Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2004 India's "Patriot Act": POTA and the Impact on Civil Liberties in the World's Largest Democracy Jayanth K. Krishnan Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Comparative and Foreign Law Commons, and the Legislation Commons Recommended Citation Krishnan, Jayanth K., "India's "Patriot Act": POTA and the Impact on Civil Liberties in the World's Largest Democracy" (2004). Articles by Maurer Faculty. 379. https://www.repository.law.indiana.edu/facpub/379 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. India's "PatriotAct": POTA and the Impact on Civil Liberties in the World's Largest Democracy Jayanth K. Krishnan* Introduction Following the September 11th attacks in the United States, President Bush signed into law what has become known as the USA PATRIOT Act.1 Viewed as an important weapon in the fight against terrorism, the PATRIOT Act, according to some, has sought to curb and prevent future terrorist acts by expanding the federal government's powers. 2 Three months after the New York, Washington, D.C., and Pennsylvania attacks, India-the world's * Assistant Professor of Law, William Mitchell College of Law, St. Paul, Minnesota. J.D., Ohio State University; Ph.D., University of Wisconsin-Madison. The author thanks Julia Eckert, Marc Galanter, Clark Cunningham, and Gary Jacobsohn for their insightful comments. Note the title of this piece, India's "PatriotAct" is a term that has been occasionally used by some in the media describing the similarities between India's newest anti-terrorist law and its counterpart just passed in the United States. For a recent newspaper article employing this term, see Dan Morrison, India's 'PatriotAct' Comes Under Scrutiny, CHRISTIAN SCI. MONITOR, Oct. 30, 2003, at 7. 1. Uniting and Strengthening of America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) [hereinafter PATRIOT Act]. 2. Id. See also David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 957 (2002); infra Part III (discussing how the federal governmental power has been enhanced as a result of this act). But there are those who argue that it is an overstatement to claim that the PATRIOT Act has expanded governmental power. See, e.g., Orrin S.Kerr, Internet Surveillance Law After the USA PATRIOT Act, 97 NW. U. L. REV. 607 (2003) (arguing that the PATRIOT Act actually places new regulations on the use of governmental surveillance over the internet). And Kim Lane Scheppelle, a professor at the University of Pennsylvania Law School and someone who has intensely studied the PATRIOT Act, in an open letter to the scholarly "Law and Courts List-Serve," also recently wrote that "much of what the DOJ [Department of Justice] is doing in the war on terrorism is not done under the authority of the PATRIOT Act." Posting of Kim Lane Scheppele, [email protected] to [email protected] (Apr. 10, 2004) (on file with author). Scheppele argues that critics wrongly have summarily labeled much of the government's actions in the post 9-11 era as being done under the PATRIOT Act, when in fact it has been private organizations, with informal governmental assistance, that have been the "more worrisome sources of potential rights violation[s]." Id. Since this Article does not deal with the debate over the uses of the USA PATRIOT Act, I shall not delve further on this point. Law and Inequality [Vol. 22:265 largest democracy and a U.S. proclaimed ally in the war on terrorism-experienced one of its most significant terrorist attacks to date. 3 On December 13, 2001, five Muslim extremists attacked the Indian National Parliament, killing seven people and placing the country into a heightened state of alert. 4 Like its American counterpart, the Indian central government in March 2002, passed the Prevention of Terrorism Act (POTA), to enhance India's ability to crack down on possible terrorist threats. 5 While the academic. literature on the PATRIOT Act is growing, little is known about the extent to which POTA might be affecting civil liberties and civil rights in India. This Article seeks to offer an analysis of POTA. Part 16 discusses the key legislative antecedent to POTA, the Terrorist and Disruptive (Prevention) Activities Act of 1987. 7 Although this particular statute eventually lapsed, it nevertheless had enormous influence on the drafters of POTA. Part 118 offers an account of what led to the emergence of POTA. It outlines the arguments made on behalf of the legislation, and presents the critics' views of POTA. Part III 9 explains how many of POTA's provisions seriously infringe on the civil liberties of Indians, especially in minority communities. Finally, Part IVlO concentrates on how the Indian government has used POTA to prosecute terrorist-classified cases, and how the courts have adjudicated these matters largely in support of POTA. The Article concludes, as do many dismayed rights activists, that few checks have been placed on how the government has exercised its powers under this so-called security- focused, terrorist- prevention statute. 3. News reports on the attack were extensive. See, e.g., Rediff News Serv., The Attack on Parliament (2001), at http://www.rediff.com/news/pat2001.htm (last visited Feb. 24, 2004); Rahul Bedi, 12 Die on Raid on Indian Parliament, TELEGRAPH (U.K.), Dec. 14, 2001, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/12/14/windl4.xml; The Indian national newspaper, The Hindu, dedicated its December 14, 2001, edition to the attacks. HINDU, Dec. 14, 2001, available at http://www.hinduonnet.com/thehindu/2001/12/14. 4. See supra note 3. 5. Prevention of Terrorism Act, 89 A.I.R. 2002 ACTS [hereinafter POTA]. 6. See infra notes 12-24. 7. Terrorist and Disruptive Activities (Prevention) Act, 74 A.I.R. 1987 ACTS [hereinafter TADA]. 8. See infra notes 25-55. 9. See infra notes 56-155. 10. See infra notes 156-239. 2004] INDIA'S PATRIOT ACT I. An Important Predecessor to POTA-TADA POTA did not emerge onto the Indian political landscape in a statutory vacuum. Some fifteen years prior to its enactment, the Indian Parliament passed the Terrorist and Disruptive Activities (Prevention) Act, or TADA.12 TADA came into law partly as a response to the death of Prime Minister Indira Gandhi, who was assassinated by militant Sikh extremists in 1984.13 Indira's son, Rajiv Gandhi, who succeeded his mother as prime minister, also supported the new anti-terrorist legislation because various militant groups in the east, north, and south of India were engaging in on-going guerrilla-style attacks against the Indian state.14 TADA's provisions expanded the central government's powers 1 5 to deal with individuals that the statute classified as terrorists. For example, at a judge's discretion, trials of accused terrorists could be held in camera.16 Furthermore, section 21 of the Act presumed that suspected terrorists were guilty and needed to 11. TADA, 74 A.I.R. 1987 ACTS. 12. Id. Anti-terrorist legislation, though, dates back to the days of the British Raj. In 1919 Britain enacted the Rowlatt Act, which permitted the Raj to summarily jail those who were deemed as dissenters, antagonists, or agitators within India. See Mahatma Gandhi and the Story of Indian Independence, at http://library.thinkquest.org/26523/mainfiles/lifehistorylO.htm?tqskipl--1 (last visited Mar. 6, 2004). That same year, Mohandas Gandhi led a mass wave of protests to denounce this law as being in violation of due process and fundamental human rights. Id. In post-independence times, the Indian government has enacted other anti-terrorist laws. Consider, for example, the Armed Forces (Jammu and Kashmir) Special Powers Act, 77 A.I.R. 1990 ACTS; the National Security (Second Amendment) Act, 72 A.I.R. 1984 ACTS; the National Security Act, 68 A.I.R. 1980 ACTS; the Unlawful Activities (Prevention) Act, 54 A.I.R. 1967 ACTS; and the Armed Forces (Assam and Manipur) Special Powers Act, 45 A.I.R. 1958 ACTS. 13. See R. Shunmugasundaram, Can POTA Achieve what TADA could not? HINDU, Jan. 2, 2002, available at http://www.hindu.com/thehindu/op/2002/01/01/stories/2002010100150100.htm (discussing the original reasons behind the development of TADA including the assassination of Indira Gandhi). 14. See K. Balagopal, Law Commission's View of Terrorism, ECON. & POL. WKLY., June 17, 2000, at 2114; TADA- Hard Law for Soft State, ECON. & POL. WKLY., Mar. 25, 2000, at 1066 (containing an edited version of People's Union of Democratic Rights Report) [hereinafter Hard Law]. See generally SANJIB BARUAH, INDIA AGAINST ITSELF: AsSAM AND THE POLITICS OF NATIONALITY (1999) (discussing the historical origins of TADA and how it was designed to defend against the mafias and gangs that filled the country). 15. See TADA, 74 A.I.R. 1987 ACTS, Part II, § 3 (providing for the punishment of terrorist acts). This statute's definition is similar to that used by the POTA statute, which will be discussed below. See infra notes 60-74 and accompanying text. 16. TADA, 74 A.I.R. 1987 ACTS, Part III, §§ 16(1)-(3); see also id. at Part III, §§ 19(1)-(3) (discussing the appeals process for suspected terrorists).