State Security and Elite Capture: The Implementation of Antiterrorist Legislation in India

Abstract

In the wake of the terrorist attacks on Mumbai in November 2008, India enacted new and tougher anti-terrorism laws that took effect in 2009—the Unlawful Activities (Prevention Amendment Act of 2008 (UAPA), and the National Investigation Agency Act of 2008 (NIA). This paper examines the current challenges facing the Indian Government in the implementation of these laws, in light of India's experience with the Prevention of Terrorism Act of 2002 (POTA).We analyze how POTA, a law originally designed to protect the Indian nation as a whole from extraordinary terrorist threats, was instead captured by state-level political elites and wielded as a weapon against rival political groups. We argue that this dynamic can be explained by the broader political transformation in the federalist structure of the Indian polity that occurred in the 1990s: the fragmentation and decline of Congress party control over the Central Government allowed state and regional parties, and state governments, to claim more and more power at the expense of the Center. An∼examination of case studies in the Indian states of Jharkhand, Uttar Pradesh, and Gujarat illustrates the dynamics of local capture and the deployment of anti-terrorist legislation by elites against economic challenges. Through an analysis of the implementation of POTA, this paper seeks to contextualize India's latest round of anti-terrorism laws in light of the structural realities of the Indian polity.

The authors would like to thank Pradeep Chhibber, Kevin Costa, Vasundhara Sirnate and the South Asian Politics Colloquium for their suggestions. A previous version of this article was presented at the 2008 Annual Meeting of the American Political Science Association in Boston, MA.

Notes

1. We use the terms “central government,” “center,” and “union” interchangeably in this article. We also use the terms “provincial” and “state-level” interchangeably.

2. The state of Punjab was the site of a bloody, sustained insurgency between the state and Sikh nationalists in the 1980s, which caused the assassination of Prime Minister Indira Gandhi in 1984 and the passage of TADA in 1985.

3. Invoking Carl Schmitt, Giorgio Agamben has argued that the sovereign's deployment of the “state of exception” has become the norm in human rights law (Agamben 1998).

4. See Maneka Gandhi v. Union of India (1978) (holding that Article 21 of the Constitution guarantees due process).

5. 1. In addressing circumstances where secessionism is a real threat, the Indian government has passed additional extraordinary legislation: The Unlawful Activities (Prevention) Act, or UAPA, made it illegal for organizations or individuals to question India's sovereignty over its entire territory, while the Armed Forces Special Powers Act of 1958 gave the Army special powers of arrest, detention, and immunity in the northeast states and Kashmir.

6. This list included former prime minister Atul Bihari Vajpayee, former Home Minister L. K. Advani, and former Chief Minister and former Bihar Chief Minister and current Minister for Railways Laloo Prasad Yadav, who named his daughter, born during the Emergency, “Misa.”

7. From independence through the successes of Charan Singh and the BKD / Janata governments in the 1970s, Congress held firm power in the state through a coalition of brahmin, bania, rajput, Dalit, adivasi, and Muslim constituencies. Those in the middle scale, including the backward castes, were excluded.

8. Singh participated in a delegation of 14 independent MLAs to the governor of Uttar Pradesh calling for Mayawati's removal as Chief Minister on grounds of competence ( Statesman 2002).