Behind the shallow truism that history repeats itself
hide the unexplored forces which lure men into repeating their own
tragic errors.
Arthur Koestler, Invisible Writing.
During the first week of March 1966, two symbols of the sovereignty
of India on its frontiers the Deputy Commissioner of Aizawl,
then Mizo Hills District of Assam, and the Subdivisional Officer of
Lunglei were temporarily 'put away', as the Mizo National Army
(MNA) overran the district and took over effective physical control
of what is now the State of Mizoram. The Deputy Commissioner managed
to take refuge in the besieged headquarters of 1st Assam
Rifles, and the Sub Divisional Officer of Lunglei was kidnapped by
his own office staff and taken to Burma
(now Myanmar).
There is nothing on record to indicate that any officer in the State
and the Central Governments had warned of an imminent military take
over of the entire territory by the MNA. Evidently, either nobody
was aware of the seriousness of the situation, or nobody wanted to
venture an opinion against the grain of the political beliefs and
thinking then current.
However, a few things that happened prior to the insurrection are
noteworthy. Laldenga, the President of the Mizo National Front (MNF)
demanded independence for Mizoram and expressed readiness to fight
for it in a letter dated October 30, 1965 addressed to the Prime Minister,
a full four months before the uprising. By this time armed parades
and training by members of the MNA in school and college playgrounds,
the carrying of arms and wearing of uniforms provided by the Pakistani
Army, and a host of other activities which precede the build up of
any insurrectionary force, were strongly in evidence in both Aizawl
and Lunglei. If further evidence were needed, the MNA proclaimed their
readiness for bloodshed on December 25, 1965, by killing their own self-styled
'Colonel' Laimana for passing information about the quantity and source
of arms and ammunition to the State and Central intelligence agencies.
Nonetheless, when a newly raised battalion of the Assam Rifles was
being inducted in Mizo Hills in January 1966, Laldengas telegrams
to the Prime Minister and the Chief Minister of Assam
pleading against this induction delayed arrival of the battalion by
over a month, a deferment which proved to be of considerable advantage
to the MNA [1] .
Vishnu Sahai, the then Governor of Assam,
visited Mizo Hills for four days from February 1, 1966. This was followed by
a visit by the Pataskar Commission [2] from February
7, 1966. Nothing untoward was noticed or remarked upon
by either. The Joint Intelligence Committees report of February 16, 1966, mentioned Pakistan
having given arms and training to some batches of the MNA in a routine
manner, but did not take note of the clouds of an imminent internal
war building up in Mizo Hills. In fact, the report did not anticipate anything extraordinary happening for the next one year
and stated that if the MNF succeeds in capturing the District
Council in the elections to be held in March 1967, the demand for
an independent Mizoram will be stepped up. The movement in this connection
is likely to turn violent. Violence was predicated on electoral
success a full year away.
The MNF declared independence only twelve days from the filing of
this report, overran the district and started an armed insurgency
that lasted 20 years. Neither the Governor nor the members of the
Pataskar Commission knew that Mizo Hills was, at the time of their
visit, sitting on a time bomb that would go off within a matter of
days.
This happened 34 years ago.
But in the summer of 1999, the events in Kargil were a grim reminder
of India's enduring national preoccupation with self-delusion, its
proclivity to shun knowledge, to keep everyone in the dark with a
view to maintain the status quo, to deny the existence of
a new reality until it is violently forced into its consciousness
and, lastly, to disperse and diffuse accountability in such a way
as to ensure that nobody is finally accountable.
These examples, and a long intervening history of governance by
omission, are a compelling reminder of the ill-fated Louis XVI who
wrote a single word 'rien' in his diary of 16
July 1789, signifying that there was 'nothing notable' to write about
in the journals, and that he had retired to bed at the dignified hour
of 10 oclock. The Marquis de Liancourt woke him up
later to inform him that a revolution had taken place while he was
asleep.
The history of insurgencies, militant movements, and of widespread
and protracted terrorist activities in India
over the past 50 years is, in some measure, a history of rulers, legislators,
civil servants and intelligence agencies who went to bed at 10
oclock and failed to notice the signals of impending
disasters.
The truth is that the processes of governance in India are rendered
nonfunctional by crippling conventions, the art of equivocation, recurring
errors of judgement, innumerable intangibles such as personal attitudes,
the politics of a particular point of view, internal professional
feuds, malefic one-up-man-ships within the bureaucracy, horse-trading,
and acts of omission and prevarication in the face of urgent imperatives
for taking bold and unpleasant decisions. These have themselves created
the conditions for, or have failed to thwart or neutralise, the trends
towards terrorism and separatist insurgencies in the country. There
is grotesque diffusion of responsibility, and the whole decision-making
process is ravaged by a pervasive sickness.
There is evidence of another important, less noticed, but far more
insidious, seductive and dangerous trend. Ingrained deeply within
the Indian consciousness is the indolent confidence, an unspoken sense
or feeling, that the Army is always there to sort things out when
other methods fail. This promotes an unhealthy sense of foreboding,
an abiding anticipation of the worst that can happen, a fatalistic
view of the historical process, apathy for the present, and an acquiescent,
and even joyous, sense of anticipation of catastrophe. This fatal
and irrational reliance on the 'final means' the ultimate weapon
in the armoury prompts both decision- and opinion-makers to
stray from the present, to disengage from the immediate social burdens
and ground realities, and engage in a priori debates on questions
that have no, or very little, relevance to a given situation, and
to opt for a delayed response to critical problems. Such predilections
create their own compulsions for an eventual resort to arms. Having
been subjugated and ruled by foreign conquerors, largely through repression
and violent means for seven hundred years, the Indian psyche apprehends
in its newly found truculence, symbolised by a national army, the
only way to its political nirvana. Reversion to its substantive
values of liberalism and compromise is always an after-thought, a
kind of restorative succour and balm for an adversary who has first
been torn down. The Indian mind has a deep longing for the primeval
chaos, a nostalgia for the apocalypse (maha-pralaya), and very often finds itself in the middle of the very turmoils
of its imagining. This is the modern India,
preferring to wait, dodge, struggle, fight and hold enquiries to 'fix
accountability'; rather than pre-empt, strike, heal, harmonise and
celebrate its way through crises.
The Languor of the Law
Indias search for an effective legal response to terrorism,
with which we have lived through decades of terrible and escalating
national suffering, is also caught up the apocalypse syndrome.
For five years now, the most severely terrorism-affected country in
the world has had no law to deal with terrorism. For five years, the
fight against terrorism has been left entirely to the army and the
para-military forces, while the system of criminal administration
has simply retreated into the background or, perhaps more accurately,
entirely collapsed in areas afflicted by the scourge. For five years,
the Indian 'intellectual', jurist and policy maker has failed to see
the obvious, failed to understand the threat to national stability
and democracy, and failed indeed, stubbornly refused and resisted
all attempts to evolve legal instruments to confront and eliminate
the threat while this can still be done at a relatively smaller price.
As if acting under a curse, liberals to the Left and Right, however
opposed their policies were in other respects, have collaborated to
thwart all attempts at a rational legal response, have systematically
weakened the state's initiatives to cope with terrorism within the
framework of the Constitution, and have unambiguously contributed
to the increasing violence and anarchy that threatens India with the
very real possibility of its destruction. The attitudes of the liberal
forces and 'professional altruists' have ranged from inane misconceptions
of the true nature of the terrorism that has hit India on its western
and eastern extremities, to passive sympathy for, and even active
complicity with, the terrorists. Even those who understand terrorism
in Jammu & Kashmir (J&K) and the Northeast have indulged only
in rhetorical denunciations of its dangers, even while they do everything
within their means to prevent the country from arming itself with
adequate legal powers against this menace. Despite the mounting toll
of innocent lives in J&K, they treat atrocities committed by Islamic
fundamentalists, the jehad and Pakistan's grand designs for
conquest as something out of science fiction. At the same time, they
accept without demur, indeed with great alacrity and perhaps with
some satisfaction, every tenuous allegation that Indian security forces
are capable of the worst crimes conceivable.
Can the government give up, as it did when the Criminal Law Amendment
(CLA) Bill, 1995, came up for discussion in Parliament, and was abandoned
for fear of losing the vote? Is a democracy bound to relinquish the
very possibility of legal defence against a force that recognises
no bounds of law or morality? There are certain fundamental principles
and premises on which our response to these questions must be based:
Ø No democratic government
is under an obligation to tolerate individuals or organisations that
seek to overthrow it by violent means.
Ø Individuals or organisations
who declare their intention to kill and massacre at will, and do so
everyday, place themselves outside the law and cannot claim its protection;
indeed, they invite its just wrath and the imperatives of both morality
and civilisation demand condign punishment.
Ø The freedom of the individual
is possible only in a society that prevents some of its members from
usurping the freedom of others to live.
Ø A democracy's chances
of survival depend upon accepting the need for selective
tolerance those who plant bombs and carry out assassinations
and massacres are making war on society, on the nation's integrity,
and on democracy itself, and it is obligatory for that government
to employ all available means to contain or neutralise their threat,
including: stringent and extraordinary laws, special criminal procedures
and laws of evidence, a system of special courts with summary powers,
and specially trained and motivated police and prosecution personnel
to deal effectively with political violence in general and terrorism
in particular [4] .
More than 200 years ago, John Locke wrote that the chief role of
government is to protect peoples lives and property from the
transgressions of their neighbours. The institution through which
such protection is provided is the criminal justice system. As such,
it can be argued that a government which lacks an effective criminal
justice system has failed to uphold its end of the social contract. [5] The collapse of India's
criminal justice system in the face of a rising tide of terrorism
represents the collapse of the first and most basic condition of governance,
rule of law and of democracy, and undermines the legitimacy of every
institution of the government, and of every initiative and action
by any agency of the state.
A significant, though substantially flawed, attempt to confront
the challenge was made with the Terrorist and Disruptive Activities
(Prevention) Act, popularly known by its acronym TADA, which was first
enacted as an Ordinance in 1985 and, on its expiry after two years,
re-enacted as law in 1987. TADA was subsequently extended by Parliament
until 1995, when it was eventually allowed to lapse not because
it had achieved any of its defined objectives, but, ironically, at
a time when violence in J&K was at a peak, and was escalating
in much of the Northeast.
Before the expiry of TADA, the Government introduced the CLA Bill,
1995, to take care of the legal vacuum with respect to combating
terrorism. [6] A lengthy debate followed the
introduction of this Bill on May 18, 1995, in the Rajya Sabha. Alongside,
a determined and methodical chorus in the media, emanating from self-appointed
'guardians of liberal thought', added its weight to the opponents
of the Bill in the Parliament. After more than eight hours of discussion
over two days, the Government did not press for a vote on the plea
of absence of consensus. The opponents succeeded, and
this started a process that has moved the draft Bill back and forth
between the Law Commission and the Government of India several times.
The Law Commission of India was tasked to take a holistic view
on the need for a comprehensive anti-terrorism law, and submitted
a new draft in 1998. The Government of India sent it back to the Law
Commission for further debate and discussion, and the final draft
is now believed to be ready.
In the interim, over 5,000 lives have been lost in terrorism-related
incidents across the country during the past five years. The costs
of surveillance and combating have amounted to some INR 1,650 billion, [7] and public property worth several hundred billion
has been destroyed. To this injury has been added the insult of the
hijacking of an Indian Airlines airbus to Kandhar, and its lamentable
denouement. The liberals, however, are undeterred. Confronted with
renewed efforts to resurrect the CLA Bill, which is now being projected
as a 'humanised' form of TADA, their objection is not that some of
its clauses are offensive and need redrafting, but that any such law
is odious and violative of 'human rights' - a curious and extraordinarily
perverse conception of whatever these rights might be in the light
of the unending carnage that has been inflicted our citizens and quite
unnecessary casualties that have been wrecked upon our security forces.
The first salvo was fired by the Peoples Union
for Democratic Rights (PUDR) with a report containing some significant
facts and figures to show how the earlier TADA failed to meet its
objectives. For example, the 'abysmal record of convictions': out
of more than 76,000 persons arrested under TADA up to June 1994, cases
against 25 per cent were dropped by the police, and out of 35 per
cent cases that were actually brought to trial, 95 per cent of these
trials ended in acquittal. A mere one per cent of the persons arrested
under TADA were eventually convicted. In J&K, not a single case
out of the 20,000 registered has yet resulted in a conviction. The
conviction of the assassins of Prime Minister Indira Gandhi and of
General A.S. Vaidya was secured under ordinary laws and not under
TADA. The report also talks about the Law Commission having ignored
the experience of ten years of TADA and the magnitude
of abuse and hardship that it has entailed in the holistic
view it was asked by the Government to take on the 1995 Bill.
The PUDR characterised the discussions that the Law Commission had
with some lawyers, bureaucrats and police officers in December 1999
and January 2000 as a fig leaf of wider sanction
to this draconian law. The report strongly opposes the new Bill
because this law in its previous version failed abysmally in
its ostensible purpose of tackling the terrorist menace. [8]
The PUDR report was followed by a veritable barrage of unconstrained
criticism - entirely devoid of a single constructive suggestion in
terms of an alternative law, or any proposed amendments to the Draft,
or any other legal solution to the challenge of terrorism. The Public
Interest Legal Support and Research Centre (PILSRC) headed by an eminent
lawyer, Dr. Rajeev Dhawan, called the proposed Bill more draconian
than the TADA itself. [9] K. G. Kannabiran, detected a 'larger conspiracy' in the efforts
to transform the Bill into Law: Seen in consonance with Constitutional
review and the move to introduce bi-party system in the country, the
CLA Bill is worse than any repressive law enacted by the British rulers.
It will stifle democratic process and narrow the scope of rule of
law (sic). [10] Nandita Haksar opined that
the CLA Bill is an outright blow to all movements for right
to self-determination, culture and language, especially in north eastern
States. [11]
In a sharp deviation from the line taken by his party on the issue
in the past, Kapil Sibal, another eminent lawyer and Congress (I)
Member of the Rajya Sabha, stated that the law will be used
indiscriminately against innocents. This will only strengthen the
separatist movements in various States as suppressive laws only foment
rebellion. This is, indeed, surprising for a person who was
the Congress (I) Partys official spokesman during the last parliamentary
elections. It is, of course, possible that the Congress (I) has lately
changed it official stand on this issue. But it was the Congress (I)
government that first brought in TADA in 1985, re-enacted it in 1987,
and kept it alive for eight years. It was a Congress (I) government,
again, that sought to revive the law in a new form in the CLA Bill
of 1995. In 1991, when the Lok Sabha was debating MP Syed Shahabuddins
Statutory Resolution to disapprove the TADA Ordinance to extend the
life of the 1987 Act, Mani Shankar Aiyar, MP, stated the Congress
(I)s official position in no uncertain terms: Syed Shahabuddin
asked a question as to how long it would be necessary for us to have
such repeated extensions of such an Act. I can only reply that we
will have to continue extending it so long as terrorism raises its
ugly head. [12] Evidently, if Kapil Sibals
outburst is an indication, political parties in India
have no consistent policy on a national issue of such critical importance.
Broadly, five types of objections to the proposed CLA Bill underlie
the various criticisms that have surfaced over the past months. In
the first category is the 'sociological' argument, usually
presented somewhat rhetorically. [13] Thus, the PUDR report says,
what is called terrorism is not always a matter
of mindless violence. Often its roots are socio-political and governed
by distinct and conflicting ideologies. These roots cannot be addressed
by an anti-terrorist law since these are political questions, and
not law and order problems. An extraordinary law that claims to root
out the menace of terrorism along with its political and ideological
roots is not an anti-terrorist law. It is simply an anti-people law. [14] The Report, however, does not mention which 'people' it has
in mind but these are clearly not the thousands who have already
lost their lives to terrorism, and the millions who remain at risk.
[15] Perhaps it would make some socio-political sense
if the PUDRs perception of the people had indicated
a subtle distinction between the killing of politicians and policemen
by the Peoples War Group in Andhra Pradesh and Madhya Pradesh
and the killing of thousands of citizens and members of the secuity
forces in J & K, Punjab and the Northeast over the past two decades.
The PUDR have also failed to recognise that the 'root causes' of a
majority of murders, robberies, dacoities, and rapes may also often
lie in the social and political complexities of the prevailing order,
and, going by the same logic, the corresponding sections in the Indian
Penal Code dealing with these crimes should be repealed.
A variation of this thesis, however, has a startling and influential
advocate India's
Union Minister for Law & Justice, Ram Jethmalani, who has apparently
made his reservations on the proposed CLA clear to the Government.
"Terrorism," Jethmalani has proclaimed, "is one of
those rare and peculiar offences that does not lend itself to treatment
by law." [16] Evidently, in this suitably ambiguous proposition,
the Law Minister is articulating the inchoate theory of the 'political
solution' that has seduced much of India's
leadership. The theory assumes that, since the roots of conflict and
political instability lie in social mobilisation, their resolution
must also be sourced to the same. [17]
The difficulty is that, in its focus on 'root cause', the thesis ignores
the powerful proximate dynamics that are brought into being by the
prevalence of terror; [18] moreover, this approach to conflict resolution is shrouded
in the mystique of arcane theories from the social sciences that do
not translate into practical methodologies. The sociological attempts
to come to terms with the social motivation of terrorists and to identify
the just grievances that they represent lead down a blind
alley. Refusal to accept the resolution of terrorism by an effective
system of criminal justice is by itself a refusal to accept constitutional
and democratic norms.
Jethmalani's view is particularly disturbing in the Indian context,
where the 'political solution' has, by an large, meant that the government
must negotiate peace with mass murderers, and seduce or bribe
them to accept the authority of the Indian state. This approach implies
that no attempt should be made to prosecute or punish terrorists,
and that the state must simply blink at the enormity and inhumanity
of the offences they have committed against innocent civilians in
ironing out a 'compromise' with the most extreme elements. Such a
perspective reflects a measure of contempt for the very idea of constitutional
government and the rule of law.
Nevertheless, the just grievance theory demands a practical
answer, and this can be located in a century-old British response.
Confronted with terrorism against the British in Bengal in the early
20th Century, Austen Chamberlain, Secretary of State for
India wrote to Lord Charmichael on 17 December, 1915: Although
these acts of lawlessness may not be a serious menace to the state,
they do seem to me a very real danger to society, and the worst of
it is that the longer they continue the less will be your chance of
securing the active co-operation of the population in the detection
and conviction of the criminals. I am quite ready to admit with John
Bright, [19] at whose feet I sat as a boy, that 'force
is no remedy for a just discontent', but Bright himself never pretended
that this was a reason to allow free play to the forces of disorder.
The second set of objections come from the realm of legal positivism
and natural law theory, both converging against the concept, per se, of what is known as special, extraordinary
or emergency laws. The objections are undoubtedly based
on the perception of a moral dilemma inherent in the use of special
legal powers to curb terrorism and other kinds of political violence.
It is universally agreed that the resort to special laws that tend
to keep certain fundamental rights in abeyance is potentially a dangerous
proposition. David Bonner [20] has produced an interesting
array of evidence and opinions to indicate the dangers such special
legal provisions pose to democratic systems: the use of emergency
powers can become a habit; it may de-sensitise the population to the
problems of human rights involved and increase authoritarian tendencies
in law and society; extraordinary laws can become de facto
permanent features; new procedures may become the norm for criminal
procedure; the dividing line between emergency laws and ordinary laws
may become difficult to draw; such special laws may be used to cope
with ordinary crimes, and the "dangerously seductive illusion" [21] of emergency laws may
indeed represent a victory for the terrorists and insurgents. These
fears, however, are juxtaposed against the duty of a government to
protect the lives and property of its citizens from terrorists who
are fundamentally anti-democratic and have no respect for any
fundamental rights or procedural and democratic norms. This is, indeed,
a vicious moral dilemma for lawyers and non-lawyers alike! But so
is the moral dilemma faced by a democratic polity beleaguered by a
protracted terrorism that is sponsored by a hostile neighbour as part
of a proxy war. So is the dilemma of having to tackle terrorism exclusively
through armed means, in the absence of an appropriate law, and ending
up earning undeserved opprobrium for over-reaction, indiscriminate
repression, and deaths and injury to innocent civilians. So also is
the dilemma faced by the family of an innocent victim whose demand
for justice and retribution is spurned as sinful by a democratic society
ostensibly administered by the rule of law.
It is critically important, here, to ask what happens when an effective
law, or the appropriate law required for dealing with a particular
crime, does not exist? The answer is simple: the state is left with
no alternative except to permit selective use of arbitrary
force, what is then, at least on occasion, translated into repression
by the armed forces. There are only two other possible options: to
allow the terrorists total free play in the hope that a Thermidor
effect [22]
would appear mysteriously, and ultimately bring terror to a halt;
or, sadly perhaps, to accede to the inevitably escalating demands
of the terrorists.
Theoretically, a more serious problem arises vis-a-vis the
first two objections when we look into the very necessity of law in
human society. To the extent that order exists in human
society [23] without law,
there is no state and perhaps no need for one. Conversely,
to the extent that law exists without order,
then the state exists only as an ideal and not in reality.
The terms law and order correspond to the
division between rights and powers and the
belief that the political constitution consists in their convergence:
all powers should be sanctioned by right,
and all rights enacted through an order that
exactly corresponds to them. Order without law in society may be spontaneous,
the ideal of the anarchists; it may also be forced, the actuality
of despots. This is not to suggest that the absence of an appropriate
legislation against terrorism or deliberate advocacy of such an absence
would automatically and logically lead to anarchy. Nevertheless, it
is important to recall that that all major Constitutionalists (certainly
Hobbes, Locke, Montesquieu, and the founding fathers of the American
Constitution) have argued that preaching of anarchism (the possibility
of order without law) leads to despotism.
The fact that the security forces and the police enjoy vast powers
in India (as indicated by daily news of deaths of criminals as well
as terrorists in encounters which do not come within the purview and
scrutiny of law unless forced by public outrage), and that thousands
of reported and unreported lynchings take place in the countryside
every year (the expression of public outrage against the absence of
law and order) are symptomatic of the anarchy inherent in this society.
If the Constitutionalists are to be believed, this will logically
albeit gradually lead to despotism.
It is doubtful that the legal luminaries who have been involved
in the opposition to the proposed Bill would subscribe to the view
that unrestrained use of military power, extra-legal methods to annihilate
terrorists and armed insurgents, and the power to civilian vigilantes
to lynch suspected criminals, is preferable to a legislation whose
use and enforcement is subject to judicial and parliamentary review
and constant media surveillance.
It would also be absurd to suggest that all the persons who have
raised their voice against the enactment of extraordinary
laws against terrorism are in league with those who believe in anarchy
and despotism. But it is useful to recall Paul Wilkinson's observations:
More insidious, because clearly less recognisable, is the assistance
rendered to terrorists by wooly-minded liberals who succumb easily
to terrorist propaganda. These fellow travellers of terrorism fancy
that it is always progressive to be on the side of a rebel,
and are more ready to retail a terrorist atrocity story than to find
out what really happened. They make speeches about the evils of war,
and yet are prepared to justify murder and massacre by terrorists. [24]
One might perhaps add, and provide intellectual, political
and socio-economic justifications for those murders and massacres.
It is possible, of course, that what many opponents of the proposed
Bill have in mind as an alternative to the elusive 'legal solution
to terrorism', is the isolation of the insurgents and terrorists from
their support-base among the people by winning over their "hearts
and minds." [25] This method has its opponents, notably General Sir Frank Kitson,
who, like any military commander fighting terrorism gave short shrift
to such ideas and expressed the conviction that once you have
them by the balls, hearts will follow. [26] But the limitations of this in a situation of widespread terrorism
or insurgency would be apparent, not only to the military mind, but
also to anyone even remotely acquainted with the situation on the
ground. These limitations were best expressed in a private conversation
by a Mizo churchman in 1969: This method of yours is like a
see-through fig leaf. What, after all, is the point in one hand trying
to heal the wound inflicted by the other? This was a most telling
view of the role of civil servants naively attempting to reach out
to the 'hearts and minds' of the families of those whom the security
forces were hunting down relentlessly in the jungles.
There is a significant viewpoint that the ultimate basis of the
resolution of all political violence could be the "coalitions
of commitments or alliances, that have in-built incentives to conciliation." [27] Theories advocating this approach point to
three possible ways in which political violence in an ethnically divided
society can be resolved: electoral politics, re-distribution of economic
resources for development, and use of military power. There are several
problems with attempting to translate such an approach into policy
in a situation of widespread terrorism and breakdown of law and order,
and of the institutional inefficacy of the agencies of government.
Even if these are ignored, and, as confirmed democrats, we eschew
the policy that advocates control of terrorism through the use of
military power alone, resolution through electoral politics and re-distribution
of economic resources may, in actual terms, imply the elevation of
terrorists to the position of legislators and ministers, and the use
of money to corrupt them to buy peace. This has been tried in the
Northeast with disastrous results. A society that expends its energies
in redistributing wealth instead of creating it will succumb to stagnation
and eventually fail to satisfy the very expectation of wealth without
work that it has encouraged. Moreover, such methods inevitably appear
to 'reward' terrorism, and would deepen the conviction among other
disaffected groups or opportunistic leaders that a resort to the methods
of terrorism is productive and profitable.
In expressing the opinion that the proposed CLA Bill is an
outright blow to all movements for right to self-determination, culture
and language, especially in north eastern States, [28]
Nandita Haksar was possibly suggesting that a more fruitful course
of action would be "increased consultation with the politically
violent groups and their wider participation in decision-making or
consociational democracy" [29]
or "fundamental revisions in the relations between the regime
and its people." [30] This may mean anything from grant of some kind of political
autonomy to a measure of self-determination for those whom the terrorists
claim to represent in a demographically homogenous area. Without examining
the validity of such claims to representation, it is important to
note that the first was tried with Article 370 for J&K, and the
latter through the creation of the State of Nagaland. If a micro-study
of human history in its 50-year cycle is permissible, both experiments
have failed.
It can only be hoped that in the rejection of legal methods to deal
with terrorism, some powerful dark forces in the Indian polity are
not being persuaded to look for a more radical and elaborate fundamental
revision between the regime and its people, with the dangerously
motley crowd of criminals, fundamentalists, all kinds of people on
the lunatic fringe, gun-runners, desperados, bloodletters, assassins,
mercenaries and hirelings hailing from such diverse places as Pakistan,
Afghanistan, Saudi Arabia, Sudan, Libya and several Central Asian
countries who have launched an Islamic jehad on Indian territory,
or with other extremists who have no respect for or faith in pluralism
and democracy!
The third set of objections is more specific: that the earlier TADA
did not achieve its objectives; that the law was not enforced; that
there was gross misuse of the earlier TADA between 1985 and 1995;
and that the new law, when enacted, will be misused again. These arguments
have been supported strongly with incontrovertible facts and figures.
A very valid question has been raised: does an executive incapable
of effectively using powers given by its ordinary laws deserve special
and extraordinary laws?
This is the view that Ram Jethmalani expressed while opposing the
CLA Bill, 1995, in the Rajya Sabha: From 1985 ever since the
statute [TADA] was passed terrorism has not decreased, terrorism has
increased in volume and in the extent of its operations. This shows
that there is something wrong with your remedy. These observations
led him to the conclusion that terrorism was one of those rare
and peculiar offences that does not lend itself to treatment by law.
There is a history of criminal laws having been repealed when they
have ceased to be necessary or when it was required to replace them
with new laws based on a recognition of new realities. But has a criminal
law ever been removed from the statute books, or its re-enactment
opposed, because it has failed to achieve its objectives? If that
was so, the demand for the scrapping of the entire Indian Penal Code
could find its justification precisely because the crimes mentioned
therein have not only not decreased, but have, in fact, increased
in volume and frequency by about one thousand times since the enactment
of this legislation 150 years ago. By this argument, one can also
quite legitimately demand repeal of the Arms Act, because it has not
served its purpose, because it has not been enforced strictly, and
because it has been grossly misused. Otherwise, how do thousands of
unauthorised and unlicensed arms float around in the country? [31]
These arguments can be taken to absurd limits if we forget that criminal
law is always and only a deterrent to crimes, and not a guarantee
against them, and that human society would have been far happier than
it is if laws alone could eliminate the possibility of criminal conduct.
Nothing can ever be absolutely perfect, or entirely satisfy the
idealist's aspirations. In fact, a government is never fully healthy
anywhere. There is not a single perfect legislature, executive or
judiciary in the world. Nor is there a perfect police force. Nevertheless,
human societies endeavour to bring about improvements in their systems
almost in proportion to their perception of its weaknesses and imperfections.
This is how civilisations move forward. We do not jettison a reform
because of our perceptions, howsoever correct these may be, that those
who are presently in charge of its implementation are corrupt, inefficient,
handicapped, or in some other way incapable of executing their responsibilities
as envisaged by the reforms. We reform in the hope, and this hope
has often been rewarded by the forward movement of civilisation, that
those who implement them will also be reformed in the process. If,
moreover, there are structural weaknesses and constraints in the very
formulation of the reform, these are best addressed, not by throwing
the baby out with the bath water, but by eliminating these through
a stochastic process of correction.
It is true that the preservation of democracy entails constant vigilance
over the individuals and organisations that enforce its laws. But
an obsession with historic transgressions (whether it is the emergency
of 1975 or the misuse of TADA in Gujarat) is not particularly helpful
at a time when the national focus must be on protecting the country
against mayhem and a concerted challenge to the sovereignty of India
on its northwestern and northeastern boundaries. The country and its
best brains must rise above idealistic clap-trap and their formless
and inchoate prejudices to look objectively at the ground realities
and arrive at a consensus on legal response to terrorism.
The fourth set of objections is purely legal in character
and relates to the derogation of the Indian Evidence Act and the Code
of Criminal Procedure in the proposed Bill. Among many other departures
from the current law of evidence and criminal procedure which have
been objected to, some of the proposed deviations that have come in
for sharp comments and more focussed analysis are: sweeping definitions
which can make any kind of dissent or protest 'from pamphleetering
to writing a poem' a terrorist activity; the admissibility
of confessions to the police; presumption by the court that an offence
has been committed on the mere refusal of the accused to give samples
of fingerprints, footprints, handwriting, photographs, blood, saliva,
semen or hair; presumption of guilt in certain other types of cases;
confiscation of property by the police and its ratification by an
executive authority; punishment for up to two years in a summary trial;
trial in the absence of accused or pleader; police custody for thirty
days with provision for re-taking accused in to police custody during
six months of remand in judicial custody; provision of remand for
six months without charges; bail only if the court believes that accused
is not guilty; appeal only to the Supreme Court bypassing the High
Court; powers of civil courts given to executive authority in violation
of the constitutional provision separating the judiciary from the
executive; other excessive powers given to the executive, including
the power of scrutiny, the latter largely of its own actions. Many
of these provisions, their detractors say, would violate the fundamental
rights guaranteed by the Constitution as well as the established norms
of criminal law in democratic countries.
While each of these clauses demands separate analysis and evaluation,
it is not the objective of this paper to attempt such an assessment.
Nevertheless, it is necessary to note that the criticism of these
clauses suffers from three primary defects: in the first place, it
fails to perform a constructive function or to realistically evaluate
the policy options available to meet the challenge of terrorism; second,
it is not based on any coherent or realistic understanding of the
character or magnitude of the terrorist challenge; and finally, it
ignores entirely the vast body of comparable legislation that already
exists in virtually all democratic nations, including the advanced
liberal democracies of the West, that have experienced even the faintest
threat from terrorism.
The characterisations of counter-terrorism policy, Peter Chalk observes,
typically fall into one of two types. First, there is the criminal
justice model which views terrorism as a crime where the onus of response
is placed squarely within the bounds of the states criminal
legal system. The second is the war model, which views terrorism as
an act of revolutionary / guerrilla warfare, and where the onus of
response is placed on the military and the use of, for instance, special
forces, retaliatory strikes, campaigns of retribution and troop deployment. [32] In the absence of appropriate
and effective legal responses, the fight against terrorism inevitably
inclines towards the war model, and this has been the case in India,
and more particularly in J&K. A very valid question would, therefore,
arise: are we tolerating and even encouraging anarchy in the hope
of eventually finding a proper despotic solution for terrorism?
This refers to what has been stated on the fourth page of this paper.
Those who drafted the CLA Bill were far from being original, and
the Law Commission has not blazed forth any new light on how terrorism
can be countered legally. The entire documentation circulated by the
Law Commission is based on the legislation and experience of some
western democracies and an evaluation of India's own experience in
the past. In fact, the proposed Bill has borrowed from all the existing
laws in a number of countries, and this is clearly acknowledged in
the Law Commission's Working Paper. [33] All aspects and provisions of the Bill that
have been characterised as arbitrary, violative of fundamental rights,
or excessive, can variously be found in the existing legislation in
the United Kingdom, USA, France, Spain, Germany, and Canada. In all
the western democracies, emergency powers to combat terrorism confer
wide-ranging authority and discretion on the executive, subject to
extremely limited parliamentary surveillance and minimal
judicial supervision. Significantly, these powers also make serious
inroads into accepted civil liberties and right of citizens. But all
these countries consider this a very small price to pay for arming
and enabling the state adequately for combating terrorism.
Unfortunately, the Indian debate has remained mired in exceedingly
flawed and partisan perspectives on the character of terrorism, perspectives
that obstinately refuse to come to terms with the sheer virulence
and unremitting evil of this method of warfare aimed simultaneously
at the state and its citizens. Terrorism is not an ideology of liberation
or a legitimate instrument for the expression of just grievances.
It is the systematic use of injury, murder, and destruction, or threat
of these, to create a climate of sustained intimidation and terror,
and to coerce a wider target into submitting to the political, racial,
ethnic, religious, territorial or criminal objectives of its perpetrators.
Its key characteristics are: indiscriminateness, unpredictability,
arbitrariness, ruthless destruction and carnage, and the implicitly
amoral nature of its challenge. As a policy and a method, any terrorist
strategy will lack reality until sufficient examples have been provided
for the terror to become effective. Random slaughters are not the
'collateral damage' inflicted by a terrorist campaign; they are its
essence.
Terrorists do often have a specific human or material target,
such as a political leader, a police informer, a column or camp of
the security forces, but it is integral to their methodology that
they also engage in the indiscriminate murder of civilians. All men,
women, and children alike, regardless of their role and position in
society, can be potential victims of a terrorist campaign. Terrorists,
moreover, disregard all rules and conventions of war; and non-combatants,
hostages, prisoners, and neutrals have no rights in their eyes. Terrorism
also recognises no international boundaries, laws or conventions, [34]
and can, consequently, be more effectively employed by a hostile neighbouring
state as an alternative to war, as in the case of Pakistans
role in J&K. The growing use of terrorism as an alternative to
war, its dependence on weaponry and explosives for most of its operations,
and its reliance on a military type of organisational structure has
led to tremendous escalation in its threat potential and its transformation
into a method of low intensity warfare, a proxy war, or insurgency,
and these are the terms within which it must now be understood and
dealt with.
There have been instances of victims of assassination or
mass murder having been warned in advance, but acts of terrorism are
generally entirely unpredictable and arbitrary. It is in this sense
valid to describe terrorism as a peculiar kind of tyranny in which
the potential victim is unable to do anything to avoid his destruction
because the terrorist is operating and judging on the basis of his
own code of conduct, or immediate perceptions of their interests. [35] This reaons alone imposes
an overwhelming moral responsibility on the state to protect a potential
victim or to neutralise the terrorist or render him ineffective. A
partial and inadequate understanding of terrorism has led many analysts
to seek to equate terrorism with other forms of political violence,
and to uncritically transfer arguments that have been advanced in
support of revolutionary violence or liberation movements against
colonial regimes to terrorist movements in democratic nations. But
terrorism can be clearly differentiated from other forms of violence,
agitation, intimidation and coercion by virtue of its extreme and
ruthlessly destructive methods. These include genocide, massacre,
political murder, and torture at one end of the scale, as also the
persistent intimidation, physical beatings, maiming, harassment, defamatory
campaigns and provocative propaganda, at the other. Unlike other political
strategies that target specific elements within the population, terrorist
violence and intimidation is directed against the entire population,
and a sweeping policy of liquidation is often considered necessary
to acquire or sustain political or psychological control. Critically,
there is no ground to assume that terrorists can arrive at a notional limit to
their violence. This is what makes negotiations with, or a conciliatory
attitude towards, terrorists counterproductive - especially in a situation
where they perceive themselves as holding the advantage. Indeed,
concessions - usually interpreted as 'victories' - feed campaigns
of mass murders that intensify the general terror. Such a strategy
of escalating violence is seen as an effective device for psychological
control of the population because, in the aftermath of a massacre,
everyone is terrified of being caught in the next wave of terror.
Finally, what distinguishes terrorism from other forms of organised
violence is not simply its severity or lack of discrimination, but
its absolute amorality. Terrorists either profess indifference to
existing moral and humanitarian codes or exempt themselves from such
obligations. In the terrorists ideology, the suffering and death
of innocent people is entirely justified by their political or other
ends. In their most explicit and candidly amoral form, they conform
to the Nietzschean doctrine of the Will to Power. Terror is justified
'as the expediency of the strong, and such religious and humanitarian
notions as mercy, compassion, and conscience must go with the weak
to the wall of history.'
These are the reasons why the use of special powers to combat terrorism
in peacetime has been extremely widespread, and almost eighty per
cent of the countries in the world are currently engaged in defending
themselves against various intensities of this lethal and pervasive
scourge. India is, perhaps, the only democratic country which, though
afflicted with the most intensive and extensive terrorist movements
in the world, has the distinction of having a vocal segment that insists
that it will not allow the necessary defensive mechanisms and appropriate
laws to be evolved or implemented. Are we, as a nation, really aware
that sustained campaigns of political or criminal violence currently
prevalent in India are profoundly subversive of democracy?
These opponents of special laws in India may also be aware that
when the state fails to fulfil its primary function of protecting
its citizens against indiscriminate, unpredictable, arbitrary and
ruthless murder and destruction, citizens will either take the law
in their own hands or support a new form of government, or accept
a criminal gang that promises to deal with the threat more effectively,
or even the perpetrators of terror themselves in exchange of conditional
protection. This is the tragic lesson of the Northern Ireland conflict.
As Wilkinson expresses it, Terrorism is the most flagrant form
of defiance of the rule of law. It challenges governments prerogative
of the monopoly of armed force within the state. Terrorists attempt
to replace the laws of the state by their own laws of the gun and
the kangaroo court. It is therefore vital for the government to act
speedily and forcefully against them and, above all, to preserve their
power to govern. [36]
Liberals in India must be aware that the whole thrust of classical
liberalism was directed at establishing a government of laws in place
of arbitrary and despotic power, and at establishing social peace. [37]
Among modern democracies, perhaps the first rationale for the use
of extraordinary laws and powers to quell a rebellion was advanced
by none other than one of the most celebrated liberals - Abraham Lincoln:
Every man thinks he has a right to live and every government thinks
it has a right to live. Every man when driven to the wall by a murderous
assailant will override all laws to protect himself, and this is called
the great right of self-defence. So every government when driven
to the wall by a rebellion will trample down a constitution before
it will allow itself to be destroyed. This may not be constitutional
law but it is a fact. [38]
Among the passionate critics of the CLA Bill are some enthusiastic
admirers of the USA, the fabled land of liberty, and of the American
system of governance and justice. Amazingly, they ignore the fact
that, with only a few hundred casualties to terrorism, the US leads
the world in terms of counter-terrorism legislation, with over 900
pages of special laws and executive orders, including the Effective
Death Penalty and Antiterrorism Act, 1996, which makes the death penalty
mandatory for certain categories of terrorist action. [39] More significantly, Article I, section 9
of the US Constitution makes it the only Constitution of a democratic
country permitting suspension of habeas corpus in cases of rebellion or invasion, and this provision has now
been extended to cover terrorism.
In the United Kingdom, prior to the enactment of the Prevention
of Terrorism (Temporary Provisions) Act, 1989 and the Northern Ireland
(Emergency Provisions) Act, 1998, 22 extraordinary or special laws
had been enacted between 1797 and 1984. [40] The 1996 Report of Lord Lloyd, that emphasised
the need for a specific and permanent counter-terrorism law after
lasting peace has been achieved in Northern Ireland, was accepted
by the British Government. A consultation paper issued
by the Government in 1998 conceded the need for a permanent legislation
to combat terrorism, on par with the vast majority of criminal laws,
since The annual renewal of current anti-terrorist legislation
does not reflect the current reality that such powers are likely to
be needed for the foreseeable future. [41]
These trends in national legislation now enjoy an increasing international
mandate. The United Nations' Covenant on Civil and Political Rights,
1966, recognised the need for the state to override certain human
rights: "In time of public emergency which threatens the life
of the nation and the existence of which is officially proclaimed,
the State Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly
required by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international
law and do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin." The spirit
of the provision was borrowed from the European Convention on Human
Rights, 1950, and was later adopted by the American Convention on
Human Rights, 1969. The United Nations' Declaration on Measures
to Eliminate International Terrorism further strengthened the
hands of its member states to bring about stringent and extraordinary
anti-terrorism legislation. The Declaration stated that that the UN
1. Strongly condemns all acts, methods and practices of terrorism
as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that 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 circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature that may be invoked to justify
them;
3. Calls upon all states to adopt further measures in accordance
with the relevant provisions of international law, including international
standards of human rights, to prevent terrorism and to strengthen
international co-operation in combating terrorism. [42]
It is clear, consequently, that the outright rejection of a law
to combat terrorism, or the presumption that terrorism is one of the
"rare and peculiar offences that does not lend itself to treatment
by law," is arbitrary, irrational, contrary to facts and against
the grain of the international consensus on the subject.
This does not mean that the proposed CLA Bill must be accepted uncritically
as drafted. Indeed, there are several flaws in the present formulation,
and, on close examination, it can be seen that some of the objections
raised by its detractors appear to be valid. [43]
At least some of the clauses suffer from the vice of overbreadth
or the extension of their scope and definition beyond the exigencies
and requirements of the situation they are meant to deal with. They
comprehend actions that are outside the sphere of the activities that
should rightly be penalised under such legislation. In the past, much
of the misuse of TADA was a consequence of such "overbreadth,"
and particularly of a sweeping definition of terrorism.
This undiscriminating scope was also the reason for the sustained
hostility of the legal community towards this Act. For instance, irrespective
of one's position on the Narmada Dam, it is not comprehensible how
the law could be stretched to the point where social activist and
protestor, Medha Patkar, could be arrested under TADA. TADA was, similarly,
applied to labour unionists and various other categories of anti-government
and anti-establishment protestors, even where such protests were entirely
non-violent. The sheer scale of abuse to which TADA lent itself can
be estimated by the fact that by May 1993, Gujarat, a State that was
and remains unaffected by terrorism, had over 17,000 persons detained
under TADA, 32.08 per cent of the total of 52,998 TADA detenus in
the country at that time. J&K, where militancy was at a peak at
the same time, had just 1,826 detenus under this Act. Something was
clearly very wrong with TADA, and it is necessary to ensure that the
same infirmities are not carried over into the CLA Bill.
There is, therefore, the need to redefine and reframe several clauses
in the proposed Bill to make this law more narrowly focussed and to
plug all possible loopholes, both for its misuse by the agencies of
the state and for the abuse of its process by criminals and their
legal representatives.
1. First let us take the
provisions that have an in-built scope or temptation for misuse, either
by an exasperated police or armed force, or by a vindictive and desperate
politician. Sub-clause (8) of section 3 of the proposed Bill seeks
to punish ordinary citizens for their failure to disclose information
relating to terrorist activities that they may come upon, and has
enormous scope for abuse. In a situation, where even the members of
the hallowed judiciary fail to carry out their sworn duty, and where
(for instance in J & K), despite the persistence of terrorism
for decades, over 23,000 killed, and more than 20,000 TADA arrests,
not a single conviction for terrorist crime has been secured, it would
be most unfair to impose such a duty on the common man. Such a clause
would criminalise fear, a completely natural response to the indiscriminate
and arbitrary nature of terrorism. Unless the state is capable of
protecting its people, which the Indian state, at this point of time,
evidently is not, it must not compound the threats extended by the
terrorists by further threats of penalising those who fail to provide
information. The right to silence is one of our greatest natural rights,
and it cannot and should not be taken away by a democratic legislation.
2. Penalties have been prescribed
for advocacy of secessionist ideas in a number of sections
[Section 4 (1) & 4 (1) (d); Section 4 (2) and 4 (3)]. This can
be misused. Clauses penalising the abetment or facilitation of terrorist
crime should be defined very narrowly, and should crimilinalise
only explicit acts of abetment. The advocacy of ideas
cannot and should not be proscribed in a democracy. Moreover, these
provisions would, once again, tend to misdirect the enthusiasm or
desperation of the police and security forces against members of a
community who may be sympathetic (or be regarded as sympathetic) to
the terrorists cause, but not necessarily active in their support.
The term 'advocates' and any other reference to peaceful and democratic
propagation of ideas should be deleted. The inclusion of 'incitement',
which is defined with precision, is, however, entirely correct.
3. Some thought needs also
to be given to redrafting Section 4 (4). While harbouring of terrorists
should be punished, the ground realities must not be ignored. In a
very large number of cases, terrorist coercion leads to co-operation
or assistance from general public. This would amount to double punishment:
first by the terrorists who obtain a hiding place or food or sexual
favours under threat of death, and later by the state for extending
such 'services'. Once again, the state has no right to punish those
it cannot protect.
4. There is, however, a
corresponding need to impose stricter penalties where the mischief
is intentional and beyond doubt. Sub-clause (7) of Section 3 prescribes
a minimum imprisonment of three years and fine for intimidating witnesses.
This crime is one of the most significant aspects of the breakdown
of law and the failure of the state to secure conviction of terrorists,
and must, therefore, attract harsher penalties. A maximum sentence
of seven years and a mandatory minimum punishment for three years
would be more appropriate. Section 6, moreover, leaves a large gap
for receipt of contributions both foreign and Indian
by overground organisations supporting the terrorist cause. There
is need to ensure that the flow of funds to these so-called 'socio-political',
'human rights' and 'democratic rights' organisations is transparent.
This has been the most subtle channel of support to terrorists worldwide,
and more particularly in India, and an effective counter-terrorism
law must take this into consideration and create an effective system
to monitor the activities of over-ground affiliates of terrorist organisations.
In Assam, it has been noted that some newspapers and so-called human
rights and civil rights groups started sustained
campaigns of defaming a civil or police officer if he was perceived
to be successful in counter-insurgency operations against the United
Liberation Front of Asom (ULFA) or the National Democratic Front of
Bodoland (NDFB). Some newspapers even publish false reports of threats
of abduction of children of officers who were regarded as hardliners
in the fight against terrorism, with a view to create a climate of
psychological terror and coercion. Such defamatory stories or hints
of danger to the families have often achieved their objectives by
rendering these officers less enthusiastic.
5. Section 1(3) fixes a
term of five years for the legislation to remain in force. In view
of the persisting problem of terrorism, low-intensity warfare, insurgency
and militant political movements in many parts of the country that
are unlikely to be resolved in the foreseeable future, this legislation
must be of a permanent nature like other criminal laws of the country.
The last point raises a host of other issues. The first of these,
of course, is that the CLA Bill remains within the paradigm of a 'special'
or 'extraordinary' law, which will remain anathema to some, and all
efforts to enact the legislation are likely to run into rough weather
because the idea is repugnant to certain influential segments within
India's intellectual and political establishment. It is possible that
counter-terrorism legislation will answer objections from these quarters
if it can be brought in line with existing legal and judicial thinking.
Moreover, as already stated, the idea of 'special' or 'extraordinary'
legislation suggests that terrorism is a transient emergency, and
requires temporary adjustments in the legal paraphernalia till the
emergency has passed. This is far from the truth, and there is no
reason to believe that terrorism will cease to be a menace and a critical
internal security threat, for decades to come.
The law, if it is to be effective, must be a living, constantly
evolving organism that recognises changing realities and adapts to
them. This is far from the stagnant, quiescent, obstructive
reality of the law in India today. A century and a half ago, the British
framers of the Penal Code were confronted with a unique phenomenon
in India, one that failed to correspond to any category of criminal
conduct in their previous experience - the existence of loosely structured
armed gangs that came together for the purpose of committing armed
robberies, referred to by the locals as dakaiti. The essence
of this paradigm of criminal conduct, however, went far beyond the
simple act of commission of such robberies, to comprehend a complex
of unlawful activities that included criminal conspiracy, collusion,
intimidation, extortion, the illegal acquisition and possession of
arms, and the membership of unlawful organisations. Nevertheless,
the composite offence of dakaiti was understood to be more
than the sum of its constituent parts, and therefore, demanded separate
recognition in the law and exemplary punishment for what was seen
to be a particularly odious compound. Good governance required that
old English norms be abandoned or amended when confronted with every
new challenge, and new methods and mechanisms be devised to deal with
new realities. The British accepted these ground realities and coined
two English words - dacoit and dacoity corresponding phonetically
to the Indian words dakait and dakaiti so that the criminal terminology could provide the Indian mind with
a native social correlation of what was thought to be a criminal conduct
specific to India. These were then variously incorporated into Sections
390 to 402 of the Indian Penal Code (IPC), and continue to abide there.
It is interesting to note that the IPC prescribes rigorous imprisonment
for a term of as much as ten years for making preparation to commit dacoity. [44]
Membership of a gang of dacoits is punishable with as much
as imprisonment for life, or with imprisonment of up to ten years. [45]
The British response to the unfamiliar offence of dacoity is an
excellent model on which we can construct our legislative response
to the challenge of terrorism, and, indeed, the provisions of Sections
390 to 400 of the IPC provide an appropriate paradigm for a draft
of a permanent law for crimes related to terrorism which could be
incorporated into the IPC. (A draft of the required amendments to
the IPC is appended to this paper. [46]
The language and format of the proposed amendment have been adapted
from Sections 390 to 402 of the Indian Penal Code).
The point of this digression is that our legal remedies must conform
to present realities on the ground, and not to inherited or acquired
ideological dogmas. For decades now, large parts of the country have
been ravaged by the scourge of an unrelenting, escalating terror,
and yet the phenomenon finds no mention in our statute books. Worse,
every attempt to put it there is thwarted by hysterical shrieks of
horror. It is time to ask ourselves: who is most benefited by these
campaigns of obstruction?
In any case, it is necessary to reiterate that the human predilection
for vengeance, for an eye for an eye and for taking
the law into one's own hands, in the manner of the IRA or the
Unionists gangs in Northern Ireland, is moderated only by the
belief and conviction that a system of justice exists and that the
state is fully equipped and motivated to enforce the law. This belief
and conviction is at risk when criminals and terrorists appear to
evade punishment through the inadequacy and weakness of the system
of criminal justice, and the inefficiency or leniency of the system
of criminal administration.
Terrorism, whether by itself, or as part of a secessionist insurgency,
or of a proxy war, or a localised militant movement or an ethnic conflict,
is the most lethal form of criminal conduct. It has taken a toll of
about 2,50,000 lives in India over the past 50 years. [47] But the reality on the ground
is nowhere reflected in, or accommodated by, our parliamentary and
judicial response, or in the response of our intellectuals and the
media. The danger is that, if India's institutions of governance do
not find solutions to the emerging realities of the situation, the
realities will find their own solutions.
Those who are ultimately responsible for taking unpleasant decisions
to safeguard the security of the state and its citizens must know
that society cannot afford to be neutral between its own life and
death. If we remain too wet and windy to inflict some pain on the
terrorists - even at the risk, perhaps inadvertently and incidentally,
of some harm to innocent bystanders - there is no telling what impact
such cowardice and lack of direction will have on the future of the
country. For all the seeming disarray and discordance, a consensus
on a new counter-terrorism law is possible and must be striven for.
But the search for a consensus cannot be an endless process. Sometimes
decisions that are unacceptable to a vocal minority are the right
decisions, and must be taken at the right time.
Public whistle-blowing appears to be a full time occupation among
many arm chair liberals. But, over all these decades of terrorism,
why has not a single detractor of 'draconian laws' sat down and drafted
an alternative and perhaps more humane law to combat terrorism and
help save the thousands of manifestly innocent lives that have been
lost to this evil?
One of the most consistent and incurable traits among India's 'intellectuals'
and 'liberals' is their neurotic introversion, the tendency to make
statements and take actions with a view, not to their effect on the
nation or on the problem to which they are ostensibly addressed, but
rather to their impact on those echelons of the international or sectional
opinion to which they are anxious to appeal. The question, consequently,
is not: how effective is what I am doing in terms of its impact on
the national environment? Rather, it is: How do I look in the mirror
of international democratic opinion, in the opinion of the community
whose admiration I crave, and in the opinion of the various agencies
whose support I seek? Do I look shrewd, determined, defiantly committed
to the eternal values of civil and human rights, imbued with the necessary
vigilance before the 'oppression' of a government? If so, this is
what I do, even though it may prove to be meaningless, or even counter-productive
when applied to the realities of the national situation.
The one area where the power of the state in India has been steadily
dwindling instead of expanding is precisely where it should be the
strongest: the realm of internal security. With the continuous and
accelerating spiral in terrorist and criminal violence - and the emerging
complex of linkages between these - strong legal measures have become
an inescapable imperative if a constitutional solution is to be sought,
and if the situation is not to hurtle completely out of control. Sagacity
and restraint are essential in the drafting of these measures, and
the government must display greater moral courage than it has over
the past five years, in recognising the real flaws and shortcomings
in the proposed CLA, and, with complete sincerity, ordering immediate
revision of any repugnant clauses. The greatest danger, however, is
that the current and orchestrated protests may be allowed to cow down
the state and its agencies, and that we will persist in muddling along
in our war against terrorism without any suitable and effective legal
framework. If this happens, we would be victims, once again, of a
great and avoidable tragedy brought upon ourselves by a creeping paralysis
of the national will, and of the penchant to ignore warning signals
and go serenely to bed at ten oclock
APPENDIX I
Proposed Amendment to the
Indian Penal Code
Draft Chapter XXIV
Of Offences Relating to Terrorism
Section 512:
When a person, either alone or conjointly with other persons, uses
force, intimidation, threat of injury or death for ends and objectives
that are either political, or ideological, or racial, or ethnic, or
religious, or territorial in nature, and uses such force, intimidation,
threat of injury or death for putting any individual or section of
the public in fear, and makes use of injury, murder, and damage to
life or property, or threat of the same, to create terror for publicising
a cause and/or to coerce any individual, group or community or institution
into submitting to its objectives, and has committed or attempted
to commit any act, or has directed or organised or trained or aided
or abetted or coerced any person or group of persons into committing
such acts, and has caused any fear or injury or death to a person
or caused damage of private or public property in pursuance of above-mentioned
ends and objectives, every person so committing, attempting, or aiding
is said to commit an act of terrorism.
Section 513:
Punishment for Terrorism: Whoever commits terrorism shall be punished
with rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine and forfeiture of his movable and
immovable property.
Section 514:
Whoever commits terrorism with the use and help of of firearms,
explosives or any other lethal instrument or weapon, and such acts
result in the injury or death by the use of such firearms, explosives,
lethal instrument or weapons, or in the destruction of private or
public property of the value of Rs. One thousand and above, shall
be mandatorily punished with death or imprisonment for life, and shall
also be liable to fine and forfeiture of his movable and immovable
property.
Section 515:
If, at the time of attempting to commit terrorism, the offender
is armed with any deadly weapon, he shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also
be liable to fine and forfeiture of his movable and immovable property;
provided that no such rigorous imprisonment shall be of a term of
less than seven years if the deadly weapon with which the offender
is armed is unlicensed, or belongs to a person other than the offender,
or is of a make, type and calibre not ordinarily allowed for civilian
use under a licence issued by a competent licensing authority.
Section 516:
Whoever makes any preparation for committing terrorism, shall be
punished with rigorous imprisonment which may extend to ten years;
and shall also be liable to fine and forfeiture of his movable and
immovable property; provided that no such rigorous imprisonment shall
be of a term of less than seven years if the deadly weapon with which
the offender is armed is unlicensed, or belongs to a person other
than the offender, or is of a make, type and calibre not ordinarily
allowed for civilian use under a licence issued by a competent licensing
authority.
Section 517:
Whoever, at any time prior to or after the passing of this Act,
belongs to, or is a member of, or assists in any manner whatsoever,
a group or gang of persons associated with or engaged in acts
of terrorism shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to ten years, and
shall also be liable to fine and forfeiture of his movable and immovable
property; provided that no such rigorous imprisonment shall be of
a term of less than seven years if the offender is armed with a deadly
weapon or explosive of a make, type and calibre not ordinarily allowed
for civilian use under a licence issued by a competent licensing authority.
Section 518:
Whoever shall be part of an assembly, group, or gang of persons
who assemble or meet at any time or in any place with the objective
of committing terrorism, shall be punished with rigorous imprisonment
for a term which may extend to seven years; provided that no such
rigorous imprisonment shall be of a term of less than ten years if
the offender is armed with a deadly weapon or explosive of a make,
type and calibre not ordinarily allowed for civilian use under a license
issued by a competent licensing authority at the time of such assembly
or meeting.