The Silent Erosion: Anti-Terror Laws and Shifting Contours of Jurisprudence in India

Abstract

This paper unravels the diverse strands in the manifestations of the Prevention of Terrorism Act (POTA, 2002), focusing not only on law's words, i.e. the rules, principles and procedures, and its interpretations in judgments, but also on its effects. Adopting the violence of jurisprudence approach, it eschews the dichotomy between law and violence, examining the ‘effects of legal force’, in particular, the ways in which law becomes an integral part of the organization of state violence. Through an examination of the unfolding of POTA and laws dealing with ‘organized crime’ and ‘unlawful activities’ (Unlawful Activities Prevention Act, 1967, 2005), the trajectory of specific cases and judgments by Trial Courts, the High Courts and the Supreme Court, this paper shows how through an interlocking of the ordinary and extraordinary, anti-terror laws erode both the procedural and substantive aspects of the rule of law, become the terrain where permutations in alliance politics and configuration of power are played out, and assume an antagonistic notion of politics which seeks resolution through the elimination and externalization of difference. Extraordinary laws, it argues, are manifestations of a politics of negation. Processes that prolong the lives of such laws, and procedural interlocking and intermeshing that seek to give them permanence, are symptomatic of a deepening of the politics of negation.