Author Name:   law.nalinnair

The article discusses the major anti-terrorism legislations enacted in India and is an attempt to distinguish the myth and reality behind these legislations....

Anti-terrorism Laws: Distinguishing Myth and Reality

“The country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.” - Kartar Singh v. State of Punjab[1]

Literally, “terrorism” like any other ‘ism’ is a system of views or methods or theory that strongly believes in the use of ‘terror’ to achieve certain objectives. “Terror” in the ordinary parlance, means, intense, over powering fear and use of terrorizing methods for governing, or resisting a government. Terrorism can be referred to as a synthesis of war and theatre, a dramatization of the most prescribed kind of violence - that which is perpetrated on innocent victims – played before an audience in the hope of creating a mood of fear, for political purposes.[2] Like a theatre’s objective is to entertain the audience, similarly objective of terrorism is to intimidate the government as well as the citizens. At present, terrorism poses a threat to the security, integrity and sovereignty of several nations on a global scale. Terrorism has now acquired global dimensions and has become the challenge for the whole world. India has been the victim of terrorism since its pre-independence period.

India has been facing multifarious challenges in the management of its internal security. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country[3]. The reach and methods adopted by terrorist groups and organization take advantage of modern means of communication and technology using high-tech facilities available in the form of communication system, transport, sophisticated arms and various other means. This has enabled them to strike and create terror among people at will. The criminal justice system was not designed to deal with such type of heinous crimes. Although, Indian legislature has enacted several laws to curb terrorist and separatist activities, terrorism resembling cancer is likely to spread through the body politic and destroy the democracy.

As if ‘Terrorism’ itself was not enough to destroy the democratic nature of a country, the anti-terror legislations gave the officials and the government a license to do exactly that. The legislations has been misused and abused by the law enforcing agencies to terrorise the minorities and political rivals. This paper discusses the major anti-terrorism laws in India and intends to expose the harsh reality related to them.

Anti-Terror Laws In India
India has always believed that the only effective way to ensure a safer tomorrow for nations is to look at terrorism from global perspective and lock arms in fight against it.[4] Moreover it is believed that terrorism is an extra legal phenomenon, and law has a limited role to play; but even this limited role is indispensable. Thus, India wounded deeply several times by terrorist strikes, has enacted some anti-terrorism laws, which have always been subject of much controversy. For the sake of convenience and brevity, the anti terror laws in India can be divided into two categories: Repealed and Existing Laws.

Repealed Laws
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter as TADA)
TADA was specifically designed to deal with terrorist activities in India. However, the provisions of TADA gave the law enforcing agencies arbitrary powers and these provisions were an utter disregard for the Criminal Procedure Code and the Indian Evidence Act. TADA allowed for the admission of confessions of detainees, in police custody, in legal proceedings against them which was in contradiction to the provisions of the Indian Evidence Act which expressly prohibited such confessions.[5] While the Criminal Procedure Code required identification to be made at a test identification parade, TADA allowed identification to be based on a witness having picked out the detainee's photograph.[6]

TADA also provided for the creation of "Designated Courts"[7] which had the exclusive jurisdiction to try violations of its provisions.[8] These Courts were closed to the public, and provided significantly diminished procedural protections for suspected terrorists. For example, where the potential punishment was not more than three years, the Court was authorized to conduct a "summary trial,"[9] though it was free to recall witnesses or rehear a case where circumstances warranted. Also, Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness.

Finally, TADA created a presumption of guilt in situations where arms or explosives were found, in the possession of the accused, which were similar to those used in the terrorist act or in cases where the fingerprints of the accused were found at the scene or vehicles used in the terrorist act, or where the accused rendered any financial assistance to a person accused of or reasonably suspected of a terrorist act.[10] Of the 52,998 people detained under TADA at the end of 1992, a mere 434, or 0.81%, had been convicted. The shadow of TADA continues to loom, even though TADA is no longer in effect, as the State retains the power to charge suspected persons retroactively for crimes committed during its enactment.

TADA came to be challenged before the Apex Court of the country as being unconstitutional in the case of Kartar Singh v. State of Punjab[11]. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good. However, this was just a myth. In reality there were many instances of misuse of power for collateral purposes. The Hon’ble Supreme Court in the same case has stated, “The invocation of the provisions of TADA in cases, the facts of which did not warrant, was nothing but sheer misuse and abuse of the Act by the police.”[12] The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials.

TADA was mainly misused in Punjab and Kashmir. In Punjab, for instance, out of the 18000 cases registered during the decade-long militancy, 11,000 cases were brought before courts, the rest were cancelled. So far 8,700 cases have been decided in Punjab with convictions in 188 cases only and acquittals in 8,300 cases. At present 478 people are still facing trial under TADA in Punjab. Misuse of TADA was most reported from states which had no history of terrorism like Gujarat where at one time 19,000 persons were booked under TADA although that state did not experience terrorism. TADA lapsed in 1995

The Prevention Of terrorism Act, 2002 (hereinafter as POTA):
On the 13th of December 2001, five Pakistani Terrorists attacked the Indian Parliament, killing seven people and placing the country into a heightened State of alert. In response to the domestic pressures for the failure to crack down on terrorism, like its American counterpart, the Indian central government in March 2002 passed the Prevention of Terrorism Act, to enhance India's ability to crack down on possible terrorist threats. POTA has by far been the most draconian anti-terror legislation in India.

Under an expansive definition of terrorism, POTA may also be applied to cases of murder, robbery, theft and other crimes that would ordinarily be covered under the Indian Penal Code. It also provided for criminal liability for mere association or communication with suspected terrorists without the possession of criminal intent. POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organization,”[13] does not clearly define what these terms mean.

Drastically deviating from the principles of assumption of innocence and requirement of criminal intent, an accused is presumed to be guilty until proven innocent in certain circumstances.[14] This section lends itself readily to abuse, especially by police officers, and may also be applied arbitrarily since many of the offences fall under the Indian Penal Code as well. It does not require the government to furnish evidence and specify grounds when issuing a notification declaring an organization a ‘terrorist organization’. The onus is thus on the accused organization to disprove the validity of its having been declared a terrorist organization by the Central Government. The Central Government thus becomes judge, the jury and prosecutor. Further, section 48(2) provides for the option of pre-trial police detention for up to a period of 180 days.

‘Special courts’ for trials were established under POTA. These Courts were given the discretion to hold trials in non-public places (like prisons) and to withhold trial records from public scrutiny, thus preventing the independent monitoring of special court sessions. The special courts also had the option of proceeding with trials in the absence of the accused or his/her lawyer[15]. The special courts can hold trials in camera and keep witnesses’ identities secret, thus undermining the right to fair trial through prejudicing of the defense case. It makes admissible as evidence intercepted communication against the accused. There are also fears that the detentions under POTA are dangerously long, as torture in police custody is a fact recognized to be widespread by the authorities. Section 32 provides that confessions made to police officers are to be admissible in trial in contravention to the provisions of the Indian Evidence Act.

The government had tried to project POTA as a more acceptable version of the notorious TADA. This was just a myth. The harsh reality was that POTA was even more draconian and arbitrary. Two years after the existence of POTA, legitimate fears of its misuse against political opponents and demonized and marginalized communities were borne out. POTA’s opponents warned that officials would use the law to target minorities and political opponents.[16] Their fears were soon realized. The states that enacted POTA wasted no time in capitalizing on its broad definitions of terrorist offenses and sweeping powers of arrest and detention.[17] A mere eight months after its effective date the seven states applying POTA had arrested over 940 people, at least 560 of whom were languishing in jail.[18]

The State of Jharkhand in particular appeared to have detained more people under POTA than even terror-plagued Jammu and Kashmir, which had witnessed some of India’s most violent insurgency for over ten years.[19] Jharkhand gained particular notoriety for arresting women, children, and the elderly, even as a High Court in Tamil Nadu decided that police could not arrest juveniles under POTA.[20]
Misuse of POTA along communal and minority lines was most glaring in Gujarat.[21] In Gujarat, police invoked POTA to arrest 123 Muslims allegedly involved in a vicious attack on a train full of Hindu passengers. The government declined, however, to use POTA against Hindus involved in pogroms that killed over 2,000 Muslims.[22] All but one of Gujarat’s POTA detainees was Muslim.[23] Police held people for questioning for days or weeks without access to family members or to counsel, frustrated habeas corpus applications, and threatened to arrest family members under POTA if they petitioned the government.[24] Some detainees complained of being tortured into giving confessions.[25]

In April 2003, police in Uttar Pradesh arrested two Kashmiri Muslim students for allegedly sympathizing with a Muslim terrorist group.[26] Every Kashmiri in an area of the state frequented by students became a suspect in a sweeping investigation. Investigators searched school records and school managers kept Kashmiri students under observation.[27]

Similar to POTA’s arbitrary application along communal and minority lines was its arbitrary use against political opponents. In Uttar Pradesh, after months of harassment in the form of twenty criminal charges and various raids on their property, Chief Minister Mayawati arrested her longtime political rival and his seventy-three-year-old father under POTA.[28]

In March 2002, police in Jammu and Kashmir invoked POTA to detain Hurriyat leader and Jammu and Kashmir Liberation Front Chief Yasin Malik.[29] It was alleged that Malik illegally received a large sum of money from Pakistani couriers.[30]

The most significant example of political abuse, however, occurred in July of 2002, in the State of Tamil Nadu. Chief Minister J. Jayalalitha arrested Vaiko, the general secretary of a Tamil nationalist political party known as the Marumalarchi Dravida Munnetra Kazhagam (MDMK) for publicly expressing sympathy for the banned LTTE.[31] With his detention, Vaiko became the first Member of Parliament and chief of a registered political party in the country detained under POTA.[32]
Existing Laws

The Unlawful Activities (Prevention) Act, 1967(hereinafter as UAPA):
UAPA was enacted with the object to make powers available for dealing with activities directed against the integrity and sovereignty of India, and thus for more effective prevention of certain unlawful activities of individuals and associations. The UAPA empowers the Central Government to declare an association, with the objective of carrying out unlawful activities as defined under the section 2(f) of the Act, as an unlawful association by a notification in the official gazette. Continued membership of an unlawful association and taking part in or committing or advising or inciting any unlawful activity is punishable with an imprisonment of two years and seven years respectively besides fine.

The UAPA looked a very potential preventive measure to combat all anti-national activities including terrorism. The provision relating to reference of notification (declaring of an association unlawful) to a tribunal for adjudication, is a good check on ‘state terrorism’. However the recent amendments in the UAPA in 2004 and 2008 have made the Act even more draconian than TADA and more vulnerable to abuse than POTA.

The 2004 amendment gives more scope to the police when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police are given power to produce intercepts in the court free from any safeguards provided by the repealed POTA. UAPA, earlier meant to ban any unlawful association, under the 2004 amendment has a separate chapter for banning terrorist organization. But the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal, whereas, there is no such requirement if the ban is on the charge of terrorism.

The more far-reaching and controversial anti-terror measures are located in the 2008 Amendment which has tried to strengthen the four decade old organized crime legislation of nineteen sixty-seven by incorporating new anti-terror measures such as redefining more elaborately the term 'Terrorist Act'[33], conferring special powers of arrest, search and seizure in respect to terrorism[34], extension of period of detention in police remand to thirty days and detention pending investigation to one hundred and eighty days[35], abolition of anticipatory bail[36], limitations on right to bail[37], abolition of right to bail in case of an unauthorized or illegal foreign accused[38] and changing the rule of presumption and shifting the burden to the accused on presentation of material incriminating evidence against the accused[39] etc. What makes these amendments as hard anti-terror measure and turns people to hail them as such, are longer period of detention of one hundred and eighty days without the requirement of a charge sheet; substantial diminution of bail right to the accused and alteration of the rules of presumption and burden of proof.

The Government has claimed that appropriate safeguards have been adopted to prevent the misuse of the provisions.[40] However, the history is witness to the abuse and misuse of such arbitrary and wide scoped provisions. The 2008 amendment is nothing less than an incarnation of POTA, in an even more brutal and draconian form, and the blatant misuse that followed it.

The National Investigation Agency Act, 2008 (hereinafter as NIA):
The NIA Act has for the first time envisaged the setting up of an investigation agency at the national level that is conferred with the power to investigate throughout the territory of India cases relating to nine categories of serious offences (seven under the special legislations and two under the Penal Code). Although, it is generally believed that the NIA Act relates only to the function of investigation, but the reality is it also has provisions relating to prosecution and trial of Schedule Offences. Chapter IV is devoted to the constitution, composition and sitting of the Special Court[41]. Section 16 lays down the special procedural rules that the Special Court would follow for trials of the Scheduled Offences. Section 16(1) empowers the Special Court to take cognizance of offences on receiving a complaint of facts that constitute the offence, even without committal proceedings.

Another concern is the unfettered discretion of Special Courts to hold in camera (closed) proceedings. The NIA authorizes the court to hold all or any proceedings in camera “if [it] so desires.” While there is sometimes a need for in camera proceedings, to ensure protection of both witness or defendant, this open-ended allowance for closed trial proceedings conflicts with the basic fair trial right of all defendants to a public trial.[42] Another significant departure from ordinary trials is that the Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness[43].

The aforesaid procedural variation marks a departure from the due process guarantees in at least, two important respects; first, requirement of evidence to be taken in presence of accused[44] and second, requirement of according to accused the right to be defended by a pleader of his choice.[45] But because these new procedural standards are to apply not only to terrorism, but eight other categories of scheduled offences and that this law is not for a limited time, impel us to think of its wider implications. For example in the high profile Malegaon Bomb Blast case, in which eleven accused are already charge-sheeted, how would anyone be able to appreciate if the Special Court were to hold trials in the absence of the accused or the trials are held without affording any opportunity to the accused to be defended by a pleader? Would such a trial be described as a 'fair trial' by any civilized standards? Even the most articulate defenders of "fresh balancing of the interest of liberty and security," would find it difficult to call it a trial, much less a fair trial.

Conclusion
Terrorism has been a part of this human civilization since its inception and is not a concept of the new economic world but the means, ways and methods of terrorizing has become more gruesome, destructive and lethal in due course of time. Terrorism is not a passing phase, and is destined to continue. Anti terrorism laws are an absolute necessity for society and it should not be treated as political issues even if the implementation is questioned on the grounds of human rights violations.

The predicament is not the arbitrary provisions under the anti-terror laws. The dilemma is the abuse and misuse of these provisions for political as well as communal considerations. From TADA to POTA to UAP Amendment Act, 2004, considerable concern has been expressed about the possibility of misuse. In fact, the implementation of these legislations show that they have been misused for incarcerating political opponents, to serve communal purposes, and without application of mind against innocent citizens including minors, however, in different periods of time.

In the backdrop of such atrocious incidents of exploitation of the previous legislations, it is difficult rather impossible to even dream a fair and just implementation of the existing laws. The NIA Act, 2008 and the UAP Amendment Act, 2008, combined together, are more draconian than both TADA and POTA.

This problem however, is not India specific. The detention of people in the United Kingdom, the terrorist laws in Spain and of course the measures of the United States are examples where developed legal systems are compromising civil liberties and rights in interests of national security. There is an unequivocal settlement that national interests are of primary importance. Alan Dershowitz once emphasized that the Government loses credibility when it cannot tackle issues along due process concerns and resort to other means of prosecuting people.[46]

“He that would make his own liberty secure must guard even his enemy from repression and the violation of human rights.” - Thomas Paine
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 [1] [1994] 3 SCC 569
[2] Cindy C. Combs, Terrorism in 21st Century, 10 (2003)
[3] Rajeev Kumar Sinha, Crimes Affecting State Security, 120 (1995)
[4] Dhananjay Mahapatra, Terror Talks at 53rd Commonwealth Conference, The Times of India, Sep 26, 2007 at 13
[5] Section 15, Terrorist and Disruptive Activities (Prevention) Act, 1987
[6] Section 22, Terrorist and Disruptive Activities (Prevention) Act, 1987
[7] Section 9, Terrorist and Disruptive Activities (Prevention) Act, 1987
[8] Section 11, Terrorist and Disruptive Activities (Prevention) Act, 1987
[9] Section 14, Terrorist and Disruptive Activities (Prevention) Act, 1987
[10] Section 21, Terrorist and Disruptive Activities (Prevention) Act, 1987
[11] Supra at 1
[12] Id. At 580
[13] Section 3(5), Prevention of Terrorism Act, 2002
[14] Section 4, Prevention of Terrorism Act, 2002
[15] Section 29(5), Prevention of Terrorism Act, 2002
[16] George Iype, Terrorizing the Politicians, The Tribune, Aug 14, 2002 at 10
[17] Id.
[18] Rakesh Sinha & Kavita Chowdhury, POTA Fact: Jharkhand Has a Lot More Terror Than J&K, Indian Express, Mar. 28, 2003 at 8
[19] Akshaya Mukul, Jharkhand, J&K Send POTA Lists, The Times of India, Jan. 17, 2004 at 4
[20] Inder Malhotra, The Use and Misuse of POTA, The Hindu , Oct. 10, 2003 at 9
[21] Stavan Desai, In Gujarat, Only Godhra Case Is Fit Enough for POTA, The Indian Express, Apr. 3, 2003 at 1
[22] Id.
[23] Harsh Mander, State Subversion, Gujarat’s Victims Completely Isolated, The Times of India, Nov. 22, 2003 at 5
[24] Supra at 10
[25] Id.
[26] Supra at 12
[27] Id.
[28] Ajay Uprety, Playing a Crafty Game: Mayawati Kicks Both Friend and Foe on the Shin, The Week, Feb. 9, 2003 at 11
[29] Shujaat Bukhari, Yasin Malik Released, The Hindu, Nov. 12, 2002 at 1
[30] Mukhtar Ahmad, Yasin Malik Rearrested After Getting Bail in POTA Case, The Indian Express, July 20, 2002 at 4
[31] Sathiya Moorthy, TN Police Arrests MDMK Leader Vaiko, The Frontline, July 11, 2002 at 17
[32] Id.
[33] Sections 15,16,17 & 18, Unlawful Activities (Prevention) Act, 1967
[34] Sections 43A to 43D, Unlawful Activities (Prevention) Act, 1967
[35] Section 43 (2) (a) and (b), Unlawful Activities (Prevention) Act, 1967
[36] Section 43D (4), Unlawful Activities (Prevention) Act, 1967
[37] Section 43D (5), Unlawful Activities (Prevention) Act, 1967
[38] Section 43 D(7), Unlawful Activities (Prevention) Act, 1967
[39] Section 43E, Unlawful Activities (Prevention) Act, 1967
[40]Wordpress, 2008, Lok Sabha passes central terror agency bills, Available at: http://islamicterrorism.wordpress.com/2008/12/17/lok-sabha-passes-central-terror-agency-bills-national-investigating-agency-bill-and-the-unlawful-activities-prevention/ [Accessed 15th Feb, 2010]
[41] Section 11, 12, 13 & 14, National Investigation Agency Act, 2008
[42] Report of Human Rights Watch, Back to the Future: India’s 2008 Counterterrorism Laws, page 18 (27th July 2010)
[43] Section 16(5), National Investigation Agency Act, 2008
[44] Section 273, Code of Criminal Procedure, 1973
[45] Section 304, Code of Criminal Procedure, 1973 and Articles 22(1) and 39 A, Constitution of India
[46] Alan M Dershowitz, Rights From Wrongs: A Secular Theory of the Origin of Rights, 14 (2004)

The  author can be reached at: law.nalinnair@legalserviceindia.com

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