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The State, Democracy and Anti-Terror Laws in India

The State, Democracy and Anti-Terror Laws in India by Ujjwal Kumar Singh


Anti-Terror Law and ‘Violence of Jurisprudence’

Bikram Jeet Batra

eaders of this journal would be familiar with Ujjwal Kumar Singh’s work on anti-terror legislation and the Prevention of Terrorism Ordinance/ Act (POTO/POTA) in particular. This, his second full-length monograph, has evolv ed from his regular contributions to the EPW over the past few years, and is a fitting follow-up to his previous work, Political Prisoners in India (Oxford University Press, 1998).

An eminently readable work, the book under review is rich in detail, yet incisive in its analysis. It examines the ramifications of the political and procedural aspects of POTA for political processes, institutions and democracy. In doing so, it focuses not only on “law’s words” but also on “law’s deeds and effects” – not only on rights and lives of people but also on legal and political structures and democracy in general. Singh uses Paddy Hillyard’s conception of the “violence of jurisprudence” stressing the false dichotomy between law and violence and illustrating how the various avatars of security legislation in India became “an integral part of the organisation of state violence”.

The justification for promulgation of security laws is often argued in terms of the “dilemma of democracy”, i e, extraordinary situations emerge due to the openness of democracy and extraordinary laws are required to restore the situation to preserve the very functioning of democracy. Singh rightly concludes that this debate has reached a state of impasse. His dissection of the debates around the passing of POTO/POTA as also of the “sleight of hand” in the repeal of POTA and amendment of the Unlawful Activities Prevention Act (UAPA) also show that irrespective of their positions or differences on a parti cular legislation, virtually all the major Indian political parties have supported the consistent move towards the “security-state”.

The State, Democracy and Anti-Terror Laws in India by Ujjwal Kumar Singh; Sage Publications, Delhi, 2007; pp 345, Rs 695.

One of the consequences of the 9/11 attack and resolution 1373 of the UN security council calling for an “international consensus” against terrorism was the passing of anti-terror legislation in a number of countries around the world. Both POTO/ POTA and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT) Act too followed in its wake. The author refers to David Cole’s work on enemy aliens in the US where he points out that most US government measures post-9/11 including the USA PATRIOT Act largely targeted foreign nationals within and outside America and did not severely inconvenience US citizens. In the Indian context however, POTA and other security legislation were largely directed at those within national boundaries. Yet the process of “othering” of the Muslim is as evident in India as in the US when one examines the particular context within which POTA was passed and the stress on the danger of Islamic terrorism. In fact, as Singh points out, the Hindutva vision of national security was a key part of debates around POTA, not seen previously even in Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).

To highlight the politics of communalism and suspicion, that was part of the POTA-package, the book under review discusses the well known Godhra, Akshardham, Haren Pandya cases in Gujarat as also a number cases from Maharashtra in the chapter “POTA and the construction of suspect communities”. Singh observes that almost all the persons charged under POTA in Gujarat were Muslim, with most cases linked to the Sabarmati Express burning in Godhra. In fact, nearly six years after the incident, 87 Muslims charged under POTA in the Sabarmati burning case have not been released on bail, while prosecutions for the death of thousands of Muslims in the massacres post Godhra have been few and far – between, with none even charged under POTA. Security legislation in India has also

been extensively used against non-Muslim “others” – most notably adivasis and peasants – perceived to be Naxalites-Maoists or involved in secessionist movements. Singh’s detailed discussion on the indiscriminate use of POTA in Jharkhand and Sonbhadra (in south-eastern Uttar Pradesh) is extremely useful to support such a claim and his references to reports of civil-rights groups and testimonies from a people’s tribunal offer a richness of detail.

The constant “othering” of Muslims as terrorists and of adivasi/peasant activists as Naxals-Maoists as in the above cases further evidence Singh’s argument that extraordinary laws become a part of the armoury of the state, “congealing in the process the ‘us’ even as the ‘other’ persists as an indispensable constitutive element of a collective political identity”. Further the creation of a virtual permanent state of exception strengthens the normalcy – emergency dialectic, feeding into the official justification of such laws that extraordinary laws are not meant to affect ordinary citizens but are “necessary correctives directed against a clear enemy”. Singh’s reference to Paddy Hillyard’s “bright line of separation” is appropriate and chilling; “the clearer the distinction between ‘us’ and ‘them’ and the greater the perception of threat ‘they’ pose to ‘us’, the greater the scope of powers assumed by the government and tolerated by the public”.

Given this framework, it is easy to see why the arrest under POTA of (Marumalarchi Dravida Munnetra Kazhagam leader and National Democratic Alliance (NDA) ally) Vaiko by the Jayalalithaa government in Tamil Nadu and that of (independent MLA and former member of the BJP government in Uttar Pradesh) Raghuraj Pratap Singh alias Raja Bhaiyya by the Mayawati government led to the formation of a strong review mechanism in POTA. Both these cases, where the distinction between “us” and “them” was blurred are discussed in detail in the book under

december 29, 2007 Economic & Political Weekly


review, and followed by an extremely use-accused may be found innocent under ful analysis of the resultant politicking POTA/TADA charges, often their convic-


around the setting up of the POTA review mechanism, its functioning as well as its various amendments.

Permanence of the Temporary

While the separation between “us” and “them” is constantly being expanded, another even more insidious and dangerous move is towards the permanence of the temporary and normalisation of the extraordinary. This takes place in a number of ways. Measures initially introduced to combat specific extraordinary situations continue for long periods of time till their existence is unquestioned. Singh refers to the extension of TADA (1985 to 1995) that was required every two years but become so routine that only eight members of Parliament were present when the home minister argued for its extension in 1993. Similarly one piece of security legislation gives way to another, with only minor tinkering. In the case of the repeal of POTA and the strengthening of UAPA, a timebound law has been effectively replaced with a permanent legislation.

Another mode of making the temporary permanent are provisions, also found in TADA and POTA, allowing ongoing cases to continue even after repeal of the act, thereby ensure a “life after death” of the legislation. Not only does this apply to ongoing prosecutions but also to persons who could be arrested in an “open” First Information Report (FIR). In fact the TADA trial of one Harnek Singh began after his arrest in late 2006 for his alleged involvement with Devinder Pal Singh Bhullar in the M S Bitta – Youth Congress office blast case. The incident took place in 1993 while Bhullar’s conviction took place in 2001 and was upheld by the Supreme Court in 2002.

The book under review makes an important contribution when it recognises the “complex interlocking system of laws” that takes place between security legislation and other criminal law allowing additional bypassing of procedures and safeguards. For example, once an accused is charged under TADA/POTA, trials took place in special designated courts on all the charges including the regular Indian Penal Code (IPC) ones. Even where the tion under ordinary laws are based on evidence obtained either through confession or interception under the special legislation. Similarly trials of co-accused (who may not even have been charged under such laws) in common-trials in designated courts due to a common charge-sheet too was common. Singh refers to a number of cases including the Parliament attack case and the trial of General Arun Vaidya’s assassins as illustrations. The charging of POTA accused under provisions of the unamended UAPA allowed the ground of “disturbing peace and communal harmony” to be brought in where none existed under POTA. Detailed coverage of such technicalities makes this book a valuable resource for lawyers and scholars alike.

A far more blatant attempt at the process of normalisation of the extraordinary can be seen in the recommendations of reports of committees set up by the home ministry. The most infamous of these, the (Malimath) Committee to Reform the Criminal Justice System (2003) included recommendations to effectively negate the right to silence of the accused; lower the burden of proof to one akin to that in a civil case, amend the evidence act to allow POTA style confession to a police officer as well as interception of communications etc. Another attempt at normalisation was the (Jeevan Reddy) Committee to Review the Armed Forces (Special Powers) Act, (2005) while calling for the act to be repealed recommended that all the essential provisions be added to the UAPA. While none of the above recommendations were accepted, they have been followed by similar recommendations from the second administrative reforms commission as also the (Menon) Committee on Draft National Policy on Criminal Justice. Both reports were released in 2007 after the book under review was published and reiterate the danger highlighted by the author.

‘Federalism’ and the Court

The tussle between states and the centre over the implementation of POTA, also brought out in the discussion on the Vaiko and Raja Bhaiyya cases leads the book to the conclusion that “surreptitiously but

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surely, through legislative amendments, judicial pronouncements and a process of executivisation, POTA figures in centrestate relations as a centralising force”. Both the legislative amendments (the enlargement of the review mechanism in POTA) and the judicial pronouncement (Supreme Court judgment in PUCL vs Union of India (2004) 9 SCC 580) are discussed in detail by the author. In this respect the recent Menon Committee report recommends a “federal/joint sector” in criminal justice including a national legislation on federal crime and a federal agency to enforce it. Similarly in Prakash Singh and Ors vs Union of India ((2006) 8 SCC 1) the Supreme Court has also made references to “terrorism” and “organised crime” as “federal” crimes. However given that both Menon and the Supreme Court see “federal” legislation and agency as being controlled by the centre, it is clear that the surreptitious “quest for hegemonic centralism” is now more blatant, under the banner of efficiency and security.

While procedural exceptions and departures from the regular criminal code in security legislation have received attention elsewhere too, readers will appreciate the author’s careful analysis of the procedural exceptions in POTA. Singh’s meticulous engagement with the issues of punitive pre-trial detention, bail, confession and banning of organisations is commendable as is the weaving in of the relevant case-law and constitutional analysis. The absence of any discussion then of the dangers of adverse inference in the case of an accused refusing to give DNA, blood, saliva samples (section 27) is surprising, particularly given the debates on narcoanalysis and brain-mapping that have emerged in the past few years and the growing threat to the “right to silence” of the accused.

Singh also notes that the judiciary, whenever faced with a challenge to any anti-terror law has upheld its constitutionality. In the People’s Union of Civil Liberties (PUCL) challenge to POTA, the Supreme Court refused to enter into the question of the “need” of such a law citing it to be a “policy matter”. The author argues that while such judgments attribute legality to the various procedural exceptions prescribed in such laws, there are layers within them, “where spaces of substantive liberty are sought to be carved out... Yet, such substantive liberty, which, holds out the promise of weaving rights into legal formalism, based on the assumption that citizens have moral and political rights, the latter to be enforced by and through the courts, remains inadequately realised, precisely because the safeguards are sought to be woven into laws founded on principles of procedural exceptionalism.” Such a conclusion, especially when seen in the context of the ongoing and suggested changes to the criminal justice system towards a “security-state”, does not bode well for citizens concerned with human rights.

A Few Errors

Other than the odd missing case-citation (e g, page 68) and the choice of endnotes over footnotes (possibly the publisher’s call), there can be few complaints with this book. One significant error is what appears to be the author’s reference to the 60 per cent conviction rate of Maharashtra Control of Organised Crime Act 1999 (MCOCA) in Mumbai as “compared to 6 or 7 per cent in criminal cases in other parts of the country”. As per Crime in India, the annual publication of the National Crime Records Bureau, the conviction rate for murder in the past few years ranged from

30.8 per cent (2005) to 34.4 (2004) while the overall IPC conviction rate for the same years was 34.4 and 36.2 respectively. While these are low in themselves, the oft-cited single-digit conviction rates are a dangerous myth, that often lead to calls for dramatic and human rights-unfriendly overhauls of the criminal justice system. Also, the treatment of the AFSPA – a rather perfunctory discussion in a couple of pages virtually at the end, leaves the reader wondering whether it was an after-thought in reaction to events around Manorama’s killing in Manipur. The continued absence of a gendered analysis of anti-terror laws too is disappointing.

None of these complaints however should take away from what is an excellent resource on POTA in particular and antiterror law in general. The strength of this work lies in its weaving of a sound theoretical framework with rich detail, and incisive analysis while yet remaining an accessible text not only for social science scholars or lawyers but also for students and lay-readers. One greedily hopes that such a rigorous examination of UAPA too will follow in the years to come.


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