India - Anti Terrorism Laws & some imperatives

They can at best treat the symptoms; they cannot cure the disease.
We still run our police establishment on the basis of a law enacted in 1861
A model police act is available in the Home Ministry website for States to adopt
The deafening clamour for stringent laws to deal with terrorism appears to be leading to legislative output whose conception is hinged on the hope that it will eliminate the malady.
Opinion is divided as to whether we need such laws at all. Human rights activists say such laws are unnecessary, while the police establishment says the existing laws are inadequate to meet the situation. The attempt here is to point out that enacting stringent anti-terror laws without at the same time making important structural changes to the police administration may in fact be counter-productive.
Wonder of wonders, we still run our police establishment on the basis of a piece of legislation enacted in 1861. The Indian Police Act, 1861 was to be a tool in the hands of the colonial power that ruled us, to subjugate the restless “natives.” It has no place in an open society governed by the ethos of democracy and the rule of law.
Prakash Singh, a retired high-ranking police officer, took this lament to the Supreme Court in 1996, filing a public interest litigation petition seeking directions to reform the police administration. The court found merit in his submissions. In far-reaching observations made in a judgment delivered in 2006 it held: “The commitment, devotion and accountability of the police has only to be to the rule of law. The supervision and control has to be such that it ensures that the police serves the people without any regard whatsoever to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of [the] police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action is taken without delay.”
The Supreme Court also observed that there was a convergence in the views of almost all the panels, that is, the National Police Commission, the Law Commission, the Ribeiro Commission, the Padmanabhiah Committee, the Soli Sorabjee Committee and the Malimath Committee, set up to look into issues of police reforms, on the establishment of (a) a State Security Commission at the State level, (b) a transparent procedure for the appointment of the police chief who should ideally have a fixed tenure, (c) the separation of investigation work from law and order, and (d) the enactment of a new Police Act which should reflect the democratic aspirations of the people. The court suggested the enactment of appropriate legislation by the respective State legislatures to energise the recommendations of the various committees mentioned above.
A Model Police Act has been drafted by the Union government and it is available on the Home Ministry’s website for States to adopt and enact. However, even in the case of the few States that have enacted legislation in response to the orders of the Supreme Court, their legislations have serious deviations from the Model Police Act. This does not augur well for citizens. The enactment and proper implementation of a Police Act that addresses the concerns expressed by the Supreme Court effectively would be the best insurance against the abuse of the provisions of anti-terror laws.
Experience has shown that badly implemented anti-terror laws, however noble may be their intent, can have counter-productive results. The perceived inequity in the system is driving significant numbers of youngsters from the minority communities and the marginalised sections of society towards religious fundamentalism and naxalism. In some cases the perceptions of these members of the minority communities and the marginalised sections are real and in a few cases they are imaginary. Instances like the decision by the members of the Uttar Pradesh Bar Council to refuse to appear for those charged with acts of terrorism have made a large number of youngsters from the minority communities feel, quite rightly, that the system is unfair to them.
Stringent anti-terror laws suffer a potential drawback: if they are used to harass members of the minority or marginalised sections of society they are likely to push larger numbers of young men from that community or group towards fundamentalist organisations. It is true that feelings of alienation among the minority communities and the marginalised sections are in quite a few instances without any basis. We should recognise that in a country such as ours with such a diverse polity every community at some time or the other feels alienated. The independence struggle and the stalwarts it produced brought unity to an impossibly diverse country. However, with the demise of these stalwarts we are becoming fragmented again and are fast losing our national identity. Terrorists and naxalites exploit this situation.
Anti-terror laws can at best treat the symptoms; they cannot cure the disease. In the long run, as a report the of the Commonwealth Human Rights Initiative points out, the only way to eliminate terrorism is to ensure rule of law, civil liberties, access to justice, people’s participation in governance and better governance based on accountability, transparency and celebration of diversity.
(N.L. Rajah is an advocate practising in the Madras High Court.)