Knee-jerk responses

Given heightened security concerns after the Mumbai strikes, the clamour for new laws to protect the country is understandable. But the usual problem with laws drafted in such a context is that they are misused, or not used at all. Almost always, the government's tendency is to increase the power of the bureaucracy and the police while cutting back on defences available to citizens, without significantly adding to the public good or improving security. Three recent examples will serve to make the point.

One is the demand that a law like the Prevention of Terrorism Act (Pota) be re-enacted. This flies in the face of all evidence with regard to what purpose Pota served, for it mostly provided a cover for locking up all manner of people, innocent and guilty, many with no connection of any kind to terrorism. The experience with all laws that short-change civil liberties, dating back to the infamous Maintenance of Internal Security Act (Misa) of the 1970s, has been the same: misuse and non-use. Opinions will differ on the quality and adequacy of the government's response to the outrage in Mumbai, but the Prime Minister has done well to point out that terrorist attacks took place even when Pota was on the statute books.

Then, there is the newspaper report which says that all organisations, including those in the private sector, will be asked to get the ministry of external affairs' approval before inviting a foreign delegation or accepting an invitation from overseas! As industry chamber PHDCCI has pointed out, something like 50 per cent of India's GDP has an external dimension, so you can imagine the havoc that will be created if businessmen have to run to the government for permission every time. The illiberalism of the whole approach, the lack of practical sense and the belief that a scrutiny of hundreds of applications by a ministry will achieve some purpose, are all the hallmark of a system that believes all wisdom lies with the government and nothing can be left safely in the hands of anyone else.

A good example of what can go wrong with such an approach is provided by the way in which the Foreign Contribution Regulation Act (FCRA) has been used. This was supposed to help monitor the inflow of funds to civil society organisations and the purposes for which these are used""goals that are unobjectionable. Yet, though every such contribution has to be vetted and cleared by the ministry of home affairs before the money can come in, it cannot be anyone's case that the end objective has been achieved. Anecdotal evidence suggests that officials have used their gate-keeping powers to extract rent for themselves.

Now the government is readying to start licensing telecom network managers/equipment suppliers. The argument is that Ericsson (which manages Airtel's network) is not under any obligation to provide intelligence agencies access to Airtel's network and may not cooperate with security agencies""which can be made a condition for a licence. But Airtel is already obligated to provide access to security firms and that should cover Ericsson as well. Another argument given is that dual purpose equipment produced/imported by such firms cannot be used in India in the event of sanctions, such as those imposed in the wake of India's nuclear testing; hence, the argument goes, conditions can be included in a licence to ensure that no item is subject to sanctions. But surely such a clause will only ensure these firms have nothing to do with India, since it is not up to them to guarantee supplies in all eventualities.

Another example of excessive security consciousness is the law that prevents telecom companies like Airtel from having their networks accessed overseas. Ericsson, for instance, manages Airtel's network, but cannot access it from abroad for maintenance or repair""something that security-conscious America allows, subject to certain security conditions; indeed, Nokia has shifted its global network operations centre to India and will monitor overseas networks from here! In short, a heightened security awareness is fine, but laws and rules also have to be sensible and practical.