Terrorist-friendly deletions

The Prevention of Terrorism Act, 2002, has been repealed. Some of its provisions have been incorporated in the Ordinance on the Unlawful Activities (Prevention) Act, 1967. These relate to the definition of terrorism, the punishment for funding of terrorism, the confiscation of proceeds of terrorism, banning of terrorist organisations, and the interception of terrorists' communication. However, there are two vital omissions in the provisions which detail the procedure for investigating and prosecuting the terrorists which has been incorporated in the Unlawful Activities (Prevention) Act, 1967.

First, the provisions relate to the grant of bail dealt with by Section 49 of POTA. For the first one year no person accused of an offense under POTA could be granted bail unless the Public Prosecutor has an opportunity of being heard. A person accused of an offense would not be normally granted bail until the court is satisfied that there are grounds for believing that a person accused of terrorism is not guilty of committing such an offense. Further, after the expiry of one year, the normal procedure of bail under the Code of Criminal Procedure would apply to a person arrested even under POTA.

This was a departure from the provisions of bail under TADA wherein the stringent provisions would continue to apply throughout the trial and not merely for a period of one year. There is a strong legislative rationale dictated by public policy why persons accused of terrorism should normally not be granted bail. Terrorists commit offences out of conviction. Mere detention is unlikely to reform them. Fidayeen or suicide squads believe in either killing or being killed. A large number of them are trained across the border.

Those involved in heinous offenses at times are not even domestic citizens. It would be too naive to accept that once granted bail, the Fidayeen would respect the due process of Indian law and continue to appear before the courts. Bail could be an opportunity for them to escape from the process of law. This is why comparable laws in other democracies also have tighter provisions for grant of bail.

However, there is no reason for the Government to have assumed that the threat of terrorism has diluted to the extent that we can liberalise our system and provide easy bail provisions to the terrorists. Compare this regime to the following laws where the bail regime now is more stringent than the one applicable to terrorists.

a) The Narcotic Drugs and Psychotropic Drugs Act, 1985, clearly provides that throughout the trial the provisions identical to the ones in POTA will be applicable. Thus, those dealing in drugs and narcotics are entitled to a stringent bail regime while the terrorists would be eligible for a more liberal regime.

b) Almost same provisions under the Essential Commodities (Special Provisions) Act, 1981 the bail regime is same as under POTA. Therefore, black marketers and hoarders would be entitled to a regime which is far more stringent than the one applicable to the terrorists.

c) Several states in India have legislated laws for punishment and trial of organised crime. Such laws are today enforced in Karnataka, Andhra Pradesh, Maharashtra and Gujarat. The bail provisions in all these laws is verbatim identical to the ones of POTA. It can thus be argued that India has a legislative scheme where domestic mafias are subjected to a stringent bail regime but international Fidayeen can avail of a more liberal system.

Second significant dilution of POTA is in relation to confessions made to police officers to be taken into consideration as admissible evidence. I have the least doubt that this dilution has been made notwithstanding the consistent advice to the political establishments by various agencies which are involved in fighting terrorist organisations. The anatomy of a terrorist crime would reveal that terrorists and Fidayeen would attack at the cost of their own lives. They are highly motivated people who will either kill or be killed. In most serious terrorist offenses, be it the assassination of Rajiv Gandhi or the attack on Parliament, the actual attackers were killed at the spot.

The trial involves those who are conspirators such as having given logistical support and planned the offense. Thus, in a typical terrorist offense it is those who provided the monetary resources, weapons, the escape vehicles, planned the refuge or motivated terrorists by training or otherwise who are prosecuted as conspirators in the offense.

Thus, the UPA Government expects eye witnesses to come depose with regard to the nature of the involvement of each conspirator. Besides circumstantial evidence, the two other forms of evidence available against these terrorists are either in the nature of interception of telecommunication or confessions made by the weaklings amongst the terrorist gangs. The text book illustration of this is the case relating to the assassination of Rajiv Gandhi.

The actual human bomb and her associates died at the spot. The Special Task Force did an exemplary job in uncovering the conspirator. They arrested and prosecuted those who had provided refuge, training, vehicles, weapons and funding for the offense. Obviously peace loving and law abiding citizens could not have been eye-witnesses to the act of these conspirators. Thus, the entire evidence comprised of confessions made to police officers under TADA. The eventual conviction was almost based on these confessions. Take the confessions out and the country would be faced with a situation where a former Prime Minister was assassinated before thousands of people and not a single person could have been prosecuted.

An anti-terrorist law without the special procedure of admitting confessions in evidence is completely toothless. Obviously, in order to obviate any misuse of those confessions, POTA provided for safeguards inasmuch as each person making those confessions had to be produced before the judge within 48 hours and upon his statement that he has not made any voluntary confession, the judge would have him examined and accordingly have the statement recorded. There is no rationale why this provision relating to the admissibility of confession should have been deleted.

There are still a large number of Indian laws which provide for admissibility of confession made to police officers or to the officers of the executive. The laws against organised crime in several Indian states have identical provisions to POTA with regard to admissibility of confession in evidence.

The provisions with regard to the admissibility of statement made to the officer or to the executive in criminal trial are contained in the Customs Act, in the old Foreign Exchange Regulation Act, the Narcotic Drugs and Psychotropic Drugs Act, and the Central Excise Act. There is no rational reason why such a provisions should be deleted from the provisions of anti-terrorist law.