The fine print

Lok Sabha has passed, with a rare urgency, a flurry of anti-terror legislative proposals. These proposals extend detention without bail to 180 days, deny bail to accused foreign nationals, crack down on fund raising, and set up special courts. The instincts behind these changes are correct, and much needed. Though tough, they aren’t unprecedented: the United States and the United Kingdom have similar laws. There are, however, two changes which the bill avoids: admissibility of confessions to a police officer, and wiretapping without court approval. In these days of techno-savvy terrorism, Blackberry-carrying terrorists communicate through an array of new technologies. Being able to listen in on them communicating can be key in the war against terror. Of course, wiretapping militates against the right to privacy, and any law permitting wiretaps must have adequate safeguards.

The current law assumes that court permission is the only possible safeguard. But this is not always feasible. In the UK and the US, legislative or executive permission is deemed sufficient, as long as someone’s responsible. Court permission in all cases sometimes limits the war against terror. The admissibility of confessions to a police officer is harder to defend, given that it might incentivise torture. But the current law, by making confessions only before the magistrate admissible does not preclude torture — it merely trusts the magistrate more than the police. As in the case of wiretapping, admitting only confessions made in court makes convicting the guilty that much harder. Better then that confessions to a police officer be allowed, with three safeguards: the police officer must be a superintendent of police or above in rank, the confession must be videotaped, and the accused must be brought before a magistrate soon after.

In the end, the safest safeguard is constant vigilance to see that laws are not abused. No blanket legal presumption ever works, and some presumptions might have unintended consequences. Anti-terror laws are still uncharted terrain; therefore, besides tailoring them to contingent challenges, the government and civil society must scrutinise their implementation at every stage for abuse and, consequently, for amendment.