A National Convention held recently in New Delhi on ‘Politics of Terror’ has brought to focus the need to re-look into provisions of special laws that are currently in use to counter terrorism. When confronted with armed militancy, democracies face what is known as “democratic dilemma”. On the one hand, they have to protect the territorial integrity, sovereignty and security of their people from the arbitrary violence by militants; if they fail, their authority and credibility are undermined. On the other hand, in the process of combating militancy, if they slip into repression and authoritarianism, they end-up alienating the population and lose legitimacy. To maintain the equilibrium, use of legal framework, otherwise called as ‘criminal justice model’, is therefore suggested.

The use of special/security laws is justified on the grounds that the existing criminal laws are not adequate to deal with the militancy that is “well-armed, far more dangerous and modernised”. Since what is at stake is not just law and order but the very existence of state and society, there is a need to have special laws with far higher deterrence value. Introduction of special laws are also justified citing prevailing international environment and obligations as in the case of POTA after 9/11 attack and UN Resolution 1373.
India has long tradition of special/security laws dating back to its pre-independence years. These laws have been enacted, repealed and re-enacted periodically since independence. Such special laws fall under four categories:

1. Exclusive laws against terrorism like POTA.
2. Security forces empowerment laws that give immunity and additional special powers to the security forces like the Armed Forces Special Powers Act.
3. Laws of proscription that criminalises terrorist groups and a range of undesirable activities like the Unlawful Activities Prevention Act (UAPA).
4. Other exclusive laws on control of finances, money laundering, drug-trafficking, cyber warfare and so on.

However, how far these extra-ordinary laws have been successful in preventing, deterring and correcting militants and, in turn, enhance security? The answer is mixed. Some of the main reasons for the ineffectiveness of special laws are as follows:

• Over-reaction to the threat posed and far more drastic measures than necessary. .
• Hasty enactment without giving much room for public debate or judicial scrutiny. .
• Overly broad and ambiguous definitions of terrorism and penal provisions that fail to satisfy the principle of legality.
• Pretrial investigation and detention procedures that infringe upon due process and personal liberty. And the number of cases that finally end in convictions is low. .
• Lack of sufficient oversight mechanisms. .
• Space to settle political scores. .
• Weak witness protection provisions. .
• The provision of the use of special courts attracting undue political interference in the judicial process and maximises potential bias.

Yet, this does not mean that special laws are totally redundant. They serve the purpose if all the above identified issues are addressed. What is required is not “a new law for every new crime” but fewer and effective laws. The guiding principle should be, as William Ewart Gladstone observed, “Good laws make it easier to do right and harder to do wrong.” An ideal legal framework should comprise three elements – prevention, deterrence, and rehabilitation – in right proportion. Presently, Indian special laws are biased towards ‘deterrence’. The proportion depends on the character of the militancy and the environment in which it is taking place. One size does not fit all. The frame work should not fail to take into account human rights concerns. There have to be proper safeguards against any misuse/abuse. To put in simple terms, as Lydia Maria Child observed, “Law is not law, if it violates the principles of eternal justice.” There has to be clear cut definitions of crimes and penal provisions to avoid excessive discretionary powers. Enactment of special laws should not be in haste; for greater awareness and acceptance, the process has to be transparent and should be subject to public debate and judicial scrutiny.

What is also required is political consensus on the issue at two levels: at the national level among all parties and between the Center and its federal units. Special laws should possess review mechanisms and ‘sun-set’ clauses for periodic assessments. “The law must be stable, but it must not stand still.” Reforms in criminal justice system – investigation, prosecution and adjudication – are the need of the hour. Role of civil society is vital in moderating the role of special laws in counter-terrorism. Media, especially, has to understand the aspect of legal framework rightly, avoid sensationalism, educate people, and at the same time support the government of the day in its fight against terrorism.