Normalisation of Anti-terrorist Legislation in Democracies: Comparatives Notes on India, Northern Ireland, and Sri Lanka
by Vinay Lal
[Slightly revised version with endnotes published as “Anti-Terrorist Legislation: A Comparative Study of India, the United Kingdom, and Sri Lanka.” Lokayan Bulletin 11, no. 1 (July-August 1994):5-24.]
Much attention has been focussed over the last two decades on the problem of terrorism, its threat to international peace and security as much as the sovereignty and integrity of nations, and its obscene repudiation of norms of civilized conduct. The supposed inexplicability and unpredictability, if not irrationality, of terrorism are prominently captured in one of the very first incidents by which it was catapulted into modern-day consciousness. On a summer day in 1972, three commandos of the Japanese Red Army, wielding Czech submarine guns, fired at Puerto Rican passengers about to embark on an Air France flight leaving from Lod airport in Israel. These Japanese commandos, though constituting themselves into a self-proclaimed ‘army’, were not acting on behalf of Japan or any other nation-state, nor did they have any particular grievances against Puerto Ricans, and the aircraft might just as well have been British Airways or (the now defunct) Pan Am. It was perhaps clearly understood throughout the world that this attack at once sought to undermine Israeli territorial sovereignty and rivet the world’s attention on Palestinian claims to a homeland, but what of the victims? What was to be gained, other than a symbolic and largely impotent challenge to the hegemony of Western states, by a violent communication of the view that the very presence of a person on Israeli soil constituted an endorsement of Israeli’s legitimacy and therefore rendered that person liable to punishment as an ‘ally’ of Israel? And what kind of blow could the Japanese Red Army, sworn to opposing the nexus between the military, traditional elites, and capitalists in Japan, have dealt to the evil empire of international capitalism when ironically their very operation merely demonstrated that borders exist only to be rendered permeable and that, much as the advocates of capitalism would argue, goods respect no boundaries?
The terrorist attack at Lod Airport appeared, in any case, to underline the international character of terrorism and its arbirtrainess in its mode of selecting victims. The incident signalled the emergence of a new form of conflict, the contours of which have been delineated in innumerable studies. The International Association of Chiefs of Police, at its meeting in 1974, applied a very simple definition to ‘terrorism’: it was described as “a purposeful human activity primarily directed toward the creation of a general climate of fear designed to influence, in ways desired by the protagonists, other human beings, and through them some course of events.” The Nazis in Germany and in their acquired territories, the Indonesians in East Timor, the Khmer Rouge in Cambodia, and other regimes were certainly engaged in “purposeful human activity” designed to create a “general climate of fear” that would render their subject populations totally subservient to the ruling orders, but terrorism has not generally been associated with entire regimes or other large collectivities on the scale of a nation-state. The inadequacy of this definition in setting out what precisely constitutes the particularity of terrorism was soon to lead to attempts at somewhat more exact distinctions. “Terrorism is the use of criminal violence to force a government to change its course of action”, argues one American counter-terrorist expert, while in the view of another expert (and they are legion), terrorism is “highly visible violence directed against randomly selected civilians in an effort to generate a pervasive sense of fear and thus affect government policies.” According to the Prevention of Terrorism (Temporary Provisions) Act, a piece of legislation in the United Kingdom dating to 1984, “‘terrorism’ means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear”; in a more elaborate and precise form, exhibiting the anxieties about real and imaginary foes with which nation-states are as riddled as other preceding forms of government, this definition was to appear in Title 22 of the United States Code, Secion 2656 f (d), where terrorism is said to mean “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational or clandestine agents, usually intended to influence an audience.”
There are, it has been said, as many definitions of terrorism as there are terrorists, but there is certainly widespread agreement that terrorists must not be allowed to have a free hand. A special American task force “on combatting terrorism”, in its 1986 report to the Vice President of the United States, enumerated the various measures that could be taken to meet the threat of terrorism. It recommended the tightening of airport security, greater cooperation between intelligence and police agencies all over the world, the development of specially trained forces to handle incidents of terrorism, and so forth. Similarly, a report published by the U. S. Congress’s Office of Technology Assessment, entitled Technology against Terrorism (1991), explains how technology is being rendered into the hand-maiden of counter-terrorist activity. Then there is ‘international law’, to be made use of as powerful nations see fit: most recently, the United States, France, and the United Kingdom were able to enforce, through the vehicle of the United Nations Security Council, mandatory sanctions against Libya for its alleged sponsorship of the terrorist bombing in 1988-89 of two civilian aircraft, Pan Am Flight 103 and UTA Flight 772.
Incidents of international terrorism, however, are quite insignificant in relation to domestic terrorism, or the terrorism in many countries that is associated with secessionist movements or guerrilla groups that aim at a radical restructuring of the society and economy of their country, and here the measures taken to contain terrorism are much less uniform, running the gamut from torture of suspected terrorists to the acknowledgment, by way of negotiation, that terrorist groups may be voicing the aspirations of a significant portion of the population. Nonetheless, most of the measures adopted fall generally under two headings: intervention of the armed forces and anti-terrorist legislation. In Peru, for example, President Fujimoro suspended constitutional government on 5 April 1992 from the point of view of providing the armed forces of the country with virtually unchecked powers to hunt out and eliminate guerrillas belonging to the Maoist Peruvian Communist Party, otherwise known as Sendero Luminoso, “The Shining Path”. The use of the army in India to combat terrorism has been even more widespread: if “Operation Bluestar” (1984) was aimed at weeding out Bhindranwale and his followers in the movement for Khalistan from the Golden Temple in Amritsar, to be succeeded some years later by “Operation Night Dominance” as signifying the final endeavor to take the night back from the terrorists, and “Operation Bajrang” was launched with the intention of eliminating the problem of militancy in Assam, numerous un-named armed operations continue to remain in effect in Kashmir, Punjab, and North-east India.
Despite the use of armed forces, however, it is in fact principally through legislation that the threat to terrorism has been sought to be minimized, not only in India but in other democracies as well. Democracies purportedly have an instrinsic relationship to the ‘rule of law’, and legislation appears to be the most consistent and least oppressive of all the measures that democracies can employ to secure themselves against threats internal and external. But is legislation intrinsically democratic? The answer to that cannot be in the affirmative, for discrimination on one or more grounds has, until quite recently in most countries, including such democracies as the United States, received the blessings of the law. As the very appeal of any legal system must necessarily reside in the promise it holds out of offering justice that transcends the contingencies of class, privilege, race, sex, and so on, even the most brutal regimes, the Nazis being a case in point, have attempted to ensure their survival, longevity, and attraction to their subjects by purporting to subscribe to the ‘rule of law’. Might it not be the case that, precisely because legislation appears to be more ‘democratic’ a mode of equipping a nation-state with an arsenal to combat terrorism, it obfuscates its own terrorism? To entertain these and other related considerations, I propose to turn in due course to a more detailed analysis of three societies which, confronted by the problems of terrorism, have an extensive array of anti-terrorist legislation: Northern Ireland, Sri Lanka, and India.
Legislation to Combat Terrorism
(i) General Considerations
Owing to the nearly world-wide dimensions of the threat posed by terrorism, many states have recourse, should that be requisite, to anti-terrorist legislation and other counter-terrorist measures. The response in democratic countries has varied from the mere enumeration, as in Australia and New Zealand, of terrorism as a grave security risk to the creation, as in India and the United States, of special offices for the coordination of counter-terrorist activity. The Australian Security Intelligence Organisation Act of 1979 added terrorism to espionage, sabotage, and subversion as a security risk, as did the amendment, in 1977, to the New Zealand Security Intelligence Service Act (1969). These measures may well be enough in countries where terrorism has posed no immediate threat, but would scarcely have sufficed to contain the kind of terrorist movements, nourished by the ideology of anti-capitalism, that flourished in Italy, Japan, and the former West Germany, and would indeed be entirely impotent today in countries such as India and Sri Lanka, which are beset by secessionist or irredentist movements that have taken an extremely violent turn. In addition to legislative measures that states have adopted to counteract terrorism within their boundaries, there are numerous provisions in international law for the prevention and control of terrorism. Such measures have been necessitated by the fact that, as is commonly said, “terrorism knows no boundaries”. Terrorists might operate from one country, be funded by a second, and strike at a third. The complexity of terrorism is underlined by the fact that although the United States has been relatively free of terrorist incidents, Americans have been the most common victims of terrorist attacks in numerous countries, and to a lesser degree this is also true of the subjects of countries in Western Europe. Domestic legislation to contain terrorism clearly cannot be of avail in these and other instances, and it is for this reason that over the last twenty years many international protocols, extending from those that stipulate how hijacking of civilian and military aircraft is to be dealt with under the law, to those that bind states to accord protection to diplomatic personnel, have become enshrined in law.
Though one must undoubtedly be critical if not contemptuous of the designation by the United States and European powers of Libya, Iraq, Iran, North Korea, Cuba, and Syria as ‘terrorist states’ that must be compelled, whether by sanctions or the use of force, to follow norms of conduct to which the international community has sworn its allegiance, there can be no doubt that the problems posed by terrorism must perforce be of particular concern to democracies. Anti-terrorist legislation is generally characterized by its extraordinary nature: that is, the legislation endows the state with powers not conferred under the normal law of the land, and while such legislation may not necessarily be immune from judicial review, the judiciary itself is asked to assist in the speedy prosecution of detained suspects. Most commonly this has entailed the establishment of special courts, as in India, Italy, Northern Ireland, and Sri Lanka, where the usual safeguards attendant upon the prosecution of suspects under the ordinary criminal law of the land might be curtailed. For instance, although the ordinary courts in India are bound to throw out evidence which has not been obtained in accordance with the country’s Law of Evidence, a law so sensitive in principle to the right of suspects that even the United States Supreme Court adverted to it with approval in its famous Miranda decision, special courts set up to try suspects on charges of terrorism are relieved of the obligation to dismiss evidence that may have been obtained by coercion, without a proper warrant, or by other means violative of the principles of due process. Thus, the Terrorist and Disruptive Activities (Prevention) Act, of which I shall have more to say later, even allows as admissible evidence presented in the form of audio or video cassettes (sec. 15).
The introduction of extraordinary anti-terrorist legislation need not lead to suspension of habeas corpus and other fundamental rights promised in the constitution of a state. Yet, so long as the containment if not elimination of terrorism is sought by legislative measures and other acts of the state, usually strengthened executive powers, the question remains whether such legislation and other measures are not ultimately corrosive of the democratic fabric of the state and civil society. When the threat of terrorism is such that a state seeks to contain it by introducing progressively more repressive measures, or by rendering permanent legislation that was introduced purely to provide the state with temporary powers, does not the ‘normalisation’ of such techniques of repression bode ill for any democratic polity? To summon one instance of such ‘normalisation’ of extraordinary legislation, consider the case of India, which was recently taken to task by a Human Right Committee set up under the International Covenant on Civil and Political Rights, to which India is a signatory. India’s attorney-general was asked to explain why the National Security (Amendment) Act and the Terrorist and Disruptive Activities (Prevention) Act, though occasioned by an emergency, had not officially been proclaimed as emergency legislation in fulfillment of Article 4(1) of the Covenant. Moreover, if these acts were derogations from the covenant, as they appeared to be, given that they curtailed the right of assembly and sanctioned preventive detention without the right to judicial review, why were such derogations not approved by the Committee as specified by the Covenant? A different instance of such ‘normalisation’ is to be found in the history of the Prevention of Terrorism (Temporary Provisions) Act of 1939, a measure introduced by the United Kingdom Government for a period of two years to meet the threat of IRA terrorism. Notwithstanding the act’s “temporary provisions”, the act was renewed annually until 1954, even though IRA terrorism had declined substantially by 1940, and was not to see a substantial resurgence until the 1960s.
Though there is, then, a considerable history of anti-terrorist legislation in the twentieth century in numerous countries, India, Northern Ireland, and — to a lesser extent — Sri Lanka provide suitable cases for a comparative study of the political, social, historical, and legal aspects of such legislation. As is quite apparent, all three share a colonial past that is rather similar in many respects; in the case of Northern Ireland, the resolution of this past evidently has by no means been achieved, as the continuing problem of terrorism by the IRA, the INLA (the Irish National Liberation Army), and various Protestant para-military groups so vividly demonstrates. What is less obvious is that the legislation in India and Sri Lanka also partakes of the colonial past of these two countries, which in turn raises the question whether these countries may not have foreclosed their options when the decision was taken to combat terrorism through the adoption of extraordinary legislative measures. A second, and equally compelling reason, for considering India, Northern Ireland, and Sri Lanka in conjunction is that in all places terrorism has been fuelled by secessionism, separatism, and ‘communal’ hatred. Such terrorism, apart from its economic roots, has ethnic, linguistic, religious, and cultural dimensions that terrorism in the former West Germany and to a large extent in Italy lacked. The comparison between India and Sri Lanka is a particularly telling one, when we contrast Sikh or Kashmiri separatism in predominantly Hindu and Hindi-speaking India with Tamil separatism in Sri Lanka, a country where the majority of the people are Buddhists, of purportedly ‘Aryan’ descent, and speakers of Sinhalese. On the other hand, a different historical perspective might suggest the close affinities between Sri Lanka and Northern Ireland as societies shaped and marked by an experience of plantation labor. It is to a more enlarged enumeration of the legal and political histories of anti-terrorist legislation in Northern Ireland, India, and Sri Lanka to which I shall now turn.
(ii) The Case of Northern Ireland
The origins of extraordinary legislation to contain terrorism and other acts of violence directed against the state in Northern Ireland go back to the events of 1921, which witnessed the splintering of Ireland, the creation of the Irish Free State from twenty-six of the thirty-two counties that comprised Ireland, and the political union of six counties in Northern Ireland with England, Scotland, and Wales. To minimize the effects of the ensuing civil war, waged primarily between the forces of the Irish Free State and Irish nationalists seeking to undo the partition of Ireland, or (to put it another way) the political union of Northern Ireland with Great Britain, the Civil Authorities (Special Powers) Acts were brought into force. These remained in effect from 1922 to 1940; in 1939, at the outbreak of World War II, a war in which the Irish Free State proclaimed its neutrality, the Prevention of Terrorism (Temporary Provisions) Act was passed, and once it was clear that this legislation would suffice to meet the threat of separatist violence, the Special Powers Acts were allowed to lapse. In the Republic of Ireland, which succeeded the Irish Free State in 1937, terrorism posed no grave problems as it did in neighboring Northern Ireland. However, terrorists from Northern Ireland sought refuge in the Republic, and the violence in the north often threatened to spill over into the south. It is for this reason that a comprehensive set of measures designed to deal with terrorism, of which the Offences Against the State Acts constitute a major portion, were etched into the permanent law of the land in 1939.
The more recent history of anti-terrorist legislation designed to alleviate the problem that terrorism in Northern Ireland poses for Britain shows a marked similarity to the history of previous legislative attempts. No sooner had the Prevention of Terrorism (Temporary Provisions) Bill been introduced in Parliament on 19 July 1939 than IRA violence saw a dramatic upsurge: a hundred explosions took place over the next nine days, and this no doubt hastened the passage of the legislation, which secured the royal assent on July 28. By 1940 IRA violence had “petered out”, but the Act remained in force until 1954. As one recent study of The Prevention of Terrorism Acts puts it, “the emergency had lasted approximately one year; the Act had lingered for just over fifteen — a tour de force in legislative indulgence.” Just as significantly, the legislation, which was intended to enable the authorities to curb the violence with more effective powers at their command, may have precipitated the violence. On the other hand, the Prevention of Terrorism (Temporary Provisions) Act in 1974 appears to embody a different causal relationship, for this reincarnation of the legislation can be directly attributed to two bomb explosions in Birmingham on November 21 of that year which left 21 people dead and 184 injured. Introducing the legislation in the House of Commons on November 25, the Home Secretary admitted that “the powers” that the Act proposed to confirm upon the police and the judiciary “are Draconian. In combination they are unprecedented in peacetime.” He felt nonetheless that such powers were “fully justified to meet the clear and present danger”. As in 1939, and here the histories most emphatically merge, the legislation was secured within a matter of days, virtually without either amendment or dissent. Despite the purportedly “temporary” nature of the Act, it was superseded by a new Act in 1976. In 1982, as a consequence of vociferous demand by the opposition, a review of the Act was carried out by Lord Jellicoe. A former head of the secret National Security Commission and one-time member of the elite Secret Armed Services, Jellicoe was scarcely likely to suggest that the government be divested of its powers, but even he was constrained to advise that the phrase “Temporary Provisions” be “removed from the title of the Act” as it “rings increasingly hollow”. Only in this respect was Jellicoe’s advice not followed: a new Prevention of Terrorism (Temporary Provisions) Act came into force in 1984 and given a life of five years, subject to annual renewal. In 1989, to make the story complete, the act was again amended, and the following year it was renewed by a Parliamentary vote of 227 to 136.
As this short review of the history of anti-terrorist legislation to combat terrorism in Northern Ireland suggests, such legislation is usually secured without adequate debate, much less dissent or amendment, and usually on the plea that in an emergency national security, as much as the life and property of the people, cannot be compromised. The supposed “reviews” cannot substitute for scrutiny by a standing Parliamentary committee: Jellicoe, for instance, was expressly forbidden from considering “whether or not we need the [Prevention of Terrorism] Act”, and likewise Sir George Baker, given the task of carrying out a review of the Northern Ireland (Emergency Provisions) Act 1978, was provided with terms of reference which carried the acceptance “that temporary emergency powers are necessary to combat sustained terrorist violence”. Purportedly of a “temporary” nature, such legislation is given a very long life, and rendered relatively immune from the kind of judicial review and parliamentary scrutiny that would have made its passage as the permanent law of the land difficult if not inconceivable. Secondly, as I have argued above, extraordinary legislation, far from having the effect of checking violence, might well have the effect of precipitating violence. The effectiveness of anti-terrorist legislation can, at a more general level, be put into question. Although it is true that the passage of the Prevention of Terrorism (Temporary Provisions) Acts of 1974 and 1976 led to a decline in the number of terrorist-related incidents, acts of political violence were thereafter more carefully orchestrated. The transformation of the Metropolitan Police Bomb Squad, first established in 1971, into the Anti-terrorist Squad in 1976 indicates that the threat of terrorism could not be contained by the legislation of 1974. Indeed, between 1971 and 1984, when a new act came into being, terrorist-related incidents in Northern Ireland remained extravagantly high: 30,000 shootings, 7,831 explosions, 2,372 deaths, and almost 25,000 injuries.
In further criticism of the Prevention of Terrorism Act, it can be said that it partakes of yet another kind of “legislative indulgence”. Under the Northern Ireland (Emergency Provisions) Act [EPA] of 1973, the government already had available to it those very powers of preventive detention, summary arrest, and search without warrant with which it was subsequently empowered by the Prevention of Terrorism Act [PTA]. It has been argued that while the EPA is applicable to Northern Ireland, the PTA is directed primarily at terrorism in Great Britain; however, this obfuscates not only the significant overlapping between the two pieces of legislation, but also the consideration that the chief difference between the two resides in the fact that the EPA allows a greater license to the authorities than does the PTA, partly on the supposition that Britain with its allegedly great tradition of liberalism would never allow its subjects to be subjected to draconian laws. Nor are EPA and PTA the only relevant pieces of legislation: The Immigration Act (1971) gave the government additional powers to prohibit the entry of suspected terrorists into the United Kingdom and likewise to exclude suspects. What justification could there have been then for the passage of legislation like the PTA which perhaps violated the fundamental postulate that new legislation is warranted only when there is demonstrable need? More significantly, we must consider that, as a consequence of the various Prevention of Terrorism Acts, what was once considered exceptional has come to be viewed as ‘normal’. As one member of Parliament put it in the House of Commons debate on Lord Jellicoe’s “review” of the Prevention of Terrorism Act, “the power to detain suspects for seven days, which produced a shock on both sides of the House in 1974, now hardly causes an eyelid to flutter.” He spoke of the “insidious circular process in which draconian laws soften us up for similar laws which become the desired standard for further measures”. The presence of extraordinary legislation, particularly over an extended period of time, not only weakens the normal law of the land, it also inures a people to the acceptance of vast powers that no democratic state should be allowed to wield with impunity. Does such legislation create conditions that, in the long run, are destructive of the fabric of a democracy, and are other options indeed foreclosed by the state’s assumption of extraordinary and “draconian” powers? To help with our consideration of these questions, a brief perspective on anti-terrorist legislation in Sri Lanka and particularly India might well prove instructive.
(iii) The Case of Sri Lanka
Whatever abuses anti-terrorist legislation in the United Kingdom to combat terrorist-related activity in Northern Ireland may have lent itself to, these abuses are terribly compounded in the former colonies of Sri Lanka and India. As nation-states, both Sri Lanka and India are quite young: the former achieved dominion status in 1948 and became a republic in 1956, while the latter procured independence in 1947. Those ‘constitutional’ restraints which operate with more or less regularity in older democracies like the United States and Britain have been less rigorously observed in India, Sri Lanka, and other like countries. Both colonies had an extensive police apparatus under colonial rule, and indeed the long arm of the state was nowhere as long as in British India, where anti-terrorist legislation may have been introduced earlier than anywhere else in the world.
In Sri Lanka anti-terrorist legislation is of comparatively recent vintage, having been introduced not, as is commonly supposed, in response to escalating violence originating in the demand by Tamil guerrilla groups, most notably the Liberation Tigers of Tamil Eelam, for a separate Tamil homeland in northern Sri Lanka, but rather in an attempt to prevent the Tamil population from voicing its demands through democratic channels for an end to social and economic discrimination. Although it was not until 1983, when the Tigers under their leader Prabhakaran carried out a daring attack on an army convoy in Jaffna, that the situation was perceived to call for extraordinary legislation, emergency legislation conferring wide powers upon the government had been in effect since 1979. That year, the Sri Lanka Parliament adopted the Prevention of Terrorism (Temporary Provisions) Act, as though to suggest that this act was comparable with the like-named legislation in the United Kingdom. In point of fact, as various observers have noted, the Sri Lankan law in 1979 was so fearsomely draconian that in some respects, for instance with respect to the power of the state to impose restriction orders on suspects, it bore comparison with legislation then in force in South Africa. Where the British Prevention of Terrorism (PTA) Act allows preventive detention for only one week, the Sri Lankan PTA allows detention without the levying of charges for eighteen months; similarly, where the British PTA confers special powers only to combat “acts of terrorism”, defined as “the use of violence for political ends”, the Sri Lankan PTA confers powers of search, arrest, and seizure without warrant in connection with “any unlawful activity”. The Sri Lankan Prevention of Terrorism Act does, in effect, confer carte blanche upon the forces of ‘law and order’, and indeed some of its provisions, such as the infliction of 20 years imprisonment for defacement of public notices, are nothing short of being fascist. It is not surprising that the Act also guarantees officers of the state immunity from prosecution for any action taken under the Act.
Wide as are the powers that the Sri Lankan government has on account of the Prevention of Terrorism Act, this is not the only legislation of its kind in force. The Emergency (Miscellaneous Provisions and Powers) Regulations made under the Public Security Ordinance, the origins of which go back to the days of colonialism, empower the executive to arrest and detain suspects without charge, proscribe political parties, and ban publications. Regulation 15A, which dates to 3 June 1983, is susceptible to even greater abuse. This Regulation entitles police officers or other authorized persons to take possession of a dead body and determine the manner in which it is to be disposed. This Regulation was brought into force after the Jaffna Magistrate returned a verdict of homicide at the inquest into the death of K. T. Navaratnarajah, who died in army custody from numerous external and internal injuries inflicted by blows and weapons. By preventing an inquest from taking place, Regulation 15A can only encourage functionaries of the state in the belief that indiscriminate and retributory exercise of their power will remain unpunished. Sri Lankan legislation shows with greater clarity than anti-terrorist legislation in Northern Ireland and Britain how democratic norms are easily subverted on the plea that the state must be equipped to meet any emergency, especially one that appears to pose grave threats to national security. Although the Sri Lankan Prevention of Terrorism Act (1979) was promulgated while an emergency was officially in effect, and the emergency was lifted on December 27 of that year, the legislation was not removed, merely because Section 29 of the Act provided for the retention of the Act for “three years”; moreover, a subsequent amendment to the Act has given it an indefinite life.
(iv) Anti-terrorist Legislation in India
Far-reaching as anti-terrorist legislation in Sri Lanka is, it pales in comparison with the extraordinarily wide and, certainly for a democratic state, quite unprecedented array of powers with which the Indian government has armed itself in recent years. The pre-history of repressive legislation in India is a very complex one and remains largely unexplored; we can do little more than hint at it. To the British must go the dubious distinction of having introduced preventive detention in India as early as 1793. The East India Company Act of that year authorized the “governor of Fort William” and such other officers as he thought fit to “secur[e] and detain in custody any person or persons suspected of carrying on . . . any illicit correspondence dangerous to the peace or safety of any of the British settlement or possession in India . . .” The Company in Bengal subsequently enacted the Bengal State Prisoner’s Regulation, which was to have a long life as “Regulation III of 1818”. An extra-constitutional ordinance, opposed to all the fundamental liberties which the colonial state would later pretend to be bound by, Regulation III provided for the indefinite confinement, for “reasons of State”, of individuals against whom there was not “sufficient ground to institute any judicial proceeding”. For the next hundred years, Regulation III was to remain the supreme weapon available to the government in its war against political violence, and its removal from the law books was to remain an insistent demand by Indian nationalists in the early part of the twentieth century.
For more explicit anti-terrorist legislation going beyond preventive detention, we have to turn to the events of the twentieth century. Action by armed revolutionaries, characterized as ‘extremists’ and ‘terrorists’, with supposed links abroad inspired new and more draconian legislation between 1905-1914, and the advent of World War I served as a pretext for strengthening the forces of the state, of course in the name of ‘national security’. In 1908, the government passed the Newspapers (Incitement to Offences) Act and the Explosives Substances Act, and shortly thereafter the Indian Press Act, the Criminal Tribes Act, and the Prevention of Seditious Meetings Act. Although these pieces of legislation have not been etched into what I have called the pre-history of anti-terrorist legislation, the purported intent was to prevent ‘terrorists’ from calling public meetings, publishing material inciting the people to revolt, disseminating revolutionary literature, and so forth. In actual fact, as numerous studies have shown, the legislation was of such wide scope as to render suspect all political activity that was even mildly critical of the British Government of India, and it put an effective end to whatever freedom of expression the Indian press had been allowed. The exclusion from India of men harboring evil designs towards the Government of India, ‘suspects’ in the official vocabulary, was accomplished by the Foreigners Ordinance of 1914, which restricted the entry of foreigners into India. The ‘foreign hand’ theory, which is invoked with notorious monotony by the Indian state to the present day to account for the rise of secessionist and communal movements, owes its origins partially to this ordinance. Meanwhile, the Ingress into India Ordinance (1914) allowed the government to indefinitely detain and compulsorily domicile suspects, while the Defence of India Act (1915) allowed suspects to be tried by special tribunals sitting in camera whose decisions were not subject to appeal. Regulation III also continued to be available for the indefinite detention of suspects.
As the Defence of India Act was to expire six months after the conclusion of the war, a new set of emergency measures for the detention and containment of ‘terrorists’ to meet what was termed the ‘continuing threat’ were planned by the Government of India. These measures were incorporated within the Anarchical and Revolutionary Crimes Act, known to Indians as the Rowlatt Act after the name of the chairman of the committee that recommended the institution of this legislation. The government could not have known that the Rowlatt Act would become the occasion for the most widespread movement of opposition to British rule since the Rebellion of 1857-58 and indeed the springboard from which the movement for independence would be launched until India was to become irretrievably lost to the British. The Rowlatt Act provided for the trial of seditious crime by benches of three judges; the accused were not to have the benefit of either preliminary commitment proceedings or the right of appeal, and the rules under which evidence could be obtained and used were relaxed. Other preventive measures included detention without the levying of charges and searches without warrants. As the Rowlatt committee noted in its report, “punishment or acquittal should be speedy both in order to secure the moral effect which punishment should produce and also to prevent the prolongation of the excitement which the proceedings may set up.”
The history of anti-terrorist legislation in colonial India by no means ends with the Rowlatt Act, but such of it as is here narrated suggests that much in the present legislation had already been anticipated. With the attainment of independence, there were anguished debates in the constituent assembly about whether preventive detention ought to be retained, or whether this was a measure that could not be maintained with adequate justification as the country was now no longer under the tutelage of a colonial power. With independence had come partition, and not only had extraordinary legislation — such as the Punjab Disturbed Areas Act, Bihar Maintenance of Public Order Act, Bombay Public Safety Act, and Madras Suppression of Disturbance Act, all enacted in 1947-48 — been required to deal with the problem of communalism, but also with “anti-social elements” who under the cover of religion had found the perfect pretext to settle old scores and commit mayhem. These were the reasons most commonly cited for the retention, both in the Constitution of India (Art. 22), and in the form of a Preventive Detention Act (1950), of preventive detention. No doubt too the colonial legacy could not be abandoned in its entirety in the first flush of freedom.
The Indian state, however, has not been content with merely retaining the colonial infrastructure of repression, and indeed the last ten years have witnessed a flurry of legislation that, in many respects, is nothing short of being frightful. Terrorism in the Punjab, not all of it associated with the demand for a separate homeland for the Sikhs, has taken a toll of over 15,000 lives since 1980, and likewise there has been very heavy loss of life in Kashmir, where militants are contesting India’s claim to Kashmir. Nor are these the only states where anti-terrorist legislation has been put into effect; large parts of the entire north-east are described by the government as being rife with insurrectionist activity, and Assam, Nagaland, and Mizoram have all initiated legislation endowing the government with wide-ranging powers. Whatever the precise causal relationship of such legislation to the advent of terrorism, and whatever the role of Pakistan, as India claims, in fomenting political and social unrest in the Punjab and Kashmir, it is quite clear that some of India’s extraordinarily repressive legislation was initiated well before insurrectionary terrorism was to make its mark. A case in point is the West Bengal (Prevention of Violent Activities) Act of 1970, which was inspired by the ambition to crush the Naxalite revolt, a movement of armed revolutionaries who sought the amelioration of socio-economic inequities through the use of violence, although one could point with even greater justification to the Maintenance of Internal Security Act (1971), a piece of legislation originating in the atmosphere of mutual suspicion and hatred between India and Pakistan that was to lead to war between the two countries in 1971.
As one might expect, it is the secessionist movements of recent years that have occasioned the most forcible legislative response from the state. Nothing conveys better the extent of anti-terrorist legislation in India than a mere, and by no means complete, enumeration of the acts passed with the consent of the Indian parliament over the course of the last fifteen years: Jammu and Kashmir Public Safety Act (1978); Assam Preventive Detention Act (1980); National Security Act (1980, amended 1984 and 1987); Essential Services Maintenance Act (1981); Anti-Hijacking Act (1982); Armed Forces (Punjab and Chandigarh) Special Powers Act (1983); Punjab Disturbed Areas Act (1983); Chandigarh Disturbed Areas Act (1983); Suppression of Unlawful Acts Against Safety of Civil Aviation Act (1982); Terrorist Affected Areas (Special Courts) Act (1984); National Security (Second Amendment) Ordinance (1984); Terrorist and Disruptive Activities (Prevention) Act (1985, amended 1987); National Security Guard Act (1986); Criminal Courts and Security Guard Courts Rules (1987); Terrorist and Disruptive Activities (Prevention) Rules (1986, amended 1987); and the Special Protection Group Act (1988). Although the intent of certain legislation is quite self-evident, as in the case of the Anti-Hijacking Act, which stipulates the penalties attached to the hijacking of aircraft, it is not clear what has been gained by the profusion of new legislation. Certain powers, such as those of preventive detention, search and arrest without warrant, and restriction of the movement of suspects, have long been available to the state, while the provision under the new laws for “speedy trials”, were it to be open to unhampered judicial scrutiny, would be found to abrogate fundamental constitutional rights. What are the consequences for a democratic polity of such legislation and what are the abuses to which such legislation must necessarily lend itself? Such abuses have been so widely documented by civil rights groups, the People’s Union for Civil Liberties and the People’s Union for Democratic Rights among them, and other international bodies — Amnesty International and Asia Watch, to name two — that their detailed enumeration is no longer necessary. However, an analytical understanding of the issues at stake has, it appears, largely evaded us, and it is to these larger questions that I shall now turn briefly.
The Place of Anti-terrorist Legislation in Democracies
The purportedly temporary nature of anti-terrorist legislation is a fiction. Anti-terrorist legislation, as I hope has reasonably been shown, is more easily put in place than removed. This is as true of the Prevention of Terrorism (Temporary Provisions) Acts in England and Sri Lanka as it is of certain pieces of legislation in India. The Maintenance of Internal Security Act (MISA), which was passed by the Indian Parliament on the grounds that it gave the government enhanced powers to deal with threats posed to national security owing to strained relations between India and Pakistan, remained on the law books until 1978, nearly seven years after the termination of the war with Pakistan. Moreover, by the 39th Amendment to the Constitution of India, MISA was placed in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review on the ground that it contravened the Fundamental Rights which are guaranteed by the Constitution. The history of MISA illustrates a second caveat that democracies should perhaps take heed of if they are not to be thrown in greater peril than the peril from which draconian legislation is presumed to rescue them. Legislation is designed with one intent in mind, and is often used to serve an altogether different end, and nowhere is this more true than of anti-terrorist legislation or other like legislation secured in the name of ‘national security’. Thus MISA, far from curbing terrorist activity, and making India safe from its real and imagined foes, became the central piece in Mrs. Indira Gandhi’s single-minded agenda to stifle all dissent, howsoever legitimate, against her authoritarian rule. MISA made India wholly unsafe, not for her purported enemies, but for Mrs. Gandhi’s critics, as the two-year period of the emergency between 1975 and 1977, which saw the suspension of fundamental constitutional rights, was to show so dramatically and painfully.
All laws are subject to abuse, but laws intended to be employed against terrorists are notoriously susceptible of manipulation by functionaries of the state, be they army officers, policemen, bureaucrats, or jail wardens. As the usual safeguards are put in abeyance, there is less effort to ensure that procedures are in compliance with the law, and immunity from judicial scrutiny encourages functionaries of the state to use anti-terrorist legislation to initiate personal vendettas. The problems, however, are much more serious than this. Consider, for example, the Terrorist and Disruptive Activities (Prevention) Act of 1985, otherwise known as TADA. Although the Indian Government indubitably faces violent opposition by armed militants advocating separatism, TADA has been used in areas such as Gujarat, which are not threatened by secessionist or terrorist movements, to crush legitimate, usually non-violent, political activity among students and workers. The largest number of arrests under TADA have been made, not in the Punjab or Assam, but in Gujarat. Similarly the elite Central Industrial Security Force, which was created and empowered by special legislation to protect major industrial undertakings from terrorist or otherwise violent attacks, has often been employed to suppress trade union activity. The sheer illegitimacy, and not mere abuse, of this legislation is suggested by the fact that only 434 of the 52,998 people detained under TADA by the end of 1992 were convicted. If this 0.81 percent conviction rate constitutes a severe indictment of TADA and the Indian state, what are we to think of the 0.37 percent conviction rate for TADA detenu in the Punjab, which at one time the Indian government was apt to characterize as lost to terrorism?
The manner in which the passage of anti-terrorist legislation has been secured in countries that are purportedly democratic is another pointer to the ‘normalisation’ of such legislation. The quick, almost summary, reviews of the Prevention of Terrorism (Temporary Provisions) Act in Britain, and the short debates around this act in Parliament, have already been adverted to; and more ominous still is the history of Parliamentary response to such legislation in India. The last two-year extension of TADA, in the late summer of 1993, called forth a mere 70 minutes of discussion in the Lok Sabha, and in a house with a membership of 542, no more than eight members saw fit to speak on this piece of legislation. Nor has the previous record of Parliament been any more inspiring or illustrious in this respect: to summon only two instances, the debate in August 1985 on the extension for five years of the Essential Services Maintenance Act (1980), which provides the state with vast powers to curtail the rights of striking workers when the supply of essential goods and services appears to be under threat, was conducted over a period of three hours, and elicited the participation of thirteen members of the Lok Sabha; more strikingly, only 20 members of the House were present during the 44-minute discussion on the amendment to the Indian Post Office Act, and of this body only four registered their opinions about a piece of legislation that, had the President of India not withheld his assent to the bill, would have allowed the government to tamper with the mail of Indian citizens in the name of ‘national security’.
When anti-terrorist legislation is ‘normalised’, treated just like other proposed changes and additions to the law, the consequences for democracies must be perilous. This legislation becomes fraught with hazards greater than the perils from which it is supposed to rescue the nation. Even in instances where such legislation is altogether necessary, or where action undertaken by virtue of the provisions of such legislation is warranted, the state may find that it cannot legitimate its actions. The bitter public memory of those abuses returns to haunt the state; its entitlement to public sympathy and support notwithstanding, the state finds that its legitimacy is now mistaken for illegitimacy. However, I think it is possible to take yet a more fundamental stand against anti-terrorist legislation, for the question is not only one of whether the abuses of the law can be checked, but whether legislation and other modes of repression are not inherently flawed as strategies to meet the threat of terrorism. Why is the illusion of the temporariness of anti-terrorist legislation so central, if not because any acknowledgment that the legislation is more than merely temporary is at once an admission that terrorism originates not in nothingness, as evil designs of mad and disenchanted men, but in problems so deeply embedded in the fabric of civil society that they cannot be addressed through any means other than terrorism? The resort to anti-terrorist legislation, far from being the only just recourse available to a democratic society, might well prove to be its undoing, for it defers the moment of recognition that terrorism can never be contained, much less eliminated, until it has been addressed as an epiphenomenon of some deep-seated injustices and endemic problems. As I have suggested, anti-terrorist legislation may well precipitate violence, and that in a most insidious manner precisely because the supposed resolution of the problem carries within it the seeds of yet more destruction. In perfecting the tools of legislative repression, we succeed only in creating a more impregnable Frankenstein monster.