National Investigation Agency Term Paper
I have asked two colleagues who have been working on civil liberties in the war against terror to do an analysis of the Amendment to the Unlawful Activities Prevention Act and the National Investigation Agency Act, and its implications. But in the meanwhile, here is a useful analysis by Rajeev Dhavan where he describes the amendment as a return of POTA and TADA. As if to fulfill Shuddha‘s prophecies, the government according to Dhavan has created a law where everyone is suspect
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India’s Unlawful Activities Prevention Act (UAPA): The Return of POTA & TADA After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state.
India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state. – Rajeev Dhavan by Rajeev Dhavan, 19 December 2008 India‘s attempt to put its own legal house in order is reflected in two Bills — ? The National Investigation Agency (NIA) Act‘ and the amendments to the ? Unlawful Activities Prevention Act (UAPA)‘. Home minister P. Chidambaram‘s Bills bring TADA and POTA back with a bang and innovate a National Investigation Agency (NIA). Hitherto ? olicing‘ was exclusively a ? state subject‘. India‘s CBI could take over investigation and prosecution on (a) court orders or (b) with the consent of the state. The NIA Bill changes that to let the NIA hijack any prosecution or investigation from the state at will. The proposed NIA Bill is constitutionally competent. The Constitution‘s Union List (List 1 Entry8) permits a ? Central Bureau of Investigation?. Criminal procedure for prosecution is in the concurrent (List III, Entry 2).
The NIA will be operationalised only for statutory offences relating to atomic energy, the UAPA, aviation, maritime, navigation, weapons of mass destruction, sedition and such offences, money laundering and counterfeiting. Under POTA and TADA, the massive misuse came from the states to alarm the Supreme Court, now the potential misuse will come from both the states and the Union, which can hijack the case. Political and communal targeting runs through our antiterrorist legislation. Federalism will also be in partial jeopardy.
India is about to create a powerful FBI of its own, whose independence and political vulnerability are not beyond alarm; nor the new style special courts beyond criticism. No review agency is provided. With these caveats the NIA was long overdue. The UAPA Amendment Bill is dangerous. Our examining principle should be: counterterrorism measures should not facilitate, or have the potential, for state terrorism. This is why the UPA launched a wholly new strategy in 2004. TADA or POTA were thrown out and the ordinary law [Criminal Procedure (Cr. P. C)] was brought back.
India‘s ordinary law is tougher than UK and US anti-terror laws. This time the Union‘s shopping list is full. First, the POTA favourites of pretrial imprisonment till 180 days, 30 days police custody, denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis) is back (Sections 43A to 43F). So, also, are the adverse inference provisions — if there is recovery of arms, explosives and other substances, suspected to be involved, including finger prints on them.
Second, the definition of ? terrorist act‘ includes not just radioactive and nuclear material, but anything that may threaten India or overawe or kidnap constitutional and other functionaries listed by the government (Section 53). This list is potentially endless. Third, new offences for organising terrorist training camps or recruiting terrorists attract punishment (Section 18A and 18B). There are salutary provisions against raising funds likely to be for terrorist use (Section 17). All these can be frozen (Section 51A). But safeguards exist except judicial review.
Criminalising intent to aid terrorists and terrorist organisations is extended to aid to terrorist gangs (Section 23). Fourth are the magnum Sections 43A to 43F that modify our Criminal Code. We have already noted the pre-trial custody, denial of bail provisions and adverse inference provisions. To these may be added arrest and search and seizure on suspicion authorised by general or special orders by officers designated by the state and Union governments (Section 43A). The wrath of subjective suspicion will override the entire due process of the Criminal Code (Section 43C).
All offences mentioned in the new legislation will permit arrest without warrant (Section 43D). There is an obligation to disclose any information which a superintendent of police thinks is relevant. Failure may cost up to three years in jail (Section 43F). Journalists, beware. FIFTH, and finally, comes the big lie that all this is just tweaking the UAPA — a phrase misleadingly used by the Congress spokesman Kapil Sibal. This is not a tweak but a thump. These provisions can terrify the innocent, alleged to have bad thoughts, irreverent words and suspicious behaviour.
The station house officer at the police station will be less feared, but superior officers can order reprisals, raids, search and seizure. With POTA and TADA, the process was always the punishment. At risk are the minorities, legal and illegal Muslim migrants, Christians, Vaiko style political activists and the Binayak Sens who honour our social work. There are no safeguards, or review committees. The fact that confessions to police remain inadmissible hardly supports the tweak theory. After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us.
It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state. CBI and NIA are two of the Indian Government agencies responsible for the safety and security of India and its people. CBI is Central Bureau of Investigation of India whereas NIA is National Investigation Agency of India.
One of the main differences between CBI and NIA is that CBI is an agency of India and it functions as a criminal investigation body, intelligence agency and national security agency, whereas NIA is a new federal agency approved by the government of India to control terrorism. It is interesting to note that CBI was established in 1963 with a motto, ? industry, impartiality, integrity‘. NIA on the other hand was established quite recently after the Mumbai terror attack in 2008. The need for a central agency to fight terrorism was felt then. The need resulted in the formation of the NIA.
It is important to know that CBI is India’s premier investigating police agency. Since CBI is entrusted with the responsibility of conducting investigation into major crimes in India, its impact is widely felt in the political and economic circles within the country. There are three important divisions when it comes to the investigations conducted by CBI. They are anti corruption division, economic crimes division and special crimes division. Since the NIA is formed quite recently its functions are being framed presently. As of now, the NIA is entrusted with the responsibility of conducting investigation into terrorist offences.
The NIA will take up the responsibility of investigation as and when a new case is presented to them. One of its main features is that no accused if in custody to be released on bail or on own bond. This is the main difference between the NIA and any other intelligence agency for that matter. Big cases of fraud, cheating, embezzlement and the like relating to companies in which large funds are involved are normally handled by the CBI in addition to several other cases including those wherein the interests of the central government are involved. Read more: http://www. ifferencebetween. com/difference-between-cbi-and-nia/#ixzz1VfER3ts3 National Investigation Agency (NIA) is a federal agency approved by the Indian Government to combat terror in India. The agency is empowered to deal with terror related crimes across states without special permission from the states. The National Investigation Agency Bill 2008 to create the agency was moved in Parliament by Union Home Minister on 16 December 2008.  NIA was created after the Nov 2008 Mumbai terror attacks as need for a central agency to combat terrorism was realised.
The current Director General is S. C Sinha who succeeded first Director-General of NIA R. V Raju as he retired.  Bill A Bill for the formation of the much-talked about National Investigation Agency was cleared by Parliament in December 2008. As per the Bill, NIA has concurrent jurisdiction which empowers the Centre to probe terror attacks in any part of the country, covering offences, including challenge to the country’s sovereignty and integrity, bomb blasts, hijacking of aircraft and hips, and attacks on nuclear installations. The ground staff of the agency in the national capital could be drawn from existing central staff and security organisations while in the states, permanent deputation from the state police could be taken. Other than offenses of terrorism, it also deals with counterfeit currency, human trafficking, narcotics or drugs, organised crime (extortion mobs and gangs), plane hijacking and violations of atomic energy act and weapons of mass destruction act. 4] The National Investigative Agency Bill and Unlawful Activities (Prevention) Amendment Bill on Tuesday, 30 Dec, 2008, became a law as President Pratibha Patil gave her assent to the legislation which were passed in the last session of Parliament.  Some of the salient features ? This is applicable to whole of India, citizens of India outside India and persons on ships and aircraft registered in India. Officers of the NIA have all powers, privileges and liabilities which the police officers have in connection with investigation of any offence.
The police officer in charge of a police station on receipt of the report of the offence shall forward it to the state government which in turn will send it to the Centre. If the Centre feels the offence is terror related, it shall direct the NIA for investigation. Provision for transfer of investigation and trial of offences to state government with Centre’s prior approval. A state government shall extend all assistance to NIA for investigation of terror-related offences. Provisions of the Act with regard to investigation shall not affect powers of the state government to investigate and prosecute any terror crime or other offences.
The Centre shall constitute special courts for trial of terror-related offences. For speedy and fair trial, the Supreme Court may transfer any case pending with the special court to another special court in the same state or any other state, and the High Court may transfer such cases to any other special court within the state. Offences punishable with imprisonment for less than three years may be tried summarily. Special court to have all powers of the court of sessions under CrPC for trial of any offence under the Act. Proceedings to be held ‘in camera’ if special court deems it necessary.
Trial to be held on day-to-day basis on all working days and to have precedence over the trial of other offences. ? ? ? ? ? ? ? ? ? ? ? ? ? ? State governments empowered to constitute one or more special courts. No appeal shall be entertained after the expiry of 90 days. IN the aftermath of the horrific Mumbai terror attacks and resultant siege in the heart of India‘s commercial capital in November 2008, the ruling UPA government quickly pushed through two significant pieces of legislation. First, the Unlawful Activities (Prevention) Amendment Act, 2008 (UAPA) and second, the National Investigation Agency Act, 2008 (NIA).
For a start it is debatable whether such new laws were necessary to stop eleven odd men from making their way through naval and coast guard patrolled waters in a dinghy. Is it that the entities meant to guard the waters and the hotels that had apparently been warned about a possible strike, need legislation to follow intelligence briefings? Further, the second statute, the NIA, while ostensibly dealing with a new investigative agency, mostly details the establishment of ? Special Courts‘. We need to ask whether the Mumbai ttacks, mostly critiqued as a failure of intelligence, can be meaningfully addressed by the creation of an investigative body (investigation being a post-fact activity), managed by upper level officers from the existing system that clearly could not prevent such an attack. And a look at existing ? special‘ courts tells the tale of how ? unspecial‘ they really are, merely copying regular courts in terms of the lengthy time taken for trials while ignoring procedural safeguards. The UAPA essentially further revised the age-old Unlawful Activities Prevention Act, 1967 that has been in force and utilized for the last forty two years.
This statute was quietly amended shortly before the much-celebrated repeal of the Prevention of Terrorism Act (POTA) by the same government. Unfortunately, even as many committed to democracy and rights heralded the death of POTA, few wrote about these revisions to the UAPA that went further than POTA or the Terrorist Activities (Prevention) Act, 1987 (TADA), or for that matter any so-called antiterror laws, including negating periodic legislative review, and dropping safeguards like Section 58 of POTA which made it an offence if a police officer ? xercised power corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this act. ‘ Ujjwal Kumar Singh, in his book on anti-terror laws, neatly summarizes that the four new chapters (IV, V, VI, and VII) of the UAPA, 2004 (that replaced Chapter IV of the UAPA, 1967) essentially included ? terrorist activities‘ alongside ? unlawful activities‘, specifying different procedures to deal with each. 1 According to him, with this substitution, specific provisions of POTA pertaining to definition, punishment and enhanced penalties for ? errorist activities‘, and specific procedures, including the banning of ? terrorist organizations‘ and interception of telephone and electronic communications, were inducted into UAPA. This article will mainly focus on the legal amendments since the 2008 Mumbai attacks, and the alleged ? reshaping‘ of the approach to tackling terror attacks. It is important to point out that ? extraordinary laws‘ like TADA and POTA, as they have been referred to,2 come with provisions that enable any investigation or legal proceeding that may have been initiated while the acts were in force, to continue as if these acts had not expired. This means that the ceremonial repeal of any such ? extraordinary‘ law post the initiation of state action – whether by the police or the courts – is pointless. Further, in the context of the law, exceptions in fact reshape the general law by virtue of precedent and resultant jurisprudence. Interestingly, when confronted with exceptions to well established and familiar rules of evidence and procedure, judges usually balk at the application of the exceptional law, since they lack precedent and the amended law often seems counterintuitive to legal principles and training.
So, for instance, in the face of lax burden of proof and evidentiary requirements by a so-called ? anti-terror‘ statute, what can be termed as a law facilitating lazy investigation, courts respond the way the Supreme Court did in State of Rajasthan v Ajit Singh and others. 4 This case concerned a few men allegedly involved in transporting arms and ammunition from Pakistan to Punjab to be used towards the creation of Khalistan. The case emanated out of the judgment dated 2-12-2000 of the ?
Designated Court for Rajasthan at Ajmer‘, a special court created by statute, that heard this case – titled TADA Spl. Case No. 1992, applying almost unbelievably the twice removed TADA law, already repealed in May 1995. The point of this description is that a specially designated court took eight years to decide an alleged terror case, which in turn took a further eight years to be decided by a rightly-reticent Supreme Court. In all, this ? xceptional process‘ to probably an unfortunately common situation in this violence-hit country, took almost seventeen years to decide a case, involving a repealed statute, that now looks far less draconian than the ones in place! The Supreme Court in a judgment by Justice Harjit Singh Bedi, while dealing with alleged confessions of the accused to the police, made a significant observation – that TADA is a ? harsh penal statute and its provisions must be construed in that perspective. ‘ The judge noted that the admission as evidence of a confession made to a police officer under TADA was ? clear departure from general law. ‘ In this case, the judge noted that the accused had been in police custody for almost 45 days and that the record of the confession of the accused showed that a mere 15-30 minutes time was given for reflection before the actual confession was recorded. Therefore, the court felt that ? sufficient cooling off time had not been given to the accused, in the background that they had been in police custody over a long period of time. ‘ Justice Bedi referred to the time-tested legal principle hat the prosecution should prove the involvement of the accused by other evidence first and further that the confession of an accused can only be used as corroborative and not as a substantive piece of evidence and that too only against the maker based on safeguards within the Evidence Act. 5 It is only when the other evidence tendered against the co-accused points to their guilt that the confession duly proved can be used against such co-accused if it appears to lend support or assurance to such other evidence. The prosecution in this case had also argued that the arms and ammunition allegedly recovered from the accused were found to be used in terrorist activity and thus a heavy onus lay on the accused. 7 The judge in turn rightly relied on established legal principles that the presumptions of TADA would apply only once if it were in fact ? proved‘ that the arms had been recovered from the accused, or that they had any knowledge of the ultimate destination and end use of the weapons. Accordingly, the appeal of the State of Rajasthan was dismissed.
The other significant change instituted by the government, post the Mumbai attacks, was the establishment of a National Investigation Agency. The National Investigation Agency Act, 2008 (NIA) was formulated in the wake of the widespread criticism of the current government about alleged intelligence lapses connected to the Mumbai attacks. The NIA states that notwithstanding anything in the Police Act, the central government will constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the acts specified in the ?
Schedule‘. 8 The constitutionality of the exercise of power by the central government has been discussed elsewhere, including in the Commonwealth Human Rights Initiative paper on this enactment. 9 The CHRI paper points out that the areas of ? policing‘ and ? public order‘ lie within the legislative competence of the states and not the Centre, as per Article 246 read alongside the Seventh Schedule of the Constitution. The Union list has within it only the provision for a Central Bureau of Investigation – an already existing overused and overworked body.
The NIA also enables the central government to constitute Special Courts for cases or classes of cases that may be notified – essentially cases covered under the Schedule. 10 This is merely a continuation of the same ? exceptional‘ process whereby alleged terrorists are tried in Special Courts with little acceptable evidence, resulting in the kind of scenario that the case above dealt with. Further, the NIA provides that the superintendence of the agency shall vest with the central government, and that this shall include the appointment of a Director General (DG).
The new DG of the agency is Radha Vinod Raju, a Jammu and Kashmir cadre IPS officer, who has been part of the CBI for over fifteen years. 11 The NIA is reportedly aspiring to have over 100 investigators, including 25 IPS officers. 12 The agency is to have a ? crime intelligence unit‘ like the CBI special crime unit, whose mandate is to focus on terror related activities. 13 And that the NIA will be linked to the MAC (Multi Agency Centre) for information sharing among various intelligence agencies. 4 It has also been decided by the Home Ministry that the NIA will not deal with the Mumbai attacks case since it is already being investigated by the erstwhile agencies. Of course, when one looks at the structure in place, and the fact that there is already an agency coordination system, and that existing IPS officers will provide the upper level management of the agency, it seems fair to question the utility of yet another agency staffed with the same people from the same system? It is significant that the statute deals with a national level ? nvestigation‘ agency, as opposed to the refinement, reorganization and enhancement of ? intelligence‘ capacity. The Mumbai attacks, if anything, represent a failure of intelligence gathering, i. e. warning systems to pre-empt such attacks. Investigation usually connotes a police-based function, i. e. a post-fact process. Blacks law dictionary defines investigation to mean ? to inquire into (a matter systematically), to make a suspect the subject of a criminal inquiry – the police investigated the suspect‘s involvement in the murder. Webster‘s defines ? intelligence‘ as information concerning an enemy or possible enemy or an area.
The point is that it is intelligence that provides leads which in turn enable investigation by the police. The NIA statute instead focuses on policing; it does not address intelligence lapses, the acute lack of expertise, political infighting and absence of independence that define our intelligence agencies. It is not clear how a new statute replicating police functions can help us understand how a few men in a dinghy crossed the 12 nautical miles that the coast guard was meant to patrol. The NIA allows for investigation related to offences under Statutes listed in the Schedule.
These are – the Atomic Energy Act, 1962, the Unlawful Activities (Prevention) Act, 1967, the AntiHijacking Act, 1982, the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982, the SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993, the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 and offences under Sections 121 to 130 (Offences Against the State, including conspiring or waging war against the Government of India) and 489A to E (Counterfeiting Currency Notes) of the Indian Penal Code. Of all these, the NIA functionaries draw their power essentially from the Unlawful Activities (Prevention) Act, 1967 and the new amendments that were passed soon after the Mumbai attacks.
The amendments make three notable changes; first, in the definition of what is a terrorist act; second, in defining what is funding of terrorism and setting forth a punishment (minimum of five years to life imprisonment); and finally, defining and punishing training of terrorists in camps, with a minimum sentence of five years extendable to life imprisonment. Section 15 of the Unlawful Activities (Prevention) Act, 1967 virtually reinstates the old POTA definition of terrorism that the government had earlier repealed. It states that a terrorist act is ? any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. ‘ The only change from the past is that this definition initially attempts ? a means‘ delineation. Therefore, a terror act would be bomb making, using firearms or biological weapons, or ? ny other means of whatever nature‘ that causes death or injuries to people, or loss of property etc. Linguistically, ? terrorism‘ comes from the root word ? terror‘ or in Latin, ? terrere‘ – meaning ? to frighten‘. Whether simply fear can ever be, or must be allowed to become the basis for exceptional jurisprudence is a question that must be answered by our legal system. However, for now the focus of this piece will be these new legal provisions that apparently assume a consensus on what is ? terror‘ and what we must ? fear‘ in order to protect our common interests. It is significant that the ancillary or subsidiary clause, ? any other means of whatever nature‘, is part of this definition of terror. This is a ? atch all‘ legal clause that enables rampant abuse of an extraordinarily harsh penal statute. For instance, this could mean that an alleged bomb-maker and someone supplying him or her with milk could both be detained under this kind of extraordinary law. According to Amnesty International, in 2006, ? Around 77,000 persons had been arbitrarily arrested under TADA. Of those arrested, around 72,000 were later released without having been charged or tried. Even a decade after the TADA lapsed, 147 persons are still under detention for offences under that act, including some held in connection with high profile cases for which trials are still ongoing. 15 Any government serious about countering terror needs to do the following: First, commit that it will not perpetuate the politics of fear and encourage the jurisprudence of exceptionalism through extraordinary statutes. Second, that it will not focus on persecuting dissent. This not only violates the Constitution and harms democracy, but distracts the state from tracking down those few who really are guilty, and furthers alienates the many that are innocent. Finally, instead of resorting to Special Courts that are usually not special in any way, a finite time-line for an accelerated trial, for instance one year or eighteen months, must be set side to complete the trial of a person accused of a terrorist act.
Moreover, that the trial be conducted utilizing established criminal and evidentiary rules while never discarding the fundamental legal principle of the presumption of innocence and the need for the prosecution to prove guilt. At the time of writing this article, the Supreme Court, through a bench comprising Justices Pasayat, P. Sathasivam and Aftab Alam requested the Chief Justice of the Gujarat High Court to set up six ? Fast Track Courts‘ (FTCs) to try the 2002 Godhra and post-Godhra riot cases in Gujarat and vacated the order staying the trials. In his order Justice Pasayat asked the Chief Justice of Gujarat to appoint senior judicial officers so that the trials can be concluded as soon as possible, given that they had already been delayed by seven years. 6 Correctly, the Supreme Court asked for a fast-track court process in terms of the time to be taken to dispose of these cases, and not for the setting up of Special Courts with special procedures based on exceptional statutes. In this case, it is an exasperated Supreme Court that has set up a Special Investigation Team, led by a former CBI Director, to re-examine the clearly compromised and stalled investigation of the riots by the local police. Obviously, seven years is a death-knell in terms of criminal trials, which are so dependent on the gathering and retention of evidence necessarily soon after an event, and the testimony of witnesses where verifiable memory plays a significant role.
However, even if the Fast Track courts culminate with a single conviction, amid a fair trial, based on independent investigation and diligent prosecution, public belief in the justice system will be bolstered, the victims of the Gujarat massacres will be strengthened, and the horrific alliance between the political elite, the police and the bureaucracy that is so common in our country, in states of all political persuasions from Kashmir to Gujarat to Chattisgarh, will be dealt a blow by the legal system. In the end, a fair and just legal system is the key for enhancing faith in the country. When ? we the people‘, came together to form this nation, we did so despite great historical differences – hailing from princely states, presidency towns, different religious persuasions, speaking varied languages, separated by privileges and the oppressions of caste, gender and class.
The basis for our new nation was that it would be premised on redistributive justice – bolstered by an individual and a collective freedom and dignity of all that live within it – a vision charted in the Constitution. So-called ? Anti-Terror‘ or ? Exceptional Statutes‘ diminish that vision and the text by a politics of fear. This is why such laws must be dismantled. Menaka Guruswamy Footnotes: 1. Ujjwal Kumar Singh, The State, Democracy and Anti-Terror Laws in India, Sage Publications, Delhi, 2007. 2. Ibid. 3. Sections 1(4) TADA and 1(6) POTA. See also Singh, ibid. 4. (2008) 1 SCC 601. 5. Para 14. 6. Para 14 and 16. 7. Para 17. 8. Section 3, NIA. 9. http://www. humanrightsinitiative. org/programs/aj/police/india/policereforms/issues_paper_on_the_national_investigation_ agency_act_2008. pdf 10.
Section 11(1) of the NIA, 2008 provides that the central government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. 11. Ace Investigator Raju Appointed First NIA Boss, The Times of India, 16 January 2009 at http://timesofindia. indiatimes. com/ India/Ace_investigator_Raju_appointed_first_NIA_boss_/articleshow/3986226. cms 12. Ibid. 13. Ibid. 14. Ibid. 15. Public Statement by Amnesty International, 20 September 2006 at http://www. amnesty. org. ru/library/Index/ENGASA20026 2006? open&of=ENG-2S4 16. J. Venkatesh, ?
Court: set up six fast track courts to try Godhra and riot cases‘, The Hindu, 2 May 2009. Ushering in a new pattern of policing, the proposed national investigation agency (NIA) will be a super body with far-reaching and country-wide powers. It will control and investigate everything connected to terrorism, counterfeiting of currency, threat to atomic installations and energy, maritime security, hijacking, sedition and waging a war against the nation, among others crimes. The NIA will be backed by special courts, provision for in-camera proceedings and protection of witnesses. Its officials will have over riding powers over state police forces when dealing with these ? designated crimes? that will fall under its ambit.
The need for the NIA was illustrated by the Administrative Reforms Commission and also after several inter-state and international linkages were found between smuggling, terrorism, fake currency, infiltration and risk to installations. The central Government today unveiled the contours of the NIA when home minister P. Chidambaram introduced a Bill in the Lok Sabha for its formation late in the afternoon. The Bill will come for discussion and approval in the current session of Parliament. The Bill proposes to empower an official of the NIA to have countrywide jurisdiction and, crucially, use ? powers of the officer-in-charge of the police station of the area where he is functioning?.
This could be any of the police stations across the country. Meaning thereby he/she will act as a station house officer (SHO) when dealing with crimes under the NIA‘s ambit. The NIA official will enjoy all powers and duties that the SHO of local police stations is empowered under the Code of Criminal procedure, 1973. The Bill specifies offences under seven major acts that will fall under the NIA‘s ambit and also 10 sections of the Indian penal code. Crucially, the sections of the IPC deal with collecting arms with an intent to wage a war against the nation, sedition, waging war with any Asian neighbour, aiding an escape of any prisoner, counterfeiting currency, among others.
The NIA will also over ride the provisions of the Police Act – 1861 when investigating these specified crimes. Though, some what, the states have been kept in the loop as a section in the Bill empowers them to inform the NIA on finding such offences being committed, however, the NIA can act suo moto to deal with any of the scheduled crimes. This is a change from the pattern used by the CBI wherein the states approval is a mandatory requirement before the agency can take over the case. On the prosecution front, the NIA, like the CBI, will have designated special courts across the country. A judge of a high court will preside over the special court. All offences under the ambit of the NIA will be heard by the special Judge only.
The NIA will have the powers to approach the Supreme Court to get the case transferred out of a particular state if pursuance of justice is not possible in the area of offence. The special court will have the powers to prosecute a person, who is nabbed for a ? specified crime? but is also involved in cases under other laws. The NIA can also seek permission of the special judge to conduct in-camera proceedings and also avoid mentioning the names of the witnesses in orders passed. The court can also issue directions in public interest to prevent publication of proceedings pending in court and also keep the names of the witnesses a secret. The NIA will be headed by the director-general rank official, who will be on par with the DG of a state police force. end green star | flag as inappropriate Tuesday December 16, 2008, 1:06 pm New Delhi, December 16 The Central government today presented a Bill in the Lok Sabha to amend existing legal provisions to tackle terror. Though it is not as harsh as the regressive Prevention of Terrorist Activities Act (POTA), it will provide more teeth to the police in terms of arresting a person, searching a premises or seizing ill-gotten property besides denying bail to an accused. The amendments are being made to the Unlawful Activities (Prevention) Act, 1967, and will be carried out in the current session of Parliament. In turn, all provisions of the Act, the new ones and also the existing ones, will now be under the ambit of the National Investigation Agency (NIA). A separate Bill has been moved to establish a NIA.
Notably, a confession of an accused before a police official under Section 161 of the CrPC will not be admissible in the court and this clause has remained untouched. Under the amendments, preventive detention of an accused can be extended up to 180 days instead of 90 days as at present. No accused can be given bail without the prosecution being heard out in the court. And there will be no bail on a personal bond. Further, the bail can also be denied if the court feels that the charges against a person are prima facie true. In case of foreign nationals, who have entered the country illegally and unauthorised and are being accused under this law will be denied bail.
Under the Bill, the courts will draw a presumption of offence against the accused if there was definite evidence through seizure of weapons and explosives from him or matching of fingerprints. The court will presume that the accused committed the offence in case the accused proves it be contrary. In a way, this will means, the onus is on the accused after such a seizure is claimed to have been made by the police. In the past the police have been known to hoist fake cases and this is one aspect that could come under fire when the bill is debated. The definition of ? terrorist act? is proposed to be slightly amended and several additional specific offences have been provided keeping in view the recommendations of the Administrative Reforms Commission.
In case a person is nabbed for making radioactive substances and nuclear devices with the intention of committing a terrorist attack punishment will be imprisonment Kadyan Naresh (1210) for a term of ten years. Raising funds for terror acts in India or abroad will attract punishment of a five-year term, which may extend to imprisonment for life with fine. Ditto for organising terrorist camps and recruitment of people. All financial assets of individuals or entities listed as terrorists and those who are suspected to have involvement in terrorism can be frozen and seized. The Bill says that every offence punishable under this Act shall be deemed to be cognisable offence. end green star | flag as inappropriate Tuesday December 16, 2008, 1:08 pm New Delhi, December 16 The government plans to push for consideration and passage of the two Bills relating to terrorism tomorrow itself, subject to agreement of its own allies in the UPA. It introduced today Bills to create a National Investigation Agency (NIA) and another to further amend and strengthen the Unlawful Activities (Prevention) Act to combat terrorism more effectively. Home minister P Chidambram said after a meeting with the leader of the Lok Sabha Pranab Mukherjee, ? We will try to bring them for consideration and passage tomorrow. But it depends on the Speaker and I hope the Speaker permits.? In the normal course, the government circulates the copies of a Bill to the members and lists it in the day‘s list of business before introducing it.
After the introduction it is referred to the standing committee of the concerned ministry and after the standing committee has deliberated upon it, the Bill is sent back to the House along with the recommendations of the committee. But in an extraordinary situation, it can be waived by the Speaker. And clearly the Speaker allowed Chidambram to introduce the Bills today, even as CPI leader Gurudas Dasgupta objected to its introduction. The BJP has already offered its ? conditional support? with party general secretary Arun Jaitley saying, ? Even though we consider it a reluctant and incomplete effort by the government, and we have reservations over some of its provisions, as a patriotic party, we will support it.? Samajwadi Party chief Mulayam Singh Yadav too has already extended support for stringent action against terrorists.
Soon after the introduction of the two Bills, the government started mobilising support to move the Bills tomorrow and Mukherjee invited SP leaders Ram Gopal Yadav and Amar Singh to his chamber to discuss this. Kadyan Naresh (1210) But some parties still have reservations. Though the BJP is supporting the Bills its spokesman Prakash Jawadekar said here today, ? If the House is again meeting in February then we will want them to be referred to the Standing Committee. But if this is the last session then they can move them right now.? As for the Left CPM leader Mohammad Salim said, ? No, no this should not be done in haste. This is legislative business. We should examine all aspect in detail before deciding to pass it.?
But the government is confident of pushing through this law at this juncture unmindful of the critics, because of the overall mood in the country after the Mumbai terror attacks of November 26. Therefore sources said the government is bringing in the two Bills for passage tomorrow. send green star | flag as inappropriate Tuesday December 16, 2008, 1:09 pm IT should have come much earlier. It required a terrorist assault on Mumbai for the Union Cabinet to decide to set up a National Investigation Agency (NIA), modelled on the lines of the US Federal Bureau of Investigation. The idea is to strengthen the legal framework to help the Central government tackle terrorism effectively. The NIA is also meant to tackle insurgency and cyber crimes.
Under the proposed law, drug trafficking and counterfeit currency have also been designated as ? scheduled crimes? that can be dealt with by the NIA. It is likely to be governed by the Defence of India Rules to give the agency overriding powers to take over the investigation of terror attacks directly without waiting for requests from the states. The NIA‘s actions will not be subject to the scrutiny in the court of law like those of the armed forces in war times. Over the years, it has been found that the state governments are not capable of tackling terror on their own. Moreover, they have neither the expertise nor the infrastructure to tackle grave and complex crimes that endanger national security.
It is only the Centre that can play a leadership role and take adequate measures to combat terror and protect the country. The NIA will have its own cadre, including prosecutors and cases of terrorism will be tried in special fast track courts. It will have powers to suo motu take up such cases. It will be free to act on its own on information received from any Station House Officer across the country and its own sources. Significantly, the Cabinet has also decided to amend the existing terror laws, including the Unlawful Activities (Prevention) Act, 1967, to meet the challenge. Changes in the Evidence Act will help the authorities concerned to allow electronic intercepts to be used as evidence.
The Cabinet has also cleared a change in the charter of the Central Industrial Security Force to allow it to provide security to private installations like oil refineries, factories, IT hubs and heritage hotels for a fee. On December 11, Parliament sent a strong message to the world that the nation is united in its resolve to fight terrorism. In view of the all-party consensus on the issue, Kadyan Naresh (1210) one can expect swift legislative action on the NIA and other amendments by Parliament. Considering the nature of threat to the country‘s security and widespread public concern, it will be politically unwise for any Opposition group or a political party to oppose the Cabinet‘s move.
The people want the Centre to arm itself with more powers and face the challenges to national security. send green star | flag as inappropriate Friday December 19, 2008, 3:19 am New Delhi, December 17 In a swift response to the Mumbai terrorist attacks, the Lok Sabha passed here today the twin bills-with virtually no opposition-to provide more teeth to the anti-terrorist law in the country and create a National Investigative Agency (NIA) to exclusively investigate terror crimes. Winding up a day-long debate wherein, apart from some regional parties like the Akali Dal, the MIM and the Kerala Congress, almost the entire House supported the bill.
Home minister P Chidambram piloting the two bills succeeded in persuading even the members of the Left parties to drop most of their amendments assuring them that he would try to accommodate these while framing the rules for the proposed agency. Unmindful of this, CPM leader Bassudeb Acharia did move his amendment in both bills but pressed for a division only in the Unlawful Activities Act, where he sought to reduce the detention period from 180 days as proposed in the bill to 90 days. The Left lost badly in the division but CPM members had the consolation as they told the Congress members, ? Now you truly stand with the BJP.? The minister told the reluctant Left members, ? Let us understand the mood of the nation. The mood of the nation is such. The nation expects us to pass such a law. The nation expects us to have such an agency.? He said this is aimed at giving ?
A sense of confidence to the people that such actions would be punished; to give a sense of confidence to the police that it has the full backing of the government; to infuse confidence in the public prosecutor and in general to create a sense of confidence and security in the country.? Promising that, ? It will be my endeavour to see that these laws will apply without any discrimination,? he also indicated that the act was aimed at including communal offences also within the purview of the proposed act. Earlier, piloting the NIA, Chidambram assured the Left critics, ? We are tough on terror but can‘t throw valuable human rights into the dustbin.?
Allaying the fears of the regional parties that through NIA the centre would transgress the state powers he said, ? The police station will first pass the information of offence to the state government, which will convey it to the centre within 15 days. Kadyan Naresh (1210) The centre will-depending on the gravity of the offence- decide on whether the NIA needs to investigate it,? adding that NIA would in any case ask the states to associate with investigations. He stressed on the bill‘s provision of day-to-day trials, saying the retirement of the judge would not stand in the way of trials. ?The state can ask the judge to continue beyond retirement as well,? he said.
The new bill punishes fund raising for terrorist acts and organisation of terrorist camps, but relaxes (in comparison to POTA) grounds of refusal of bail to the accused. While POTA said a court could grant bail to the accused only if it concluded that the accused was neither guilty nor likely to commit an offence while on bail, the NIA bill allows a court to refuse bail if the court is prima facie convinced that charges against the accused are true. I have received a number of questions from readers regarding the recent decision of the Government to totally exempt the Central Bureau of Investigation (CBI) from the operation of the Right To Information Act. Previously, for four years, the CBI did not enjoy such exemption.
This sudden decision of the Government to grant a total exemption to the CBI has been sought to be justified on grounds of national security. There has been criticism of the Government action from advocates of greater transparency in the functioning of our intelligence and investigation agencies. I have tried to answer the questions to the extent possible: Question: Is the CBI a national security organisation such as the Intelligence Bureau and the Research & Analysis Wing (R&AW) are? A. It is not, but it does have a national security role to a limited extent. It is essentially an agency for the investigation of criminal cases entrusted to it.
These cases fall into two categories—- cases of corruption and other common law crimes of a serious nature and cases of terrorism and related offences such as the counterfeiting of currency notes. After the National Investigation Agency (NIA) came into existence in 2009, the responsibility for the investigation and prosecution of terrorism-related cases of a specified nature was transferred to it from the CBI. Despite this, the CBI continues to have a responsibility for follow-up action on cases registered before the NIA came into existence. The CBI played an important role in the investigation of the March 1993 blasts in Mumbai and other important terrorist attacks.
It continues to have responsibility for the investigation and prosecution of important cases involving mafia groups and their nexus with terrorist groups. When the NIA gets going completely, the CBI’s responsibility for the investigation and prosecution of cases relating to terrorism and mafia activities will be considerably reduced and it will focus almost entirely on the investigation of corruption cases and other common law crimes not necessarily having an impact on national security. However, the CBI cannot be treated on par with the IB and the R&AW because it is not a clandestine organisation operating covertly. Whereas the IB and the R&AW are not subject to parliamentary scrutiny, some aspects of the CBI’s work such as its budget are subject to scrutiny by relevant committees of the
Parliament such as the Estimates Committee. Thus, to treat the CBI on par with the IB and the R&AW for giving it the benefit of total exemption was unwarranted. Q. What must have made the Government bring the CBI under the totally exempted category after having kept it out of this category for four years? A. It is difficult to answer this question categorically in the absence of details. Advocates of Right to Information should examine whether there is scope for forcing the Government to disclose these details which made it reverse its earlier decision not to exempt the CBI. Vague answers such as “national security grounds” should not be accepted.
The apparent suddenness and abruptness with which the Government took this decision would indicate that the CBI was probably in receipt of a request under the Right to Information Act for some information which it was not in a position to legitimately deny. The Government, therefore, decided that instead of denying the specific information requested for which could have put the Government in an embarrassing position, it would totally exempt the CBI. One example of such information that I could think of could be relating to the past investigation in the Bofors case. There could have been other similar cases. Q. Why is the BJP supporting the Government’s decision to grant total exemption to the CBI? A.
One possibility is that the BJP genuinely feels that since the CBI had in the past investigated terrorismrelated cases and now continues to investigate mafia-related cases, it should have the benefit of total exemption. Q. Is granting total exemption to the CBI the only way of preventing disclosure of information relating to cases with national security implications such as terrorism, mafia activities, counterfeiting etc? A. No. Without including the CBI in the list of totally exempted organisations, the Government could have suggested to the CBI to take advantage of those provisions in the Act for denying information in cases having a bearing on national security on a case by case basis. The public has a right to a lot of information relating to the CBI such as its administration, methods of recruitment and training, budgetary control etc.
At the same time, it should not have the right to seek information relating to investigation of on-going cases—- whether of corruption or of other common law crime or terrorismrelated. These two requirements could have been easily met by continuing to keep the CBI in the notexempted category. ( 6-7-11) ( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: [email protected] com . Twitter @SORBONNE75 ) “To be effective, a liberal State must not foster violence; it must conquer it. The major security challenge faced by India is an inescapable need to combat terrorism perpetuated by militant and terrorist groups sponsored by a foreign State. The nuclear weapon States in the neighbourhood is a roaring reality and so the daunting threat from insurgencies, spurred by tribal and ethnic aspirations and left wing ideologies. A democratic country having rule of law cannot but rely upon effective legislative tools coupled with a robust investigative law enforcement machinery to match the ill designs of terrorist networks. In absence of an effective internationally binding legal instrument, backed by requisite force to ensure compliance, enactment of domestic statutes is the only viable option.
India ‘s response to the increasing destruction caused by terrorists having global network saw strengthening of internal laws. These laws inter alia , are Armed Forces (Special Powers) Act, 1958, Indian Penal Code,1860, Code of Criminal Procedure, 1973, Extradition Act, 1962, Narcotic Drugs and Psychotropic Substances Act, 1985, Conservation of Foreign Exchange and Protection of Smuggling Activities Act, 1974, Foreign Contribution (Regulation) Act, 1976, The Arms Act, 1959, The Suppression of Unlawful Acts against the safety of Civil Aviation Act, 1994, The Unlawful Activities (Prevention) Act, 1967, The Anti-Hijacking Act, 1982, The Merchant Shipping Act, 1948, The Explosives Act, 1884.
To give more teeth to these laws , the following new statutes were legislated by the Indian Parliament during December 2008 1:• The Unlawful Activities (Prevention) Amendment Act, 2008 (in short ? the UAPA? ); • The National Investigation Agency Act, 2008 (in short ? the NIAA? ); and • The Criminal Law Amendment Bill, 2006 The NIAA introduced a new dimension in the fight against terror by empowering the Central Government to set up a National Investigation Agency for probing certain grave offences characterized as ? Scheduled Offences?. The Central Government is authorized to constitute the agency and can suo-motu direct it to investigate the matters. The Central Government is mandated to dispose of the cases within 15 days. There are Special Courts for trial of Scheduled Offences investigated by the Agency.
The Public Prosecutors, appointed by the Central Government are entrusted to undertake the task of prosecution. The trial can be held in the absence of the accused or even his pleader. Identity and addresses of witnesses can be kept secret. The trial can be held at any place on a daily basis and on all working days and conducted in a very secretive manner. Further, the Special Court may direct that the proceedings shall be published in any manner. An appeal shall lie against the judgment of the Special Court only to the High Court and has to be submitted within 30 days from the date of pronouncement. The Appeal is to be disposed of within a period of three months.
The intent and purpose of NIAA as discernable from its Preamble is to craft a machinery for improved investigations and prosecution of serious offences. However the text of the Act does not clothe the NIA with any role or authority in the matter of prosecution. Further, there are some problem areas in the Act, which remain left to be dealt with: • Extraordinary secrecy • Intimidation and threats • Absence of hard evidence due to meticulous planning • Conspiring acts, spread over various countries • Shortage of foreign language experts Resultantly, the successful Army missions against the terrorists go waste for the want of proper and faulty prosecution, which ultimately culminate in acquittal.
The NIAA was drafted and passed by the Parliament in such a haste to leave a doubt as to whether due scrutiny was carried out and comments of all concerned sought in its preparation. This lapse is well evident as the Act has not covered certain grave offences committed in conjunction with terrorist acts, like offences relating to Official Secrets Act, or under the Conservation of Foreign Exchange and Prevention of Smuggling Act, or under Military Laws (Army Act, Navy Act, Air Force Act). Another area of concern is pertaining to jurisdiction of the Special Courts which can be constituted by both the Central as well as the State Governments 2 .
So, contrary stands by two governments regarding the version and role of the Armed forces deputed to deal with the antinational activities can not be ruled out. The Act does not have anything to offer to cope up with the situations like this as to which of the Special Courts have final say in this regard. By virtue of Section 43F, the designated authority is empowered to demand information from any officer ( read military commander) in his possession concerning scheduled offence and failure of which fetches punishment of three years imprisonment. Therefore, the military is mandated to part with the sensitive information on the instance of the designated authority in the compliance with the doctrines of military necessity and ? need to know’.
However, any insistence to supply the information would be countered by citing the privilege available under the Indian Evidence Act. Significantly, an option for such a denial may not be available any more in view of Section 43F. The UAPA was enacted in 1967 and underwent major amendments in 1969, 2004 and 2008. The object of the UAPA as revealed by its Preamble is ? to make special provisions for the prevention of, and for coping with terrorist activities.? However, the Act has not defined the term ? terrorism’ and what action would constitute ? training in terrorism’ would remain obscure. The UAPA affects the functioning of the soldiers deployed on counter-terrorist tasks in a major way.
By virtue of Section 17, collection and raising of funds for any terrorist activities are punishable even if the same is not used for commission of a terrorist act. Sections 18A and 18B make organizing of terrorist camps and recruitment of persons for commissioning of a terrorist act, culpable offences. The troops are under a task to gather information of the apprehended not being an Indian who has entered the country illegally so that the same can be mentioned in the report to be furnished to the Police Authorities which would be a major ground to deny bail to the offender3. Section 43A of the Act has conferred the power of arrest and search, etc. on the designated authority.
The trial for an offence under the UAPA can only be held in India. 4Therefore, an Army person can only be tried by a Court Martial held in India in the event he is to be proceeded against for committing an offence under the UAPA despite the provisions of the new Act applying to him, ? wherever he may be?. The reach of a Court Martial, thus, stands constricted to proceed against an offender. CrPC Amendment Bill, 2006 also carries a few major changes that would have an unmistakable bearing on the Army’s standard operating procedures for units deployed on Anti-terrorism missions. In the changed scenario, an accused is entitled to retain his counsel at the time of his interrogation.
Such a provision will be applicable in the case of suspects captured by the security forces. Medical examination of an accused is also obligatory soon after he is taken into custody. Monetary compensation to a victim is similarly a new concept. The legality of the new legislations are there to be tested by the judiciary. So far the gaps by statutory laws would require to be filled by using relevant judicial precedents. Standard Operating Procedures will need to conform to the new laws. As regards its criticism by the fundamental lobby it may be recalled that the Supreme Court of India had once remarked“…it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power.
The wisdom of man has not been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. ”5 ——————–1 While the first two have been notified, the third is not yet so. 2 Sections 11 and 21 respectively of NIAA. 3 Section 43D(7) of UAPA 4 Section 1(3) of UAPA 5 State of Rajasthan v. Union of India , 1978(1) SLR 1 VIII. Draconian Counterterrorism Laws Several federal and state laws facilitate abuses of counterterrorism suspects in India. Of particular concern are amendments to the federal Unlawful Activities (Prevention) Act (UAPA), the federal National Investigation Agency Act (NIAA), and the state of Maharashtra Control of Organized Crime Act (MCOCA).
Conflicting resolutions from the United Nations Security Council have provided political cover for India‘s passage of such laws. Within weeks of the September 11 attacks in the United States, the Security Council adopted Resolution 1373, which was sponsored by the United States and requires all UN member states—including India—to take tough action to prevent and counter terror attacks. The resolution does not require states to affirmatively heed human rights obligations.  Nor does it define terrorism or terrorist acts, leaving each state to create its own definition. Indian politicians and media have frequently cited Resolution 1373 to justify abusive counterterrorism laws, with some going as far as to say that failing to enact them would constitute a ? breach? f their country‘s international obligations.  Subsequent Security Council resolutions have directed states to ensure that counterterrorism measures comply with international human rights law.  Among the most important of these, Resolution 1456 of January 20, 2003, calls on states to ? ensure that any measure taken to combat terrorism comply with all their obligations under international law… in particular international human rights, refugee, and humanitarian law.? However, neither the Security Council nor the Counter-Terrorism Committee it established to monitor compliance with Resolution 1373 has made human rights concerns a sufficient priority. 291] In his final report of October 2010, Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that the counterterrorism regime created by the UN Security Council exceeds the scope of its powers and in some cases ? continues to pose risks to the protection of a number of international human rights standards.?  India now has the potential to play an important role in reforming UN counterterrorism mandates to ensure their compliance with human rights standards both at home and abroad. In January 2011, India became a two-year member of the UN Security Council and was appointed to chair the council‘s Counter-Terrorism Committee for one year.  India should at the same time reform its counterterrorism laws at home. Like all governments, India has a responsibility to protect its population from terrorist attacks.
But it has sought to do so by resuscitating counterterrorism laws that previously brought widespread condemnation for violating or facilitating the violation of basic human rights, including the internationally protected rights to be free from extrajudicial execution, torture, and arbitrary detention. Moreover, employing such abusive measures alienates communities that feel they are being targeted, and can serve as a recruitment tool for militant groups. Maharashtra Organized Crime Law At least 21 Muslims accused in the 2008 bombings and the 11 Hindus accused in the 2008 Malegaon bombing have been charged under the Maharashtra Control of Organized Crime Act (MCOCA) of 1999, India‘s most draconian counterterrorism law. 294] MCOCA allows suspects to be detained without charge for 90 days with a possible 90-day extension, for a total of 180 days. Up to 30 days of that period can be in police custody.  These periods double the excessive periods allowed under the India Code of Criminal Procedure, which permits pre-charge detention for up to 90 days, of which up to 15 days may be in police custody. While international law provides only that suspects must be charged ? promptly,? several of the 2008 bombing suspects were held for 70 to 90 days. The detention periods in both MCOCA and the Indian criminal code contravene the right of detained suspects under the International Covenant on Civil and Political Rights (ICCPR) to be ? promptly? informed of the charges against them. 296] MCOCA also allows the admissibility in court of confessions obtained in police custody without the presence of a lawyer—a practice widely believed to encourage torture in order to obtain confessions. At least four IM suspects charged under MCOCA have publicly retracted their confessions to police, claiming their statements were obtained through torture or other coercion. Amin Solkar, a Mumbai defense attorney, said the signs of abuse were evident when he first visited some of those suspects several days after their arrests. ?I could see the marks on them— abrasions on the arms and back,? Solkar said. ?One of them told me he lost his hearing after he was stripped naked, tied to a stick, and beaten.? 298] Sadiq Sheikh, another suspect held by the Maharashtra ATS, was allegedly tortured while being arbitrarily detained for one week before his arrest was formally announced in September 2008, relatives said. Sheikh‘s brother said that when he finally visited the suspect two weeks after he was picked up, ? A chunk of