Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be amoral loss against those who preach hatred and violence. Retributive justice has not given rich dividends in curbing terrorism.

In spite of having extremely repressive anti-terror laws such as TADA, POTA and UAPA, terrorism continues to thrive and no noticeable decline has been noticed in terror-linked violence. The stringent clauses in these laws include defining terrorism in the widest possible terms, harsh punishment extending to life sentence or death, reversal of presumption of innocence, presumption of guilt in case weapons are recovered from an accused person, admissibility of confessionals made to police officers, longer durations of detention, denial of bail etc.

These violations of cardinal principles of classical criminal jurisprudence are generally justified as the consequences attached to these heinous terror crimes are grave and therefore it becomes essential for the state to enact such repressive laws in the name of so called‘ security of the state’. But the state cannot and must not assume arbitrary powers in the name of terrorism and there should always be delicate balancing with the rights of the accused.

The apex court had come down heavily on the Gujarat police in the in famous Akshara Dham temple terror attack case and indicted the state&’s justice system including High Court, and criticized recording of confession, reading of document written in Urdu and seizure of an unstained piece of paper from the pocket of the slain terrorist. In the rest of the country in many terror-related cases, accused were finally not found guilty but the lives of these innocent acquitted people have been permanently destroyed. The strategy to devise new laws, procedures and institutions to tackle the menace of terrorism has not brought down terrorism but has indeed resulted in increased restriction on individual liberty and freedom to varying forms and degrees.

Societal injustices are the root cause of terrorism. It is the settled strategy of all terror groups to push a civilized state into a terror state. Once the state indulges in terrorism, these terror groups go to the disappointed, frustrated and unemployed youth and convince them that the state has been unfair to them and they must fight against these injustices.

This indoctrination succeeds because of perception of injustice at the hands of the state. One who agrees to become a human bomb must be convinced in his heart that he is sacrificing his life for a noble and just cause.

The Gujarat Assembly recently passed the controversial Control of Terrorism and Organized Crime (GCTOC) Bill on the Maharashtra model which has received Presidential approval during BJP rule at the Centre. But then Gujarat bill was indeed blocked by the Vajpayee government itself. Thereafter President Pratibha Patil twice returned this bill. For obvious reasons, the Gujarat government is hopeful that the Centre will not come in its way this time.

The bill has retained all its controversial provisions. According to Section 16 of the Bill, accused&’s statement before a police officer, not below the rank of Superintendent of Police, will be treated as evidence. Only two of the five-member apex court bench that constitutionally validated TADA, ruled a similar section as invalid, unconstitutional and against the basic principles of a fair criminal trial. The issue of admissibility of confessions made before the police has been examined by the Law Commission in several reports and not surprisingly none of them has spoken against this rule. The Law Commission in its 48threport favored the admissibility of confessions made before the police. The 69th report revisited this issue and reaffirmed the suggestion.

Then 158th report recommended that confessions made before the police should not be admissible under ordinary laws but could be admissible in case of grave offences like terrorism. The Malimat Committee set up during the NDA regime recommended that Section25 of the Indian Evidence Act should be amended to render confessions made before a police officer admissible as evidence.

The stipulation that the “the court must be satisfied that the accused has not committed any crime” is way too stringent and cannot be reasonably expected to be practiced by the courts in letter and spirit, because if the court does that, it would in most cases deny bail to the accused. Non-grant of bail leads to unnecessarily long periods of detention for the accused, further depriving him of his personal liberty. India has the dubious distinction of having a very high rate of incarceration.

Another controversial provision is section 20 (4), which reads “no accused person in this Act shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose the application, the special court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail.”

The bill also mandates that “no suit, prosecution or other legal proceeding” can be filed against any officer of the State for anything that is carried out under this Act, as long as it is done “in good faith.”The provision of “good faith” has always been controversial as this gives a lot of discretion to the state officials and is routinely misused. Similarly Section 20(2) (b) of the Bill says stipulated time to complete probe and file the charge sheet can be as long as 180 days and thus increases it from the current90-day outer limit. The bill also makes admissible evidence collected “through the interception of wire, electronic or oral communication.”

The bill also puts the onus of proving innocence on the accused. The legislation could also be invoked in the future directly against the working class, as almost any form of resistance to the state could be labeled a threat to the “unity, integrity, security or sovereignty” of India.

This legislation is yet another instance of going against long standing juridical principles of the criminal justice system. It is the need of the hour that while enacting any law there must be a happy wedding of traditional principles of criminal jurisprudence with the problem of terrorism so that these principles are incorporated to the maximum extent.

This is because individual liberty is at stake. All the procedural safeguards to the accused have been seriously undermined in the new bill. The criminal justice system has to be tilted in favor of the accused a sun like in a civil matter there is no parity between the parties. Here one party is the mighty state and on the other side is the accused, one little man who is pitted against the might of the state.

This little man or accused has been given substantive and procedural safeguards so that the state does not take undue advantage of its position. With the Gujarat bill, the kind of limitations that the state needs to comply with have become minimum. The vital distinction between ‘accused’ and ‘convict’ would also disappear and to be an ‘accused’ would be as bad as to be a ‘convict’.

As a matter of fact an effective counter-terrorism legislation would be one that takes into consideration not only interests of the prosecution but also human rights and civil liberties in general and the rights of the accused in particular. Unwarranted curtailment of individual liberty in the name of counter-terrorism by the state is the greatest tragedy of our times.

The best approach to a criminal justice system is the ‘minimalistic approach’ i.e. limit the scope of application of criminal law to the minimum possible level. This means that the purpose of criminal law is not to accuse everyone in society of a crime but to ensure that the number of people in a society behind bars should be kept at the minimum.

If this is not followed, criminality would become respectable. Finally rule of law and fair procedure are constitutionally protected concepts and any deviation from them would be unconstitutional. The Gujarat law indeed terrorizes. It impinges on ideals of rule of law.

Civil libertarians are hopeful of Prime Minister Narendra Modi intervening in this matter as Modi has shown statesmanship of the highest order in referring juvenile justice bill to the group of ministers in spite of demands of a tougher law for juveniles by the apex court.

Similarly the Prime Minister has iterated his commitment to freedom of religion and fundamental liberties, both in India as well as in France. One is confident that as a visionary leader he understands that the best response to combat terrorism need not necessarily be a mirror image of the act of terrorism itself.