If “war” is the appropriate description for the struggle against terror that the country is now engaged in, then it is a war that differs very significantly from the conventional understanding.
Four attacks in major cities in as many months – the latest being the Delhi serial blasts of September 13 -- may represent an escalation, but the war really began from well before. The precise date is a matter of almost arbitrary choice: by one mode of reckoning, the attacks on Srinagar’s legislative assembly building on October 13, 2001, and on India’s parliament on December 11, 2001, could be deemed the formal start of hostilities. On another scale, the war began on October 29, 2005, when middle-class markets in Delhi were gutted on the eve of a rare conjunction when Diwali and Eid-ul-fitr were celebrated on the same day.
Lethal explosions, striking random and indiscriminate terror in teeming urban milieus, have since been recurrent events. On July 11, 2006, the suburban train system of Mumbai – the lifeline of the country’s greatest metropolis -- was torn up as evening rush hour began, in the kind of meticulously deadly serial bombing the city had seen before in March 1993. Over 200 people with no concern other than getting on with their lives in the best tradition of Mumbai, were killed in those attacks.
There have since, been bombings with serious loss of life in Malegaon, Hyderabad (at three distinct venues on two separate dates), Jaipur, Bangalore, Ahmedabad and Delhi. Three bombs went off in court-room compounds in different cities of Uttar Pradesh on November 23, 2007, killing ten. And punctuating this litany of atrocities has been the occasional, narrowly averted tragedy, as in Surat, where a number of bombs were discovered on July 28, that just failed to detonate.
Each of these are resilient cities that for all their signs of urban blight, still manage to accommodate the vastness, the complexity and generosity of India. And the people in these cities, responding with immense fortitude to adversity, have shown that their spirit is not easily subdued.
The victims of terrorism deserve justice and they deserve considerably more than the political vaudeville that is being served up by the BJP, as the principal opposition party, and the Congress, as the principal constituent of the ruling coalition at the centre. Expectedly, the BJP has responded to the recent sequence of attacks with shrill invective, demanding summary justice for terrorists and damning the Congress for its vacillation. And unlike in earlier conjunctures, when the Congress proved firm enough in its convictions to withstand the pressure, this time around it has buckled. Clearly, it has suffered a failure of will and has sought preemptive protection against the propaganda device that the BJP is almost certain to deploy – that Congress-led governments have been negligent of the security of the common citizen, having repealed two anti-terrorism statutes in under a decade.
The government’s intent was conveyed in the report of an ambiguously empowered body called the Administrative Reforms Committee, headed by Veerappa Moily, an active duty politician who has served as chief minister of Karnataka. This is a committee that has in several earlier conjunctures come up with formulae to bail the government out of thorny dilemmas. This time around, it has proposed a range of legal measures – not as a distinct enactment, but as amendments to an existing law on the prevention of “unlawful activities”.
The official view now seems to tilt strongly towards creating a specially empowered agency under the central government’s jurisdiction, to investigate and prosecute terrorism cases. This agency would be vested with powers under a special statute, allowing for preventive detention for a defined period of time.
The BJP needless to say, remains unconvinced, and has fielded some of its most voluble spokesmen to argue that punitive, rather than preventive, clauses should really be the essence of the new law. These provisions would enable the handing out of swift justice in cases of terrorism. And in this respect, the admissibility of confessions made before the police as legal evidence, is really where the focus should be.
Using its current anti-terrorism icon – Gujarat chief minister Narendra Modi -- as principal propagandist, the BJP also argued the case that states should be allowed the freedom to enact anti-terrorism laws of their own, on the lines of the Maharashtra Control of Organised Crime Act (MCOCA). The BJP has a grievance that a closely analogous law it has enacted in Gujarat, called the GUJCOCA, is yet to receive central government assent.
These are partisan battles that go back a long way and involve much political opportunism. The substantive point though, is that the two anti-terrorism statutes that the BJP today makes much of – the Terrorism and Disruptive Activities (Prevention) Act of 1987 (TADA) and the Prevention of Terrorism Act of 2002 (POTA) – have been instruments of State terror and victimisation of the vulnerable, rather than credible instruments of justice. Convictions secured under TADA were a dismally low proportion of the total number of cases lodged. And the only significant case prosecuted under POTA – the 2001 attack on India’s Parliament compound – ended in fiasco, with some of the country’s most senior lawyers arguing the case for the accused in the Supreme Court and denouncing the Delhi Police for flagrantly concocting evidence.
To allow confessions made to the police as evidence in terrorism trials would do little else than arbitrarily empower an already lawless and unaccountable police force. It would deepen institutional prejudices against the religious minorities and enlarge the scope for criminal collusion between police forces all over the country and the agents of majoritarian mayhem and disorder, such as the Bajrang Dal. What the country needs clearly, is not a more powerful police force or a judiciary that has the authority to dispense summary justice. Without a firm reiteration and institutionalisation of the long-forgotten verity of equality before the law, the war against terrorism may well be lost even before it is joined.