Extraordinary Laws and Human Rights Insecurities

Usha Ramanathan

It took at least fifty years to build up standards and structures around human rights. Through that time, we have been witness to an erosion of the priority of human rights, and the gradual, but growing, assertions of state power. The notion of “extraordinary” times has been built on war, internal armed conflict and internal “emergencies”, and laws made, and powers assumed, to safeguard the `security of the state' and ‘public order'. Secessionist movements have brought in their wake the language of `sovereignty and integrity' and so expanded the lexicon of the law, even while providing an excuse for enhanced state power. In the past two decades, however, it is the expanding vista of that which is said to constitute `terrorism' which has subsumed within it the `extraordinary'-ness. And, 9/11 provided the moment when the `routinising' of the `extraordinary' could seek, and find, legitimacy.

This has been the Indian experience.

Preventive detention

The Indian state never discarded the practice of `preventive detention', although it was a much-reviled colonial power. The violence that preceded the Partition into India and Pakistan and the exchange of populations, and the communal density of the Partition was used as the justification for preventative detention. It was promised that when the country settled down to peace, preventive detention would become a thing of the past. It is yet to happen. Preventive detention authorises administrative detention to prevent apprehended breaches of the security of the state. There is no requirement of a charge, investigation, trial, conviction and sentence. The time limit for executive detention may extend to two years, and there have been times in Indian constitutional history when it was an unspecified, indefinite period.

The disappearance of preventive detention altogether from the media, and from discourses in other fora, signals the normalising of extraordinary powers vested in agents and agencies of the state.

In the 1960s, `security of state', `public order' and `law and order' were characterised in three concentric circles: law and order constituted the outermost circle, `public order' was a smaller circle within `law and order' and may permit preventive detention to be invoked. And `security of state' was the small circle within `public order'. So, the Supreme Court said, “an act may affect law and order but not public order just as an act may affect public order but not security of the state.” [(1966) 1 SCR at 746]

Inverting the circle with POTA

‘Terrorism' has altered (even inverted?) this approach. Now, with the enactment of the Prevention of Terrorism Act in 2002 (POTA) and the Ordinance that preceded the Act, once an allegation of terrorism is made, it immediately sets into the groove extraordinary rules of investigation and trial, including:

•  making confessions to a police officer admissible in evidence – a proceeding prohibited by regular law because of the practice of torture and coercion that law makers recognised, and this is reinforced by the number of custodial deaths reported to the National Human Rights Commission;

•  obtaining samples of handwriting, fingerprints, blood, saliva, semen, hair, voice…from a person “reasonably suspected to be involved in the commission” of an offence under the POTA, with an adverse inference drawn where the accused refuses a sample;

•  release on bail only where “the court is satisfied that there are grounds for believing that he is not guilty of committing such offence”!

“Terrorism”, and the delegitimation of the criminal justice system because it delivers few convictions even as it creaks under the weight of its backlog of cases, are two reasons cited for the alteration of regular criminal law. And it is now being seriously recommended that the `extraordinariness' of the terrorism law be imported into the ordinary criminal law. In effect then, even if it sounds hyperbolic, the outermost circle of law and order will contain the extraordinariness of laws meant to combat terrorism.

In India, enactment of the Prevention of Terrorism Act 2002 (POTA) is only the most visible illustration of the derogability of human rights standards. There are a spate of other state and central laws that have struck root over the years. These have spread their tendrils over and between the liberties and rights that have been painstakingly articulated over the decades, both to humanise state power and to safeguard spaces meant for difference, dissent and challenge to paradigms of thought and actual practice.

When the Prevention of Terrorism Ordinance was brought into force by Presidential decree, it was the media that carried the banner of revolt. The provision that alarmed the media and heightened its threat perception was in a chapter of the law that dealt with “punishment for, and measures for dealing with terrorist activities”.

“A person receiving or in possession of information which he knows or believes to be of material assistance –

•  in preventing the commission by any other person of a terrorist act, or

•  in securing the apprehension, prosecution or conviction of any other person for an offence involving the commission, preparation or instigation of such an act,

and fails, without reasonable cause, to disclose that information as soon as reasonably practicable to the police, shall be punishable with imprisonment for a term which may extend to one year or with fine or with both.” [S.3(8) of the Ordinance; and lawyers were exempt when receiving the information “while defending the accused”.]

Protecting the source being as central as it is to the work of a journalist, the press rose as one in protest. This was not only about disclosure, but about introducing the `neighbourhood spy' into the law – and binding the press to it. In the time that the Ordinance took to be passed into an Act of Parliament in December 2002, protest was a resounding din. The result was that the provision was dropped in the POTA, and potential of the press to rein in the lawmaker was demonstrable.

There is a postscript to this episode in law making: Another provision in the same law, POTA, which authorises an investigating officer to require compulsory disclosure on “points or matters, where the investigating officer has reason to believe that such information will be useful for, or relevant to, the purposes of this Act” survives on the statute book, and has been upheld by the Supreme Court. This delightfully vague characterisation of what may be `relevant' or `useful' is another symptom of this trend in the reorganising of power by law. And the power of the officer stands splendidly enhanced. If disobeyed, “failure to furnish the information called for” could result in a sentence of imprisonment that may extend up to three years or fine or a combination of the two.

Partisan use of a law?

The problem is that the rest of the law (other than that which attempted to create the neighbourhood spy as a legally mandated entity) stands as it was, and the POTA, from facing protest, has become only a story with many narratives. Even yet, there are strands in these tales which everyday documentation in the media has helped highlight:

  • A journalist was picked up under the POTA in the southern state of Tamil Nadu for being in possession of an unauthorised weapon in a “notified area” – a notion that is presumably related with the threat or persistence of terrorism in a specified area. But a notified area is what the State Government says it is, and the State Government has declared all of the State of Tamil Nadu to be notified area, although it can, at most, be said that Tamil Nadu neighbours Sri Lanka where the Liberation Tigers of Tamil Eelam (LTTE) which is banned organisation operates; and there have been sporadic episodes of violent acts where a link with terrorist activity has been detected. One view has it that the journalist who was picked up was a critic of the Chief Minister, and that fact invited the use of POTA against him. His battle for getting released on bail has carried marks of the difficulties in getting a priority for personal liberty and, implicitly, for free and critical speech, when terrorism is not even alleged, but the extraordinariness of a law made to deal with terrorism is applied.
  • Since the Gujarat carnage in 2002, the discriminating use of the law against the minorities has been in stark display. The accused in the Godhra train conflagration -- which happened on 27 February 2002, and where those who died in the burning of the train were Hindus and the accused predominantly Muslims – stand charged under POTA. In sharp contrast, the accused in the carnage in the days that followed, and where it is now beyond question that the Muslim minority were targeted, were charged under the regular law. This meant that those charged under POTA would not get bail, the period of detention for purposes of investigation could stretch well beyond the 90 days prescribed in the ordinary law to six months, the procedural protections which make for a fair trial may be short-circuited … and the list goes on. There is little doubt that if the media were to refuse the issue space, the rights, the victims and the accused would each vanish, variously.

These are but two of the connectedness between the media and abuse of discriminatory use of laws by labelling acts as `terrorism'. It is a devastating fact that the instances are rapidly multiplying.

Extraordinary laws and human rights erosion

The earlier law to meet the state's concerns about terrorism, the Terrorist and Disruptive Activities (Prevention) Act 1985, which, with some amendments survived till 1993, clearly did not achieve the purpose of rooting out terrorism. Instead, during its existence, we saw the perpetuation of the practice of `fake encounters', and a spurt in the `forced disappearances' that were practised by agents of the state. Despite the Supreme Court, the National Human Rights Commission, parliamentarians and civil liberties activists recognising that these practices of abuse of power occur, and have become systemic, there has been no serious move to outlaw them. Criminal law still does not, for instance, acknowledge any offence that responds to situations of `fake encounters' and `forced disappearances'.

Muzzling dissent, and restricting the freedoms of speech, association, movement and political persuasion are now often explained by raising concerns about terrorism and national security, sovereignty and integrity of the state. (`Development' is another context, and on occasion the two are presented in concert.) There are severe erosions of human rights that are immanent in these discourses of power. Constant challenge to these erosions, and derogations, and persistent exercise of rights and freedoms are imperative. The use of law as an instrument for the rule by law, differently from the rule of law, is in increasing evidence, and if allowed to gallop in the direction that the definition of the extraordinary gives it, the escalation of human rights insecurity is inevitable. The experience of extraordinary powers in the state is being drowned out by a politics of power, a politics of forgetting, and a politics of pragmatism, each of which asks human rights to step aside. The routinising of the extraordinary responses of the state – including preventive detention, shrunken standards of fair trial, extreme penalties, de-prioritising personal liberty, a self-serving definition of the crime and the criminal – pose a severe threat to criminal justice. The politics of movements – especially those that employ violence – is being equated with terrorism, blurring the lines between legitimacy and illegitimacy of ends and means. Civil libertarians, in particular, become targets of condemnation when they speak up against state terror, and there is a deliberate distortion of the position against state terror as being support for the terrorist and for terrorism. As someone once famously said, “either you are with us, or you are against us” and with the terrorists.

Terrorism as fact

The problem is that terrorism is presented in this `either-or' language in politics. It is indeed wise not to be in denial that there is a threat that terrorism poses to the polity. The `innocent victim' has acquired a dominant presence where the terrorist operates. Targeted killings, derailing democratic processes, guerrilla warfare, cross-border terrorism sponsored, supported or tolerated by an alien state, often demands a reaction from the state which may compromise the priority accorded to human rights. A people expect their state to protect them from violence and free them from fear. And this explains why it is important that a state respects human rights in its fight against terror.

The legitimacy of the state's actions when combating terrorism is vital to engender and nurture the confidence that a people have in their state.

  • When the law that is enacted is partisan,
  • when there is uneven application of the law,
  • when excessive power is invested in state agencies and there is evidence of excesses,
  • when the experience with extraordinary laws is not heeded,

then the ordinary person is confronted with threats posed by terrorism, as well as by the use and abuse of power that the law gives to agencies of the state. Also, human rights are not only about the rights of peoples, but also about humanising state power, and preventing its brutalisation, regardless of the provocation.

The law that the Indian Parliament has made to deal with terrorism carries the burden of these concerns. In naming organisations in a schedule to POTA meant to identify those practising terrorism, the bias of the law maker stands illustrated: the absence of organisations adopting a majoritarian agenda which have practised a large scale of violence and communal bullying is one instance. There is an element of impunity that has entered the criminal process, where the state shields the perpetrator of crimes against religious minorities -- which is an extension of this tolerance of criminality and violence when it is deliberately kept out of the terrorist list.

It would seem that the state is asserting its exclusive right to all forms of violence when it brands as terrorists all those adopting violence as part of their strategy -- except where they have the implicit support of the state. This prejudiced perspective reflected in the POTA adds to the de-legitimation of the law and makes terrorism a patently partisan phenomenon. The need to deal with the factor of terrorism while the state does not itself get dehumanised is, in the meantime, on the agenda of those who recognise the varied agenda of human rights.

This is the time, then, to destroy the binaries that `terrorism' has introduced into the politics of law and restore the inclusive, and responsive, agenda of human rights. __________________________________________________________________________________

ABOUT THE AUTHOR : Usha Ramanathan is a prominent Indian legal researcher and activist who has been involved in campaigns related to the Narmada Dam controversy, the rights of tribal minorities in India and the rights of the urban poor.


Please direct all comments or suggestions about website to jen|page modified july 2004| © ASIARIGHTS Journal, The Australian National University.

ANU CRICOS Provider Number: 00120C