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Counter-terrorism must not kill democracy
Praful Bidwai
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December 27, 2008
In a season in which politicians have become everybody's punching bag and targets of vicious media attacks, it would have been a miracle had Minister for Minority Affairs Abdul Rehman Antulay not attracted ridicule for demanding an inquiry into the killing of Maharashtra Anti-Terrorism Squad chief Hemant Karkare [Images] and his colleagues Ashok Kamte and Vijay Salaskar. I am no admirer of Antulay. I was among the handful of journalists who exposed his brutal evacuation and expulsion of pavement-dwellers in Mumbai [Images] in 1983. Yet, the questions he posed about Karkare's death won't go away -- despite his own ignominious climbdown.

Antulay didn't allege that Karkare, who famously cracked the Hindutva terror network involving Pragya Thakur and Lieutenant Colonel Shreekant Purohit, was shot by one of its members. His query was, who asked Karkare to go to Mumbai's CST station and to Cama Hospital [Images], near which he was killed by Abu Ismail and Ajmal Amir Kasab [Images]?

We still don't know what motivated Karkare's team to go there without high-grade bullet-proof jackets and in violation of the norm that senior officers shouldn't travel in the same vehicle in an emergency. Home Minister P Chidambaram's [Images] statement to Parliament doesn't clarify the issue. According to one police account aired on television, the team went to Cama Hospital to rescue another officer, Sadanand Date, who was injured. According to a second account, the team was pursuing a red car carrying Ismail and Kasab.

It is hard to believe that senior officers like Karkare, Kamte and Salaskar all had to walk to CST/Cama because the police had erected barricades, and that they abandoned their separate vehicles to get into one car while chasing the fugitives. Even the circumstances of Karkare's killing, allegedly in a narrow lane behind the hospital, remain obscure.

If the police wireless message about the red car was meant to lure the team into an ambush, it is vital to ask where and how the report originated. If the gunmen were firing from the left, as Constable Arun Jadhav -- who was in Karkare's car, but survived the attack -- said, how was Karkare hit three times in the chest while Jadhav got two bullets in his right arm? Also, the ambush story doesn't quite hang together. The only vegetation in the lane has wire netting around it, behind which it'd be hard to hide.

Clearly, even if one discounts all conspiracy theories, unanswered questions remain. Hindutva groups reviled Karkare for his bold, scrupulous investigation into the Thakur-Purohit terror network. L K Advani [Images], no less, wanted him removed from the ATS and levelled charges, disproved after medical examination, that Thakur was tortured in ATS custody This, and the gaps in the police account(s), make imperative a dispassionate, thorough, high-level investigation into his killing -- in addition to an inquiry into the intelligence failures and state agencies' inept response to the attacks.

The case for an inquiry in the Karkare case is all the stronger because many in the Muslim community -- which has borne the brunt of excesses committed in the name of fighting terrorism -- and other citizens too, have seriously questioned the official account.

Antulay or no Antulay, it's the government's duty to answer them. Supremely callous colonial rulers ignore public concerns. But democratic governments' legitimacy depends on respecting them and sharing the truth with the public in the interests of social cohesion. A credible inquiry would help rebuild the public's faith in the government, which has recently suffered erosion.

There are moments in the life of a nation when exemplary rectitude, transparency and adherence to law are called for, and an effort worthy of universal respect is necessary to reach out to those who feel excluded. Justice H R Khanna's dissenting opinion in the Emergency case, Justice B N Srikrishna's inquiry into the Mumbai violence of 1992-1993, and Karkare's own brilliant investigation into the Hindutva terror network, are instances of these. In each case, State functionaries rose above pressures to harness their work to extraneous agendas. The entire nation gained from their work. We badly need another such effort today.

Regrettably, the United Progressive Alliance government seems to be caving in to Right-wing pressures from the Bharatiya Janata Party to adopt a macho, national-chauvinist, 'to-hell-with-civil-liberties' stance to show that it has the will to fight terrorism. That alone explains the deplorable haste with which it railroaded through Parliament two tough counter-terrorism laws without serious debate. These erode federalism and infringe civil liberties.

The National Investigation Agency Act establishes a new organisation to investigate acts of terrorism and offences related to atomic energy, aviation, maritime transport, sedition, weapons of mass destruction, and Left-wing extremism. Significantly, it excludes Hindutva-style right-wing extremism, which has taken a far higher toll in India than left-wing Naxalism. It's far from clear how the NIA can secure the cooperation of other existing agencies, rather than face turf battles and sabotage.

Unlike the Central Bureau of Investigation, which needs the consent of a state before investigating crimes there, the NIA will supersede state agencies. This is a serious intrusion into the federal system. The NIA, and the special courts set up under the Act, will be vulnerable to political abuse by the Centre.

The second law, the Unlawful Activities (Prevention) Amendment Act brings back the discredited POTA, except for admitting confessions made to the police as evidence. It radically changes criminal procedures, extends periods of police custody and detention without charges, denies bail to foreigners, and reverses the burden of proof in many instances. The Act will turn India into a virtual police State.

The UPA abrogated POTA in 2004 in response to innumerable complaints of abuse against Muslims and application to offences not connected with terrorism. But the UPA retained all other tough laws, and also amended the Unlawful Activities Act. This increased punishment for terrorism and harbouring/financing terrorists, made communications intercepts admissible as evidence, and increased detention without charges to 90 days from 30 days.

However, despite numerous recent terrorist attacks, the UPA firmly rejected the BJP's demand that POTA be re-enacted. But now, it has shamefully caved in to the demand -- under the pressure of elite opinion and with an eye on the next general election.

The UAPA Act contains a range of draconian clauses, including a redefinition of terrorism, harsh punishment like life sentence or death, long periods of detention, and presumption of guilt in many cases. The redefinition includes acts done with the intent to threaten or 'likely' to threaten India's unity, integrity or sovereignty. Under this hold-all provision, the police can arrest, search and seize the property of anyone whom it 'has reason to believe from personal knowledge, or any information by any person... or any articles or any other thing...' Even rumours and baseless suspicion fit this description. Also covered are attempts to kidnap Constitutional and other functionaries listed by the government. The list is endless.

Under the Act, an accused can be held in police custody for 30 days, and detained without charges for 180 days. This is a travesty of Constitutional rights. Even worse is the presumption of guilt in case there is a recovery of arms, explosives and 'substances of a similar nature.' The police routinely plants arms and explosives, and creates a false recovery record. The punishment range extends from three or five five years to life. This shows the government has not applied its mind.

Under the Act, there is a general obligation to disclose 'all information' that a police officer thinks might be relevant. Failure to disclose can lead to imprisonment for three years. Journalists, lawyers, doctors and friends are not exempt from this sweeping provision, which presumes guilt on mere suspicion. Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals and to all others if a prima facie case exists on the basis of a First Information Report by the police.

POTA and its predecessor, the Terrorist and Disruptive Activities (Prevention) Act, were extensively abused. They targeted the religious minorities, specifically Muslims. Some 67,000 people were arrested under TADA, but only 8,000 put on trial, and just 725 convicted. Official TADA review committees found its application untenable in all but 5,000 cases. POTA's abuse was even more appalling.

The two new laws will increase the alienation of Muslims from the Indian State given that they have been the principal victims of India's recent anti-terrorism strategy. Many Muslims are also distressed at the alacrity with which the laws were passed -- in contrast with the UPA's failure to enact the promised law to punish communal violence and hate crimes.

This will make the social-political climate conducive to State terrorism, promote muscular nationalism, and create a barbed-wire mentality. These are the ingredients of a terrible national security State, much like Pakistan's or Israel's, and similar to the way the US is evolving. Nothing could be worse for our citizens' safety and our democracy's health.

Praful Bidwai
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