POTA: LESSONS LEARNED FROM INDIA’S ANTI- TERROR ACT
Abstract:
Shortly after the September 11 terrorist attacks in the United States, India passed its own anti-terrorism ordinance, the Prevention of Terrorism Act (POTA), following a terrorist attack on India’s Parliament building in December 2001. As with the USA PATRIOT Act, Indian legislators acted quickly, declaring the Act to be a necessary weapon against terrorism. But POTA, like the USA PATRIOT Act, had detractors, who criticized the law as unnecessary and draconian. Among other potentially dangerous measures, POTA allowed for 180-day detentions without charge, presumptions of guilt, sketchy review procedures, summary trials and trials in absentia. In many ways, POTA was harsher than the USA PATRIOT Act, but then again, so is India’s terrorist threat. In September 2004, a new central government repealed POTA, but other vigorous anti-terror laws are likely to follow. This Note evaluates the most dangerous provisions of POTA, how officials abused those provisions, and what lessons India and the United States can learn from the experience.
Introduction
- The terrorist attacks of September 11, 2001 sent shockwaves of fear and insecurity far beyond the borders of the United States. India in particular had reason to be afraid, and its fear was not merely for the 250 Indian citizens who were trapped in the burning towers of the World Trade Center.1 As a nation already at war with terror, it was clear that the struggle was about to get harder.2 Since gaining independence fifty years ago, India has seen the assassination of its most prominent civil rights leader, a prime minister, a former prime minis[*PG262]ter, and a retired Army chief.3 Moreover, for over ten years, India has been fighting insurgents in Kashmir, including Islamic radicals from Pakistan and Afghanistan.4 As of the fall of 2001, terrorists in Kashmir had killed thousands of civilians, policemen, and Indian soldiers, and violence raged on.5 Add to these concerns the continued separatist violence in India’s northeast, the potential threat of the Tamil Tigers in the south, and the existence of an organized, international crime network distributing weapons and explosives to all of the above, and it is unsurprising that government officials felt compelled to act swiftly and forcefully in the wake of Al Qaeda’s assault on the United States.6
- India’s Union Cabinet issued the Prevention of Terrorism Ordinance (POTO) in October 2001.7 The central government claimed its action was a response to “an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country.”8 The ordinance granted state law enforcement sweeping powers to investigate, detain, and prosecute for a wide range of terrorist-related offenses.9 Most notably, POTO targeted those who allegedly incited, supported, abetted, harbored, concealed, or benefited from the proceeds of terrorism.
- 10To some, POTO bore an ominous resemblance to the notorious Terrorist and Disruptive Activities (Prevention) Act (hereinafter TADA), which lapsed in 1995 after years of abuse.11 Despite some initial criticism, however, events in India soon made POTO an apparent necessity to the ruling coalition and many other legislators.12 On December 13, 2001, Muslim terrorists, allegedly backed by Pakistan, attacked the Indian parliament in a failed attempt to assassinate legislators.13 The [*PG264]Cabinet condemned the attack as targeting “the very heart of our system of governance, on what is the symbol and the keystone of the largest democracy in the world.”14 Three months later, during a rare joint session convened at the Prime Minister’s request, the temporary ordinance became the Prevention of Terrorism Act (POTA)
- After the legislature passed POTA in March of 2002, the Indian media and human rights groups observed and criticized frequent abuses of the law, including hundreds of questionable and prolonged detentions with no formal charges filed.16 The most visible of these involved political figures arrested by rivals in control of state law enforcement machinery.17 Most abuses arising in the form of prolonged detention without charges, however, went unreported, as the targets were often members of disempowered minorities lacking a forum in which to voice the mistreatment.18 Detainees languished in jail for weeks or months while the wheels of India’s overburdened criminal [*PG265]justice system creaked slowly along.19 Despite the existence of special courts to expedite the process, at least in theory, they did little to counter POTA’s permissive stance on such lengthy incarcerations.20 Provisions for oversight were similarly impotent.21 Some of these problems stemmed from the law’s broad text, while others were rooted in its enforcement
- In September 2004, a new central government repealed POTA, but other vigorous anti-terror laws are likely to follow.23 India’s experience under POTA is a cautionary tale from which both Indian and U.S. lawmakers might learn. This Note examines how certain provisions of POTA lent themselves to abuse and suggests ways to avoid similar abuses in future anti-terror laws, wherever they may be written and applied. Part I of this Note describes the tools India used prior to POTA to combat terrorist threats throughout the country. Provisions of POTA that are particularly susceptible to abuse are examined in Part II. Part III focuses on how law enforcement officials and politicians misused or abused POTA during the past two years, particularly with improper arrests, prolonged detentions, and ineffective oversight. Part IV examines how the Indian government can avoid some of POTA’s shortcomings in the future. Finally, Part V considers the lessons the United States can and should draw from India’s experience with POTA.
POTA in Context: Fighting Terror on the Subcontinent
- POTA was only India’s latest tool in combating the continually evolving terrorist threat, which has emerged in several parts of the country since its independence from Great Britain in 1947. One of India’s earliest terrorist experiences is also one of its most notorious: the assassination of Mahatma Gandhi by a Hindu extremist on January 31, 1948.24 Subsequent terrorist attacks involved large and persistent regional groups fighting for secession.25 As a large, multi-ethnic, post-colonial nation still in development, India is particularly vulnerable to violent political movements predicated upon geography, ethnicity, language, and religion
- To preserve public order and national security, India’s Constituent Assembly drafted the Constitution of India to grant explicitly to state and federal legislatures the power to enact laws providing for preventative detention.27 This practice involves incarcerating individuals based upon the suspicion that such individuals may commit a crime in the future.28 Both central and state governments incorporated preventative detention provisions—albeit subject to certain constitutional safeguards—in several pieces of legislation throughout India’s turbulent history. For example, during a decade of gruesome terrorist violence in the State of Punjab, the central government passed the National Security Act (NSA) and TADA, both of which permitted preventative detentions under broadly defined conditions.29 Similarly, in Jammu and Kashmir, the state government passed [*PG267]the Jammu and Kashmir Public Safety Act of 1978 (PSA), which contained equally harsh preventative detention provisions.30 Although several preventative detention laws have since expired, the NSA and PSA remain operative.
- In extreme cases, the Indian government has employed the military to combat terrorism. The Armed Forces (Assam and Manipur) Special Powers Act of 1958 allowed the state governor of Assam and Manipur to declare all or part of the state a “Disturbed Area,” wherein military officers had discretion to kill armed individuals or groups and to conduct searches and arrests without warrants.32 The Indian [*PG268]government later invoked variants of this law in both Punjab and Jammu and Kashmir
- Thus, given its history of turbulence, it is not surprising that India’s latest anti-terror law was more ruthless than its U.S. counterpart.34 POTA was more moderate, however, than India’s prior national security laws.35 It neither involved the military nor provided explicitly for preventative detention, although it did resurrect large portions of TADA.36 Other provisions, however, such as those permitting prolonged detentions with minimal judicial oversight, were virtually as dangerous.
Conclusion
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The United States has been waging war on terrorists since September 11, 2001. India has been waging that war for over fifty years, and has learned a great deal from its successes and failures. No politician since Indira Gandhi has suspended the constitution. After heavy-handed action within Punjab, the Indian military now fights its largest anti-terror battles at the border. TADA’s widespread abuse and unpopularity instructed legislators to include enhanced safeguards in POTA. Abuses persist, however, and the learning must continue. India must continue to refine broad definitions of terrorist offenses and guard against arbitrary detentions motivated by politics, prejudice, or haste. In this regard, the world’s largest democracy and the world’s richest have much in common. India’s lessons are America’s lessons, too. For students of the war on terror, the classroom has no walls.
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The United States has been waging war on terrorists since September 11, 2001. India has been waging that war for over fifty years, and has learned a great deal from its successes and failures. No politician since Indira Gandhi has suspended the constitution. After heavy-handed action within Punjab, the Indian military now fights its largest anti-terror battles at the border. TADA’s widespread abuse and unpopularity instructed legislators to include enhanced safeguards in POTA. Abuses persist, however, and the learning must continue. India must continue to refine broad definitions of terrorist offenses and guard against arbitrary detentions motivated by politics, prejudice, or haste. In this regard, the world’s largest democracy and the world’s richest have much in common. India’s lessons are America’s lessons, too. For students of the war on terror, the classroom has no walls.
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