The Imperatives of National Security Legislation in India

There is little need to elaborate on the assertion that there is a current and chronic crisis of national security in India. An unending succession of events has made this far too obvious to demand argument or illustration. Terrorism, organised crime, caste and communal violence, the immense and increasing criminalisation of politics, the growing numbers of the poor and rootless, accumulating pressures of population and consumerism on limited natural and national resources, and a widening area of abject non-governance – once associated only with Bihar – have all combined to make internal security the most urgent issue of our time. Where optimists find some evidence of improvement, such illusions are brutally swept aside by some new crisis. The record of declining communal violence over the past decade was one such datum that lulled some into a sense of temporary security and a feeling that, at least on some variables, there was a positive process of political evolution – till Godhra and the carnage in Gujarat reminded us of how close to the edge we actually live.

There are, of course, many and complex reasons for the state of permanent and rising tensions that has become the essence of our way of being. One, at least, of the most significant, is the progressive collapse of India’s justice system. The truth is, today, the link between crime and punishment has almost entirely been severed. This is true for almost all types of crime, but is most unambiguously the case among those who harness criminal violence to political or sectarian ends. Here, even the moral imperative of punishment is compromised, if not rejected, as every case becomes an exception to the rule. Perverse arguments of a populist sanction are advanced to protect political players from criminal prosecution; and Prime Ministers meet, or send their emissaries to negotiate with, terrorists, warlords and mass murderers. We have turned our laws into shibboleths, and the idea of the rule of law has been all but abandoned.

To make matters infinitely worse, the courts have taken the promise of justice and transmuted it into a leaden ritual that punishes innocent and guilty alike through its interminable delays. In areas afflicted by widespread terror or persistent mass violence, a bare pretence of judicial process survives. In nearly 14 years of strife in Jammu & Kashmir (J&K) there have been just 13 convictions in cases related to terrorism, of which eight concern relatively minor offences such as illegal possession of arms or illegal border crossings. This is the judicial record in a state where 30,750 people have been killed in the conflict between 1988 and 2001, 11,377 of them civilians.

This failure is compounded by a blind commitment to rhetorical and politically correct formulae – ‘human rights’ and ‘natural justice’ among the most prominent – and to an arid legal formalism without the faintest concern for the actual ends these secure. To take a crude illustration, the judiciary has stubbornly insisted that it is procedurally correct in repeatedly enlarging terrorists and criminals on bail. If they jump bail and murder people, that is not their responsibility, for a man may not be incarcerated unless he is proven guilty beyond doubt – a process that, in this country, usually takes close to five years, and may take up to thirty. In terms of criminal action and terrorist strife, this is an eternity; it is an unqualified licence to kill. For while the learned legal community is entertaining all manners of possible doubts, the man whose ‘freedom’ they have upheld goes out and murders any number of innocent people. But the judge’s conscience is clear. He has followed the letter of the law and defended the supposed citadel of human rights.

This abdication of responsibility goes much further. Indeed, in situations of persistent mass violence, the entire system of civil administration is effectively suspended. The only agencies of the state that continue to function, at varying levels and with varying degrees of effectiveness, are the uniformed services – the police, the paramilitary forces and the Army – and it is these services that come in for the greatest measure of abuse and harassment once a degree of order is restored. With the agencies of civil administration either withdrawing from areas afflicted by widespread violence, or even evolving complicit arrangements with the forces of violence and subversion, the entire gamut of the tasks of development and governance are simply abandoned.

These are natural consequences, on the one hand, of gradual processes of erosion within all institutions of government in the country and, on the other, of dramatic transformations in the nature and range of the internal security threats that confront the modern state. The tectonic shift in the character and scale of these threats was brought home dramatically by the 9/11 attacks in USA, as also by mounting evidence thereafter that many terrorists groups have been exploring the possibilities of the acquisition and use of a range of weapons of mass destruction (WMD). What is needed, consequently, is a comprehensive reappraisal of all contemporary threats to national security, and a refashioning of the nation’s responses in terms of the legislative and institutional framework, and of executive action.

Underlying any such reassessment must be a clear understanding that, today, very small minorities can directly and significantly threaten, undermine and, through determined, persistent and extreme violence, even destroy the edifice of the state and the integrity of the nation – and this is especially true where they act with foreign support and safe havens. The arguments that the manifestations of terrorism are located in ‘root causes’ of poverty and popular discontent, though they may have some grains of truth, are consequently far from an accurate reflection of reality. Terrorist movements today can be sustained by minuscule groupings, sometimes composed entirely or predominantly of foreigners, often exclusively supported by hostile states, and increasingly indifferent – if not inimical – to the hopes and aspirations of local populations [More than 85 per cent of the civilian victims of terrorism in J&K, for instance, are Muslims, something of a problematic for ‘Islamic mujahiddeen’ to consistently explain away in terms of a ‘struggle to protect oppressed Muslims’].

Unfortunately, on every occasion when the issue of internal or national security legislation, or any of its components, such as counter-terrorism legislation or legislation against organised crime, have been discussed in the recent past, an entirely irrational, even hysterical response has greeted any such proposals, and it has generally been argued that the IPC is capable of dealing with every existing and emerging challenge. This is interesting, and ascribes to the IPC something of a sacred and immutable character – which no statute book in a changing world can ever enjoy. This is particularly the case where patterns of criminal action have assumed proportions that undermine the very fundamentals of the institutions of democracy and of civil society. It is high time we understood the dangers and possibilities of a terrorised society, and the inadequacy of the conventional law – which approaches criminal conduct as an individual infraction violating individual rights – to deal with movements that collectively subvert and disrupt the structures of governance and enforcement themselves.

Confronted by such movements demands not only ‘more stringent’ laws, but real-time legislative responses that accommodate each significant transformation of criminal conduct. We may disagree with the basics and content of such legislation, but the speed and proportions of the American legislative response to the 9/11 attacks, and before these, to the attacks on the World Trade Centre in 1993, are what will be necessary if democracies are to defend themselves effectively against fanatical forces that accept no limits of law or conventional morality on the violence they are willing to inflict on others to secure their ends. This does not imply a blind and submissive acceptance by all Americans to every legislative excess of the Bush administration, and a vigorous democratic discourse is certainly in evidence on the new legislation, and its provisions can be expected to be amended and diluted over time, and in the light of the evolving experience. What is missed, however, is the fact that this swiftness and scale of response made it possible to avert many potential follow-up strikes that had evidently been planned by the al Qaeda, and as new cells and evidence is uncovered, it is clear that at least some lives have been saved and possible catastrophes averted, without extraordinary and irreversible harm being inflicted.

The point here is that the unending search for an elusive ‘consensus’ that has stalled all national security legislation in this country, even as criminal audacity expands exponentially in a legislative vacuum, is an unacceptable and potentially disastrous response to the rising crises that confront us. Parties will have to rise above partisan interests and legislate on crucial issues in this context, and will have to do so quickly in order to stem the rising tide of anarchy and the growing power of those who threaten not only the state, but civilisation itself. All such legislation would and must remain open to amendment in the light of evolving experience – and such processes of review must not be structured around a one-time and all-or-nothing approach that has characterised debates in the past. If elements of a law are found to be susceptible to abuse or to have caused unacceptable hardship to the innocent, these – and not the law in entirety – must be rejected and redrafted.

None of this implies any dilution in our national commitment to human rights. It means, conversely and precisely, a review of the institutional mechanisms and processes for the protection of these rights to ensure that it is these that are, in fact, protected, and that their protection does not inadvertently extend to criminal intent and operations. If we are to take human rights even half-way seriously, we will have to recognise that terrorism, low intensity warfare and their linkages with organised crime have created new and unprecedented dangers to the unity and integrity of the country, to the survival of democratic governance, and to the very possibility of human rights. It is, consequently, necessary to devise new laws, procedures and processes that help contain this menace and protect the people from the depredations of a merciless and utterly unprincipled enemy. Unfortunately, there is a new ‘high priesthood’ that would have us believe that, as long as the tedious rites and rituals of the judicial yagna are fulfilled, all the interests of justice are served – no matter how many people are slaughtered in the streets.

It must, of course, be accepted that the possibility of abuse of laws will always exist, and we will have to define safeguards with each legislation to limit the possibility and scope of such abuse. We must, however, understand at the same time that weak laws, or the absence of appropriate legislation, yields greater dangers, both of the victimisation of innocents by wrongdoers, and – bluntly put – in the form of resort to extra-legal solutions by those charged with the protection of lives and property, and the preservation of order. Without order, and without a concomitant security of life and property, there can be no freedom and no rights.

National Security Legislation is not just a question of definition of crimes or new patterns of criminal conduct and the prescription of penalties. It relates to the entire system, institutional structures and processes that are required to prevent and penalise such crimes, to preserve order, and secure the sphere of governance. The mounting failure on these counts is clear evidence that the system has deficiencies – and this should be sufficient grounds for a pragmatic and comprehensive reassessment.

Defining – and perhaps constantly redefining – possible legislative solutions to our present predicament will demand enormous sagacity on the part of the nation’s collective leadership. It is neither possible nor the intent, here, to enumerate some simple solutions or preconceived formulae that will magically resolve all problems. A fair beginning can, however, be made if the areas that demand urgent legislative attention and reform are reasonably and clearly identified.

• A comprehensive set of counter-terrorism laws, as well as laws to combat organised crime must be drafted and given a permanent place in our statute books. Terrorism and organised crime are not transient crises, but have emerged as stable long-term threats to national security, and it is delusional to believe that ‘special’ and temporary laws are adequate to deal with the problem. The proposed laws would need to take into account, at least, the following areas of concern:

• A clear conceptualisation and definition of the complex patterns of crime that constitute ‘terrorism’ and ‘organised crime.’ It is crucial, here, to bear in mind that these are unique categories of criminal behaviour. While the actions – murder, intimidation, extortion, possession and use of illegal arms, etc. – that terrorists and organised criminal gangs carry out may be separately covered by existing laws, their character and context is fundamentally transformed by the element of massive, often transnationally co-ordinated activities. The threat these activities constitute, and the damage they inflict, is incalculably greater than any pattern of individual criminal activity – the whole, to borrow the gestaltist principle, is greater than the simple sum of its parts. These threats can only be contained if this is explicitly recognised, and legislation targets not only the executioners of terrorist action, but the entire network of support that makes such action possible.
• The transfer and use of illegal revenues is the lifeblood of both terrorism and organised crime, and stringent laws must be devised to deprive criminal and subversive groupings of funds. This will require the implementation of harsh penalties on illegal transfers and money laundering, as well as the criminalisation of a range of economic offences, including the use of such resources in legitimate businesses.
• The activities of the ‘fellow travellers of terrorism’ must also be brought under scrutiny. This includes a range of front organisations, political actors, non-governmental organisations, businesses, etc., who provide the needed ‘overground’ support that makes the ‘underground’ activities of extremists possible.
• The framework of counter-terrorism policy must be clearly articulated. This is not just a question for the political executive to determine, some limits of law must be placed on what is or is not permissible. Elected governments have, in the past, made every principle of rule of law and constitutional governance negotiable under threat of terror. Statutory limits must now be placed on how much governments can actually ‘put on the table’ or ‘negotiate’ in such situations. The present system has created a structure of incentives that actually reward terrorists and extremists, and this will have to be dismantled. Those who intercede with terrorists on the government’s behalf must also be statutorily prohibited from any negotiations or commitments that would require constitutional changes. Such changes are an exclusive prerogative of Parliament, and cannot be offered or discussed by any emissary of government without prior Parliamentary approval.
• Existing ‘surrender’ policies must also be brought under statutory review. Current practices have created more problems than they have solved. There must be some limitations on the ‘rewards’ and incentives that attach to the surrender of terrorists, to amnesty or dropping of prosecution for criminal offences against those who surrender, etc., and practices must be brought in line with the principles of the rule of law.
• There is now a strong international mandate for effective laws against terrorism, and this includes various United Nations resolutions that impose a duty on all member states to legislate effectively to control the activities of terrorists and their support organisations. It is now time to bring Indian laws into conformity with this mandate, and also to establish efficient structures of international co-operation and exchange of intelligence to counter the international threats and networks of terrorists and organised crime actors.
• The burgeoning wave of terrorism that is sweeping across the country – and indeed, the entire world – demands a suitable, coherent and comprehensive ‘use of force’ doctrine. It must be clear that the ideas and orientation that were devised to deal with civil riots and transient political violence, are entirely inadequate to confront the scale, intensity and character of contemporary terrorist violence. As the lethality and the linkages of terrorist groups grow, this orientation will become more and more a hindrance to a co-ordinated and effective response.
• Terrorism and low intensity warfare have imposed new structural challenges on law enforcement that we are yet to accommodate even at a conceptual level. Our police and paramilitary forces continue to operate under mandates and legal provisions drafted by the British colonial government, and these have, at best, been tinkered with after Independence. The Evidence Act is another anachronism in need of urgent amendment, and must swiftly incorporate the use of emerging technologies and devices in the prosecution of crime.
• Although low intensity wars and widespread terrorism have ravaged many parts of the country for decades now, these conflict are still conceived of by the national leadership and the so-called ‘intelligentsia’ as ‘non-military threats’, and an ill-equipped Home Ministry is required to deal with them. The entire orientation to low intensity conflicts is of ‘emergency deployment’ – stop-gap arrangements to deal with what are still thought of as transient emergencies. The result is that the Army is repeatedly called out in these conflicts, supposedly to ‘aid civil authority’. The fact is, neither the police nor the army, by virtue of their basic orientation and training, is properly equipped to handle these crises. In view of the future threat potential of low intensity wars, it is crucial that a radical reformation of internal security forces be initiated, creating the skills, knowledge, attitudes and infrastructure necessary to confront this danger, and possibly raising entirely new forces to grapple with this specific hazard.

• The legislative framework must provide for the suppression and containment of subversive and extremist activities by religious institutions and organisations. The present system has made a ‘holy cow’ out of any group or organisation that claims religious inspiration or affiliation, virtually placing these outside the bounds of the law. While Constitutional freedoms, including the freedom of belief, must be vigorously protected, the abuse of such freedoms for activities and ends that lie outside the intent and objectives of these Constitutional provisions must be punished with equal vigour. This will be something of a tightrope, but it has to be walked.

• Existing provisions and penalties on mass communal violence are also far from sufficient. The record of convictions for major riots in this country is abysmal. Even where thousands have been killed – as in 1984 – there have been virtually no convictions. This is not just a matter of ‘political will’, but is, in fact, evidence that existing laws are insufficient. Current provisions look upon the riot as an individual transgression. There is no legal instrument available to contain the processes of violent religious mobilisation and engineered mass riots. Worse, where political and state collusion are a fact – as they inevitably have been in most recent cases of mass rioting – there must be some overriding legislation that initiates mandatory processes of prosecution and extraordinary penalties.
• Border management and the illegal movement of populations across international borders is another problem that has been neglected for decades in search of a ‘consensus’ that will never be found. In the interim, the demographic destabilisation that has taken place, particularly in India’s Northeast, has already resulted in enormous violence, and threatens to acquire proportions that are far more dangerous to the nation’s security and integrity than any existing threat. This is, again, an area that demands immediate legislative attention and the imposition of statutory obligations on governments to prevent and punish such illegal movements of populations.
• As noted earlier, there is a complete abdication, indeed collapse, of judicial and civil administrative accountability in situations of persistent mass violence and terrorism. Legislative provisions and statutory penalties are necessary to ensure that judicial and government officers who fail to meet their constitutional obligations under threat or fear are penalised and removed from their positions, and that the institutions of civil governance do not systematically collapse at the first signs of personal risk to the privileged cadres of these instrumentalities of the state.
• Judicial Reform: No system that arrives at a decision after a litigation process that can extend over decades delivers anything that could deserve the title of ‘justice’. If judicial action is to have any deterrent impact, especially on the hardened cadres of terrorist and organised crime groupings, the link between crime and punishment must be swift and inexorable. The present judicial system is simply incapable of securing the levels of efficiency and delivering the quality of justice that are required to counter and contain these enormous threats to national security, not does it manifest the will or the inclination to set correctives in motion on its own. Such correctives, consequently, will have to be legislatively defined and imposed. If done with intelligence and without partisanship, this would be entirely consistent with Constitutional provisions and the provisions relating to the independence of the judiciary.
• A proposal to establish a Central Law Enforcement Agency has been languishing with government for some time now, once again, in search of the ‘elusive consensus’. It must be recognised that state governments do not have either the resources or the powers to tackle contemporary patterns of terrorism and crime, and the intervention of a national agency is becoming an increasing and urgent imperative.
• Clearly, police reforms, the strengthening of the law enforcement, investigative and intelligence structures, and enormous investment in internal security are now necessary. It is time to abandon the idea that such investments constitute ‘non-productive expenditure’. There is a peace dividend that comes with good law and order administration, and this is reflected in higher productivity in every other sphere of economic activity. The national budget and various economic policies should take these factors into consideration at the time when allocations for policing are taken up.
• Much has already been stated above about existing Human Rights practices and processes. It requires a simple reiteration here to underline the need for a review of these practices and processes to restrict the existing and enormous potential of abuse by unscrupulous and criminalised elements.
• Non-governmental organisations in India have been passionate advocates of ‘transparency’ in governance, and equally passionate opponents of transparency in their own activities. There is now mounting evidence of NGO malfeasance and collusion with terrorist and subversive organisations in various theatres of conflict in India, and it is high time statutory obligations of transparency were imposed on these entities.
• The bureaucracies of the 19^th and early 20^th Century continue to dominate our internal security and law enforcement apparatus into the 21^st Century, and have now become obstacles to the fundamental objectives of efficient law enforcement. The decision-making processes at the highest levels are oriented to a diffusion of responsibility and a complete failure to understand the time-frames of contemporary crisis management. There is an urgent need to create new and responsive structures of administration and accountability that are geared to the time-frames imposed by modern technologies, and to radically transform existing command, control, communication and information systems, both internally within specific agencies, and in the multi-force scenarios that are becoming increasingly common. Since initiatives for appropriate change have not emerged from the executive – which has strong vested interests in the perpetuation of the existing system – such initiatives must be legislatively imposed.
• What will be the character of conflict and internal security challenges ten, or even twenty years from now? And what will be the nature of the responses that will be required to cope with these? Our answers to these question will define the structure and composition of the Forces that we believe can help us cope with these future challenges. And the degree to which, and the detail in which, we are, in fact, able to correctly assess these future challenges, and to generate appropriate responses before they become an overwhelming threat to the existing order, will be the only measure of the success of the present leadership. This process of projection, moreover, must be continuous and will need to be institutionalized as part of the basic structures of law enforcement and internal security. In addition, there is a strong case for a Parliamentary advisory board & secretariat on internal security. The existing processes and official mechanisms of information dissemination among Parliamentarians are too slow, cumbersome, and partisan to serve as a adequate and quick source of information on rapidly transforming events. There is urgent need to create an institutional mechanism that would keep all parties and the Parliament continuously apprised of various aspects of the internal security situation, and to create an apparatus – under Parliamentary control – to secure data and information on, research and analyse various aspects of existing and emerging internal security crises. Indeed, the Parliamentary Committee on Internal Security must also have a permanent research committee or consultancy attached to it to ensure that its deliberations go beyond the information provided by the government, on the one hand, and the popular media, on the other.
• Finally, at the very heart of the problem, is the question of defining a coherent and comprehensive policy framework on internal security. In the absence of a coherent vision of the nation’s larger strategy, specific initiatives, especially where they are fire-fighting responses to current crises, tend to cancel each other out and often, in fact, prove counterproductive.

It bears mention that many of these issues were brought to the notice of the then Prime Minster by me as far back as 1997, and have subsequently been raised with successor governments, but there is still no evidence of any correctives having been initiated, though the situation has worsened significantly over the intervening years.

(Published in Seminar, volume 512 - April 2002 )