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Missing: POTA and FBI-like agency
B Raman
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Terror rips Mumbai: Complete Coverage

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December 06, 2008

One hundred and sixty Indians and 25 foreigners were killed in an unprecedented terrorist strike in Mumbai from November 26 night to early morning on November 29.

The terrorists, who came by sea, opened fire indiscriminately on passers-by and then occupied two leading hotels and a Jewish religious-cum cultural centre for nearly 48 hours. All of them except one were ultimately killed by the Indian security forces. One person----a Pakistani national reportedly belonging to the Lashkar-e-Toiba, a Pakistan-based terrorist organization--- was caught alive and is under interrogation by the Mumbai Police.

The terrorist strike in Mumbai came in the wake of serial explosions in some cities since November,2007. These cases have not yet been satisfactorily investigated. The Manmohan Singh [Images] government has come in for strong criticism for the failure of the intelligence, physical security and crisis management machineries, which made the strike possible. It has also come in for criticism for failing to strengthen the legal infrastructure against terrorism.

 The Indian Police and investigation agencies were known in the past for their successful record in the investigation and prosecution of terrorism cases. This record has been sullied since the present government came to power in 2004. It abrogated the Prevention of Terrorism [Images] Act (POTA) enacted by its predecessor government, which gave the police  additional powers for dealing with terrorism.

These powers related to longer periods of police custody for suspected terrorists, admissibility during trials of confessions made to the police, preventive detention of suspected terrorists, enhanced powers for the collection of technical intelligence, fast trial of terrorism cases etc.

Muslims, who constitute about 16 per cent of the country's population, saw the POTA as directed against them and demanded its abrogation. The Congress, which heads the ruling coalition , succumbed to their pressure and abrogated the POTA.

As a result, the police have been forced to deal with terrorists with criminal laws enacted long before terrorism became a major national security threat. After the Mumbai strike, the demand for strengthening  and updating the legal powers of the police has acquired further momentum, but the Congress and other political parties, which  rely on minority  votes, are reluctant to reverse the abrogation of the POTA.

Another issue, which has come to the forefront, is the setting up of a federal investigation agency similar to the FBI of the US. India has a federal investigation agency called the Central Bureau of Investigation (CBI) to investigate important crimes of a federal nature, but its powers are limited. It can take up a case for investigation only at the request of or with the prior concurrence of the State in whose area the crime was committed. Often, the States are not prepared to agree to this, particularly if the state is ruled by a Party different from the party in power in Delhi [Images].

To get over this difficulty, there has been a long-pending suggestion  for setting up a federal investigation agency to investigate and prosecute only terrorism cases involving organizations, which are active in more than one State. There was only lukewarm support even for this idea before the Mumbai incident. There is now greater political support for it after the Mumbai terrorist strike. It is still to be seen whether there is the political will to set up a federal agency to investigate and prosecute terrorism-related cases having linkages in more than one State of the Indian federation.

Presently, all cases are investigated by the police of the State in whose jurisdiction the terrorist act was committed. The investigations have been piecemeal with very little co-ordination and integration of evidence.

Many point out that the US has been able to prevent another 9/11 because of the action it took to give additional powers to its police, the FBI, the Immigration and other departments fighting terrorism.There are repeated demands that the Govt. of India should emulate the US and other Western democracies and strengthen the legal infrastructure against terrorism.

The US is a two-party State. It has a very small Muslim minority. Bipartisan consensus on legal measures is easier to achieve. India is a multi-party democracy with a plethora of political parties and coalitions. It has the second largest Muslim population in the world after Indonesia. In some of the North Indian States, some political parties are dependent on the Muslim vote for doing well in the elections. Political consensus is, therefore, very difficult to achieve. This has been coming in the way of strengthening the legal infrastructure against terrorism.

B Raman
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