[Reader-list] Fwd: Rajeev Dhavan on anti- Terror laws

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 Rajeev Dhavan on anti- Terror laws
To: humanrights movement <humanrights-movement at googlegroups.com>



India's Unlawful Activities Prevention Act (UAPA)
The Return of POTA & TADA
by Rajeev Dhavan, 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 innovated 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 neither 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 used 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.
The writer is a senior lawyer
(courtesy: Mail Today, 19 December 2008)


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