IS A SPECIAL LAW NECESSARY TO DEAL WITH TERRORISM?

By

Anil Athale

The author has been studying insurgency and terrorism in Kashmir, Sri Lanka, North East India and Northern Ireland for last 15 years.

 

The current Indian Government in its wisdom has decided to scrap the anti terrorist special law POTA ( Prevention of Terrorism Act). There has been much criticism against this law on the grounds that it is ‘draconian’, against the Muslims and has been misused. Not being a legal expert one cannot truthfully comment on the legal aspects. The govt did have the alternative to modify it to meet certain objections raised against it. But instead it has chosen to throw the baby along with the bathwater. The argument advanced is that ‘ordinary law’ is sufficient to deal with terrorist threat. It is intended to address this aspect of the controversy.

 

Background. 

 

Man is a social animal and lives in a group. According to 16th Century English political philosopher Thomas Hobbes, in his work ‘Leviathan’, ‘ state’ of some sort ( whether tribal chief ruled, monarchy, aristocracy or democracy) has always been in existence. Without it civilisation or progress is not possible. It would be then a law of jungle and war of every one against everyone “ Man in state of nature” . In his oft quoted phrase “ In such a state, man’s life would be nasty, brutish and short”. The primary duty of the state is thus to lay down the law for interpersonal transactions and punish the transgression. The laws, police and judiciary, are all geared to deal with an individual.

 

When there is a group or gang that operates, with criminal intent, the ‘ordinary’ law was seen to be ineffective. It is this realisation that prompted special laws like Maharashtra Govt’s law against organised crime or MOCA. Many  argue that this is adequate to deal with terrorism as terrorists do resemble criminal gangs. This is a fallacy for terrorism, specially of ‘cross border’ variety is far more potent a threat than the one posed by criminal gangs.

 

Characteristics of Cross border Terrorism. 

 

It is being asserted by all, including the Prime Minister, from all forums including the UN, that India is facing a threat from cross border terrorism. What it means in practical terms is that the terrorists have the ENTIRE MACHINARY OF MODERN STATE  at its disposal to carry out its activities. This includes training in fire arms and explosives.  It is reasonable to assume that the host state would also make its Forensic Laboratories, legal and police investigation expertise available to the terrorists to help them evade, escape the police dragnet and sufficient finance to fight their legal cases.

 

In addition, the terrorist claim to be fighting for an ideological cause. This makes them avail of large support base. Many law abiding citizens, otherwise peaceful, do sympathise with the cause, though they may not be supporters of the violent methods. Even public information about the ‘Kandhar ‘ hijacking of December 1999, shows the extent of support received by the hijackers in Mumbai. Is it possible for the police to detect false documents when they have been made by another police department?

 

Pressure of society and sympathisers make sure that there are no witnesses who would come forward to give evidence against terrorists. The witnesses who have turned ‘hostile’ are a legion. Finally, if any witness does pick up courage to testify, with no witness protection programme in place and ‘IRRESPONSIBLE ‘ and callous electronic media hounding them, many witnesses have been eliminated by the terrorists.  

 

True Nature of Cross border Terrorism.   

 

Pakistani campaign of cross border terrorism is run by the Inter Services Intelligence Agency  (ISI) that is headed by a serving Pakistani General and consists of serving Pakistani Army officers and men on deputation. It functions directly under the command of Pakistani Army Chief ( who is generally and at the present also the President of that country). Thus cross border terrorism is actually a ‘proxy war’ being fought by the Pakistani Army on Indian soil. To fight this war with peace time legal instruments and mere police methods is an invitation for failure.

 

Is it any wonder then that despite the acts like POTA, many terrorists involved in acts like attack on the Parliament, Ghatkopar bomb blasts or the recent Gateway of India bomb blasts, have been found ‘not guilty’ by the Indian judiciary.

 

Is it Anti Muslim?   

 

A canard has been spread that the law is anti Muslim. Even an Islamic country like Pakistan has been forced to enact a special anti terrorism law. Pakistan is 97 percent Muslim and ALL the persons arrested or charged under this act are also Muslims. So has been the case in the US, UK, Indonesia, Spain or Australia! Are all these countries anti Muslim? This is a ridiculous argument swallowed by those whose sole interest is to practice ‘Vote Bank’ politics at the cost of national security.

 

Pakistan could well turnaround and debunk our accusations about cross border terrorism by pointing out that we have even abolished the anti terrorist law.  The world at large is aghast at this perversions of Indian democracy and it is no wonder that given our lackadaisical approach to countering terrorism, Indians travelling abroad are treated at par with Pakistanis, Syrians, Iranians and Afghans…….this is despite the fact that there is not a single Indian in American detention centre in Cuba……

Is it any wonder that the hapless Indians are ill treated at Heathrow  airport ?