Prevention of Terrorism Bill, 2000: NHRC’s Opinion

The National Human Rights Commission has taken the view that there is no need for the enactment of a law based on the Draft Prevention of Terrorism Bill, 2000. This unanimous view was taken at a meeting of the Full Commission held on 11 July 2000 and elaborated in a detailed Opinion issued on 14 July 2000.

In that Opinion, the Commission noted that the Law Commission of India had submitted the Draft Bill together with its 173rd Report to the Government of India and that the Bill was likely to be moved in the next Session of Parliament for its enactment as a law to deal with terrorism in the country.

It was in the performance of its statutory responsibility that the Commission had examined the need for enactment of such a law in its meeting held on 11 July, 2000. The matter was considered not strictly from the point of view of the constitutional validity of the proposed new law and its provisions which, if necessary, would be a matter for the courts to decide, but on the need and wisdom of enacting such a law particularly in the light of the earlier experience with the Terrorist and Disruptive Activities (Prevention) Act, the adequacies of the existing laws and the provisions of international covenants to which India is a party. Even though absence of need to enact the law and its un-wisdom were not grounds of constitutional invalidity, yet they were relevant for the performance of the functions of the Commission and of the Parliament.

Issues before the Commission:

In light of the above the Commission considered the following issues

Is there any need for the enactment of the new law?
If yes, then the kind of new law which needs to be enacted
As the considered unanimous opinion of the Commission was that there was no need to enact the new law, the need did not arise for it to answer the other question.

Reasons:

Existing laws:

The Draft Prevention of Terrorism Bill, 2000 sets out the kind of actions which are proposed to be dealt with under the Bill. These actions, the Commission has pointed out, are substantially taken care of under the existing laws such as the Indian Penal Code, 1860; Arms Act, 1959; Explosives Act; Explosives Substantives Act; Armed Forces (Special) Powers Act, 1958; Unlawful Activities (Prevention) Act, 1967; and the Suppression of Unlawful Activities against the Safety of Civil Aviation Act, 1982. In addition, there are at present at least four Preventive Detention Acts enacted by the Union of India: the National Security Act, 1980; Prevention of Black Marketeering and Maintenance of Supplies Act, 1980; Prevention of Narcotic Drugs and Psychotropic Substances Act, 1988; and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Further, there are a number of Preventive Detention Acts enacted by various States. The Commission was of the view that between these legal measures, all the "terrorist acts" contemplated under the new Bill appeared to be covered. If necessary, the Indian Penal Code or any provisions of any other Act could be amended to cover any specific action which at present might not be covered. The punishments provided under these Acts could also be increased where necessary. But there was no need to have a separate new Bill for the purpose of creating new offences.

Avowed justification for the new law:

The Commission considered the avowed justification for the new law; namely

that it was difficult to secure convictions under the criminal justice system;
and that trials were delayed and hence there was need for special courts.
The Commission observed in this connection, that the main problem facing the country today related to proper investigation of crimes, efficient prosecution of criminal trials and delays in adjudication and punishment in the Courts. However, these problems could not be solved by enacting laws that do away with the legal safeguards which are designed to prevent innocent persons from being prosecuted and punished. Nor can the problem be solved by providing for a different and more drastic procedure for prosecution of certain crimes, for making confessions before the police admissible in evidence contrary to the provisions to the Evidence Act, for raising the presumption of guilt as set out in the Bill, and creating special Courts. These provisions would seriously affect human rights guaranteed under the Constitution and violate basic principles of criminal jurisprudence as internationally understood.



Remedy:

To strengthen the criminal justice system, the Commission suggested three stages at which remedial measures needed to be taken urgently by the Government:

The stage of investigation: this should be carried out speedily and efficiently. The investigation machinery must be independent, well trained and free from political or any other kind of interference.
The stage of prosecution: there must be efficient prosecution on behalf of the State of all crimes related to terrorism. It is essential that experienced Public Prosecutors be appointed in sufficient numbers to prosecute crimes involving terrorism.
The stage of trial: there was great need to end the delays in criminal courts which were undermining the criminal justice system. One of the main causes of delay is shortage of courts. It is necessary to create many more Sessions Courts with proper infrastructure and to appoint many more competent Sessions Judges. Obviously, in States where terrorism was rampant, additional courts would have to be set up as early as possible. There could also be no doubt that cases dealing with acts of terrorism must be given preference for early disposal (preferably within six months).
The Commission felt that if there were a large number of acquittals today, it was not for lack of any laws but for lack of proper utilisation of these laws, lack of proper investigation and prosecution, and lack of adequate number of courts to try the offences. Unless these root problems were redressed, adopting draconian laws would only lead to their grave misuse, as had been the case with the previous TADA law.

The Commission also pointed out that the Bill would hinder, rather than enhance, the effective implementation of treaties and other international instruments on human rights and would not be in consonance with many provisions of the International Covenant on Civil and Political Rights (ICCPR) to which India is a State Party. The Commission observed, however, that one area where suitable law needs to be enacted related to the financing of terrorism. It suggested that Government frame appropriate legislation in this connection in the light of the International Convention on this subject.

Concluding, the Commission stated that the proposed Bill, if enacted, would have the ill-effect of providing unintentionally a strong weapon capable of gross misuse and violation of human rights which must be avoided particularly in view of the experience of the misuse in the recent past of TADA and earlier of MISA of the emergency days. The Commission thus recommended that a new law based on the Draft Prevention of Terrorism Bill, 2000 be not enacted. It asserted that such a course is consistent with our country’s determination to combat and triumph over terrorism in a manner also consistent with the promotion and protection of human rights.

Why the Commission took up the issue:

The functions of the Commission specified in Section 12 of the Protection of Human Rights Act, 1993, particularly those in clauses (d), (f) and (j) are relevant in this context. These functions call upon the Commission, inter-alia, to review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; study treaties and other international instruments on human rights and make recommendations for their effective implementation; and such other functions as it may consider necessary for the promotion of human rights. It is, therefore, an essential function of the Commission to formulate its opinion on the desirability and need of enacting such a stringent law and to give public expression to it for consideration by the Parliament and all those involved in the making of the laws so that due weight is given to the Commission’s opinion in the performance of this exercise.

It may be recalled that in discharge of this statutory obligation, the Commission had earlier opposed the continuance of the TADA Act and a letter dated 20 February, 1995 to this effect was sent by the then Chairperson to all Members of Parliament and was also included in the Annual Report of the Commission for the Year 1994-1995 as Annexure-I. The earlier opinion of the Commission is relevant at this juncture not merely as the historical background but also because of its relevance in the formation of the opinion of the Commission in the present context.

(For the detailed `Opinion’ please visit nhrc.nic.in)