The enactment of powerful nationwide anti-terrorism laws without sufficient safeguards to constrain misuse and ensure national uniformity in their application has led to human rights abuses and disparate patterns of enforcement throughout the country. The main objective of security laws should be to moderate political antagonisms rather than aiding the repressive arm of the state.
COMMENTARY
Trojan Horses: Counter-terror
To secure, especially, the “high priority” internal security, India has relied more on
Laws and Security in India
military option. Political and developmental models have been underplayed. As a
post-colonial developing state, the use of
force came naturally to India. Since ter-
N Manoharan
rorism challenged credibility and legiti-
The enactment of powerful nationwide anti-terrorism laws without sufficient safeguards to constrain misuse and ensure national uniformity in their application has led to human rights abuses and disparate patterns of enforcement throughout the country. The main objective of security laws should be to moderate political antagonisms rather than aiding the repressive arm of the state.
In this essay, “counter-terrorism legislation”, “security laws” and “special laws” are used interchangeably to mean the same.
N Manoharan (mailtomanohar@gmail.com) is with the Centre for Land Warfare Studies, New Delhi.
I
ndia’s long struggle with various forms of politicised violence has created a “chronic crisis of national security” (Gill 2002). Since security is perceived as “an integral component of India’s development process”,1 it has become part of the very “essence of India’s being”. Main sources of insecurity to India are terrorism, organised crime, violence based on communal and caste divides, criminalisation of politics, inequality, etc. Of these, terrorism figures prominently. In fact, I ndia is one of the countries worst-affected by terrorism. In the recent period, India has witnessed more terrorist incidents than any other country in the world.2 However, the international community recognised and acknowledged this only now.
Traditionally, threat to India’s territorial and internal security existed in four main forms: rebellion in Punjab, militancy in Jammu and Kashmir (J&K), insurgency in the north-east of the country, and left wing extremism in its central part. Every case has “a distinct identity moulded by its geopolitical and socio-economic context” (Lal 1999). To these four main forms, a new dimension has come to the fore in the garb of Islamic terrorism with international linkages. External sponsorship to all the above violent manifestations also added to the complexity of the threat.3
The Response Options
India’s national security strategy is still evolving; the evolution has been based on security environment, threat assessment and capabilities to meet those threats. I ndia is yet to have a clear-cut published security strategy to approach both internal and external security threats. A lthough, in recent years, India has been approaching security in a wider sense in the name of “comprehensive national s ecurity”,4 internal and territorial security continues to enjoy high priority over other components of security.
NOVEMBER 14, 2009
macy of the state, military approach came also as a reflex action of what the state knew “best and found convenient to resort to” (Muni 2006). The military approach involved, apart from employment of security forces, extensive use of legal provisions like counterterrorism laws and emergency provisions to strengthen the hands of the security forces. The colonial strategy of “overawing the people” with the use of force continues to this day ( Arnold 1992). For instance, despite various reform proposals, the Police Act of 1861 remains to govern policing throughout India even today. Although the law and order function is bestowed with federal units (states), the Constitution authorises the central government to legislate exclusively on matters involving national security and the use of the military or central police forces to help state civilian a uthorities to safeguard overall internal security of India (Mathur 1982). Pursuant to this authority, the Indian government enacted several laws conferring sweeping powers like search, arrest, and preventive detention authority upon the armed f orces, even authorising them to shoot to kill s uspected terrorists or insurgents. While d oing so, the governments could not resist the pressures to “give short shrift” to fundamental rights of their citizens.
An Overview of Legal Responses
India has a long tradition of anti-terror and other security laws dating back to its pre-independence years. These laws were enacted, repealed and re-enacted periodically since independence, but not going farther from the British tradition. The b asic argument placed during enactment of such special laws is that the existing criminal laws are incapable of meeting emerging threats. That the conventional criminal laws approach crimes as “as an individual infraction violating individual rights” missing out “movements that collectively subvert and disrupt the structures of governance and enforcement
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themselves” (Gill 2002). The impulse to enact special laws, therefore, stems from real and perceived problems concerning the effectiveness of the regular criminal justice system itself, which create intense pressures to take particular offences outside of that system. In this regard, the N ational Human Rights Commission (NHRC) noted that anti-terrorism laws are ostensibly justified because (i) it is difficult to secure convictions under the criminal justice system; and (ii) trials are d elayed (under the regular courts).5
There is, thus, “a tendency towards the ‘routinising of the extraordinary’ through the institutionalisation of emergency powers during non-emergency times and without formal derogation from human rights obligations” (Ramanathan 2004; Jinks 2001).
Justification for counterterrorism laws also drew significantly on prevailing international environment. Especially, in the aftermath of the 9/11 terrorist attacks, pro-terror law arguments got bolstered by the anti-terrorism initiatives of developed countries like the United States and the United Kingdom and stipulations from the United Nations Security Council (UNSC). The UNSC Resolution 1373 explicitly called upon all member states to ensure that adequate anti-terrorism measures are taken to prevent and criminalise the financing or collection of funds for “terrorist acts”, to freeze assets or resources of persons who commit or are involved in the commission of terrorist acts, to prohibit the making of any assets, resources, or services available to persons who commit or are involved in the commission of terrorist acts, to bring to justice any persons who commit or are involved in fi nancing, planning, preparing, or supporting “terrorist acts”, and to legislate separate, “serious criminal offences” proscribing “terrorist acts” under domestic law.6 To monitor states’ implementation and compliance, Resolution 1373 established the Counter-Terrorism Committee (CTC). The resolution called upon states to report their progress towards implementation to the CTC within 90 days and periodically thereafter.7
During the debate on the Prevention of Terrorism Act (POTA) in Parliament, the proponents of the law repeatedly invoked Resolution 1373 to argue that the bill was
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not simply justified on local conditions, but required under international law. A fter Prevention of Terrorism Ordinance (POTO) was promulgated in 2001, for example, the then home secretary publicly stated that the ordinance “implements in part the obligation on member states imposed” by Resolution 1373.8 Upon introducing the bill in Parliament, the then home minister, L K Advani, asserted that the council’s adoption of the resolution prompted the government to conclude it was India’s “duty to the international community...to pass [POTA].”9 Such justification went on to affect the later adjudication of POTA’s legality before the courts. For instance, the Supreme Court of India upheld POTA by stating that because of the Resolution 1373, “it has become [India’s] international obligation...to pass necessary laws to fight terrorism.”10
Categories of Security Laws
As new laws have been enacted in response to terrorism and other threats to security in recent years, they have shared a number of continuities with earlier emergency and security laws, both before and after independence. These laws broadly fall under three categories. In the first category fall nation-wide laws like Preventive Detention Act (PDA) of 1950 which authorised detention for up to 12 months by both the central and state governments if necessary to prevent an individual from acting in a manner prejudicial to the defence or security of India; the Unlawful Activities (Prevention) Act of 1967 and its amended versions of 2005 (that was brought in as a replacement to repealed POTA) and 2008 (amended in the wake of Mumbai attacks on 26 November 2008), the Maintenance of Internal Security Act (MISA) of 1971 that gave wide powers of preventive detention, search and seizure of property without warrants, telephone and wiretapping, etc; the National Security Act (NSA) of 1980 to combat “ anti-social and anti-national elements including secessionist, communal and procaste elements and elements affecting the services essential to the community”;11 the Terrorist Affected Areas (Special Courts) Act (TAAA) of 1984 to establish special courts to adjudicate certain “scheduled offences” related to terrorism in areas
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designated by the central government, for specified time periods, as “terrorist affected”;12 Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985) that defined a series of new, substantive terrorism-related offences of general applicability, which could be prosecuted by state governments throughout the country without any central government designation that the area in which the offence took place was “terrorist affected”; POTO and later the POTA (2002) brought in the charged atmosphere of attack on Parliament in December 2001.
The second category comprises actoriented or area-specific laws, which i nclude Anti-hijacking Act, 1982, that was brought in response to spate of hijackings by Sikh terrorist organisations to deter h ijackers. Armed Forces (Special Powers) Act, No 28 of 1958 was passed on 11 September 1958 to confer certain special powers to the members of the armed forces in disturbed areas in the state of Assam and Manipur, and after an amendment in 1972, it was extended to the whole north-eastern region. The same Act was invoked in the state of Jammu and Kashmir in 1990 under Armed Forces (Jammu and Kashmir) Special Powers Act, No 21 of 1990. Armed Forces (Punjab and Chandigarh) Special Powers Act, No 34 of 1983 enabled the governor of the state to declare the whole or parts of the state as “disturbed”. The aim was to entrust special powers to the security forces to quell violence in the state.
In the third category, special laws in the individual states can be stated. Notable among them include (in the order of chronology): Madras Suppression of Disturbances Act (1948); Bihar Maintenance of Public Order
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COMMENTARY
Act, 1949; The Assam Maintenance of Public Order (Autonomous District) Act (1952); The Assam Disturbed Areas Act (1955); The Nagaland Security Regulation Act (1962); Uttar Pradesh Control of Goondas Act (1970); West Bengal Maintenance of Public Order Act (1972); Jammu and Kashmir Public Safety Act (1978); Assam Preventive Detention Act (1980); Punjab Disturbed Areas Act (1983); Chandigarh Disturbed Areas Act (1983); Gujarat Prevention of Anti-Social Activities Act (1985); Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act (1986); Jammu and Kashmir Disturbed Areas Act (1990); Maharashtra Control of Organised Crime Act (1999); Karnataka Control of Organised Crime Act (2000); Andhra Pradesh Control of Organised Crime Act (2001); Chhattisgarh Special Public Security Act (2005).
Counter-terror Laws and Security
All the above special laws of India are characterised by: Emphasis on protection of state rather than people; over-reaction to the threat posed and far more drastic measures than necessary; hasty enactment without giving much room for public debate or judicial scrutiny; overly broad and ambiguous definitions of terrorism that fail to satisfy the principle of legality; pretrial investigation and detention procedures which infringe upon due process, personal liberty, and limits on the length of pretrial detention; special courts and procedural rules that infringe upon judicial independence and the right to a fair trial; provisions that require courts to draw adverse inferences against the accused in a manner that infringes upon the presumption of innocence; lack of sufficient oversight of police and prosecutorial decision-making to prevent arbitrary, discriminatory, and disuniform application; and broad immunities from prosecution for government officials which fail to e nsure the right to effective remedies (Kalhan et al 2006).
Due to the above-mentioned negative characteristics, counterterrorism laws of India did not serve the very purpose for which they were enacted. Most importantly, they could not help in apprehending the key members of terrorist organisations involved in violence. Instead, the laws were liberally used as “political weapons” to settle scores with political rivals and those who dissented with the ruling regimes. As a result, it removed moderate voices from the scene allowing enough space for the militant ones to fill-in.
The anti-terrorism legislation could not prevent harassment of the innocent civilians. This increased the public discontent and in effect strengthened the belief in repressive nature of the regimes. Consequently, those innocents who got affected due to harassment of security laws played into the hands of the militants to resist “repressive regimes”. As the S upreme Court of India rightly recognised, “terrorism often thrives where human rights are violated”, and “the lack of hope for justice provides breeding grounds for terrorism”.13 The very name “prevention of terrorism” (in POTA) sent wrong signals, especially to the minority communities, who already lost trust in the State. The provisions of these laws entrusted the security forces with enormous discretionary powers, which were blatantly misused. This inflicted more wound by creating “uniform phobia”. Terror laws were seen as part of “grand design for legitimising repression”.
The safeguards in terror legislation were not adequate enough to prevent the misuse. Most importantly, the counterterror laws hid the rot in the entire criminal justice system. The net effect was that these laws quickened the isolation of the affected community and increased the number of sympathisers and recruits of militancy. Those who fled their homes felt more secured in the militant ranks than being at home or at work. Even if some of the youth did not like to join militancy, parents forced them to leave the country or to join any militant organisation just to escape the grip of these laws. The alien ated, as a result, are also less likely to cooperate with law enforcement, depriving the security forces of information and resources that can be used to counterterrorism.
Such a trend is evident in J&K and the north-east of India. Citing the example of counterterrorism in Punjab, Jaswant Singh noted that the singling out of Punjab for emergency treatment may have contributed to the “psychological isolation of beleaguered state” (Singh 1988). This applied to other states of India as well. The enactment of powerful, nationwide anti-terrorism laws without sufficient safeguards to constrain its misuse and ensure national uniformity in its application led to human rights abuses and disparate patterns of enforcement throughout the country. Even developed countries like Britain are not devoid of such a trend.
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NOVEMBER 14, 2009 vol xliv no 46
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When the House of Lords found that legislation permitting the administrative detention of foreign terrorist suspects violated human rights, the senior judge Leonard Hoffmann observed:
Terrorist crime, serious as it is, does not threaten our institutions of government or our existence as a civil community. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory (Dyer 2004).
Since terrorists often deliberately seek “to provoke an over-reaction”, and thereby, drive a wedge between government and its citizens – or between ethnic, racial, or religious communities – adhering to human rights obligations when combating terrorism helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state (Kalhan et al 2006). One reason why state terrorism goes unrecognised is that often it “masquerades as justice” (Tiger 2001). In the words of the Supreme Court of India, “if the law enforcing authority becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself and ultimately it invites anarchy.”14
As the then UN Secretary General Kofi Annan observed, in the name of security, liberties are being sacrificed weakening rather than strengthening common security:
Internationally, the world is seeing an increasing misuse of what I call the ‘T-Word’ terrorism, to demonise opponents to throttle freedom of speech and the press, and to delegitimise legitimate political grievances. The ‘collateral damage’ of the war against terrorism individual bodies and values including damage to the presumption of innocence, to precious human rights, to the rule of law, and to the very fabric of democratic governance.15
Such concerns are more widespread in developing countries when compared to the developed. The main reason for this is the special laws in developing countries undergo less democratic scrutiny compared to the developed states. The institutions in the developing democracies are not adequate enough to conduct such
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scrutiny. This is not to say that the scrutiny is far superior in developed democracies; it is only comparatively better.
While terrorism is destructive of human rights, counterterrorism, its opposite, does not necessarily restore and safeguard h uman rights. These special anti-terrorism laws have not proven particularly effective in combating terrorism. Terrorism has persisted as a problem notwithstanding the presence of numerous special laws, under which few of the individuals charged have been convicted. Ironically, several major terrorist acts, including a ttack on Akshardham temple complex and 2003 Mumbai blasts took place, when POTA was in place. In fact, attack on Indian Parliament on 13 December 2001 took place when POTA was in existence in the form of an ordinance. The Indian state of Maharashtra has had a comprehensive anti-terrorism legislation in place for s everal years. Yet, most of the terrorist a ttacks took place in this state. As Jaswant Singh commented in 1988 on the use of such laws in Punjab,
Unfortunately, [the Indian] government is a classic example of proliferating laws, none of which can be effectively applied because the moral authority of the Indian government has been extinguished, and because the needed clarity of purpose (and thought) is absent. Not surprisingly, therefore, [the government] falls back to creating a new law for every new crime ... and a new security force for every new criminal ... But the primary error lies in seeking containerised, instant formulae; there is no such thing as the ‘solution’ (Singh 1988).
Similarly, a noted human rights lawyer and former attorney general of India observed “[A] liberal democratic system that replicates the methods of terrorists in its anti-terrorist policies threatens to undermine its own foundations” (Sorabjee 1988).
One cannot, therefore, come to a firm assertion that the counterterrorism legislation in India increased overall security in general. On the other hand, they were counterproductive because of significant human rights concerns. As one commentator aptly puts it, “if the purpose of terrorism is to terrorise, that of anti-terrorism is to terrorise more” (Qadir 2001). Some go to the extent of arguing that the danger to democratic values “comes more from our reaction to terrorism than the thing
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itself” (Friedman 2009). As Ignatieff emphasises, “… the historical record shows that while no democracy has ever been brought down by terror, all democracies have been damaged by it, chiefly by their own overreactions” (Ignatieff 2004). Such situations, thus, result in the ultimate paradox of the response of democracies to the threat of terrorism: it is not the terrorism itself, but the reaction to that threat that can destroy the democratic states (Maskaliunaite 2007). Andrew Silke writes in this respect:
Terrorist groups can endure military strikes, ‘targeted assassinations’ and other harsh measures not because the people and resources lost are not important, but because the violence works to increase the motivation of more members than it decreases, and works to attract more support and sympathy for the group than it frightens away (Silke 2005).
Conclusions
As one strategist has noted, “terrorism is not ubiquitous and neither is it uncontainable, but the potential for its occurrence is virtually as widespread as is the manifestation of bitter political antagonisms ... reduce the latter and you will reduce, though not eliminate, the former” (Gray 1993). The main objective of security laws should be to moderate political antagonisms rather than aiding the repressive arm of the state. It should be acknowledged that socio-economic pressures, unmet political aspirations, personal bitter experiences of innocents and their relations with the repressive arm of the state, etc, contribute to the terrorist reservoir. The aim of the terror laws should be to take all these into considerations. As David Fromkin said, “Terrorism wins only if you respond to it in the way that the terrorists want you to: which means that its fate is in your hands and not in theirs”. It is in the hands of the state. As the former UN Secretary General Kofi Annan pointed out, “we should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. On the contrary, I believe that, in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism”.16
Security laws could be one of the “best prophylactics” in countering terrorism
COMMENTARY
provided they plug all loopholes that provide space for human rights abuses. The core counterterrorism strategy should revolve around “less fear-mongering” and “more confidence” (Friedman 2009). Adhering to human rights obligations when combating terrorism, therefore, helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state (Lal 1999). It must be emphasised that attentiveness to human rights concerns is not simply a moral and legal imperative, but also a crucial strategic imperative. Special laws must also seek to ensure that terrorism-related offences are investigated, prosecuted, and adjudicated more effectively, and in turn, bring down the “crisis of legitimacy”. For this, comprehensive reforms are required in the entire criminal justice system.
Notes
1 This came out clearly in the National Security Advisory Board’s document on India’s Nuclear Doctrine.
2 For instance, in 2004, 45% of the total terrorist incidents took place in India. The latest figures in the wake of series of terrorist attacks, especially in urban centres, are more alarming.
3 Interaction with M L Kumawat, Special Secretary (Internal Security) Government of India, 18 July 2008, New Delhi.
4 In his address to the Nation on the eve of 60th Independence Day, President A P J Abdul Kalam, identified four major components of “comprehensive national security”: territorial security, internal security, energy security and economic security.
5 National Human Rights Commission of India,
Opinion in Regard: The Prevention of Terrorism
Bill, 2000, para 6.4. Available at http://www. nhre/nic.in/annexDoe00_01.htm#no2 accessed on 30 July 2009.
6 To be read with UNSC Resolutions 1456 (20 January 2003) and 1566 (8 October 2004).
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ports documenting their efforts to comply with the resolution, with 160 states doing so within nine months of the resolution’s adoption. This record of compliance is particularly striking when compared with the much lower level of compliance with reporting obligations under human rights treaties such as the ICCPR.
8 The Tribune, 11 November 2001. 9 Parliament of India, Joint Session Debates, 26 March 2002. 10 People’s Union for Civil Liberties vs Union of India, AIR 2004 SC 456, 466. 11 Seminarist, “Time to End Abuses”, Seminar, Issue 512, April 2002. Available at http://www.indiaseminar.com/2002/512/512%20seminarist.htm, accessed on 1 August 2009. 12 Under Section 2(1) (h), the TAAA broadly defined a “terrorist” as a person who “indulges in wanton killing of persons or violence or in the disruption of services or means of communications essential to the community or in damaging property” with intent to “put the public or any section of the public in fear”, “affect adversely the harmony between different religious, racial, language or regional groups or cases or communities”, “coerce or overawe the Government established by law”, or “endanger the sovereignty and integrity of India”. 13 People’s Union for Civil Liberties vs Union of India, AIR 2004 SC 456, 465. 14 Kartar Singh vs State of Punjab, (1994) 2 SCR 375, 1994 Indlaw SC 525, p 366. 15 Address by Kofi Annan at the 4688th meeting of the Security Council, 20 January 2003. 16 Kofi Annan’s address to the UN Security Council meeting, 21 January 2002.
References
Arnold, David (1992): “Police Power and the Demise of British Rule in India, 1930-47” in David Anderson and David Killingray (ed.), Policing and Decolonisation: Politics, Nationalism, and the Police, 1917-65 (Manchester: Manchester University Press), p 58.
Dyer, Clare (2004): “It Calls into Question the Very Existence of an Ancient Liberty of Which This Country is Proud: Freedom from Arbitrary Arrest and Detention”, The Guardian, 17 December.
Friedman, Benjamin (2009): “Terrorism Hysteria Watch”, Cato@Liberty, 23 January.
Gill, K P S (2002): “The Imperatives of National Security Legislation in India”, Seminar, April
Gray, Colin S (1993): “Combating Terrorism”, Parameters, Autumn, p 20.
Ignatieff, Michael (2004): The Lesser Evil: Political Ethics in an Age of Terror (Princeton: Princeton University Press), p 80.
Jinks, P Derek (2001): “The Anatomy of an Institutionalised Emergency: Preventive Detention and Personal Liberty in India”, Michigan Journal of International Law, Vol 22, p 331.
Kalhan, Anil et al (2006): “Colonial Continuities: Human Rights, Terrorism and Security Laws in India”, Colombia Journal of Asian Law, Vol 20, No 1, p 96.
Lal, Chaman (1999): “Terrorism and Insurgency”, Seminar, Issue No 483, November.
Maskaliunaite, Asta (2007): “Protecting Democracy from Terrorism: Lesser Evil and Beyond”, Baltic Security & Defence Review, Vol 9, p 15.
Mathur, Kuldip (1982): “The State and the Use of Coercive Power in India”, Asian Survey, Vol 32, No 337, pp 343-46.
Muni, S D (2006): “Responding to Terrorism: An Overview” in S D Muni (ed.), Responding to Terrorism in South Asia (New Delhi: Manohar), p 456.
Qadir, Shaukat (2001): “The Concept of International Terrorism: An Interim Study of South Asia”, Round Table, 360, July, p 333.
Ramanathan, Usha (2004): “Extraordinary Laws and Human Rights Insecurities”, Asia Rights Journal, July.
Silke, Andrew (2005): “Fire of Iolaus: The Role of State Countermeasures in Causing Terrorism and What Needs to be Done” in Tore Bjorgo (ed.), The Root Causes of Terrorism: Myths, Reality and Ways Forward (London: Routledge), p 254.
Singh, Jaswant (1988): “Beleaguered State”, Seminar, Issue No 345, May, p 19.
Sorabjee, Soli J (1988): “Subverting the Constitution”, Seminar, Issue No 345, May, pp 35-39.
Tigar, E Michael (2001): “Terrorism and Human Rights”, Monthly Review, November.
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