A law fully loaded

At the same time the ARC recommended an officer-oriented civil police with initial recruitment at the level of the assistant sub inspector ASI. Autonomy for the law and order branch of the police is to be ensured by providing for a collegial system for appointments of police officers, a move that will also ensure security of tenure. Independent accountability mechanisms have also been recommended at the state and district levels to look into complaints against the police. The objective of these recommendations was to ensure that while the ultimate accountability of the police to the elected government of the day should not be diluted, its operational grip on day-to-day matters has to be relaxed in order to guarantee operational freedom and autonomy for the police to fulfill their statutory functions without fear or favour.

In the recent report on 8216;combating terrorism8217; the commission has looked at the entire history of anti-terrorism legislation not only within the country but also in foreign countries. India has also had various such enactments in the past iquest; i The Terrorist and Disruptive Activities Prevention Act, 1987 allowed to lapse in 1995, and ii The Prevention of Terrorism Act, 2002, repealed in 2004, Unlawful Activities Prevention Act, 1967 as amended by the Unlawful Activities Prevention Amendment Act, 2004 and the National Security Act, 1980. However, some of these legislations were allowed to lapse or were repealed as it was contended that the powers conferred on the law enforcement agencies had the potential, and in fact, had been, misused.

In addition to these laws many states have come up with different legislations that were often intended to deal with other criminal activities, such as MOCOCA which was intended to deal with organized crime, but was sought to be used to tackle terrorism also in a piecemeal and ad-hoc manner.

As a result, India8217;s legal framework to tackle terrorism has become a patchwork of national and state laws which were enacted and repealed at different times as well as state legislations that were intended for other purposes, but utilised to tackle terrorism because an effective and comprehensive national legal framework was lacking.

Thus, TADA and POTA were both seemingly tough legislations that were meant to tackle terrorism but attacked because not only were they misused but also because their definitions of 8216;terror attacks8217; were not comprehensive enough 8212; and with regard to funding of terrorist acts in particular, turned out to be totally inadequate. State-level laws like MCOCA which only incidentally refer to insurgency are stuck in litigation because of such deficiencies.

That is why the second ARC tried to look at both the legal and administrative framework to tackle terrorism in a holistic manner. The commission has made detailed recommendations for creating a national-level coordination mechanism for intelligence sharing amongst national agencies and increasing the accountability of intelligence services. It has been suggested that the fledgling multi agency centre MAC be upgraded and converted to a full-fledged national counter terrorism centre to ensure coordination among our security agencies. It has also endorsed the need for a federal agency for investigation of terror offences but has suggested that instead of creating a new agency, a specialised division should be created in the CBI. On the legal side the commission has examined previous laws, the law commission8217;s recommendations, as well as international best practices to suggest a comprehensive legal framework to be embedded in the national security act. The national security act is just a vehicle but punitive provisions for tackling terrorism have been proposed as a special chapter in there in order to avoid the proliferation of new laws.

The proposed additions represent a fine balance between strong punitive provisions combined with strong safeguards to prevent misuse or the indiscriminate targeting or social profiling of any class of citizen. Thus, although the suggested provisions for bail are as strict as in POTA and TADA, a strong review committee is provided to examine ex-ante whether a prime facie case under this law is made out against an accused, combined with quarterly reviews thereafter.

Confession before the police officer have been made admissible but only after comprehensive police reforms suggested by the commission in its report on 8216;public order8217; are carried out. And the provisions to crack down on the financing of terrorism, which is the biggest challenge before us have been made effective by incorporating provisions for freezing assets wherever there is reasonable suspicion of their intended use in terrorist activity 8212; as against the present provisions which allow attachment of such funds only after conviction, and where funds are proved to be the proceeds of crime. It has also been recommended that the prevention of money laundering act should be amended to expand the list of predicate offences to include counterfeiting and the narcotics trade, which have a nexus with terrorism.

The commission believes that these changes suggested by the second administrative reforms commission in the legal and administrative framework to tackle terrorism will help the government fight the menace of terrorism effectively without losing sight of our values as a secular, democratic and peace loving nation.

The writer heads the second Adminstrative Reforms Commission