People's Democracy

Editorial

Strengthen Anti-Terror Laws  Without Violating Federal Structure

AS we reach our readers, in all likelihood, both the Houses of Parliament would have legislated, both, the creation of the National Investigation Agency (NIA) and significant amendments to The Unlawful Activities (Prevention) Act. Strangely, while introducing both these legislations together for a common consideration and adoption, the home minister, on December 17, 2008, assured the Lok Sabha that the government is prepared to revisit these legislations in February 2009 when the parliament is likely to re-convene. This being so, the government could have conveniently referred these Bills to the parliamentary standing committee, which has representatives of all major political parties in parliament for a closer examination of the provisions. The UPA government, however, has chosen to legislate such crucial Bills obviously with the intention to display its concern and response to the Mumbai terrorist attacks negating its own considerations which led to the repeal of POTA in 2004.

We, along with all Indian patriots, are both concerned at the growing terrorist attacks and right earnestly seek to set in motion urgently the required laws and mechanisms that will improve India�s capacities to prevent such terrorist attacks. From the Mumbai experience, it is clear that there is an urgent need to evolve a mechanism where the activities of various intelligence gathering agencies and security authorities are more efficiently coordinated. (This aspect, however, is not covered by either of these two legislations.) Further, as various investigations into terrorist attacks, in the past, across the country have shown to transgress the borders of any one state, or even Indian borders, it has become necessary to create a Pan-Indian investigation agency.

While this objective has to be urgently met, there is an equally compelling objective of not violating or compromising the powers of the states and the consequent federal structure under our Constitution. It is, therefore, necessary that (as law and order is in the State�s List of our Constitution) the state governments be associated with any investigation that the NIA undertakes. The legislation establishing this agency lists a Schedule of eight Acts that shall fall under its purview. For offences committed under any of these Acts, the NIA can, if necessary, take up the investigation, suo moto. The association of the state government is, therefore, purely discretionary. This is likely to be misused, on any future occasion, by the central government to bypass the state governments and initiate independent action.

In order to prevent such a potential for misuse, the CPI(M) has suggested concrete amendments to the Schedule (defining NIA�s jurisdiction containing eight Acts) by seeking to create `Schedule A� and `Schedule B�. The former will contain six Acts like the Atomic Energy Act, the Anti-Hijacking Act, Maritime Navigation etc which fall under the purview of the central government. Schedule B should contain the other two Acts � the Unlawful Activities (Prevention) Act and certain sections under the Indian Penal Code. Normally, the implementation of these Acts and Laws falls under the purview of the state governments. The CPI(M)�s amendments are aimed at ensuring that any investigation of offences committed under Schedule B will necessarily associate the state governments. This would ensure that the objective of a Pan-Indian investigation agency would be met without transgressing the federal character of the Indian Constitution and the rights of the states.

As regards the amendments to The Unlawful Activities (Prevention) Act, there are three clauses which have the potential of being grossly misused. These provisions, in fact, have been brought back from the repealed Prevention of Terrorism Act (POTA). The first of these, contained in clause 43 D, seeks to amend section 167 of the Criminal Procedure Code (CrPC) to extend the period of detention without bail to 180 days beyond the existing periods ranging from 15 to 60 to 90 days. The maximum 90-day period is now proposed to be increased to 180 days if the courts are satisfied that such extension is required to complete the investigation.

Given the experience of both the TADA and the POTA where the conviction rate was abysmally low, such a provision can be grossly misused. In the case of TADA, which was enacted specifically to meet the Punjab experience of terrorism, the conviction rate was a mere 2 per cent amongst the over 15,000 arrested in Punjab alone! Likewise, the POTA Review Committee had recommended the release of almost all arrested (due to lack of sufficient justification to invoke POTA when other existing laws would have sufficed) under this Act in Godhra, Gujarat. The CPI(M) has proposed an amendment to delete the proposed extension of the period of detention to 180 days.

Much is being said about the manner in which the USA has enacted tough anti-terror laws after 9/11. In the USA, no citizen can be kept under detention beyond two days without charges being framed. In the UK, after a heated debate in its parliament, with the House of Lords returning the legislation once, the period of detention could not be increased from 28 to 56 days. Despite the international outcry against draconian provisions of detention without the framing of charges, the UPA government is proposing to increase the period of detention from 90 to 180 days.

The second clause is 43 E, which completely reverses the civilisationally accepted norm of jurisprudence : a person is innocent until he is proved to be guilty. Under this clause, any person charged with an offence on the basis of some material (like finger prints etc) found at the site of the offence will be presumed to be guilty unless he proves his innocence. The CPI(M) has sought amendments to this clause to the effect that the evidence thrown up by the investigation will be evaluated by the courts for corresponding punishment.

The third clause is 43 F (2). This concerns with the failure to furnish or deliberately furnishing false information, by any entity including individuals, when sought by an investigating officer not below the rank of Superintendent of Police is liable for punishment with a three-year imprisonment, or with fine, or with both. This has the potential for gross misuse. The CPI(M) has sought amendments that under such circumstances, the accused will be subjected to punishment as decided by the courts.

If these amendments were accepted by the government, then these legislations would have better served the purpose of strengthening investigations of terrorist crimes, minimising the potential for the gross misuse of its provisions violating human rights.

As the NIA Bill defines its objective �to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India ��, it is hoped that this would cover all expressions of terrorist violence, including communal and chauvinistic, that continue to plague and torment contemporary India.

(December 17, 2008)