The Return of POTA & TADA :: The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state.
By Rajeev Dhavan 19 December 2008 Muslim India
(courtesy: South Asia Citizens Web, 19 December 2008)
India’s attempt to put its own legal house in order is reflected in two Bills — ‘The National Investigation Agency (NIA) Act’ and the amendments to the ‘Unlawful Activities Prevention Act (UAPA)’. Home minister P. Chidambaram’s Bills bring TADA and POTA back with a bang and innovate a National Investigation Agency (NIA).
Hitherto ‘policing’ was exclusively a ‘state subject’. India’s CBI could take over investigation and prosecution on (a) court orders or (b) with the consent of the state. The NIA Bill changes that to let the NIA hijack any prosecution or investigation from the state at will. The proposed NIA Bill is constitutionally competent. The Constitution’s Union List (I, Entry 8) permits a “Central Bureau of Investigation”.
Criminal procedure for prosecution is in the concurrent (List III, Entry 2). The NIA will be operationalised only for statutory offences relating to atomic energy, the UAPA, aviation, maritime, navigation, weapons of mass destruction, sedition and such offences, money laundering and counterfeiting. Under POTA and TADA, the massive misuse came from the states to alarm the Supreme Court, now the potential misuse will come from both the states and the Union, which can hijack the case. Political and communal targeting runs through our anti-terrorist legislation. Federalism will also be in partial jeopardy.
India is about to create a powerful FBI of its own, whose independence and political vulnerability are not beyond alarm; nor the new style special courts beyond criticism. No review agency is provided. With these caveats the NIA was long overdue.
The UAPA Amendment Bill is dangerous. Our examining principle should be: counterterrorism measures should not facilitate, or have the potential, for state terrorism. This is why the UPA launched a wholly new strategy in 2004. TADA or POTA were thrown out and the ordinary law [Criminal Procedure (Cr.P.C)] was brought back.
India’s ordinary law is tougher than UK and US anti-terror laws. This time the Union’s shopping list is full. First, the POTA favourites of pretrial imprisonment till 180 days, 30 days police custody, denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis) is back (Sections 43A to 43F). So, also, are the adverse inference provisions — if there is recovery of arms, explosives and other substances, suspected to be involved, including finger prints on them. Second, the definition of ‘terrorist act’ includes not just radioactive and nuclear material, but anything that may threaten India or overawe or kidnap constitutional and other functionaries listed by the government (Section 53). This list is potentially endless.
Third, new offences for organising terrorist training camps or recruiting terrorists attract punishment (Section 18A and 18B). There are salutary provisions against raising funds likely to be for terrorist use (Section 17). All these can be frozen (Section 51A). But safeguards exist except judicial review. Criminalising intent to aid terrorists and terrorist organisations is extended to aid to terrorist gangs (Section 23). Fourth are the magnum Sections 43A to 43F that modify our Criminal Code. We have already noted the pre-trial custody, denial of bail provisions and adverse inference provisions. To these may be added arrest and search and seizure on suspicion authorised by general or special orders by officers designated by the state and Union governments (Section 43A). The wrath of subjective suspicion will override the entire due process of the Criminal Code (Section 43C). All offences mentioned in the new legislation will permit arrest without warrant (Section 43D). There is an obligation to disclose any information which a superintendent of police thinks is relevant.
Failure may cost up to three years in jail (Section 43F). Journalists, beware. FIFTH, and finally, comes the big lie that all this is just tweaking the UAPA — a phrase misleadingly used by the Congress spokesman Kapil Sibal. This is not a tweak but a thump. These provisions can terrify the innocent, alleged to have bad thoughts, irreverent words and suspicious behaviour. The station house officer at the police station will be less feared, but superior officers can order reprisals, raids, search and seizure. With POTA and TADA, the process was always the punishment. At risk are the minorities, legal and illegal Muslim migrants, Christians, Vaiko style political activists and the Binayak Sens who honour our social work. There are no safeguards, or review committees. The fact that confessions to police remain inadmissible hardly supports the tweak theory.
After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state.
______________________________________________________________________
Hitherto ‘policing’ was exclusively a ‘state subject’. India’s CBI could take over investigation and prosecution on (a) court orders or (b) with the consent of the state. The NIA Bill changes that to let the NIA hijack any prosecution or investigation from the state at will. The proposed NIA Bill is constitutionally competent. The Constitution’s Union List (I, Entry 8) permits a “Central Bureau of Investigation”.
Criminal procedure for prosecution is in the concurrent (List III, Entry 2). The NIA will be operationalised only for statutory offences relating to atomic energy, the UAPA, aviation, maritime, navigation, weapons of mass destruction, sedition and such offences, money laundering and counterfeiting. Under POTA and TADA, the massive misuse came from the states to alarm the Supreme Court, now the potential misuse will come from both the states and the Union, which can hijack the case. Political and communal targeting runs through our anti-terrorist legislation. Federalism will also be in partial jeopardy.
India is about to create a powerful FBI of its own, whose independence and political vulnerability are not beyond alarm; nor the new style special courts beyond criticism. No review agency is provided. With these caveats the NIA was long overdue.
The UAPA Amendment Bill is dangerous. Our examining principle should be: counterterrorism measures should not facilitate, or have the potential, for state terrorism. This is why the UPA launched a wholly new strategy in 2004. TADA or POTA were thrown out and the ordinary law [Criminal Procedure (Cr.P.C)] was brought back.
India’s ordinary law is tougher than UK and US anti-terror laws. This time the Union’s shopping list is full. First, the POTA favourites of pretrial imprisonment till 180 days, 30 days police custody, denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis) is back (Sections 43A to 43F). So, also, are the adverse inference provisions — if there is recovery of arms, explosives and other substances, suspected to be involved, including finger prints on them. Second, the definition of ‘terrorist act’ includes not just radioactive and nuclear material, but anything that may threaten India or overawe or kidnap constitutional and other functionaries listed by the government (Section 53). This list is potentially endless.
Third, new offences for organising terrorist training camps or recruiting terrorists attract punishment (Section 18A and 18B). There are salutary provisions against raising funds likely to be for terrorist use (Section 17). All these can be frozen (Section 51A). But safeguards exist except judicial review. Criminalising intent to aid terrorists and terrorist organisations is extended to aid to terrorist gangs (Section 23). Fourth are the magnum Sections 43A to 43F that modify our Criminal Code. We have already noted the pre-trial custody, denial of bail provisions and adverse inference provisions. To these may be added arrest and search and seizure on suspicion authorised by general or special orders by officers designated by the state and Union governments (Section 43A). The wrath of subjective suspicion will override the entire due process of the Criminal Code (Section 43C). All offences mentioned in the new legislation will permit arrest without warrant (Section 43D). There is an obligation to disclose any information which a superintendent of police thinks is relevant.
Failure may cost up to three years in jail (Section 43F). Journalists, beware. FIFTH, and finally, comes the big lie that all this is just tweaking the UAPA — a phrase misleadingly used by the Congress spokesman Kapil Sibal. This is not a tweak but a thump. These provisions can terrify the innocent, alleged to have bad thoughts, irreverent words and suspicious behaviour. The station house officer at the police station will be less feared, but superior officers can order reprisals, raids, search and seizure. With POTA and TADA, the process was always the punishment. At risk are the minorities, legal and illegal Muslim migrants, Christians, Vaiko style political activists and the Binayak Sens who honour our social work. There are no safeguards, or review committees. The fact that confessions to police remain inadmissible hardly supports the tweak theory.
After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state.
______________________________________________________________________
Rajeev Dhavan is a senior advocate at the Supreme Court and other Courts in India, having fought many cases on affirmative action, human rights, secularism and constitutional governance. He is also the Director of a Public Interest law firm, Public Interest Legal Support and Research Centre (PILSARC).
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