The number of attacks on civilian targets in major cities in India has once again raised the question whether special laws need to be enacted to counter terrorism and deal with terrorist activities. The disturbing fact is that those who are not in favour of the enactment of law to counter terrorism often revert to old adages and arguments that are flawed as they no longer reflect the reality of the times we live in. After every act of terrorism, horrific images beamed by the visual media deliver a stunning blow to society. There is at once a clamour for stringent laws but as the images fade or are replaced complacency sets in till the next incident reopens the debate. There are certain myths about terrorism that have existed for quite some time and before any argument can be made in favour of the enactment of such a law it is imperative to explode those myths.
The First myth is that there is no definition for terrorism or terrorist activity. The adage now discarded by serious analysts, is still paraded in forums i.e. "One man's terrorist is another man's freedom fighter". That this no longer stands up as an argument is obvious. The ideological terrorists who targeted the symbols of oppressive regimes or authorities who were contrary to their belief systems have been replaced by terrorists who target innocent civilian population for a nebulous cause: the bomb in the market place, kidnapping busloads of school children, killing families in theatres, shopping malls and amusement parks. How anyone can even for a moment label them as freedom fighters confounds the logical mind. Any discussion on terrorism is not a matter of semantics but a grave concern of the safety of civilians and the security of society which is the duty of a state to protect. Over and over again one has to listen to persons smugly state that terrorism defies definition; therefore, what cannot be defined cannot be identified. It is imperative to understand that even though an all –encompassing definition for terrorism does not exist there are a number of working definitions that underline what terrorism is and how an act of terrorism can be identified. What entails a terrorist activity may defy specific definition but it certainly is possible for anyone to recognise such a violent act against society. Any act that deliberately and systematically aims the murder, maiming and menacing of the innocent civilians to inspire fear for political, religious or any other ideological end is an act of terrorism. The lack of discrimination in choosing the target by the terrorist organisations spreads fear: if no one is a target then no one can be safe.
The Second myth is that terrorism is the result of marginalisation of certain sections of society by the state and its machinery which has lead to great dissatisfaction resulting in the group turning to violence to address their grievances. Therefore, addressing their problems and removing these causes will eliminate terrorism. This argument advocates a soft approach to counter terrorism. Good governance is identified as the panacea of all ills. Therefore the argument is: any law formulated to curb terrorism will only exacerbate the existing problems. Good governance and addressing the ills of marginalisation is a welcome social conversion but it does not deal with the menace of terrorist violence against citizens. There is also no doubt that terrorist organisations seek to their recruits from those who have economic disadvantage. They use them as foot soldiers to carry out their orders and commit the final violent act but those who run these organisations or master mind the terror campaigns are educated, urbanised intellectuals as well as those motivated by their own brand of warped ideology. Those who preach violence are different from those who put it into practice Therefore, laws are required to deal with the main organisations suspected of spreading and spearheading the terrorist activities and not just the perpetrators of the acts.
The Third myth is when an incident occurs the state and the intelligence have failed miserably ( as the cub reporter on the scene of every by-the-hour news channel often surmises) .The media immediately faults the intelligence agencies and state machinery for not anticipating the attack yet balks at any attempt to enact a law to deal which would ensure otherwise . It is not possible for the state machinery anywhere to recognise and identify the every lowly recruit of the organisation who may have been entrusted with a specific act to be committed at a specific time on a given date.A pragmatic approach needs to be adopted instead of emotional reaction. If a law were to permit the state to monitor constantly an organisation suspected to be capable of subversive activity and to enquire into its activities, it is possible to pre-empt such occurrences. It is not sufficient to seek the suspects of the violence after it has resulted in the deaths of the innocent; laws are required to ferret out the leaders of such organisations capable of suspicious activities before the incidents occur. The strategist and the fund raisers of such organisation should be dealt with severely under the law before the occurrence of an act of violence. Identifying these organisations would not be a major task as these organisations are known to preach and publish their intentions. Organisations and outfits that espouse causes seek media attention to justify their existence and often advertise their intentions through public statements to the media or at rallies and meetings. The success of an organisation lies often in the inability of the authorities to pay heed to them and take suitable action against these organisations. The Aum Shinrokyo movement in Japan began its public campaign of terror in 1994 with the release of sarin gas in a residential neighbourhood .It had published pamphlets and openly stated their intention of using sarin gas and had moved truckloads of chemical agents into their compounds. These apparent signs went unheeded .Had their movements been sufficiently monitored , such large consignment of chemicals moving into their compound would not have passed unnoticed and the 1995 Tokyo attack on the subway system would not have occurred. The police and intelligence, therefore, need to be further empowered under law to maintain a constant vigil concerning all organisations with a capability of turning into terrorist organisations. Communications, recruitment of members and movements of consignments have to be monitored to prevent stocking of chemicals, explosives and arms and ammunitions.
The Fourth myth is that it is not possible to judge at what point of time a political, social or religious organisation becomes a terrorist organisation. Therefore monitoring organisations would impinge on their rights to carry out lawful activities. This of course is an extension of the first myth that an organisation may be genuinely fighting a repressive regime and therefore has had to resort to violence to achieve its end. This again a conceptual misinterpretation – no organisation or person belonging to them can justify violence against the innocent civilian population. The moment violence is directed at society at large , there can be no doubt that the persons committing such acts are terrorists and the organisation that logistically supports, trains or provides funds for them or accepts and endorses their acts as being part of their greater cause is a terrorist organisation. Several organisations acting with impunity in India would fall within the ambit of the new law.
A brief note on the two laws in India that were enacted to deal with terrorism at different times. Both these laws were severely criticised as they violated human rights and vitiated the due process of law. There was uproar in all sections of society and they were consequently repealed. That they flouted the basic concepts of the legal system is irrefutable. Pervious laws in India to deal with terrorism were the Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987) and repealed in 1995. The Indian government introduced the Prevention of Terrorism Ordinance (POTO) on October 2001 and the legislature passed The Prevention of Terrorism Act (POTA) in March of 2002. Both the laws resulted in gross abuse of human rights during implementation and there is sufficient evidence to uphold these allegations. The laws had abhorrent features that violated fundamental freedoms enshrined in the Constitution of India.
Briefly, the inherent flaws were as follows: 180 days detention was permitted without charges being framed, the presumption of guilt of those subject to the law, summary trials, trials in absentia - all of which violated all norms of equitable justice. The sketchy review procedure came under severe criticism. The gross abuse of the laws occurred due to several factors. The texts of these laws were too broad and the term terrorism included everything. The generalised term covered ordinary criminal activities covered by the penal laws of the country like theft and murder. The interlocutory orders of the Special Courts set up under the new laws could not be reviewed. Since the state governments had powers equal to the Central government under these laws there was gross misuse by the state machinery especially in Tamil Nadu, Gujarat, Maharashtra where the laws were used to quell political opposition or to settle personal scores and all this is supported by statistics. .The erratic application of the laws at various times also varied from state to state.
Stating the severity of the earlier laws and their misuse only serves to underline the need to reframe the laws; it does not raise the question whether a new counter terrorism law is required are not. Anti terrorism laws are an absolute necessity for society and it should not be treated as political issues even if the implementation is questioned by human rights forums. Anti terrorism law should be viewed as an efficient response within the rule of law. It has been seen that the policy of military response to terrorism is short lived and does not have long term legal effect. To stymie terrorist organisations and weaken the capabilities of terrorist organisations there is an urgent need to enact counter terrorist laws. The state has to be empowered by law to prevent recruitment of cadres, raising of funds and other forms of support by propaganda and to scrutinise and freeze funds and assets. Vigil of terrorist organisations and of other such organisations with the potential to become terrorist organisations irrespective of whether terrorist acts are committed by them or not has to be sanctioned by law. Constant surveillance of its leaders, members and supporters is required. A wait-and-see policy would endanger the liberty of society and lead to grave consequences.
Counter terrorist laws should be viewed as safeguards for collective safety and there should have no partisan or parochial considerations. It should be understood that measured infringement of individual freedom is not violation of fundamental right. No longer do we question additional security measures at airports, public places and other sensitive areas as violating privacy being well aware that safety supersedes discomfort. It is the duty of the state to prevent the existence of destructive forces within its territorial jurisdiction which endanger the life and liberty of its citizens and the safety and security of other states.
Terrorism is not a passing phenomenon and a new counter terrorism law is urgently required to deal with it effectively. The new laws must, however, incorporate certain features that ensure that there can be no misuse by the enforcement machinery.
The primary concern is the rule of law. Laws are not to be enacted that in any manner operate outside the realm of rule of law.
The definition of terrorism has to be sufficiently narrowed to exclude criminal activities: if intention to terrorise is missing, mere criminal activity should not fall within the purview of the special law. Similarly, an act that would not be criminal but would be permissible under freedom of speech and expression should be deemed an act supporting terrorism if the intention is to garner support or is supportive of a proscribed organisation.
Witness protection would have to be incorporated under the new law to ensure greater co operation from fringe elements and sections of society aware of such organisations and their activities.
Another important aspect to be considered would be the uniform and consistent application of such law by the enforcement authority throughout India.
Transparency and review procedures would have to be clearly set out in the newly enacted law.
There should be a centralised system to prevent inconsistent application and interpretation of the law throughout the territory. Establishment of a central judicial agency for even application and uniform interpretation should be set up.
Special agencies should be set up so that the overburdened enforcement agency in the state is not required to handle the activities under the special law. Such agencies should also be sufficiently trained and sensitised about the application of the law.
Specific fund allocation by the government for the agencies that apply the law has to be made as part of the states serious intention to cub terrorism. No agency can function without proper infrastructure, manpower or technology.
This will address the fears that any law dealing with terrorism will abrogate human rights and will place all organisations with genuine concern for addressing social issues under the purview of the state agencies who will then use the laws to curb opponents and settle political scores.
There are no minor forms of terrorism and if there has been concrete evidence of earlier abuse of counter terrorism laws, it is the implementation of the law that should be scrutinised and rectified; the need for counter terrorism law should not be questioned.