Showing posts with label POTA. Show all posts
Showing posts with label POTA. Show all posts

Sunday, 21 December 2008

In Muslim India, an internal battle


SECURITY:: The struggle to wrest back interpretations of Islam from the extremists could give security a boost, but more importantly, it could halt the marginalisation and ghettoisation of Muslims in India, writes Firdaus Ahmed. 


By Firdaus Ahmed               21 December 2008                             Muslim India

By now the 'common sense' on the terrorist attacks besetting India over the last six months is that these are the handiwork of a new group calling itself the Indian Mujahedeen. The group has been emboldened enough to broadcast its manifesto in the form of emails delivered to media centres and intelligence hubs prior to the attacks. It is reported that this is a hard line, breakaway faction of the banned SIMI, that has arrived at its name by dropping the first and last alphabets of the acronym of its mother organisation.

An encounter in the bylanes of a crowded locality near Jamia Millia resulting in the death of a crack Inspector from Delhi's Special Cell has established the presence of terrorist cells in minority pockets. This, and other incidents have provoked considerable soul-searching - in the government in particular, with no less than the Home Minister being on the firing line.

And there are visible signs of new intent, even if not resolve, to tackle the growing threats. Policing has received a fillip in terms of infusion of budget, equipment and ranks; a research wing has been established in the Intelligence Bureau; talk of raising a federal intelligence agency to tackle issues requiring coordination between the centre and the states is reaching a climax; and a stringent anti terror legislation, that excludes the 'draconian' portions of the earlier POTA, is in the offing. These steps in the right direction should all have been taken long ago, irrespective of the acceleration that the terrorist attacks have provided them now. Better late than never.

A growing chasm

Amidst all this, however, something has been lost. There is now a growing chasm between the majority and minority communities in India, best evidenced by lack of credibility of the official line on blast investigations in the minority community. The minority view, anecdotally accessed and carried in the Urdu press, is that there is more to the blasts than meets the eye, that they may have engineered by those who would like to entrench an enmity between majority and minority India. The issues being raised by the equally incredulous liberal minded human rights community also provide some fuel for this perception.

It is certainly possible that the community is in denial; still, for the first time there is a pan Indian perception of a minority under threat. Investigations by security agencies are taking a toll on community life in Andhra Pradesh and Karnataka in the south; Gujarat and Rajasthan in the west; Indore in central India; and UP, in Azamgarh in particular, in the north. More importantly this time round the intelligence net has been cast wider to include upwardly mobile professionals such as computer technicians and even doctors. Even those attempting to escape into the ranks of the respectable middle class are now in the line-up. There was even a media report on recent converts being investigated for any connection with terrorist activity. And sources of funds for charitable activity - a religion ordained requirement of Muslims - are under the scanner.

The overall result of such well publicised events and the follow-up is a heightened perception of threat, accentuated by the rise in unbridled majoritarianism - as witnessed in attacks on Christian minorities in Karnataka and Orissa. In its mildest form, but most illustrative, this perception is found in the public complaint by the actor Shabana Azmi, about not being able to purchase a flat on account of her being Muslim, and perhaps, on that account, a beef-eater.

The changes that the blasts have wrought is that while earlier minority security problems were local, today this has an all-India character. There is however no all-India minority representative organisation. This is all for the good; the community and the nation having been let down thoroughly once earlier by the Muslim League with such pretensions. If the terrorist vanguard in the form of SIMI and the IM or the underworld led by D Company is allowed to fill this vacuum in their self projection as saviours, then it would be a national calamity. The onus therefore is on the state and mainstream parties, particularly those manifestly and self-professedly secular, to ensure ventilation of grievances and redress.

The state is rightly disarming the terror cells that falsely claim to protect minorities, but it would do well to also reassert its monopoly over force by equally expeditiously neutralising saffronite extremist groups that now feel emboldened by the growing chasm between the communities. Not coincidentally, the agenda for the forthcoming elections has already been set by the blasts, and the cudgel has been taken up by Hindu nationalist parties in earnest, with Narendra Modi as the flag bearer for the stern-faced L K Advani. Right thinking parties need to take on the right wing, and put the real issues before the masses at the voting booth.

An internal battle

The minority community, for its part, must foster a positive outcome out of all this. Withdrawal is not the answer. An intra-community dialogue needs to be continued, to wrest back the concept of Jihad, usurped by the extremists, to read 'ethical conduct', and not 'holy war'. This is an effort that has already begun with the fatwa from Deoband and the gathering of Muslim clergy in Delhi on the issue early this year. Since the militant posture adopted by the militants in the ranks is largely projected as saving the community's honour, the concept of quam ki izzat needs to be redefined to read excelling in all fields of endeavour - as had been the requirement of the Holy Prophet in his urging that his followers outdo others in good deeds.

The outcome of this internal battle will determine the level and energy of external support in the form of state intervention, and would also preserve the community from manipulation by political parties. This would also counteract the ghettoisation and marginalisation being forced on it by Hindu extremist groups.

The international climate is also grim, marked by the Global War on Terror going awry. In the sub-continent, this has potential to set free parochial winds manipulated by global interests. In the deepening psychological Partition underway, India has a vulnerability it cannot see exposed. Thus far the linkages made in strategic commentary between Islamism abroad and the Indian minority predicament could easily be shot down as contrived, since no Muslim Indian fought alongside the Taliban or was on Al Qaeda database. Nor did any non-Kashmiri Muslim Indian join the Kashmiri insurgency. If India's problems and their resolution were to converge with that of the global one, this would only benefit the global players on both sides of the conflict and their covert allies within the polity; but will be to India's detriment.

A sense of urgency is thus needed, in all actions by all quarters. The minority community needs to acquire agency by reasserting 'religion as faith', and not 'religion as identity'. It could, in doing so, strengthen the hands of the state and the liberal political segment in grappling with the larger internal demon by far - majority extremism.

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Photo: Participants at the Muslims Initiative against Terrorism programme at the India Islamic Cultural Centre, New Delhi on 19th December, 2008. Photo credit/twocircles.net

Firdaus Ahmed is a freelance writer on security issues and a regular contributor to India Together.

"This article was first published in India Together (www.indiatogether.org) and is republished here with the permission of the author".
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Friday, 19 December 2008

India’s Unlawful Activities Prevention Act (UAPA)


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.
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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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