Colonial Continuities: Human Rights, Terrorism, and Security Laws in India

This article examines India's ongoing effort to reconcile its post-independence commitment to democracy, fundamental rights, and the rule of law with the inherited institutions of colonialism, focusing on several antiterrorism laws enacted during the past twenty-five years. The article situates these recent antiterrorism laws - the Terrorist and Disruptive Activities (Prevention) Act of 1985, the Prevention of Terrorism Act of 2002, and Unlawful Activities (Prevention) Amendment Act of 2004 - in historical and institutional context to analyze the human rights concerns they raise and the ways in which British colonial-era patterns and practices have evolved and been maintained since independence. While independent India's legal framework includes a strong commitment to fundamental rights, that framework has been layered on top of a set of colonial-era police and criminal justice institutions that were originally designed to ensure British control, rather than democratic accountability, and in many respects those institutions have remained unchanged since independence. With respect to its antiterrorism, emergency, and other security laws, India also has maintained patterns established by the British, periodically enacting and repealing statutes that share striking continuities with severe laws first enacted during the colonial period. The overall result has been to routinize the use of extraordinary powers during non-emergency periods in a manner that raises significant human rights concerns. After tracing the extensive history in India of using extraordinary laws to combat terrorism and other security threats, the article analyzes in detail the specific human rights concerns arising under TADA, POTA, and UAPA, both on their face and in their application. The article then discusses shortcomings in India's police and criminal justice institutions more generally. To the extent these institutions have failed to protect fundamental rights even when enforcing ordinary criminal laws, as human rights advocates and government agencies have documented, they are no more likely to do so in the high pressure context of investigating and prosecuting terrorism-related offenses. At the same time, real and perceived problems concerning the effectiveness of the regular criminal justice system create intense pressures to enact special laws to take terrorism and other serious offenses outside of those regular procedures and institutions. Even when these laws have been repealed, the underlying structural pressures have persisted and thereby have encouraged the eventual reenactment of such laws. The article concludes by considering ways to break the patterns that have prevailed since independence, not only by addressing human rights concerns arising from the antiterrorism laws themselves, but also by seeking to improve and reform the police and criminal justice institutions responsible for administering those laws. The article arises from a human rights project conducted by several members of the Committee on International Human Rights of the Association of the Bar of the City of New York, and was authored by Anil Kalhan, chair of the Association's India Project and Visiting Assistant Professor at Fordham Law School. The other project participants, who met with Indian lawyers, government officials, and others in 2004 and 2005, were Gerald P. Conroy, Deputy Commissioner in the Office of the Special Commissioner of Investigation for the New York City School District, Mamta Kaushal, coordinator of the visit and then-associate in the law firm of Wachtel & Masyr, LLP, Sam Scott Miller, partner in the law firm of Orrick, Herrington & Sutcliffe LLP, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York.