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Report No. 173

Chapter III

Whether The Present Legislation is at all Necessary?

The representatives of the human rights organisations and other activists in that field, namely, S/Shri Prashant Bhushan, Advocate, Supreme Court, Ravi Nair from the South Asia Human Rights Documentation Centre, V.S. Mani from Jawaharlal Nehru University, Kamini Jaiswal, Advocate, Supreme Court, Justice Rajinder Sachar, former Chief Justice of Delhi High Court, Prof. B.B. Pande of Delhi University and Maja Daruwalla, Director, Commonwealth Human Rights Initiative, questioned the very necessity of such a legislation at the present juncture. Similar stand was taken by The Peoples Union for Civil Liberties (PUCL) (who while declining to participate in the seminars, chose to send the comments of Shri K.G. Kannabiran on each of the features of the Bill), The Peoples Union for Democratic Rights (PUDR) (letter from Shri Rakesh Shukla) and by another organisation "South Asia Forum for Human Rights".

They submitted that the proposed legislation was indeed the very same TADA, in a new garb. Indeed, some of them contended that the provisions of the proposed legislation are harsher than the provisions of TADA. They submitted that TADA was widely abused and misused by the police authorities while it was in force and that it had not succeeded in checking terrorism. They submitted that a number of accused who were arrested and were being prosecuted under the TADA, were still languishing in jails and their cases were still pending trial before the designated courts notwithstanding the fact that TADA itself had lapsed in the year 1995. If TADA could not successfully counter terrorism, they asked, how could the present legislation succeed.

They submitted that the police in this country is notorious for its third degree methods and illegal methods of investigation which is indeed the byproduct of their inefficiency. They submitted further that the Law Commission should not look to U.K. and U.S. or to the anti-terrorism laws in force there, because the standards of behaviour of the police in those countries were far more civilised and consistent with the norms of law. Introducing provisions similar to the provisions existing in those enactments would not be appropriate, they submitted, inasmuch as the social and political standards and the level of consciousness of the citizens of this country are not the same as that of U.K. or U.S.A.

The policeman is held in awe in this country and this legislation would clothe him with more arbitrary powers which cannot but result in harassment of innocent persons besides being unable to achieve its objective. They further raised the point that before enacting such a legislation there must be a far wider debate throughout the country and that the Commission must also look into and verify several abuses which had occurred under the TADA. They submitted that human rights of the citizens of this country would be in great peril if such a law was enforced. Another submission put forward by Shri K.G. Kannabiran is that terrorism is a consequence of socio-economic injustice and is thus really a political problem and not a `law and order' or `public order' problem.

On the other hand, Brig. Satbir Singh, Senior Fellow and OSD in the Institute of Defence Studies and Analysis, Shri K.T.S. Tulsi, Senior Advocate, Supreme Court, Shri K.P.S. Gill, former DGP, Punjab, Shri Shiv Basant, Joint Secretary, Ministry of Home Affairs, Shri S.V. Singh, Addl. DGP, Punjab, Shri S.S. Puri, Addl. DGP, Maharashtra, Shri M.L. Sharma, Joint Director, CBI, Dr. P.K. Agarwal, Joint Secretary, Ministry of Home Affairs, Shri P.K. Dave, former Lt. Governor of Delhi, Shri S.K. Singh, former Foreign Secretary, Shri U.R. Lalit, Senior Advocate, Supreme Court, Shri A.K. Shrivastava, Judge-Advocate-General, Army, Lt.Gen.(Retd.) Dr. M.L. Chibber, Shri L. David, Addl. DGP, Assam, Shri H.N. Ray, former Finance Secretary, Government of India and Shri Ashok Bhan, Advocate and a Kashmiri migrant Pandit, called for a more stringent law than the one proposed.

They submitted that some of the proposals put forward by Law Commission with a view to provide protection to the accused were unworkable and impractical. They pointed out the serious situation in which India was placed now with terrorism threatening its security from all sides. They pointed out that today India was threatened not only with external terrorism but also with internal terrorism. They submitted that Indian Penal Code was not conceived and was not meant for fighting organised crime; that it was designed only to check individual crimes and occasional riots at local level.

Organised crime perpetrated by highly trained and armed fanatical elements or mercenaries who are trained, financed, armed and supported by hostile foreign countries and agencies had to be fought at a different level than as an ordinary law and order crime. They pointed out that the anti-terrorism laws of the U.K. and U.S.A. were far more stringent than the provisions of the proposed legislation. They submitted that the plea that police was likely to misuse or abuse the provisions of the new legislation could not be a ground for opposing the very legislation to fight terrorism. It is one thing to say, they submitted, that the provisions of the legislation must be so designed as to prevent or minimise its abuse and misuse and quite another thing to say that because of the possibility of abuse, no such law should be enacted at all.

For that matter, they submitted, there was no Act on the statute book either in this country or anywhere else which was not open to abuse or misuse. Even provisions of the Code of Criminal Procedure or the Indian Penal code were liable to misuse but that could not be a ground for asking for the repeal of those enactments. They submitted that one must realise the extraordinary, alarming and dangerous situation in which the country was placed today because of the activities of the hostile neighbour and the fundamentalist Islamic terrorism which have made India their prime target.

They pointed out that foreign terrorists now far outnumbered the local terrorists in Jammu and Kashmir and that thousands more were waiting to enter J&K with a view to carrying on the so-called `Jehad'. In such a situation, any delay or inaction on the part of the country to take measures to fight these terrorist elements would be a grave dereliction of duty on the part of the State. The present enactment was but one of the means of fighting terrorism and therefore its enactment could not validly be opposed.

Shri Justice J.S. Verma, Chairperson, National Human Rights Commission, while inaugurating the first seminar, opined that having regard to the extraordinary situation obtaining in the country and in view of the steadily worsening situation in certain parts of the country, a special law was necessary to fight terrorist activities. At the same time, he suggested that the Act must contain necessary safeguards and it must be a legislation with a human face. He stressed the importance of maintaining a balance between individual rights and the rights of the society and opined that in case of conflict between the two, the interest of society must prevail.

Justice Verma referred to several decisions of the Supreme Court rendered under TADA including the decisions in Kartar Singh, Sanjay Dutt and Shaheen Welfare Society and suggested that the several guidelines available in those decisions might be kept in mind while enacting the new legislation. The learned judge also referred to the Armed Forces Special Powers Act and stated that its constitutionality had been upheld by a Constitution Bench of the Supreme Court while reading certain constitutional safeguards into the Act. He pointed out the long pendency of cases under TADA and the adverse image of India it was creating in the international arena.

He suggested that the Preamble to the Constitution and the guarantees contained therein should be kept in mind and that in the matter of bail, a classification of cases may be provided for on the lines indicated in the of decision in Shaheen Welfare. The learned judge also stressed the importance of speedy trial. If bail was not granted and the trial was also not proceeded with reasonable promptitude, it becomes oppressive, the learned judge stated. Six months should be the time limit for a trial to conclude. The learned judge also affirmed the correctness of the argument that the mere possibility of abuse could not be a ground for the very enactment of such a legislation.

On the other hand, the learned judge pointed out that effort should be made to try to find out how best to prevent the misuse and abuse of the provisions of such a legislation. The learned judge then referred to the experience under TADA and suggested that investing powers under the Act in higher authorities was an effective means of preventing its misuse. He also referred to the experiment of the Review Committees and to the desirability of plurality in the composition of the reviewing authorities. He concluded his inaugural speech by observing that while the legislation was necessary, it was equally important to incorporate provisions to prevent its misuse. He also suggested that the authorities found misusing the provisions of the Act, should be sternly dealt with.

Shri P.P. Rao, Senior Advocate, Supreme Court and a former President of the Supreme Court Bar Association spoke in the same terms as Justice J.S. Verma. He welcomed the provisions relating to presence of counsel during the interrogation of the accused and suggested that the power to arrest or the approval of decision to arrest should be by an authority higher than the Superintendent of Police. In the matter of bail, the learned counsel suggested that the basic premise being liberty, the provisions with respect to bail should not be made too stringent. He also emphasised the desirability of speedy trial.

On a consideration of the various viewpoints, the Law Commission is of the opinion that a legislation to fight terrorism is today a necessity in India. It is not as if the enactment of such a legislation would by itself subdue terrorism. It may, however, arm the State to fight terrorism more effectively. There is a good amount of substance in the submission that the Indian Penal Code (IPC) was not designed to fight or to check organised crime of the nature we are faced with now. Here is a case of organised groups or gangs trained, inspired and supported by fundamentalists and anti-Indian elements trying to destablise the country who make no secret of their intentions. The act of terrorism by its very nature generates terror and a psychosis of fear among the populace.

Because of the terror and the fear, people are rendered sullen. They become helpless spectators of the atrocities committed before their eyes. They are afraid of contacting the Police authorities about any information they may have about terrorist activities much less to cooperate with the Police in dealing with terrorists. It is difficult to get any witnesses because people are afraid of their own safety and safety of their families. It is well known that during the worst days in Punjab, even the judges and prosecutors were gripped with such fear and terror that they were not prepared to try or prosecute the cases against the terrorists.

That is also stated to be the position today in J&K and this is one reason which is contributing to the enormous delay in going on with the trials against the terrorists. In such a situation, insisting upon independent evidence or applying the normal peace-time standards of criminal prosecution, may be impracticable. It is necessary to have a special law to deal with a special situation. An extraordinary situation calls for an extraordinary law, designed to meet and check such extraordinary situation. It is one thing to say that we must create and provide internal structures and safeguards against possible abuse and misuse of the Act and altogether a different thing to say that because the law is liable to be misused, we should not have such an Act at all.

The Supreme Court has repeatedly held that mere possibility of abuse cannnot be a ground for denying the vesting of powers or for declaring a statute unconstitutional. In State of Rajasthan v. Union of India (1978 1 SCR p.1), the Supreme Court observed "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief" (at page 77).

Similarly, in Collector of Customs v. Nathella Sampathu Chetty (AIR 1962 SC 316), the Court observed, "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity". In Kesavananda Bharati v. State of Kerala (1973 Supp SCR p.1), Khanna J. observed as follows at page 755: "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience."

To the same effect are observations of Krishna Iyer J. in T.N. Education Department v. State of Tamilnadu (1980 1 SCR 1026 at 1031) and Commissioner H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282). All these decisions were referred to and followed by a recent nine-Judge Constitution Bench in Mafatlal Industries v. Union of India [1997 (5) SCC 536]. With respect to the plea that even if an anti-terrorism law is made, it should not be a permanent enactment, we must say that this objection is academic since the Bill, as drafted by the Government read with the Official Amendments, speaks of only a five year duration for the proposed legislation, which feature remains unchanged.

Report on Prevention of Terrorism Bill, 2000 Back

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