Within the framework of the history and practice of law, drawing upon the experience of the present such laws, especially TADA, this book shows how the justification of security laws which rooted in the ?dilemma of democracy? framework manifest in the reasons for the case. The existence of restrictions on government powers is part of democratic regimes. Ideas of democracy, individual rights, legitimacy and the role of law suggest that even in times of danger the government'spowers are limited in the range of activities it may pursue to ?protect the state?.
In the course of this book, we see how the politics of exception unfolds in India in all its manifestations on the threshold where the legal and political blur along the zone of indifference. The author says that the latter indicates not apathy, but complicity through a complex interlocking system of laws and eroding of the political and institutional structures of democracy. This is particularly true of POTA which was promulgated on the same lines as the global discourse on the ?war against terror?.
The book'semphasis is on extraordinary laws which are presented as problem-solving measures. They are normally justified by asserting their indispensability on one hand and assurances that come in response to specific situations and that they are not everlasting on the other hand. If we were to identify the characteristic features of extraordinary laws or respond to the question, ?What makes laws like TADA and POTA extraordinary??, the following features emerge:
o These laws come with the object and interest proclaiming the need to respond to specific problems of extraordinary nature
o It follows from the fact of extraordinariness that these laws are temporary and their lives are coterminous with the extraordinary events they intend to overturn
o Since they are extraordinary measures to extraordinary situations, they contain extraordinary provisions pertaining to arrest, detention, investigation, evidence, trial and punishment.
The author voices his reservations on the feasibility of these extraordinary laws and says that the Indian statute books have always had extraordinary laws and since the terrorist activities that these laws were purported to address did not abate, it is surprising that they have continued to be thought of as ?the last straw? of Indian democracy. Though the BJP had not supported the TADA at that time when it came up for renewal in 1995, but later Arun Jaitley asserted not only that POTO countered terrorism by ?necessary legitimate means?, but also appealed to Sonia Gandhi to ask the ?large numbers of eminent lawyers? that the Congress party had inducted to read the Supreme Court judgement in Rajiv Gandhi'sassassination case, which was tried under TADA. ?But for these special rules of evidence under TADA?, he pointed out, not a single conviction would have been possible. India would then have appeared ?a pathetically soft state, where terrorist groups kill a former Prime Minister and no one is convicted.?
Another line of argument proposed is that proper and judicious exercise of preventive detention powers within the boundaries of ?legality? is likely to lead to the observance of human rights. The book argues that with such laws and debating their intricacies at least ensures that the power to detain is exercised fairly, leading to ?better regimes of detention, fewer extra-judicial killings, encounters and disappearance.?
This is a technical book meant essentially for politicians and lawyers.
(Sage Publications India Pvt Ltd, B 1/11 Indian Cooperative Industrial Area, Mathura Road, New Delhi-110 044.)
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