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India: A Security State

A G Noorani
Economic & Political Weekly EPW april 4, 2009 vol xliv no 14

The Unlawful Activities (Prevention) Amendment Act of 2008 and the National Investigation Agency Act of 2008 form part of a series of laws that go back nearly a quarter century.

It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action (Kennedy vs Mendoza- Martinez (1963) 372 US 144 at 164) (emphasis added).

India has not made any effort to resist that temptation ever since terrorism reared its head in Punjab. The Unlawful Activities (Prevention) Amendment Act, 2008 and its twin the National Investigation Agency Act, 2008, both enacted hastily in the wake of 26/11, must be analysed carefully on their own merits. But they form part of a series that began nearly a quarter century ago with the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA). The trees must be seen for what they are. But the wood in which they stand must not be overlooked.

TADA lapsed but was re-enacted on 24 May 1987. It was amended in 1993 and again thereafter but was allowed to lapse on 23 May 1995. The Prevention of Terrorism Act (POTA) was enacted in 2002, only by a joint session of Parliament on 26 March 2002, since the Rajya Sabha had rejected it on 21 March 2002 by 113 votes to 98. In the joint session 425 voted in its favour and 296 against it. POTA was repealed in 2004 and replaced by the Unlawful Activities (Prevention) Amendment Act, 2004.

The Supreme Court upheld the constitutional validity of TADA (Kartar Singh vs State of Punjab (1994) 3 SCC 569); the Armed Forces (Special Powers) Act, 1958 (Naga People's Movement of Human Rights vs Union of India (1998) 2 SCC 109) and POTA (People's Union for Civil Liberties & Anr vs Union of India; WP No 389 of 2002), on 16 December 2003. On past form, the two Acts of 2008 will also be upheld.

Sardar Patel's Observations

We must ask ourselves in all honesty. Precisely what have these laws achieved? Sardar Vallabhbhai Patel has now become a mascot for advocates of the "hard state". His observations as union home minister when he introduced and got passed the Preventive Detention Bill are very pertinent. Both were done in one single day, the Sunday of 25 February 1950. The "Iron Man" said, he had spent two sleepless nights over the bill and moved it only because he felt, in the conditions of February 1950, that he had no other option. There were less sensitive people who came after him.

Patel said: "When law is flouted and offences are committed, ordinarily there is the criminal law which is put into force". As we know, preventive detention laws are being abused to deal with crime. What Patel had in mind was something different though opinions will differ on whether even that justifies preventive detention. "But where the very basis of law is sought to be undermined and attempts are made…". He meant sheer subversion. But Patel was conscious of the infirmities of a hurriedly drafted bill. He said, "It requires to be closely examined whether a better substitute of a more or less permanent nature based on specific principles can be brought in or not". The Act became "permanent" without the close examination Patel envisaged and without any "specific principles" being enunciated to serve as a check on power.

The Preventive Detention Act, 1950 was copied blindly in the Maintenance of Internal Security Act, 1971 (MISA), and the National Security Act, 1980 because MISA had become a hated word during the Emergency.

Despite the Janata Party's election pledge (1977) to "repeal MISA", Charan Singh, the home minister, and, even more so, Shanti Bhushan, the law minister, were enthusiastic about making preventive detention part of the ordinary law of the land. In December 1977, the government sought to insert a new chapter VIII-A to enable the central and state governments and even the district magistrate and commissioner of police to detain a person without trial on the grounds not only of security of state but also "the maintenance of public order". Have TADA and other repressive laws helped us to curb terrorism in Punjab and in Kashmir?

True, TADA, POTA and the Act of 2008 are penal laws; but in effect charges are slapped, persons put in jail, bail denied and acquittals follow. It is preventive detention. In Britain even in the worst days of unrest in Northern Ireland, jurists of the highest eminence were asked to review the operation of emergency laws. We have had no such review.

In Northern Ireland detention without trial was introduced only on 9 August 1971, three years after the outbreak of militancy. It was abandoned four years later on 5 December 1975.

It has not been widely noted that the Amendment Act of 2008 only builds upon the Unlawful Activities (Prevention) (Amendment) Act, 2004. It repealed POTA but retained its structure. The pass was sold in 2004. It discarded an obnoxious provision in POTA which made confessions to the police admissible in evidence. But the Act of 2004 altered the parent Act of 1967 for the worse. The Act of 2008 aggravates an already bad situation.

Worse than POTA

In two respects the 2004 Act is worse than POTA. It gives a carte blanche to the prosecution to tender against the accused "evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 or the Information Technology Act, 2000 or any other law". Section 46 of the Act makes all this "admissible as evidence". No safeguard worth the name is provided. The one that does find mention in one proviso is an insult to intelligence. The accused must be furnished with a copy of the order of the "competent authority" which directed the interception, at least 10 days before the trial commences. Not the transcript of the interception, only the order. The next proviso wipes out even this illusory safeguard by empowering the judge to waive it if he feels that it was not possible to furnish the order and the accused will not be prejudiced thereby.

Contrast this with POTA. It had an entire Chapter (V) containing 13 sections (Sections 36-48) which contained at least some safeguards. The police was required to obtain in advance, albeit from an official, permission for the interception, giving grounds in support of its application. A copy of the order was to be submitted within a week to a review committee, set up under Section 60, for its approval. The government was obliged to present to Parliament an annual report on the interceptions. The 2004 Bill drops all these provisions although they do not hamper the police of the prosecution.

Also dropped is Section 58 of POTA which made it an offence if a police officer "exercises powers corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this Act". Why was this been deleted?

In respect of terrorist bodies also the framework of POTA is retained in the Act of 2004. POTA listed 25 of them while the Act listed 32 in schedule I. They stood banned as "terrorist organisation". Others could be added. It is for the organisation to apply to the central government for its removal from the list. If the government refuses, it must refer the case to a review committee within a month (Sections 35 and 36).

The Committee cannot review the matter as a court of appeal on the evidence as to the facts; but, only as a high court exercising its writ powers on errors of law. It will be headed by a chairman who could be a retired high court judge handpicked by the government. Besides him, it could likewise handpick "such other members not exceeding three and possessing such qualifications as may be prescribed" by the government (Section 37). This is identical to Sections 18, 19 and 60 of POTA.

These provisions are utterly unconstitutional. They violate the fundamental right to freedom of association guaranteed by Article 19(1)(c) of the Constitution as laid down in State of Madras vs V G Row (AIR 1952 SC 196). A constitutional bench of five judges unanimously struck down as unconstitutional a ban on an organisation because there was no provision for an independent judicial inquiry. Like the review committee of POTA and the Act, there was an advisory board only. It was held to be no safeguard.

The law impugned in that case required the government to place before an advisory board constituted by it a copy of the notification and of the representations, if any, received before such expiry, and the board was to consider the materials placed before it, after calling for such further information that it deemed necessary from the state government or from any office- bearer or member of the association concerned or any other person, and only then, submits its report to the government. If it was found by the Board that there was no sufficient cause for the issue of the notification in respect of the association concerned, the government was required to cancel the notification.

The Supreme Court held that

the right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such impositions, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by Section 15(2)(b) on the exercise of the fundamental right under Article 19(1)(c) for, no summary and what is bound to be a largely one-sided review by an advisory board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the government or of its officers, with an advisory board thrown in to review the materials on which the government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this court upheld in Gopalan's case, deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of Article 21.

The Act of 1967 itself sets up a tribunal to review bans on "unlawful associations". The core of the Act of 2004 and of the Act of 2008 which relates to terrorist bodies is patently unconstitutional.

UPA's 2004 Amendments

The Act of 2004 amended the Unlawful Activities (Prevention) Act, 1967 which has been used to ban secessionist and terrorist organisation. It also empowers the centre to ban as an "unlawful association" any outfit that spreads group hatred which is punishable under Sections 153-A and 153-B of the Penal Code. Why this behaviour is not included in the definition of "unlawful activity" which remains confined to secessionism, is inexplicable.

That former union home minister L K Advani and his colleague law minister Arun Jaitley dropped that ingredient in POTA is understandable. That Shivraj Patil's Act also dropped that very ingredient is significant. The omission is deliberate. Section 7 of his Act which inserts the definition of "a terrorist act" as Section 15 of the Act of 1967, adds the word "in any foreign territory" after the words "strike terror in the people or any section of the people in India". No amends are made in the Act of 2008. In illiberality there is nothing to choose between L K Advani and Shivraj Patil.

The flaws which the Act 2008 adds to the Act of 2004 have been widely noted. Ravi Nair's critique (EPW, 24 January 2009), as one might expect, defies improvement. The revised definition of "terrorist act" dilutes, if not deletes, the requirement of mens rea, the guilty mind. The powers of arrest have been widened.

Section 12 inserts a new provision in the main Act of 1967. It is Section 43F which gives unfettered powers to the police to ask anybody to furnish information in his possession "in relation" to an offence under the Act "on points or matters" where he has reason to believe it "will be useful for or relevant to the purpose of the Act". The offence of failure to provide that information is triable summarily and attracts punishment with imprisonment which may extend to three years. The demand need not be made in writing. Journalists are not exempt from this sweeping provision.

Both, the Acts of 2004 and 2008, are permanently inscribed on the statute book. TADA and POTA had fixed terms. While agitating against the provisions of the Act of 2008, the immediate wrong, its parent of 2004 must not be ignored nor the grandparent of 1967. What we need is a small group of earnest persons who, shunning publicity, quietly do research on this law, drawing on foreign studies, and publish a critique to alert public opinion. Precisely what advantages have the Acts of 1967, 2002 and 2004 provided to the detection and prevention of crime?