LAW AND COUNTERTERRORISM: THE PREVENTION OF TERRORISM ACT,2002
The challenge of terrorism that has confronted India within the post-independence era has arguably been more complex, sustained and destructive than the other liberal democratic order in the same period. Reflecting India’s size, ethnic and non-secular diversity, and therefore the perennially toxic nature of South Asian geopolitics, terrorism in some shape or form is a smaller amount a recent aberration than a constantly mutating norm. This article examines India’s evolving approach to counterterrorism and how it has adopted a localized, defensive, law-and-order approach to counterterrorism which has evolved in response to various attacks over the years but remains seriously underdeveloped.
Using the law as a tool to improve national security is always an uneasy procedure in democracies, where security interests may conflict with the more democratic goal of law and order—maintaining civil liberties. The Prevention of Terrorism Act (POTA) is a manifestation of this dilemma: it is one law that seeks to fulfil both goals. Thus, the question that should be asked when evaluating POTA is not how much civil liberty is lost, nor how much security will be gained. Instead, the question should be: how much is India willing to compromise either of these goals to save the other? Both are integral to India’s character as a sovereign democratic state, but either could significantly harm that character in excess. POTA— with its harsh measures and implementation loopholes standing next to procedural safeguards of due process—demonstrates Parliament’s understanding of the need to compromise to aim for that elusive optimal point between a secure, undemocratic state and an insecure, volatile, fiercely democratic one.
Unfortunately, POTA is far from optimal, compromising security and liberty to an unnecessary degree. Its problem is its lack of strategic context. A coherent counterterrorism strategy would circumscribe the law’s implementation, tying it with other explicitly stated administrative and government efforts that would prevent its misuse and supplement its effects. Much like TADA, its maligned predecessor, POTA is presently vulnerable to abuse
and thereby contradicts the goal of maintaining liberties. Furthermore, by giving politicians the right to say they are fighting terrorism and making the state stronger, POTA obscures the need for a strategy, the continued absence of which could hinder the other goal of providing security. Indeed, POTA has become part of the misshapp
en quilt of ad hoc counterterrorism efforts that have served India so poorly in the past. But because it could remain a permanent fixture in Indian law, it is potentially more detrimental. It appears strategic without being so.
This report starts by providing a comprehensive introduction to the topic. Then it discusses how the need for a security-related act like POTA came into existence. Then it discusses what should be the main focus while terror attacks are happening, is it on the terror attacks or democracy’s response to the attacks.
Later, it discusses the solutions and recommendations that have to be done or the changes to make the POTA Act more applicable to people. Then, it shows the table that displays the terror attacks under NDA.
At last, it concludes with the graph detailing the decrease of terrorist attacks in India during 2016-2019 and finally, the position of India currently related to terrorism.
Historical View: –
To pinpoint the place of POTA in Indian and global history is to think about the intersection of two historical narratives. The first such narrative is that of the facility of law in India. The primary ruler of the traditional Maurya empire, Chandragupta, was the primary to pay close attention to national security and preferred wielding the danda, that’s, using fear during a near-totalitarian way. Whereas Chandragupta’s means of achieving such security relied on networks of spies and constant ministers, it had been not until the British ruled India that the country had its first uniform system, and more importantly to the story of POTA, the primary far-reaching repressive laws, beginning with the facility of preventive detention in 1793. By imperial norm and necessity, all British security laws were undemocratic, particularly considering that the British didn’t face a genuine terrorist threat. Instead, they faced a legitimate struggle for self-rule, and even this didn’t quite have the impact of modern-day insurgency and terrorism.
The newly sovereign Indian politicians hotly debated the need of maintaining the colonial laws, but the various challenges of Independence and Partition appeared to justify some protective measures. The new democracy armed itself with preventive detention powers, sanctioned by Article 22 of the Constitution and the Preventive Detention Act of 1950. The years following Independence, Parliament passed laws like the Armed Forces Special Powers Act and the Disturbed Areas Act, which were often more draconian than POTA. These special area laws and their many peers, plus the Indian legal code and therefore the Criminal Procedure Code inherited from British India, seemed sufficient to Parliamentarians even with handling terrorists. But this changed in 1971 when Prime Minister Indira Gandhi enacted a stringent law used for counterinsurgency and counterterrorism— the upkeep of the Internal Security Act. Because insurgency was considered a more widespread and disruptive problem than terrorism at the time, the Act was quite draconian, especially when amended during the emergency to permit arrest with none specified charge. MISA also provided the establishment of a planning board to listen to cases. Ostensibly nonpartisan, the three board members were actually government appointees selected for or her politics. In 1984, after increasing the Khalistan movement, Parliament enacted the National Security Amendment Act, which allowed a yearlong detention period. Although they avoided explicitly claiming anti-terrorist laws, these were among the first of India’s countrywide laws used against terrorists. The laws also stopped in need of defining terrorism specifically.
Democratic View: –
To push national security legislation through a democratic system, politicians must await the tiny window of opportunity when political necessity matches political will— that’s when something a state must do to protect itself is also a politically popular measure. It often takes a crisis to open or create that window of opportunity, and that crisis came in 2001 for the US and India. Within four months, the world saw three large-scale, carefully planned terrorist attacks in these countries. Threat perception was high, and the international community demonstrated a marked degree of cooperation. More importantly for domestic lawmakers, the general public seemed willing to tip the scales favour security and sacrifice some civil liberties. The attacks made it impossible to ignore the absence of a comprehensive, countrywide counterterrorism law in India. Parliament drafted the Prevention of Terrorism Ordinance in 2001. On 28 March 2002, after making a few changes to mitigate its harsher measures, Parliament enacted the Prevention of Terrorism Act.
The true test of democracy, however, lies not in the terrorist attack, but rather in a democracy’s response to the attacks: “The danger lies in the possibility of doing the terrorists’ job for them, by taking unnecessary steps in an attempt to counter the perceived threat and thereby fundamentally alter the nature of democracy.” So far, neither democracy seems to have a stellar record in maintaining its democratic character under the new laws.
Why, in India, where human rights aren’t as widespread a priority, has the outrage provoked an early review of POTA? And in India, why is the necessity of the law still a matter for debate? Wardlaw’s characterization ignores potential differences in democracies, differences that texture the public response to (or reaction against) whatever steps a government takes to promote security. Such differences may make strong legislation possible without compromising the nature of a particular democracy.
CONCLUSION AND RECOMMENDATIONS: –
Keeping challenges in mind, how can POTA increase security without excessively curtailing liberty (individual or group)? Many of the problems seem intractable, but some changes can be made now to make POTA more effective. The following recommendations could help give POTA a strategic context, strengthen the means available to make the law work in the short term, and support the law with a comprehensive counterterrorism policy in the longer term.
When Parliament allowed TADA to lapse, the law had become notorious for its easily abused provisions. It contained few safeguards against police misuse, allowing officers excessively wide discretion in charging student activists, prostitutes, and petty criminals under TADA. POTA appears to require under consideration these concerns and offers various safeguards to stop the misapplication of the law. In many instances, the investigating officer must be of a particular rank and must procure approval from an officer of a higher rank. Any officer who wilfully misuses the law is subject to fines and imprisonment. Despite these good intentions of the Parliament, a few further measures would help in the application of the law.
- A narrower definition of terrorism would remove ambiguities that currently allow the arrest of protestors, as would an expanded organization list. Right now, the police are left free to interpret what “any act or thing” means or what “involvement” includes.
- Section 7 should be amended— currently, it allows the police to seize all the property of a POTA accused, making beggars of the accused and their family before a conviction. The law should minimize the amount of property to be seized.
- Section 60 should be amended to require a Review Committee to evaluate requests for arrests, searches, evidence collection, and property seizure, thereby putting the burden of proof on the government instead of the accused.
- The appointment of special court judges should be free from political pressure. Approval should be required from the High Court bench and a nongovernmental Review Committee.
- Parliament should review POTA yearly, clarifying that the review’s goal should be an amendment and supplementing the law rather than its simple continuation or repeal.
Some of the following changes can also be made regarding the implementation of law in the following areas: –
Law Enforcement: Some positive trends have already changed the enforcement atmosphere, but much remains to be done. The most important problem with enforcement is the politicization of the police forces. Due to political pressure, police at low or middle ranks answer more often to a party than a superior officer. To insulate officers at the lower levels, the police forces should institute rewards, including medals, titles, promotions, and salary increases. For police officers who enforce the law without violating liberty, enforcement also can be improved by incorporating regular human rights courses and civilian oversight of its operations.
Legal System: POTA is strategic in its use of special courts—such a measure is important in a country where the system doesn’t function during a time bound-manner. But the special courts also can backfire if they undergo political pressure, as some allege occurred within the S.A.R. Geelani case. Parliament can redress this by providing for a review committee—again, of civilian legal experts, judges, administrators—to look over the issue before it goes to trial during a special court and demands further investigation if necessary. The government can consider insulating the judiciary from political pressure by creating a nationwide judicial service, requiring judges to be posted to unfamiliar areas where they’ll not have political ties or obligations.
Government: The primary step that Parliament must consider is creating a cohesive, transparent Counterterrorism Coordination Centre, something just like the US Office of Counterterrorism. The middle could then be liable for coordinating efforts across different state branches and reaching out for civil society input. Its role wouldn’t only be to suggest policy, craft it, and oversee its implementation. Thus far, India has relied on “fire-fighting” to tackle its terrorist threat. Still, these threats are becoming increasingly well-organized and orchestrated, requiring a minimum of the same, if not a more organized, response from the government.
Strategic Community: The longer-term reforms might not require a crisis if a larger strategic community builds up in India- and this is clearly on the way. More and more experts, bureaucrats, politicians, academics, and think tanks focus on strategy and grand strategy. This community would have close ties with the government and help ensure the continuity of strategy over time, under different regimes—a bona fide establishment. There is no recipe for this type of development; no certain ingredients can make it arise. In India, it seems that a transforming strategic community would be natural, considering the diversity of its population and their goals for the country. In any case, it would be more stable than Parliament because it would not depend on a fickle voting public for its job security.
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TERROR ATTACKS UNDER NDA
The need for coherence in India’s counterterrorism efforts is becoming clearer by the day. POTA is a symptom of a more significant problem—the law’s failures are due to the absence of a strategic context, a comprehensive policy to deal with a terrorist threat that cannot be answered by law alone. The debate about POTA’s necessity reveals that not many critics of the government are considering the larger issue—it is not whether there is a need for POTA, but what is missing in POTA that could make it work, to make it more valuable and successful than the ordinary law in prosecuting terrorists in accordance with democratic norms. Indeed, a law should not be repealed simply because it does not work. But the law is doomed if it is left to operate in a vacuum. Only when POTA is grounded in a strategic context—in which means are not misjudged—can the law successfully balance civil liberties with the security measures necessary to combat terrorism.
[GRAPH SHOWING DEDUCTION IN TERRORIST ATTACKS FROM 2016 TO 2019]
The verdict of the Global Terrorism Index 2020 (GTI) is in. While India has retained its rank because the eighth-most highly impacted country from terrorism globally, it’s improved significantly on several metrics. Between 2018-19, it had been among the ten countries that witnessed the most important decrease in deaths from terrorism. There has also been a 16 percent decrease within the overall economic impact of terrorism on India over an equivalent period. Consistent with the GTI Report, in 2019, the country saw a 20 percent reduction in deaths from terrorism and attacks in India. Compared to the opposite nine countries within the top 10, which had a mean of 2.9 average deaths per attack in 2019, India’s average was 0.5.
Unlike other countries, the sorts of terrorism in India are varied and sophisticated. In their doctrinal beliefs, the government has identified and banned 42 terrorist organizations, Islamist, separatist, and communist. The various agenda and performances of those terrorist groups present an unprecedented challenge to India’s national security. Consistent with the last report of the Indian Ministry of Home Affairs, there was a big improvement within the security situation within the country thanks to the containment of separatist and communist terrorist organizations. Thus, exclusively in terms of terrorism, the most important threat to the country’s internal security comes from Islamist terrorist groups.
Of all regions in India, terrorism-induced violence and deaths are primarily seen in Jammu and Kashmir (J&K). The Jaish-e-Mohammad (JeM) orchestrated a fedayeen attack in Pulwama (a district in Kashmir) on Valentine Day, 2019 was ranked the 17th most fatal surprise attack in 2019, resulting in the deaths of 40 Central Reserve police personnel. The alleged Pakistani agenda of promoting militancy within the Kashmir valley since the late 1980s and therefore the proximity of the J&K to the “global epicentre of terrorism” (to use the Indian Ministry of External Affairs’ description of Pakistan), alongside the shortage of political will of local governments, has resulted in J&K becoming a tract for terrorism.
The abrogation of the special status of J&K on August 5, 2019, led many to take a position that there would be a considerable increase in terrorism-induced violence within the region following the choice. However, the safety scenario has continued to enhance from the preceding years to the extent that Doda was declared a terrorist-free district. Within the year following the choice, there has been a minimum of 30 percent drop in terrorist attacks targeting civilians and, therefore, the security forces. In contrast, bomb defusions and raids on terrorist hideouts have doubled. Arrests of terrorists have also increased by an element of two.
Alongside these improving indicators, however, there has been an incredible deterioration within the India-Pakistan Line of Control (LoC) situation. As per reported incidents, within the year following the effective abrogation of Article 370, Pakistan initiated ceasefire violations on a minimum of 167 occasions, an unprecedented increase. Pakistan’s alleged support for terrorists, by providing them shark repellent and finance mechanisms to deploy them during a war against India, is unsurprising to several. So is Pakistan’s tactic of using ceasefire violations to push terrorists into Indian territory; the Indian soldiers recently foiled several such bids.
REFERENCES & BIBLIOGRAPHY: –
- “Anti-Terrorist Legislation Post Sept. 11” 3 July 2003.
- <www.bbc.co.uk/worldservice/people/features/ihavearightto/four_b/casestudy_art09. html>
- Asthana, N.C and Anjali Nirmal, Terrorism, Insurgencies, and Counterinsurgency Operations (Jaipur: Pointer Publishers, 2001).
- Chenoy, Anuradha. Personal Interview. 19 July 2003.
- Chowdhury, Kavita. “Vague law full of holes,” The Indian Express, 4 April 2003.
- Cohen, Stephen and Sumit Ganguly. “India,” in Robert Chase, Emily Hill, and Paul Kennedy (eds.), The Pivotal States: A New Framework for US Policy in the Developing
- World (New York: W.W. Norton and Company, 1999).
- “Definitions of Terrorism.” United Nations Office on Drugs and Crime. 2003. 28 June 2003. <http://www.unodc.org/unodc/terrorism definitions.html>
- Gill, KPS and Ajay Sahni (eds.), The Global Threat of Terror: Ideological, Material, and Political Linkages (New Delhi: Bulwark Books, 2002).
- Goswami, Arnab, Combating Terrorism: The Legal Challenge, (New Delhi: Har-Anand Publications, 2002).
- “Information on Hijacked Indian Airlines Flight IC-814,” 27 June 2003. www.indianembassy.org/archive/
- Mishra, H.B, Terrorism: Threat to Peace and Harmony (New Delhi: Authors’ Press, 1999).
- “The Prevention of Terrorism Act, 2002,” 28 May 2003,
- <http://www.satp.org/satporgtp/countries /India/document/actandordinances/POTA .htm>