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A PRIMER ON ANTI-TERRORISM LAWS IN INDIA

Introduction

The assassination of the former Prime Minister Rajiv Gandhi in 1991, the killing of 175 individuals[1] in Mumbai back in the year 2008 (also referred to as the infamous 26/11 attack) and recently the suicide bombings that occurred in Pulwama[2], are all examples of the acts of terrorism. Terrorism aims to force compliance with certain ideological, political or religious objectives by the use of violence, organised attacks or social threats which induce fear and create upheaval. It poses a significant danger to the rule of law, the exercise of fundamental rights and our nation’s democracy. The prevailing internal environment of the nation has a major influence on the surge of terrorist attacks and hence it is crucial to explore the current situation. Fundamentalist forces frequently abuse the unfavourable economic developments in neighbouring countries such as Pakistan, Afghanistan and thereby recruit forces to conduct such attacks. In 2020 alone, this nation witnessed 679 terrorist attacks which resulted in 567 causalities.[3]Laws and legislation against the acts of terrorism play a vital role in ceasing or at least preventing such atrocities. The separate need for anti-terrorism laws arises due to the fact that codified statutes such as the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 can only aid in investigation and prosecution of terrorist attacks, and not in restraining such acts. 

Historical Evolution of Anti-Terrorism Laws and Legislations

One of the earliest provisions relating to terrorism was part of the Indian Penal Code, 1860. Section 121[4] of this code criminalizes the waging or even attempting/abetting to wage war against the Government of India. The case of State (N.C.T. Of Delhi) vs Navjot Sandhu and Others[5]held that the act of terrorism is under the scope of waging war. “We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government.” is what the apex court[6] held in the above case.

The Terrorist and Disruptive Activities (Prevention) Act 1985 also referred to as TADA, was another significant legislation to counter-terrorism. Substantive provisions under this act gave state governments the authority to prosecute perpetrators of such acts, without waiting for the central government to approve. It allowed the police to admit confessions as evidence, and subsequently, this legislation was exploited by the executive. Apart from this, there were other controversies[7] relating to TADA which resulted in replacing the act with another act in 2002. The Prevention of Terrorism Act, 2002 (POTA) was passed in a joint session of parliaments, and it contained provisions that safeguarded human rights and made sure that this act was designed in a way that it cannot be abused by the executive authorities. However, this act was again abused by law enforcement officers which resulted in unnecessary arrests and gross violations of human rights. Later, POTA was repealed in parliament in the year 2004 and was substituted by the infamous UAPA.

The Unlawful Activities (Prevention) Act 1967

The Unlawful Activities (Prevention) Act 1967 also referred to as ‘UAPA’ is the most important legislation which is currently in force to curb terrorism. The aim of the Unlawful Activities (Prevention) Act 1967, was to empower authorities to deal with movements that jeopardized the nation’s sovereignty and integrity. This act was implemented, permitting the legislature to set reasonable limits on fundamental rights such as the freedom of speech/expression, the right to form associations and assemble peacefully. Upon the repeal of POTA in 2004, the parliament altered the act’s core attributes, turning it into anti-terrorism legislation. Several substantive and procedural reforms were made to the authority of the National Investigation Agency (NIA) in order to combat terrorism successfully.  Section 15[8] of the act defines a “terrorist act” holistically and Section 16[9]provides for the punishment of committing such act defined in the previous section. The Unlawful Activities (Prevention) Amendment (UAPA) enacted in 2019, permits NIA agents, without any prior approval from any other executive institution, to carry out raids and confiscate property believed to be related to terrorist activities. Additionally, the act also allows the Ministry of Home Affairs to list individuals and organizations as ‘terrorists’ and ban them, such as the famous terrorist organisations Lashkar-e-Taiba and Jaish-e-Mohammed.

However, this act has recently been under scrutiny, due to its misuse by law enforcement authorities that lead to gross violations of human rights. Recently, the Delhi High Court ruling on a case that involved the wrongful application of UAPA by the police[10], cited a landmark judgement from 1994 in order to remind the law enforcement agencies of the true purpose of the act. Justice Anand, in the case of Hitendra Vishnu Thakur vs the State of Maharashtra,[11] held that “The extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law.”

CONCLUSION

Terrorism must be dealt with effectively since it threatens the idea of a democratic, secular, and peacefully coexistent state. The nation’s anti-terrorism laws have been repeatedly utilised further than their actually intended scope, to abuse civil liberties guaranteed by the constitution. It began with the Terrorist and Disruptive Activities (Prevention) Act of 1985, followed by the Prevention of Terrorism Act of, 2002 and now it is the Unlawful Activities (Prevention) Act of 1967 that has come under scrutiny. Each piece of additional legislation to deal with terrorism, resulting in a slight diminishment of criminal defendant rights, aggravates the threat that such a power can be grossly abused. The onus is now upon the nation’s judiciary by laying down guidelines to safeguard individuals and organisations from being exploited under the current anti-terrorism legislation.

Author(s) Name: Bharat Manwani (Gujarat National Law University, Gandhinagar)

References:

[1]  Shanthie Mariet D’Souza, ‘Mumbai terrorist attacks of 2008’ Encyclopaedia Britannica (13 May 2009)

<https://www.britannica.com/event/Mumbai-terrorist-attacks-of-2008> accessed 18 January 2022

[2]Peerzada Ashiq, “37 CRPF men killed in J&K suicide attack” The Hindu (Delhi, 14 February 2019)

<https://www.thehindu.com/news/national/ied-blast-in-kashmirs-pulwama-many-crpf-jawans    killed/article26268289.ece> accessed 18 January 2022

[3] Neeraj Chauhan, “Terror attacks rose during pandemic year in India” Hindustan Times (Delhi, 27 December 2021)<https://www.hindustantimes.com/india-news/terror-attacks-rose-during-pandemic-year-in-india-us-report-101640542605120.html> accessed 18 January 2022

[4]The Indian Penal Code 1860, s 121.

[5]State (N.C.T. Of Delhi) v. Navjot Sandhu and Ors. (2005) MANU/SC/0465/2005

[6]State (N.C.T. Of Delhi) v. Navjot Sandhu and Ors. (2005) MANU/SC/0465/2005

[7] Kalhan, Anil et al “Colonial Continuities: Human Rights, Antiterrorism, and Security Laws in India” (2006) 20 Colum. J. Asian L. 93

[8] The Unlawful Activities (Prevention) Act 1967, s 15

[9] The Unlawful Activities (Prevention) Act 1967, s 16

[10] Apurva Vishwanath, “Delhi HC calls out misuse of UAPA, raises bar for State to slap terror tag” The Indian Express (New Delhi, 16 June 2021) <https://indianexpress.com/article/explained/delhi-high-court-calls-out-misuse-of-uapa-raises-bar-for-state-to-slap-terror-tag-7360779/> accessed 18 January 2022

[11]Hitendra Vishnu Thakur v. State of Maharashtra (1994) AIR 2623

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