DEBATE IN PARLIAMENT

UPA Government fights
terror wearing kid gloves
Arun Jaitley

Mr. Chairman Sir, I rise to oppose 'The Prevention of Terrorism (Repeal) Bill, 2004' and 'The Unlawful Activities (Prevention) Amendment Bill, 2004'.

It is paradoxical and ironical that a country which has been at the receiving end of terrorism should be repealing and withdrawing its anti-terror law. In fact, this is a paradox which the rest of the world will find very difficult to understand. We oppose these Bills primarily on the grounds that these Bills, if enacted, seriously compromise India's national security. We oppose these Bills because these Bills, when enacted, indicate that a soft regime for detection, for investigation and for prosecution of terrorist offences will come into force in India. We will have a strange legislative regime— while dealing with hoarders and drug peddlers we are going to have extraordinary stringent laws, but milder and softer laws when it comes to dealing with terrorists. We oppose these Bills because these are a part of callous policy towards national security which the present UPA Government has adopted where it is preferring vote bank politics over considerations of national security. What was the need to promulgate an Ordinance on the 21st September, 2004? 1 refer to this date, the 21st September, 2004, because that was the date on which the (Repeal) Ordinance had been promulgated, and the new Unlawful Activities (Prevention) Amendment Bill seeks to replace the Ordinance. There is a significance to this date, and the hon. Minister for Parliamentary Affairs said that there was a grave urgency that the repeal had to take place immediately. Sir, this House through the Joint Session in the year 2002 had enacted the Prevention of Terrorism Act, 2002. The enactment of that Act was pursuant to the concern which we had shown towards national security and the menace of terrorism as it existed in India. It was also pursuant to a global effort to combat international terrorism. In fact, we are a privy to the U.N. Resolution 1373 under which each Member-State of the United Nations had committed the enactment of an anti-terror law within the State itself because this is a menace which not only concerns one country but across the world concerning several nations. We enacted that law and even though the Bill was enforced on 28th March, 2002, in fact, that Bill also replaced an earlier Ordinance, and that earlier Ordinance had come into force on 24th October, 2001. Therefore, POTA, the law, and POTO, the Ordinance came into force on 24th October, 2001, and was to remain in force for a period of three years after which this Legislature would have reconsidered the matter. The Government would have decided whether it wants to continue with it or not continue with it, and in the normal course, in the first instance, the three years period would have been over on the 23rd October, 2004.

When the law itself was coming to an end or coming for review on or before 23rd October, 2004, what was this grave urgency that just 32 days before that, you must bring an Ordinance and, through that Ordinance, try and repeal that Act and bring supplementary Act into force. What was the need to bring an Ordinance when you could have waited 32 days more when this legislation itself would have come up for review, whether to continue it or not to continue it? Even when this Bill was originally passed, the Government, at that time, had said, "Let us experiment it for three years. Experience will teach us what to do with it; whether the terrorist situation remains till that period or does not remain." But, you did not want to wait till that date because you wanted to send a signal, not for reasons that this country needs a legislative scheme for investigation of terrorist offences, for prosecution of terrorist offences, but you wanted to send a signal really in pursuit of your vote bank politics that even though only 32 days were left, we wanted to repeal it and, therefore, sent that signal itself. Sir, let me say this that this is one of the rare cases where the Government has chosen to bring an Ordinance and then, with the majority that it commands, pass a Bill, which only history will take into consideration, whether it really served the purpose for which such anti-terrorist law in India was required or not.

Sir, I do hope that he is not correct, but if it is correct, then my worst fears have come true. You have hundreds of cases where terrorists in this country are being prosecuted under POTA. A person can only be prosecuted under a law which existed on the date of offence. We can't legislate today and under the new law retrospectively create an offence with reference to a back date. This law is really going to bring smiles, not as I said on the faces of those who wanted to be soft on terror, but it is going to bring laughter on the faces of those who had indulged in terrorist offences. And, there would be no law, there would be a vacuum created, so that those people cannot be prosecuted at all.

When in September 2001, this Ordinance was first brought in, what was the state of our country, and, what was the. State of the world we were living in. 9/11 had just happened in that month itself. But, India's battle and India's misery at the hands of terrorism had not started on 9/11. We had been suffering at the hands of terrorism for almost more than a decade before that had happened. We have seen the face of terrorism in Punjab for almost ten years, we have seen insurgency of various forms in the North-East, we have seen insurgency by some groups even down South, and, we have also seen the worst form of insurgency in Jammu and Kashmir and its consequences in other parts of the country.

We have also seen the emergence of a new kind of Maoist terrorism in the last few years spreading over almost a dozen States of India. AImost 137 Districts of the country are engulfed by this last kind of terrorism. That is the situation of the country that we were in. Barring some improvement, which had taken place in Punjab in the early 1990s, the situation in other parts of the country still remains a matter of concern. We had the statement of the hon. Minister yesterday saying that in the last few days, despite the winter-snows, we have seen the infiltration on the increase. I share his concern, and, that is a concern for each one of us, and, what is the kind of cost we have to pay because of this. What is the kind of situation we were facing? We faced a war immediately after,1947, we faced a war in 1965, we faced a conventional war in 1971, and, thereafter, we had the conflict in Kargil. Pursuant to all these 'earlier three wars, I think our not-so-friendly neighbour had realised that India's conventional strength in conventional war is far ahead. And, therefore, in the 1980s, we found this new system of various ISI modules being created in India, various forms of insurgency being supported in this country.

Let us just look at the kind of cost and consequences we had to pay. All these four conventional wars that we have fought, if I regard Kargil as one of them, the total number of lives we lost in conventional wars has been 9,857. About 9,857 lives, just less than 10,000, how unfortunate it is. This new kind of war through cross border terrorism which had been launched against us, and, all these five forms of terrorism that we faced, they have cost us lives of two of our former Prime Ministers, they have cost us almost 65,000 civilian lives, and, they have cost us lives of ten thousand security personnel. That is the kind of cost that we have paid through this unconventional war, and, now we want to have a regime which washes away all the past crimes.

Look at the recoveries done by our security forces. Our security forces have been doing an exemplary job of fighting this kind of terrorism all over the country. According to the governmental figures, it is 49,511 kgs and now touching close to 50,000 kgs. I asked one security expert as to what is the potential of this kind of explosive which has been seized and recovered, and, he told me, if used, it could blast every inch of the Indian territory. There are number of AK-47s, the grenades and other weaponry, which have been recovered.

What about the lives lost? The quantum of money which we are spending on all our paramilitary forces and the quantum of money that we are spending on all our counter terrorism operations, maintenance of those forces, this is the exact amount of money which should have been spent on roads, which should have been spent on health care, which should have been spent on education, which should have been spent on drinking water. We are now eating into a large part of our national resource and diverting it into a counter terrorism apparatus which we are trying to build up in this country. These are not the only costs. The costs are: terrorism has started under-valuing democratic institutions. It is extremely difficult in terrorist prone areas— we saw it happening in Punjab; we have seen it in the north-eastern States to have even timely elections, to get the fear out of the minds of the people. In Jammu and Kashmir, terrorists have been openly announcing at times "Well, whoever comes to vote, we will give him this television set as a gift". So, it undermined democratic values. The impact on governance is adverse. Nobody makes investments— whether it is foreign investors or domestic investors- and go in an area where jehadis carrying AK-47 are moving on the roads, where plants are going to be blasted. Therefore, when the people's War Group in Andhra Pradesh has been targeting industrial establishments, it not only hurts those establishments, it disrupts the entire economic environment in that State. These are all different kinds of costs that we have been paying for it. Therefore, when this Parliament, through its Joint Session, decided that we need a Special law, we were not the only country in the world which thought that we needed a special law. Most liberal democracies in the world, like the United States, did it. When 9/11 happened, President Bush said, "A war has been launched against us". Three thousand people died because of 9/11. What does a country say where 65,000 civilian lives and 10,000 security lives are lost? In fact, we used to answer them by saying, "It is now that you have realised what the concern in a country like India is going to be". And when we looked at the normal provisions of our law, we suddenly realised that in small criminal cases, convictions may be easier, but in high crime cases, the rate of conviction is close to six per cent, where the chances of acquittal are 94 per cent! And, if you are a terrorist where an ordinary witness is not going to come and depose against you, where the writ of fear of the terrorist is even in the judge's mind, then, is six per cent rate going to go up, in case of terrorist offences, or, must we have a special machinery? We were not the only country in the world which decided to have this law. Under the United Nations Resolution 1373, all member states were asked to have that Resolution.

You now have those stringent provisions for the Essential Commodities Act, you have it for the Narcotics Law, you have it in four States in India to deal with local gundas, but when it comes to international mercenaries and fidayeens, you say, "We are thinking in terms of human rights, and, therefore, we are going to delete those laws".

As far as the POTA is concerned, the first provision of POTA, which was of extreme importance, was that all other laws did not define terrorism. Therefore, it became clear after TADA that there were some difficulties in the definition of terrorism in TADA. It was for this reason that there was an anomalous definition in that law. We only learnt it by experience, in the unfortunate case, in which our former Prime Minister, Mr. Rajiv Gandhi, was assassinated. The Supreme Court curiously held that the offence against those who were accused of assassinating him did not fit into the definition of 'terrorism'. Now, it was that reason that persuaded us to have a more elaborate definition of the word 'terrorism'. Therefore, harbouring a terrorist, funding terrorism, using a place for terrorist activity, all this was brought in, in the definition of terrorism itself.

The second important feature was that any proceeds of terrorism, any money earned from ransom, from terrorism, from looting, was declared unlawful. And this was rightly declared unlawful because there was a principle of civilised jurisprudence, that no man can retain to himself the profits of crime.

If a man steals somebody's property, if a smuggler earns money from smuggling, if a narcotic dealer earns money from selling narcotics, then profits of crime cannot be retained by him. We did not have any other law where profits of terrorism can be retained by a person. Therefore, we put a provision that profits of terrorism are to be confiscated and should not belong to the terrorist himself. The third provision that we had put was, that you bring a ban on several terrorist organisations which will be included in the Schedule itself. We had the Unlawful Activities (Prevention) Act, 1967, and there was a Select Committee which went into that issue and brought in only to ban certain kinds of organisations. Now, we had a ban on terrorist organisations, which was prescribed in the terrorist law itself. One of the most important provisions was such hat without that one provision, the entire life and soul of an anti-terrorist law is lost. The manner in which it has been drafted in the existing Bill itself, serves no purpose. Terrorists, particularly those involved in cross-border terrorism, today are very tech very technology-savvy. Their communications are not only through Intercepts, but they are through wireless and various other equipments. Our intelligence and our security forces endeavour very hard to intercept their communications, and it is only when they are able to intercept their communications that they are able to prevent the commission of a terrorist offence. Therefore, intelligence gathering against terrorism is one of the important instruments by which a terrorist activity can be stalled or prevented. Therefore, this power has to be given to the security forces, to the police forces, who are actually in the field, fighting terrorism. This was really the heart and soul of that legislation itself.

The next provision was with regard to admissibility of confessional statements which are made before senior police officers and then the person confessing is produced before the Judge and before the Judge, he is asked whether he has voluntarily made it or not; he has a right to make a statement before the Judge. This provision, which is essential and has been essential in all earlier anti-terrorist laws and is even present in many other laws even in a more stringent form, today has been diluted and taken away from the Act. You have several laws where special hard bail provisions have been created, POTA had that hard bail provision and the rationale behind that hard bail provision is that if a Fiyadeen or a suicide squad member is granted bail, it would be too naive to expect that he would come and appear in the court on the next date of hearing. People who are trained either to kill or to get killed are not going to submit before the jurisdiction of an Indian court and say that, "I got bail last time, I will come and appear on the next date of hearing". They are going to flee from the courts of law. For these international terrorist now we have said in the a mended law, the normal bail provisions will apply. There is also, Sir, a special provision for witness protection, special Judge, and so on which have been created and then there is a Review Committee for various areas that in case the power is abused or misused, you will certainly have an option first to go to the review committee, then, of course, the judicial review itself is possible. What has the new law done, POTA as a law, had a detailed chapter on interceptions of telecommunications. Interceptions of communications which terrorists from one part of the world may send to another and it is through those intercepts that you are able either to prevent commission of the offence or if the offence is committed, you are able to introduce it as an admissible evidence. You have to empower police officers who are dealing with it in order to go and then collect evidence and there is an urgency in these investigations. Suppose, a police officer in Kashmir, a police officer in North-Eastern Nagaland, a police officer in any of the terrorist-affected areas or Maoist area is told that such and such module or group is functioning, the police officer, if he is empowered under the law, takes the permission of his D.G.P, which was required in the original law, and then starts intercepting communications. Who could have an objection to retaining this provision which is an essential instrument in fighting terrorism? What the Government now has done is to repeal the entire chapter and bring in Section 46 of the new Unlawful Activities (Prevention) Amendment Bill, 2004 and all that it says is,

"Notwithstanding anything contained in the Indian Evidence Act or any other law for the time being in force, the evidence Collected through interceptions via electronic or oral communications under the provisions of the Indian Telegraph Act or the Information Technology Act or any other law for the time being in force, shall be admissible.

The Indian Telegraph Act says, there is one provision, Section 5, that if there is a public emergency or an issue of public safety, the Central or the State Government can take possession of telecommunication equipment. Now, in an emergency, you can do it. We don't have a state of public emergency today. There is no need to authorise a Station House Officer of a police station located in a terrorist area to take possession of terrorist telecommunication equipment. All you have today, there are very sophisticated interception devices which act, which play a key role globally in fighting terrorism. So, only if under this provision, some evidence is collected, it can be led in law in evidence.

Notwithstanding what is contained in the Evidence Act, evidence collected under the Telegraph Act and the Information Technology Act will be an admissible evidence, The rules of admissibility of tele-communicative evidence in the Evidence Act, notwithstanding that, if under these two laws or any other law, evidence is collected, that evidence would, be an admissible evidence.

Under the Indian Telegraph Act, you collect evidence when you take possession of the telecommunication equipment; under the Information Technology Act, you collect evidence through a computer resource. You collect evidence in offences relating to hacking, you collect evidence in offences where IT is going to be misused. I am still unable to see any logical rationale where the entire Chapter dealing with the interception of terrorist communication should have been deleted, because, once you delete this Chapter, and you substitute it by a solitary provision that what is admissible in evidence collected through interception under other laws, then you have to look at the other laws are not laws. The other laws are not laws under which in Kashmir or in Mizoram or in Nagaland or in any other terrorist-prone areas, the police officers are directly empowered to intercept. When this Parliament was attacked one of the issues was that the procedure prescribed by you has not been followed, and therefore, intercept evidence is not legally admissible. You are going to open floodgates that police cannot illegally do certain kind of things, and therefore, to delete the provision related to interception and substitute it by such a mild provision is something, which I find extremely difficult to accept.

Let me give you another example. The TADA had a provision which everybody regarded as a harsh provision for the purpose of grant of bail. The TADA provision was that no person would be granted bail till the public prosecutor got an opportunity of opposing and the bail would be granted only after the judge is satisfied that, on the face of it, an offence is not made out. Therefore, in POTA those provisions were diluted and the diluted provisions of POTA were that for the first year the POTA bail provisions would apply and thereafter the normal law would apply, and even in those POTA provisions some language changes, keeping in tune with the judgment of the Supreme Court, were made. Today, I heard the hon. Home Minister saying, "Well, keeping the human rights in mind, we have now decided to balance our fight against terrorism with maintenance of human rights and, therefore, as far as bail is concerned, the judge will decide under the normal Cr.P.C. whether bail has to be granted or not and these extraordinary provisions that we have under POTA for a period of one year also are not required".

Now we have a law which deals with fidayeen, which deals with international terrorism, and the normal Criminal Procedure Code is to apply and a man, if he is arrested, is granted bail oblivious of the fact that whether he is going to appear, after getting bail, on the next day of hearing before the court or not. We have hundreds and hundreds of such cases. The Finance Minister will be able to give the exact figures where foreign nationals disappeared the moment they got bail under the Narcotics and Psychotropic Substances Act, and that was the last time they appeared before the court. Here, we are not dealing with foreign nationals who are dealing in narcotics. We are dealing with international terrorists; we are dealing with people who come from across the border with the object of killing or getting killed and are threatening the sovereignty of this country. For them, we are saying, well, they must be released on bail and we must be considerate about their human rights. Exactly the same language, which was there in TADA, that is, throughout the bail the provisions will be the same was there under POTA and it was, as I mentioned, for one year. It is, today, present in Narcotics and Psychotropic Substances Act, 1985. When the Congress Government was in power in 1985, you decided, as far as drug peddlers are concerned, that the normal rule was "no bail".

Under the Prevention of Damage to Public Property Act, 1984— at that time also the Congress Government was in power-there are difficult provisions for getting bail for those who damage public property. Under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1990, the Cr. P.C. would not apply; special bail provisions are to apply. Under the Essential Commodities Act, there are similar provisions. Not only these, but also, today, you have four States in India where verbatim the same bail provisions, which were under TADA, are still applicable. Which are those States? One is Maharashtra. Who brought that law? The Congress-NCP Government in Maharashtra brought that law, that is, MCOCA. Have those people, the local goondas, who are arrested under that law, got human rights in the explanations given by the Home Minister? You are concerned with the 'human rights of fidayeen. But your' local or swadeshi goondas are entitled to hard bail provisions where bail is hot to be granted. But if a terrorist commits a crime, bail is to be granted. Which is the second State? The second State is Karnataka. Who brought that law? The Congress Government brought that law. Who is continuing that law? The Congress Government is continuing that law under the Karnataka Control of Organised Crime Act. You have two other States. The TDP brought that law in Andhra Pradesh. There is a similar law in Gujarat for dealing with organised mafias. So, the State Legislatures in this country thought it fit to bring laws where hard bail provisions are there. So, we have four States in India which have the same law for dealing with your local afias indulging in organised crimes.

You have another provision in this Bill which you had it in POTA which has been deleted where confessions made to police officers were made admissible. When mercenaries and fidayeen come and indulge in a terrorist offence, normally they are not arrested on-the-spot. They either kill or get killed. Those who attacked Parliament, was a suicide squad. The Parliament was rescued. But the five terrorists died on-the-spot. So we could not arrest them.

When late Shri Rajiv Gandhi was assassinated, those of the inner core team blew themselves up along with the victim that they targeted. But who did the investigations look for? The investigations always look at people who have been part of the larger conspiracy and as part of that larger conspiracy who have been giving support, who have been giving money, who have been giving logistical support, who have been giving weapons, who have been giving vehicles, who have been providing for the escape of those people, who have been indoctrinating people. When Parliament was attacked, we were looking for Gazi Baba. Does the Government really believe that to find out and discover this chain, we are going to easily find some eye-witnesses who will say that when these assassins went to Gazi Baba in a closed door meeting. Obviously, we don't expect it from them.

It is for this reason that in terrorist offences, all over the world, you have a special provision in regard to how confessions of the accused and some other people are to be dealt with. TADA had a provision where confessions were made admissible and the confessions were admissible in law simpliciter. The Supreme court made some observations and -said, "'This is a bit too harsh please dilute this law. If a person is making a confession, have some checks and balances so that confession is not misused," This fact was looked into and after an extensive debate the POTA provision said that the confession should be made before a very senior level police officer, an SIP or above, and within 24 hours the man making the confession must be produced before the judge. He will have an opportunity of telling the judge whether this confession, he has made voluntarily or otherwise. If he says that it was involuntarily, the judge will also get him medically examined. We have diluted that provision in POTA itself. Today you have a law where the entire provisions relating to admissibility of confessions has been completely deleted now.

Take the confessions out, 'and this country would have made a spectacle of, itself. When a former Prime Minister was assassinated in the presence of thousands of People, but for those confessions, the convictions could not have taken place. If you had thought of deleting the confession in case of POTA itself, why should you have admissibility of confessions in several other laws- Why are confessions admissible against organised mafias? Why are confessions admissible under the Narcotics Act?

Statements made by you before the Enforcement Officers are admissible. You can be convicted because of that. The Law Commission says, 'Repeal that also'. But then, for those lesser offences, you should have thought of making a beginning and seeing the consequences. You have put the law upside down by saying, "Under the Customs Act, Income-Tax Act, Enforcement law, Narcotics law, against organised crimes, under all these laws, admissibility of statements and confessions remain. But there is something sacrosanct about terrorism. If somebody confesses to a terrorist offence, we must have a special exemption as far as the admissibility of that offence is concerned!

If in the Home Minister's home district, a local goonda is arrested under MCOCA, his confession will be admissible; but if a terrorist is arrested under POTA, his confession will not be admissible. That is why I said you have created such an anomaly in the law that even for lesser offences, you are going to have harsher provisions; but for terrorism, which is eating into the vitals,. as far as our system is concerned, you say that the confessions are not going to be admissible at all. This is going to lead to a situation— in a country which has made one of the maximum sacrifices in the face of terrorism where our investigative agencies are going to have their hands chained.. They want to intercept some terrorist organisations; our investigative agencies are going to have lack of evidence when they start prosecuting terrorists. Our investigative agencies are going to find it extremely difficult beyond a point even to oppose bail in terrorist cases.

If the object of this entire exercise is to really improve this country's ability in fighting terrorism, the unequivocal answer is no. Is it going to chain our investigative agencies, and cripple them, in investigating and prosecuting the terrorists? The answer is, yes. Is this going to send a signal to terrorists and others across the world that a country which has made one of the largest sacrifices in the face of terrorism, is now going soft and is repealing its anti-terror law? The obvious answer that we are going to give is, yes; this country is.

We do hope that the situation in our fight against terrorism improves and, God forbid if it does riot, when history Is written as to when we send soft signals that we are soft on terrorism, I am afraid these two Bills are going to be mentioned there in bold print and the Home Minister's Government is certainly not going to come out with glory in that situation.