Following the late November terror attacks in Mumbai, India has passed two tough laws being seen by rights activists as potentially eroding the countrys federal structure and limiting fundamental liberties.
Parliament meeting under the shadow of the November 26-29 attacks on Indias commercial hub resulting in close to 200 deaths approved the legislation on Thursday with no considered debate and the ruling United Progressive Alliance (UPA) of Prime Minister Manmohan Singh pushing them past amendments tabled by several parliamentarians.
One law, the National Investigation Agency (NIA) Act, seeks to establish a new police organization to investigate acts of terrorism and other statutory offenses.
The other, the Unlawful Activities (Prevention) Amendment (UAPA) Act, radically changes procedures for trying those accused of terrorism, extends the periods of police custody and of detention without charges, denies bail to foreigners, and the reverses the burden of proof in many instances.
Civil liberties activists and public-spirited citizens are appalled at the new laws, which they describe as draconian and excessive in relation to the measures India really needs to take to fight terrorism.
"The UAPA Act is particularly vile, and will have the effect of turning India into a virtual police state," says Colin Gonsalves, executive director of the Delhi-based Human Rights Law Network. "It basically brings back a discredited law, the Prevention of Terrorism Act of 2002 (POTA), except for admitting confessions made to a police officer as legal evidence."
POTA was an extremely unpopular law, which the UPA government abrogated upon coming to power in 2004 in response to innumerable complaints of its selective and discriminatory use against India’s Muslim minority, and its cavalier and irresponsible application to offenses not even remotely connected with terrorism.
While rescinding POTA, the UPA kept in place all of India’s criminal laws, which are much stricter than those in many democracies.
In addition, it also enacted an amendment to the Unlawful Activities Act, 1967, which increased punishment for committing acts of terrorism and for harboring terrorists or financing them, enhanced police powers of seizures, made communications intercepts admissible as evidence, and increased the period of detention without charges to 90 days from the existing 30 days.
However, this was not enough to please those who want a "strong" militarized state which will prevent and punish terrorism by violating the citizens fundamental rights, including the right to a fair trial, and not to be detained without charges.
India’s main right-wing political group, the Bharatiya Janata Party, has been stridently demanding that POTA be reenacted. Until recently, the UPA, the Left and other centrist parties stood firm in rejecting the demand despite the numerous terrorist attacks that India has suffered over the past few years.
"But now, the UPA has suddenly, and shamefully, caved in to the BJP’s demand under the pressure of elite opinion," says Jairus Banaji, a highly regarded Mumbai-based social scientist. "The capitulation seems to be based on the UPAs anxiety to counter the BJP’s ridiculous charge that it lacks the will to fight terrorism, and on its political calculations about the next general election due by May."
In its desperation to be seen to be taking a tough stand against terrorism, the Manmohan Singh government also tabled the NIA Bill earlier this week. The new agency will specifically investigate offenses related to atomic energy, aviation and maritime transport, weapons of mass destruction, and Left-wing extremism, besides terrorism.
Significantly, it excludes Right-wing terrorism, which has become a greater menace in India.
Unlike the existing Central Bureau of Investigation, which needs the consent of a state before investigating crimes there, the NIA will not need a state’s concurrence. This is a serious infringement of the federal system, where law and order is a state subject.
Many state governments and regional political parties have sharply criticized the Act on this count. In India, Central agencies are politically vulnerable to manipulation by New Delhi and often used to settle scores with states ruled by opposition parties.
The NIA Act also provides for special courts to try various offenses This too has drawn criticism from eminent lawyers such as Rajeev Dhavan, who argues that the potential misuse of this anti-terror legislation will now "come from both the states and the union, which can hijack the case."
The UAPA Act contains a number of draconian clauses, and is also applicable to the entire country unlike the Unlawful Activities Act, which was originally not extended to the strife-torn state of Jammu and Kashmir. This too has drawn protests from Kashmir-based political parties and human rights groups.
The stringent clauses cover a broad range, including a redefinition of terrorism, harsh punishment extending from five years imprisonment to life sentence or death, long periods of detention, and presumption of guilt in case weapons are recovered from an accused person.
The new definition now includes acts done with the intent to threaten or "likely" to threaten the unity, integrity, security or sovereignty of India, and offenses related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government. Dhavan says: "The list is potentially endless."
Under the Act, an accused can be held in police custody for 30 days, and further detained without charges for 180 days, although courts can restrict the period to 90 days.
"This is a travesty of constitutional rights and the rule of law," says Gonsalves. "Even worse is the presumption of guilt in case there is a recovery of arms, explosives and other substances, suspected to be involved, including fingerprints on them. The police in India routinely plants such arms and explosives, and creates a false record of recovery."
"The very fact that offenses such as organizing terrorist training camps or recruiting or harboring terrorists carry a punishment as broad as three or five years to life imprisonment shows that the government has not applied its mind to the issue, Gonsalves added.
Under the Act, there is a general obligation to disclose any information that a police officer of a certain rank thinks is relevant to the investigation. Failure to disclose information can lead to imprisonment for three years. Journalists are not exempt from this.
Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals, and mandates a refusal of bail to anyone if a prima facie case exists, which is decided on the basis of a First Information Report filed by the police.
POTA and its predecessor, Terrorist and Disruptive Activities (Prevention) Act (TADA), were extensively abused. They typically targeted the religious minorities, specifically Muslims, and allowed for their harassment and persecution.
The TADA story is especially horrifying. Some 67,000 people were arrested under it, but only 8,000 put on trial, and a mere 725 convicted.
Official TADA Review Committees themselves found the laws application untenable in all but 5,000 cases. In 1993, Gujarat witnessed no terrorism, but more than 19,000 people were still arrested under TADA.
Religious minorities were selectively targeted under both Acts. For instance, in Rajasthan, of 115 TADA detainees, 112 were Muslims and three Sikhs.
Gujarat had a worse pattern under POTA, when all but one of the 200-plus detainees were Muslims, the remaining one a Sikh.
The passing of the two new laws is certain to increase the alienation of India’s Muslims from the state. They have been the principal victims of India’s anti-terrorism strategy and activities in recent years.
Muslims are first to be arrested and interrogated after any terrorist incident, even when the victims are Muslims, and although strong evidence has recently emerged of a well-ramified pro-Hindu terrorist network, in which serving and retired army officers were found to be key players.
Muslims also distressed at the alacrity and haste with which the new laws were passed, especially since it contrasts with the UPA governments failure to enact a law it promised five years ago to punish communal violence and hate crimes targeting specific religious groups.
"This will pave the way for more disaffection amongst Muslims and make the social and political climate more conducive to terrorism," argues Gonsalves. "Even worse, it will promote excesses of the kind associated with state terrorism. And that is no way to fight sub-state terrorism."