38
Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
Moreover, large numbers of people were arrested and deprived of their liberty under
this legislation, but few were tried, and even fewer were convicted. The Panel was
informed that out of a total of 77,550 persons arrested under TADA throughout
India, only 8,000 were tried, and only 725 (0.81 %) convicted.55 This low conviction
rate (reported from other jurisdictions also) confirms that many individuals arrested
under counter-terrorist legislation may have had no real connection with terrorism.
The primary purpose of arrest may not have been for the purposes of criminal
investigation, but rather as a method of information-gathering, a de facto form of
administrative detention, or a method of intimidation of a suspect population.
The Panel was told that there is an understandable temptation for law-enforcement
agencies to rely on “special” or simplified procedures in cases not foreseen by those
who originally drafted anti-terrorism laws. The Indian example shows that, arrests in
states like Punjab, Kashmir, Rajasthan, Haryana, Gujarat, Maharashtra, Tamil Nadu,
Assam, Andhra Pradesh and elsewhere were increasingly made under the provisions
of TADA. This happened even when the cases fell more properly within the ambit
of the normal provisions of the Code of Criminal Procedure, or the Indian Penal
Code. The anti-terrorist law was seen as having numerous procedural advantages
in comparison to the normal law; for example, if the authorities wanted to benefit
from more stringent bail provisions, there was a clear incentive to apply the antiterrorism law, rather than the ordinary criminal law provisions.
4.2 Lower safeguards and standards
Counter-terrorism laws have frequently in the past (and still today as will be seen)
reduced legal safeguards relating to arrest, detention, treatment, and trial in order
to provide a supposedly more effective framework to combat terrorism. Historically,
such measures, in particular, the exclusion or limitation of access to courts, have
encouraged prolonged arbitrary and incommunicado detention, and created an
environment prone to abuse. The implementation of such laws in countries including
Turkey, South Africa, and India illustrates the point.
A particularly telling example is that of Sri Lanka, which still faces a long-standing
internal armed conflict with the Liberation Tigers of Tamil Eelam (LTTE or Tamil
Tigers). The Sri Lanka Prevention of Terrorism Act (PTA) was adopted, first as a
temporary measure in 1979, and then as permanent legislation in 1983. The PTA
contains far-reaching powers to detain, arrest, hold incommunicado, and to limit
access to courts. Torture and other gross violations have resulted from the undermining of these important safeguards. One commentator predicted in advance that
55
Ibid., citing statistics by the Union Home Ministry of India.
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