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The Rediff Interview/Supreme Court lawyer Indira Jaising
'There is a failure of intelligence in this country'
July 21, 2006
On the afternoon of July 11, Srinagar, the capital of Jammu and Kashmir, was rocked by five explosions. Six people were killed and 38 injured.
Even as shock of what had happened was seeping in, terror stuck again a few hours later. This time, the target was Mumbai, the nation's financial capital.
Nearly 200 people died in seven serial blasts on the city's suburban trains; over 700 were injured.
Amidst universal condemnation of the blasts, political parties like the Bharatiya Janata Party demanded a revival of the Prevention Of Terrorism Act, which was repealed in 2004.
Deputy Managing Editor Savera R Someshwar spoke to Supreme Court lawyer and occasional rediff.com columnist Indira Jaising to find out if she believes POTA should be revived, and if the absence of POTA hampers the investigation of terrorism, as BJP leaders like L K Advani and Narendra Modi have said.
Do you believe India needs a law like POTA?
No, I definitely do not think so. During the period we had POTA, it is not as if we managed to get any convictions of people who are suspected to be involved in terrorist activities.
Moreover, even when POTA was applied, we have had terrorist attacks. So, it neither resulted in convictions, nor was it a deterrent.
It is not like people were afraid there is POTA on the statute book; they were not.
You were a signatory to an appeal to the prime minister to withdraw POTA.
You also requested a withdrawal of charges against those who were booked under POTA.
Do you believe there were no cases registered under POTA that were terrorist related?
I do believe that a lot of people who were registered under POTA were innocent, or were just bystanders.
And I believe that under POTA there was so much prejudice against Muslims. A lot of the wrong people were picked up under POTA.
It is like making somebody a fall guy and not dealing with the real problem at all.
And it really is a political problem as well. I think there has to be some hard talk. If the government seriously believes that a lot of these activities are being carried out from out of Pakistan, then they have to confront (Pakistan President Pervez) Musharraf and ask what the hell is going on. In that sense, it is a political problem.
I think that every accused, whether he or she is a terrorist or is a criminal, has to be given a fair trial. And the only way to give a fair trial is the way in which the Criminal Procedure Code provides for it.
Therefore, the question is not whether we need POTA or do we not need POTA, the question is we have to give a fair trial to anyone who is suspected of any crime.
On the other hand, there are issues like the financing of terrorism and those need to be tackled.
Do you believe a separate law is needed to tackle the financiers of terrorism?
I definitely think so. You do need a law that will take care of the gains to be made from financing terrorism. I do think there is a kind of nexus between those who peddle drugs and those who indulge in terrorism. Somewhere, there is some common money in circulation, which is both in the network of getting hard drugs and in terrorism.
You just said there should be a law that should curb the 'gains of terrorism'. Could you expand on that a little?
See, if the person is, say, convicted or is known to have links, then their source of finance has to be tracked. It is possible to track the source of finance and to freeze all this money wherever and in whichever hands it is found.
We need a law relating to money laundering because a lot of money seems to be converted from illegal into legal sources. And we don't have any way to deal with this.
Secondly, this whole business of a connection between terrorism and drugs was something that was known long back. Right from the time of the hawala case, where this diary was found recording entries, right from that time. It surfaced because of this connection between drugs and terrorism. But nothing has been done about it from those days.
Another thing is if we do believe Pakistan is in some way implicated, then I think you have to work at it at the political level and the issue has to be confronted very directly.
Do you believe POTA was used as an excuse to say, look, we are doing something about terrorism? Is that what the law was used for?
Yes, I think so. Apart from the fact that the wrong people were picked up.
Do you believe then that there was no direct handling of this problem?
No, I don't think it is just that. There is a failure of intelligence. There is a failure of investigation.
Why is there no intelligence about these issues so that they can be pre-empted?
There is a failure of intelligence in this country and there is no doubt about it.
I won't be surprised if the intelligence agencies are infiltrated.
So, unless, we deal that, with the failure of intelligence...
So POTA was dealing with the problem after it occurred.
Right. In the beginning you need intelligence, and you need to deal with it. That is not happening. And I think the intelligence agencies are also compromised in some ways, which is why it is not happening.
There has been an argument made that the absence of POTA has made it harder for law enforcement agencies to investigate acts of terrorism. Do you agree?
No, I don't agree with it all.
The police have sufficient powers to search, to seize, to enter premises. There is nothing that they don't have. POTA comes into operation only after the police have completed their investigation; it does not give them any extra powers to investigate. It gives the judiciary extra powers to convict on the basis on confessions and things like that.
POTA does not give the police any extra powers; they still have to investigate under regular law.
You don't believe there is any need whatsoever for POTA to be brought back?
No, I don't think so.
Certain political parties are making a case for POTA to be brought back.
I think it is posturing. I think what we are witnessing is a game and a countergame and I think all our politicians need to give up this posturing.
The BJP is trying to steal a march over the Congress and the Congress is trying to steal a march over the BJP and, in the process, the real issues are being lost.
What laws exist in India today to combat the funding of terrorism and to help prosecute acts of terrorism?
I think, on funding, there are very poor laws.
But there are laws that declare organisations illegal, the Unlawful Organisations Act. I think that law should also be seriously enforced, because that is where you can do a scrutiny of an organisation's sources of funding, aims and objectives. And that law needs to be very strictly enforced. I don't think it is being strictly enforced.
So, except for funding, you believe our law enforcement agencies have all the tools they need to tackle terrorism?
And they are not using those tools correctly?
No. And also, as I am telling you, there has to be some amount of infiltration of intelligence agencies. Large amounts of RDX go undetected. How does it happen? There has to be some connivance between the law enforcement agencies and the drug and arms network.
Actually, the drugs and arms networks are common networks. They operate through the same network. So, supposing you allow drugs to come to the country, through the same source arms can come in.
If you can't tackle drugs because you are compromised, then you can't tackle the entry of arms or RDX.
So you believe that to tackle terrorism today, what we need is political will.
And better intelligence.
And you believe that with that we will be able to tackle the problem of terrorism much better than we are doing now?
Yes, I do.
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