Today’s Indian Express features an op-ed by Kapil Sibal who seeks to respond to the call for reviving POTA, while explaining how the UPA government views the issue of tackling terrorism. Given that Sibal is a Cabinet minister in the current government, the piece also seeks to make political points, and has the flavour that one can expect in such pieces. However, some of the statistics he lists are interesting to the extent that they demonstrate that India was not necessarily better off under the NDA regime when there was both a ‘tough’ anti-terrorism law (POTA) and a tough talking Home Minister (LK Advani).
In the rest of the piece, Sibal focuses on the need for institutional responses beyond enacting anti-terrorism statutes. This seems quite persuasive, even if one may want to hold judgment on the efficacy of the institutional responses he says have been set up by the UPA government. The thrust of Sibal’s argument seems to be in the following lines:
“We need to differentiate between combating terror and dealing with terrorists, which require separate strategies. Dealing with terror requires an institutional response and dealing with terrorists requires a legislative response. This subtle distinction is lost on the BJP.”
This may make for good rhetoric, but I am unsure whether this is based on sound logic or good sense. I will readily confess that the “subtle distinction” is lost on me as well. By itself, ‘combating terror’ doesn’t seem significantly different from “dealing with terrorists”. Sibal’s forced distinction reminded me of the controversies which have surrounded the Bush administration’s use of the phrase, “War on Terror.”
In the latter half of his piece, Sibal explains that in his conceptualization, ‘combating terror’ would require providing and buttressing an institutional framework that focuses on improving cooperation among security and intelligence services, and also invests in the scientific equipment and human resources that will be required to monitor and track activities of those suspected of engaging in acts of terrorism. This only drives home the inadequacy of his semantic distinction, because at least some of the strategies he enumerates will require legislative sanctions in order for them to be developed within existing institutional security and intelligence frameworks.
Sibal’s overall argument is persuasive, and is also in line with global lessons drawn in the seven years that have passed since 9/11: that enacting harsh anti-terrorism laws which engender fear and hostility in Muslim populations, and are sometimes used to persecute them, is counter-productive in the long run.
I agree that the choice of words in drawing the distinction between ‘combating terror’ and ‘dealing with terrorists’ is not exactly elegant, but I do think Sibal is on to something important here. Combating terror is about preventive action – how to stop terror attacks themselves – which requires an administrative response.
He distinguishes this by saying that because criminal deterrent has no effect on terrorists, the criminal justice system can give the terrorists their just deserts (in other words, ‘deal with terrorists’), but cannot itself help prevent further terror attacks.
I think this is a useful way of thinking about terrorism – I pretty much agree that deterrence doesn’t work for most terrorist, who are willing to die for the ’cause’ in the first place. So, the legal system has to satisfy itself with just deserts. Preventing attacks requires better intelligence, better coordination and better policing. Thus the BJP’s insistence on ‘harsh’ criminal laws is not the answer.
Dear Tarunabh,
I guess my difficulty with Sibal is that he infantilizes the position he opposes, which doesn’t necessarily advance the discourse on tackling terrorism, which will require people of varying views to come together.
I don’t think anyone disagrees that preventing terrorism is important. This includes people in the BJP whose views Sibal seeks to counter here. Indeed, the “P” in POTA stands for “Prevention”, and Chapter V of that law sought to provide for the legal basis for at least some of the pre-emptive surveillance and investigatory authority that Sibal is now emphasising. Sibal is being a bit disingenuous in portraying anti-terrorism laws in being solely interested in punishing terrorists. This may have been more true of a law like TADA, but POTA did recognise the twin dimensions he now claims that people in the NDA were ignorant of. Chapter V of POTA was designed to empower the security and intelligence services to bolster their institutional capacities in at least some of the ways that Sibal is now advancing.
As i said, I broadly agree with Sibal’s point (as do you)that we shouldn’t focus on just the punishment aspect in anti-terrorism measures. However, I think the debate should also focus on the kinds of institutional measures that Sibal wants to advance. Some of what he describes appears to implicitly endorse provisions in the USA PATRIOT Act
I want to give Sibal the benefit of doubt here, and will not assume that all those controversial measures will be replicated in India. But even if some of them are, they should be preceded by a debate which seeks to assess the impact of such measures on civil liberties and our constitutional culture. Sibal speaks of “night vision cameras with a range of 5 kms” to be integrated with CCTV networks and powerful satellites. We have to realise the implications of empowering our security and investigative authorities with such measures. Given their track record, and the dismal progress in improving the working of our police and intelligence forces, can we afford to be sanguine about their potential misuse?
And, such measures should first be debated in Parliament, instead of being pushed through administrative regulations. This will allow a healthy public debate on where the boundaries should be drawn between legitimate preventive action and illegitimate incursions into civil liberties. Unlike some pundits, I am not so sanguine about the claim that we should be willing to give up our rights in the face of current threats. For Indians, the threat of terrorism is not a new phenomenon, and we should not forget the grave violations that have been committed throughout our history in the name of consolidating national security.
I would therefore be wary of conceding that the measures that Sibal proposes should be allowed through administrative measures. While the details will have to be implemented administratively, the broad principles which form the basis of such measures (and the increased funding for such efforts) should be introduced by way of legislation, and should be debated within Parliament where the inputs of civil society should also be solicited.
Dear Arun
Just to draw your attention to the second part of his article (if you haven’t seen it already), where he gets into the meat of the issues, and draws useful comparisons between POTA and the Unlawful Activities Act. On the whole, a very protective, and welcome, attitude to civil liberties, I think.
Thanks, Tarunabh, for drawing attention to this. In this piece, though, Sibal is responding more to the argument that harsh laws that seek to work after the event of terrorism are not productive (what he earlier termed ‘dealing with terrorists’). Towards the end, however, he does revisit his theme of ‘combating terrorism’. I found it heartening that he emphasises that even for such pre-emptive strategies, laws – that have been debated in Parliament – will be employed. And, as you note, his call for adherence to “constitutional values” is indeed a promising attitude. We should note, however, that many of these values that Sibal is now emphasising were noticeably absent in earlier anti-terrorism statutes that previous Congress governments put in place. Indeed, several such Congress-mooted laws contained the draconian provisions which Sibal now condemns. India’s record on harsh anti-terrorism laws is dismal, regardless of which party was in charge.
This is nevertheless a positive sign for the future. One hopes that these ideals will be preserved through the negotiations over electoral calculations that will inevitably take place in the next few months leading up to the general elections.