Piloting the bills which were long overdue to probe terrorist crimes, Union Home Minister P Chidambaram has tired to allay the apprehension of the Left and some constituents of the UPA and says that it will be a misconception to say that the much dreaded POTA has been brought back in a new grab.

POTA has been condemned by the Congress and its allies as well as the Left parties. They are of the view that the main objective of POTA which was enacted by the NDA Government headed by the BJP was to oppress and suppress the minority communities, especially the Muslim community. There is no denying the fact that many innocent persons were detained under the dreaded POTA and that one of the MPs who strongly supported its passage in the Lok Sabha Vaiko was put behind bars by the then Tamil Nadu Chief Minister J Jayalalithaa for  championing the cause of the struggling Tamil speaking people in Sri Lanka.Since the legislation was abused  to a certain extent, the Congress , the Left parties and their allies made a commitment to the electorate to repeal it if they came to power at the Centre. And they did honour their commitment by repealing POTA which was aimed at combating terrorism soon after the UPA government was formed.

However, terrorism continues to be a major problem and threatens to disrupt India’s democratic way of life and divide the nation on the basis of religion. While it is a fact that terrorism and extremism cannot be tackled by legislation alone, what cannot be overlooked is that there is a need for a more effective law to prevent misguided people from indulging in mindless mayhem in various parts of the country including the North East.

The existing investigating agencies are too preoccupied with their routine assignments to pay any special attention to terror crimes

Through the amendment to the relevant law, the United Progressive Government headed by Dr Manmohan Singh seeks to convey the message that it was tough on terror. But it is equally mindful of valuable human rights. While drafting the amendment; the government has taken utmost care to prevent its misuse as was the case with the TADA and later POTA as claimed by Minister for Science and Technology Kapil Sibal. It may be recalled that Mumbai and its neighborhood have been affected by terrorism notwithstanding the Maharashtra Control of Organized Crime Act was in place. The unprecedented 11/26 incidents in Mumbai could not be prevented. The war on terror is never ending. Terrorism will be with us as long as people are brainwashed in the name of Jihad by vested interests worldwide. How are these to be tackled? The law enforcement agencies can only limit their operation to some extent.

However, it is not understood why this is not appreciated by the largest left political outfit in the country and why it is opposed to making the law more effective to deal with terrorism and the constitution of a federal mechanism when crimes are not confined to a particular state and region. Criminals operate nationwide and there is confirmed official intelligence that not only the metropolitan cities but also the Northeast bordering Bangladesh faces threat from terrorists.

Huji cadres backed by the ISI and operating from Bangladesh are active in the North East, West Bengal and Bihar. Despite repeated denials by the Bangladesh authorities, several North East militant groups have camps in that country and are abetted by the ISI. 

But the government must ensure that the National Investigation Agency (NIA) will not encroach upon the jurisdiction of the state governments unless the present Schedule in the Constitution is split into two. It is yet to be examined whether the government will be able to maintain a fair balance between respect for fundamental human rights and the demand for tougher laws to deal with terror by the National Investigation Agency and under the Unlawful Activities (Prevention) Amendment Bill.

The existing investigating agencies are too preoccupied with their routine assignments to pay any special attention to terror crimes

One can rely on the commitment made by the Union Home Minister P Chidambaram when he says that if any improvement is to be made in the proposed legislation it can be done when Parliament meets again in February. The legislation can be amended if it is found to be against national interest and is being misused. The point which cannot be denied is that the country does need much tougher laws to combat the menace. A closer look at the two bills does not indicate that the states’ right is being usurped in any manner.

Though the NIA is being set up by the Central Government, it has been laid down clearly that the law and order will primarily remain in the domain of the state governments. The Centre will make use of its power only in extraordinary circumstances and depending on the gravity of the situation. Will it be possible to adhere to the commitment made in Parliament in future? What will happen if the present government goes out of power and a new establishment takes over? This should have been well defined in the bill to avoid a constitutional crisis between the states and the Union Government since the same party is not expected to be in power in the states and at the Centre at the same time.

But it must be said that the objectives of the proposed legislation are laudable as the NIA will investigate offences fewer than eight laws including the Atomic Energy Act and the Anti –Hijacking Act and the states’ police have limited role in investigating crimes committed under these laws. There will be provision for special trial courts for which judges will be appointed in consultation with the Chief Justices of High Courts and the cases will be heard on day to day basis. Appeals will lie with the Division Benches of High Courts and the courts have been given the power to decide about the prosecution’s case in the matter of bail and presumption of the guilt on the accused in some specific cases.

But care must be taken to ensure that the provisions of the legislations are not abused against any innocent person including the political opponents of the ruling parties. Yes, it is correct when the critique of the UPA government says in response to the Mumbai attack that the government has abandoned its declared oft repeated policy to initiate any draconian legislation and reintroduce a couple of provisions  that are reminiscent of the notorious Prevention of Terrorism Act (POTA). The period of detention is also increased by the amended UAPA from 90 days to 180 days at the discretion of the court. Provisions regarding bail have been tightened as the courts can refuse bail of an accused if the court is of the view that the accused prima facie has committed the offence. But there is a redeeming feature that the UPA government has agreed that confessions made to the police and other investigative agencies under torture will not be admissible as evidence against an accused. But these harsh provisions must be defended in the interest of national unity and integrity which are threatened by terrorists.

While arming the government with deterrent laws, it must be acknowledged that constitution of the NIA has been necessitated due to inordinate delay in dealing with cases of terrorism. The existing investigating agencies are too preoccupied with their routine assignments to pay any special attention to terror crimes. NIA and the proposed laws armed with more powers will act as a deterrent to terrorism. But what must be ensured that its power must not be misused and it is applied in a fair manner. The selection of the officers for NIA should be transparent and fair so that its functioning is not misconstrued. 

The new legislation will have a far-reaching impact on fighting terror, if the government of the day takes sincere steps to arrest the growing trend of violence in the civil society and the NIA is given freedom to function without interference from political bosses.

To fight terrorism what is most important is that NIA should be made as independent as possible so that it is not misused by those in power. 

Pranab Kumar Chakravarty