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The Imperatives of National Security
Legislation in India
There is little need to elaborate
on the assertion that there is a current and chronic crisis of national
security in India. An unending succession of events has made this far
too obvious to demand argument or illustration. Terrorism, organised
crime, caste and communal violence, the immense and increasing criminalisation
of politics, the growing numbers of the poor and rootless, accumulating
pressures of population and consumerism on limited natural and national
resources, and a widening area of abject non-governance – once associated
only with Bihar – have all combined to make internal security the most
urgent issue of our time. Where optimists find some evidence of improvement,
such illusions are brutally swept aside by some new crisis. The record
of declining communal violence over the past decade was one such datum
that lulled some into a sense of temporary security and a feeling that,
at least on some variables, there was a positive process of political
evolution – till Godhra and the carnage in Gujarat reminded us of how
close to the edge we actually live.
There are, of course, many and complex
reasons for the state of permanent and rising tensions that has become
the essence of our way of being. One, at least, of the most significant,
is the progressive collapse of India’s justice system. The truth is,
today, the link between crime and punishment has almost entirely been
severed. This is true for almost all types of crime, but is most unambiguously
the case among those who harness criminal violence to political or sectarian
ends. Here, even the moral imperative of punishment is compromised,
if not rejected, as every case becomes an exception to the rule. Perverse
arguments of a populist sanction are advanced to protect political players
from criminal prosecution; and Prime Ministers meet, or send their emissaries
to negotiate with, terrorists, warlords and mass murderers. We have
turned our laws into shibboleths, and the idea of the rule of law has
been all but abandoned.
To make matters infinitely worse,
the courts have taken the promise of justice and transmuted it into
a leaden ritual that punishes innocent and guilty alike through its
interminable delays. In areas afflicted by widespread terror or persistent
mass violence, a bare pretence of judicial process survives. In nearly
14 years of strife in Jammu & Kashmir (J&K) there have been
just 13 convictions in cases related to terrorism, of which eight concern
relatively minor offences such as illegal possession of arms or illegal
border crossings. This is the judicial record in a state where 30,750
people have been killed in the conflict between 1988 and 2001, 11,377
of them civilians.
This failure is compounded by a
blind commitment to rhetorical and politically correct formulae – ‘human
rights’ and ‘natural justice’ among the most prominent – and to an arid
legal formalism without the faintest concern for the actual ends these
secure. To take a crude illustration, the judiciary has stubbornly insisted
that it is procedurally correct in repeatedly enlarging terrorists and
criminals on bail. If they jump bail and murder people, that is not
their responsibility, for a man may not be incarcerated unless he is
proven guilty beyond doubt – a process that, in this country, usually
takes close to five years, and may take up to thirty. In terms of criminal
action and terrorist strife, this is an eternity; it is an unqualified
licence to kill. For while the learned legal community is entertaining
all manners of possible doubts, the man whose ‘freedom’ they have upheld
goes out and murders any number of innocent people. But the judge’s
conscience is clear. He has followed the letter of the law and defended
the supposed citadel of human rights.
This abdication of responsibility
goes much further. Indeed, in situations of persistent mass violence,
the entire system of civil administration is effectively suspended.
The only agencies of the state that continue to function, at varying
levels and with varying degrees of effectiveness, are the uniformed
services – the police, the paramilitary forces and the Army – and it
is these services that come in for the greatest measure of abuse and
harassment once a degree of order is restored. With the agencies of
civil administration either withdrawing from areas afflicted by widespread
violence, or even evolving complicit arrangements with the forces of
violence and subversion, the entire gamut of the tasks of development
and governance are simply abandoned.
These are natural consequences,
on the one hand, of gradual processes of erosion within all institutions
of government in the country and, on the other, of dramatic transformations
in the nature and range of the internal security threats that confront
the modern state. The tectonic shift in the character and scale of these
threats was brought home dramatically by the 9/11 attacks in USA, as
also by mounting evidence thereafter that many terrorists groups have
been exploring the possibilities of the acquisition and use of a range
of weapons of mass destruction (WMD). What is needed, consequently,
is a comprehensive reappraisal of all contemporary threats to national
security, and a refashioning of the nation’s responses in terms of the
legislative and institutional framework, and of executive action.
Underlying any such reassessment
must be a clear understanding that, today, very small minorities can
directly and significantly threaten, undermine and, through determined,
persistent and extreme violence, even destroy the edifice of the state
and the integrity of the nation – and this is especially true where
they act with foreign support and safe havens. The arguments that the
manifestations of terrorism are located in ‘root causes’ of poverty
and popular discontent, though they may have some grains of truth, are
consequently far from an accurate reflection of reality. Terrorist movements
today can be sustained by minuscule groupings, sometimes composed entirely
or predominantly of foreigners, often exclusively supported by hostile
states, and increasingly indifferent – if not inimical – to the hopes
and aspirations of local populations [More than 85 per cent of the civilian
victims of terrorism in J&K, for instance, are Muslims, something
of a problematic for ‘Islamic mujahiddeen’ to consistently explain
away in terms of a ‘struggle to protect oppressed Muslims’].
Unfortunately, on every occasion
when the issue of internal or national security legislation, or any
of its components, such as counter-terrorism legislation or legislation
against organised crime, have been discussed in the recent past, an
entirely irrational, even hysterical response has greeted any such proposals,
and it has generally been argued that the IPC is capable of dealing
with every existing and emerging challenge. This is interesting, and
ascribes to the IPC something of a sacred and immutable character –
which no statute book in a changing world can ever enjoy. This is particularly
the case where patterns of criminal action have assumed proportions
that undermine the very fundamentals of the institutions of democracy
and of civil society. It is high time we understood the dangers and
possibilities of a terrorised society, and the inadequacy of
the conventional law – which approaches criminal conduct as an individual
infraction violating individual rights – to deal with movements that
collectively subvert and disrupt the structures of governance and enforcement
themselves.
Confronted by such movements demands
not only ‘more stringent’ laws, but real-time legislative responses
that accommodate each significant transformation of criminal conduct.
We may disagree with the basics and content of such legislation, but
the speed and proportions of the American legislative response to the
9/11 attacks, and before these, to the attacks on the World Trade Centre
in 1993, are what will be necessary if democracies are to defend themselves
effectively against fanatical forces that accept no limits of law or
conventional morality on the violence they are willing to inflict on
others to secure their ends. This does not imply a blind and submissive
acceptance by all Americans to every legislative excess of the Bush
administration, and a vigorous democratic discourse is certainly in
evidence on the new legislation, and its provisions can be expected
to be amended and diluted over time, and in the light of the evolving
experience. What is missed, however, is the fact that this swiftness
and scale of response made it possible to avert many potential follow-up
strikes that had evidently been planned by the al Qaeda, and as new
cells and evidence is uncovered, it is clear that at least some lives
have been saved and possible catastrophes averted, without extraordinary
and irreversible harm being inflicted.
The point here is that the unending
search for an elusive ‘consensus’ that has stalled all national security
legislation in this country, even as criminal audacity expands exponentially
in a legislative vacuum, is an unacceptable and potentially disastrous
response to the rising crises that confront us. Parties will have to
rise above partisan interests and legislate on crucial issues in this
context, and will have to do so quickly in order to stem the rising
tide of anarchy and the growing power of those who threaten not only
the state, but civilisation itself. All such legislation would and must
remain open to amendment in the light of evolving experience – and such
processes of review must not be structured around a one-time and all-or-nothing
approach that has characterised debates in the past. If elements of
a law are found to be susceptible to abuse or to have caused unacceptable
hardship to the innocent, these – and not the law in entirety – must
be rejected and redrafted.
None of this implies any dilution
in our national commitment to human rights. It means, conversely and
precisely, a review of the institutional mechanisms and processes for
the protection of these rights to ensure that it is these that are,
in fact, protected, and that their protection does not inadvertently
extend to criminal intent and operations. If we are to take human rights
even half-way seriously, we will have to recognise that terrorism, low
intensity warfare and their linkages with organised crime have created
new and unprecedented dangers to the unity and integrity of the country,
to the survival of democratic governance, and to the very possibility
of human rights. It is, consequently, necessary to devise new laws,
procedures and processes that help contain this menace and protect the
people from the depredations of a merciless and utterly unprincipled
enemy. Unfortunately, there is a new ‘high priesthood’ that would have
us believe that, as long as the tedious rites and rituals of the judicial
yagna are fulfilled, all the interests of justice are served
– no matter how many people are slaughtered in the streets.
It must, of course, be accepted
that the possibility of abuse of laws will always exist, and we will
have to define safeguards with each legislation to limit the possibility
and scope of such abuse. We must, however, understand at the same time
that weak laws, or the absence of appropriate legislation, yields greater
dangers, both of the victimisation of innocents by wrongdoers, and –
bluntly put – in the form of resort to extra-legal solutions by those
charged with the protection of lives and property, and the preservation
of order. Without order, and without a concomitant security of life
and property, there can be no freedom and no rights.
National Security Legislation is
not just a question of definition of crimes or new patterns of criminal
conduct and the prescription of penalties. It relates to the entire
system, institutional structures and processes that are required to
prevent and penalise such crimes, to preserve order, and secure the
sphere of governance. The mounting failure on these counts is clear
evidence that the system has deficiencies – and this should be sufficient
grounds for a pragmatic and comprehensive reassessment.
Defining – and perhaps constantly
redefining – possible legislative solutions to our present predicament
will demand enormous sagacity on the part of the nation’s collective
leadership. It is neither possible nor the intent, here, to enumerate
some simple solutions or preconceived formulae that will magically resolve
all problems. A fair beginning can, however, be made if the areas that
demand urgent legislative attention and reform are reasonably and clearly
identified.
- A comprehensive set of counter-terrorism laws,
as well as laws to combat organised crime must be drafted and given
a permanent place in our statute books. Terrorism and organised crime
are not transient crises, but have emerged as stable long-term threats
to national security, and it is delusional to believe that ‘special’
and temporary laws are adequate to deal with the problem. The proposed
laws would need to take into account, at least, the following areas
of concern:
- A clear conceptualisation and definition of
the complex patterns of crime that constitute ‘terrorism’ and ‘organised
crime.’ It is crucial, here, to bear in mind that these are unique
categories of criminal behaviour. While the actions – murder, intimidation,
extortion, possession and use of illegal arms, etc. – that terrorists
and organised criminal gangs carry out may be separately covered
by existing laws, their character and context is fundamentally transformed
by the element of massive, often transnationally co-ordinated activities.
The threat these activities constitute, and the damage they inflict,
is incalculably greater than any pattern of individual criminal
activity – the whole, to borrow the gestaltist principle, is greater
than the simple sum of its parts. These threats can only be contained
if this is explicitly recognised, and legislation targets not only
the executioners of terrorist action, but the entire network of
support that makes such action possible.
- The transfer and use of illegal revenues is
the lifeblood of both terrorism and organised crime, and stringent
laws must be devised to deprive criminal and subversive groupings
of funds. This will require the implementation of harsh penalties
on illegal transfers and money laundering, as well as the criminalisation
of a range of economic offences, including the use of such resources
in legitimate businesses.
- The activities of the ‘fellow travellers of
terrorism’ must also be brought under scrutiny. This includes a
range of front organisations, political actors, non-governmental
organisations, businesses, etc., who provide the needed ‘overground’
support that makes the ‘underground’ activities of extremists possible.
- The framework of counter-terrorism policy must
be clearly articulated. This is not just a question for the political
executive to determine, some limits of law must be placed on what
is or is not permissible. Elected governments have, in the past,
made every principle of rule of law and constitutional governance
negotiable under threat of terror. Statutory limits must now be
placed on how much governments can actually ‘put on the table’ or
‘negotiate’ in such situations. The present system has created a
structure of incentives that actually reward terrorists and extremists,
and this will have to be dismantled. Those who intercede with terrorists
on the government’s behalf must also be statutorily prohibited from
any negotiations or commitments that would require constitutional
changes. Such changes are an exclusive prerogative of Parliament,
and cannot be offered or discussed by any emissary of government
without prior Parliamentary approval.
- Existing ‘surrender’ policies must also be
brought under statutory review. Current practices have created more
problems than they have solved. There must be some limitations on
the ‘rewards’ and incentives that attach to the surrender of terrorists,
to amnesty or dropping of prosecution for criminal offences against
those who surrender, etc., and practices must be brought in line
with the principles of the rule of law.
- There is now a strong international mandate
for effective laws against terrorism, and this includes various
United Nations resolutions that impose a duty on all member states
to legislate effectively to control the activities of terrorists
and their support organisations. It is now time to bring Indian
laws into conformity with this mandate, and also to establish efficient
structures of international co-operation and exchange of intelligence
to counter the international threats and networks of terrorists
and organised crime actors.
- The burgeoning wave of terrorism that is sweeping
across the country – and indeed, the entire world – demands a suitable,
coherent and comprehensive ‘use of force’ doctrine. It must be clear
that the ideas and orientation that were devised to deal with civil
riots and transient political violence, are entirely inadequate
to confront the scale, intensity and character of contemporary terrorist
violence. As the lethality and the linkages of terrorist groups
grow, this orientation will become more and more a hindrance to
a co-ordinated and effective response.
- Terrorism and low intensity warfare have imposed
new structural challenges on law enforcement that we are yet to
accommodate even at a conceptual level. Our police and paramilitary
forces continue to operate under mandates and legal provisions drafted
by the British colonial government, and these have, at best, been
tinkered with after Independence. The Evidence Act is another anachronism
in need of urgent amendment, and must swiftly incorporate the use
of emerging technologies and devices in the prosecution of crime.
- Although low intensity wars and widespread
terrorism have ravaged many parts of the country for decades now,
these conflict are still conceived of by the national leadership
and the so-called ‘intelligentsia’ as ‘non-military threats’, and
an ill-equipped Home Ministry is required to deal with them. The
entire orientation to low intensity conflicts is of ‘emergency deployment’
– stop-gap arrangements to deal with what are still thought of as
transient emergencies. The result is that the Army is repeatedly
called out in these conflicts, supposedly to ‘aid civil authority’.
The fact is, neither the police nor the army, by virtue of their
basic orientation and training, is properly equipped to handle these
crises. In view of the future threat potential of low intensity
wars, it is crucial that a radical reformation of internal security
forces be initiated, creating the skills, knowledge, attitudes and
infrastructure necessary to confront this danger, and possibly raising
entirely new forces to grapple with this specific hazard.
The parameters within which each agency of
government must respond to such challenges need to be clearly assessed,
and the powers, the range of extraordinary actions permitted in these
situations, and the applicable legal criteria and context of evaluation
of these actions - whether these are the same as those applicable
in peacetime or are to be akin to articles of war, or are to be redefined
in terms of the new category of ‘low intensity wars’ – have to be
clearly determined and suitably legislated. In the absence of such
legislative intervention, enforcement agencies and security forces
will continue to fight with their hands tied behind their backs –
and this situation is not only entirely unacceptable, it is suicidal.
- The legislative framework must provide for the
suppression and containment of subversive and extremist activities
by religious institutions and organisations. The present system has
made a ‘holy cow’ out of any group or organisation that claims religious
inspiration or affiliation, virtually placing these outside the bounds
of the law. While Constitutional freedoms, including the freedom of
belief, must be vigorously protected, the abuse of such freedoms for
activities and ends that lie outside the intent and objectives of
these Constitutional provisions must be punished with equal vigour.
This will be something of a tightrope, but it has to be walked.
- Existing provisions and penalties on mass communal
violence are also far from sufficient. The record of convictions for
major riots in this country is abysmal. Even where thousands have
been killed – as in 1984 – there have been virtually no convictions.
This is not just a matter of ‘political will’, but is, in fact, evidence
that existing laws are insufficient. Current provisions look upon
the riot as an individual transgression. There is no legal instrument
available to contain the processes of violent religious mobilisation
and engineered mass riots. Worse, where political and state collusion
are a fact – as they inevitably have been in most recent cases of
mass rioting – there must be some overriding legislation that initiates
mandatory processes of prosecution and extraordinary penalties.
- Border management and the illegal movement of
populations across international borders is another problem that has
been neglected for decades in search of a ‘consensus’ that will never
be found. In the interim, the demographic destabilisation that has
taken place, particularly in India’s Northeast, has already resulted
in enormous violence, and threatens to acquire proportions that are
far more dangerous to the nation’s security and integrity than any
existing threat. This is, again, an area that demands immediate legislative
attention and the imposition of statutory obligations on governments
to prevent and punish such illegal movements of populations.
- As noted earlier, there is a complete abdication,
indeed collapse, of judicial and civil administrative accountability
in situations of persistent mass violence and terrorism. Legislative
provisions and statutory penalties are necessary to ensure that judicial
and government officers who fail to meet their constitutional obligations
under threat or fear are penalised and removed from their positions,
and that the institutions of civil governance do not systematically
collapse at the first signs of personal risk to the privileged cadres
of these instrumentalities of the state.
- Judicial Reform: No system that arrives at a
decision after a litigation process that can extend over decades delivers
anything that could deserve the title of ‘justice’. If judicial action
is to have any deterrent impact, especially on the hardened cadres
of terrorist and organised crime groupings, the link between crime
and punishment must be swift and inexorable. The present judicial
system is simply incapable of securing the levels of efficiency and
delivering the quality of justice that are required to counter and
contain these enormous threats to national security, not does it manifest
the will or the inclination to set correctives in motion on its own.
Such correctives, consequently, will have to be legislatively defined
and imposed. If done with intelligence and without partisanship, this
would be entirely consistent with Constitutional provisions and the
provisions relating to the independence of the judiciary.
- A proposal to establish a Central Law Enforcement
Agency has been languishing with government for some time now, once
again, in search of the ‘elusive consensus’. It must be recognised
that state governments do not have either the resources or the powers
to tackle contemporary patterns of terrorism and crime, and the intervention
of a national agency is becoming an increasing and urgent imperative.
- Clearly, police reforms, the strengthening of
the law enforcement, investigative and intelligence structures, and
enormous investment in internal security are now necessary. It is
time to abandon the idea that such investments constitute ‘non-productive
expenditure’. There is a peace dividend that comes with good law and
order administration, and this is reflected in higher productivity
in every other sphere of economic activity. The national budget and
various economic policies should take these factors into consideration
at the time when allocations for policing are taken up.
- Much has already been stated above about existing
Human Rights practices and processes. It requires a simple reiteration
here to underline the need for a review of these practices and processes
to restrict the existing and enormous potential of abuse by unscrupulous
and criminalised elements.
- Non-governmental organisations in India have
been passionate advocates of ‘transparency’ in governance, and equally
passionate opponents of transparency in their own activities. There
is now mounting evidence of NGO malfeasance and collusion with terrorist
and subversive organisations in various theatres of conflict in India,
and it is high time statutory obligations of transparency were imposed
on these entities.
- The bureaucracies of the 19th and
early 20th Century continue to dominate our internal security
and law enforcement apparatus into the 21st Century, and
have now become obstacles to the fundamental objectives of efficient
law enforcement. The decision-making processes at the highest levels
are oriented to a diffusion of responsibility and a complete failure
to understand the time-frames of contemporary crisis management. There
is an urgent need to create new and responsive structures of administration
and accountability that are geared to the time-frames imposed by modern
technologies, and to radically transform existing command, control,
communication and information systems, both internally within specific
agencies, and in the multi-force scenarios that are becoming increasingly
common. Since initiatives for appropriate change have not emerged
from the executive – which has strong vested interests in the perpetuation
of the existing system – such initiatives must be legislatively imposed.
- What will be the character of conflict and internal
security challenges ten, or even twenty years from now? And what will
be the nature of the responses that will be required to cope with
these? Our answers to these question will define the structure and
composition of the Forces that we believe can help us cope with these
future challenges. And the degree to which, and the detail in which,
we are, in fact, able to correctly assess these future challenges,
and to generate appropriate responses before they become an overwhelming
threat to the existing order, will be the only measure of the success
of the present leadership. This process of projection, moreover, must
be continuous and will need to be institutionalized as part of the
basic structures of law enforcement and internal security. In addition,
there is a strong case for a Parliamentary advisory board & secretariat
on internal security. The existing processes and official mechanisms
of information dissemination among Parliamentarians are too slow,
cumbersome, and partisan to serve as a adequate and quick source of
information on rapidly transforming events. There is urgent need to
create an institutional mechanism that would keep all parties and
the Parliament continuously apprised of various aspects of the internal
security situation, and to create an apparatus – under Parliamentary
control – to secure data and information on, research and analyse
various aspects of existing and emerging internal security crises.
Indeed, the Parliamentary Committee on Internal Security must also
have a permanent research committee or consultancy attached to it
to ensure that its deliberations go beyond the information provided
by the government, on the one hand, and the popular media, on the
other.
- Finally, at the very heart of the problem, is
the question of defining a coherent and comprehensive policy framework
on internal security. In the absence of a coherent vision of the nation’s
larger strategy, specific initiatives, especially where they are fire-fighting
responses to current crises, tend to cancel each other out and often,
in fact, prove counterproductive.
The very first imperative of an effective policy
on internal security, consequently, requires the definition of the basic
principles on which all action and policy is to be constructed. No such
principles are reflected in our present policies, and there is little
evidence to suggest that they exist. Once defined, these principles
must be strictly adhered to, circumscribing the range and content of
actions and negotiations that any government or official may engage
in with regard to, for instance, terrorists or organized crime syndicates,
or in situations of crisis generated by the actions of such agents of
disorder. Our responses to terrorism in the past have not been reality-based.
The Indian state must start educating itself on how it is to tackle
individuals and groups trying to destroy it. And it must learn how to
arm and protect those who put their lives at stake in the defense of
India’s unity and integrity. This demands a massive and unprecedented
effort, one that has to be exerted within a timeframe that grows shorter
by the day if it is to have a hope of success.
It bears mention that many of these
issues were brought to the notice of the then Prime Minster by me as
far back as 1997, and have subsequently been raised with successor governments,
but there is still no evidence of any correctives having been initiated,
though the situation has worsened significantly over the intervening
years.
(Published in Seminar, volume
512 - April 2002 )
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