N.R. Madhava Menon

The recent parliamentary enactments meant to counter terrorism present a challenge before the government to manage the mechanisms that they envisage.

Every constitutional order provides for modifications in law to enable the state to face challenges to its unity and integrity and the security of its citizens. In fact, the entire criminal justice system which gives the state the power to use force against its own citizens, going even to the extent of resorting to killings, is designed for the purpose. In case of emergency situations such as an internal rebellion or external aggression, the state’s power to use force is further enhanced, but with suitable checks to prevent abuse or denial of the due process of law. In the process, what happens is a fresh balancing of the interests of liberty and security — both of which are the foundations of the rule of law in a constitutional system. Without security there is no liberty or freedom; and without liberty and freedom, security is not worth preserving for democratic societies. The challenge, therefore, is to find an acceptable balance between the two and to ensure that the government keeps within the limits set by law in the exercise of its authority.

The Indian Constitution, born in difficult times after Partition, does provide for a legal regime which can accommodate reasonable restrictions on liberty, the standards of which can vary depending on the gravity of the challenge and the risks involved for basic rights and constitutional values. We have an independent judiciary to test the constitutionality of the standards set by the laws and to ensure the accountability of those who exercise public authority under those laws.

It is only in this framework that one can appreciate the recent enactments on terrorism and seek to understand the fresh balancing between liberty and security that is attempted through them. Of course, opinions may differ as they always do in a democratic set-up. But partisan considerations should not be allowed to cloud judgment.

Laws and enforcement

Though laws, no matter how harsh they are, cannot by themselves prevent terrorist attacks, they can help in the successful investigation and prosecution of cases against terrorists and those who aid and abet terrorist acts. Therefore the need for special laws to combat terrorism cannot be underestimated. However, equally important are institutions set up to implement terrorism-related laws, and the level of motivation and competence of persons appointed to run those institutions. The problem lies with the implementation of laws and the abuse of powers conferred on the authorities under the special laws.

The record in this regard has been far from satisfactory, to say the least. Popular criticism against these laws has been based more on the manner in which they are implemented than on any modifications in the laws and procedures. Had the regular criminal justice system performed its task with reasonable results, there would have been no need for special laws or institutions to deal with terrorist acts. In the long run, only good governance can control terrorism. Meanwhile, as a temporary measure, the country needs special laws that empower the government to combat terrorism. Hard crimes and soft justice cannot co-exist for long if security is desired.

The fight against “terror” is larger and more complex than the challenge of dealing with terrorists. The former requires more of statesmanship and good governance. The latter demands legislative and administrative reforms to plug loopholes in criminal law and the criminal justice administration. In this regard, the reform of the police and the prosecution machinery has been identified as an essential step. Reforms are needed to achieve professionalisation and capacity-building. Specific recommendations in this regard are already on the table and even the Supreme Court had given directions to implement certain minimum measures. The lack of political will, the fear of the unknown, and manipulation by vested interests in the administration are reportedly holding up the changes in the States.

Three distinct functions are involved in combating terrorism. They relate to pre-empting and preventing; containing and managing; and investigating and prosecuting. There may be a need for a convergence of these three functions at operational levels. The challenge before the government is managing the three-fold counter-terrorism mechanism for optimum results. A management plan and a management team are to be put in place with adequate powers and resources as some of the developed countries have done. The Constitution will not come in the way of mounting such an effort with appropriate legislative support.

Terror law gets teeth

The most important change brought about recently is in respect of streamlining the investigation and prosecution of terrorist offences at the Central level. The establishment of the National Investigation Agency under the NIA Act of 2008 is the first step towards effective handling of terrorism-related offences. Parliament passed the law with near unanimity, which indicates the willingness of different political parties ruling the States to enable the Centre to act on the issue. Combating terrorism is a joint responsibility of Central, State and local governments.

Timely, accurate intelligence and up-to-date databases on terrorist elements are essential to evolve strategies to counter terrorist activities. This requires multi-agency coordination and time-bound action which only an empowered central body with regional and local field offices with instant connectivity can accomplish. Similarly, a dedicated team of highly motivated, well-trained and fully professionalised officers supported by adequate resources, equipment and authority alone can take timely action to combat terror.

The foundation for this is laid by the NIA Act. It envisages Centre-State partnership in the investigation of terrorist cases. It limits the jurisdiction of the proposed agency to certain scheduled offences under seven Central Acts relating to atomic energy, unlawful activities, anti-hijacking, civil aviation safety, maritime safety, weapons of mass destruction and SAARC Terrorism Convention obligations. From the Indian Penal Code, offences against the state (Sections 121 to 130) and offences relating to currency and bank notes (Section 489A to 489E) are included in the scheduled offences for NIA responsibility.

The second piece of legislation, the Unlawful Activities (Prevention) Amendment Act, 2008, makes a number of substantive and procedural changes to empower the NIA to act effectively and decisively on terrorism-related activities. The Act does incorporate some of the provisions of the earlier law on terrorism (now repealed), such as for detention in police custody for 30 days (instead of 15 days) and extension of the maximum period for filing a chargesheet to 180 days (instead of 90 days) if the court is satisfied with the report of the Public Prosecutor on delay in completing investigations.

The powers of the police to arrest and search have been tightened. Sections 43A to 43F have been substituted with provisions that enlarge the power to search any premises or arrest any person about whom such an officer knows or who the officer has reason to believe has a design to commit an offence covered under the Act. The provision of anticipatory bail (Section 438) does not apply to offences under the Act. Further, bail on one’s own bond can be considered only after the Public Prosecutor is heard on the subject. And if the court believes that a prima facie case exists against the accused on a perusal of the Section 173 report and the police diary, bail is to be denied. If the accused is a foreigner who entered the country illegally, bail is not to be granted at all.

The Unlawful Activities (Prevention) Act of 2008 is more significant for the procedural modifications brought about than for any substantive changes that are attempted. Section 43E introduces the principle of presumption of guilt in respect of a terrorist act when arms, explosives or other substances specified in Section 15 are recovered from the possession of the accused and there is reason to believe that substances of a similar nature were used in the commission of the offence. Similarly, presumption is raised when fingerprints or any other suggestive evidence involving the accused is found at the site of an offence.

An obligation with penal consequences for failure to perform is cast on officers of government as well as non-government organisations and individuals to furnish information in his or their possession in relation to the offence when the authorised officer demands it (Section 43F). Finally, the Act empowers the Central government to freeze, seize or attach the financial assets of those engaged in or suspected to be engaged in terrorism. These are strong measures if imaginatively and responsibly employed in combating terrorism.

The Central government will be watched by the States on how the power assumed in setting up a central agency is being exercised on a subject that has been considered so far to be a part of the States’ exclusive domain. In short, it is more a question of management and governance which is under test. The new law on NIA is conceived as a joint enterprise of the States and the Centre, which is what it ought to be. Will the officers who manage the system take it that way and give a chance for the experiment to succeed in the interest of national security, human rights and rule of law?

(The views and opinions expressed here are Professor Madhava Menon’s own and are in no way related to the position he holds in government.)