Sep 20, 2008

India - Resist draconian measures

A persistent political myth is that tougher, more draconian laws can tackle terrorism. Subscription to the myth is an admission of failure to take the right steps to combat the menace — such as beefing up the intelligence apparatus, identifying and choking the source of funding for terrorist groups, and addressing the combination of social, political, and economic grievances that feed the growing monster. The serial bomb blasts in Delhi have led to official reactions that suggest the United Progressive Alliance government is losing its nerve, as evidenced by Prime Minister Manmohan Singh’s announcement that he “was considering legislation to further strengthen the anti-terrorism law.” While the promulgation of a new anti-terror law has been ruled out following a Cabinet meeting, the ‘strengthening’ is apparently to be done by amending the Unlawful Activities (Prevention) Amendment Act, 2004 (UAPA). There are legitimate fears that draconian provisions that bear a worrying similarity to those in the repealed Prevention of Terrorism Act (POTA) may creep in. For instance, among the changes reportedly being discussed are tougher bail provisions to keep the accused in jail beyond a three-month period. Under ordinary criminal law, an accused in custody can get bail if the prosecution fails to file a charge sheet within 90 days of his or her arrest.

One of the most abused provisions of POTA was that accused could seek bail only a year from the date of detention. If such provisions find their way into UAPA, the Congress-led regime will stand accused of smuggling in through the backdoor the very law it repealed. Already UAPA, which was passed to replace POTA, contains a number of sections that are virtual reproductions of the latter. What made the difference was the exclusion of some of POTA’s most draconian provisions — such as those relating to bail, confessions (admissible as evidence even if made to police), and the shifting of the burden of proof (to the accused). It is virtually certain that draconian laws will be targeted at political opponents and members of marginalised communities. Moreover, India’s decade-long experience with POTA’s equally notorious predecessor — the Terrorist and Disruptive Activities (Prevention) Act — should have taught it that they simply do not do their job. Of the 67,000 persons detained under TADA from its enactment in 1985 to August 1994, as many as 59,509 had no case brought before them. The conviction rate? Around one per cent. The UPA government must hold its nerve and not vacillate in the face of the Bharatiya Janata Party’s aggressive campaign for draconian anti-terror provisions that violate civil liberties, democratic rights, and proper standards for a fair trial.

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