TADA in a new bottle

THERE is a move to bring back the Terrorist and Disruptive (Prevention) Act (TADA) in the shape of the Criminal Law Amendment Bill, 1995 (CLA). TADA was first enacted in 1985. Thereafter, with a few changes it was re-enacted in 1987 for two years and was extended from time to time. In 1995, due to the widespread resentment caused by harassment and popular opposition to TADA, the Government deliberately allowed it to lapse. After the lapse, the Government introduced the Criminal Law Amendment Bill, 1995. The old wine of TADA in a new bottle labelled CLA was supposed to erase the negative associations and make it palatable to a democratic civil society. However, `existential' problems intervened and the then Government became pre-occupied with trying to keep afloat on the stormy seas of our coalition politics.

The present resurrection of TADA is accompanied by exaggerated visions of violence to create a climate conducive to the smooth passage of the CLA Bill. In the post-hijacking scenario any attempt at debate or questioning of the basic premises underlying the enactment of undemocratic laws is sought to be pushed into the anti-national, pro-ISI corner.

Despite the anti-minority perception of the TADA, the Law Commission seems to have gone out of its way to mention religious fundamentalist militancy and confining it to the context of Al- Ummah and bomb blasts in Bombay and Coimbatore. Similarly, the predominantly Christian Nagaland and flow of foreign funds find a place. However, the increasing intolerance and fanaticism of majority religious fundamentalism reflected in the incidents in Varanasi, Kanpur and Gujarat do not even find a passing reference. At a time when reassurance is the need of the hour, this can only cause further unease among the already insecure minorities.

The fundamental flaw in the Law Commission recommendation is the lumping together of a wide variety of social and political movements under a cover-all blanket of `militancy and terrorism' and then prescribing the bitter pill of TADA as a necessary antidote. An irresponsible lack of inclination or perhaps aptitude to analyse the varying causes of diverse movements in the country, unfortunately common among our decision makers, has led the Commission to equate, for example, Marxist-Leninist movements rooted in the specific socio-economic conditions of Telengana with militant activities in Kashmir. Rather than grapple with complex realities, the same over-simplistic vision has led to not making distinctions between the Naga struggle for independence and the activities of Al-Ummah described as the principal fundamentalist outfit of Southern India. Populist catch-all phrases, such as `extremism' and `terrorism', reference to foreign powers destabilising the country, fit for drawing room conversations being used as a substitute for analysis will not help us to move towards a resolution of the raging conflicts in the country.

An analysis of the CLA, being marketed as `TADA with a human face' is revealing. TADA was enacted for two years as an extraordinary legislation to tackle a situation of unrest prevailing in some parts of the country. Its use was supposed to nip in the bud the unrest so that TADA would no longer be required. The present law is to be enacted straightway for five years. Under TADA an area had to be declared as a `disturbed area' before the stringent provisions came into force. The CLA has no such provision and is applicable from Kashmir to Kanyakumari! Thus, even in peaceful Kanyakumari, the police will `enjoy' the greater powers of interrogation and custody conferred. As experience has shown, wherever they can, the police invariably wants to invoke TADA, even for ordinary crimes. Maximum arrests and the single largest use of TADA was in Gujarat, a State where there was not even a touch of terrorism.

Confessions

The police's bias for the TADA is because of the fact that confessions to the police are admissible as evidence. Taking into account the harsh investigative methods used by the ordinary law of the land makes confessions to the police inadmissible as evidence. The admissibility of confessions is, infact, the singlemost objectionable provision of TADA.

To illustrate, in the Rajiv Gandhi assassination case, the police extracted 17 `voluntary' confessions which were withdrawn in court alleging torture but could still be used as evidence. And the police get an additional bonance of protracted custody along with the virtual denial of bail to the accused. These `wonderful features' of the TADA are enshrined in sections 15-A, 18 (2) (b) and 18 (6) (A) respectively of the proposed CLA. Infact, going further and contrary to the Supreme Court judgment in CBI versus Kulkarni in 1992, that police custody cannot be given after the first 15 days, the CLA permits reversion to police custody from judicial custody during the six-month period of detention on the mere filing of an affidavit by a police officer.

The definitions of terrorist and disruptive activities remain broad and all encompassing. Making any person who ``advocates, abets, advises, incites or facilitates the act'' liable makes the net even wider and leaves scope for roping in hundreds of innocent people as had happened under TADA. About two-thirds of the persons accused under TADA were discharged by the court as there was no evidence against them. Infact, the conviction rate under TADA was 1.11 per cent. Further, departing from the general rule that a person is criminally liable only for acts of commission, section 3(8) of the CLA makes omission to give information to assist apprehension of a person involved in a terrorist act punishable. As such, the police harass family members and this provision would legitimise their methods by making them an accused.

The burden of proof is on the prosecution. In a distressing departure from this, section 11-A directs the court to presume that the offence has been committed on the mere refusal of the accused to give a sample of footprints, handwriting, fingerprints, photographs, blood, saliva, semen or hair. The prosecution need not produce material objects such as bombs or witnesses and yet a person can get convicted of committing a terrorist act for refusal to give a footprint. Compelling a person to give evidence against himself is also violative of the right against self- incrimination enshrined in Article 20(3) of the Constitution.

Tinkering with the fundamental separation of the Judiciary and Executive under the Constitution, the CLA constitutes a ``Designated Authority'' (D.A.) of a joint secretary level officer and then under section 6F gives power alternately to the D.A. or Special Court in cases of confiscation of property. In a similar vein section 6G confers all the powers of a civil court on the D.A. Section 6A gives power to attach property to the police. Generally, property can be attached only after a person has been declared a `proclaimed offender' by a court. This substituting or alternating of an executive authority with the court is dangerous and does not augur well for the future. Under our Constitution laws creating offences can be made by the legislature alone. Contradicting this scheme, section 26 (c) confers power on an executive officer to make orders to cope with terrorist activities and provide for punishment in case of violation of the orders made.

The ``human face'' of the CLA is in the shape of section 19 which provides that information about the commission of an offence is to be recorded after prior approval of the Inspector General of Police. The ``higher officials are a safeguard against harassment of innocents'' theory has fallen flat in this country. Leave aside acting as a safeguard, time and again in cases of custodial deaths, higher officials protect their own to the extent of tampering with evidence. Section 19(A) direct that a custody memo should be prepared and a family member of the arrested person should be informed immediately. These are a reiteration of the law as declared by the Supreme Court in D. K. Basu's case in 1997. The blatant violation of this law is well-known. The CLA provides for no mechanism to check this.

At the heart of the debate about laws such as the TADA or CLA is the understanding of democracy, fundamental freedoms and the functioning of democratic institutions. Whether times of crisis and violence are times to abandon democratic checks on the state or to safeguard liberty and fundamental rights and reaffirm the ordinary law of the land is the question. Besides the TADA, even during the Emergency declared in 1975 because of supposed `internal disturbance', the unchecked powers to the Executive led to forced sterilisations and other innumerable atrocities on ordinary people.

The rulers since independence have not been able to abandon the colonial mindset of our erstwhile British masters and have invariably opted for harsher and harsher laws to tackle any social or political unrest. The movement for Naga independence has been going on for 50 years despite the draconian Armed Forces (Special Powers) Act. Efficiency of such laws even within their own premises is best illustrated by the TADA which was initially applied in four States and by the end was in force in 22.

Infact, the Rajiv Gandhi case has demonstrated that the ordinary law of the land is adequate to deal with concrete terrorist acts. The Supreme Court held TADA inapplicable, despite the CBI's theory of LTTE terrorism and convicted the accused of murder under the Indian Penal Code. Similarly, terrorists Sukha and Jinda were convicted for the murder of Gen. Vaidya under the ordinary law. Broad and vague definitions in laws only seem to give more unchecked power to the police to harass innocent citizens. Prescriptions like the TADA indicate that policy makers have no inclination to address the root causes of social unrest, thus blurring the distinction between the Home Ministry and the SHO of a thana with a scant understanding of the socio-economic causes of crime and believes that the ``danda'' or ``baton'' is the only way to vanquish criminals.

RAKESH SHUKLA

Advocate, Supreme Court

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