Editorial: Terror Laws: Some Questions Remain

By M H Ahssan

The UPA government, which would like to appear to be on the ball in fighting terrorism after the Mumbai outrage, has introduced two bills in Parliament. One aims to establish a National Investigating Agency (NIA) to deal with terrorism and related offences, the other to tighten procedures to aid prosecution and trial by amending the Unlawful Activities Prevention Act. In seeking to create the NIA, the government is in uncharted waters. News reports suggest that the NIA cannot begin investigating a case on its own. It appears that the first step is to be taken by the state government where a terrorist crime may have occurred. The state in question will have to ask the Centre for the NIA to be pressed into service. It is far from clear if states will approach the Centre for the NIA’s help in the first place. State governments are known to guard their turf jealously.

Since law and order is a state subject, they have thwarted efforts in the past, irrespective of their political colour, to create an all-India agency to deal with terrorism. The federalism argument is used to stymie moves in this direction. The Left parties reiterated this view in Parliament on Monday when the bill was introduced. The BJP supported the bill since it has long been asking for so-called "tough laws" against terrorism, but we can only know later if its chief ministers will ask for the Centre’s help in investigating terrorist crimes, especially if the BJP is not running the Union government. In bringing an amendment to the UAPA — in order to tighten procedures to deal with terrorist cases in court and to facilitate investigation — the government has done well to allow for the admission of communications intercepts as evidence.

This is a much-needed reform, although there is a downside to it, theoretically speaking. It has also shown wisdom in not throwing the onus of proving innocence on the accused, for that amounts to an inversion of civilised jurisprudence. It is also good that confession before the police will not count as evidence, as was the case with Pota and Tada, which were widely misused and could not help the police in getting convictions from the courts in more than five per cent of cases. These were, in retrospect, over-hyped laws of little utility. Effective and tighter laws are needed to fight the menace of terrorism, but laws are not everything. A lot depends on the state of repair of the intelligence services and the investigating machinery.

Remember, the Mumbai carnage could take place although Maharashtra has the MCOCA, which is a replica of Pota. So it is not laws alone which deter terrorism. Part of the trouble in India is that even existing laws have not been put to effective use on account of a creaking administrative machinery. Introducing the two bills in Parliament, the home minister said these laws were being proposed because the country was a victim of terrorism sponsored from across the border. Does this mean a state government will ask for use of the NIA only if it determines that a given terrorism incident is inspired from outside the country? We shall know better with time.