Author Name:   rishabh.juneja

It is the ‘great right of self defence’ from which the moral justification to all anti-terrorism laws is derived. The term “terrorism” comes from the French word...

Anti-Terrorism Laws

“Every man when driven to the wall by a murderous assailant will override all laws to protect himself and this is called the great right to self defence” by Abraham Lincoln.

It is the ‘great right of self defence’ from which the moral justification to all anti-terrorism laws is derived. The term “terrorism” comes from the French word “terrorisme” which is based on the Latin verb terrere(to cause to tremble).It was used to describe the actions of Jacobin Club in their rule of post revolutionary France ,the so called ‘Reign of Terror’. Terrorism is defined in the U.S. by the code of Federal Bureau of Investigation as “the unlawful use of force and violence against person or property to intimidate coerce a government, the civilian population or any segment thereof, in furtherance of political or social objectives.”

Terrorism has immensely affected India. Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by part III of the Constitution. Anti-terrorism laws are laws made by the government which guides the practices, tactics, techniques and strategies that government, militaries, police departments and corporations adapt in response to terrorist threats and acts both real and implied.

The need of anti-terror laws in the present scenario .Under Article 355 of the Indian Constitution the central government has a duty to protect states from internal disturbances. The dramatics of the December 13th attacks on the parliament building combined with the September 11th atrocities in the United States, gave rise to need of increasing power of security forces despite long history of past abuses. The United Kingdom adoption of the Prevention of Terror Act and United States PATRIOT Act strengthened the notion that other countries had acknowledged the need to move beyond traditional domestic criminal procedure in order to properly battle terrorism. In one of the Indian cases in which the Supreme Court took note of it in Kartar Singh V. State of Punjab, where it observed that country had been in the firm grip of spiraling terrorist violence and it’s caught between deadly pangs of disruptive activities.

The first law made in independent India to deal with terrorism and terrorists activities that came into force on 30th December 1967 was-The Unlawful Activities (Prevention) Act 1967.This was an act to provide for the more effective prevention of certain unlawful activities of the individual and associations and for matters connected there with. The UAPA Act is particularly vile, and will have the effect of turning India into a virtual police state. The myth of UAPA Act is that it containing a number of draconian clauses. On 14 May, 2007 a prominent doctor and human rights defender Dr Binayak Sen was arrested under this act by Chhattisgarh government. This raised a lot of criticism of this act again and 22 Noble Prize winners wrote to Indian Government in response for release of Dr Sen, arguing that “he is charged under two internal security laws that does not comport with international human rights standards.” Now after the November 26-29 attack UAPA Act has been amended. Now it is also applicable to the entire country, which was originally not extended to the strife-torn state of Jammu and Kashmir. In Kalyan Chandra Sarkar V. Rajesh Ranjan @ Pappu Yadav and Anr the court stated that the law in regard to grant or refusal of bail is very well settled. The hardcore reality is that The Unlawful Activities (Prevention) Amendment Act,2008 is what is called true example of –Repeating the mistakes of past. The new definition now includes acts done with the intent to threaten or “likely” to threaten the unity, integrity, security or sovereignty of India, and offences related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government. “The list is potentially endless”. Under the Act, an accused can be held liable in police custody for 30 days, and further detained without charges for 180 days, although courts can restrict the period to 90 days. “This is a travesty of constitutional rights and the rule of law”. “Even worse is the presumption of guilt in case there is a recovery of arms, explosives and other substances, suspected to be involved, including fingerprints on them. The police in India routinely plants such arms and explosives, and create a false record of recovery.”When coupled with the denial of the presumption of innocence, the 2008 amendment empowers the government to construe anything as a terrorist act. This is a dangerous development that threatens ordinary citizens who may be prosecuted under the amended UAPA if it is politically convenient. Under this act Central Government has the power to “freeze, seize…attach” and prohibit use of “funds, financial assets or economic resources” of individuals “suspected to be engaged in terrorism”. Thus anyone could be targeted if the government had an interest in freezing their assets or preventing their entry into India, and accused would have little recourse, as suspicion is inherently difficult to disprove. The 2008 UAPA amendments reinstate draconian laws from the past and, in some cases, have been made a permanent feature of the criminal justice system. Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorists Activities Act were at least only temporary legislative frameworks, with provisions for their review, and if required withdrawal. The 2008 amendments lack these review mechanisms. India’s UAPA 2004 grants immunity from prosecution to the Indian and State governments, and their employees. Additionally, the 2008 UAPA amendments provide very limited judicial oversight of criminal proceedings. The 2008 amendments have not altered the provisions in the 2004 Act regarding immunity from prosecution for government officers and authorities and for members of the armed forces. Thus, an individual wrongly arrested, detained and/or imprisoned has virtually no legal recourse to seek compensation or combat impunity.

Terrorist And Disruptive Activities (Prevention) Act, 1987(TADA)
The second major act came into force on 3 September 1987 was the terrorist and disruptive activities (prevention) act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India . When TADA was enacted it came to be challenged before the apex court of the country as being unconstitutional. The Supreme Court held its constitutional validity on the assumption that those entrusted with such draconic statutory power would act in good faith and for the public good in the case of Kartar sing vs. state of Punjab. However, there were many instances of misuse of power for collateral proposes .TADA lapsed in 24 May 1995 other major anti-terrorist law in India is The Maharashtra control of organized crime act 1999which was enforced on 24th April 1999.

The armed force special powers act (hereinafter AFSPA) dealt with a targeted, troubled region within India, The terrorist and disruptive activities (prevention) act of 1987 (hereinafter TADA) was an anti-terrorist legislation that was meant to apply throughout India. TADA allowed for the admission of confessions of detainees in police custody in legal proceedings against them. TADA prescribed various “disruptive activities “ which included not only acts that disrupt the sovereignty or territorial integrity of India ,but also acts which “question” such sovereignty or territorial integrity or “support any claim…directly or indirectly… for the secession of and part of India from the union. Finally, TADA created a presumption of guilt in situations where arm or explosive were found ,in the possession of the accused, which were similar to those used in the terrorist act or in cases where the accused fingerprints were found at scene or vehicles used in terrorist act ,or where the accused rendered any financial assistance to a person accused of or reasonably suspected of a terrorist act, of the 52,998 people detained under TADA at the end of 1992 a mere 434 or 0.81% had been convicted. It is submitted that, the shadow of TADA continues to loom as, even though TADA is longer effect, as the state retains the power to charge suspected persons retroactively for crimes committed during its enactment. Under TADA the conviction rate was less than 1% despite the fact the confessions made to the price, even though being given under torture were admissible as evidence .TADA where 98%of the cases never reached the trial stage this section 48(2) also be misused by the police by keeping an accused for long period of detention without charge could not be trial.

Prevention of Terrorism Act 2002
On the 13th of December 2001, five Pakistani terrorist attacked the Indian parliament, killing seven people and placing the country into 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 on 26 March 2002, passed the prevention of terrorism act, though joint session of parliament, to enhance India’s ability to crack down to possible terrorist threats. The criminalization of “abetting “a terrorist, which had been struck down in TADA by the Indian supreme court was revived under POTA. Section 20 of POTA presumes that an individual charged with being a member of a terrorist organization is a terrorist unless that person can show that he or she has not participated in terror activities and that the organization itself was not declared illegal by the state at the time when person joined. Hence by placing this type of onus on the individual, the state inevitably inhibits those peaceful persons who might wish to join a non –mainstream association but fear that doing so could subject them to potential arrest or at the very least to the hassle of having to prove their innocence. Furthermore, section 57 of the act gives the governmental authorities immunity from prosecution under POTA as long as the actions taken to combat terrorism are done in good faith. Moreover, POTA has established special court to handle cases of terrorism. Under section 49(2), of POTA the police may place a suspected terrorist in jail for up to ninety days without any court proceedings. On the 11th of July, 2002 in the state of Tamil Nadu, Vaiko a leader of opposition political party was arrested and charged of violation of section 21 of POTA which prohibits the promotion of any terrorist group explicitly banned by the statute .Vaiko had made remarks in support of the liberation tigers of Tamil Eelam an organization deemed terrorist by the central government. According to the state government on the 29th of June 2002, Vaiko in a speech allegedly stated “I was, I am and I will continue to be a supporter of the LTTE .Two weeks later, P. Neduraman another opposition leader in Tamil Nadu was arrested under POTA for similar charges. In April 2003, Vaiko petitioned the Supreme Court to declare section 21 of POTA as unconstitutional. In December 2003 , a two judged bench of the court refused to grant release and upheld the validity of section 21 however it opined that the special court not find an individual guilty of violating this section for expressing only “moral support” to banned terrorist group. In Uttar Pradesh 25 Dalit were arrested under POTA between April and July 2oo2 .Tribals in the area claim that POTA has been used to characterize their struggle for worker’s right as membership in the banned, extreme leftist Maoist Leninist groups known collectively as naxalites. In one district, "nine out of twelve people arrested were bonded laborers who refused to return to work because of the physical abuse of their employer." POTA has been used in a similar way in the state of Jharkhand on the 19th of February 2003, almost 200 people were arrested under POTA, including a “twelve year- old boy and an eighty –one year old man”. After the Gujarat communal riots the Gujarat police arrested hundreds of Muslims and charged them with violating POTA not a single Hindu has been charged under POTA. Article 14 of the constitution of India reads, “the state shall not deny any person equality before law or the equal protection of laws “furthermore, article 15 reiterates this tenet more specifically by prohibiting the state from discriminating against any citizen on the basis of” religion, race, caste, sex place of birth or any of them. Two years from the enactment of the POTA a number of issues as to possibilities of misuse of the provisions of the anti-terror law including the targeting of minorities and using it against political opponents had arisen. In Gujarat all except one of the POTA detainees are from the minority and in Tamil Nadu and up to the ostensible anti-terror law has been abused to look, without lucidity and accountability political opponents and underprivileged communities respectively. the development after the enactment of the POTA ,including the responses received by the POTA review committee show that the POTA is worse than TADA .POTA provides for criminal for criminal liability for mere association or communication with suspected terrorist without the possession of criminal intent(section 3(5)of the POTA)section 4 of POTA is similar to section 5 of TADA in laying out the legal presumption that if a person is found in unauthorized possession of arms in a notified area ,he/she is automatically linked with terrorist activity .Sec48(2)provides for the option of pre-trial police detention for up to 180 days. The act effectively undermines the tenet of criminal justice system by putting the burden of proof on accused. Further legal representatives of the accused can be present for the part of the interrogation. Moreover police officers can be prosecuted for abusing their authority. The POTA also provided that victims could pay compensation. At the peoples tribunal of POTA and other security legislation and other security legislation at press club in new Delhi on July 16,2004 a 629 page report based on depositions made before the tribunal by victim s and their families from ten states in India as well as expert depositions by lawyers and activists show that such security legislations grant sweeping powers to authorities ,which hassled to misuse of these power and severe restrictions of basic rights .at the same time, such legislation do not address the political ,social and economic roots of the problem. The tribunal concluded that the review of victim and expert testimony showed that the misuse of the act is inseparable from normal use.

Finally on September 17 2004 the Union Cabinet in keeping with the UPA government’s common minimum program approved ordinances to repeal the controversial prevention of terrorism act 2002(POTA) and amend the Unlawful Activities (Prevention) Act 1967, home minister Shivraj Patil said that government would provide a sunset period of one year during which all cases pertaining to POTA would be reviewed by the central POTA review committee. He added there would be no arrests made after the ordinance is promulgated. To fill the lacuna that have been created due to repeal of the act adequate, amendments were being brought to the unlawful activities (prevention) act 1967to define a terrorist act and provide for banning of terrorist organization and their support systems including funding of terrorism attachment and forfeiture of proceeds terrorism etc. All terrorist organization banned under POTA would continue to remain banned under the unlawful activities act, after the repeal of the act. Some of the clauses contained in POTA which will be completely dropped in the amended unlawful activities act are the onus on the accused to prove his innocence , compulsory denial of bail to accused and admission as evidence in the court of law the confessions made by the accused before the police officer.

A “multi-prolonged approach” has been advocated by the Second Administrative Reforms Commission; incorporating legal reform, improved institutional efficiency, increased resources, and socio-economic development and equality. Such an approach is better placed to deal with domestic terrorism because it reflects the multifaceted nature of terrorism.

Need For Anti-Terrorist Legislation In India
Under article 355 of the Indian constitution ,the central government has a duty to protect the state from internal disturbances. Half a million cases in the high court have been on hold for 10 years or more and almost 1 million in the lower courts .the united kingdom adoption of the prevention of terrorism act and the united states PATRIOT ACT strengthened the notion that the countries had acknowledged the need to move beyond traditional domestic criminal procedure in order to properly battle terrorism.

Firstly, the government should immediately repeal the Unlawful Activities (Prevention) Act, 2008, and enact separate emergency legislation dealing specifically with terrorism.

Secondly, the government must promote social cohesion and address the grievances of its constituents so to “lessen the influence of terrorist propaganda”. Former UN Secretary-General Kofi Annan has argued that “discrimination on the basis of ethnic origin or religious belief ….create[s] grievances that can be conducive to the recruitment of terrorists, including feelings of alienation marginalization and an increased propensity to seek socialization in extremist group.” As highlighted above, past terrorist laws, such as TADA and POTA, have been used to target minority communities in India.

Thirdly, state governments should ensure that any tough anti-terror provisions are balanced by safeguards against brutality, corruption, and discrimination. A number of expert commissions have advocated the establishment of a Police Complaints Authority in each state to ensure that police actions are within law and to allow citizens to lodge complaints against police abuse of power such as arbitrary arrest and detention.
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1- part III of the Indian Constitution deals with Fundamental Rights of Citizens
2- [1994] 3 SCC 569
3- 2004 (7) SCC 528

The  author can be reached at: rishabhjuneja@legalserviceindia.com

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