[*PG261]POTA: LESSONS LEARNED FROM INDIA’S ANTI-TERROR ACT

Chris Gagné*

Abstract:  Shortly after the September 11 terrorist attacks in the United States, India passed its own anti-terrorism ordinance, the Prevention of Terrorism Act (POTA), following a terrorist attack on India’s Parliament building in December 2001. As with the USA PATRIOT Act, Indian legislators acted quickly, declaring the Act to be a necessary weapon against terrorism. But POTA, like the USA PATRIOT Act, had detractors, who criticized the law as unnecessary and draconian. Among other potentially dangerous measures, POTA allowed for 180-day detentions without charge, presumptions of guilt, sketchy review procedures, summary trials and trials in absentia. In many ways, POTA was harsher than the USA PATRIOT Act, but then again, so is India’s terrorist threat. In September 2004, a new central government repealed POTA, but other vigorous anti-terror laws are likely to follow. This Note evaluates the most dangerous provisions of POTA, how officials abused those provisions, and what lessons India and the United States can learn from the experience.

Introduction

The terrorist attacks of September 11, 2001 sent shockwaves of fear and insecurity far beyond the borders of the United States. India in particular had reason to be afraid, and its fear was not merely for the 250 Indian citizens who were trapped in the burning towers of the World Trade Center.1 As a nation already at war with terror, it was clear that the struggle was about to get harder.2 Since gaining independence fifty years ago, India has seen the assassination of its most prominent civil rights leader, a prime minister, a former prime minis[*PG262]ter, and a retired Army chief.3 Moreover, for over ten years, India has been fighting insurgents in Kashmir, including Islamic radicals from Pakistan and Afghanistan.4 As of the fall of 2001, terrorists in Kashmir had killed thousands of civilians, policemen, and Indian soldiers, and violence raged on.5 Add to these concerns the continued separatist violence in India’s northeast, the potential threat of the Tamil Tigers in the south, and the existence of an organized, international crime network distributing weapons and explosives to all of the above, and it is unsurprising that government officials felt compelled to act swiftly and forcefully in the wake of Al Qaeda’s assault on the United States.6

[*PG263] India’s Union Cabinet issued the Prevention of Terrorism Ordinance (POTO) in October 2001.7 The central government claimed its action was a response to “an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country.”8 The ordinance granted state law enforcement sweeping powers to investigate, detain, and prosecute for a wide range of terrorist-related offenses.9 Most notably, POTO targeted those who allegedly incited, supported, abetted, harbored, concealed, or benefited from the proceeds of terrorism.10

To some, POTO bore an ominous resemblance to the notorious Terrorist and Disruptive Activities (Prevention) Act (hereinafter TADA), which lapsed in 1995 after years of abuse.11 Despite some initial criticism, however, events in India soon made POTO an apparent necessity to the ruling coalition and many other legislators.12 On December 13, 2001, Muslim terrorists, allegedly backed by Pakistan, attacked the Indian parliament in a failed attempt to assassinate legislators.13 The [*PG264]Cabinet condemned the attack as targeting “the very heart of our system of governance, on what is the symbol and the keystone of the largest democracy in the world.”14 Three months later, during a rare joint session convened at the Prime Minister’s request, the temporary ordinance became the Prevention of Terrorism Act (POTA).15

After the legislature passed POTA in March of 2002, the Indian media and human rights groups observed and criticized frequent abuses of the law, including hundreds of questionable and prolonged detentions with no formal charges filed.16 The most visible of these involved political figures arrested by rivals in control of state law enforcement machinery.17 Most abuses arising in the form of prolonged detention without charges, however, went unreported, as the targets were often members of disempowered minorities lacking a forum in which to voice the mistreatment.18 Detainees languished in jail for weeks or months while the wheels of India’s overburdened criminal [*PG265]justice system creaked slowly along.19 Despite the existence of special courts to expedite the process, at least in theory, they did little to counter POTA’s permissive stance on such lengthy incarcerations.20 Provisions for oversight were similarly impotent.21 Some of these problems stemmed from the law’s broad text, while others were rooted in its enforcement.22

In September 2004, a new central government repealed POTA, but other vigorous anti-terror laws are likely to follow.23 India’s experience under POTA is a cautionary tale from which both Indian and U.S. lawmakers might learn. This Note examines how certain provisions of POTA lent themselves to abuse and suggests ways to avoid similar abuses in future anti-terror laws, wherever they may be written and applied. Part I of this Note describes the tools India used prior to POTA to combat terrorist threats throughout the country. Provisions of POTA that are particularly susceptible to abuse are examined in Part II. Part III focuses on how law enforcement officials and politicians misused or abused POTA during the past two years, particularly with improper arrests, prolonged detentions, and ineffective oversight. Part IV examines how the Indian government can avoid some of POTA’s shortcomings in the future. Finally, Part V considers the lessons the United States can and should draw from India’s experience with POTA.

[*PG266]I.  POTA in Context: Fighting Terror on the Subcontinent

POTA was only India’s latest tool in combating the continually evolving terrorist threat, which has emerged in several parts of the country since its independence from Great Britain in 1947. One of India’s earliest terrorist experiences is also one of its most notorious: the assassination of Mahatma Gandhi by a Hindu extremist on January 31, 1948.24 Subsequent terrorist attacks involved large and persistent regional groups fighting for secession.25 As a large, multi-ethnic, post-colonial nation still in development, India is particularly vulnerable to violent political movements predicated upon geography, ethnicity, language, and religion.26

To preserve public order and national security, India’s Constituent Assembly drafted the Constitution of India to grant explicitly to state and federal legislatures the power to enact laws providing for preventative detention.27 This practice involves incarcerating individuals based upon the suspicion that such individuals may commit a crime in the future.28 Both central and state governments incorporated preventative detention provisions—albeit subject to certain constitutional safeguards—in several pieces of legislation throughout India’s turbulent history. For example, during a decade of gruesome terrorist violence in the State of Punjab, the central government passed the National Security Act (NSA) and TADA, both of which permitted preventative detentions under broadly defined conditions.29 Similarly, in Jammu and Kashmir, the state government passed [*PG267]the Jammu and Kashmir Public Safety Act of 1978 (PSA), which contained equally harsh preventative detention provisions.30 Although several preventative detention laws have since expired, the NSA and PSA remain operative.31

In extreme cases, the Indian government has employed the military to combat terrorism. The Armed Forces (Assam and Manipur) Special Powers Act of 1958 allowed the state governor of Assam and Manipur to declare all or part of the state a “Disturbed Area,” wherein military officers had discretion to kill armed individuals or groups and to conduct searches and arrests without warrants.32 The Indian [*PG268]government later invoked variants of this law in both Punjab and Jammu and Kashmir.33

Thus, given its history of turbulence, it is not surprising that India’s latest anti-terror law was more ruthless than its U.S. counterpart.34 POTA was more moderate, however, than India’s prior national security laws.35 It neither involved the military nor provided explicitly for preventative detention, although it did resurrect large portions of TADA.36 Other provisions, however, such as those permitting prolonged detentions with minimal judicial oversight, were virtually as dangerous.37

[*PG269]II.  POTA in Print

A.  Broad Definitions of Terrorism

Many of POTA’s flaws stemmed from its broad text.38 While all laws may be susceptible to abuse, anti-terror legislation in particular invites it by placing permissive language in the hands of zealous law enforcement officers.39 The USA PATRIOT Act, like POTA, defines terrorism crimes broadly, but POTA’s definitions are even less precise.40 POTA defined terrorism as any violence “with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people.”41 Moreover, the law imposed a minimum five-year sentence on “[w]hoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act . . . .”42

Particularly troublesome were the words “advocates” and “incites,” for they implicated issues of free speech and political expression.43 The same problems arose under section 21 of POTA, which made it an of[*PG270]fense for one to “invite[] support for a terrorist organization” or “address[] a meeting for the purpose of encouraging support for a terrorist organization . . . .”44 POTA did more, however, than create broad new crimes under the rubric of terrorism.45 Like the PATRIOT Act, POTA defined terrorist acts in generalized terms that encompassed ordinary cases of murder, robbery, theft, and comparable offenses.46 Thus, its violators could have been subject to improperly severe penalties and overzealous law enforcement officials attempting to circumvent constitutionally-mandated procedural safeguards.47

B.  Sweeping Powers of Arrest and Detention

POTA’s broad definitions of terrorist offenses were especially problematic in light of its modified arrest and detention procedures and special terrorism courts.48 Section 49(2) of POTA allowed police to detain a suspect for up to 180 days without a formal charge, far exceeding the limit under ordinary Indian criminal law.49 Although the Indian Constitution requires police to promptly inform a person of the grounds for his or her detention and to provide the “earliest opportunity to make a representation” before a magistrate,50 and Indian case law identifies a speedy trial as “an integral and essential part of the fundamental right to life and liberty enshrined in [the Constitution],”51 POTA managed to dramatically undermine these safeguards against the arbitrary and punitive detention of innocents.52

[*PG271] Stringent bail procedures further frustrated the rights of the accused.53 The POTA court could postpone bail petitions for a year.54 Furthermore, if the prosecutor opposed bail, the court could not release the accused without “grounds for believing that he is not guilty . . . .”55 This provision reversed the presumption of innocence at the bail hearing and effectively granted the prosecutor a veto of the bail application.56 The presumption of guilt extended even further beyond the bail procedures. In effect, POTA mandated a presumption of guilt for those accused of terrorist activities, if the accused unlawfully possessed arms or explosives or if his or her fingerprints were found at the scene of the alleged offense.57

C.  Appeal and Review

POTA did, however, have some safeguards. Either party could appeal a bail ruling or verdict from a Special Court to a bench of two judges of the High Court of the same jurisdiction.58 On appeal, a court could review both issues of fact and law.59 No guidelines existed, however, as to who the reviewing judge would be.60 Even more problematic was the non-reviewability of orders by the Special Court passed at the interlocutory stage.61

The central government initially defended POTA as being safe from abuse because it entrusted only senior law enforcement and judicial functionaries with the most extensive investigative and adjudicative authority.62 Because POTA operated at the state level, however, state [*PG272]governments wielded tremendous power over state law enforcement officials, regardless of their seniority.63

In a cursory attempt to check this power, legislators provided for a central review committee with some oversight authority.64 Although POTA’s text provided for a review committee, an absence of interpretive guidelines led to considerable confusion.65 The government’s initial interpretation limited the provision’s application to the primarily advisory review of certain surveillance procedures and the designation of terrorist groups.66 Only after reports of widespread POTA abuses proliferated throughout India did the central government select certain cases for further review.67 A formal amendment in December 2003 gave the review committee the ability to review prima facie cases and made its decisions binding on POTA courts.68 Still, [*PG273]much ambiguity remained, and the central review committee continued to lack both resources and timelines.69

III.  POTA as Applied

The states that enacted POTA wasted no time in capitalizing on its broad definitions of terrorist offenses and sweeping powers of arrest and detention.70 Warning signs of POTA’s susceptibility to abuse surfaced in the summer of 2002.71 Only four months after its effective date, state law enforcement officers had arrested 250 people nationwide under the Act, and the number was steadily increasing.72 A mere eight months later, , the seven states applying POTA had arrested over 940 people, at least 560 of whom were languishing in jail.73 The law’s application was also erratic, varying from state to state in surprising ways.74

The State of Jharkhand in particular appeared to have detained more people under POTA than even terror-plagued Jammu and Kashmir, which had witnessed some of India’s most violent insurgency for over ten years.75 Jharkhand gained particular notoriety for arresting women, children, and the elderly, even as a High Court in Tamil Nadu decided that police could not arrest juveniles under POTA.76 A [*PG274]year after Home Minister Lal Krishna Advani had assured Parliament that POTA would not be abused, he finally conceded that evidence of the misuse of POTA was “serious enough” to warrant review.77

Although Jharkhand’s application of POTA was unexpected, other states abused the law in more predictable ways.78 Both communalism and political gamesmanship have a long and sordid history in India.79 POTA’s opponents warned that officials would use the law to target minorities and political opponents.80 Their fears were soon realized.81

Misuse of POTA along communal and minority lines was most glaring in Gujarat.82 In Gujarat, police invoked POTA to arrest 123 Muslims allegedly involved in a vicious attack on a train full of Hindu passengers. The government declined, however, to use POTA against [*PG275]Hindus involved in pogroms that killed over 2,000 Muslims.83 Shortly after the pogroms, Gujarat Chief Minister Narendra Modi justified the government’s choice by simply stating that it was unnecessary to invoke POTA against the Hindu rioters.84 The state government characterized the violence as a “spontaneous reaction” to the train attack, despite evidence that the riots had been organized by right-wing Hindu groups.85 Gujarat police later used POTA to arrest Muslims allegedly involved in a post-riot reprisal against a former state official, claiming that investigations had “uncovered a major conspiracy . . . to strike terror in the minds of a particular section of people.”86 POTA’s text and the state’s justifications for prosecuting Muslims under the law supported charges against Hindu groups involved in the riots as well.87 Instead, the State chose to use POTA to protect majoritarian interests.88

All but one of Gujarat’s POTA detainees was Muslim and law enforcement officers appeared to be evading the few existing safeguards intended to protect these detainees from abuse.89 According to Amnesty International, police held people for questioning for days or weeks without access to family members or to counsel, frustrated habeas corpus applications, and threatened to arrest family members under POTA if they petitioned the government.90 Some detainees complained of being tortured into giving confessions, in spite of POTA provisions limiting the admissibility of self-incriminating statements.91 It [*PG276]appears that in Gujarat, some police compounded government prejudice with personal prejudice and improper police work.92

Unfortunately, however, Gujarat was not the only state that targeted Muslim minorities arbitrarily.93 In April 2003, police in Uttar Pradesh arrested two Kashmiri Muslim students for allegedly sympathizing with a Muslim terrorist group.94 Every Kashmiri in an area of the state frequented by students became a suspect in a sweeping investigation.95 Investigators searched school records and school managers kept Kashmiri students under observation.96

Similar to POTA’s arbitrary application along communal and minority lines was its arbitrary use against political opponents in at least three states.97 For example, in Uttar Pradesh, after months of harassment in the form of twenty criminal charges and various raids on their property, Chief Minister Mayawati arrested her longtime political rival and his seventy-three-year-old father under POTA.98 The media and allies of the accused criticized the arrest noisily, but the central government, needing Mayawati’s support in upcoming elections, tacitly approved.99 After defeating Mayawati at the polls, but before being sworn in, her successor, Mulayam Singh Yadav, immediately re[*PG277]leased Mayawati’s rivals.100 The POTA court, however, summarily rescinded his order as arbitrary.101

In March 2002, police in Jammu and Kashmir invoked POTA to detain a political figure sympathetic to the separatist movement.102 A frequent detainee under POTA’s forerunners, Yasin Malik is a prominent figure in a coalition of parties which have long sought independence, or at least autonomy, from the Indian union.103 This time, police alleged that Malik illegally received a large sum of money from Pakistani couriers.104 In July 2002, a merciful POTA court granted Malik bail because of his frail health.105 Undeterred, police rearrested Malik within minutes under Jammu and Kashmir’s Public Safety Act, which permits preventative detentions.106 The police detained Malik for five months before the state’s new coalition government ordered his release.107 The government proclaimed magnanimously that the release reflected “a policy shift. We would re-arrest the militants whom we wanted to confine [in the past] but the new government wants to let them off. That speaks about a new policy.”108 More accurately, Malik’s detention and release speaks about the arbitrary application of POTA and related laws in Jammu and Kashmir.109

The most significant example of political abuse, however, occurred in July of 2002, in the State of Tamil Nadu.110 Chief Minister J. Jayalalitha arrested several members of a rival party for publicly expressing sympathy for the banned LTTE.111 Prominent among those [*PG278]detained was Vaiko, the general secretary of a Tamil nationalist political party known as the Marumalarchi Dravida Munnetra Kazhagam (MDMK).112 With his detention, Vaiko became the first member of Parliament and chief of a registered political party in the country detained under POTA.113 After over four and a half months of incarceration without charge, police finally charged Vaiko, along with eight other MDMK officials, in a 440-page report alleging violations of sections 21(2) and (3) of POTA.114 Vaiko’s challenges to the charges and detention at last prompted the Supreme Court to clarify that a mere expression of sympathy or verbal support would not satisfy section 21.115 Undaunted, Tamil Nadu pressed forward with its case.116

Largely in response to Vaiko’s detention and prosecution, the central government gave POTA’s central review commission the power to issue binding opinions on the validity of a state’s prima facie case.117 Jayalalitha challenged the review committee’s jurisdiction over Vaiko’s case, which was proceeding in court.118 Despite the review committee’s rejection of the challenge, the POTA judge appealed to the Madras High Court.119 Finally, on February 7, 2004, as Vaiko awaited word from the POTA court, the review committee, or the High Court, the POTA court released him on bail after eighteen months of needless detention.120

IV.  Curbing the Abuse

Overzealous law enforcement officers and executive officials could easily abuse anti-terror laws like the USA PATRIOT Act and POTA along communal and political lines.121 Broad statutory [*PG279]definitions and sweeping investigative powers alone make this possible in the climate of fear that persists even years after the terrorist attacks of September 11, 2001.122 Because POTA also curtailed procedural safeguards against arbitrary arrest and detention, and because India is home to numerous minority groups and separatist movements, abuses of the anti-terror law in India were widespread, often painfully visible, and likely to persist.123

[*PG280] Concerns about abuse prompted some of POTA’s critics to dismiss the law altogether.124 In addition to the prevalent abuse of the law, critics argued that it was redundant or ineffective.125 Supporters of POTA, however, contended that at least some of its provisions for enhanced surveillance were necessary to combat the threat.126 Terrorists tend to operate in extraordinary secrecy and witnesses may be too frightened to report to police or testify in court.127 Moreover, India’s overburdened legal system could lead to special terrorist courts lessening jail time for accused terrorists and ordinary criminals alike.128

[*PG281] Because POTA gave police broad, if not indiscriminate, powers of arrest and detention for a variety of ill-defined and constitutionally untested offenses, Indian citizens had far more to fear than infringements upon their privacy.129 The extent of POTA’s abuse proved that fear of prolonged, arbitrary detention was not unfounded or conjectural.130 The Indian government can, however, salvage the most essential pieces of POTA and eliminate those that deny liberty to Indians and legitimacy to the law.

A.  Redefining Terror

An amendment to POTA that would go far in preventing arbitrary arrests and detentions would be one that narrows the definition of terrorism and its related offenses.131 Unfortunately, this is a difficult task.132 The phrase, “One man’s freedom fighter is another man’s terrorist” is more than a cliché; it is a complex reality.133 One scholar observes that the phrase “captures the ambiguity, politicization, moral judgment, and high stakes involved in defining terrorism.”134

A simple definition might be “the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of [*PG282]political change.”135 Although concise, this definition easily enables political bias to affect enforcement and adjudication.136 In contrast, listing specific acts would help to curb such abuses of discretion.137 In this regard, India had done more to delineate terrorist offenses than the United States or the United Kingdom.138 POTA specified the prohibition of violent or destructive acts that involve weapons, explosives, inflammable substances, gases, chemicals and other lethal weapons.139 At the same time, however, POTA undermined any benefits of specificity by following its list with the words “or by any other means whatsoever,” which rendered the definition overbroad and again invited abuse.140

On the other hand, POTA defined the perpetrator’s intent far more explicitly than several other countries.141 Under POTA, a terror[*PG283]ist act required “intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people . . . .”142 However, POTA applied to other crimes involving unlicensed weapons so long as the individual “voluntarily does an act aiding or promoting in any manner the objects of” a terrorist group.143 Despite the prerequisite of voluntariness, the text did not require the intent to aid or promote terrorist objectives.144 It is entirely possible that many violent or destructive crimes will coincide with terrorist objectives, particularly when those crimes generate public unrest.145

Moreover, one criminal offense provision made no mention of intent.146 Section 21 barred an individual from “invit[ing]support for a terrorist organization” or “address[ing] a meeting for the purpose of encouraging support for a terrorist organization . . . .”147 Upon Tamil Nadu’s arrest of MDMK minister Vaiko under this section for allegedly stating in public his support of the banned LTTE, the Supreme Court clarified that the provision did not encompass such actions.148 Specifically, the Court declared that the mere expression of sympathy or verbal support did not satisfy section 21 in the absence of an “intent [to] further[] or encourag[e] terrorist activity or facilitat[e]its commission.”149 Hopefully, the legislature will draft subsequent anti-terror legislation accordingly.150

[*PG284] Delineating terrorist acts with greater specificity and explicitly requiring intent as an element of all terrorist offenses could limit discretion and stave off abuse.151 A comprehensive, yet less malleable, definition of terrorism than that provided in POTA is beyond the scope of this Note.152 Presumably, however, it is not beyond the scope of India’s legislature or those of other nations fighting terrorism.153

B.  Detention Without Charge

Given TADA’s unpopularity, the Indian legislature wisely declined to allow preventative detentions under POTA.154 However, states could use POTA to the same effect, namely by locking individuals away without charge for twice the time period permitted under ordinary criminal laws.155 Without sufficient accountability before the court, it is difficult to determine whether an arrest is preemptive rather than a response to a previous terrorist act.156

[*PG285] Even in India, where lengthier detentions have prevailed in the past, a six-month incarceration without charge is simply too long.157 Such lengthy detentions arguably violate India’s constitutional guarantee to a speedy trial and invite custodial abuses that go undetected by the courts.158 The danger of terrorism only partially justified POTA’s harsh law enforcement procedures.159 Because no compelling reason for doubling the pre-charge detention period existed or had even been offered, the provision was arbitrary.160

The Law Commission Report on India’s 2000 Prevention of Terrorism Bill, which precipitated POTA, acknowledged without comment that the proposed law sought to lengthen the duration of detention permitted under India’s Code of Criminal Procedure.161 The report did mention, however, that the legislature sought to grant the special court discretion to lengthen that period “in case it is not possible to conclude investigation within such extended period.”162 One leading criminal lawyer observed that under POTA, “[t]he investigating agency [was] not under any duress to complete investigations in [ninety] days” as under ordinary criminal law.163 What remains unclear, however, is why time limits placed on investigation of terrorist-related offenses are any more onerous than those placed on ordinary crimes.164

[*PG286] Indeed, POTA’s provisions authorized police to compel evidence, conduct electronic surveillance, and record confessions; allowances that should actually expedite investigations and obviate the need for lengthy detention without charge.165 Perversely, however, police in Gujarat appear to have used the extended detention periods to unlawfully coerce people into confessing instead of conducting fair and diligent police work.166

One common justification for prolonged detention without charge is intelligence gathering.167 Law enforcement officers have a legitimate interest in questioning terror suspects in order to uncover clandestine networks, and prolonged detention could extract confessions or information that suspects might otherwise conceal.168 Nevertheless, the Indian Constitution protects its citizens from self-incrimination and guarantees a speedy trial.169 Even during a declared emergency, wherein the executive is permitted to derogate from fundamental rights, it is unlikely that 180-day interrogations are constitutional.170

[*PG287] Another possible justification for increasing the power of the police to detain without charge is that such powers help police contain and eliminate a particular terrorist group entirely.171 A wide net cast with broad discretion could entrap a terrorist network more quickly than it could replenish its ranks, and thus neutralize its threat altogether.172 According to this scheme, innocent detainees would be sifted out over time, and the infringement on their liberties is justified by the eradication of a serious public danger.173

Countries around the world have invoked the overreach-and-eliminate strategy to justify a host of emergency measures against terrorists, including that of preventative detention.174 History has demonstrated the perils of such a strategy.175 Police are almost certain to detain large numbers of innocent people and success likely would vary greatly across India.176 Although the strategy might be feasible in Punjab, where militant groups are small and geographically contained,177 in Jammu and Kashmir, the regular influx of militants from Pakistan [*PG288]makes laws like POTA largely ineffective. Worse, such laws could further alienate Kashmiris and bolster sympathy for terrorist causes.178

In light of the abuses of POTA and its predecessors, Indian legislators should conform future Indian anti-terror laws more closely to the standard procedures of the Indian Penal Code.179 Specifically, reducing the permissible detention period would encourage police to conduct more careful investigations prior to arresting people under POTA’s successors.180 Though a shorter detention period might not necessarily eliminate arbitrary detention, it would at least limit the duration of the injustice.181

C.  The Review Process

Given POTA’s markedly subjective definitions of terrorism, meaningful review was essential.182 Threat perceptions vary greatly from state to state within India; thus, an effective central review committee [*PG289]was vital to establish some consistency in individual states’ interpretations and applications of the law.183

Although POTA permitted judicial review, the reviewing state courts often suffered from local prejudice.184 POTA mentioned the possibility of both state and central review committees but offered few details as to their formation or use.185 After a year of allegations of abuse, the central government finally established a review committee to hear individual POTA cases.186 At first, the committee functioned in a purely advisory capacity.187 As Tamil Nadu’s case against MDMK minister Vaiko commenced, the center amended POTA to provide for enhanced judicial review.188

In December of 2003, by an overwhelming majority, India’s legislature amended POTA with an ordinance designed to expand the scope [*PG290]of judicial review.189 The new ordinance gave review commissions the authority to review the prima facie case of an “aggrieved person” and issue orders binding on the state government and police.190 Though the amendment was an improvement on the purely advisory capacity of the initial review committee because it enhanced the power of judicial review, the central review committee remained largely impotent, as it could not initiate an investigation absent an initial complaint and lacked clearly delineated investigatory powers.191 Moreover, the review committee’s resources were limited, and it operated under no regulated time-frame.192 Without sufficient autonomy, resources, or guidelines, the committee was an illusory safeguard.193

Given the review committee’s limitations, only the grievances of those persons with political connections to the central government were likely to be heard.194 Without MDMK leader Vaiko’s political ties to the central government, the review committee may never have taken up his case.  Further, even with political pressure from the center and a favorable advisory opinion by the review committee, Tamil Nadu detained Vaiko for over four months without charge, and an additional fourteen months after charging him before granting bail.195

If Tamil Nadu had the power to detain a politically-connected person for eighteen months under spurious charges centering on public speech, indigent children in the more turbulent State of Jharkhand would almost certainly fare worse.196 A major limitation of any central review process is that its sheer ability to address abuses of minorities and the indigent is constrained.197 This problem is simply an unfortu[*PG291]nate reality in a developing country with a population of over one billion.198 Nevertheless, given adequate resources and open channels of communication with the media and India’s many human rights groups, a central review committee could have, at a minimum, investigated a few of the more egregious cases.199

Even with sufficient resources, a central review committee is not a panacea. On the one hand, it may work well to prevent politically motivated arrests if the accused is an ally of the central government, as was the case in Tamil Nadu.200 On the other hand, if, as in Uttar Pradesh or Gujarat, the political climate at the center favors the accuser, political and communal abuses would likely continue until the review committee was afforded real autonomy.201 Nevertheless, some review is better than none at all, especially when national security laws threaten the inherent checks and balances of coalition politics.202 If left completely unsupervised, a particular majority party would be able to detain or silence the opposition and impose harsher and more [*PG292]permanent laws than POTA.203 Tyranny, even at the state level, is a significant threat to liberty and India’s burgeoning democracy.204

V.  Lessons for the United States

India’s experiences under POTA are instructive for the United States and other countries fighting the war on terror. POTA first reflects the fact that overbroad definitions of terrorism are dangerous.205 Definitions of terrorism that may include acts of speech and association, but do not include an explicit requirement of intent could encompass innocent activity and curtail the political process.206 No reasonable government would support an extremist who “advocates,” “incites,” or “invites support for” terrorists. Including those terms in anti-terrorism legislation, however, gives zealots within the government a loaded weapon against those with whom they simply disagree.207 Similarly, President George W. Bush’s declaration “[e]ither you are with us, or you are with the terrorists” bodes ominously for political protesters in the United States whose activities might fall within the PATRIOT Act’s broad definition of terrorism.208

Second, POTA’s application provides insight into the hazards that anti-terror laws pose when implemented. India’s experience suggests that taking legislative shortcuts around safeguards designed to prevent arbitrary arrest and detention often result in precisely those arbitrary practices.209 Although this outcome may initially seem like a reasonable, [*PG293]if not inevitable, compromise, when police arrest, detain, and abuse hundreds of minorities on unsubstantiated grounds, respect for the rule of law suffers.210

Due in part to the decentralization of the anti-terror laws’ enforcement in India, law enforcement officers have applied such laws differently from state to state.211 When governments do not apply anti-terror laws even-handedly or consistently, they invite harsh criticism, if not violent reprisals.212 For example, in Gujarat, only Muslims were subject to POTA, a practice that likely helped violence to endure beyond the 2002 pogroms.213 In other Indian states, such as Kashmir, Jarkhand, or Tamil Nadu, prolonged repression under anti-terror laws has led to similar cycles of continually escalating violence.214

India’s practice of subjecting ethnic and political minorities to unfair treatment out of a fear of terrorism is not an isolated one. Like India, the United States previously has detained thousands of innocent people in the name of national security.215 During the 1920 Palmer Raids, the United States arrested 6,000 suspected Communist radicals in response to a series of terrorist bombings.216 Thirty years later, dur[*PG294]ing World War II, the U.S. military interned over 100,000 people of Japanese ancestry in California, fearing that a subset were disloyal.217

After September 11, the United States has again taken extreme measures to assuage its fears. Although the USA PATRIOT Act does not alter criminal procedure in the manner of POTA, it grants immigration officials broad powers to detain non-U.S. citizens.218 As of 2003, the government had detained almost 1,200 men of mostly Arab and South Asian descent for immigration infractions, and refused to disclose any information about them, including their names.219 Many were held for weeks or months without charge.220

More harassment of noncitizens and ethnic minorities may be forthcoming. In July 2003, the House of Representatives proposed the [*PG295]Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act.221 The Act would grant to state and local law enforcement officials the ability to investigate, detain, or remove undocumented aliens; states and localities failing to participate would be denied some of their federal funding.222 Supporters claim that the Act will combat terrorism by improving coordination among federal, state, and local officials.223 Critics dispute this assertion and argue that the CLEAR Act is an unfunded mandate that will hamper community policing and encourage racial profiling.224 Furthermore, without proper training or guidance, local law enforcement might misapply complex federal immigration laws and inject local bias into the process.225 India’s experience with POTA illustrates the risks of granting state and local authorities broad authority to enforce laws that are essentially federal in nature.226 In light of India’s experience and the well-reasoned criticism voiced on Capital Hill, Congress should not pass the CLEAR Act.227

Third, India’s experience under POTA demonstrates the need for minimal transparency and review for the protection of those detained under severe and secretive anti-terror laws. Although POTA did not deprive Gujarat detainees of all procedural rights, some law enforcement and judicial officers ignored the few rights that prisoners retained.228 Such deprivations of rights led to India’s realization [*PG296]that an active and empowered central review process is necessary to remedy such injustices.229

In the United States, a court of review for foreign intelligence surveillance activity exists under the PATRIOT Act.230 Some anti-terror activity, however, occurs by executive fiat, and thus lacks legislative supervision or meaningful judicial review.231 For example, the executive branch has suspended unilaterally the due process rights of at least one U.S. citizen seized on U.S. soil.232 In 2002, Secretary of Defense Donald Rumsfeld alleged that Jose Padilla, a.k.a. Abdullah Al Muhajir, planned attacks in the United States and was associated with Al Qaeda.233 Rumsfeld argued that his allegations qualified Padilla as an “enemy combatant” not entitled to ordinary due process rights.234 The government has held Padilla in solitary confinement, without charge or access to counsel for over twenty-one months, and asserts that it has the right to detain Padilla incommunicado indefinitely.235

U.S. policymakers might be inclined to limit the lessons of POTA to India’s peculiar geopolitical context. India admittedly has had a more turbulent history of terrorism and harsher anti-terror laws than the United States.236 Its parliamentary democracy also possesses weaker [*PG297]separation of powers than the U.S. federal government.237 Moreover, India is a developing nation with a population over three times that of the United States but enjoying far fewer resources.238 Despite these differences, however, India and the United States share worrying commonalities in their approaches to terrorism and national security.

India’s experience under POTA and its previous laws should serve as a warning to the United States that it may have embarked on a perilous path toward arbitrary detention and government oppression. Padilla is just one man, but his detention, combined with the severe crackdown on noncitizens within the United States signifies the shifting of U.S. national security policy in a new and dangerous direction.239 Following the events of September 11, law enforcement officials have spied on mosques and engaged in other sorts of racial, ethnic, and religious profiling.240 The United States has detained people out of racial and political prejudice in the past.241 Detaining more Arab Americans, South Asian Americans, or Muslim Americans as enemy combatants may be the next step in the domestic war on terror.242 In the United States, where the executive operates with secrecy and the Arab, South Asian, and Muslim minorities are smaller than those in India, such abuses may go unnoticed.243

[*PG298] The United States need not repeat India’s mistakes. One way to avoid similar problems would be to narrow definitions of terrorism and explicitly require intent in harsh anti-terror laws.244 Legislators must also guard against laws that permit detention without charge.245 Furthermore, Congress and immigration officers should ensure that minor immigration violations do not result in unreasonably long detentions.246 To promote consistency in a climate of widespread fear, only federal officers should have the power to enforce immigration laws, which make it easy to detain noncitizens.247 Finally, federal courts should ensure that the writ of habeas corpus remains a viable check on executive authority, especially in times of war.248

[*PG299]Conclusion

The United States has been waging war on terrorists since September 11, 2001. India has been waging that war for over fifty years, and has learned a great deal from its successes and failures. No politician since Indira Gandhi has suspended the constitution. After heavy-handed action within Punjab, the Indian military now fights its largest anti-terror battles at the border. TADA’s widespread abuse and unpopularity instructed legislators to include enhanced safeguards in POTA. Abuses persist, however, and the learning must continue. India must continue to refine broad definitions of terrorist offenses and guard against arbitrary detentions motivated by politics, prejudice, or haste. In this regard, the world’s largest democracy and the world’s richest have much in common. India’s lessons are America’s lessons, too. For students of the war on terror, the classroom has no walls.

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