The Delhi riots bail debate misses the point that India needs an anti-terror law

In its manifesto for the 2004 Lok Sabha election Congress promises to scrap the Prevention of Terrorism Act (POTA) on the ground that the stringent law had been misused, particularly against minority communities (read Muslims) and therefore needed to be done away. After Congress scored an upset win over the Vajpayee government, the United Progress Alliance government headed by Manmohan Singh did just that. It lost no time in repealing POTA in September of the same year.

UPA ‘s U turn after 26/11

Though some amendments to the Unlawful Activities (Prevention) Act (UAPA) were then effected, the penny dropped after the horrendous 26/11 terrorist attacks on Mumbai. Having to deal with the scale and scope of the attacks that killed 166 people and injured about 300 with the terror trail leading to Pakistan and individuals in the United States, the Congress-led UPA government realized the obvious: India needed an anti-terror law. Having done away with POTA with much fanfare, India was left with a thoroughly inadequate criminal-legal tools to deal with Pakistan-sponsored terror and its Indian collaborators.

The UAPA was subsequently quickly amended as the politically-inspired decision to scrap POTA came home to roost. Almost immediately, Parliament passed the Unlawful Activities (Prevention) amendment Act in December, 2008. It crucially expanded the definition of a terrorist act by inserting the words “by any other means” and added definitions of terror financing, expanded admissible evidence, increased custody and toughened made bail conditions. The reasons were not difficult to fathom. Terrorist conspiracies are hatched in secrecy and often -- in India’s case -- in foreign lands.

The admission of legally intercepted wire taps and confessions made before a magistrate are crucial tools to investigate terrorist attacks and bring the guilty to justice. The attackers often die as they are committed fidayeen as in 26/11 case and it is co-conspirators and planners who need to be prosecuted so that a deterrent is established. The sad truth is that the 26/11 accused were tried under ordinary law and the trial court verdict was deeply disappointing. Special Judge M L Tahiliyani convicted lone surviving 26/11 gunman Ajmal Kasab, a Pakistani national, but let off Faheem Ansari and Sabauddin Ahmed accused of helping Lashkar e Toiba (LeT) plot the attacks and who, according The Hindu report, sported broad smiles on hearing the verdict.

India needs an anti-terror law

The criticism of the denial of bail under UAPA to Delhi riots accused Umar Khalid and Sarjeel Imam on grounds such as the Supreme Court’s “expansion” of the definition of terrorism or that the “norm” of bail not jail had been denied to the duo misses the point. For one, the relevant sections of UAPA cannot be compared to laws that govern other crimes. Then again, the SC saw through the deliberate delays in trial on part of the accused who typically have access to activist lawyers honed in the art of finding legal loop holes. The main issue really is – do we need a special anti-terrow law?

UAPA is for special crimes

If the answer is yes, then there can be no surprise over the section of UAPA that sets a high bar for bail. Same goes for the handwringing over the use of “any other substances” in Section 15 for defining a terrorist act apart from use of firearms and explosives. In any case it was the UPA that made the changes. The amended section clearly includes “disruption” of supplies or services essential to the life of the community in India and damage to the monetary stability of the nation by way of production or smuggling or circulation of high quality counterfeit Indian paper currency.

It was the Congress government headed by Rajiv Gandhi that legislated the Terrorist Activities and Disruptive Activities (Prevention) Act and the precise provisions of the law made confessions admissible leading to convictions of the accused belonging to the Liberation Tigers of Tamil Eelam (LTTE). The case represented all the complexities of the terrorist crime – it was hatched by an ultra-secretive organisation wedded to violence, its leaders were in a foreign country, the suicide bomber died on the spot and the remaining accused were fiercely committed to their cause and proved very difficult to break under interrogation. If anti-terror laws have been misused, then the case of TADA being applied to Gujarat farmers by Congress chief minister Amarsinh Chaudhary in the mid to late 1980s stands out. A condemnable overreach and was seen as such.

Faced with a lack of numbers in the Rajya Sabha, the Vajpayee government convened a rare joint session of both Houses in March, 2002, in the wake of the Jaish e Mohammad (JeM) attack on Parliament in 2001. Congress and the Left parties were the primary opponents of the legislation. In December, 2008, such was the sense of alarm and outrage following the 26/11 attacks, that home minister P Chidambaram faced resistance mainly from the Left and parties like the All  India Majlis-e-Ittehadul Muslimeen (AIMIM). Then leader of Opposition L K Advani during his speech suggested the bill be examined by a parliamentary committee but BJP did vote I support of the amendments.

Congress amended UAPA, set up NIA

Chidambaram also shepherded the passage of the National Investigation Agency Bill, which was moved along with the UAPA amendments. The NIA bill provided the mandate to the agency to treat an act of terrorism as a federal crime that can be suo motu investigated. The aftermath or 26/11 allowed Chidambaram, who replaced Shivraj Patil as home minister, to get the UPA partners on board. Yet, in his speech to Parliament, Chidambaram went to great lengths to explain the “limitations” and  “safeguards” in the two bills as he admitted his party was divided on how stringent the law should be.

Explaining that an anti-terror law is not excessive and its provisions are reasonable is not a crime. In fact, the government of the day ought to do so. But in the UPA case it reflected the constant pressure of vote bank politics as Congress itself made terrorism and laws like POTA and UAPA a subject of partisan politics.