The provision of Bills and amending legislations are indications that, along with ground-level policing action, the legal framework is available to tighten the screws on nefarious designs of terrorists and their supporters.
That this government has a penchant for springing surprises was evident with the sudden moves of demonetisation, surgical strikes after the Uri attacks, and the Balakot air strike. But when the action has to be taken internally, preparing of a robust legal ground is indispensable. The provision of Bills and amending legislations are indications that, along with ground-level policing action, the legal framework is available to tighten the screws on nefarious designs of terrorists and their supporters. While certain laws do exist for this purpose—the Prevention of Money Laundering Act (PMLA), 2002, was the most effective instrument to suck out the finances of terrorism supporters—hardly anything was being done to book and investigate cases in terrorist-hit areas in the Northeast, Kashmir, Chhattisgarh, West Bengal and Odisha. Sleeper units of ISI are known to exist even in Tamil Nadu, Kerala and Karnataka. One reason could be the clout that such outfits wield in such areas, which negates the influence of government machinery and renders intelligence gathering very difficult.
Now, the legislative changes being brought at one go are unprecedented. Just to list the major ones:
> The Unlawful Activities Amendment Bill, 2019, is being amended to proceed against an individual to be declared terrorist instead of just an organisation, which was the case earlier;
> Another amendment seeks to allow the investigation to be conducted by an officer of the National Investigation Agency (NIA) with prior approval of the director general even at a place other than that where the property representing the proceeds of terrorism is situated.
Second, to strengthen the mechanism of reporting of transactions by reporting entities, the PMLA, 2002, has been amended by seeking to insert Section 12AA by virtue of Clause 189 of the Finance Bill, 2019. It provides that reporting entities shall authenticate the identity of clients be it gold purchaser or property purchaser, etc, through additional means like Aadhaar or as may be prescribed, and such entities shall be required to take additional steps to determine the ownership, financial position, sources of funds of the client as well as the purpose behind the transaction and the intended nature of the transaction between the parties.
On such information not having being provided, the reporting entities can refuse to carry out transaction for such a person. It is also expected that in case the transaction is considered suspicious or is likely to involve any proceeds of crime, the scrutiny level of the reporting entity will correspondingly go up. This effectively means that the reporting entities shall act as the first level of scrutiny of suspect transactions under the PMLA.
Thirdly, the National Investigation Agency Act has been sought to be amended by allowing to probe cybercrime cases as well as cases of human trafficking. Similarly, the NIA shall be authorised and competent to also investigate ‘individual’ suspects’ links to terror along with terrorist organisations.
The Benami Transactions (Prohibition) Act, 1988, is being amended by adding Section 54(B) to permit entries in the records or other documents in the custody of any authority to be admitted as evidence in any prosecution or attachment proceedings. Even certified copies henceforth shall be allowed to be adduced where originals, for some reason, cannot be produced. The net effect will be that the records of the registrar of properties or of any other body on the production of such record or attested copies can be allowed as evidence and its authenticity taken as proved. It is amply clear that this strengthening of provisions can facilitate action against property attachments and confiscations even through remote investigations, and therefore terrorists activities can be financially paralysed and their supporters crippled.
Further, Section 72(A) PMLA is being inserted to provide for an inter-ministerial coordination committee with statutory backing, to allow various agencies dealing with money laundering, counter terrorism, financial sector crimes, etc, to act in synergy with others. Although such arrangements were earlier also available in the Joint Intelligence Committee and the Economic Intelligence Bureau, now they have been legally structured and cooperation shall be required to be statutorily provided by all regulators and agencies. In the 1980s, the government had created the Economic Intelligence Council under the chairmanship of the finance minister to encourage collation and dissemination of information—but the avowed purpose couldn’t be achieved. Whether the new legislation can surmount individual organisations’ quest for glory is something the current dispensation should focus on. However, with the stated resolve and the past experience of 3-4 years, maybe things will be done differently now.
While legislative intent can provide muscle to the efforts of ground-level officers, it is eventually the righteous officers who make or mar the effects of a legislation. Too many cases are quashed by courts for lack of proper investigation. Conviction is always dependent on tying up evidence and within all fours of the law. At the same time, fundamental right violations have to be curbed. Too free a hand and that too without exacting supervision can create cavalier investigators with disregard to extant laws. One must remember the adage: ‘Power tends to corrupt, and absolute power corrupts absolutely’.
The author is an advocate (Amicus Rarus) and former commissioner of Customs & Excise