Laws against terrorism, for example, are not effective per se since they do not rely on the judgement of humans based on reasonable evidentiary support but on social conditioning the accused have been subject to
The international community has always faced a quagmire in its desperate attempt to give a definition to terrorism. After all, one man’s freedom fighter is a terrorist for the other. The issue in defining it is the danger it entails of becoming so narrow that it does not incorporate all forms of terrorism. Similarly, there exists the danger of it becoming so wide that it holds no meaning and any criminal could be held liable as a terrorist.
General tendency is to equate terrorism to Islamist fundamentalist terrorism, although this is usually the result of being continually exposed to a traditional and textualist mass media. In reality, this is not the case and terrorism is not solely restricted to militant Islamism. It is, in fact, so wide and multi-faceted that it takes different forms across the globe and cultural demographics. FARC, the militant Communist group in Columbia or the Klu Klux Klan in the US, stand as testimony to this fact. Before India’s independence, radical freedom fighters were seen as terrorists by the colonial Government whereas in modern-day India, Kashmiri separatists are seen as heroes by some and terrorists by others.
The need for a definition of terrorism stands as a major criticism of the existing tactics the states use to wage fight against terrorism since all existing laws would not be jurisprudentially justified without understanding and truly defining what they want to fight or prevent. One such law is preventive detention, wherein it is not known who the enemies are. In studying its morality and effectiveness as a legal tool, preventive detention can be analysed using these two basic systems of ethics: Deontological and virtue ethics. According to deontological ethics, which focuses more on the validity of the action than its consequence, preventive detention is wrong since it does not detain people on the basis of merits of their acts but on mere suspicion.
Virtue ethics can be used to argue it in both ways but it leans towards the idea that it is wrong since there is no direct way of knowing who is going to cause harm. Therefore, susceptibility to cause harm to an innocent, which is innately non-virtuous, would rule it out. There are a plethora of problems with preventive detention. First, it rests on a prediction about future behaviour and that too on very little evidence. Second, the risk of detaining innocent people is very high. Third, preventive detention is inconsistent with basic notions of human autonomy and free will. Last, even preventive detention faces the problem of not being specifically defined as it always revolves around systems of pre-charge detention, pre-trial detention, administrative detention, immigration detention and national security detention.
The lacunae in the laws related to preventive detention on an international level are also contributing to many different problems. The basic right to hearing on time is the main issue that sprouts from it. Another major issue is the problem with granting of bails. A person is presumed innocent until proven guilty. But many countries have no provision for grant of bail to the accused. The main question on the debate revolving the rights of the suspected terrorists is: How effectively is the law safeguarding them? For this, we need to look at the general rule that is followed in most countries that are in a continuous raging battle against terrorism, especially India.
In India, the Constitution itself sanctions the preventive detention laws while at the same time, guaranteeing fundamental rights to a detained person. Entry 9 of List I in the Seventh Schedule of the Constitution provides the Parliament with the exclusive right to enact laws relating to preventive detention for matters that are related to foreign affairs, defence or the security of the nation. In the recent past, the enactment of various laws relating to preventive detention and the subsequent cases challenging the validity of the provisions of the same have added new contours of development to the laws.
In today’s time, National Security Act of 1980 (NSA) and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) are the main preventive detention legislations. The Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), the Prevention of Terrorism Act, 2002 (POTA) and the Unlawful Activities (Prevention) Act, 1967 (UAPA) are some of the other legislations that were enacted to counter terrorism in India. In particular, it was the UAPA Act that was used recently to arrest five activists, including Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao, Gautam Navlakha and Arun Ferreira who were put under house arrest after orders from the Supreme Court.
POTA, which was legislated after the strikes in the Indian Parliament, had two repressive measures that are inconsistent with the provisions of the International Covenant on Civil and Political Right (ICCPR). First, it did not allow the legal counsel to be present during the time of interrogation of the accused. And second, it allowed the prosecutor to file a charge sheet extending to a time period of 180 days. Additionally, it was almost impossible for the accused to be granted a bail as it could be granted only when the court thought that there were "reasonable grounds to believe that the accused is not guilty of the alleged offence and not likely to commit the offence while on bail".
POTA was, thus, repealed in 2004. But after the Mumbai bombings, the presence of POTA was introduced in the UAPA (Amended) wherein it was stated that any officer ‘knowing of a design’ or ‘having reason to believe’ that a person might commit an act will have the power to arrest the person. Bail was denied again to 180 days of investigation period. The ICCPR is an instrumental human rights treaty which provides people with protection for civil and political rights. India acceded to the ICCPR in 1979 after which it issued a declaration regarding Article 9 of ICCPR, which specifically deals with preventive detention. It was stated that the Article has to be operated in conformity with Article 22 of the Constitution of India which provides safeguards for an arrested person. But it has been seen time and again that detention laws in India are incompatible with Article 9 of the ICCPR as safeguards are not applicable to persons ‘arrested under any law providing for preventive detention’.
The present law in force to counter terrorism, UAPA, itself suffers from many drawbacks. It provides a very huge definition of ‘unlawful activities’, includes action which disclaims, questions, disrupts the sovereignty and territorial integrity of India due to which any fair comment against the Government of the day can land a person in jail. Further, detention without the filing of a charge-sheet can be stretched up to 180 days and the Court can, only on a bare perusal of the police diary, deny bail to an accused. Furthermore, the Government is also empowered to label any organisation as a terrorist organisation by a notification in the Official Gazette.
Therefore, despite the claim made by India that its laws are internationally complied with certain facets, like the excessive periods of detention or arbitrary implantation of policies, leave no room for basic human rights of the accused to be exercised. In any case, the state should not deprive any ‘suspected terrorist’ of the basic rights of being ‘presumed innocent until proven guilty’. Thus, the laws against terrorism are not effective per se since they do not rely on the judgement of humans based on reasonable evidentiary support but on the social conditioning, they have received. This could counterfeit the efforts of the war on terrorism since it further divides a population already subjugated by communal and cultural conflict.
Without debate and deliberation of a courtroom, which is the fairness of a just trial, this detention of suspects means nothing to this impending struggle against one of the most frightening forces the world has dealt with. Thus on moral and legal grounds, laws related to terrorism need to be visited again by the legislature.
(Raghav Pandey is Assistant Professor of law, and Neelabh Bist is a fourth year student of law at the Maharashtra National Law University, Mumbai)
