It is not surprising that the post-colonial Indian state, retaining many of the harsh features of the colonial state, has also dabbled in the politics of terrorism. It has maintained and perpetuated the colonial criminal justice system, insensitive to democracy in several ways. It has also enacted and re-enacted “security” acts — Defence of India Rules, Preventive Detention Act, Maintenance of Internal Security Act, Terrorist and Disruptive Activities (Prevention) Act, Prevention of Terrorism Ordinance, Unlawful Activities (Prevention) Amendment Act and the Armed Forces (Assam and Manipur) Special Powers Act (in the context of the Northeast, Punjab and Jammu & Kashmir) — with strong anti-human rights features, such as arrest on suspicion and long detention without trial. Not all of these have been in response to terrorism, neither have they minimised, let alone eradicate, terrorism; they have nonetheless been a source of state terror. A look at the legal instruments available within India’s criminal justice framework would suggest that the country’s arsenal of normal laws is not too deficient, if properly utilised.

Whether or not a Central counter-terror agency is eventually created, the Indian state’s role in internal security has been constitutionally obligated. Even before entry 2A of the Union list was inserted in 1976 to empower the Centre to deploy the armed forces or the paramilitary “in any state in aid of the civil power”, qualifying the entry on “police” in the state list, Article 355 charged it with a clear duty “to protect every state against external aggression and internal disturbance...” Moreover, the suggestion of a parliamentary panel on the law to give special powers as well as responsibilities for intelligence to a Central agency like the CBI to investigate terror-related cases on its own, also suggests that institutional instruments for counter-terror exist with the Centre; these have to be properly utilised.

... contd.