The provisions of TADA were much more stringent
than those of the new Ordinance. The constitutionality of those
provisions, of TADA itself had been challenged in the courts. The
Supreme Court specifically upheld TADA, and declared its provisions
-- the much more stringent provisions -- to be in accord with the
While I happen to be in Government, my assessment
for Parliament is the opposite one to that of the critics: the
Ordinance bends too far back to accommodate human rightists, and
that includes some impractical judgments too -- like that of the
Supreme Court in D. K. Basu Vs State of West Bengal.
Under TADA, as we just saw, the accused was allowed
only one appeal that to the Supreme Court. Even with that
restriction, the judgment in the Rajiv Gandhi assassination case
took all of eight years. By allowing another intermediate appeal --
to the High Court -- we are ensuring that the period would be not
eight but a multiple of eight years!
Similarly, recall the provision that allows a
lawyer to meet the accused while he is being interrogated. Imagine
that the police have nabbed a terrorist sent across by the
Lashkar-e-Tayyaba. He is certain to have been saturated with
indoctrination to the point that he is nothing but a killing
machine. Do you think he is going to give you information over a cup
of tea? And if lawyers are going to be meeting him from time to time
during interrogation, is there the slightest chance that you will be
able to extract information -- information about their plans, about
their networks, that is information which is literally a matter of
life and death for our people and our country?
But-such is the condition of public life and public
discourse in India today, and so far removed from reality are some
of our judgments that a provision like that one about lawyers has
had to be incorporated in the Ordinance.
Based on their experience in dealing with organized
gangs of criminals, the states of Maharashtra, Andhra, Karnataka
have formulated laws. Why should the law for combating terrorists be
more circumspect than the laws required for neutralizing gangsters?
But that is what the Ordinance is. To give just one example, the
state laws provide that the Review Committees -- to consider orders
passed by the Home Department shall be headed by the Chief
Secretary, but the Ordinance requires that the corresponding
Committee for terrorists must be headed by a High Court judge. What
entitles terrorists or their agents to greater solicitude?
Similarly, consider the deletion of "disruptive
activities" from the Ordinance. TADA provided that any action that
questions or disrupts the sovereignty and territorial integrity of
India or is intended to do so, or which is intended to bring about
or supports a claim for the secession of any part of India from the
Union shall be a crime under TADA. Imagine how far we have fallen
when even such a provision has had to be jettisoned -- even from a
law the specific purpose of which is to thwart terrorists out to
break our country.
The charge that such provisions were used against
Muslims, that TADA was an anti-minorities law was a travesty. The
facts, as I had pointed out at the time, were completely to the
contrary. The notorious case of abuse was by the Congress-I led
Government of Gujarat: it threw almost 19,000 persons in jail under
TADA, and these were farmers opposing its policies. I donít recall
any protests against that abuse by those who are now imagining
possible abuses in the future. Just as important, ninety eight per
cent of those arrested in Gujarat got bail under that very Act from
the courts. In Kashmir it is true that the overwhelming proportion
of persons held under TADA were Muslims: but they were arrested not
because they were Muslims, they were arrested because they were out
to break the country. These two instances apart, the proportion of
Muslims among the total arrested under TADA was only 4.5 per cent.
But such is the shadow that the falsehoods
circulated at the time cast, that even six years later, and with
thousands more having been killed by terrorists, the provision about
activities aimed at disrupting the sovereignty and territorial
integrity of the country has had to be excluded from the Ordinance.
"But what was the need for an Ordinance? Should the
Government not have first evolved a consensus on the matter?"
Is there never to be a finality? Not even in a
matter relating to the security of the country? Guess since when the
efforts to bring about a consensus on this law have been going on?
Since May 1995. TADA was allowed to lapse because opportunist
politicians looking for issues that would curry favour with the
Muslim vote bank saw an opportunity. That itself was a crime -- an
instrument vital to the security and defence of the country was
sacrificed to the crassest political calculation. Then began the
A Criminal Law Amendment Bill was drafted and
circulated in 1995. It was abandoned. Consultations continued with
all and sundry. The matter was eventually referred to the Law
Commission in 1998. That Commission deliberated on the question for
two years -- giving its report and draft Bill in April 2000.
That draft was considered at meetings of Directors
General and Inspectors General of Police, of Chief Secretaries and
Home Secretaries of state governments. It was considered at the
Chief Ministersí Conference on Internal Security last year. It was
sent to the Human Rights Commission for its observations. It was
sent to the state governments for their comments.
Should the process go on indefinitely? And what are
the prospects of "evolving a consensus" when it has become an
article of faith of everyone who is out of office that his job is to
block everything a Government does? That his job is to block even
what he was doing when he was in office, in fact even what he is
today doing in the states in which he is in office?
The comments that the states sent to the draft Bill
themselves tell the tale. The Congress(I) is opposing the Ordinance.
In fact, when the Law Commissionís draft was circulated, the
(Congress-I) Government of Delhi supported the enactment of the law
in toto. The (Congress-I) Government of Karnataka supported the
enactment of the law in toto.
The (Congress-I) Government of Nagaland supported
the law in toto. The (Congress-I) Government of Madhya Pradesh, the
(Congress-I) Government of Rajasthan, and the (Congress-I)
Government of Maharashtra supported the enactment of the law, they
sent suggestions about specific clauses.
The CPI(M) Governments of Kerala, West Bengal and
Tripura sent their usual "principled" opposition. That Government in
Kerala has gone. The one in West Bengal is trying to cover up its
embarrassment for having finalised its own version of the
Maharashtra Act. The Government of Tripura, after some initial show
of reluctance because of "the partyís stand", has begun using
corresponding provisions from other enactments relating to national
Not just those governments in the states,
representatives of those parties at "the national level" have in
general endorsed the need for a law to deal specifically with
terrorists and their organizations. The leading figure in Parliament
from the CPI(M) went so far as to counsel Government that it should
study what Israel is doing in the matter. One of the most highly
regarded leaders of the Congress(I) in Parliament stated that the
Indian Penal Code is inadequate for combating terrorism, that a
special law is needed, that in fact the draft Bill itself was not
adequate. Nailing the falsehood that is being circulated, he said
that the Bill does not shift the onus of proof on to the accused,
that the provisions only seek to raise a presumption in certain
circumstances. He said that there were many loopholes in the Bill,
and for that reason it should go to the Select Committee or Standing
Committee of the House...
This process has been going on for six years. In
the meanwhile terrorists have continued to maim, kill, blow up,
Fifty-five thousand people killed... that is five
times the number we have lost in the 1962, 1965, 1971 and Kargil
wars. And we are still stalled -- awaiting a consensus before
getting even a law in place to deal with terrorism.
My plea, therefore, is the one opposite to that of
the critics: the Ordinance should be approved at the first
opportunity, and soon thereafter toughened -- the diluted provisions
should be replaced by tougher ones -- closer to those of