In search of a new, improved TADA

Explaining the reasons behind the tough new Act, the Law Commission has stated: “The ISI-sponsored terrorism and proxy war has resulted in the deaths of 29,151 civilians and 5,101 security personnel, and 2,730 explosions. Property worth Rs 2,000 crore is reported to have been damaged. Almost 43,700 kg of explosives has been inducted and 61,900 sophisticated weapons have been smuggled into India. It is estimated that security-related costs in countering ISI activities have totaled an amount of Rs 64,000 crore.” This forms part of the country-wide security analysis which is a preamble to the new Bill.

The Law Commission has asked for all FIRs under the proposed Act to be approved by the Director General of Police within 10 days, failing which the case shall stand withdrawn. A proposal for setting up a review committee to approve the FIR within 30 days has also been made, failing which thecase can again be dropped. If the accused is in custody, the decision of the DGP and the review committee have to made available to him within five days.

The Law Commission had made a radical suggestion on how to tone down the controversial clause on confessions under the old TADA. Now, before recording a confession, a police officer may be required to give the accused a written undertaking stating that he was not bound to make a confession and that it may be used against him. If the accused remains silent on this, the police officer cannot compel or induce him to make the confession.

The Law Commission also wants complete protection for witnesses testifying in cases under the new Act. For one, it wants the identity and the address of the witness to remain undisclosed and their testimony is to be recorded through screens in the courtroom. Secondly, any person threatening a witness shall face imprisonment of up to three years and a fine besides.

The Commission has also recommended that any person beingquestioned under this Act shall have his legal counsel present during interrogation. Another recommendation says that investigative powers under this new Act may be given only to officials not below the rank of superintendent of police (SP).

These provisions, which have common features with the Miranda procedures used by US enforcement agencies, are certainly welcome. But the fear that TADA may be replaced by an even more draconian law are not entirely misplaced, given some of the other recommendations of the Commission. Two new sections which have been added to the draft Act have attracted a lot of criticism because they are open to abuse.

They relate to information about acts of terrorism and make it illegal to hold the proceeds of terrorism. The Commission has suggested the inclusion of a section which will make people liable to imprisonment of up to one year and a fine if they fail to inform the police if they receive or are in possession of information about a terrorist or disruptive act.

In anentirely new provision, the Commission wants the government to declare enhanced penalties against the financial beneficiaries of terrorism. The draft paper states: “No person shall hold or be in possession of any proceeds of terrorism. All proceeds of terrorism shall be liable for confiscation whether they are held by a terrorist or by any other person and whether or not such person is being prosecuted under this Act. All such proceeds of terrorism such as movable property/assets (shall) be seized and in the case of immovable property be attached.”

The Commission wants to empower officials not below the level of SP with the written prior permission of the DG of police of the state to make the orders for the attachment/seizures. This order will be confirmed or revoked by the special court before whom the case is being heard.

In defining `terrorist act’ the commission has suggested the addition of the line: `…(an act intended) to overawe the government as by law established… and/or to alienate anysection of the people or to adversely affect harmony amongst different sections of the people.’

In its review of the security scenario, the Law Commission has done a state-wise analysis. It says that the law and order situation has remained disturbed in several parts of India for some years. Militant and secessionist activities in Jammu and Kashmir, the insurgency-related terrorism in the Northeast and extremist violence in Andra Pradesh and Bihar have been major areas of concern.

The perceived need for anti-terrorist law is therefore understandable, and the new law may earn less opprobrium than TADA. But it is not foolproof and has, in fact, opened up fresh possibilities of misuse.