Learning Lessons from India: The Recent History of Antiterrorist Legislation on the Subcontinent

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I. INTRODUCTION

On October 26, 2001, one month after the most deadly terrorist attack to ever be carried out on U.S. soil, (1) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (2) became law. Prior to the enactment of the PATRIOT Act, the United States had minimal legislation specifically targeted at terrorist activity. (3) However, two years after the passage of the PATRIOT Act, and despite heavy criticisms and denouncements from civil libertarian groups (4) and over 220 city council resolutions opposing the Act, (5) the Department of Justice proposed a new bill, the Domestic Security Enhancement Act of 2003, nicknamed PATRIOT Act II by some, (6) which would further expand the powers of the federal government and law enforcement agencies in the ongoing War on Terror. The government's proposal of PATRIOT Act II follows the course of action of numerous other countries that have responded to terrorist attacks between their own borders by passing more and more criminal legislation.

On December 13th, 2001, halfway across the world from the mourning United States, a group of heavily armed militants attempted to storm India's Parliament in New Delhi, triggering off a firefight in which five of the attackers and fourteen innocents were killed. (7) Security forces immediately sealed off the red sandstone parliament building where, ironically, discussions were to have begun on a new antiterrorist bill. (8) The bill, the Prevention of Terrorism Act (POTA), which originally had failed to get Parliamentary approval when discussed in 2000, was passed soon after in a rare joint session of both Houses of the Indian Parliament. (9)

With the original PATRIOT Act set to expire on December 31, 2005, a debate regarding the effectiveness of the legislation currently rages. (10) The efficacy of the counter-terrorist response in the United States has, due to the relative newness of these domestic attacks, been largely untested. In contrast, India's legal system, operating under a democratic system governed by a constitution heavily influenced by the United States, (11) has been responding to recurrent terrorist activity within its borders from independence in 1947 through to the present day. (12) The Indian experience has shown that with each new piece of legislation aimed at fighting terrorism comes a similar pattern of abuses. India's antiterrorist laws have consistently been used beyond their originally prescribed scope to bypass the normal rules and safeguards afforded to criminal defendants under both the Indian Constitution and the Code of Criminal Procedure.

This comment will consider the Indian experience in an effort to learn lessons from a legal system that has had to deal with the dreadful reality of domestic acts of terrorism and determine whether the same legislative overreach of antiterrorist legislation is beginning in the United States. Part II of the comment will examine instances in the United States where criminal procedure is bypassed in favor of new methods based on the new threat of terrorism. It will also examine cases that could normally be handled by the criminal justice system, but have, questionably, been handled under provisions of new antiterrorist legislation. With this in mind, this comment will look to the Indian experience in an attempt to gain insight from the fifty years of experience the Indian legal system has in grappling with the unique challenges terrorism poses to domestic criminal law. Part III will analyze why India's experience may be one that the U.S. legal system may learn from and argue that based on the history of India's Constitution and the particular nature of the recent terrorist activity within its borders, India does serve as a good point of comparison for the United States. The comment will next analyze the history of terrorism in post-independence India and the government's various responses. …