enforcement officials, to extract confessions from the accused, routinely use torture. Lending greater legal weight to confessions and putting pressure on police to speedily resolve crime may indirectly contribute to the continued and perhaps increased use of torture.

The right to be tried in a public place without prejudice to the defendant: Section 15 of the 1997 Anti-Terrorism Act states, The
government may direct that for the trial of a particular case, the court shall sit at such place including the place of occurrence as it may specify.
This is intended to expose the defendant to public expressions of outrage, anger or even violence for his deeds, to humiliate him and to deter others by the specter of public exposure; it does not appear to serve the purpose of helping the judiciary establish the truth and do justice in a detached circumspect manner and in calm circumstances. The right to be presumed innocent: The act lays down that only special courts may grant bail to people tried for offences under the act but they may not release a defendant on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged and unless the prosecution has been given an opportunity to ?show cause why he should not be released. This gives the prosecution the right to veto to deny bail.

The right to appeal: Section 31 of the act reads: A judgment or order passed, or sentence awarded, by a special court, subject to the result of an appeal under this act shall be final and shall not be called in question by any court. The possibility of the defendant to appeal to a court in the regular judicial system, either to the provincial high court or the Supreme Court of Pakistan is therefore excluded. People convicted and sentenced by the special courts are clearly disadvantaged in so far as their legal remedies are restricted: they have only one possibility of appeal, whereas people convicted by regular courts may
also appeal to the Supreme Court. This provision violates the principle of equality before law laid down in the Constitution of Pakistan. It is one of the fundamental principles of international human rights law. Moreover, the right to appeal is restricted in so far as it is subject to severe time limitations. The defendant may not in seven days be able to present an adequate appeal while the prosecution has 15 days for the appeal.

Moreover, the right to appeal of those facing the death penalty also appears to be seriously infringed under the act. Death penalty: Under Section 7(1) of the 1999 Amended Anti-terrorism Act, for terrorist acts resulting in death, courts have to mandatory impose the death penalty. This does not give any discretion to the judiciary. Section 22 of the 1997 Anti Terrorism Act, The government may specify the manner, mode and place of execution of any sentence passed under this act, having regard to the deterrent effect which such execution is likely to have?. Section 22 opens the possibility for public executions
of the death penalty,

In U.S.A.-
Since its passage following the September 11, 2001 attacks, the Patriot Act has played a key part and often the leading role in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life. While the results have been important, in passing The Patriot Act, Congress provided for only modest, incremental changes in the law. Congress simply took existing legal principles and retrofitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network. Congress passed the
USA PATRIOT Act in response to the terrorists attacks of September 11, 2001. The Act gives federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. It vests the
Secretary of the Treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money laundering purposes. It seeks to further close our borders to foreign terrorists and to detain and remove those within our borders. It creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists. Although it is not without safeguards, critics contend some of its provisions go too far. Although it grants many of the enhancements sought by the Department of Justice, others are concerned that it does not go far enough.

Criminal Investigations: Tracking and Gathering Communications-Federal communications privacy law features a three tiered system, erected for the dual purpose of protecting the confidentiality of private telephone, face-to-face, and computer communications while enabling authorities to identify and intercept criminal communications. The Crime Control and
Safe Streets Act of 1968 s give authorities a narrowly defined process for electronic surveillance to be used as a last resort in serious criminal cases. When approved by senior Justice Department officials, law enforcement officers may seek a court order authorizing them to secretly capture conversations concerning any of a statutory list of offenses.

Foreign Intelligence Investigations- The Act eases some of the restrictions on foreign intelligence gathering within the United States, and affords the U.S. intelligence community greater access to information unearthed during a criminal investigation, but it also establishes and expands safeguards against official abuse. More specifically, it: permits roving surveillance (court orders omitting the identification of the particular instrument, facilities, or place where the surveillance is to occur when the court finds the target is likely to thwart identification with particularity).

Alien Terrorists and Victims- The Act contains a number of provisions designed to prevent alien terrorists from entering the United States, particularly from Canada; to enable authorities to detain and deport alien terrorists and those who support them; and to provide humanitarian immigration relief for foreign victims of the attacks on September 11.

New crimes: The Act creates new federal crimes for terrorist attacks on mass transportation facilities, for biological weapons offenses, for harboring terrorists, for affording terrorists material support, for misconduct associated with money laundering already mentioned, for conducting the affairs of an enterprise which affects interstate or foreign commerce through the patterned commission of terrorist offenses, and for fraudulent charitable solicitation. Although strictly speaking these are new federal crimes, they generally supplement existing law by filling gaps and increasing penalties.

New Penalties: The Act increases the penalties for acts of terrorism and for crimes, which terrorists might commit. More specifically it establishes an alternative maximum penalty for acts of terrorism, raises the penalties for conspiracy to commit certain terrorist offenses, envisions sentencing some terrorists to life-long parole, and increases the penalties for counterfeiting, cyber-crime, and charity fraud.

Other Procedural Adjustments: In other procedural adjustments designed to facilitate criminal investigations, the Act: increases the rewards for information in terrorism cases; authorizes ?sneak and peek? search warrants; permits nationwide and perhaps worldwide execution of warrants in terrorism cases; eases government access to confidential information;
allows the Attorney General to collect DNA samples from prisoners convicted of any federal crime of violence or terrorism; lengthens the statute of limitations applicable to crimes of terrorism; clarifies the application of federal criminal law on American installations and in residences of U.S. government personnel overseas; and adjust federal victims? compensation and assistance programs.

History of anti-terrorism laws in India.
Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. The Indian Supreme Court took a note of it in
Kartar Singh v. State of Punjab [1994] 3 SCC 569, where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and
reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.

Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications.

At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. Earlier, the following laws had been in force to counter and curb terrorism. The first law made in independent India to deal with terrorism and terrorist activities that came into force on 30 Dec 1967 was

– The Unlawful Activities (Prevention) Act 1967
The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that the executive did not expose political parties to intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.

– Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
The second major act came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of
Kartar Singh vs State of Punjab (1994) 3 SCC 569.
However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995. Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act, 1999 which was enforced on 24th April 1999. This law was specifically made to deal with rising organized crime in Maharashtra and specially in Mumbai due to the underworld. For instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA. For, POTA did not take note of organised crime as such while MCOCA not only mentions that but, what is more, includes `promotion of insurgency’ as a terrorist act. Again, the onus to prove a person guilty under POTA lies on the prosecution while under the Maharashtra law a
person is presumed guilty unless he is able to prove his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did.

The need of POTA.
It is normally said that terrorism is a low intensity war. But the loss, which our country has suffered in the last two decades due to the rise of terrorist activities, has been on a very large scale. This country has fought four high intensity wars and in those wars we have lost more then 6000 people. We have already lost more then 70000 civilians. In addition, we have lost more then 9000 security personnel. Almost six lakh people in this country have become homeless as a result of terrorism. Outside the expenditure on our armed forces, merely for maintaining the entire set up to fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times. We have no record of the explosives that have been used in various parts of the country. We have a record of crime. But the explosives that have been confiscated by our security agencies weigh 48000 kilos. If our security forces had not been vigilant enough to confiscate these explosives, they would probably have been enough to take care of every inch of Indian soil.

What are the regions that are affected: It is not only Kashmir; Punjab too has suffered. Also Mumbai, Delhi and other regions of the country like the North East. Development has suffered, the economy has suffered. You have now a brand of Maoist terrorism; People’s War Group and other groups. A large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh and Jharkhand right up to the Nepal border is affected. We had insurgency and terrorism in Tamil Nadu. We lost two of our former
prime ministers to this kind of terrorism.

In terms of our sovereignty, unity and integrity and our feeling of nationalism, terrorism strikes at each one of them. This is the enormity of the problem that we are addressing. But it is also said that our criminal law systems have broken down; it seems to be a sad fact to accept. Are we aware of the conviction rate under the so-called ordinary laws- At times we try and conceal the figures and say that in India the conviction rate is 40%. But that 40% is actually a camouflage because every time there is a challan and somebody pays Rs 100 as fine, it is recorded as a conviction. Every time somebody feels guilty and pays a
fine under company law, we take it as a conviction and then claim that the conviction rate is 40%. In heinous crimes like murder, the conviction rate under the so-called normal processes has come down to 6.5%. There are several reasons for this. One is that when we deal with hardened criminals, some of our old notions of criminal law have to change. It is a sad reality that crime in India has become a low risk business. It is a high profit business with a 93% probability that you can commit a hard crime and get away with it.

So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunaes in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India and can have such stringent laws why can not we have such laws.

Analysis of some important sections of Pota-
In the case of
People’s Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580 the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same. Once legislation is passed, the Govt. has an obligation to exercise all available options to prevent terrorism within the bounds of the constitution. Mere possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutionally. Court upheld the constitutional validity of the various provisions of the Act.

1.Section 3(a) Defining terrorist act- Whoever with the intent of threatening the unity, integrity, security and sovereignty of India or strike terror in the minds of people or any section of the people does any act or thing by using dynamite or explosive substances or inflammable substance or firearms or other lethal weapon or poisonous or noxious gases or other chemical or any substance of a hazardous nature in such a manner as to cause death or injuries to any person or loss or damage to property or disruption of any supplies or services essential for life.

Case Law- Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 In a case where 9 person had died and several other injured on account of perpetrated acts The court said that such terrorist who have no respect for human life and people are killed due to there mindless killing. So any compassion to such person would frustrate the purpose of enactment of Tada and would amount to misplaced and unwarranted sympathy. Thus they should be given death sentence.

Argument against- trade union activity would be affected because whoever disrupts essential supplies would be covered under POTA.Argument in favor- at least our trade union leaders are nationalist leaders. Nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.

2. Section 4 Possession of certain unauthorized arms– Where any person is in unauthorized possession of any- bombs, dynamite or hazardous explosive substance or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not.

Case Law- Sanjay Duttt Vs. State through C.B.I 1994 SCC 410 The expression possession though that of section 5 of Tada has been stated to mean a conscious possession introducing thereby involvement of a mental element i.e. conscious possession & not mere custody without awareness of nature of such possession and as regards unauthorized means and regards without any authority of law.

Argument against – That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.

Argument in favour – Firstly the section clearly says that any person who has unauthorized possession of arms that is does not possess a proper license for the arms. This section is only making the law stringent by stating that anybody who possesses arms should also possess proper license from the proper authority.

Secondly it also states weapons should be capable of mass destruction or biological or chemical substances of warfare so why would any person without any reason possess such kind of weapons and that to unauthorized

3. Section 7 Powers of investigating officers – If any officer (not below the rank of SP) investigating an offence committed under this act, has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism he shall with prior approval in writing from Director General of Police of which the property is situated can make an order to seize or attach such property.

Argument against – The petition articulates the fear that permitting a police officer to act on the basis of his belief will be “draconian and unguided.

Argument in favour – Case Law – T.T. Anthony Vs. State of Kerala 2001 Cri LJ 3329 This plenary power of police to investigate a cognizable offence is not unlimited. It is subject to certain limitations such as if no cognizable offence is disclosed & still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation.

4. Section 21 Offence relating to support given to a terrorist organisation-
(1) A person commits an offence if
(a) He invites support for a terrorist organization , and
(b) The support is not , or is not restricted to, the provisions of money or other property

(2) A person commits an offence if he arranges, manages or assists in managing or arranging a meeting which he knows is-
(a) to support a terrorist organization, or
(b) to further the activities of a terrorist organization , or
(c) to be addressed by a person who belongs or professes to belong to a terrorist organization.

(3) A person commits an offence if he addresses a meeting for the purpose of arranging support for a terrorist organization or to further its activities.

Case Law – Vaiko’s Case One of the petitions in this regard admitted by the Supreme Court has been filed by Vaiko, the general secretary of the (MDMK), a constituent of the ruling National Democratic Alliance at the Centre. Vaiko had defended POTA in Parliament during the debate on it. Therefore his petition challenging the validity of Section 21 of the Act
assumes particular significance. Under this Section, a person commits an offence if he invites support for a terrorist organisation, and even if the support is not confined to the provision of money or other property. He is guilty if he arranges or addresses a meeting which he knows is meant to support a terrorist organization or to further its activities. Vaiko was arrested under this Section on the basis of certain remarks saying that “
I was a supporter of LTTE once. I was a supporter of LTTE
yesterday; I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow.
” Then, he asked his audience whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a culture. Mr. Vaiko, was in detention for 17 months, did not choose to seek bail on a matter of principle.

When we looked at various chapters internationally, it was found that as far as membership of a terrorist group is concerned, the British law has an exclusive chapter on banning terrorist organizations. After banning a terrorist organization, membership of a terrorist organisation, ipso facto, becomes a punishable act.

5. Section 22- Fund raising for a terrorist organization to be an offence-
(1) Whoever commits an offence if he-
(a) invites, receives or provides money or other property
(b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
The second component that was not there in TADA is, if you try and earn money through a crime, that is, through terrorism, there are two offences which flow out of that. Whoever funds terrorism is also held guilty. By funding terrorism you are abetting terrorism. You are giving resources to terrorism. The old terrorist laws the world over never had a chapter on funding of terrorists. But now you must create a fear and scare in the minds of those who fund terrorists.

What you earn out of crime is not your private property, it is against public interest and must belong to the state. The UN passed a draft Money Laundering Bill which all of us have been debating. The whole concept of money laundering is that profits out of crime must be confiscated because they cannot belong to an individual. Is it the argument today that since India is now to have a provision where profits from terrorism will be confiscated, it is a draconian provision.

6. Section 27 Powers to direct for samples, etc.- when a police officer investigating a case requests a Chief Metropolitan Magistrate to obtain hand writing, footprints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of this act it will be lawful for the judge to give such orders as the case may be. If any accused person refuses to give such samples the court shall draw adverse inference against the accused. Case Law – S. Srinivasa Vs. M/s Deccan Petroleum Ltd. 2001 Cri LJ 659 The court said where the order of refusal to issue summons for production of document was prejudicial to accused then such order is not sustainable. The most important part of the section says that the power to take samples is not given to the police authorities but when a police officer
investigating a case requests a Chief Metropolitan Magistrate to obtain samples of any accused person reasonably suspected to be involved in the commission of this act and then if only the Chief Metropolitan Magistrate gives the order to obtain such samples its only then he can force the accused to give such samples. If any accused person refuses to give such samples the court shall only then draw adverse inference against the accused.

7.Section 32 Certain confessions made to police officers taken into consideration – A confession made by a person before a police officer not lower in rank than a S.P. and recorded by him out of which sound or images could be reproduced shall be admissible in trial of such person for the offence under this act. Case Law – Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 The court said that it is entirely to the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to law it must while so deciding the question should satisfy itself that there was no trap. No track and no importance seeking evidence during the custodial interrogations and all the conditions recquired are fulfilled. If the court is satisfied then the confessional statement will be a part of the statement.

Confessions could be made admissible evidence. In respect of confessions, we have given the facility of video recording. After that, within 48 hours, the person should be produced before a magistrate. The magistrate will ask whether it was voluntary or not. If the accused says that it was not voluntary, that he had been assaulted and coerced, the magistrate will have a medical examination done. So, a safeguard has been put in.

State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 this was an appeal against convictions in view of attacks made on parliament. The matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.

Admissibility of intercepted phone calls, intercepted phone calls are admissible piece of evidence under ordinary laws even though provisions of POTA cannot be invoked as it presupposes investigation to be set in motion on date of its interception. Impact of procedural safeguards under POTA on confession. Confession made involuntary is inadmissible evidence. If procedural safeguards have not been complied it will affect admissibility and evidentiary value of evidence being proved all charges beyond reasonable doubt convictions were upheld.

8. Section 45 Admissibility of evidence collected through the interception of communication (1) Notwithstanding anything in the code or in any other law for the time being in force the evidence collected through the interception of wire, electeronic or oral communication shall be admissible as evidence against the accused in the court during the trial of a case.

It is said that TADA was misused. Probably it was misused. I would like to point out that one of the great weaknesses in TADA a structural defect was its dependence on witnesses; eyewitnesses and humble citizens appearing against terrorist groups. Anybody from Punjab, Mumbai or Kashmir will testify that the average citizen is scared of coming and honestly deposing before these institutions. This is a threat that the witnesses face against terrorist acts. So how can a normal person be able to give a statement before the court

So there is a need bring in a provision that when terrorist gangs communicate with each other, intercepts of their communication should be allowed and these intercepts should become admissible evidence in court. So, when you arrest terrorists, you do not need a humble citizen to come and give evidence against them. You produce the recording of that
intercept. At that moment, it becomes admissible evidence. Under normal law it is not admissible evidence. We examined the suggestion and accepted it. One of the strengths of this law is actually on the question of intercepts becoming admissible evidence. It is one reason why in Maharashtra, the conviction rate has reached 75% plus under MOCA.

9. Bail provision This language of a bail provision, the CrPC normal bail provisions, will not apply: ?That no person will be released on bail unless the public prosecutor has an opportunity or where he opposes the application, there is a reasonable opportunity of believing that the person is innocent and shall not commit an offence. This was the language under TADA.

The language was diluted under POTA.10. Action against police officer .There is a provision that in case any police officer misuses this law for his own personal purposes or for collateral reasons, he will be prosecuted under POTA itself. Several safeguards have been incorporated in the Act to minimize the possibility of its misuse. Some of the main safeguards are as follows:
(i) Investigation of an offence under the Act is to be done by an officer not below the rank of Deputy Superintendent of Police.
(ii) No court can take cognizance of an offence under the Act unless sanction of the State.
(iii) The Act provides safeguards against abuse of the provision relating to admissibility of confession made before a police officer.
(iv) Intimation of arrest of the accused will have to be provided to a family member immediately after arrest and this fact is to be recorded by the police officer.
(v) Provision for prosecution of police officers for malafide actions under the Act and compensation to affected persons in such cases.

The State Government/UT Administrations were advised to ensure that the provisions of this law are used only against the terrorists and not against the innocent. They were also advised to sensitize the police officers and others concerned with the implementation of POTA on the need to ensure its fair and transparent operation and to also install a mechanism to oversee the implementation of the Act.

MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did. Under POTA a police officer found guilty of malafide action could be jailed for up to two years but MCOCA offers no such protection. Finally the law extended to the state of J&K unlike other laws.

Consequences of repeal of POTA-
Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of 1.Ordinance No.1 of 2004, it repealed POTA, a law specially designed to
deal with the menace of terrorism with its repeal, the state apparatus combating terrorism has been debilitated.

2. By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organisations and activities were transferred to the pre-existing milder sounding Unlawful Activities (Prevention) Act, 1967 (UAPA). By Ordinance No 2, the definition of unlawful association has been expanded to also include any association which has for its object any activity which is punishable under Section 153A of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Section 153A is about promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.

3. There would be no arrests made after the ordinance is promulgated.

4. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorists may roam free under the bail a rule, jail an exception dictum. The police will not get sufficient time to interrogate the accused to investigate the cases which, by their very nature, are complex. In Pota, as in Tada earlier, confessions made before a police officer of the rank of superintendent were admitted as evidence.

5. All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act.

6. Some of the clauses contained in POTA, which will be completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer.

7. In another major departure from Pota, the government has removed all traces of strict liability. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question.

8. But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given
more scope than before to plant evidence in the form of interceptions.

9. Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organisations and unlawful organisations. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. But the problem is that the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot, for instance, ban any group for unlawful activities without
having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to
hide special provisions in an ordinary law.

So what remains on the statute books- The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that political parties were not exposed to intrusion by the executive. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India.

Unlawful Activities (Prevention) Amendment Act, 2004
It would however be simplistic to suggest, as some critics did, that the new law has retained all
the operational teeth of Pota or it has made only cosmetic changes. The difference between Pota and UAPA is substantial even as a lot of provisions are in common.

A brief outline of the amended act:
The Act does not define the word
terrorist in its definition clause but defines a terrorist act. The word terrorist is to be construed according the definition of the terrorist act. Terrorist act is defined in the Act as – Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act (Section 15).The above definition did not exist in the 1967 Act. The previous Act only defined and dealt with unlawful activity. An unlawful activity includes an activity which intends to bring about cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India, or which causes or is intended to cause disaffection against India Section 2(o).

Whether an association is unlawful is to be declared by the Central government by giving the grounds for such a declaration. Section 3 Thereafter; it is referred to the Tribunal Section 4. A notice is issued by the Tribunal to the association concerned to show cause why it should not be declared unlawful. To ascertain whether there is sufficient cause for declaring the association unlawful.

For taking cognizance of any offence under this Act prior sanction of the Central or the State government, as the case may be, is necessary. Criminal Procedure Code, 1973, is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours, confessions are no longer admissible before police officers and bail need not be denied for the first three months. The presumption of innocence leaving the burden of
proof on the prosecution has also been restored.

The evidence collected through interception of wireless, electronic or oral communication under the provisions of the Indian Telegraph Act or the Information Technology Act or any law being in force has been made admissible as evidence against the accused in the court Section 46.The amended Act provides for following penalties: Offence Includes Penalty

Being a member of an unlawful association A person who is and continues to be a member of such association, takes part in meetings, contributes to, or receives or solicits any contribution for the purposes of the association or in any way assists the operations of such association. If such person is in possession of unlicensed firearms, ammunition, explosive, etc, capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, and if such act has resulted in the death of any person. In any other case Imprisonment for a term which may extend to two years and fine.

Death or imprisonment for life.
Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment upto one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine.

Imprisonment upto five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts,
the offences and their punishments. Chapter IV, sections 15-22. The following table summarises these provisions:
Offence Punishment Terrorist act Resulting in death of any person In any other case Death or imprisonment for life.
A term for not less than five years.

Raising funds for a terrorist act Term not less than five years. Conspiracy Term not less than five years. Harbouring Imprisonment for not less than three years. Being a member of a terrorist organization The term may extend upto
imprisonment for life.

Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment upto three years.
There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order.

Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. The offences and penalties under this chapter as given below:
Offences Punishment
Membership of a terrorist organization (S. 38) Imprisonment not exceeding ten years. Supporting a terrorist organization (S. 39) Imprisonment not exceeding ten years. Raising funds for terrorist organization (S. 40) A term not exceeding fourteen years.

The Act also provides for protection of witnesses under section 44 such as keeping the their identities secret even in orders, judgments and records of the Court, issuing directions to secure the identity of the witnesses and by imposing punishment for contravention of any such directions.

Conclusion
Various suspicion and voices have been raised by people NGO’s under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and in view of the increasing terrorist activities in the nation more particularly in view of the 9/11 attacks on the World Trade Center which killed more then 3000 people and 13 December attack on the Indian Parliament and large number of terrorist activities not only in J&K, N.E., A.P., and other
areas of our country need for promulgation of POTA type legislation becomes the need of the hour. However there are numerous safeguards to prevent the abuse of above legislation by unscrupulous investigating officers, which are being ignored by various organization professing the repeal of such law. The attention of those who are against this legislation is invited to object and reason for which POTA was enacted. The repeal of Pota is just party politics to gain for their party’s vote bank. If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy.

Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies. Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively. Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure. Learning from this experience, I would urge
the people who are opposing this law to once again reconsider their stand because posterity eventually will decide that this country, for its integrity, sovereignty and unity certainly needs this law. Quite clearly, there is a crying need to fight the menace of terrorism unitedly. Partisanship of any sort in dealing with the ISI-sponsored terror attacks in India should be abandoned forthwith. Today terrorism has reached the heart of India in New Delhi’s Parliament House. And to suggest that preventive detention laws without any safeguards whatsoever against their misuse were required in those relatively peaceful times in
the Seventies and Eighties but are not required now, even with safeguards against their misuse, is to betray a sickening streak of partisanship.

To the extent it detracts from presenting a united front against terrorists, the governments myopic stand on POTO and MCOCA in Delhi represents a greater threat to national unity than even the threat of the ISI-sponsored terror. So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunae’s in the ordinary law because
when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India can have such stringent laws then why can not we have such laws. Indian law as it stands today has come around in strange circumstances as the earlier legislation was found capable of being misuse. This law is less harsh than the previous anti-terrorism laws in India and is not equipped by way of express provision for discretion to deal with a vast variety of terrorist activity or other activities connected with perpetration of terrorism. Therefore I am of the considered opinion that the Prevention of Terrorist Activities Act should be brought back for curbing terrorism and such like activities with a strong arm, which may help in preventing and deterring such activities.