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The Rediff Special/ Vicky Nanjappa
'Have summary trials for foreign terrorists'
December 18, 2008
The Unlawful Activities (Prevention) Amendment Act aims at strengthening the arrangements for speedy investigation, prosecution and trial of cases related terrorism while at the same time guarding against any possible misuse of such provisions.
The National Investigation Agency Act will set up an agency at the central level with powers to probe terrorism and other crimes having national ramifications across the country.
In this new series, rediff.com correspondents speak to experts all over the country to find out if tough laws and a federal agency can effectively fight terror and the possible effects on civic liberties.
Today: Vicky Nanjappa speaks to retired Supreme Court judge Justice Santhosh Hegde and a serving intelligence officer.
Justice Santhosh Hegde, former Supreme Court judge:
First and foremost, we must draw a clear distinction in such matters. An Indian resident committing an act of terror must be dealt differently when compared to a foreigner creating terror on Indian soil.
Terrorism [Images] is a menace and there should be no question of going soft and appeasing anyone. For an Indian who commits an act of terror, the provisions of a Prevention of Terrorism Act-like law should apply. And for a foreigner who undertakes a terror strike on Indian soil s/he should be subject to a summary trial and none of the provisions of the existing laws or Constitutional provision should apply to such a person.
The government ought to bear in mind that persons like the Mumbai attackers and such class of people cannot be dealt with the existing laws. Such persons have no connection with this country and their only intention is to destroy India.
When matters are such, why should Articles 21 and 14 of the Constitution apply to such persons? A new law for foreign terrorists ought to be created and they should be subject to a summary trial. When I say summary trial, I mean a trial before a dedicated tribunal. When foreigners enter our country and create havoc it is a war-like situation and hence such persons should be tried differently compared to other criminals.
All the provisions of the evidence act ought to be done away with and video clippings and eyewitness accounts ought to be made admissible before the tribunal.
This may, however, raise the question as to whether the verdict would be fair if there is so much pitched against the accused. I would have to say that such persons should be given a right of representation and also a right to be cross examined. This would ensure that the trial is fair. I would also like to add that the tribunal should be constituted on Indian soil and should have an Indian judge and we must ensure that the international community does not interfere.
Regarding home-grown terror, a POTA-like law with the required safeguards ought to be introduced. I am aware that people have called it a draconian law and that is why I mentioned that there ought to be safeguards. I would also like to add here that terrorism is a menace and there is no way in which we could deal with this problem with soft hands.
To ensure that the law is not misused, police officers dealing with such persons ought to be made accountable and by accountable I do not mean interference by politicians. There is a judiciary and let this institution act as the watchdog when such laws are being applied.
A senior Intelligence Bureau official, speaking on condition of anonymity:
The NIA should be on the lines of the Federal Bureau of Investigation in the United States. The NIA should have a free hand and should be a totally autonomous body and with no control whatsoever from the government. The tenures of the officers in the NIA should be long and should extend up to 10 years at least. This body should have the powers to conduct investigations abroad considering the fact that several of our crimes are being committed by outsiders.
The officers for the NIA should be picked up from various fields. There should be a police wing, a scientific wing, intelligence wing and a legal cell. They should have their own forensics lab and should not be dependant on any agency for anything.
The appointment of these officers should be done jointly by the prime minister and the leader of the Opposition to ensure that the men working here do not owe any allegiance to any political party. While appointing the officers, it should be ensured that experts in terrorism and federal crimes are chosen for the post.
These officers ought to work without fear or favour and hence it should be ensured that their removal from the post should be done only through an impeachment process. I do understand this would give room to arbitrary behaviour, but then again such matters could be brought directly before Parliament or even the Supreme Court.
During an investigation, this agency should be allowed to maintain secrecy and investigation updates should not be sought by the government unless the process is complete. Once this is complete, the criminal should be tried before a competent court or tribunal and the next level of appeal should be only before the Supreme Court.
A separate fund ought to be created for this agency and the officers have to be paid well to ensure that corruption does not creep into such a body. The government should also facilitate through diplomatic means in case any member of this agency needs to conduct a probe outside the country. The intelligence gathering wing of this agency ought to be a separate one and this would mean that good staff strength is provided.
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