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Published : September 21, 2011 | Author : ravimor
Category : Criminal law | Total Views : 5972 | Rating :

Dr. Ravishankar Mor, Faculty of Law, Yeshwant Mahavidyalaya, Wardha.

National Security and Preventive Detention

Many believe that stringent laws are required to counter terrorism. This belief is inspired by the logic that such laws will deter terrorists from indulging in acts of terrorism. Those who advocate for a stringent law to counter terrorism also believe that it will make it easier for the police and the prosecution to investigate prosecute and make perpetrators accountable for acts of terrorism.

Opponents of anti-terror laws raise the following arguments:
· "Stringent laws cannot deter terrorists as those who are ready to kill and tobe killed do not think of stringent laws;"
· Terrorism cannot be countered unless the causes of terrorism are addressed.

These include deprivation and denial of democratic rights that have pushed many youth to glorify acts of terror, alienation and disillusionment of people which are then misused to indoctrinate them about the advantages and need for acts of terror;

It is certainty of the law, and not the severity of the law, that can deter any crime. Certainty of the law comes from its effective and non-discriminatory implementation by state agencies; Even when stringent anti-terror laws were in force, terrorist attacks could not be prevented Existing laws such as Unlawful Activities (Prevention) Act (UAPA) 1967, the National Security Act (NSA) 1980 and the Disturbed Areas Act 1990 are adequate to deal with terrorism. At the same time with human rights concerned our country have another threat that’s terrorism..

Emerging Threats-
· While terrorism was largely a local phenomenon until recently, in today’s world terrorist networks have taken advantage of the communications revolution to develop transnational links, making terrorism a global threat. Thus, Al Quaeda is a global terror network which is a loose federation of terror-cells spread across the world but operating autonomously with very little operational linkages among them other than adherence to a particular form of extremist ideology.

· Another feature of the spread of terrorism is the ability of many terrorist outfits to cooperate with each other and build operational links in the form of supply of arms, logistical and even operational support without necessarily sharing ideological bonds. Such networks are also able to obtain support from organized crime outfits to further their destructive objective.

· The impact of modern technology, particularly, communication technology combined with increasing globalization, rapidly increasing trade in goods and services as well as faster movement of people across borders means that terrorism in the 21st century has acquired newer and deadlier dimensions. The accessibility to material and technology that have much greater destructive potential compared to the past also magnifies the nature of the threat posed by terrorism.

The existence of a large migrant population and porous borders in an increasingly multi-cultural world means that sleeper cells spawned through propagation of terrorist ideology, often by using the internet, can become the fifth column threatening the national fabric of democratic countries. Integration of national economies, banking and financial systems coupled with faster movement of money across national borders also make it easier to fund terrorist activities around the globe.

A strategy for fighting terror in India has to be evolved in the overall context of a national security strategy. National security, in its broadest sense, means security of life and property of every citizen in the country, as well as the common wealth of the nation, which belongs to all. The objective of the national security strategy has to be the creation and maintenance of a security environment which would enable the nation to provide opportunities to all individuals to develop to their fullest potential.

Much of the discourse on national security strategy has been based on the premise that national security can be achieved by ensuring protection of life and property for all. However, it needs to be clearly understood that socio-economic development and providing a secure environment have to go hand-in-hand as one cannot survive without the other.

Our national security strategy needs to be built round the concept that nothing must impede our drive towards the goal of eradicating poverty and raising everyone in the country above the poverty line. Any threat which could slow down this process has to be considered threat to national security. Among other causes, such threats could emanate from war, terrorism, organized crime, shortage of energy, shortage of water and food, internal conflict which may be armed or not or from natural or man-made disasters.

To tackle the menace of terrorism, a multi-pronged approach is needed. In this context, socio-economic development is apriority so that vulnerable sections of society do not fall prey to the propaganda of terrorists promising them wealth and equity; and the administration, particularly the service delivery mechanisms need to be responsive to the legitimate and long standing grievances of people so that these are redressed promptly and cannot be exploited by terrorist groups.

Strong measures are required to deal with criminal elements but with respect for human rights. To ensure this, the law enforcement agencies have to be supported with an appropriate legal framework, adequate training infrastructure, equipment and intelligence.

It is normally said that terrorism is a low intensity war. But the loss, which our country has suffered in the last two decades due to the rise of terrorist activities, has been on a very large scale. This country has fought four high intensity wars and in those wars we have lost more then 6000 people. We have already lost more then 70000 civilians. In addition, we have lost more then 9000 security personnel. Almost six lakh people in this country have become homeless as a result of terrorism. Outside the expenditure on our armed forces, merely for maintaining the entire set up to fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times. We have no record of the explosives that have been used in various parts of the country. We have a record of crime. But the explosives that have been confiscated by our security agencies weigh 48000 kilos. If our security forces had not been vigilant enough to confiscate these explosives, they would probably have been enough to take care of every inch of Indian soil.

What are the regions that are affected: It is not only Kashmir; Punjab too has suffered. Also Mumbai, Delhi and other regions of the country like the North East. Development has suffered, the economy has suffered. You have now a brand of Maoist terrorism; People's War Group and other groups. A large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh and Jharkhand right up to the Nepal border is affected. We had insurgency and terrorism in Tamil Nadu. We lost two of our former prime ministers to this kind of terrorism.

In terms of our sovereignty, unity and integrity and our feeling of nationalism, terrorism strikes at each one of them. This is the enormity of the problem that we are addressing. But it is also said that our criminal law systems have broken down; it seems to be a sad fact to accept. Are we aware of the conviction rate under the so-called ordinary laws- At times we try and conceal the figures and say that in India the conviction rate is 40%. But that 40% is actually a camouflage because every time there is a challan and somebody pays Rs 100 as fine, it is recorded as a conviction. Every time somebody feels guilty and pays a fine under company law, we take it as a conviction and then claim that the conviction rate is 40%. In heinous crimes like murder, the conviction rate under the so-called normal processes has come down to 6.5%. There are several reasons for this. One is that when we deal with hardened criminals, some of our old notions of criminal law have to change. It is a sad reality that crime in India has become a low risk business.

It is a high profit business with a 93% probability that you can commit a hard crime and get away with it.

So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunaes in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India and can have such stringent laws why can not we have such laws.

Consequences of repeal of POTA-Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government's Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of

1. Ordinance No.1 of 2004, it repealed POTA, a law specially designed to deal with the menace of terrorism with its repeal, the state apparatus combating terrorism has been debilitated.

2. By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organisations and activities were transferred to the pre-existing milder sounding Unlawful Activities (Prevention) Act, 1967 (UAPA). By Ordinance No 2, the definition of unlawful association has been expanded to also include any association which has for its object any activity which is punishable under Section 153A of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Section 153A is about promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.

3. There would be no arrests made after the ordinance is promulgated.

4. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorists may roam free under the bail a rule, jail an exception dictum. The police will not get sufficient time to interrogate the accused to investigate the cases which, by their very nature, are complex. In Pota, as in Tada earlier, confessions made before a police officer of the rank of superintendent were admitted as evidence.

5. All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act.

6. Some of the clauses contained in POTA, which will be completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer.

7. In another major departure from Pota, the government has removed all traces of strict liability. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question.

8. But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given more scope than before to plant evidence in the form of interceptions.

9. Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organisations and unlawful organisations. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. But the problem is that the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot, for instance, ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to hide special provisions in an ordinary law.

So what remains on the statute books- The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that political parties were not exposed to intrusion by the executive. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India.

It is ironic that there are consistent calls for more laws to protect Indian national security, even though there is already a plethora of laws in India under the IPC and the misapplication of these laws suggest that strong legislation are the there to curbed the tendency of acts against the state even though probably the most important piece of legislation has been rendered obsolete due to these misapplication of provisions.
Source: Adapted from http://www.un.org/terrorism/strategy-counter-terrorism.shtml (extracted on 29.05.2008)

Authors contact info - articles The  author can be reached at: ravimor@legalserviceindia.com

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