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Four and a half years after the lapse of the infamous Terrorist and Disruptive Activities (Prevention) Act (TADA), the Government of India is contemplating the introduction of another anti-terrorist legislation. It entrusted the Law Commission of India to draft the legislation. The Law Commission has adapted the Criminal Law Amendment (CLA) Bill, which the Government of India had sought to introduce in 1995 after TADA lapsed. This earlier version of the CLA had to be withdrawn because of the widespread opposition against TADA which it sought to replace. The Law Commission’s recommendations make the new version of the CLA more draconian than TADA.

On 20 December 1999, the Law Commission of India organised a meeting between senior Government officials and civil liberties groups to discuss the Criminal Law Amendment (CLA). The Peoples Union for Democratic Rights (PUDR) and Peoples Union for Civil Liberties (PUCL) boycotted the meeting. Noted civil liberties lawyer, Mr Prashant Bhushan, senior advocate Ms Kamini Jaiswal, Dr Pandey, former Dean of the Law Faculty of Delhi University, Justice Rajinder Sachhar, former President of Peoples Union for Civil Liberties and Mr Ravi Nair, Executive Director of South Asia Human Rights Documentation Centre demanded withdrawal of the CLA. Many of the CLA’s provisions seek to put the clock back on the principle of primacy of judicial scrutiny and accountability. The CLA seeks to undo all the safeguards of the D K Basu judgement of the Supreme Court. The Basu judgement confers on Indian citizens the Miranda rights that the US citizens have.

"Although, most of the Government officials including the Law Commission referred to anti-terrorist laws in UK, they are mistaking the bark for the tree"- stated Mr Ravi Nair, Executive Director of SAHRDC. "The laws in United Kingdom are subject to scrutiny of the European Court of Human Rights. The European Court of Human Rights held in 1989 that Section 14 of the Prevention of Terrorism Act (PTA), 1989, allowing four days of detention by the Secretary of State for Home was in violation of the European Convention on Human Rights. If four days of additional detention which can only be extended by the Secretary of State for Home, who is equivalent to the Home Minister of India, is in contravention of international human rights law, the extension of detention by 180 days under the CLA is harsh and inhuman by any yardstick." - stated Mr Nair.

The CLA is a more draconian version of the TADA. Under the TADA, although the prosecution had all the procedures like confession made to a police officer admissible as evidence, detention without trial and in camera hearing, in its favour, the conviction rate was less than 1% of 76,036 TADA detainees. This meant that more than 75,000 Indian citizens, a large majority of whom belong to minorities, were held under illegal detention. Despite such embarrassing statistics, SAHRDC is amazed that the Government of India and the Law Commission of India are seeking to circumvent the social and political consensus that forced the Government of India to allow the TADA to lapse.

SAHRDC stated that problems that are political in nature can not be resolved through an enactment of a draconian law. TADA was not imposed in Nagaland. But, the situation in Nagaland did not deteriorate compared to the States where TADA was in force. Nor did the situation improve in Manipur and Assam where the TADA was in force. Yet, the State Government of Manipur is attempting to enact the "Manipur Prevention of Terrorist Activities Act."

"The greatest danger is that attempts are being made to make temporary legislation like TADA a permanent feature of the Indian criminal justice system. This is nothing but imposing an undeclared emergency through the back door," stated Mr Nair.

Under the CLA, the whole of India is declared a terrorist affected area and emergency legislation becomes a permanent feature of the Indian criminal justice system. The vague definition of a terrorist action and disruptive activities under section 3 and 4 of the TADA are retained verbatim. Moreover, a new category of offences had been added under Sub-sections 5 and 6 of Section 3 - in order to suppress all type of dissent.

The Law Commission of India makes other draconian recommendations. It makes "threatening a witness" a new terrorist act under section 3(7). This is erroneous, considering that under Section 14 of the CLA, the identity of a witness is not disclosed; and all trials can be held in camera including inside the prison if the Special Judge so desires. This provision will provide ample powers to the police to falsely implicate any person they choose for threatening a "witness". On the other hand, there is no provision about threats to the accused from the police.

According to the Law Commission's recommendation under section 3(8) of the CLA on information about acts of terrorism, a journalist who interviews a member of a banned organisation can be arrested for failing to disclose information which might be of material interest "in securing the apprehension, prosecution or conviction of any other person for an offence involving the commission, preparation or instigation of such an act." The Law Commission also added a provision for attachment of property derived or obtained from commission of a terrorist act or proceeds of terrorism with the approval of the Superintendent of Police. The prior permission of the Special Court for attachment of the property and a proper application of judicial mind regarding the necessity of issuing such an order has been totally taken away from the purview of the Special Court and entrusted to a police officer like Superintendent of Police.

Bail is impossible to obtain. Under section 17 of CLA, no bail appeal can be made to the High Court as provided for under Article 226 of the Indian Constitution. The bail application has to be filed only to the Supreme Court within 30 days, thus making it impossible for poor people to have easy access to bail.

Moreover, under section 18 of the CLA, the period of remand is sought to be extended beyond what is stipulated in the Criminal Procedure Code (CrPC), 1973 on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the stipulated period.

SAHRDC stated that "two conflicting provisions were kept in section 24. The first part of section 24 protects the acts purported to be done in good faith or in pursuance of the Act. Whereas, the second part of the same section provides punishment for corruptly or maliciously proceeding against any person under the Act which is difficult to prove. This is not a new section as the provisions for malicious prosecution are already in the Indian Penal Code. Prosecution of police officials in the general climate of impunity that exists in India would be next to impossible.

SAHRDC recommended that CLA be withdrawn completely. It further stated that any anti-terrorist law must be subject to international scrutiny and the Government of India should ratify Optional Protocol One to the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and withdraw reservations to Article 20, 21 and 22 of the Convention Against Torture before initiating any public discussion on the CLA.

The CLA must be subject to review by Parliament every year on the basis of the report submitted by the Review Committee to the Parliament and State Assemblies about the progress on each individual detainee under the CLA; and the CLA should be withdrawn from the statute books if it manifestly fails in its objects. In effect, it should have a sunset clause.

The Criminal Law Amendment Bill must contain a limited and specific definition of terrorism, such as that contained in PTA of the United Kingdom. The time frame for detention without charge should be no different from other criminal offences under the CrPC. Every detainee must be produced before a judicial magistrate within 24 hours of his or her arrest. No exceptions should be admitted to this rule. Anything short of this would entitle the detainee to immediate release and monetary compensation for wrongful arrest and detention. The normal structure and jurisdiction of the courts should be restored. Special Courts should be done away with and the normal appeal mechanisms should be available with the normal time limits.

There should be a wider discretion on the magistrate to grant bail. The CrPC's provisions are quite sufficient to enable bail to be refused where appropriate to an individual case. Provision could be made for urgent appeal on any decision to a High Court by either side.

There should be a strict time frame for trials. There should be automatic release on bail if proceedings have not begun within a year of charges being filed. Trials should continue on a day to day basis. Adjournments should be for not more than 15 days. Openness of hearings should be made the rule. The presumption of innocence should be restored in all cases.

Substantial compensation should be payable for wrongful arrest and detention. The Government of India should withdraw reservations expressed to Article 9 of the ICCPR. Incommunicado detention should be prohibited.

The attempt of the Government of India to introduce the Criminal Law Amendment Bill is another indication that India is gradually moving towards an undeclared emergency. The rule of law will not be felled by one swift blow. The nibbling away has started in good earnest. Freedom is in peril.

-Human Rights Features

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