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April 5, 2013

Fighting terror

India must evolve a modern and robust legal framework to address the scourge of terrorism.

India must revisit antiquated assumptions on terrorism that form the basis of its current framework to handle and respond to incidents of terror. There are significant Centre-State issues that must first be addressed if we are to get serious about combating terrorism in India.  Indeed, after two decades of being victimised by terror more frequently than almost any other country, we have failed to evolve appropriate mechanisms to deal with this menace.  The responses to the bomb blasts in Hyderabad in February 2013 indicate that we continue to be ill-prepared to deal with terror. It is essential therefore that India’s parties across the political spectrum agree on a framework to confront this existential threat to the country.

State governments —particularly, but not exclusively those ruled by opposition parties — have continued to challenge attempts made by the UPA to evolve mechanisms at the Centre to combat terrorism on the grounds that they upset the balance of power between the Centre and States. Centre-State relations are complicated to the extent that the Seventh Schedule of the Constitution grants exclusive powers for legislation over issues pertaining to law and order to the States.

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However, the issue at hand is not so much that law and order is a “state subject” as it is in the implicit assumption that terrorism is a “law and order” problem.  Given the nature of the threat that India has faced over the past two decades, this assumption has proven inadequate and has negatively impacted our ability to respond to instances of terror in the country.  Terrorism is not merely a law and order problem in the same way that for example, street crime or theft are. Terrorist acts are an assault on the security and integrity of India. They are thus a threat to India’s national security to which our response must be commensurate with the gravity of the threat.

As a national security problem, the scourge of terrorism demands a different set of actors and responses than those currently available.  However, despite being repeatedly victimised by terrorism for over two decades, we have failed to fully conceptualise the nature of the threat that confronts us and develop an appropriate legal framework to address the challenge.

The Unlawful Activities (Prevention) Amendment Act 2008, enacted after the terrorist attacks in Mumbai in 2008, defines terrorism as an act “with intent to threaten or likely to threaten the unity, integrity, security and sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.” This definition, favouring an interpretation of terrorism as a threat to national security, diverges significantly from existing practices which largely envision terrorism as a law or order issue.

A major encumbrance in limiting the responsibility for terrorism to individual States under the domain of law and order is that the infrastructure that supports terrorism in India spans across multiple States, and in most instances, countries.  All major terror attacks in India, from the 1993 serial blasts in Mumbai to the attacks on major Indian cities in 2008 culminating in the carnage in Mumbai point to sources of inspiration, sponsorship and support in our neighbourhood (Pakistan, Bangladesh and Nepal) and the Gulf states (Saudi Arabia, UAE).  Indian citizens have also been victims of Pakistan-sponsored attacks in Afghanistan.  States, however, are limited by their capacity and jurisdiction to effectively deal with instances of terrorism with inter-State or international ramifications.

Other countries have sought to overcome such challenges over jurisdiction by developing a framework of “federal crimes.” In the United States, for example, the United States Code (Title 18) defines specific federal crimes that can be responded to by federal enforcement agencies such as the FBI or the US Secret Service.

Although the nature of our federal structure varies from that of the US, India must consider the creation of an appropriate framework for crimes relating to the nation’s security and integrity.  This framework ought to include a list of crimes against the state (such as terrorism), with primary jurisdiction being granted to the Centre and concurrent jurisdiction being granted to the affected States.  This will provide a legal framework within which enforcement agencies can be created at the central level to take cognisance of, respond to, and investigate actual or potential instances of terror with the assistance of State agencies, thereby reducing the inevitable political wrangling between the Centre and States that currently ensues after every national tragedy.

We must also take into account the realities of divisive politics in India and the history of overreach and misuse of governmental agencies by those in power.  A system of checks and balances will be needed to ensure that these agencies do not become instruments for settling political scores.  In any case, it would be impractical for these “federal crimes” to be within the exclusive domain of the Centre.  State intelligence and law enforcement agencies’ familiarity with the local terrain, language, culture and proximity to respond quickly to instances of terror are capabilities that any Central enforcement agency will find hard to replicate.  The key therefore is to leverage the inherent capabilities of State enforcement agencies, take them into confidence and make them stakeholders in the evolution of mechanisms of communication and coordination to combat terror.  The years of mistrust between the Centre and States cannot easily be removed and will require considerable national will and political sagacity to overcome.

Recommendations for a framework on “federal crimes” are not new.  The Padmanabhaiya Committee Report, released in March 2003, put forward recommendations for a “system of Federal Law and Federal Investigating Agency with an all-India Charter” and recommended 11 categories of crimes that could be declared “federal crimes.”  The report further suggested concurrent jurisdiction between a proposed federal enforcement agency and State agencies over 8 categories of crimes (including terrorism, arms and drug trafficking, hijacking and crimes targeting national infrastructure).  Similar recommendations were also made by the Soli Sorabjee Committee on Police Reforms in 2006.  However, these recommendations remain unaddressed nearly a decade after they were made.

An opportunity existed after the Mumbai attacks in 2008 when public mood was in support of bold steps to fundamentally tackle the issue of terrorism.  But instead of revisiting the existing legal framework to tackle terrorism, a bill for the creation of a new anti-terror agency  — the National Investigation Agency (NIA) — was hastily approved in Parliament.  US Embassy cables later made public by WikiLeaks suggest that India’s then home minister Mr P Chidambaram, who introduced the bill in the Lok Sabha, was unsure of the constitutionality of the NIA, given that the concept of federal crimes did not exist in India.  The fact that the bill was passed in both houses of Parliament with little-to-no questioning of its constitutionality raises larger questions about the seriousness with which our elected representatives attend to issues of India’s national security.

Unfortunately, we seem destined to repeat the same mistakes again. Calls for the creation of the National Counter Terrorism Centre (NCTC) were renewed in response to the February 2013 twin bomb blasts in Hyderabad, for which poor Centre-State coordination on intelligence sharing was blamed.  While the NCTC is no doubt essential to India’s ability to fight terror, it is quite possible that it, like the NIA today, will stand on precarious legal grounding if more fundamental questions on the nature of terror and the constitutionality and jurisdiction of pan-India enforcement agencies remain ambiguous and unanswered.

India can ill-afford to continue to respond to each mounting instance of terrorism merely by creating yet another entity in the alphabet-soup of counter-terror agencies in the country.  Terrorism poses an existential threat to the nation and must be dealt with through commensurate assiduity.

Photo: Israel Defense Forces


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