NCJ Number
208931
Journal
Journal of Criminal Law and Criminology Volume: 95 Issue: 1 Dated: Fall 2004 Pages: 315-343
Date Published
2004
Length
29 pages
Annotation
This article draws lessons for the United States from India's passage and application of antiterrorist legislation since heavily armed militants stormed India's Parliament on December 13th, 2001.
Abstract
Soon after the attack, India's Parliament enacted the Prevention of Terrorism Act (POTA). This is just the latest piece of legislation enacted in India to respond to recurrent terrorist activity within its borders since its independence in 1947. These laws have consistently been used beyond their originally prescribed scope to bypass the normal rules and safeguards afforded criminal defendants under the Indian Constitution and the Code of Criminal Procedure. In the United States, 1 month after the terrorist attacks on September 11, 2001, the U.S. Congress passed the PATRIOT Act, which increased the powers of the criminal justice system in responding to persons and acts labeled as terrorist. In the face of heavy criticism from civil libertarian groups and over 220 city council resolutions that opposed the act, the U.S. Justice Department has proposed a new bill entitled, the Domestic Security enhancement Act of 2003, nicknamed PATRIOT Act II by some. It would further expand the powers of the Federal Government and law enforcement agencies in the declared "war" on terror. This article analyzes the pattern of constant overreach in the application of India's national security legislation and also identifies instances of overreach under the U.S. PATRIOT Act. The article suggests what the United States might learn from India's experience when developing legislation that uniquely targets "terrorists." Among the lessons noted are an overly broad definition of what constitutes a "terrorist" act, leading to the erosion of traditional rights for defendants previously processed under conventional criminal procedures. Another lesson from India is the need to temper legislative response based on a particular terrorist act. 212 notes