 news link. I'm Paranjoy Guha Thakurtha and today's topic of discussion is how anti-terror laws are implemented, misused, used and whether these laws, the manner in which they are implemented, they work against particular groups, minorities in particular and whether they curtain civil liberties. I'm very happy to welcome Dr. Shaila Shree Shankar. She's a senior fellow of the Center for Policy Research. She's been studying anti-terror laws for some time now and her book titled Scaling Justice was published in 2009 by the Oxford University Press. Thank you so much, Shaila Shree, for giving us your time. I just went through the paper that you have written and the opening paragraph, I'd like you to elaborate and explain what you mean when you write that terrorism is one of the biggest tests of a democracy because the ability to abide by pre-commitment of governments, states, pre-commitments to fundamental rights because it tests that ability. It induces higher levels of insecurity and greater willingness on the bottom, citizens to allow laws to be enacted, to allow legislatures to enact laws that allow secret trials, surveillance, even torture. And you believe that anti-terror laws often bypass constitutional and procedural safeguards, thereby instituting a kind of a dual or a parallel system of justice. And unlike criminal laws that are punitive in nature, detention under anti-terror laws are preventive, they curtail individual autonomy and that could include tapping phones, reading your email and what is worse, putting you behind bars, merely on suspicion that you make an act that infringes on the security of the state. Could you elaborate on the big picture as far as India is concerned in the manner in which these anti-terror laws are interpreted and implemented? Sure. Yes, so what actually happens is that anti-terror legislation usually enacted it's against secessionists or at the moment it's against these global jihadi groups but what you actually find including this my study and other studies have shown that most of the enforcement and the mistakes that are committed in due process, you know, where people who are put behind bars are put behind bars simply because they happen to be either a religious, ethnic or a political minority, not necessarily because they've done, they've committed an act of terror. So that's something that you find not just in India but elsewhere too. So in scaling justice what I did was I actually looked at how preventive detention laws and TADA cases were implemented in India and what I found was that the judge, and I looked at just the higher judiciary which is the High Court and the Supreme Court and I looked at all the cases between between 1950 and 2005 and what I found was that, you know, judges were actually quite careful. So Indian judges came out quite well in this in this entire study because what the judge, an Indian's higher judiciary judge, he or she is sort of functions like an embedded negotiator. By that what I mean is that the judge is both is a member of the state institution but the judge is also influenced by the political wings, also influenced as a citizen and a member of society and what the judges did was that they made distinctions between those who between the petitioners who did not have separatist ambitions and petitioners who did. So if you were a Kashmir or a Kalasthani separatist you were more likely to be found guilty but if you were not then if you didn't have those aspirations then the judges did not find you guilty. So they were not automatically you're not put behind bars and accused just because you happen to be a Sikh or a Muslim and in fact Indian judges were very very careful when it came to Muslims who did not have separatist ambitions because they they were more likely to rule in those in their favour and they also actually focused on the facts of the case rather than having some kind of prior ideological or religious bias but at the same time the the courts tend to be very non-confrontational with the government because they actually have a very complex and nuanced relationship with the government, with the institutional rules, with politics and with the law so you which is why I call them embedded negotiators. So I think what in the previous cases in the in preventing detention and tada there was less likelihood of the minorities being subjected to any kind of discrimination by the courts but the situation changes with quota. Okay now many would argue that after 2005 and particularly after over the last six or seven years the situation has worsened and deteriorated before I ask you this if I just step back a little bit and you know go a little bit into the background after the attacks on the World Trade Tards in the World Trade Center in New York after 9 11 after the 11th of September 2001 there were 140 countries as you point out in your paper who passed different kinds of anti-terror laws and more often than not these laws were passed without any debate they were draconian. When you look at India, POTA or the Prevention of Terrorism Act was passed by parliament this was the Vajpayee government the Atal Bihari Vajpayee government in March 2002 and then you had the TADA or the Terrorist Activities Destruction Act and then you had the UAPA or the Unlawful Activities Prevention Act which is an act of 1967 but was amended during the the UPA government the United Progressive Alliance government by Manmohan Singh in 2004 and 2008 and what do you see actually after the Narendra Modi government coming to power do you see the way the courts the way the judiciary the high judiciary have been interpreting these anti-terror laws are they really balancing the demands of national security with obligations with democratic obligations to protect the fundamental rights and the fundamental liberties of citizens and can you really today see that you know the constitutional checks on executive power are really in place to ensure democratic accountability? Yeah I mean these are very difficult questions and you know the thing is that I have not actually done any analysis of the UAPA cases so my cases ended with the POTA cases but what I see is that there is a continuing deterioration from the put what's happening in the POTA cases to what's happening in the UAPA cases and what has actually happened under the Narendra Modi government in 2019 was that there was another amendment to UAPA where now you can have individuals being characterized as terrorists and that's what they've done where they've sort of behind bars a number of people who were protesters against the CAA and you know and various other you know and academics who sort of worked on that slight issues and even journalists who've reported from Kashmir so you have a whole bunch of cases where individuals are now being characterized as terrorists but the problem here is that when you have a law that allows you to do something like that and where you have a law where it's not just the you know the notion of who's it what's a terrorist a terrorist should be somebody with an intent to threaten the integrity security or sovereignty of India now that is that was the definition in POTA but and in UAPA but in UAPA what you have is that intent that is likely to threaten so this actually widens the scope and actually includes offenses related to nuclear substances radioactive substances and you and attempts to sort of do you know threaten the state or public functionaries but but the definition itself is a very very nebulous one right so so a lot of people can be put inside this net of a terrorist and it's not just organizations but also individuals now who can be classified as terrorists and once you're classified as a terrorist you can be put you can be incarcerated for up to 180 days and then there's you know and then there's a review committee to set up by the government that is supposed to look at your case so you don't even go to the court for any of these you know to to to be able to sort of access the due process system in India we have procedures according to the law and the problem with something like that is that the procedure in this case the legal procedure in this case is that the government committee is now going to look at whether somebody is a terrorist or not and whether they were likely to threaten so I think the civil liberties organizations and all of us as citizens have to be very watchful of something like this because one day they come for one person and just and and there have been all these accusations that if you speak out against a particular policy then you are seen as threatening the security of the state but surely as citizens I think we are allowed to speak our mind and that's what a democracy is all about and this these kinds of anti-terror laws threaten freedom of speech and they don't you know they don't allow us to sort of live our lives as full citizens but at the same time I am also you know I also agree that a state has to protect its citizens because protection of the citizens is one of its key commandments so the state itself has a very difficult task of being of having to balance protecting the citizen without sort of subduing or silencing dissent and most and and with these kinds of laws it's not very successful it may protect the citizen but it also silences dissent that is the problem yeah you pointed out that instead of targeting secessionist groups global jihadi groups the brunt of the enforcement and and the attendant mistakes that are taking place have been borne by religious minorities ethnic minorities and political minorities you have also pointed out that judges are not really free of majoritarian prejudices they don't really act without fear or free of power you have pointed out that there are a disproportionate number of muslims for instance who've been charged with terrorism and imprisoned while in trial and the propensity of the courts to align with the government of the day the state and what we've seen recently the police action against students of Jawaharlal Meru University those who are protesting in Shaheen Bagh those who are protesting in northeastern Delhi the manner in which the police has been acting against those who are venting their their disagreement with laws like the citizenship amendment act we see police action against such people and as you have yourself pointed out what is a terrorist act this the definition is so big who is who is abetting a terrorist act the abetment to a terrorist act that too is very nebulous and big maybe you can add to what i've said yeah i i would actually say that you know that if you were to compare say the tada and preventing detention cases with quota cases what you find is that in quota cases i'm not talking about ua pa cases because i don't have the data on that but in quota cases muslims were about 14.2 percent or so of the population according to the 2011 census they comprise almost 40 percent of the accused in the quota cases and in about 65 percent of the cases with muslim accused what the prosecution has done is is it's framed it as a terror case and over 80 percent of these cases were classified as islamic terror now what you find is that the minute the prosecution frames a case as a terror case as islamic terror the judges are are going to give the benefit of doubt to the state because as i said one of the primary commandments of the state is to protect the citizen so the judges do tend to give more leeway to the state when cases are framed in this way and the worrying thing is that in both in quota and now also i'm sure in ua pa if one were to do the research on on those cases the framing of the case is going to be that this is islamic terror and that's why the judges will tend to favor the state it's not that the judges are anti muslim because in fact when i when you when you look at all the cases that the higher judiciary has ruled on they have been very very careful with muslim minorities and they are not anti muslim but it's the way the cases are framed that where it's about terror where the judge as a citizen becomes much more and as as a member of the state as a state institution becomes much more wary and is willing to give the benefit of doubt so i want to say that there is no anti muslim bias on the part of the judge in my dataset i have not found it so i don't think but would you go along when you look at an administration when you look at a central government which believes in sort of hindu nationalism that's the uh that's the position of the bhakti dhanta party that's the position of the rashtriya swamseva sangh which though it calls itself a social organization when you consider that to be an ideological the pair the ideological parent of the bjb they have a certain agenda uh and and a certain amount of what you might describe as islamophobia is all pervasive i mean i'm not being i think i'm not being unique or alone when i say this and and and the way in which the judiciary has been reacting and because as you say it is more often than not going to be on the side of the government on the side of the state therefore as i said and as you've written a disproportionately large number of muslims are being charged with terrorism they're being imprisoned often without trial and and and the propensity of the courts is to go along with the administration yeah and and so but the thing is that i but in my analysis when you looked at say the bjb was also in power you know as part of the as the head of the nda coalition and what i found was that the judges were not ideologically influenced by in vitva ideology when they were uh coming when they were giving their judgments what changed their mind in in the cases that i was looking at is after 2001 the 9 11 attacks it was a crisis caused by the threat to the security of the state not an ideological inclination on the part of the judge that made them become more pro-state in their rulings so i think it's important to make that distinction and but at the same time i think when you have um you know a majority government because at that time it wasn't a majority government but now you have a majority government a government for the majority in parliament which also uh is uh has this as you said the in vitva ideology and has a particular um uh non-preference for for a particular minority you are going to find that it's going to be much more difficult i think for judges to remain uh untarred by that brush it's not it's going to be much more difficult particularly because also you have uh post retirement appointments of judges that's right that's what i wanted to ask you because that's what you've alluded to after their retirement judges have given appointments we have the case of a former chief justice of india now a member of the rajasabha judges have been appointed governors and not just heading criminals so that all of it according to you has complicated i would say compromise the capacity of the judiciary to create a zone of autonomy and impartiality from the political realm of the state yeah to elaborate on this yes i agree with you that it is compromised and that and this compromising or this this sort of undercutting of the judiciary has been going on for years and years so it's not a new phenomena but i think uh it is because indra gandhi too uh had shown a complete willingness to use executive power to silence or uh silence judges or transferred through transfers and other and and superstition uh when she was in power right so it was a single party majority government in that time similarly uh you know this current government also i think seems to be willing to do these things uh but and so the as i said the judges are very it's an embattled institution and it's one of these institutions where people still have faith in that institution as compared to say the police the army of course people continue to have faith the judiciary i think the faith has been coming down and they've been very surveys on that and the police of course it's gone away completely and so i think it's and they're in a very very difficult position and it's going to be um i mean as as you pointed out too that you know it's going to be actually we at the moment i don't have the data but we need to test whether the ideology of the party in power will actually matter because it didn't matter earlier but now that it's a it's a majority government in power um and it's a hindu to our government will it actually matter in when um in these sorts of cases particularly when the cases are considered to be a national security threat uh will that then make it even worse for the muslim minority now with the pota cases you find that it is doing that so i i i unfortunately i think that particular trend will probably be seen in the uapa cases too and now that individuals can be now branded as terrorists that is an even more um worrying um um worrying matter for all of us um in terms of our civil liberties um and in terms of how minorities are treated in this country you know you you talked a little bit about how courts allow for non-compliance with the requirements of judicial custody uh ostensibly it's a very urgent matter because now what is urgent you know this is the whole issue i mean the notion of urgency is itself very nebulous and ambiguous so uh maybe you can comment a little uh about this aspect of the working of our judiciary sure uh so again in these pota cases uh what's happened is that you find actually that um you know the way in which the not in very many cases in a few cases in pota in pota but again i think this is a pattern which i think will probably continue in uapa cases when people do the analysis um what you find is that there is a propensity to allow more cases um to come under uh threat to the security of the state uh you know in tada cases actually only um about 65 percent of the cases were not threats to the security in the state that's what the judges said but in pota cases 60 percent of the cases are the judges agree are threats about threats to the security in the state and with uapa we're going to continue that we may see an increase in the number of those signs of cases now that actually dilutes the protection of civil liberties and it also in some instances the court has allowed um for not compliance with the requirement for judicial custody when the government says oh that it's a very urgent matter so you know um we we can't really put them in judicial custody we will have to take them away somewhere and do what and um you know and the court has allowed that and that is even more terrifying because that literally removes every possible um uh safeguard that a person may have when they are um arrested under these laws under under anti-terrorism uh shall we see i'd like you to make your sort of closing remarks and conclude our conversation many argue that draconian laws like the uapa really have no place in today's day and age uh it's like the colonial era law and tradition that it's about time these were scrapped these were written off the statute books what are your views yeah i think i would agree with that i think our big problem is we have all the laws under the sun we can you know we just with our criminal laws we can do the state can do a lot of things but our problem is that the police itself is also an embattled institution so you're not going to so you need to find evidence you need to go and collect evidence right so what you actually find is that they don't have enough um enough um manpower and resources to be able to do all of that and so when evidence collection itself is a huge issue uh you are not going to um um you're going to end up with a situation where you may you would prefer to have an anti-terror law but you don't have to have all these strict strict sort of boundaries that are around criminal laws um you know because in in anti-terror laws you're actually given you meaning the the police and the state are given much more leeway so they would that's why they prefer anti-terror laws to criminal laws even though India has such a huge um a web of criminal laws set up by the colonial state which didn't really need these anti-terror laws they use the criminal laws to do all the things that they they did with um nationalists and you know calling them terrorists and they used criminal laws for all of that so we don't actually need that but I think the problem is that because the police and is is so understaffed under resourced and doesn't have the the wherewithal to go around collecting the evidence if people the state finds it easier to have these kinds of laws which give less um which give them more leeway and to to arrest people on suspicion um and you know sometimes they write something and sometimes they're wrong and but the thing is that even if they're wrong in one instance it is the loss it's a loss for an innocent life and I think each life counts um and I think that's where I think all of us as citizens come from is um you know every life is important and you cannot um you cannot dismiss one life in the interests of many which is usually the argument used in a use for anti-terror laws. Thank you so much thank you Shailesh for speaking with uh with me and on behalf of the viewers of Newsclick once again let me thank you very much for giving us your time and do keep watching music