(Slightly abridged from the original. The author is a senior advocate of the Supreme Court.)

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. “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 The UPA government which repealed POTA just 4 years ago because it was found to be draconian, misused and counter-productive has now used the jingoism to enact a “tougher terror law” in the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 15 December 2008 and passed the next day with virtually no debate and without any opportunity for 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 and 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When POTA was repealed, some of its draconian provisions had been engrafted into the Unlawful Activities (Prevention) Act.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 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 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, charge sheet them on the basis of police confessions and then prosecute them in trials which go on for years. Once having arrested the persons and charge-sheeted 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 incarcerations lead to the permanent loss of their reputation and the economic destruction of their families. That most of the persons charge-sheeted 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 which 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 like Ram Jethmalani, Justice Suresh, Justice D.K. Basu, K.G. Kannabiran, and other eminent persons, opined in their report in 2004, that, “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 have 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 has not signed 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 charge-sheet against an arrested person is not filed within 90 days, he will be entitled to Bail. This is for the reason, that till the charge-sheet 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 charge-sheet 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 charge-sheet) 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. 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. They 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.

Eventually, understanding the motivations of the terrorists and dealing 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.