The article is written by Suchandra Mukherjee, a 4th year BBA LLB student at University of Mumbai Law Academy. She is currently interning with LatestLaws.com.
Introduction: -
Terrorism is one of the world's most horrific crimes. Terrorism is derived from the French word Terrorisme, which is derived from the Latin verb "terrere" (to cause to tremble). During the French Revolution, the Jacobins used this precedent to impose a Reign of Terror. The term "terrorist" acquired a derogatory epithet after the Jacobins lost control. In current times, "terrorism" usually refers to a private group killing innocent individuals in order to create a media spectacle. Terrorism was defined by the United Nations Security Council in November 2004 as any act intended to cause death or serious bodily harm to civilians or non-combatants with the intention of frightening a community or pressuring a government or an international organisation to do anything. In many countries, acts of terrorism are legally distinguished from criminal acts done for other purposes, and "terrorism" is defined by statute.
Terrorism in India began before India's independence in 1947, although at the time, terrorist operations were aimed at instilling fear in the British rulers rather than killing the general public. As a result, we do not label these liberation warriors as terrorists, but after 1947, terrorism was used to murder innocent people. Terrorism struck Kashmir, Punjab, and the North East Frontier region early on. However, given the current situation, the threat of terrorism has grown. Jammu and Kashmir, Mumbai, Central India (Naxalism), and the Seven Sister States are the current hotbeds of terrorist activity (independence and autonomy movements). In the past, the Punjab insurgency has resulted in militant actions in both Punjab and Delhi, the India's capital.
It is the main attribute of terrorist operations is in the form of religious terrorism, according to Indian concerns about terrorism. Religious terrorism refers to acts of terrorism committed by organisations or individuals who are motivated by religious tenets. Terrorist activities have been committed on religious reasons throughout history with the hopes of spreading or enforcing a system of belief, viewpoint, or opinion. Terrorism in India is mostly attributed to extremist Islamic, Christian, Hindu, Sikh and Naxalite movements. Domestic and extremist terrorist actions are on the rise in India at the moment.
Recent incident of terrorist attack in India:
Since India's independence in 1947, at least 232 of the country's 608 districts have been affected by various insurgent and terrorist groups, with varying degrees of intensity. In the current circumstances, the country is home to up to 800 terrorist organisations.
Terrorism has increased dramatically in India during the previous two decades. In several cities, bomb blasts and terrorist attacks have occurred. Every patriotic Indian has been shocked by the terrorist acts. No civilised nation can accept such brutal inhumanity, supported or sponsored in part or entirely by its neighbours or domestic revolutionaries. The best approach to combat it is to reduce, if not completely eradicate, similar incidents. It is critical to prevent such incidents, and legislation like Pota can help.
Following the 26/11 Mumbai attacks, India's attitude toward terrorists and terrorist organisations has altered, and regulations to combat such operations have become considerably stricter.
Laws related to terrorism in India
Anti-terrorism legislation in India has long been a source of contention. One argument is that these regulations infringe on citizens' fundamental rights, which are guaranteed under Part III of the Constitution. The legislature has passed anti-terrorist legislation in the past, and the judiciary has backed it, albeit reluctantly. The goal was to pass these laws and get them into effect as soon as possible and not to make these severe measures a permanent part of the legal system. However, due to ongoing terrorist activities, the statutes have been reintroduced with the necessary changes.
Kartar Singh v. State of Punjab[1]
In this case it was noted by the Indian Supreme Court, which stated that the country is in the grasp of spiralling terrorist violence and is stuck between fatal pangs of disruptive operations.
The National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967 - are the current laws in force in India to combat terrorism. The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. The ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
The Terrorist & Disruptive Operations (Prevention) Act 1987, which came into effect on September 3, 1987, contained far more rigorous provisions than the UAPA and was expressly created to deal with terrorist activities in India. TADA was challenged in the country's Apex Court as being unconstitutional when it was enacted.
In the case of Kartar Singh v. State of Punjab, the Supreme Court of India maintained its constitutional legitimacy on the presumption that persons entrusted with such draconic statutory powers would act in good faith and for the general benefit. However, there were numerous cases of authority abuse for ulterior motives. The strict terms of the Act were abused in this case. TADA lapsed in 1995.
The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)
The Maharashtra Control of Organized Crime Act, 1999, was enacted on April 24, 1999, and is another important anti-terrorist law in India. This law was enacted to address the rise of organised crime in Maharashtra, particularly in Mumbai, as a result of the underworld. For example, in MCOCA, the definition of a terrorist act is significantly more flexible than in Prevention of Terrorism Act. MCOCA mentions organised crime and, moreover, classifies "insurgency propagation" as a terrorist act. A person is assumed guilty under Maharashtra law unless he can prove his innocence. MCOCA does not require police personnel who violate it to be prosecuted.
Prevention of Terrorism Act, 2002
With the rise of cross-border terrorism, the Pakistani ISI's ongoing offensive strategy aimed at destabilising India, and the events of 11th September 2001, it became necessary to enact a unique law to deal with terrorist actions. As a result, on March 28, 2002, the Prevention of Terrorism Act, 2002 (POTA) was enacted and notified.
The POTA clearly defines the terrorist act and the terrorist in Section 3 and grants special powers to the investigating authorities under the Act.
In case of Kartar Singh v. State of Punjab[2] the constitution validity of Terrorist and Disruptive Activities,1987 was upheld. In this case the accused arrested by the misuse of power by the police officer.
In the case of People's Union for Civil Liberties v. Union of India[3] the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same.
The Prevention and Treatment of Terrorism Act of 2002 (POTA, 2002)
It is a specific law that defines the terrorist act and the terrorist in Section 3, Sub-Section (1) of the Act. The Act establishes a legal framework to strengthen the administration's hand in combating the threat of terrorism, and it can and should be used against those individuals and acts that are covered by the provisions of this law and it is not meant as a substitute for action under ordinary criminal laws.
Unlawful Activities (Prevention) Amendment Act, 2004
However, it would be simple to suggest, as some opponents have, that the new law retains all of Pota's operational fangs or only makes cosmetic modifications. Even though many laws are similar, there is a significant difference between Pota and UAPA. Terrorism is commonly described as a low-intensity conflict. However, the loss that our country has endured in the previous two decades as a result of the increase of terrorist activities has been enormous; we have lost over 6000 individuals as a result of terrorist actions. More than 70000 citizens have already died. Aside from the money spent on our military forces, just keeping the whole system running costs a lot of money. To fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times. So that after making anti-terrorism legislation there is no stopping of terrorist attack.
In case of Sanjay Dutt v. State through C.B.I[4], Sanjay Dutt was detained under Section 5 of the TADA. However, he is not punished, despite the fact that Section 5 of TADA and Section 4 of POTA explicitly state that possessing certain unlawful weaponry is prohibited under TADA and POTA. This is an example of a legal loophole.
Conclusion:
The laws have been drafted and misapplied in various states, but when the majority of Indian inhabitants chose not to speak out against such restrictive legislations, the laws were misapplied across the country. TADA, for example, was first proposed and adopted in Parliament with the goal of containing forces who supported a separate homeland for Sikhs and were opposed to the creation of such a country. The Act, which was intended to restrict movement, was widely misapplied in all states until it was finally allowed to lapse and die on its own in April 1995, but not before it had wreaked havoc on the lives of thousands of innocent civilians across India. Over 15,000 people have been arrested in Punjab as a result of TADA. Despite the fact that the Act was repealed in April 1995, approximately fifty TADA cases are still pending in various Punjab courts. As a result, even after the Act's repeal, misapplication of TADA and abuse of powers by police officers continue unabated.
The reality is that TADA and POTA are generally misunderstood. Anti-terrorism legislation is required in India. The common counter-arguments against an anti-terrorist law are that it is misunderstood, that acts of terrorism could not be stopped even if such a law existed, and that existing laws are sufficient to deal with terror. All of this is a ruse. Furthermore, counter-terrorism requires a holistic approach, with law being only one component. Those who argue that the existing laws are enough are either delusory or speaking for ulterior motives.
Following 9/11, the United States passed the PATRIOT Act, which provided domestic law enforcement and intelligence agencies broad authority. It changed the processes for protecting the privacy of private communications, tightened the controls on money laundering, barred foreign terrorists from entering the country, and increased the penalty for terrorist acts. The UK passed the Anti-Terrorism Crime and Security Act in 2001, which granted police more powers and strengthened airport and laboratory security. It even permitted foreign nationals suspected of being involved in terrorist activities to be detained.
Even as proactive executive means of combating terror (intelligence, organisational, technical, and human capital related) are put in place, we need not just laws to combat terrorism, but also a new generation of individuals trained on what it means to fight terror in a democratic setting. In light of the misuse of powers under such acts, we must devise a method or mechanism to counteract it.
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