History shows that when societies trade human rights for security most often they get neither. - Paul Hoffman 

Although the term is not subject to a universally accepted definition, terrorism can be broadly understood as a method of coercion that utilises or threatens to utilise violence in order to spread fear and thereby attain political or ideological goals. Contemporary terrorist violence is, thus, distinguished from ordinary violence by the classic terrorist triangle. A attacks B, to convince or coerce C, to change its position regarding some action or policy desired by A. The attack spreads fear as the violence is directed, unexpectedly, against innocent victims, which in turn puts pressure on thirds parties, such as governments, to change their policy or position.[1]
 
Insurgency, on the other hand, is the term historically restricted to rebellious acts that did not reach the proportions of an organised revolution. It has subsequently been applied to any such armed uprising, typically guerrilla in character, against the recognised government of a state or country.[2] Insurgency need not require the targeting of non-combatants, which distinguishes it from terrorism, although many insurgencies have expanded the definition of non-combatants to include police and security personnel in addition to the military.
 
India's vulnerability to insurgency and terrorism is but natural owing to the presence of ethnic, religious and linguistic minorities and adherence to a democratic system. India as a nation has faced the scourge of terrorism for decades aplenty. While the Kashmir issue does occupy the mainstream consciousness of the civil society, it is indeed pertinent to remember that the Khalistan movement, the LTTE insurgency as well as the Naxalite threat have imperiled the united fabric of India on many occasions. That India continues to face the challenge of terrorist and insurgent activities in different regions of the country due to varied historic and social dimensions is by itself a serious cause of concern.[3]  
 
Combating Insurgency and Terrorism
The ordinary incidents of crime are generally dealt with as law and order issues, and therefore, investigation and prosecution in such cases largely followed the penal provisions enshrined in major substantive laws such as Indian Penal Code, Indian Explosives Act, Indian Arms Act, et al. and procedural provisions enshrined in Criminal Procedure Code and Indian Evidence Act. However, these provisions are inadequate and insufficient, when comes to dealing with the incidents of insurgency and terrorism in the country. Therefore, India has enacted certain special enactments to deal with the twin problems of insurgency and terrorism in the country. A brief overview of some of these special enactments is as follows:
 
Preventive Detention Act, 1950  Preventive Detention in India dates back to the times of Company Raj in India when the East India Company enacted Bengal Regulation III of 1818, officially the Bengal State Prisoners Regulation III of 1818 in the Presidency of Bengal, to detain an individual indefinitely, on the basis of suspicion of criminal intent, and without having to commit the detainee to trial. Similar laws were enacted in the Presidencies of Madras and Bombay. Later, the similar provisions were enacted in British India in 1915 as Defence of India Regulations Act, the Rowlatt Act of 1919 and in Government of India Act 1935, which gave the powers of preventive detention to the State for reasons connected with defence, external affairs or discharge of functions of the Crown in its relations with the Indian States.
A similar provision in the form of The Preventive Detention Act 1950 (hereafter the PDA) was enacted in free India, which empowers the Central Government or State Governments to detain any person for a period of 12 months without framing any charge or committing him to trial with a view to prevent him from acting in any manner prejudicial to, inter-alia, the defence of India, the relations of India with foreign States, or security of India. This act continued on the statute book until the Maintenance of Internal Security Act was enacted in 1971.
 
Maintenance of Internal Security Act, 1971 - A similar act titled as Maintenance of Internal Security Act (hereafter the MISA) on the lines of the PDA was passed by the Indian Parliament in 1971 giving the Indian law enforcement agencies very broad powers in the quelling of civil and political disorder in India, as well as countering foreign-sponsored sabotage, terrorism, subterfuge and threats to national security by detain any person for a period of 12 months without framing any charge or committing him to trial with a view to prevent him from acting in any manner prejudicial to, inter-alia, the defence of India, the relations of India with foreign States, or security of India. This act continued on the statute book until 1977.
 
National Security Act, 1980  After the repeal of MISA in 1977, India remained without any preventive detention law for three years until the National Security Act (hereafter the NSA) was enacted in 1980 by the Indian parliament on the similar lines. This Act empowers the Central as well as State Governments to detain any person for a period of 12 months without framing any charge or committing him to trial with a view to prevent him from acting in any manner prejudicial to, inter-alia, the defence of India, the relations of India with foreign States, or security of India. This act is the main legislative provision dealing with the preventive detentions law in India and is still on the statute book.
 
Armed Forces Special Powers Act, 1958  The Armed Forces Special Powers Ordinance was promulgated by the British on 15th August 1942 to suppress the Quit India Movement. Modeled on these lines, the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the then President Dr. Rajendra Prasad on 22nd May 1958, which was replaced by the Armed Forces Special Powers Act 1958 (hereafter the AFSPA) on 11th September 1958 with a view to grant special powers to Indian Armed Forces to maintain public order in disturbed areas of the State of Assam and Union Territory of Manipur. In the following decades, it spread, one by one, to the other Seven Sister States to counter insurgency in India's northeast.
Another one was passed in 1983 and applicable to Punjab and Chandigarh, which was withdrawn in 1997, roughly 14 years after it came to force. Another Act was passed in 1990 to counter terrorism in the state of Jammu & Kashmir and has been in force since then.
 
Terrorist and Disruptive Activities (Prevention) Act, 1985  In 1985, in the aftermath of the assassination of then Prime Minister Mrs. Indira Gandhi, the Indian Government enacted the Terrorist and Disruptive Activities (Prevention) Act (hereafter the TADA). It was the first anti-terrorism law in India to define and counter terror activities in the true sense. The Acts third section provides a very comprehensive definition of terrorist acts as whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.

Further, the Act gave very sweeping powers to the law enforcement agencies, bypassing various constitutional and statutory protections guaranteed to the citizens of this country, for dealing with terrorists and disruptive activities. It was renewed in 1987, 1989, 1991 and 1993 before being allowed to lapse in 1995 due to increasing unpopularity after widespread allegation of abuse.
 
Prevention of Terrorism Act, 2002  However, as the country continued to reel under the exponential rise in terrorist violence in different parts of the country, the Government of India enacted a modified version of TADA called the Prevention of Terrorism Act (hereafter the POTA) in 2002. This was direct fallout of the December 2001 attack on Indian Parliament by foreign-sponsored terrorists. This Act was drafted almost on the same lines of the previous contentious TADA, with certain safeguards being provided for recording of confession and arrests of the accused persons. This Act was too repealed in 2004 on almost the same grounds to that of TADA.  
 
Unlawful Activities (Prevention) Act, 1967  On the recommendation of the Committee appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, imposed reasonable restrictions of in the interests of sovereignty and integrity of India on the Freedom of Speech and Expression, Freedom to assemble peaceably and without arms, and Freedom to form Associations or Unions. This led the way for enactment of the Unlawful Activities (Prevention) Act (hereafter the UAPA) in 1967 by the Indian Parliament for effective prevention of unlawful activities and associations directed against the integrity and sovereignty of India.

After the repeal of contentious POTA, this Act was amended in 2004 to include most of the provisions of the repealed Act in UAPA. Further, after the Mumbai attacks in 2008, this Act was further strengthened and made stringent. At present, this Act along with various state laws, such as, Maharashtra Control of Organised Crime Act, 1999 and other similar legislations enacted by some of the affected states, is serving as substantive Act for dealing with terrorism and insurgency related activities.
 
Human Rights Perspective
It is not disputed that when the security of a country is in danger, public peace is threatened, economic order faces disruption and the existence of the people is in peril, the Government and its security forces have to combat this threat with effective counter-terrorism strategies. Without protecting the safety and security of the nation, individual rights cannot be protected.[4]
 
Having said that, we must not forget that the glory of constitutional democracy that we have adopted, however, is that whatever been the challenges posed by such dark forces, the countrys commitment to the rule of law remains steadfast[5], meaning thereby, that the fight against insurgency and terrorism cannot be allowed to result in the flagrant violations of human rights.
 
I know that most of the people are of the opinion that human rights are meant for the humans and not for those who act like demons such as terrorists and insurgents, who possess no regards for such human rights, which they violate with impunity, at will, bringing insurmountable grieves and sorrows to many families, inflicting un-healable wounds to its sufferers which cannot and do not dissipate so long as life continues in this ephemeral world.[6]
 
But we must not also forget that such draconian laws, which give immense powers to the law enforcement agencies, are susceptible to abuse by those in power. The affidavit submitted by the National Human Rights Commission (hereafter the NHRC) in Extra Judicial Execution Victim Families Association vs. Union of India[7] is a testimony to this fact, which clearly mentions that between 2007 and 2012 the NHRC has received 1671 complaints/information regarding fake encounters, of which the NHRC has found 191 to be absolutely true.
 
The legislative enactments, mentioned in the previous segment of this research paper, have been criticised for human rights violations because of the following provisions:
 
Preventive Detention
Article 9 of the Universal Declaration of Human Rights, 1948 (hereafter the UDHR) states that No one shall be subject to arbitrary arrest, detention or exile.
Article 9 of the International Covenant on Civil and Political Rights, 1966 (hereafter the ICCPR), inter-alia, states that Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
In India, Constitutional protection under Article 22 has been provided in consonance with the afore-mentioned international mandate regarding preventive detention laws.
 
However, in practice, Section 11-A of PDA, Sections 13 of MISA and NSA clearly authorises the law-enforcement agencies to detain any person up to a period of twelve months without any formal charge or trial against him. Further, Section 13(2) of PDA, Sections 14(2) of MISA and NSA allows the person to be detained even beyond such period of 12 months, if any fresh facts have arisen against him.
 
Keeping a person in jail without charge and without trial is a serious violation of the rule of law even if the Constitution sanctions it in principle. Secondly, under preventive detention laws, any challenge to a detention order does not, in the first instance, go before a court, but before an advisory board. Such advisory boards are reluctant to act against the State and set aside orders of detention, primarily on the ground that it is the Executive that is best positioned to assess threats of public order. Therefore, in the 72 years since independence, governments at the Centre and States, of every stripe, colour, and ideology have invoked preventive detention laws to lock up inconvenient opponents by slapping vague accusations on them, and without the necessity of having to prove them on trial.[8]
 
Killing
Right to Life is one of the most precious Human Right available to any human being. For me, its the most important Human Right, because its a basis of all other human rights. A person can ask for other human rights only if he is alive. This right has been guaranteed by International Bill of Human Rights as well as Article 21 of the Constitution of India.
 
Killing an enemy is not the only available solution and that is what the Geneva Conventions and the principles of International Humanitarian Law tell us. Therefore, even while dealing with the enemy, the rule of law would apply and if there have been excesses beyond the call of duty, those members of the law-enforcement agencies who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against.[9]
 
However, Section 4 of the AFSPA, inter-alia, expressly empowers any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces in a disturbed area to fire upon or otherwise use force, even to the causing of death, against any person, who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substance, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary.
 
Further, Section 6 of the said Act provides immunity to such persons against prosecution, suit or other legal proceedings in respect of anything done or purported to be done in exercise of the powers conferred by the Act.
 
In response to the Right to Information (RTI) query filed by Venkatesh Naik of the Commonwealth Human Rights Initiative (CHRI), the Union Home Ministry has released data revealing human rights violations under AFSPA, showing that Jammu and Kashmir tops the list with 92 complaints, Assam second with 58 complaints, Manipur third at 21, while Meghalaya and Arunachal Pradesh follow next at 5 and 6 complaints respectively. Of the 186 complaints received, 24 were of death in army encounters, 16 were of death in army firings, 21 were of alleged fake encounters and 10 were of rape and abduction.[10]  
 
On 14th July, 2017 in a breakthrough judgment, the Honble Supreme Court for the first time took cognizance of 1,528 cases of fake encounters under AFSPA in Manipur, ordering a Central Bureau of Investigation (CBI) probe into 97 of them.
 
Presumption of Guilt
... throughout the web of English Criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoners guilt. (per Viscount Sankey)  Woolmington vs. DPP, 1935 AC 462 at 481
 
Article 11.1 of the UDHR reads  Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
 
Article 14(2) of the ICCPR reads  Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
 
The principle of presumption of innocence is a principle of common law, which is equally followed under general criminal law in India. However, Section 21 of TADA, Section 53 of POTA, and Section 43-E of UAPA reverse this presumption of innocence by directing the Designated or Special Courts to presume that the accused has committed an offence, if it is proved that the arms or explosives or any other substance specified in the Acts were recovered from his possession, or the fingerprints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of an offence.
 
Admissibility of Confession to police
Right against self-incrimination is another facet of Right of silence, which is guaranteed to the accused under Article 20(3) of the Constitution of India. This Right against self-incrimination is further fortified under Sections 25 and 26 of the Indian
Evidence Act, 1872, which completely bars the confession given to the police officer or whilst in Custody of police-officer to be proved against the accused.
 
However, Section 15 of the TADA expressly provides that a confession made by a person before a police officer not below the rank of Superintendent of Police shall be admissible in the trial of such person. Further, such confession can be used against co-accused, abettor or conspirator, charged and tried in the same case together with the accused. The same draconian provision was retained in Section of the POTA, with certain safeguards.
 
Violation of other provisions of Fair Trial -
There are certain provisions enacted in the Criminal Procedure Code in consonance with the international provisions regarding fair trial, such as, limited period of police custody (Section 167), anticipatory bail (Section 438), and separation of judiciary from the executive. However, these provisions have been amended in the anti-terror legislations so as to violate the right of fair trial available to the accused persons.
 
The period of police custody was enhanced from 15 days to 60 days in the TADA, to 30 days in the POTA and UAPA. This prolonged period of police detention seriously increases the risk of torture to the accused, which is clear violation of Article 5 of the UDHR.
 
Further, under Indian Criminal Law, there is a provision of for anticipatory bail under Section 438 of the Criminal Procedure Code This provision allows a person to seek bail in anticipation of arrest on accusation of having committed a non-bailable offence. The very basic purpose of insertion of this provision is to prevent the innocent from getting harassed at the hands of the law-enforcement agencies. However, under almost all the anti-terror legislations, the protection of anticipatory bail has been withdrawn.
 
Further, Article 50 of the Constitution of India directs the State to take steps for separating the judiciary from the executive in the public services of the state. Accordingly, the Criminal Procedure Code, 1973 brought about separation of the judiciary from the Executive, whereby the functions of the Magistrates under the Code have been allocated between the Judicial and Executive Magistrates. Section 167 of the Code directs the officer in charge of the police station or the police officer making the investigation to forward the accused to the nearest Judicial Magistrate in case the investigation cannot be completed within the period of twenty-four hours of arresting the person. This is a very significant safeguard provided to the arrested person against the Executive action. However, Section 20 of the TADA expressly permits the law-enforcement agencies to produce the detainee before the Executive Magistrate in addition to the Judicial Magistrate, who is an official of police and administrate service.  
 
Conclusion
Terrorism and insurgency are undoubtedly extremely complex issues due to their diverse origin and expanse, ideologies and motivations. They get further complicated by some organisations and states using terror as a policy-tool for achieving their political and strategic objectives. There is no doubt that India lives in a region which is the epicentre of global terrorism.  To tackle this situation, there is no second opinion that India requires certain stringent legislations to tackle the problem of terrorism and insurgency.
 
But, it's equally true that none of this implies any dilution in our national commitment to human rights. A Bench of Justices Madan B. Lokur and U.U. Lalit has rightly held, It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both. This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.[11]
 
References

1. Armed Forces Special Powers Act, 1958
2. http://www.britannica.com/topic/insurgency
3. Journal of the National Human Rights Commission, Vol. 8, 2009
4. Maharashtra Control of Organised Crime Act, 1999
5. Maintenance of Internal Security Act, 1971
6. National Security Act, 1980
7. Prevention of Terrorism Act, 2002
8. Preventive Detention Act, 1950
9. Terrorists and Disruptive Activities Act, 1985
10. University Module Series on Counter-Terrorism, The Doha Declaration, United Nations Office on Drugs and Crime
11. Unlawful Activities (Prevention) Act, 1967

End-Notes:
[1] United Nations Office on Drugs and Crime, The Doha Declaration, University Module Series on Counter-Terrorism, p.no. 1
[2] http://www.britannica.com/topic/insurgency (last visited on November 20, 2019)
[3] Arvind Verma, Human Rights in the Age of Terrorism  A Balancing Act 8 Journal of the National Human Rights Commission 165 (2009)
[4] P.C. Sharma, Terrorism and Human Rights 8 Journal of the National Human Rights Commission 128 (2009)
[5] Extra Judicial Execution Victim Families Association vs. Union of India, Writ Petition (Criminal) No. 129 of 2012, para. 148
[6] Justice Vinod Prasad, Terrorists and Human Rights 8 Journal of the National Human Rights Commission 195 (2009)
[7] Writ Petition (Criminal) No. 129 of 2012
[8] Gautam Bhatia, Preventive Detention must be used judiciously Hindustantimes.com, July 3, 2018
[9] Supra note 5, para. 149
[10] http://timesofindia.indiatimes.com, July 15, 2017 (last visited on November 19, 2019)
[11] Supra note 5, para 135