This article is written  by Raghav Nagar,  a student of Campus Law Student, Delhi University.

INTRODUCTION

In this age of conflicting development, terrorism has emerged as the main tool of disruptive power in the hands of zealots, fanatics and also the people who have been trampled upon for what the governments of different states and in turn the society deem to be “The greater good”. The word terrorism comes from the French word terrorisme, the Jacobins used this term when they imposed a reign of terror during the French revolution, and after they lost power, the word came to denote an act of violence or causing bloodshed

In spite of the efforts of nations around the world over the past years, to solve this problem at the individual and global levels, there has been no definitive solution which can primarily apply to India. Terrorism has been used to define different types of acts by terrorists, the motives as well as perpetrators of terrorism differ on a case to case basis, for example the 26/11 Mumbai attacks were perpetrated by foreign nationals of a terrorist group (allegedly with the extensive aid of the Pakistani ISI), the ULFA though comprising of Indian nationals who seek separation of Assam from India, are still Indian nationals.

 Section 121 of the Indian Penal Code groups offences of this nature under the broad heading of “”waging war against the state” to deal with the issue of insurrection, but it has not been entirely effective. The problem with terrorism is that it is a kind of asymmetric warfare, where the terrorist, though limited in number and resources (as compared to the state) are still very good at creating fear in the hearts and minds of the citizens of the nation.

In order to tackle this threat and to safeguard its citizens, our government has adopted the strategy of Counter Terrorism Counter-terrorism is a mix of public and foreign policies designed to limit and eliminate the actions of terrorist groups and their support network – both men and material – in an attempt to protect the general public from terrorist violence. Such policies are usually in the form of laws, thus to understand the concept of counter terrorism it is essential to holistically analyse the ambit and purpose of these laws.

Counter-terrorism

Perceived as “an integral component of its [India’s] development process,” it has become part of the very “essence of India’s being.” In fact, India is one of the worst affected countries by terrorism. In the recent period, India has witnessed more terrorist incidents than any other country in the world.[1]The focal points of India’s anti terror initiative have been militancy in Jammu and Kashmir, insurgency in the northeast of the country, and left-wing extremism in east. Insurgents routinely infiltrate India’s borders from neighbouring states in order to carry out their missions. This applies to those insurgents who, though of Indian citizenship, travel across the border to India’s neighbouring states in order to receive weapons and training.

Keeping the reality of India’s security concerns in mind, the Legislature has drafted special anti-terror laws which have been implemented over the years. The basic argument placed during the enactment of such special laws is that the existing criminal laws are as follows-

1. The ordinary laws relating to crimes are incapable of dealing with terrorism effectively.
2. Conventional criminal laws do not recognize the fact that acts of terrorism are movements that collectively subvert and disrupt the structures of governance and enforcement themselves.[2]

Such views reverberated with that of the international community wherein in the aftermath of the 9/11 terrorist attacks, arguments on terror laws got bolstered by the anti-terrorism initiatives of developed countries like the United States and the United Kingdom and stipulations from the United Nations Security Council (UNSC). In response to terrorism and other threats to security, many special laws have been enacted/repealed in India from time to time since independence. It seems, however, that the extensive punishment for the act of terrorism is not enough. What is required is a policy framework which has a much wider ambit, and enhances the powers of the Law Enforcement agencies to gather intelligence, track suspects, monitor funding sources, etc. It is keeping these objectives in mind, that many nations have enacted specific counter terrorism (for example, the USA PATRIOT Act of 2001).

COUNTER TERRORISM LAWS IN INDIA

1. The National Security Act, 1980

This legislation was one of the starting points for development of an effective Anti-terror legal framework. It empowered the Union Government or the State Governments to

1. Detain a person to prevent him from acting in any manner prejudicial to the defence of India or the foreign relations of India, or the security of India,
2. Regulating the continued presence in India of any
3. Detain any person suspected of the planning to conduct any of the activities lists in (a.)in a pre-emptive manner. Preventive detention can also be made with a view to preventing a person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

2. The Unlawful Activities (Prevention) Act, 1967

This law was enacted to provide a more effective prevention of certain unlawful activities. It empowered the authorities to declare any activity or association as unlawful, if it was averse to the interest of an individual or society at large. This law was comprehensively amended by the Unlawful Activities (Prevention) Amendment Act, 2004.. This amendment contains most of the substantive provisions from the Prevention of Terrorist Activities act, 2002. It does not define a terrorist but it does define a ‘terrorist act’ as well as  a “terrorist organisation” (an organisation listed in the Schedule).The amendment  further provided that the special courts established under POTA to try such cases should be done away with and should be tried under the general criminal courts.

The main objective of this act was to amend the extreme provisions of POTA which were eclipsing the basic rights of the people act that is why this act was implemented. Thus specific safeguards were built into it, namely:

1. For taking cognizance of any offence under this Act, prior sanction of the Central or the State government, as the case may be, is necessary. Within the Criminal Procedure Code, 1973, it is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours.
2. No officer lower in rank than the deputy superintendent of police can investigate offences under this act.
3. Confessions made by a person before to a police officer were made inadmissible except in certain exceptional cases.
4. The courts power to try the defendant in absentia was also done away with.

3. Armed Forces (Special Powers) Act,1958

This act was passed on the 11^th of  September, 1958 to confer special powers to the members of the armed forces in disturbed areas in the states of Assam and Manipur after an amendment in 1972, it was extended to the whole north-eastern region. Under the Act, armed forces personnel were given broad powers to ensure “maintenance of peace and security”. The same Act was invoked in the state of Jammu and Kashmir in 1990 under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The main objective of this act was to reign in increasing level of insurgent activities across the national borders. According to the Armed Forces Special Powers Act (AFSPA), in an area that has been designated as “disturbed”, an officer of the armed forces has been given powers to:

1. Use any kind of force (including lethal force) deemed necessary against the person who is “acting to disrupt the law and order. This is conditional on a prior warning from the security personnel.
2. Destroy hide-outs / fortified positions/shelters/training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
3. To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having committed such offences (See Code of Criminal Procedure) In order to execute such arrest, the security personnel may use any amount of force necessary for the arrest.
4. To enter and search any premise in order to
   1. make such arrests (as described above),
   2. Or to recover any arms, ammunition or explosive substances and seize it from such premises.

Provided that any person arrested and taken into custody under this Act shall be handed over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances leading to that persons arrest.

Under the AFSPA, security personnel have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under the AFSPA in any court of law. The government’s judgment on why an area is found to be disturbed is not subject to judicial review. There is the probability of a court marshal against an officer of the army who acts in bad faith.  The act itself was not intended to be specific to counterterrorism, it was meant to ensure maintenance of  law and order in the “Disturbed Areas”. In practice however the broad powers under the AFPSA enable security forces to conduct Counter Terrorism operations as well.

COUNTER TERRORISM LAWS IN INDIA: AN ANALYSIS

The provisions of the said counterinsurgency laws have proved to be more of a bane than a boon as it has been seen that such wide powers given in the hands of the authorities have not been judiciously exercised. Such powers have a very wide scope which has led to unjustified violations of  the rights of the people as can be seen in the POTA Act.

1. Firstly, POTA allowed for the police to detain a suspect for upto180 days without the need to file a charge sheet with the Magistrate. It also allowed for 30 days police custody There was also a denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis)
2. Secondly, the definition of ‘terrorist act’ was very vague as well as overarching. In the Mehndimasroor Biswas case,the supreme court adjudged that the powers of the investigating authorities are too wide to ensure the basic rights of the citizens and especially the minorities.
3. Whereas under the AFSPA there have been grave violations of the law by the army,which has led to a series of debate to discuss the absolute powers given to the army. In Manorama Vs AFSPA[3], Thangjam Manorama was allegedly killed in 2004 by Assam Rifles,the Government of India was directed to award compensation to Manorama’s mother. But the serious concern was that in spite of such direction, the court could not spell any judgment against the culprits. There have been many instances in the Maoist affected states that where the innocent tribals have been castigated due to the abhorrent activities of the fringe elements, use as most of the times the security forces use the villagers as tools for apprehending such elements. It is also alleged that the security personnel use collective punishment against the Tribal population to coerce them into submission.

The enactment of powerful, nation-wide anti-terrorism laws without sufficient safeguards to constrain their misuse and ensure accountability in their application has led to human rights abuses and disparate patterns of enforcement throughout the country. Such laws have also been misused for political purposes. In the Vaiko case, a leader of a political outfit was apprehended based on his opinion in support of the LTTE (Lankan Tamil Tigers Elam).Ironically, his party had supported the bill in the parliament which legislated the Unlawful Activities (Prevention) Act. UAPA. This shows that the laws can be subverted for unlawful means and purposes

CONCLUSION

After studying the evolution of ant-terror legislation, as well as the way these laws were applied, we can see a consistent trend of violations of the rights of  people, all in the name of the greater good and security of our nation. It seems that such laws, since their very inception, were made to give absolute authority to the state under the garb of protecting its security to use it as a political tool or to carry out illegal activities which the government itself cannot authorise. What is needed, above all else, is a greater level of transparency and accountability. The availability of actual facts from the grassroots level can help us analyse the issues in a manner that is specific to the area. It will also help us to strike a balance between the right of an individual to freedom and the right of society to security.

We, as informed (and hopefully conscientious) citizens of India have something to learn from  Benjamin Franklins idea about liberty, “Those who would give up essential liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” . When we think of the trade off between security and liberty, Mr. Franklin’s idea seems almost prophetic in light of the security concerns of today.

[1]In 2004, 45 percent of the total terrorist incidents took place in India.

[2]Gill, n. 12

[3]Special Leave Petition 14726-14730 0F 2011 [UNION OF INDIA &ANR Vs.  STATE OF MANIPUR & ANR.