COMBATING TERRORISM AND PROTECTION OF HUMAN RIGHTS- STRIVING

 INTRODUCTION

Terrorism is not a new phenomenon. It is known to have existed, in one form or the other, at several stages in the recorded history in almost all parts of the world.After the 9/11 attacks on World Trade Centre in United States and the December 13 2001 attacks on the Indian Parliament, terrorism has assumed new dimensions and has come to threaten the very foundation of modern civilized life. The way these attacks were carried out redefined the term terrorism, however subsequently at the national level front there have been many acts of violence that one finds difficult to identify with.

India is no stranger to terrorism. It has been a long-time sufferer of terrorism, be it in the North-east, Punjab or in Jammu & Kashmir. However, since the last half a decade specially, terrorism has increasingly spread to other parts of the country. Terrorism before 9/11 primarily was restricted to the violence in Punjab, the strife in Jammu and Kashmir and Punjab are some of the activities that were mostly recurring before the attacks however after the 9/11 attack these acts assumed new proportions and with the help of international agencies and groups actively participating terrorism assumed new proportions. Sleeper cells, terrorist modules, crude bombs, frequent bomb blasts in densely populated areas, innocent lives being lost have all driven home the brutal reality of the ‘global jihad’ coming to India. Some may argue that this is terrorism spreading from our own terrorism/militancy-infested areas to the more ‘peaceful’ areas of the country. Be it the attack on Parliament, or the Malegaon blasts, or the serial blasts in Delhi, Ahmadabad, Surat, Mumbai local trains, Guwahati; we seem to follow a now predictable response. It has almost become a ritual now. Politicians come out with lengthy speeches on what should have been and what is; intellectuals, ‘experts’, ‘analysts’ have their own expert solutions, the common man expresses his outrage silently most of the time. And after a few days, all is again forgotten and lost in the humdrum of our daily/busy lives.

Let us first try to define and explore the various definitions propounded by various theorists and scholars. The term terrorism has its root from the word “terror” thus let us move to the meaning of the term terror first. Terror is originated from a Latin term “terreo” which means ‘to frighten’. Though there are ample of definition given of terrorism by different scholars but we will be concentrating on the definitions which will serve the purpose of our paper that is Need for Combating Terrorism and Protection of Human Rights.

Terrorism being for the first time defined in 1931 at the Conference For Unification On Penal Law at Brussels - The intentional use of means capable of producing a common danger that represents an act of terrorism on the part of anyone making use of crimes against life, liberty or physical integrity of persons or directed against private or state property with the purpose of expressing or executing political or social ideas.

The United States defines terrorism as "violent acts" or acts "dangerous to human life" that appear to be intended to

i)                 intimidate or coerce a civilian population;

ii)                influence the policy of a government by intimidation or coercion; or

iii)             Affect the conduct of a government by mass destruction, assassination, or kidnapping.

Similarly, the British Prevention of Terrorism Act of 1974 defined terrorism as "the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear."

In 1988, Schmid and Jongman reported 109 different definitions currently in use among leading academics and based on comments from the academic community, Schemed put forth his own definition which is as follows:

Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individual, group or state actors, for idiosyncratic, criminal, or political reasons, whereby - in contrast to assassination - the direct targets of the violence are not the main targets. The immediate human victims of violence are generally chosen at randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat - and violence-based communication processes between terrorist (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.

On March 17, 2005 a UN panel described terrorism as any act “intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act”.

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”.

However the problem of these definitions with respect to India is that in India day  after day ‘terrorist’ acts under the guise of ‘freedom struggle’, ‘militancy’, ‘inurgency’, ‘naxalism’ are being committed against the State (And innocents) with similar objectives and designs; will then not these acts come under the definition of terrorism.
Thus in pursuance of the above given definitions we can comprehend that terrorism is something which includes state, terrorists, their demands, society, terror effect, innocent victims and most importantly human rights of the victims and human rights of the terrorists while enforcing Anti-Terrorism law.

Much has been said as to what are the possible causes of this dark facet that refuses to go away.  We need not dwell much on the issue as to what exactly is the root cause of terrorism in our respective parts of the world since it is the concern of State policy and would rather be left to the domain of the Executive or Legislative wing of the respective national governments.  As members of the legal fraternity the questions that need to be addressed by us revolve around the conflict, consequential to counter-terrorism efforts, between human rights and the concerns for defence of the State of which we are part.

The conflict stems from the necessity felt for entrusting the law-enforcement agencies with extraordinary powers to meet what is genuinely perceived as an extraordinary situation. The irony is that the first and foremost impact of such measures is felt by law-abiding citizens on account of inroads they make into individual liberties. Civilized people do not expect their governments to enact laws that turn into mere “scarecrow” for the “birds of prey” to use as their “perch”, as Shakespeare had put it[1]. In this scenario, the main concern arises that:-

·                     How we can enter into a terror free civilized society and

·                     How far the fundamental rights of the people including the terrorists can be equally protected in the enforcement of Anti-terrorism Law.

IDENTIFICATION OF ISSUES

In this paper we will be dealing with the issue of combating terrorism in the light of human rights in India. The paper focuses on the aspect of legal provisions of the anti terrorist laws their enforcement and their compatibility with the protection of human rights.

The human rights regime that we follow in India is similar, if not almost identical, to the one that is in vogue in European Union in the form of European Convention on Human Rights (‘ECHR’).  After all, the concept of human rights is universal, resting on the principle that they are sacrosanct bundle of rights vested in human beings so that they can live a dignified life “not by chance or choice but by being human”. As put succinctly in the US Declaration of Independence, these spring forth from self-evident truths “that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness”.  Thus this shows that how much importance should be given to protect human rights.

 On one hand Human Rights are to be protected at any cost and on the other Terrorism, now universally accepted, has cross-border fingerprints.

India’s answers to the bane were initially an endeavor to control through general law. But since the menace reached alarming levels, it escalated into the need for special measures in the shape of enactment called ‘Terrorists and Disruptive Activities (Prevention) Act, 1985’ (commonly known as ‘TADA, 1985’).  The enactment was justified by the Legislature, inter alia in the wake of state of  fear of panic sought to be created and the object of disruption of “communal peace and harmony” sought to be achieved by the perpetrators in certain parts of India.

TADA, 1985 created two new offences, namely “Terrorist Act”[2] and “Disruptive Activities”[3].

Noticeably, in the offence of “Terrorist Act” the offender would have to be imputed with “intent to overawe the government” or “to strike terror in the people” or “to alienate any section of the people” or “to adversely affect the harmony amongst different sections of the people”.  The “disruptive activities”, in order to attract the penal clause, were required to be such as to be intended to disrupt “the sovereignty and territorial integrity of India” or to bring about, amongst others the “secession of any part of India from the Union”.

TADA 1985 established a system of special courts (“Designated Courts”) and placed restriction on the grant of bail unless the Court recorded the existence of “reasonable grounds for believing” that the accused was “not guilty”.  The police were given enhanced powers of detention of suspects; provision was made for protection of witnesses and at the same time it was provided that trials under the law shall be speedy by being accorded “precedence” over other cases.

The above rigid provisions of the Act gives ample of power in the hands of police as well as in the space of judiciary to exploit the people in the name of suspects that definitely results in the violation of the rights of the people no matter whether they are actually culprit of the terrorist act or not.

Though TADA 1985 had been enacted with an intended life span of two years in the fond hope that the hazard would fade out. But it was not to be.  The Legislature thus renewed the law in the form of ‘Terrorist and Disruptive Activities (Prevention) Act, 1987’ (commonly known as ‘TADA 1987’). 

Though with a view to restrict upon the unlimited and special powers of the authorities in TADA, 1987 the legislature introduced a safeguard against abuse of powers given by TADA 1987 to the executive by creating a bar against registration of “First Information Report” (FIR), the starting point of criminal justice apparatus, except after “prior approval of the District Superintendent of Police”[4].

TADA 1987 gave rise to protests by human rights groups questioning the validity of the law on various grounds, mainly that it encroached on certain fundamental rights of the persons arrested and it being an unnecessary departure from the general law arming the executive (police) with unbridled and oppressive powers, without sufficient accountability

 The constitutionality of TADA 1987 was challenged, its provisions were subjected to judicial review by the Constitution Bench of Supreme Court of India in Kartar Singh vs. State of Punjab[5]. The apex court proceeded to temper certain provisions of TADA 1987 so as to bring them within reasonable bounds or to introduce requisite safeguards against abuse. The offence of “abetment” of a terrorist act, under the then existing law, would require the ingredient of “intention or knowledge”. The offence of “possession of specified arms and ammunition”[6] was found to be harsh and, in order to save it from arbitrariness, the Court held that it shall be invocable only where possession was “connected with use thereof”.

After Kartar Singh, validity of TADA was again challenged in R.M. Tewari v. State (National Capital Territory of Delhi)[7]. Thus in spite of the close monitoring of the use of TADA 1987 by the Court, inter alia through review committees, complaints of its gross abuse continued to be raised by various quarters.  The executive, therefore were constrained to draw curtains on the law and thus withdrew TADA 1987 from operation in 1995.

India however continues to face the scourge of terrorism with increasing intensity. The recent terrorist attacks (not mentioning of terrorism in other parts of the world) in Bangalore, Jaipur, Delhi, Assam and Mumbai,  leaving hundreds of innocent people dead besides destroying properties worth thousands of crore rupees gives a clear signal that terrorism is the biggest danger facing India.

Here, it is pertinent to point out that terrorists are not restricted to a single community. Terrorists have no religion. The Malegaon blast, the killing of innocents by LTTE, violence in Chechenya, Africa only reinforce this point. ‘There’- it could be Muslim Jihadist, ‘Here’- Hindu fundamentalist and ‘Somewhere’- it could be Christian Crusaders, with whatever name you call - Terrorism or Armed struggle or Militancy or Insurgency.

 The legislatures of this country both at the Centre and at the state level have recognized the fact that terrorist groups and organizations, having a close inter-linkage with organized crime and having acquired global dimensions, taking advantage of modern means of communication and technology and using high-tech facilities, were able to strike and create terror among people “at will” and that the “existing criminal justice system” was not designed to deal with such types of heinous crimes.

At present there are two laws in force at the national level to combat terrorism, namely the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967.

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 cutting across party affiliations, 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[8]. 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 Union list in the 7th Schedule of the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was the second major act dealing with terrorism specifically. It came into force on 3 September 1987 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 as said earlier, 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.
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  more specially to contain the underworld in Mumbai. 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 Prevention of Terrorism Act, 2002 (commonly called as ‘POTA’) was enacted to make provisions “for the prevention of” and “for dealing with” terrorist activities, in the face of multifarious challenges in the management of internal security of the country and an upsurge or intensification of “cross-border terrorist activities and insurgent groups”.

POTA was a measure introduced by the State to adopt twin-legged strategy, one dealing with the terrorism as a crime, and the other for steps that could be termed as preventive in nature.  Learning from past experience in the enforcement of special anti-terrorism legislation adopted earlier in the country, and conscious of the fact that the extra-ordinary nature of the powers and procedure provided by this new special law were prone to abuse for ulterior purposes by law enforcing agencies and pressure groups, the Legislature declared its intent to prevent such misuse by referring to the fact that “sufficient safeguards” were being engrafted in the law.[9] Though  POTA was enacted in keeping with all the guidelines given by the Apex court of India in Kartar Singh case for providing more and more safeguards against misuse of the special powers[10] given in the Act yet the validity if POTA got challenged in Peoples’ Union for Civil Liberties V. Union of India[11].

The challenge was on the ground the basic human rights were being violated. The view of the Court in this regard is now well known, namely, that the “protection and promotion of human rights under the rule of law is essential in the prevention of terrorism”, involving “court’s responsibility” and that if human rights are violated in the process, it will be “self-defeating”. It would also voice concern that “lack of hope for justice provides breeding grounds for terrorism” and, therefore, in the fight against terrorism “human rights” will have to be respected[12].

It may be added here that POTA also came with a ‘sunset clause’ for expiry at the end of three years but came to be repealed ahead of its time with effect from 21st September 2004.

At present we are having no per se anti terrorism law in our country which can protect the people from the scourge of the terrorism and with it be effectively maintains the decorum of the Human Rights at large.

Provisions of POTA: On 26 March 2002, the controversial anti-terror law, the Prevention of Terrorism Act (POTA) was passed with 425 votes for the Act and 296 against, after a 10-hour debate in the parliament. The intensity of the effects of the bill could be seen very clearly by the rejection of the bill by the upper house of the Indian Parliament leading to a Joint Session of Parliament, a measure that had taken place only the third time in the past. The Indian Ministry of Home Affairs justified the initial Ordinance after the September 11,2001 terror attacks by claiming an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country, despite the fact that the state of Jammu and Kashmir witnessed a decrease in the terrorist incidents taking place in that state. Two years from the enactment of the POTA, a number of issues as to the possibilities of misuse of the provisions of the anti terror law including the targeting of minorities and using it against political opponents had arisen. In Gujarat, all except one of the POTA detainees are from the Muslim minority and in Tamil Nadu and UP too the ostensible anti-terror law has been abused to book, without lucidity and accountability, political opponents and underprivileged communities respectively.

A decade long experience with a previous national anti-terror law, the infamous Terrorist and Disruptive Activities Prevention (TADA) that was in force between 1985-1995 gives legitimacy to the fear that the misuse of such laws evoke among human rights activists, political dissenters and minorities. Under the TADA, the conviction rate was less than 1%, despite the fact that the confessions made to the police, even though being given under torture, were admissible as evidence. India’s ant—terrorism laws have raised significant human rights concerns in the past too. POTA was no exception.

Analysis of some important sections of Pota-

As sai earlier, in the case of People's Union for Civil Liberties Vs. Union of India (UOI), 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.

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.

Devender Pal Singh Vs. State of N.C.T. of Delhi[13] , in this 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.

It was argued that this provision would mean that trade union activity would be affected because whoever disrupts essential supplies would be covered under POTA. However, the opposing view was that trade union leaders are nationalist leaders. Therefore, nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.

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.

In the much talked about case of  Sanjay Duttt v. State through C.B.I [14], 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 the validity of this section - 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

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.

In T.T. Anthony v. State of Kerala[15] it was said that 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.

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.

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. In Vailko’s case, Vaiko the chief of MDMK in Tamil Nadu  was arrested under this Section on the basis of certain remarks. He was reported to have been 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.

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.

 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.

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[16].  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[17] 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.

Section 45 Admissibility of evidence collected through the interception of communication[18] (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, electronic 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 could testify that the average citizen is scared of coming and honestly deposing before these institutions.

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.

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.

 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. 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)[19]. 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.

A secular, inclusive India with modern infrastructure to fight terror is the need of the hour.

PROVISIONS OF OTHER LAWS AND POSITION OF TADA, 1987 AND POTA, 2002- A STUDY IN THEIR EFFICACY.

Though there existed TADA, 1987 from 1987 to 1995 yet between the year 1988 and 1999 the statistics suggest that more than 20,000 people had been killed in the area of Jammu and Kashmir alone. Thus it shows the poor working of anti terrorism laws in India. As regards the laws pertaining to terrorism in India apart from the most significant piece of legislation has been the unlawful activities prevention act, the TADA, 1987, and the POTA , the critiques of India’s policy towards combating terrorism state that the Indian Penal Code probably the oldest legislation prevailing in India and one of the most fundamental offences has in all ;

(1)               waging, attempting or conspiring to wage war against the Government of India (IPC sections 121[20], 121A[21], 122[22], and 123[23]);

(2)                assaulting the President of India (or Governor of a State) with an intent to compel or restrain the exercise of any lawful authority (IPC section 124); (3) waging war against a State at peace with the Government of India (IPC sections 125); (4) permitting or aiding the escape of a state prisoner or a prisoner of war (IPC sections 128, 129, 130); and inciting others to rebel against the State (IPC section 124A). While the above sections of the Indian Penal Code are intended to protect national security in one form or another, the provisions have been incapable of dealing with acts against the state.

(3)               Section 124A of the IPC: Sedition - Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

It is ironic that there are consistent calls for more laws to protect Indian national security, even though there is already a plethora of laws in India under the IPC and the misapplication of these laws suggest that strong legislation are the there to curbed the tendency of acts against the state even though probably the most important piece of legislation has been rendered obsolete due to these misapplication of provisions.

Addressing protection of national security, including general crime prevention legislation.

 Domestic and international human rights non-governmental organizations (NGOs) and useful interventions by the Supreme Court of India, various High Courts, the National Human Rights Commission (NHRC), and the State Human Rights Commissions have documented human rights abuses committed by law enforcement officials.

HUMAN RIGHTS VIOLATION:-

The human rights violations committed by the state and its institutions have been brought to the forefront by both the judiciary and the NHRC. These violations were redressed by compensating the victims of crime and abuse, and in certain cases, by pursuing disciplinary actions against errant officials. The predicament herein is that the violation that has been carried on by the existing laws cannot be remedied by implementing new laws. If we start the legal impact analysis of some of the primary legislations in India we shall come to the conclusion that most of them require serious reviews and proper enforcement of the same.

Some of the important legislations that have been used for regulating terrorism and concerned activities are TADA (Terrorist and Disruptive Practices Act) 1987, Prevention of Terrorist Activities Act, 2002 and Unlawful Activities Prevention Act, 1967. This paper aims firstly at examining these laws and evaluating the grim and grave violations that these laws led to with respect to the human rights of the accused as well as the victims as a whole. The analysis of TADA, The act owes its genesis to Punjab, where in order to fight against the terrorist activities this Act was enacted. TADA depicts grave violations of some of the basic conventions pertaining to international human rights. TADA poses a grim violation of the Article 10; which says that everyone is entitled to full equality to fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.

Article 11 further reads that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has all the guarantees necessary for his defense.”

India is a signatory and party to the international covenant on civil and political rights. However the legislation of TADA is a violent deviation against this global obligation. Article 2(3) of the covenant provides that any person whose rights and freedoms are breached shall have an effective remedy even if the violation is by one in his official capacity. Article 9 objects to arbitrary arrests or detention and the arrestee or the detainee shall be brought promptly before the judge and shall be entitled to trial within a reasonable time or to the release. Article 14 further states that every one shall be entitled to a fair and public hearing by an independent and impartial tribunal. The exclusion of the press and the public are light heartedly ignored by TADA. The judicial response to the same has been in the direction of upholding the basic human rights. Justice Pandian in a case has observed that “it is true that on many occasions we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under the ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. These kind of provisions of the TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the act by the police.” When one recounts the violations that have been inflicted on the human existence one remembers what Oscar Wilde once said,

“ I know not whether laws be right,

Or whether laws be wrong;

All that we know who lie in gaol

Is that the wall is strong;

And that each day is like a year,

A year whose days are long.”

The Act under section 15 provided that a confession before the police officer, even recorded in cassettes and tapes, shall be admissible in the trial of such person. Thus is something which differs from the provisions of Indian Evidence Act, which states that a confession made before the police cannot be used as an evidence against that person. This is an outrage and violates the articles14 and 21 of Indian Constitution, which require that the provisions established by Law must be right, fair and reasonable. Dr A.S Anand in Hitendra Vishnu Thakur once said that “every terrorist may be a criminal but every criminal cannot be given the label of a terrorist only to set in motion the more stringent provisions of TADA.”

If we have a look on the data available to us then we found that under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the total number of detainees was around 76,000. Of these, 25% were dropped by the police without charges; trials were completed in only 35% of the cases and 95% of these trials ended in acquittals. The conviction rate was less than 1.5% and there were reports of human rights violations committed by the police abusing their excessive powers under the Act. This law was allowed to lapse in 1995 after pressure from national and international civil society groups, as well as the UN Human Rights Committee which monitors countries’ compliance with the International Covenant on Civil and Political Rights.

In another  TADA case of 1988 a dispute over the harvest of water-chestnut pond became an excuse for booking leaders of agrarian and democratic struggles under TADA. The main accused in this case was Shah Chand, who along with 13 others was sentenced to life imprisonment imposing TADA on innocent citizens arrested at random which included two children aged 13 and 14 years, as well as local by a TADA court. Shah Chand is the founding secretary of Inquilabi Muslim Conference, and a former mukhiya of Bhadasi village, whose work to introduce innovations in canal irrigation and free development work from corruption was hailed by the official quarters as the “Chand Model”. Shah Chand and 13 others are in jail today, after the Supreme Court upheld the TADA court judgment in which possession of easily available Marxist and Kisan Sabha literature was cited as the sole ‘evidence' for their being “terrorists.

Process of False Implication under the Laws like TADA, 1987 and POTA, 2002

Supreme Court lawyer Prashant Bhushan said that most of the cases of TADA were in states like Gujarat, which were not affected by terrorism. The arbitrariness of TADA is evident from the fact that only one percent of the arrested was convicted. D.K. Basu vs. state of West Bengal that: “State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism: that would only be bad for the state, the community and above all the Rule of Law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto them.”

 In Kartar Singh vs State of Punjab, the Supreme Court in this case expressed serious concern about the sheer misuse and abuse of the act by the police and made an attempt to infuse human rights by devising certain guidelines to ensure that confessions obtained during pre indictment interrogations is in conformity with human rights  principles which the court went on to elucidate the same in the case of Shaheen Welfare Association Vs Union Of India, wherein it was elucidated that the rights under article 21 should be strictly adhered to with. Observing the at times, innocent people had to languish in jail for long periods due to stringent bail requirements, the court stated that it causes irreparable damage to innocent persons who have been wrongly accused of crimes and are ultimately acquitted but have to remain in jail for sustained periods due to stringent bail provisions in TADA.

The prevention of terrorism act, 2002 act was passed subsequent to the law commission report on prevention of terrorism bill, 2000. The moment the act was passed it lead to large scale resentment amongst the human rights activists and the public in general and many petitions were filed in the apex court regarding the same, The petitioners' main argument in this case was that POTA lacked legislative competence and violated Articles 14, 19, 20, 21 and 22 of the Indian Constitution. The petitioners argued that POTA fell, in its pith and substance, under Entry 1 of List-II (the States' List); that is, POTA falls under "Public Order," upon which only the state governments, but not the central government, is competent to legislate.The act like its predecessor in TADA was alleged to violate human rights and the basic tenets of human existence .There is no dearth of reports of it being abused for politically motivated arrests and torture: cases such as Mr. Vaiko, who, when a member of Parliament and a leader of the opposition. In the state of Tamil Nadu, was incarcerated for over a year under this law without any charges being filed in court. Many tribal women and children in the state of Jharkhand, were arrested and placed in custody for long periods under this law. Similarly, many Muslims were held under the law in the state of Gujarat after anti-Muslim riots. The convictions in the state of Punjab under TADA though were miniscule however the number of detentions were alarming, in Punjab there were 14,451 and in the state of 14049 were detained in a peaceful state of Gujarat. It has been argued by opponents that this Act has been used against trade unions and for detaining Sikhs, Muslims, Dalits and political opponents. Over 76000 people were detained under the TADA however the conviction rate is below 1%. The absence of a well formulated legislation is often seen as a reason for anarchy and lawlessness in the society, however the enactment of TADA and POTA have been only a means to abet the human rights violations already prevailing in India. The tragedy doesn’t end here the problem is that on similar lines of TADA, in the year 2002 POTA was introduced inspite of the blatant violations that took place by the operationalization of TADA. India is not the only country that has been facing the problem of balancing national security and human rights. At the United Nations as well as international human rights NGOs, there are serious global efforts to articulate the human rights concerns underlying states' processes in formulating national security policies. After the repeal of the POTA Legislation, the Unlawful Activities Prevention Amendment Ordinance Act, 2004 was promulgated. Under POTA suspects could be detained for 180 days without any charge, a grim violation of basic human rights, then the suspects can now also apply for the provision of bail which was only possible after one year under the POTA Legislation. The POTA act provided that any confessions made during the interrogation were admissible in court which was a deviation from the conditions under the ordinary legal procedure. Another flaw in the legislation of POTA that had been carried on from TADA was the definition of terrorist acts. If we analyze some of the state legislations one is reminded of the Maharashtra Control of Organized Crime Act, 1999, which boasts of a 76% conviction rate as opposed to paltry conviction rates under the central legislations dealing with terrorism. Justice Verma during his tenure as the chairperson of the NHRC , sounding a note of caution suggested that within the constitution both the national integrity and individual human dignity formed core elements and therefore one could not be sacrificed for the other. Strategies to counter terrorism should aim at reconciling human dignity with the countries integrity. In this process he suggested that public interest could outweigh individual interest but not to the extent that anyone of them could be rendered totally redundant.

The NHRC in its annual report suggested that there was no need for enactment of a legislation like the POTA Act, the problem that need to be first addressed before enacting a new law according to the NHRC were:-

a)            Proper investigation of crimes

b)            Efficient prosecution of criminal trials

c)            Long delays in the adjudication and punishment in courts.

The cases under TADA continued to exist long after the act got repealed, the newspaper reports of 1999 suggested that 3000-7000 cases still remained to be decided even 3 years after the TADA had been repealed in the state of Assam, nearly 1000 detenues were in prisons, until 2000, five years after the lapse of the act, trials had yet to be completed in 4,958 cases, of which 1,384 were still being investigated. One of the staggering realities that this act presents before us is that despite total arrests of 26000 only 14 had so far been convicted. The need for defining terrorism assumes great importance in the world today for the simple reason that this year in India in a span of just 11 months more than 65 blasts have occurred and the misfortune is that convictions under these have been negligible.

The NHRC with regards to TADA wrote letters to Parliamentarians  stating that the act depicted certain principal deviations from the regular law. The principal deviations were

a)           Raising the presumption of guilt and shifting the burden on the accused to establish his innocence.

b)           Drawing the presumption of guilt for possession of certain unauthorised arms in the specified areas.

c)           Making confessions before a police officer admissible in evidence.

TADA provided for a long term detention of large number of persons suspected of committing heinous acts against the state without charges being brought against them. According to the union home ministry, the data of October, 1993 depicts that the total number of detentions under TADA was 52,268, the conviction rate of those tried by designated courts under it was .81% ever since the law came into force. Punjab had a conviction rate of .37% out of the 14,557 detainees.

A public interest litigation was brought on behalf of undertrial prisoners charged under TADA. The Supreme Court in the case of Shaheen Welfare Association V Unioin Of India, examined the cases pending in various states and the number of designated courts entrusted with the trial of these cases. The petitioner requested the court for directions:

a)                  Respondents should file a list of detenues lodged in different jails in different states under the TADA,

b)                  For the release of TADA detenues against whom prosecution did not have proper evidence and where the procedure established by law had not been followed.

In Kartar Singh v. State of Punjab, the court observed in this case that the stringent bail provisions under TADA made release difficult, it was necessary that the trial proceed and conclude within a stipulated time. The Supreme Court suggested a pragmatic and just approach involving a four fold classification of TADA detenues on the basis of the degree and manner of their implication by the act, with a corresponding modality of their release on bail. The maximum period allowed for investigation after which bail was permissible was reduced from one year under TADA to 180 days in POTA. The reduction of this period did not improve the conditions of inmates and infact in many cases bail was refused.

One often wonders that the provisions of the Indian Penal Code are there in existence which deal with offences against the state and inspite of that why there is a need for legislations like POTA and TADA.

Thus it clearly shows that false implications of the persons  in the name of Anti Terrorism Laws are there in India that’s why now the time come when we have to be very particular in two things that

·                     A strict Anti Terrorism Law should be there in our country to combat terrorism in India as it is clearly evident from the recent incident of Mumbai terrorist activities case November 26, 2008.

·                     And most importantly provisions of power to the investigating bodies and other important provisions in those Acts should be framed in that crystalised manner that investigating bodies should not be getting an opportunity to exploit the Human Rights of the innocent people at all including the Human Rights of the Terrorists.

It would be better to say that the Human Rights being the very basic rights of the individuals cannot be sacrificed at the altar of enforcement of Anti-Terrorism Laws

CONCLUSION

As regards the requirement of regulating terrorism and safeguarding human rights, it is imperative to make it very clear that terrorism has been the biggest problem today that threatens the basic rights of human existence and development of a nation. In India during this year more than 65 blasts have taken place however the indictments in the same have been negligible, it is quite ironical that in the wake of the blatant violation of human rights of the victims  that lose their near and dear ones in these heinous crimes we talk about the human rights violations under the acts of POTA and TADA, however one often tends to forget the grim situation and the panic that these terrorist acts create in the society, dilute the basic tenets of peaceful existence in a civilized society. One cannot on the same hand deny that there have been flagrant violations under the antiterrorist legislations that are totally unacceptable, however the present scenario of increasing terrorist designs, demands that there has to be a well formulated plan to defeat the ever increasing threats that are demeaning the existence of an individual.

Some of the measures that need to be adopted to fight terrorism are;

Firstly one has to keep in mind that legislations wont help unless there is a sound mechanism that deals with punishing the actual perpetrators of such crimes. The case of afsal guru is a benchmark to establish this measure. The attack on the Indian parliament was nothing short than a catharsis against the democratic setup of india, after the supreme court upholding the validity of death sentence of Afsal Guru, many organisations, groups, even political parties condemned his death sentence and demand it to be quashed. However this according to me is not the solution , as these acts breed more and more instances like Kandhar Plane Hijacking, the ongoing TAJ hostage In Bombay, the hostage situation in Russia and a host of other incidents that are undoubtedly the highest and the darkest acts against humanity.

The next measure is to create a federal agency for combating terrorist activities, even though there are in every state ATS that have been created to control such acts however there has to be FEDERAL AGENCY[24] also the agency should be technically well equipped and it must have minimal political interference that looks into instances of acts against the state. The USA Patriot Act in America by provides appropriate tools required to intercept and obstruct acts of terrorism enacted after 9/11 can be an important piece of legislation to take cue from, the Act allows security agencies to search telephones, medical, financial records. It has created a department of homeland security with the intend to protect internal security from terrorist activities. India too needs a central law enforcement agency to fight terror. Another problem with the India has been the police and intelligence forces which have been highly undermanned, under resourced and primitive in their day to day functioning. 

One of the very important reasons for the terrorist activities continuing in india are the lack of political will and sacrifice of national interests over vested interests. The need of the hour is to strengthen the political will that aims at addressing national interests rather than collecting votes and making exorbitant claims during elections.

One of the arguments that are given for the rise in terrorism is that the families of the falsely implicated persons are the most affected. The atrocities that are committed on the suspects of terror are sometimes so grievous that the members are left with no option but to join and support the terrorist designs, thus acting as breeding grounds for increased terrorist activities. The need therefore is to provide adequate safeguards for the suspects and at the same time ensure that this leverage does not lead to any advantage to the people with nefarious and malicious intentions.

The only option left for us is to break out the cycle of violence. Harmony in our existence depends so much on whether we can break the chain of violence through human values. This requires a serious dialogue between the civil society and the terrorists. This is the immediate response to the act of terrorism and unless we do it or change the approach irreversible mutual hatred will set in. Dialogue could be the option instead of trying to dominate the other by imperialistic fashion. We should remember that “terror only begets terror”. “Dialogue” may sound vacuous but that is not true and misleading. “Listening” is imperative in the context of a struggle between “us” and “them”. The two key topics in this dialogue could be, one, learning from political and religious truth on each side and the other listening from different narratives of recent history. Listening is not easy as it sounds. There is psychological conflict involved in persuading group to listen to each other’s stories and to look for the possibility of a narrative that does justice to the truth of both side. In this there would be a question on moral credibility of bombs in the underground and the cluster-bombing civilian in an illegal war. This is not an easy job as to have peace and justice is no easy job. It involves risk. While one side gains in its intellectual explanation one side may turn out to be less defensive too. We should not reward a terrorist by capitulating to their demands. It is talking and listening. “Never talk to terrorist” is a bad slogan. Talk is not an answer to killing but it’s a beginning to acknowledge the truth in the story of both terrorist and civil society. Unless the civil society and the terrorists sit together and share each other’s point of view in an open and conducive atmosphere the world is bound to see more terror!

A secular and united India which is inclusive is the need of the hour.

[1] “We must not make a scarecrow of the law,

     Setting it up to fear the birds of prey,

     And let it keep one shape, till custom make it