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Beyond Kasab guilty verdict, Mumbai attacks reshape Indian law

The guilty verdict announced Monday for Pakistani gunman Mohammed Ajmal Amir Kasab closed one chapter of the 2008 Mumbai attacks. But the impact on counterterrorism policy is still slowly unfolding.

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Indian security laws are a legacy of British colonialism – the Indian Penal Code under which Kasab is charged with waging war predates its 1947 independence. But it has a more recent record of using antiterrorism laws to intimidate political or popular opposition that makes these measures especially controversial.

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Since the 1970s, the central government has used such laws to suppress, sometimes violently, regional insurgencies and separatist movements in Jammu and Kashmir, Punjab, the northeast, and more recently, Maoists in central India.

“In some respects, like Israel, India has been dealing with significant national security concerns since its independence,” says Sudha Setty, associate professor at the Western New England College School of Law in Springfield, Mass., adding that this may explain why Indian “counterterrorism laws have been so robust.”

India’s first nationwide terrorism law was adopted in 1985, replacing a law targeted at Sikh separatists in Punjab. The law was allowed to expire 10 years later after widespread complaints about human rights violations. But in the wake of the 9/11 attacks, in 2002, a similar law was passed by the Hindu nationalist Bharatiya Janata Party-controlled parliament.

The 2002 Prevention of Terrorist Activity Act (POTA) set up special courts to speed up trials, tightened conditions for bail, and relaxed evidence standards. Like the 1985 law, it broadened the definition of terrorist activities, allowed authorities to hold suspects without charge for 180 days (the norm was 90 days), and shifted the burden of proof on to the defendant.

But POTA became better known for targeting political opponents and religious minorities than for delivering speedy justice.

Less than a year after it had passed, a prominent opposition leader in the southern state of Tamil Nadu was arrested for speaking favorably about the Sri Lankan Tamil Tigers separatist group. Of the 240 arrested under the act by early 2003 in the western state of Gujarat, 239 were Muslim (the only non-Muslim was Sikh).

The Congress-led United Progressive Alliance (UPA) repealed the unpopular law when it came to power in 2004. But the 2008 Mumbai attack led the coalition government to backtrack. A month after the attack, it reintroduced measures such as specialized courts and longer precharge detention.

In some ways, the new measures are worse, says Ms. Setty of Western New England College. For one, they are more permanent because the government incorporated the measures into existing law instead of creating special laws with an expiry date. They also have less “meaningful judicial scrutiny regarding the decision to put a defendant in the ordinary courts or in a specialized court,” she says.