Why We Need a Law to Tackle Terrorism in India

The number of attacks on civilian targets in major cities in India has once again raised the question whether special laws need to be enacted to counter terrorism and deal with terrorist activities. The disturbing fact is that those who are not in favour of the enactment of law to counter terrorism often revert to old adages and arguments that are flawed as they no longer reflect the reality of the times we live in. After every act of terrorism, horrific images beamed by the visual media deliver a stunning blow to society. There is at once a clamour for stringent laws but as the images fade or are replaced complacency sets in till the next incident reopens the debate. There are certain myths about terrorism that have existed for quite some time and before any argument can be made in favour of the enactment of such a law it is imperative to explode those myths.

The First myth is that there is no definition for terrorism or terrorist activity. The adage now discarded by serious analysts, is still paraded in forums i.e. "One man's terrorist is another man's freedom fighter". That this no longer stands up as an argument is obvious. The ideological terrorists who targeted the symbols of oppressive regimes or authorities who were contrary to their belief systems have been replaced by terrorists who target innocent civilian population for a nebulous cause: the bomb in the market place, kidnapping busloads of school children, killing families in theatres, shopping malls and amusement parks. How anyone can even for a moment label them as freedom fighters confounds the logical mind. Any discussion on terrorism is not a matter of semantics but a grave concern of the safety of civilians and the security of society which is the duty of a state to protect. Over and over again one has to listen to persons smugly state that terrorism defies definition; therefore, what cannot be defined cannot be identified. It is imperative to understand that even though an all –encompassing definition for terrorism does not exist there are a number of working definitions that underline what terrorism is and how an act of terrorism can be identified. What entails a terrorist activity may defy specific definition but it certainly is possible for anyone to recognise such a violent act against society. Any act that deliberately and systematically aims the murder, maiming and menacing of the innocent civilians to inspire fear for political, religious or any other ideological end is an act of terrorism. The lack of discrimination in choosing the target by the terrorist organisations spreads fear: if no one is a target then no one can be safe.

The Second myth is that terrorism is the result of marginalisation of certain sections of society by the state and its machinery which has lead to great dissatisfaction resulting in the group turning to violence to address their grievances. Therefore, addressing their problems and removing these causes will eliminate terrorism. This argument advocates a soft approach to counter terrorism. Good governance is identified as the panacea of all ills. Therefore the argument is: any law formulated to curb terrorism will only exacerbate the existing problems. Good governance and addressing the ills of marginalisation is a welcome social conversion but it does not deal with the menace of terrorist violence against citizens. There is also no doubt that terrorist organisations seek to their recruits from those who have economic disadvantage. They use them as foot soldiers to carry out their orders and commit the final violent act but those who run these organisations or master mind the terror campaigns are educated, urbanised intellectuals as well as those motivated by their own brand of warped ideology. Those who preach violence are different from those who put it into practice Therefore, laws are required to deal with the main organisations suspected of spreading and spearheading the terrorist activities and not just the perpetrators of the acts.

The Third myth is when an incident occurs the state and the intelligence have failed miserably ( as the cub reporter on the scene of every by-the-hour news channel often surmises) .The media immediately faults the intelligence agencies and state machinery for not anticipating the attack yet balks at any attempt to enact a law to deal which would ensure otherwise . It is not possible for the state machinery anywhere to recognise and identify the every lowly recruit of the organisation who may have been entrusted with a specific act to be committed at a specific time on a given date.A pragmatic approach needs to be adopted instead of emotional reaction. If a law were to permit the state to monitor constantly an organisation suspected to be capable of subversive activity and to enquire into its activities, it is possible to pre-empt such occurrences. It is not sufficient to seek the suspects of the violence after it has resulted in the deaths of the innocent; laws are required to ferret out the leaders of such organisations capable of suspicious activities before the incidents occur. The strategist and the fund raisers of such organisation should be dealt with severely under the law before the occurrence of an act of violence. Identifying these organisations would not be a major task as these organisations are known to preach and publish their intentions. Organisations and outfits that espouse causes seek media attention to justify their existence and often advertise their intentions through public statements to the media or at rallies and meetings. The success of an organisation lies often in the inability of the authorities to pay heed to them and take suitable action against these organisations. The Aum Shinrokyo movement in Japan began its public campaign of terror in 1994 with the release of sarin gas in a residential neighbourhood .It had published pamphlets and openly stated their intention of using sarin gas and had moved truckloads of chemical agents into their compounds. These apparent signs went unheeded .Had their movements been sufficiently monitored , such large consignment of chemicals moving into their compound would not have passed unnoticed and the 1995 Tokyo attack on the subway system would not have occurred. The police and intelligence, therefore, need to be further empowered under law to maintain a constant vigil concerning all organisations with a capability of turning into terrorist organisations. Communications, recruitment of members and movements of consignments have to be monitored to prevent stocking of chemicals, explosives and arms and ammunitions.

The Fourth myth is that it is not possible to judge at what point of time a political, social or religious organisation becomes a terrorist organisation. Therefore monitoring organisations would impinge on their rights to carry out lawful activities. This of course is an extension of the first myth that an organisation may be genuinely fighting a repressive regime and therefore has had to resort to violence to achieve its end. This again a conceptual misinterpretation – no organisation or person belonging to them can justify violence against the innocent civilian population. The moment violence is directed at society at large , there can be no doubt that the persons committing such acts are terrorists and the organisation that logistically supports, trains or provides funds for them or accepts and endorses their acts as being part of their greater cause is a terrorist organisation. Several organisations acting with impunity in India would fall within the ambit of the new law.

A brief note on the two laws in India that were enacted to deal with terrorism at different times. Both these laws were severely criticised as they violated human rights and vitiated the due process of law. There was uproar in all sections of society and they were consequently repealed. That they flouted the basic concepts of the legal system is irrefutable. Pervious laws in India to deal with terrorism were the Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987) and repealed in 1995. The Indian government introduced the Prevention of Terrorism Ordinance (POTO) on October 2001 and the legislature passed The Prevention of Terrorism Act (POTA) in March of 2002. Both the laws resulted in gross abuse of human rights during implementation and there is sufficient evidence to uphold these allegations. The laws had abhorrent features that violated fundamental freedoms enshrined in the Constitution of India.

Briefly, the inherent flaws were as follows: 180 days detention was permitted without charges being framed, the presumption of guilt of those subject to the law, summary trials, trials in absentia - all of which violated all norms of equitable justice. The sketchy review procedure came under severe criticism. The gross abuse of the laws occurred due to several factors. The texts of these laws were too broad and the term terrorism included everything. The generalised term covered ordinary criminal activities covered by the penal laws of the country like theft and murder. The interlocutory orders of the Special Courts set up under the new laws could not be reviewed. Since the state governments had powers equal to the Central government under these laws there was gross misuse by the state machinery especially in Tamil Nadu, Gujarat, Maharashtra where the laws were used to quell political opposition or to settle personal scores and all this is supported by statistics. .The erratic application of the laws at various times also varied from state to state.

Stating the severity of the earlier laws and their misuse only serves to underline the need to reframe the laws; it does not raise the question whether a new counter terrorism law is required are not. Anti terrorism laws are an absolute necessity for society and it should not be treated as political issues even if the implementation is questioned by human rights forums. Anti terrorism law should be viewed as an efficient response within the rule of law. It has been seen that the policy of military response to terrorism is short lived and does not have long term legal effect. To stymie terrorist organisations and weaken the capabilities of terrorist organisations there is an urgent need to enact counter terrorist laws. The state has to be empowered by law to prevent recruitment of cadres, raising of funds and other forms of support by propaganda and to scrutinise and freeze funds and assets. Vigil of terrorist organisations and of other such organisations with the potential to become terrorist organisations irrespective of whether terrorist acts are committed by them or not has to be sanctioned by law. Constant surveillance of its leaders, members and supporters is required. A wait-and-see policy would endanger the liberty of society and lead to grave consequences.

Counter terrorist laws should be viewed as safeguards for collective safety and there should have no partisan or parochial considerations. It should be understood that measured infringement of individual freedom is not violation of fundamental right. No longer do we question additional security measures at airports, public places and other sensitive areas as violating privacy being well aware that safety supersedes discomfort. It is the duty of the state to prevent the existence of destructive forces within its territorial jurisdiction which endanger the life and liberty of its citizens and the safety and security of other states.

Terrorism is not a passing phenomenon and a new counter terrorism law is urgently required to deal with it effectively. The new laws must, however, incorporate certain features that ensure that there can be no misuse by the enforcement machinery.

The primary concern is the rule of law. Laws are not to be enacted that in any manner operate outside the realm of rule of law.

The definition of terrorism has to be sufficiently narrowed to exclude criminal activities: if intention to terrorise is missing, mere criminal activity should not fall within the purview of the special law. Similarly, an act that would not be criminal but would be permissible under freedom of speech and expression should be deemed an act supporting terrorism if the intention is to garner support or is supportive of a proscribed organisation.

Witness protection would have to be incorporated under the new law to ensure greater co operation from fringe elements and sections of society aware of such organisations and their activities.

Another important aspect to be considered would be the uniform and consistent application of such law by the enforcement authority throughout India.

Transparency and review procedures would have to be clearly set out in the newly enacted law.

There should be a centralised system to prevent inconsistent application and interpretation of the law throughout the territory. Establishment of a central judicial agency for even application and uniform interpretation should be set up.

Special agencies should be set up so that the overburdened enforcement agency in the state is not required to handle the activities under the special law. Such agencies should also be sufficiently trained and sensitised about the application of the law.

Specific fund allocation by the government for the agencies that apply the law has to be made as part of the states serious intention to cub terrorism. No agency can function without proper infrastructure, manpower or technology.

This will address the fears that any law dealing with terrorism will abrogate human rights and will place all organisations with genuine concern for addressing social issues under the purview of the state agencies who will then use the laws to curb opponents and settle political scores.

There are no minor forms of terrorism and if there has been concrete evidence of earlier abuse of counter terrorism laws, it is the implementation of the law that should be scrutinised and rectified; the need for counter terrorism law should not be questioned.

Geetha Madhavan, a Chennai-based lawyer, is the first woman in Asia to be awarded a doctorate for her research on international terrorism. An outspoken lobbyist for legal measures to counter terror, she feels that India needs to implement stringent anti-terror laws with immediate effect, and strengthen its maritime security as well, which could otherwise be exploited by terrorists. A founder member of a non-partisan organisation called Centre for Security Analysis, she also believes that people should be made aware of issues involved with terror so that they do not react to attacks emotionally. In an exclusive meeting with Deputy Managing Editor od Sify News K Sreedevi, Geeta Madhavan argues for a special anti-terror force as well as a strict legal system to counter acts of terrorism. Excerpts:

Excerpts:

Why have we not managed to legally define terrorism so far?
Every terrorist group has managed to justify its act and come up with its own definition of terrorism. Hence the concept as a whole is confusing. The government and agencies working towards promoting awareness on terrorism fail to reach out to the common people. The common people are so unaware of the complexities and they are just moved by what they read or see in the media at an emotional level. I wish we could reach out to people through vernacular medium or television to make them understand that there are far greater issues than emotional ones when it comes to terror attacks.
How would you define terrorism?
There is no need to define terrorism. A working definition is enough. It is an identifiable creature today. Any organisation that seeks to do an act to threaten or intimidate or an act of violence against any civilian is terrorist.
How do you distinguish between a freedom fighter and terrorist?
I get very angry with this question. Please don’t insult our freedom fighters. There are two main factors that distinguish the two. A freedom fighter is fighting against the regime and targets only the symbols of the regime, whereas the terrorist uses his ideology and targets anyone. A terrorist will bomb public places with people of no connection to the issue, kidnap a busload of children, incite violence merely for the sake of intimidation and fear and rarely against authority. Self-determination is another big issue that has lot of misconception. The concept of self-determination has got mixed up territorial control. In India, we have the concept of self-determination very well ingrained in our system where we are a federation of Sates. Over the years, the lines have blurred badly owing to various self-interests with politicians and organisations carrying out their own personal agenda.
Do draconian laws check terrorism? Has the US Homeland Security Act really prevented further attacks on US soil?
I have always been advocating a law against terrorism much to the displeasure of human rights activists. If there is a lacuna in the terrorist law, it is in the enforcement and the misuse of it and not in the enactment of the law. So we have to enact a law, which reduces the misuse, and sensitise the people about its enforcement, and ensures that the political parties do not misuse it for their advantage. The only solution that I see towards this objective is to centralise the law and set up centralised police machinery to deal with the terror acts under it. And just like the defence budget, have a special allocation to counter-terrorism in the government budget. It is mandatory to have a special force tackle this problem. You cannot expect the already over-burdened ordinary police force to carry out counter-terror activities. This is the same problem that the US is facing. When they started Homeland Security, they expected the local police officer in a small US town to double up as homeland security guard along with his regular policing job, because of budget constraints. And they failed miserably. So, a centralised authority for homeland security could be a plausible solution. There are enough possibilities for misuse of the law but we need to put appropriate checks and balances. But in the event of its possible misuse, we cannot do away with the entire Act.
Will just a simple enactment of law curb terrorism?
This is another argument that I often hear. I hear from many that England and a few other countries have enacted a law against terrorism but this has not stopped terror attacks in these places. Let me tell you one thing: the law is to put parameters as to what can be done and what cannot be done. Just because we have an Indian Penal Code, it does not put an end to murders and crime in the country. Because of human nature and violence being a part of life, terrorism will continue to happen. That is why I often say terrorism can only be countered and not curbed. Once the parameters are drawn, it becomes easy to distinguish between the right and wrong.
What are the ways to tackle terrorist activities?
There are two levels at which a terrorist organisation acts within a country. One is when it takes money from common people through charities and educational trusts to fund its acts. Instead of spending our time in picking and framing the individual donor, it is better to exert pressure on the organisation which is collecting public money through stricter surveillance. This will cut off their money flow. The second level is to act against public interest creating terror and panic. That is why I insist on a law against terrorism. The terrorist law should not be treated as a political issue but a social one, for the benefit of the society.
How does that hold against the notion that one man’s terrorist is another man’s warrior?
It is sad because that definition went out of fashion some 20 years ago. Any ideological organisation fighting a regime becomes a terrorist outfit on the day it starts attacking civilians. It is terrorising society and does not matter whose cause it is advocating. It is necessary to sensitise the enforcement agencies and educate the people against such wrong ideas.
In India, almost all acts of terror are put at the doorstep of the ISI or Islamic radical outfits. How real is the threat of home-grown radicals?
Terrorism has existed from the time the States were being formed. It was never a major issue for the simple reason that war was fought differently in those days. But today, no country can afford to fight a full-scale war. One because of the economic pattern and more so, the fallout of any sophisticated weapon — such as nuclear, biological or radiological — that we use today is not confined to an area, there is always a danger that it will spread to other territories. There is high civilian damage. You can never justify that. Technology doesn’t help you to win a war. That is a fact that everybody knows. So how do you then destabilise the neighbouring country? At this particular point of time of history, it happens to be the Islamic forces. It could be anyone else. Where is the Islamic factor in Sri Lanka? Where is Islam in IRA? There are a few more which are Left wing radicals who want to do away with a repressive government. There is no Islamic factor here too. All these activities are driven by a particular force. It could be Christian or Hindu fundamentalist forces after 30 years. Today, what has happened is that America has driven the Islamic idea to a large extent and especially after 9/11.
How do you react to the oft repeated saying that all Muslims are not terrorists but all terrorists are Muslims?
This is all just jargon being bandied about by a few groups. They started off by describing it as a war against terror. But I am opposed to this term. It should be combating terrorism. It’s sad to note that a lot of these are driven by America’s perception of terrorists. If we delineate ourselves from that concept, we can see a difference. Islam is the flavour of the month. But then all terrorist activities are not driven by Islamic forces. Over the years, there has been a tendency of the media and the government to demonise a particular state and make them into huge icons. Twenty-five years ago, it was Carlos, and he was a mastermind of a series of attacks. But if you actually read literature, you realise that he was a KGB agent and that there was a power driving him and he was being used. Similarly, the PLO was fighting for a homeland, which happened to be a Muslim state. It’s all a creation of media, state establishment and others.
What are the main motivators or triggers for people to take to terrorism?
No sweeping statement can be made as each one is different. The basic problem today is marginalisation of a particular community. They fear losing their religion and culture. There is also the gross materialisation of the West, which is being depicted as a devil. This is the most basic of reasons. With Left wings and Naxals, it’s corruption in the society. With organisations as LTTE, it all started off as a reaction against repression in the Sinhala political establishment, it grew into a demand for a separate state, and then mutated into violence being inculcated as a fight for homeland. Marginalisation, be it economical, political or social is one of the basic reasons for terrorism.
Do you think incidents like the release of dreaded terrorists in return for Rubiya Sayeed and for the passengers of IC 814 from Kandahar actually inspire others to perform similar acts?
Kandahar was a blot. It is better to learn from the lessons from that. Copycat acts need not be successful if you have sufficient surveillance and security. For example, there was a spate of hijackings by the PLO in the 70s, but the system came down and now you hardly hear anything like that. It fell off as a popular means after sometime owing to several factors. Now, the series of concerted blasts are being used as a means to scare the society. But we have to accept that our Intelligence and government are doing a good job too. And we, as a society, should support them and abide by the rules. Public doesn’t care until some really bad incidents happen. It is mandatory for the public to abide by laws enforced by our security agencies and co-operate with security personnel, be it in the form of random checks at the railway stations, airports, cinema halls or corporates. You have a duty and responsibility towards the society.
How critical is intelligence (human and technological) to prevent or thwart terror attacks?
There is nothing to beat human intelligence. I think that the great mistake that the US is doing is relying only on technological intelligence and that is why it is not succeeding. It is human intelligence that is imperative. And sharing that intelligence within the internal forces and organisations is critical. I am not asking to share information that is detrimental to the nation’s interest but share what is necessary. We have to strengthen the law towards this.
Given a chance, what would be the first radical step that you would take to check terror in India?
Enact a terrorist law. I won’t even skip a heartbeat before I can do that. I have always been advocating it.
How many other women do you know in this field across the world?
After 9/11, a lot of interest has been generated in the subject. There are people working on human rights areas in the recent years. But not many are working on the legal issues. Most of them have worked in strategic and tactical issues till date. .
In your view, what are the major security threats faced by India?
I feel that maritime threat is the biggest threat to our nation. We have a huge coastline that is left uncovered. We already have maritime problems like human trafficking, narcotics, smuggling, small arms and weapons transport, all happening in the Indian Ocean sector. But thankfully, they have not hit us yet. The pirates are being used by terrorists to transport goods and weapons. Palk Straits is a huge threat. We are also having an uncharted coastline and how much of policing can you do in this? It is imperative that we be on double guard against this looming threat.