(IPS) - feature

The Sept 11 attacks against the United States have prompted India's right-wing government to resurrect, last week, anti-terrorist legislation rejected by parliament six years ago as being restrictive of civil liberties.

When the draconian Terrorist and Disruptive Activities (prevention) Act (TADA) lapsed in 1995, it was welcomed by leading rights organisations because of its blatant misuse in areas hit by separatist insurgency such as the western Punjab, disputed Kashmir and the turbulent north-eastern states.

Attempts to replace TADA through the Criminal Law Amendment Bill failed because of stiff opposition by rights groups such as the People's Union of Civil Liberties (PUCL) and even the National Human Rights Commission (NHRC), a statutory body.

Even the UN Human Rights Committee expressed concern at legislative proposals to reintroduce parts of the terrorism act, part of which contravened the International Covenant on Civil and Political Rights (ICCPR) to which India is signatory.

But last Tuesday, the government suddenly promulgated the similarly worded Prevention of Terrorism Ordinance 2001 by official fiat, drawing howls of protest from human rights activists who say that it is more restrictive of civil liberties than the old law it replaces.

International HR standards

According to Rajindar Sachar, former chief justice of the Delhi High Court and PUCL activist, a detainee held under the new law will find himself at the mercy of executive officers and the police rather than a judicial body as required by international human rights standards.

The new law resembles the Defence of India Rules framed by the colonial British government during World War II - bail cannot be granted unless a court is satisfied that grounds exist to believe that an accused is not guilty.

Sachar said this clearly violates Article 9 (3) of the International Covenant on Civil and Political Rights, ''which provides that it shall not be a general rule that persons are detained prior to trial but that release pending trial may be conditional on guarantees to appear for trial''.

Rights activists also find objectionable a section of the new law that makes confessions made before a police officer admissible during trial.

"Experience with TADA has shown that if you give police and armed forces more powers, they are likely to be abused rather than used," said Prashant Bhushan, Supreme Court lawyer and human rights activist.

Bhushan also questions the usefulness of special powers in deterring terrorism. "You cannot deter a person who is willing to die for his cause and what is really important is to understand why he is willing to die," he said.

Many safeguards

According to Bhushan, existing ordinary laws are more than adequate to tackle terrorism provided they are implemented properly. The new law merely gives "unbridled" powers to the executive and to a police which has a poor track record, he argues.

But PN Ghatate, a member of India's Law Commission who helped draft the bill, denies that the new law grants unbridled powers to the police and says that there are many safeguards against abuse.

"Under the new law, an officer found guilty of abuse can end up with a two-year prison sentence and he must file an affidavit regarding the arrest, which if found false later, can result in punishment," Ghatate said.

He adds that in places like Kashmir, what would be applicable are laws that are in effect during war time rather than laws that have to do with human rights. "Any armed person who crosses a border is liable to be shot under international law," he said.

Other prominent figures who arraigned themselves on the side of the new law include former police chief in Punjab KPS Gill, who said there was no other way to deal with a situation in which foreign mercenaries were active on Indian territory.

"Religious [extremism], weapons in the hands of unscrupulous persons, liberal courts and bleeding hearts have created a very dangerous situation in the country," said Gill, who is credited with ruthlessly quelling violent Sikh militancy in Punjab in the early 1990s.

Poor legal provisions

Gill said that known terrorists like Masood Azhar, a Pakistan national who was detained in Indian jails without trial for years, could get away scot-free because of poor legal provisions.

Azhar, who was among ' jihadists ' released in exchange for a plane with more than 150 passengers on board that was hijacked to Kandahar, Afghanistan in December 1999, went on to form the Pakistan-based Jaish-e-Mohammed group, the assets of which were frozen by the US government last week as part of its action against terrorist groups.

"Those who talk of human rights should realise the ground reality by assessing the situation in Jammu and Kashmir, where terrorists have killed thousands of people and where the existing legal system has failed to combat terrorism," said NN Vohra, former home secretary to the federal government.

But Sachar said those who opposed the legislation, purportedly aimed at countering terrorism in places like Kashmir, could now find themselves accused of unpatriotic behaviour by jingoistic nationalists.

On Oct 1, the state assembly building in Srinagar was attacked by a suicide squad of the Jaish-e-Mohammed, killing 39 people. It prompted Prime Minister Atal Bihari Vajpayee to warn of drastic reprisals.

Said Sachar: "It is precisely in this crisis that the nation must not lose its faith in the basic value of freedom and democracy."