India to make a "fair balance" bw rights and terror law

New Delhi, Dec 17 (PTI) Indian Home Minister P
Chidambaram Wednesday said in the Lok Sabha that government
has sought to make a "fair balance" of respect for fundamental
rights and the demand of the people for tough provisions while
bringing forward two legislations to fight terror effectively.

Moving the National Investigating Agency (NIA) Bill
and the Unlawfaul Activities (Prevention) Amendments Bills for
consideration in the House, he appealed to the members to pass
the bills unanimously and promised to rectify defects in the
legislation, if any, in the next session in February.

"We will do our best to satisfy your aspirations. Let
us pass these two bills," he said in a brief speech commending
for consideration the two bills, which were introduced in the
House yesterday.

Dealing with some of the provisions of the bill, he
said notwithstanding the constitution of the NIA it would
still respect the state government's right to investigate
cases and would even associate them in such investigation.

"We have struck a balance between right of the Central
government and the state governments to decide on
investigation," the minister said.

In the UAPA bill, he said even while making tough
provisions the Courts have been given the powers to decide on
the prosection's case in the matter of bail and presumption of
guilt on the accused in some specific cases.

In the NIA, the Minister said the agency to be set up
by the Centre would respect the state governments power to
investigate terrorist cases.

When the state government sends the information to the
Central government, the Centre within 15 days would decide,
having regard to the gravity of the offence, whether it is fit
to be taken up by the NIA.

"In many cases, I expect the NIA to ask the state
governments to associate themselves," he said adding the NIA
would investigate offences under eight laws, including the
Atomic Energy Act and The Anti-Hijacking Act.

Judges to be appointed to the Special Courts under NIA
would be done in consultation with the Chief Justice of High
Courts and cases would be heard on day-to-day basis.

Appeals would lie with the division bench of the High
Court and should be disposed off in three months under the
NIA, he said.

Underlining differences between the provisions of the
UAPA and those of the now now scrapped-Prevention of Terrorism
Act (POTA), Chidambaram said enhanced duration of detention of
an accused without bail was needed in terrorist cases as it
may not not be possible to completion investigation within 90
days.

Even the maximum period of detention was "up to" 180
days and an accused could be released on bail earlier
depending on the courts which have powers to decide.

He said for extending the detention period, the court
has to be convinced that the investigation is making progress.
"It is an exceptional situation," he added.

Chidambaram said supposing there was no no progress
then the courts could release him. POTA gave an extraordinary
weightage to the word of the public prosecutor.

"The court can deal with the bail application but
not not without giving an opportunity to the prosecution," he
said referring to the provision in the UAPA.

On the presumption of offence, a rebuttable provision
has been introduced in the UAPA that the court could make such
an inference under certain circumstances.

Under the bill, if finger prints, blood stain, DNA
and weapons of offence are recovered from the crime scene, it
will be the first duty of the Court to presume the offence
while it will be the second duty of the accused to provide
contrary evidence.

Where there is definitive evidence suggesting
involvement of the accused, the courts can presume he is
guilty, he said adding in the assassination of Rajiv Gandhi
many of the accused escaped because of lack of such a
provision.

This will apply to the Special Courts to be set up
under the NIA, the Home Minister said, adding High Courts and
the Supreme Court would not be bound by this.

Drawing a comparison with POTA, he said under that
law, the Public Prosecutor had been given the overriding
powers, which was not true in the present case.

There had been views, even among the UPA constituents,
for and against that confession before a police officer should
be made admissible and should bail should be denied.

Chidambaram said "A fair balance of all views without
compromising the ability of the agency to prosecute offences
without disregard to the fundamental human rights has been
taken and keeping in mind the valued rights."

He said while an investigation can be done against
anybody under the new law, prosecution can be initiated only
after sanction by an appropriate authority of Central
government.

"There is a pre-sanction filter," he said while
talking about provisions to safeguard rights of people.

A judge appointed to a special court under the NIA
bill will have to complete the trial even if it requires
extension of his or her service beyond super-annuation, the
Home Minister said, pointing out that it was aimed at doing
away with delays caused by change of judge.

He, however, said he could not specify the time-frame
by which trial in a case could be completed as it depends on
the court.

Seeking to allay fears about the new law or the NIA
having clauses that could be misused, Chidambaram said these
contain "no extraneous" provisions.

Chidambaram said that while framing the two bills,
broadly all shades of views have been taken into account. He
mentioned that he had held consultations with Leader of
Opposition L K Advani and his "representative", whom he did
not name.

He sought the passage of the bills, saying if there are
any corrections required, "we can revisit" and undertake these
in February when Parliament will meet again.

"The nation wants creation of NIA and is watching. Let
us pass these," Chidambaram told the House.

Apparently addressing the state governments, he
emphasised that the right of states to investigate is
respected and that the NIA will take over probe only in
special circumstances.

If the centre feels that a particular case is not fit
to be taken up by the NIA under the eight laws, it would be
handled by the state government concerned.

He said the definition of terrorism has been taken from
the UN and covers funding for terrorism and organising of
terror.

While talking about implementation of the anti-terror
law, he said a terrorist is rarely caught like Ajmal Amir in
the Mumbai attacks case. PTI AKK
SAK
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