Opinion
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News Analysis
Terrorist law again and again - I
By K.G. Kannabiran
Restrictive legislation is almost always a signal of repressive institutional change, but is, of course, not the cause of it... The major focus of the defence of the citizen as a person can only be on procedure, or, as we call it in our society, due process.
- Stanley Diamond
Almost a 100 years ago, Motilal Nehru spoke about the attempt of the British to fracture Hindu-Muslim unity. He accused the British of making it an offence ``the fraternisation of Hindus and Muslims against the Government by law established!'' This was after the Jallianwala Bagh massacre and referred to not only that incident but also to the set of laws recommended by S.T. Rowlatt. We have a tradition of fighting repressive laws. It is not only against the British. Twenty five years after Independence we fought Emergency and the most repressive of preventive detention laws, the MISA. And 10 years later, it was the struggle against the TADA. The yardstick has always been the fundamental duty set out in Article 51 A of the Constitution. We should cherish and promote the ideals that inspired our Independence struggle.
Now, the BJP is pressing for measures that are basically undemocratic and the present POTO is one such. It has the support of the Law Commission, which formulated a permanent terrorist code for consideration. After September 11 and the American initiative against world terrorism, the Government came up with this ordinance on October 24. Unfortunately, the BJP and its allies have as much credibility as the Congress had when the latter came up with the Terrorist Acts in 1985, 1987 and 1993.
The Administrative and the Police bureaucracy in enforcing the TADA marred the ruling party's reputation; the Tehelka tapes and the attacks on Christians, including the Graham Stein murder, show that this Government and its bureaucracy are no better.
Added to this, the BJP never had any faith in the Constitution nor had any pretensions to democratic faith. Opposing POTO is a fundamental duty and not a crime against the nation.
We have a plethora of legislation covering the areas and activities covered by the Ordinance. The pre-Constitution British colonial laws, the National Security Act 1980, the Armed Forces Special Powers Act 1958, the Disturbed Areas Act 1999, the Anti-Hijacking Act 1982, the Suppression of Unlawful Acts Against Safety of Civil Aviation CT 1982, the Disturbed Areas Special Courts Act 1976, the Telegraph Act 1885, the Information Technology Act 1999, the Essential Services Maintenance Act, the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980, the Arms Act, the Explosive Substances Act 1908 with the latest Amendment providing for death sentence, and the Unlawful Activities (Prevention) Act 1967 almost cover the entire field covered by POTO. Apart from the Indian Penal Code, there are several state laws including the Organised Crimes Act passed in three southern States, covering the field of law and order and public order.
While assessing the justification for this Ordinance, the use, efficacy and performance of these statutes have to be studied and debated. A new criminal law admitted for discussion should contain a provision repealing outdated criminal laws, and the existing ones covering the same field should be suspended from operation while the proposed measure is in force. Law and order is not going to correct social imbalances, including imbalances in a representative democracy, by the presence of an array of specially-enacted laws.
The problem with this type of legislation is its use. The trauma commences from the time one becomes a suspect. Raids will be carried out in midnight and your premises will be turned upside down. The destruction in the process will never be recorded except by civil liberties activists. It will not be uniformed men who enter your house but `task force men' licensed by the state to act with impunity. They will keep you in illegal custody and incommunicado for long periods. You will be produced before the executive magistrate, if you are not killed in an encounter or made to disappear. The judge before whom you will be produced will believe that the ostensible is invariably the real! You will not complain about the indignities you suffered in unofficial incarceration and your kith and kin will not complain about your arrest, the way they were treated when you were arrested or about the brutal manner in which the search took place. Your family is afraid of the midnight visits and the possible indignities that may be inflicted. You will not complain because your captivity is total and you will be sufficiently advertised as terrorist and nobody will give credence to your complaints against the brutality you were subjected to. If you are yet to be apprehended your aged father or your able-bodied son will be held in custody until you are arrested.
What amendments to the Act will eliminate these atrocious acts which have become part of governance since the 1975 Emergency? These practices are present as part of law enforcement. And when a new Act comes into force the abuse that was routine, low-profile and manageable becomes brisk, aggressive and demanding. The TADA was crucified on the abuse of its provisions by one and all. These abuses were highlighted by all civil liberties and human rights activists. The NHRC endorsed the stand of these organisations. The provisions for prosecution and damages are likely to be flouted by the Government. The provisions of good faith and sanctions are formidable barricades against prosecutions for abuse.
(The writer is the national president of the PUCL)
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