The provisions of TADA were much more stringent than those of the new Ordinance. The constitutionality of those provisions, of TADA itself had been challenged in the courts. The Supreme Court specifically upheld TADA, and declared its provisions -- the much more stringent provisions -- to be in accord with the Constitution.
While I happen to be in Government, my assessment for Parliament is the opposite one to that of the critics: the Ordinance bends too far back to accommodate human rightists, and that includes some impractical judgments too -- like that of the Supreme Court in D. K. Basu Vs State of West Bengal.
Under TADA, as we just saw, the accused was allowed only one appeal that to the Supreme Court. Even with that restriction, the judgment in the Rajiv Gandhi assassination case took all of eight years. By allowing another intermediate appeal -- to the High Court -- we are ensuring that the period would be not eight but a multiple of eight years!
Similarly, recall the provision that allows a lawyer to meet the accused while he is being interrogated. Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyaba. He is certain to have been saturated with indoctrination to the point that he is nothing but a killing machine. Do you think he is going to give you information over a cup of tea? And if lawyers are going to be meeting him from time to time during interrogation, is there the slightest chance that you will be able to extract information -- information about their plans, about their networks, that is information which is literally a matter of life and death for our people and our country?
But-such is the condition of public life and public discourse in India today, and so far removed from reality are some of our judgments that a provision like that one about lawyers has had to be incorporated in the Ordinance.
Based on their experience in dealing with organized gangs of criminals, the states of Maharashtra, Andhra, Karnataka have formulated laws. Why should the law for combating terrorists be more circumspect than the laws required for neutralizing gangsters? But that is what the Ordinance is. To give just one example, the state laws provide that the Review Committees -- to consider orders passed by the Home Department shall be headed by the Chief Secretary, but the Ordinance requires that the corresponding Committee for terrorists must be headed by a High Court judge. What entitles terrorists or their agents to greater solicitude?
Similarly, consider the deletion of "disruptive activities" from the Ordinance. TADA provided that any action that questions or disrupts the sovereignty and territorial integrity of India or is intended to do so, or which is intended to bring about or supports a claim for the secession of any part of India from the Union shall be a crime under TADA. Imagine how far we have fallen when even such a provision has had to be jettisoned -- even from a law the specific purpose of which is to thwart terrorists out to break our country.
The charge that such provisions were used against Muslims, that TADA was an anti-minorities law was a travesty. The facts, as I had pointed out at the time, were completely to the contrary. The notorious case of abuse was by the Congress-I led Government of Gujarat: it threw almost 19,000 persons in jail under TADA, and these were farmers opposing its policies. I don�t recall any protests against that abuse by those who are now imagining possible abuses in the future. Just as important, ninety eight per cent of those arrested in Gujarat got bail under that very Act from the courts. In Kashmir it is true that the overwhelming proportion of persons held under TADA were Muslims: but they were arrested not because they were Muslims, they were arrested because they were out to break the country. These two instances apart, the proportion of Muslims among the total arrested under TADA was only 4.5 per cent.
But such is the shadow that the falsehoods circulated at the time cast, that even six years later, and with thousands more having been killed by terrorists, the provision about activities aimed at disrupting the sovereignty and territorial integrity of the country has had to be excluded from the Ordinance.
"But what was the need for an Ordinance? Should the Government not have first evolved a consensus on the matter?"
Is there never to be a finality? Not even in a matter relating to the security of the country? Guess since when the efforts to bring about a consensus on this law have been going on? Since May 1995. TADA was allowed to lapse because opportunist politicians looking for issues that would curry favour with the Muslim vote bank saw an opportunity. That itself was a crime -- an instrument vital to the security and defence of the country was sacrificed to the crassest political calculation. Then began the long march.
A Criminal Law Amendment Bill was drafted and circulated in 1995. It was abandoned. Consultations continued with all and sundry. The matter was eventually referred to the Law Commission in 1998. That Commission deliberated on the question for two years -- giving its report and draft Bill in April 2000.
That draft was considered at meetings of Directors General and Inspectors General of Police, of Chief Secretaries and Home Secretaries of state governments. It was considered at the Chief Ministers� Conference on Internal Security last year. It was sent to the Human Rights Commission for its observations. It was sent to the state governments for their comments.
Should the process go on indefinitely? And what are the prospects of "evolving a consensus" when it has become an article of faith of everyone who is out of office that his job is to block everything a Government does? That his job is to block even what he was doing when he was in office, in fact even what he is today doing in the states in which he is in office?
The comments that the states sent to the draft Bill themselves tell the tale. The Congress(I) is opposing the Ordinance. In fact, when the Law Commission�s draft was circulated, the (Congress-I) Government of Delhi supported the enactment of the law in toto. The (Congress-I) Government of Karnataka supported the enactment of the law in toto.
The (Congress-I) Government of Nagaland supported the law in toto. The (Congress-I) Government of Madhya Pradesh, the (Congress-I) Government of Rajasthan, and the (Congress-I) Government of Maharashtra supported the enactment of the law, they sent suggestions about specific clauses.
The CPI(M) Governments of Kerala, West Bengal and Tripura sent their usual "principled" opposition. That Government in Kerala has gone. The one in West Bengal is trying to cover up its embarrassment for having finalised its own version of the Maharashtra Act. The Government of Tripura, after some initial show of reluctance because of "the party�s stand", has begun using corresponding provisions from other enactments relating to national security.
Not just those governments in the states, representatives of those parties at "the national level" have in general endorsed the need for a law to deal specifically with terrorists and their organizations. The leading figure in Parliament from the CPI(M) went so far as to counsel Government that it should study what Israel is doing in the matter. One of the most highly regarded leaders of the Congress(I) in Parliament stated that the Indian Penal Code is inadequate for combating terrorism, that a special law is needed, that in fact the draft Bill itself was not adequate. Nailing the falsehood that is being circulated, he said that the Bill does not shift the onus of proof on to the accused, that the provisions only seek to raise a presumption in certain circumstances. He said that there were many loopholes in the Bill, and for that reason it should go to the Select Committee or Standing Committee of the House...
This process has been going on for six years. In the meanwhile terrorists have continued to maim, kill, blow up, bum...
Fifty-five thousand people killed... that is five times the number we have lost in the 1962, 1965, 1971 and Kargil wars. And we are still stalled -- awaiting a consensus before getting even a law in place to deal with terrorism.
My plea, therefore, is the one opposite to that of the critics: the Ordinance should be approved at the first opportunity, and soon thereafter toughened -- the diluted provisions should be replaced by tougher ones -- closer to those of TADA.
Part I - POTO: Interception, Confession, Confessions, Torture
December 1-15, 2001