By Fawaz Shaheen
We have recently observed the 20th anniversary of the ‘crime of New York’, the terrorist attack of 9/11 that led to the inauguration of a War on Terror. While recent events in geopolitics have led many observers in the United States to start talking about the end of this war, the truth is that in the last two decades this War on Terror has moved far beyond a mere physical war and become a conceptual category in itself, that is deployed in various places and through various means to further the discourse and processes of securitisation.
The most important conceptual paradigm that has helped this entrenchment of securitisation through the deployment of the War on Terror, is the idea of a ‘state of exception’; the idea that we live in exceptional circumstances, faced with unique threats that justify the utilisation of exceptional means to counter these threats. This kind of argument is most visibly employed to justify the excesses of the physical war on terror, the proliferation of extrajudicial execution through drone warfare or the creation of justificatory regimes for torture and ‘enhanced interrogations’.
But in a more subtle way, the idea of a state of exception has become entrenched in our everyday governance and policing practices, especially through the medium of extraordinary laws framed to counter terrorism. These anti-terror legislations are in fact a formally embedded part of the war on terror, since the immediate aftermath of the 9/11 attacks saw the passage of United Nations Security Council (UNSC) Resolution 1373 that required all states to formulate anti-terror laws.
India has also passed important laws in order to comply with the UNSC Resolutions. However, India’s tryst with draconian legislations does not begin with the global war on terror. The first major anti-terror legislation in India was the Terrorist and Disruptive Activities (Prevention) Act (TADA) which was in force in India from 1985 to 1995. Even though it lapsed in 1995, cases which were already registered under it continue to be tried in designated special courts to this day. The law not only gave wide powers to police and investing agencies, it also significantly altered the standards of evidence and procedure to be followed in a prosecution under TADA. Even basic protections like the right to be presented before a magistrate within 24 hours of arrest were abandoned. Confessions made before a police official were made admissible as evidence and Section 21 of the Act also reversed the presumption of innocence in certain cases.
In 2002, in the aftermath of the Parliament bombing incident the Prevention of Terrorism Act was passed. This act contained many provisions similar to the lapsed TADA. Interestingly, POTA in 2002 was passed amid significant criticism from many quarters, including the National Human Rights Commission. In 2004 the newly-elected UPA Government repealed the law in its first session of Parliament, but in the very next session in the same year it brought significant amendments to the Unlawful Activities Prevention Act (UAPA) that effectively brought the POTA back to life.
The Unlawful Activities Prevention Act (UAPA) was first enacted in 1967, but its true import has come to light after significant amendments in 2008 and 2012. After the 26/11 attacks in Mumbai, a series of Amendments were passed, ostensibly to better equip the criminal justice system to deal with the crime of “terrorism”. As part of these measures, investigating agencies were given sweeping powers to arrest, search and detain suspects under Sections 43A-43F, bypassing the usual procedures laid down in criminal law. Further, the Government was given a very broad discretion to declare any organisation as an “unlawful organisation” under Section 3, without having to furnish sufficient reasons for doing so, while at the same time simple membership of an organisation declared as unlawful was criminalised under Sections 10 and 11. In the same thread, Section 23 was amended to criminalise any act that could be interpreted as “helping” a terrorist gang or organisation.
The way UAPA and other anti-terror laws have been deployed over the years has reignited the debate over security and liberty that has been prevalent in most terror-affected countries, especially in the aftermath of the fatal 9/11 attacks and the larger discourse of the “war on terror”.
It is important to understand that India’s anti-terror laws have not emerged out of a vacuum. The roots of ‘national security’ jurisprudence can in fact be found in the development of criminal law under British colonial administration. The Indian Penal Code (IPC) was enacted in 1860, close after the remarkable events of 1857, popularly regarded as a revolt and widely considered to be the first battle of independence. Although the IPC, like any other criminal law, contains a comprehensive catalogue of criminal behaviour, the shadow of 1857 lies heavy on it. It contains many provisions specially designed to quell dissent, such as the provisions relating to waging a war against the state and sedition.
While some of these may be honestly justified on grounds of National Security, the language of some is such that by no stretch of imagination can they be acceptable to a free society. Take 124-A (sedition) for instance. It criminalises anything that in anyway “…excited disaffection towards, the Government established by law…”. Almost without exception every freedom fighter who we today remember with reverence was at one time or another charged with this section. Gandhi’s witty quip when he was sentenced to six years under this very section, that affection cannot be regulated by the law, aptly highlights the absurdity of this law.
Indeed, it could be argued that the very point of a democratic setup is to allow people to ‘excite disaffection’ and regulate the reigns of power. Even Nehru as Prime Minister called the law “… most objectionable and obnoxious…” in Parliament. It is a wonder then, that this provision was retained at all.
Anti-terror and ‘national security’ laws are well-known for their potential of misuse. These laws – whether it is the erstwhile TADA and POTA or the current UAPA – typically make it extremely difficult for a person accused of terrorism to obtain bail, regardless of the strength (or lack) of evidence against them. They also give investigating agencies substantively greater powers and tweak the rules of evidence in favour of the prosecution. The overall effect is a weakening of procedural guarantees and institutional safeguards meant to protect ordinary citizens from being wrongly accused or maliciously prosecuted. The misuse of anti-terror laws is so rampant and well-documented that the Law Commission of India in its 277th report has recommended that those who are wrongfully prosecuted in terrorism cases must be given compensation by the state.
However, piecemeal reform or minor amendments in the law – while important in itself – is not going to be enough to undo years of development of a national security jurisprudence. The greatest challenge before us is to get rid of a colonial hangover that sees dissent and difference as threats instead of looking at them as a democratic dividend. Till the colonial mentality of our policing and administrative structures remains intact, India’s ‘war on terror’ will continue to mutate and expand, finding enemies and threats in every nook and corner.