[Reader-list] Are Tougher Laws The Answer?

[Parvaiz Bukhari]

http://outlookindia.com/full.asp?fodname=20090108&fname=prashant&sid=1&pn=1

*Are Tougher Laws The Answer?*  *No. Far from curbing terror, draconian laws
used by a corrupt and communal police are creating conditions which will
only make the problem worse. The problem lies with the police, the
implementing agency.* [image:
...]<http://outlookindia.com/dossiersind.asp?id=583>  Prashant
Bhushan <http://outlookindia.com/author.asp?name=Prashant+Bhushan>
The terrorist attack on two five star hotels in Mumbai has led to a lot of
jingoism and muscle-flexing in the media, and on the streets. "Enough is
enough", "We will not pay our taxes", "we must destroy terrorist training
camps in Pakistan" are the kind of cries that are being heard very
frequently.  "Get tough on terror" is the new mantra and, among other
things, getting tough means bringing tougher laws.  The UPA government which
repealed POTA just 4 years ago because it was found to be draconian, misused
and counterproductive, has now used the jingoism to enact a "tougher terror
law" in the form of amendments in the already draconian Unlawful Activities
Prevention Act. These amendments were introduced in Parliament on the
15thDecember and passed the next day with virtually no debate and
without any
opportunity to civil society to study, digest and debate the implications of
the amendments.

Those who have been clamouring for tougher laws often do not know what makes
the law tough, and how "tougher" laws would deter or prevent terrorism.  In
the first place, it must be understood that a law can only help to keep in
custody, prosecute and convict any person who has been arrested. No law,
however tough or draconian, can deter or deal with suicidal terrorists who
are willing to die before they are caught.  The prospect of no bail or the
prospect of being convicted is hardly likely to scare or deter the kind of
terrorists who attacked Mumbai. In fact, in Iraq, the security forces or the
Army can detain or keep in detention indefinitely or even shoot down any
person at will. The police or security forces cannot have more draconian
powers than that. Yet, those powers, far from bringing down terrorism in
Iraq, have only led to conditions, which have created more terrorists who
are blowing up themselves and hundreds of people every day.

When POTA was repealed, some of its draconian provisions had been engrafted
into the Unlawful Activities (Prevention) Act. Those, along with  The
Chhattisgarh Public Security Act, whose provisions make it an offence to
provide any kind of assistance to a banned organization or a person
belonging to a banned organization, have been used to incarcerate * Binayak
Sen*, the General Secretary of the PUCL. Sen unquestionably one of the most
selfless activists, spent a good part of his life in setting up public
health clinics in remote areas of Chhattisgarh. He has been in detention for
the last one and half years on the charge that he has "assisted" Maoists who
were in jail by taking letters from them and giving them to their comrades.
It matters not that these letters he is alleged to have carried did not
contain anything subversive.  The mere fact that he is alleged to have
carried letters from an alleged Maoist is enough to charge him with
"assisting" an unlawful (Maoist) organization and thus a terrorist act.

Denial of bail under POTA had only allowed the investigative agencies to
keep under detention innocent persons against whom the investigative
agencies had no evidence of terrorism.  No court would grant bail anyway to
a person against whom there is any evidence of involvement in any terrorist
act.  No government has ever come up with a case that some terrorist act was
committed by a person who was arrested earlier but had to be released on
bail because of the absence of "stronger laws".  Similarly, everybody knows
that police confessions can be obtained from anyone by torture or under the
threat of torture.  They are a totally unsafe and unreliable basis for
charging or convicting any person.  These draconian provisions of POTA and
its predecessor TADA had only encouraged the police to detain innocent
persons indefinitely, chargesheet them on the basis of police confessions
and then prosecute them in trials which go on for years.  Once having
arrested the persons and chargesheeted them, the police claims that the case
has been solved. During this time, these persons are usually tortured in
custody, and forced to confess.  Their prolonged incarceration leads to the
permanent loss of their reputation and the economic destruction of their
families.  The fact that most of the persons chargesheeted under these
draconian laws were innocent is clear from the fact that  more than 98% of
them were eventually acquitted. But their acquittal came only after an
enormous toll on their reputation, health, lives and the economic survival
of their families.  This has not only caused great injustice to thousands of
innocent persons who have been unfairly arrested and victimized by the
investigative agencies in this manner, it is one of the major causes of the
insecurity, alienation and anger of the minorities against the police, the
criminal justice system and indeed the ruling establishment of the country.


This is indeed the finding of several People's Tribunals that have
extensively heard the testimonies of large numbers of persons who were
victimized by these Acts. The People's Tribunal on POTA consisting of
eminent jurists such as Ram Jethmalani, Justice Suresh, Justice D.K. Basu,
K.G. Kannabiran, and other eminent persons, opined in their report in 2004:
"Our review of victim and expert testimony shows that the misuse of the Act
is inseparable from its normal use. It is a statute meant to terrorise, not
so much the terrorists as ordinary civilians – particularly the poor and
disadvantaged such as Dalits, religious minorities, Adivasis and working
people."

A People's Tribunal on the terror investigations of the police in various
states of the country was held in Hyderabad in August 2008. The jury
consisted of two former Chief Justices, several other eminent, academics,
lawyers and social scientists. They came to the unanimous conclusion that:

"The testimonies showed that a large number of innocent young Muslims have
been and are being victimized by the police on the charge of being involved
in various terrorist acts across the country. This is particularly so in
Maharashtra, Gujarat, Madhya Pradesh, Andhra Pradesh and Rajasthan, though
not limited to these States.

This victimization and demonisation of Muslims in the guise of investigation
of terror offences, is having a very serious psychological impact on the
minds of not only the families of the victims but also other members of the
community. It is leading to a very strong sense of insecurity and alienation
which may lead to frightful consequences for the nation."

The amendments now rushed through in the Unlawful Activities Act undoubtedly
make it more draconian by giving more powers to the police to search,
arrest, keep in police custody and in jail persons on mere subjective
suspicion even if they have no evidence of their being involved in any
terrorist Acts. The newly introduced Section 43A of the act empowers an
officer of a designated authority to search any premises or arrest any
person of whom he has "reason to believe or knows" that he has a "design to
commit an offence under the Act.

Further, police officers investigating an offence under the Act have (with
the approval of the SP), been empowered to require any organization or any
individual to furnish any information that the officer may demand for his
investigation. The failure to furnish such information has been made
punishable with up to 3 years imprisonment. Such a provision can and will
easily be misused by the police to harass all kinds of activists, lawyers,
doctors  and journalists who stand up for, or provide any assistance, even
legal or medical, to an alleged terrorist.

The maximum period for keeping persons in police custody has been extended
from 15 to 30 days. Police custody is sought for "custodial interrogation"
which we all know is a euphemism for custodial torture. India has the
highest number of custodial deaths in the world and is among the few
countries which have not ratified the UN convention on torture. Though the
Constitution provides that no one can be compelled to be a witness against
himself, yet such coercive "custodial interrogation" is being allowed by the
Courts for months without end. Abu Basheer, the Azamgarh cleric who has been
dubbed as one of the many "Masterminds" of the serial blasts in Ahmedabad,
Jaipur and Delhi, has been continuously kept in police custody for more than
6 months now by arresting him serially (after every 15 days) in one after
another of the more than 25 FIRs that have been registered in Ahmedabad,
Jaipur and Delhi for the serial blasts.

The Code of Criminal Procedure provides that if the chargesheet against an
arrested person is not filed within 90 days, he will be entitled to Bail.
This is for the reason that till the chargesheet is filed it is virtually
impossible for an arrested person to get bail, even if the police has no
evidence against him. The new amendments also extend the maximum period for
filing a chargesheet against an arrestee to 180 days. Another amendment
makes bail virtually impossible even during trial. It provides that an
"accused person shall not be released on bail or on his own bond, if the
court on a perusal of the case diary or the report made under section 173
(the chargesheet) of the code is of the opinion that there are reasonable
grounds for believing that the accusations against the persons are prima
facie true"

These amendments make the Unlawful Activities Act as or more draconian than
POTA. The only draconian provision of POTA left out in this Act now is the
admissibility of police confessions.

Far from curbing terror, we find that draconian laws used by a corrupt and
communal police are creating conditions which will only exacerbate the
problem. The normal laws of the land are adequate to deal with terror
offences. The problem lies with the police which is the implementing agency.
The Supreme Court had issued many directions in September 2006 to implement
police reforms which several expert agencies of the government had
recommended many years ago, but which had not been implemented. They
included, setting up independent State and National Security Commissions,
Police Establishment Boards, Police Complaints Authorities and giving a
minimum tenure to heads of field police officers at all levels including
Police Chiefs etc.The thrust of these recommendations was to make the police
and investigative agencies accountable to the law and free them from the
strangulating control of the political executive. Neither the central nor
most of the state governments have implemented the directions of the Supreme
Court about police reforms. None of the major political parties are prepared
to relinquish their political control over the police.

Implementation of reforms within the Police and Intelligence agencies should
certainly improve security and reduce terror attacks. But that will not
eliminate the problem. Israel, with the most efficient intelligence,
security and police has not been able to eliminate the problem, despite the
small size of the country. There have suicide attacks almost every month. No
amount of intelligence or security can stop terrorists who are willing to
give up their lives. They can only be stopped if their motivation is
eliminated. That will require what Chomsky advised in the wake of 9/11. He
said: *"As to how to react (to 9/11), we have a choice. We can express
justified horror; we can seek to understand what may have led to the crimes,
which means making an effort to enter into the minds of the likely
perpetrators ... We may try to understand, or refuse to do so, contributing
to the likelihood that much worse lies ahead."*

Eventually, understanding the motivations of the terrorists and dealing with
the injustices that pervade our society, and repairing the institutions of
justice, particularly the police and the judiciary, will be a much more
effective way of fighting terror, than laws which give more draconian powers
to corrupt and insensitive police organisations.