An empowered agency can control terrorism (Commentary)

June 1st, 2008 - 1:25 pm ICT by admin  

By N.R. Madhava Menon
How does one characterise the predicament of the country today with terrorist attacks continuing unremittingly? There has been no proper response that is capable of instilling some sense of fear in terrorists and a degree of security for the people. The nation seems unable to act decisively to control the menace on the ground that the constitution would not allow the centre to take on issues relating to law and order or that a stricter law may be misused by state governments.

We are reluctant even to reform the criminal justice system that is the major peacetime instrument available to states to contain violence and threats to security.

In this context, the reactions of the prime minister and the chief justice of India soon after the Jaipur serial blasts give hope of something positive emerging from this predicament. While the former stressed the need for a federal agency to handle certain crimes like terrorism and human trafficking, the latter asked for a comprehensive anti-terror law with adequate powers to deal with the menace at the national level.

Ever since terrorism spread outside Jammu and Kashmir in the 1990s, there has been efforts from the central government to persuade the states to agree to the setting up of a federal criminal investigating agency which will have jurisdiction across the country in respect of selected crimes related to terrorist activities.

States, always suspicious of expanding central powers, resolutely refused to oblige and asked for funds instead, to augment their own capabilities in this regard.

Central intelligence agencies and the Central Bureau of Investigation (CBI) tried to address the problem in a limited way and many states used their services in an ad-hoc and selective manner without much result on the ground.

Meanwhile, the criminal justice system, which almost collapsed in many states with inordinate delay, widespread corruption and enormous arrears of cases, led to a spurt of organized crime including terrorism. Several expert committees have consistently recommended that the government should identify a few crimes like terrorism, drug trafficking and money laundering to be declared federal crimes and set up a central unified agency to put the intelligence together and to investigate such crimes across state and national boundaries.

Finally, on public interest litigation moved by a retired police officer a couple of years ago, the Supreme Court issued directions to all states and the centre not only to introduce a few reforms in police but also to consider the case to set up the federal agency felt essential in the circumstances.

The situation warrants immediate and decisive action on the part of all concerned if the people’s faith in the rule of law and the capacity of the state to provide security are to be restored. A few steps in this direction are listed for consideration.

The time is ripe to evolve a consensus not just on the idea but on a definite legislative proposal. Though the agency is to be managed and financed by the union, it is to be conceived as a joint enterprise of the central and state governments.

The proposed law is to be a comprehensive one on both its substantive and procedural aspects. On the substantive side it must define the offences in which the proposed agency may have jurisdiction to investigate and specify the scope of powers therefor. On the procedural side, it may spell out the structure and powers of an exclusive set of centrally funded institutions - police, prosecutors and courts - and the special procedures for implementation.

Transnational and organised crimes are highly complex operations ever changing with technology and international relations. They require highly sophisticated techniques to gather facts, appreciate intelligence leads and initiate timely action even globally, if necessary. Coordination with a wide range of governmental departments and international agencies is the key to prevent terrorist crimes and to investigate them whenever they happen. This, after all, is the justification for the new central enforcement agency.

The continental system of judicially supervised investigation under which every piece of evidence is assessed by the judge prosecutor before filing it in court has to be suitably adopted if the proceedings have to be fair, quick and efficient. The prosecution has to work in coordination with investigation and both should be accountable for their part of the proceedings. Only by certainty of punishment and expedition in proceedings can the justice system hope to deter terrorist elements. Punishment has to be much more severe in terms of both fine and imprisonment.

Much depends on the integrity, competence and professionalism of the personnel involved in investigation and prosecution. A dedicated team of, say, 1,000 persons to begin with, drawn from among talented engineers, accountants, lawyers, psychologists, police and defence services personnel and civil servants should be selected and trained in anti-terrorism laws and practices and kept in the intelligence and investigation wings of the proposed agency in the rank of police superintendents.

The agency should be asked to provide a five-year plan to contain and eradicate terrorism from Indian soil and a yearly plan working out the strategies proposed, resources required and administrative arrangements recommended.

The government should support the plan once it is approved at the highest level and demand accountability from the agency at the end of each year. At the end of 10 years, the situation may be assessed and states consulted on the desirability or otherwise of continuing with a central agency for the purpose.

It is hoped that people of India long suffering from terrorist violence and proxy wars will not have to continue paying through innocent lives and can now expect their governments, irrespective of party affiliations, to do their primary duty of providing reasonable security to life and property.

(Prof. N.R. Madhava Menon was the chairman of the committee appointed by the government to draft a national policy on criminal justice. He is a member of the commission on centre-state relations and can be reached at profmenon.milat@gmail.com)

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