This article is written by Anam Khan from Hidayatullah National Law University.
India ranked 7th in the Global Terrorism Index Report, 2019 among the countries losing the lives of its citizens because of terrorism. India ranks third among the countries that suffer the greatest number of terrorist attacks with nearly 748 recorded terror incidents in 2018. A total of 350 Indians were reportedly killed and 540 injured in these incidents. This article explains the Anti-Terror Laws in India. It is undoubtedly an important issue that covers our substantive criminal laws- Indian Penal Code, and other enactments. Together these legislations and laws try to combat terrorism. The prerequisite of understanding Anti-Terrorism Laws is an understanding of the idea of terrorism.
What is Terrorism?
The word terrorism has been derived from a Latin word that means great fear. The use of terror as a means to achieve political ends is not a new phenomenon but in recent years it has acquired a new intensity. It is different from all other crimes in its purpose. The first use of the word terrorism occurred during the French Revolution (1789-1799) when Jacobins, the ruler of the revolutionary state, employed violence, including mass executions compelling obedience to his people. Although the notion of terror and terrorism has varied from person to person and place to place, a basic idea of terrorism has been defined in the U.S. Code of Federal Regulations of States has given it a precise definition. It says terrorism is “the unlawful use of force and violence against persons or property to intimidate or coerce a government, and the civilian population. The basic idea behind terrorism is creating a sense of fear in the minds of others to achieve personal objectives. There are two types of terrorism that law enforcement recognizes- domestic and international. Originating from the time of the French Revolution, it is essential to see how the menace is affecting our country.
Global Terrorism Index
Institute for Economics and Peace, Australia annually issues the Global Terrorism Index. It aims to comprehensively analyze the impact terrorism has on 163 countries. GTI calculates the value after comprehensively analyzing the data of the previous 5years. It uses 3 parameters to calculate each country’s annual score- the total number of terrorist attacks, fatalities, and injuries caused by them, and total property damage due to such attacks in a year. The report by the Global Terrorism Index is mainly based on the data given by the Global Terrorism Database. The data on the terrorist activities are known to be collected by the National Consortium for the Study of Terrorism and Responses to Terrorism (START) at the University of Maryland. The GTI Report of the year 2019, brings us to some startling conclusions. India’s rank is seen to have fallen from 8th in 2017-18 to 7th in 2019 reflecting a worsening condition of the overall security in the country on grounds of terrorism; such a conclusion is bitterly true. Hence it becomes imperative to understand and analyze the anti-terror laws in our country.
Terrorism in India
Starting from domestic to international to various other novel forms like narco-terrorism and cyber-terrorism, India has been losing its people to them. Terror attacks have become a regular scenario in our country. This is happening despite the broader legal regime. Provisions of the Indian Penal Code, the major Indian Substantive Criminal Law, and the recently passed Information Technology Act, 2000 try to address the concerns regarding terrorism in the country. ‘One man’s terrorist is another man’s freedom fighter.’ India has witnessed some of the worst terror attacks in the name of superiority of ideologies, in the world. The 2008 attack in Mumbai stands as a heart-wrenching example. Laws have always considered terrorism to be a major threat to law, peace, and order in the country.
Laws dealing with Terrorism in India
India is known to be a part of the strategic triangle- India, America, and Israel against terrorism and fundamentalism. India being a part of this triangle has tried to implement stringent laws in the form of ‘Special Enactment’ to deal with the menace caused by terrorism. Since the Independence of India, various laws in the form of special enactment, rules, regulations, ordinances, etc have been implemented. Some of them have been repealed and various new ones have been enacted.
Earlier existing Anti-Terrorism Laws
- Terrorist Affected Area (Special Courts) Act 1984– the main purpose of the enactment of this Act was to set up special courts that dealt exclusively with the cases of terrorism. The constitutional validity of this Act was challenged in Amarinder Singh v. Union of India, on the grounds that such special courts did not provide enough safeguards to the accused. However, the Supreme Court of India rejected the petition and suggested certain safeguards to protect the accused from any form of abuse.
- National Security Act 1980– it replaced the National Security Ordinance of 1980. It is said to be the first specific law that ever dealt with terrorism. This particular enactment is said to have been succeeded by the Maintenance of Internal Security Act, which unfortunately got discredited during an emergency. NSA empowered both the Central and the State government to detain any individual without giving any explanation for a period of up to one year if such detention was felt necessary to prevent such a person from ‘acting in a manner prejudicial to the defense of India’ or to the security of India. An amendment to the NSA another more harsh provision to it. It provided by an Advisory Body for the Constitution of India so that cases could be heard under it.
- The Terrorist and Disruptive Activities Act, (TADA) 1985– is the first known enactment that focused directly on terrorism and ways to combat the same. The Act was implemented optimally against the Khalistan movement and Bombay blasts case. The Act not only ensured punishing the actual perpetrator, but it also criminalized the concealment and harboring of terrorists. It created 2 new offenses-
- Terrorist Act, Section 3- for which the offender was imputed with the intent to commit the offense.
- Section 4- Disruptive Activities.
It imposed various restrictions on the grant of bail of the accused. Special courts were set up to consider the bail application and the same was granted only when reasonable grounds of innocence were proved. The Amendment of 1987 brought some major changes to this Act, and it increased the power of law enforcement machinery. It allowed judicial admission of detainee’s confessions during the investigation. It also reduced the standards required for the eyewitnesses. Identification on the basis of the photograph was made admissible. The burden of proof was shifted on the suspect. After receiving lots of criticism from national and international human rights organizations, the Act was repealed in the year 1995.
- The Prevention of Terrorism Act, 2002 (POTA)– When TADA was repealed, this is an Act that is known to have replaced it. Supreme Court had given various suggestions in Kartar Singh’s case and most of them were included in POTA. By this time there were various organizations that were declared as a terrorist organization. POTA was enacted to deal with such organizations. It had various provisions that provided for ways to deal with ‘terrorist organization.’ It criminalized taking membership with such an organization and also providing any kind of support to them. It provided for speedy trial and also a quasi-judicial system to review the action of the state in this regard. Mens rea became an important ingredient to attract liability in accordance with POTA. Owing to various criticism and misuse of the provisions by the authorities, POTA was repealed in the year 2004.
Currently applicable Anti-Terrorism Laws in India
At present, there is no such specific law that exclusively deals with the menace caused by terrorism in the country. However, there are provisions of the IPC, Arms Act, Explosives Act, and various other legislative enactments that deal with the terrorist act in the country. Various laws were amended after the 20/11 Mumbai attacks so that we could have clear provisions to deal with the destruction caused by such activities. It is important to know which provisions of these Acts are used in this regard.
Indian Penal Code 1860
IPC has various chapters that deal with actions that harm peace and harmony in the country. These can be said to be a substitute in the absence of any comprehensive and exclusive laws that deal with terrorism.
Chapter IV of the IPC deals with offenses that are done against the State. The Sections that can be invoked when any act is done against the peace and tranquility of the State are Section 121, 121A, 122, 123, 124, and 124A.
Public tranquility is given equal importance and it is dealt with in detail in Chapter VIII. It includes riots, internal disturbances, and another unlawful assembly. Sections that can be invoked are 153, 153A, 153B, 157, and 158.
Chapter XV of the IPC deals with all the unlawful actions that happen in the name of religion or any specific ideology. Section 296, 295A, and 298 can be invoked. As we have already seen that the terror attack in Mumbai was a major turning point for the terror laws in India. Along with various other amendments and enactments, the parliament also passed two bills- one was to set-up National Investigation Agency- it had special powers and another to amend laws so that could provide more stringent actions against such activities.
National Investigation Agency
The NIA was born on 31-12-2008. It functions as the Central Terrorism Law Encounter Agency. Its main function is to investigate and prosecute offenses affecting the sovereignty, security, and integrity of the country. According to the rules of NIA, it has to provide assistance to and seek assistance from other intelligence and investigation agencies of the Central Government and State Government. It also provides for setting up of Special Courts for faster trials and hassle-free hearing to be heard on a day-to-day basis.
Unlawful Activities Prevention Act, 1967/Unlawful Activities Prevention (Amendment) Act, 2008
The original Act was used to charge offenders in addition to the substantive criminal law. The amendment inserted Section 43A to 43F. These gave tremendous powers to the investigating officers. The Anti-terror bill was passed in the Rajya Sabha in 2019. The Bill seeks to amend the UAPA 1967. The major shift is that now it allows the government to label an individual as a terrorist if they are contributing to any of the terrorist activities. The recent provisions provide additional powers to the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the agency. Masood Azhar and Hafiz Saeed will be the first two global terrorists to be banned as individuals in India after the UAPA amendments are notified by the government. According to the reports Hafiz Saeed was the brain behind the 2008 Mumbai terror attacks, Masood Azhar was held responsible for the recent attack in Pulwama as well as the 2001 attack on parliament.
Information Technology Act, 2000
In the modern world of cyber crimes and cyber terrorism, it is very important to have sufficient laws that can deal with the same. The enacted underwent Amendments in the year 2008 and after that Section, 66F was added that criminalized cyber terrorism. The punishment that can be awarded under this Act is of life imprisonment. It covers a variety of laws that cover various cyberinfrastructure.
Anti-Terrorism Laws of States
Not only at the national level but we have laws to deal with terrorism at the State level also. Some of them are Karnataka Control of Organized Crimes Act, 2000, The Maharashtra Control of Crimes Act, 1999, The Jammu and Kashmir (Public Safety) Act 1978, Armed Forces Special Power Act 1958, and The Disturbed Areas Act.
These are some of the recent enactments that try to deal with terrorism in the country. To award adequate punishment to the offender and to prevent the happening of any such events in the future is the main objective of these enactments. However, it is important to note that there have been various changes that have been brought about in the country’s terror law after, India faced a major blow in the name terrorism in the Mumbai attacks.
The phenomenon of terrorism became an international concern in the 1960s when a series of airplane hijacking hit the headlines. In democratic countries, it is important that people have the right to express their views without any fear. If the genuine grievances are not looked into, the people have other democratic and nonviolent means available to them to attract the attention of the government. However, in recent years some people have started resorting to terrorism to express their demands. The innocent and helpless peoples have become their victims. The rule of law is predictable and the rule of terror is unpredictable. The question of combating international terrorism has been constantly on the agenda of international law and international institutions. The Law Commission of India undertook a study of the security situation for assessing the need for comprehensive terror laws. After the expiry of TADA, the Law Commission was entrusted with the task of enacting suitable legislation for combating terrorism and other anti-national activities. The Law Commission subsequently recommended the Prevention of Terrorism Bill, 2000 which was a modified version of TADA. However, subsequently Prevention of Terrorism Ordinance, 2001 was promulgated by the President. The National Human Rights Commission (NHRC)rejected the draft bill submitted by the Law Commission and stressed the need for observing and defending ‘national integrity’ and ‘individual dignity’ – both being the central valves of the Constitution and there was a need to balance those two3. According to the NHRC –the problem which the Criminal Justice System in India faced is related to (a) proper investigation of crimes, (b)efficient prosecution of criminal trials, and (c) the long days in adjudication and punishment in courts. None of the problems, however, could be solved by these enacting laws. Even the recent UAPA Amendment Act that is also referred to as the Anti-Terror Bill that was passed by the Rajya Sabha in 2019 has also attracted a lot of criticism. It gives unjustified powers to the government and does not work in a healthy and constructive way to combat the issue of terrorism.
The procedure provided under anti-terrorism laws must pass the test of due process of law. Anti-terrorist laws are being special laws that have to fulfill the two conditions laid down under Article 14 of the Constitution. First one, the classification must be founded on an intelligible differentia which distinguishes persons or things from others. Second, the differentia must have a rational relation to the object sought to be achieved by the statute in question. 49 Special legislations have to further pass the test of procedural due process under Article 21 of the Constitution. We have seen that the Constitutional validity of the legislations have been time and again questioned. The very basis of having laws in India is their compliance with the Constitution. If the laws fumble at the very first step, then their smooth execution and achieving of their goals become highly improbable.
Civilization is entirely built upon Criminal Law which is the basic law of every society. The primary purpose or function of criminal law is to maintain security and stability. The first and simplest idea is that law exists in order to keep the peace in a given society, to keep the peace at all events. The ultimate goal of criminal law is a crime-free society. Criminal law must be strong enough both in its contents as well as in its implementation. This quality is needed in all branches of law but too crucial in criminal law since the stakes involved are exceptionally high in terms of social injuries of various kinds. The primary functions of criminal law are to define a crime, reasonably classify crimes, and prescribe the punishments based upon the appropriate theories of punishment. There are evident reasons that have shaped anti-terror laws in India. There is a dire need for stringent law to prevent terror attacks. In a country like India, it is important that when laws regarding terrorism are enacted they should be made so stringent that the culprit is brought to book and does not get to walk free just because of loopholes or lacunas. Also, we need to consider that our neighboring nation Pakistan which is the cause of perpetrating terrorism in India has also enacted stringent laws something which India also needs to follow diligently. The most important change brought about recently is the establishment of the National Investigation Agency Act(NIA), 2008 as the first step towards effective handling of terrorism-related offenses. Combating terrorism is a joint responsibility of the central, state, and local governments. This Act envisages center-state partnership in the investigation of terrorist cases. Furthermore, recently the Home Minister of India pointing to the threat of terrorism has announced for the establishment of National Counter Terrorism Centre(NCTC) modelling US NCTC for systemic change in intelligence processing and functioning of different agencies. Hence, Kofi Annan, former secretary-general of the UNO rightly remarked that Respect for human rights, fundamental freedom and the rule of law are the essential tools in the effort to combat terrorism.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: