by RVS Mani
Some of the immediate initiatives announced by the new Home Minister were: The government notified the Unlawful Activities (Prevention) Amendment Act, 2008 and the National Investigation Agency Act, 2008 on 31.12.2008 to reinforce the legal and punitive provisions of law to combat terrorism by amending the Unlawful Activities (Prevention) Act, 1967.
The last amendment to the UAP Act had been in September 2004 through an ordinance, later ratified in November 2004 as replacement to the POTA (Prevention of Terrorist Activities) law of the previous regime (the A B Vajpayee government).
Chidambaram publicised introduction of more stringent sections of the Act as legislative measures to counter terror. Till the period preceding the 2008 Mumbai attacks, the UPA’s position on any amendment to the UAPA was ‘not acceptable’, in spite of several international agencies like the CTED suggesting such amendments.
The Counter-Terrorism Executive Directorate (CTED) of the UN Security Council had visited India in November 2006. The officers of the CTED, after meeting with officers of various ministries and organisations including the MHA, had prepared a report, inter alia, covering various aspects of India’s institutional, legal, practical application and capabilities regarding counterterrorism. Some of the suggestions made by the CTED were:
Comprehensive counter-terrorism law
Recruitment by terrorist groups should be specifically criminalised under UAPA.
Section 40 of the UAPA should apply to unlisted terrorist organisations as well. At present, section 40 applies to ‘terrorist organisations’ and section 2 (m) of UAPA defines ‘terrorist organisation’ as an organisation listed in the schedule or an organisation operating under the same name as an organisation so listed.
It is also recommended that section 40 should also apply for individual terrorist.
Section 17 of UAPA should also criminalise provision of funds.
UAPA as enacted in 2004 provided for action against individuals raising fund for a terrorist organisation. ‘Terrorist organisation’ was defined under Section 2(m). The CTED said that this section should also be extended to raising of fund for any terrorist organisation, whether declared under Section 2(m) or not—meaning in case an organisation has been found to be involved in terrorist activities and not yet been defined as per provision of Section 2(m)—which involves detailed procedure including assessment by a tribunal headed by a serving judge of a High Court, with public consultation etc. This is a timeconsuming process.
Further CTED also recommended that raising of funds to be given to a individual terrorist, also should be included under the ambit of this Section.
The CTED, in its report, had also recommended that, ‘India should ensure that counter-terrorism cases are handled within a reasonable time frame, by judges who specialise in this field’. It is felt that this can, perhaps, be taken care of by bringing in a provision under UAPA, to try such cases only by a special courts/ fast track courts, the CTED said. It suggested, India should:
Criminalise the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts (para 1 (b) of UN Security Council Resolution 1373).
The incorporation of para 1 (c) and 1 (d) of U.N. Security Council Resolution 1373 may also be considered.
Copy of UN Security Council Resolution 1373 is enclosed.
Funds are described as ‘assets of every kind, whether tangible or intangible, movable or immovable, however, acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit’.
The same definition may be used for defining ‘property’. The above definition of ‘fund’ is based on the definition of ‘fund’ as provided by the International Convention for Suppression of Financing of Terrorism, the use of this definition is enshrined in the Essential Criteria of Special Recommendation-II of the Financial Action Task Force.
Chidambaram’s second initiative was the National Investigation Agency Act.
Let us get it right. The National Investigation Agency was not a new idea. The Supreme Court had on 21.9.2006 directed setting up of a Federal Agency to investigate offences having ramifications across various States, as well as across boundaries of the country in the Prakash Singh versus Union of India case. There had been several committees like the Malimath Committee, the Madhav Menon Committee etc. which had recommended setting up of such an agency. The Eighth Report of the Second Administrative Reforms Commission had inter alia recommended setting up of such an agency.
However, prior to the new Home Minister taking over, the then uninterested Home Minister, Shivraj Patil, was never favourably disposed to the idea. He held a series of meetings with several dignitaries after receipt of the Eighth Report of the Second Administrative Reforms Commission as well as pursuant to the Supreme Court Order, finding ways and means not to accept the recommendations on such an agency.
A government Affidavit before the Supreme Court in Prakash Singh Versus Union of India case is:
It is submitted that the Union of India continued to make various efforts to expedite the process of consultation with the State Governments. However, as only few States had responded and the period of 12 weeks was to expire on 10th July 2007, an application for further extension of time of 12 weeks was filed to finalise views of the Union Government. It is submitted that despite persistent follow up, a number of States were still to give their views and hence an application for further extension of time of 12 weeks was filed on 4th October 2007 to finalise the views of the Union Government. In deference to the order of this Hon’ble Court, the Union Government has been steadfastly pursuing the matter with the State Governments, so as to obtain their views at the earliest. Towards this end, the Ministry of Home Affairs has sought the views of all States and Union Territories and has also, inter alia, endorsed copies of views furnished by the NHRC, Soli Sorabjee Committee and the BPR&D, to all the States and Union Territories.
It is further submitted that the subject of ‘Central Law Enforcement Agency/Federal Investigation Agency’ was taken up for detailed and intensive discussion in the meeting of the Parliamentary Consultative Committee for the Ministry of Home Affairs, in its meeting held on November 29, 2007. It is also submitted that this subject matter was also discussed in the meeting with the Chief Ministers on Internal Security held on December 20, 2007. Following this, further communications have also been addressed to all the State Governments by the Union Home Secretary.
It is respectfully submitted that the subject involves important legal and constitutional issues and implementational intricacies. Therefore, apart from the need for examination and consideration of these aspects in consultation with the concerned Ministries/agencies, it is, inter alia, also necessary to develop a consensus with the State Governments. All efforts in this direction are being made, but it has not been possible to arrive at a conclusive view in the matter. Therefore, further time would be required by the Union of India to be able to submit its views on the issue outlined in paragraphs 32 and 33 of the order dated September 22, 2006 passed by the Hon’ble Court.
Safe passage of two Security Bills
The new Home Minister took it upon himself to get the two relevant Bills passed in Parliament and these were the proposed amendments to the Unlawful Activities (Prevention) Amendment Bill and the National Investigation Agency Bill. Working continuously for three days, MHA officials and Law Ministry officials brought a proposal before the Cabinet by 5th December 2008 and it was cleared by the Cabinet within days.
No more requests from the Minister of Defence’s office seeking more time. The then Defence Minister, A K Antony, had the habit of seeking more time for framing his ministries’ views—like when CCS app
roval was sought to the approach to Indian position in the Home Secretary Level Talks in 2008.
In so far as legislative exercises are concerned, after approval by the Cabinet, there is an elaborate exercise by the government itself. The piloting ministry/ies—which were MHA in this case and Law Ministry (involving its Department of Legal Affairs and Legislative Department), involved in iterating the contents of the Bills—ensure to the last detail that the policy of the government is in real terms translated into the Bills. During this period, I and my seniors had lost touch with the essential bodily requirement called sleep.
The Bills were introduced in Parliament in the second week of December in 2008. The introduction of the Bills was very close to the seventh anniversary of the attack on Parliament and on the 13th, the Bills were sent to the President of India, Pratibha Patil, seeking her permission to lay these two Bills before the Houses, as mandated by Constitution Article 117 (3) for the NIA Bill. I remember these dates particularly clearly because on 13th December 2001, I was working on deputation with the Lok Sabha Secretariat and was inside the Parliament House at that time. This is only a small detail. But through the process of drafting of the Bills as well as its consideration by the Cabinet, its introduction in the Lok Sabha, I felt a sense of poetic justice being rendered to me personally. I did not realise that this sense of inner elation was not to last for long.
In order to get the Bills ready to be presented to Parliament, an enormous effort as well as elaborate procedural requirements coupled with drafting of replies to questions in both the Houses, answering notices which were received in the Internal Security Division, preparing reports on the progress in respect of investigation and other activities related to 26/11 which triggered this, was needed. We had little time for our families; I did not even look at my son’s face, he had come home for his winter vacations, which had been advanced due to some cyclonic disturbances in Chennai in the last week of November 2008.
We had little time to follow up on the responses/reports from several agencies during this period. Five or six Public Interest Litigations were filed in the Bombay High Court to which the government had to file its affidavits by 17th or 18th December 2008. Appreciating the volume of work, the Home Secretary instructed my senior, the Director (IS), to attend to these litigations (although the gentleman was no less busy) and also requested Gopal Subramaniam, the Additional Solicitor General, to appear in these cases. The Director (IS) and Gopal Subramaniam appeared before the Bombay High Court on the appointed date.
Concurrently, the Home Minister also initiated several purportedly ‘strengthening measures’ which included the strengthening of the coast through the Coastal Security Scheme in which the Central government offered assistance to set up coastal police stations in the coastal States, Desert policing to meet the unique demands of the desert terrain, Mega City policing, raising of new battalions in Central Paramilitary Forces, Amendment to the CISF Act to enable private establishments to engage CISF deployment on commercial terms, intelligence strengthening mechanisms, NATGRID, NCTC etc. This included revitalising some of the existing measures and recalibrating some ongoing measures and introducing some new steps.
Extract of affidavit filed on behalf of the Union of India in Bombay High Court in a PIL in February 2009:
National Security Guard:
The National Security Guard (hereinafter referred to as ‘NSG’) is a very effective counter terrorist force of our country. Therefore, various steps have been initiated to remove logistical weaknesses in mobilising and deploying NSG. Moreover, a decision has been taken to locate NSG units in a few regional hubs (like Bangalore, Chennai, Kolkata, Mumbai etc.) in the first instance, and also to draw upon the Commando Units of the Armed Forces to create more regional hubs. Further, in order to strengthen the capabilities of the States, Indian Reserve Battalions are being raised in most of the States with financial assistance from the answering Respondent. The Central Government has authorised that two Coys. of each such battalion may be raised as Special Commando Units for which additional assistance will be provided for training equipment, etc. In addition it has also been decided to set up 20 Counter Insurgency and Anti-Terrorism Schools in different parts of the country for training Commando Units of the State Police. Thus, the answering Respondent submits that these measures are in fact a step towards strengthening of the response mechanism as a part of a comprehensive crisis management plan to deal with the acts of terror and other security breaches, disaster etc. Further, the Ministry of Civil Aviation has issued a Notification dated 22nd January 2009 under the provisions of the Aircraft Act, 1934 empowering an authorised officer to requisition an aircraft in the interest of public safety from an operator registered in India. Such an officer shall not be below the rank of Joint Secretary to the Government of India. Besides this, the Director General of National Security Guards has also been authorised vide Notification dated 23.1.2009 to do the same. This step has been taken to enable National Security Guards to get an aircraft at a short notice for moving its commandos for antiterrorist operations anywhere in the country.
Coastal Security:
India has a coastline of 7,516.6 kilometers running through 13 States, namely, Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, Orissa and West Bengal and the Union Territories of Daman and Diu, Pondicherry, Lakshadweep and Andaman and Nicobar Islands (hereinafter referred to as ‘Coastal States/Union Territories’).
In order to ensure coastal security, steps are being undertaken for effective implementation of the ‘Coastal Security Scheme’. The Coastal Security Scheme of the Ministry of Home Affairs is a scheme to assist 9 coastal States and 4 Union Territories in strengthening their infrastructure for coastal patrolling and surveillance.
This Scheme was formulated and approved by the answering Respondent in the year 2005 and has been under implementation, with a budgetary allocation of Rs400 crore for non-recurring expenditure and Rs151 crores over a period of five years for recurring expenditure (such as fuel, repair and maintenance of boats and training of manpower) for the entire period of five years.
It is stated and submitted that a decision has been taken to review the above Scheme and to integrate it into a larger security system.
Further, it has also been decided that a Coastal Command would be created for overall supervision and coordination of maritime and coastal security with a mandate to secure the country’s coastline.
It is stated and submitted that the answering Respondent is considering standardisation of issuance of identity cards to all fishermen and sea-faring personnel by implementing an effective system of mandatory registration of all types of fishing boats by the coastal States/Union Territories and also by optimal use of technology (operational details are not being disclosed). on these boats for effective monitoring and regulation of their movements.
Port Security:
In relation to this aspect, the answering Respondent states and submits that decisions have been taken that interceptor boats would be provided at each Port, and a Marine Commando Unit would be placed there. Besides these measures, it has also been decided that Bomb Detection and Special Squads would also be placed at these Ports and identity cards would be issued to the staff and workers at the Ports. Further, it is stated and submitted that the possibility of carrying out customs and immigration facilities at the anchorage are being explored.
Operation SWAN (Joint Coastal Patrolling of Gujarat and Maharashtra Coast):
(i) In the year 1993, a three-tier surveillance mechanism
for Gujarat and Maharashtra was introduced. The surveillance mechanism involved intensive surveillance of high seas, surveillance in territorial waters and patrolling in shallow waters along the shore. The surveillance on high seas is carried out by Navy and Coast Guard and patrolling of territorial waters is done by Coast Guard with Coast Guard vessels and aerial surveillance by Coast Guard aircrafts. A close coastal patrolling is done by deploying trawlers hired by Governments of Gu
jarat and Maharashtra and manned by personnel from Navy, Customs and Police.
(ii) In the year 2005-2006, a scheme was formulated to provide assistance to Coast Guard by the Ministry of Home Affairs postulating procurement of 15 interceptor boats and setting up of three Coast Guard Stations (2 in Maharashtra and 1 in Gujarat) with an estimated budged of Rs342.6 crores, in order to make available speed boats for surveillance instead of trawlers as referred above. In fact, the process of construction of interceptor boats has been undertaken on a priority basis and land for Coast Guard Stations at Dhanu, Muru, Janjira and Beraval has been finalised.
City Surveillance:
The answering Respondent states and submits that it is necessary that stricter norms are put in place for allowing foreigners to enter the State. For the said purpose, various entry points namely, the airports, the docks, the toll borders etc. should tighten their screening process. However, it is pertinent to note that the legal framework governing this issue is contained in the Passport (Entry to India) Act, 1920, Foreigners Act, 1946 and Registration of Foreigners Act, 1949. In terms of the Passport (Entry to India) Act, 1920, the foreigners coming to India are required to get visas from Indian Missions. The power to prohibit, regulate or restrict the entry of foreigners into India or their departure therefrom or their presence or continued presence therein is vested with the Central Government under Section 3 of Foreigners Act, 1946. Section 3(2)(c) of the Foreigners Act, 1946 empowers the Central Government to issue orders providing that the foreigner ‘shall not remain in India or in any other prescribed area therein’. Further, in terms of Section 3(2)(e) of the Foreigners Act, 1946 read with para 11(2) of the Foreigners Order, 1948, Central Government has the powers to issue orders requiring the foreigner to reside in a particular place and imposing restrictions on his movements. These powers of the Central Government have been delegated to all the State Governments & UT Administrations vide Notification SO No.590 dated 19th April 1958. The State Governments/ UT Administrations have full powers to deport any foreign national under the delegated powers. The detection and deportation of illegally staying foreign nationals in India is an ongoing process. The Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1992 mandate that certain category of foreigners whose intended stay in India is more than 180 days, or those who require registration as per their visa authorization, are to get themselves registered with the Registration Officer within a period of 14 days from the date of arrival. However, Afghan nationals are required to get themselves registered within 7 days and Pakistan nationals within 24 hours of their arrival. In addition, the institutional framework for discharging the sovereign function of immigration comprises of 76 immigration check posts (ICPs) in the country of which 24 are airport ICPs, 20 sea port ICPs and 32 land ICPs. Modernisation of 33 land ICPs which regulates 98.5% of the passenger traffic in phase I has already been initiated and substantial progress has been made in installation of hardware and software to facilitate the above modernization which includes – upgradation of computer systems, installation of passport reading machines, upgradation of Central Foreign Bureau, and foreign regional registration offices to facilitate data sharing for expeditious and prompt action by the immigration authorities, implementation of Advanced Passengers Automation System at 6 international airports, namely, Delhi, Mumbai, Chennai, Bangalore, Hyderabad and Cochin to effectively reduce immigration clearance time and enhance the security screening of passengers, 1800 additional posts have been sanctioned to strengthen the manpower to compliment the Bureau of Immigration to achieve the aforesaid task. Besides this, networking of the ICPs has also been planned Besides this, networking of the ICPs has also been planned 2010. In order to further improve the effectiveness of the immigration system, the existing initiative of modernization/ upgradation of infrastructure and equipments has been integrated into Mission Mode Project (MMP) and a Detailed Project Report (DPR) for the MMP – ‘Immigration, Visa and ‘Foreigners Registration and Tracking’ (FRT) is under preparation. The MMP would provide an integrated framework for visa, immigration, and FRT processes under this project with focus on core values of security, facilitation and enablement. This MMP would also comprehensively address issues related to illegal immigration through legitimate entry routes like person travelling with invalid documents, overstay of foreigners, misuse of visa, etc.