This article is written by Beejal Ahuja, from New Law College, Bharati Vidyapeeth University, Pune. This article discusses the anti-terrorism law, TADA and the most famous cases of the Act.

Introduction

“Terrorism is a significant threat to peace and security, prosperity and people.” These words were said by Ban ki-Moon. The country has been under constant threat of terrorism. Instead of vanishing, the terrorist groups are successfully including youth as their members. The thing is they are carrying out their operations in different and more advanced ways by using technological advancements. India has witnessed various serial terrorist attacks like Bombay Blast, Parliament attack, Delhi Bomb blasts, etc. Along with this, there have been constant amendments in the anti-terrorism laws, with more stringent laws in order to protect the citizens of the country, such as the Unlawful Activities Prevention Act, 1967 (UAPA), Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, Prevention of Terrorist Activities Act, 2002, etc. This article mentions a few of the famous cases of the Terrorist and Disruptive Activities Act. 

Overview of the TADA ct 

Terrorists and Disruptive Activities (Prevention) Act (TADA), is an anti-terrorism, legislation in India and came into effect in the year 1985 and remained into the effect till the year 1995. It was the first anti-terrorism law introduced by the government for counter-terrorist activities. The act was implemented basically against the Khalistan movement and the Bombay blasts. The provisions under the act not only states about the punishments of the preparators but also criminalises hiding and harbouring of terrorists. 

Section 3 (1) of the act, defines a terrorist act as, a person who intentionally overawe the Government as by the law established or to strike terror in people or a particular section of the people or alienate any section of the people or to disturb the harmony amongst different sections of people, does any act or thing by using bombs, dynamite or other explosive substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature which can cause or are, likely to cause, death of, 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.

Section 4 (1) states the punishment for disruptive activities. It says if anyone commits or conspires or attempts to commit or abets, advocates, advises or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

Special courts were set up under this act to deal with the cases of terrorism and disruptive activities. The proceedings or the hearings will be recorded and the identity of the accused will be kept hidden. The terrorists under this act were not granted bail easily, the courts granted the bail only on reasonable grounds. The amendments made in 1987, empowered the law enforcement machinery. The act allowed identification on the basis of a photograph, the burden of proof was on the suspects or the accused, and also allowed the judicial admissions of the confessions during the investigation. The police were not bound to produce the accused before the judicial magistrate within 24 hours and the accused could be detained for one year. And it was also held by the Hon’ble Supreme Court that if a person is just a member of any banned organisation under this act, will not be punished under the act.

Prevention of Terrorist Act 

The Terrorist and Disruptive Activities Prevention Act (TADA) was repealed due to various criticisms nationally and internationally, in 1995 and was replaced by the Prevention of Terrorist Act, (POTA), and was passed in 2002. There were certain suggestions mentioned by the court in various cases before this act came, and most of them were included in this Act. This act was enacted to deal with terrorist organisations. Unlike TADA, it criminalised the membership of such organisations and any kind of support given. It also stated mens rea as an important ingredient to be held liable under this act. It also introduced a quasi-judicial system to supervise and review the action of the state in this regard and also provided for speedy trials. POTA has clearly defined terrorist and terrorist activities. It had the concept of strict liability. 

The POTA faced many criticisms worldwide and especially by human rights organisations. Its constitutional validity was also challenged in the case of PUCL v. Union of India. Many were of the view that the act violated the fundamental rights of the people. So, after so many oppositions and misuse of this act, it was repealed in 2004 and was replaced by a new amended act, i.e. UAPA.

UAPA (Amendment), 2019

The original Unlawful Activities Prevention Act was passed in the year 1967, it used to charge the accused in addition to the criminal law. So, when POTA was repealed, it was amended in 2004, then in 2008, 2012 and then the most recent amendment bill was introduced in 2019. It allowed the Government to declare a person as a terrorist if it is satisfied, that such a person is involved and supporting any of the terrorist activities. It does not mention the definition of terrorist but does define terrorist activities. Confessions in front of Police were not judicially admissible. But Section 46 allowed the admission of the evidence collected through any sort of communication such as oral, telephonic or wireless.

It also empowered the Director-General, National Investigation Agency (NIA), in order to allow them to grant approval of seizure or attachment of the concerned property when the case is being investigated. After the UAPA was amended, Masood Azhar, the one responsible for the Pulwama as well as the 2001 parliament attack, and Hafiz Saeed, the mastermind of the 2008 Mumbai terror attacks, were the first two to be labelled as global terrorists. 

Prominent cases of the TADA

Kathula Somulu v. State of Andhra Pradesh

The appellants, in this case, were the members of Communist Party India (Marxist-Leninist) Group. The police got some information regarding some illegal things in Goundlakota Village forest. So, on June 22, 1986, trusting the information, the Senior Inspector (SI) of Police, Chintur, with other police personnel went to the village in order to conduct raids in the forest. After doing the work, they were returning back to the Chintur. On their way back, they found some extremists going towards the hillock near Gonegutta of Kalathur village. The police followed them and they arrested the two appellants with one country-made pipe-gun (tapancha) and two country-made bombs and pellets. 

After arresting the appellants, a case was registered against them under the provisions of the Arms Act and Explosive Substances Act and also under the Section 3 and 4 of the ‘TADA’. And for the recovery of the weapons and explosives, panchanamas were prepared. The prosecution examined the prosecution witnesses 1 to 4. PW1 and prosecution witness was the SI of Police and PW 2 is the panch witness. The learned Designated Judge accepted the evidence and held the appellants guilty.

After the judgment of the Designated Court under Terrorist and Disruptive Activities (Prevention) Act (TADA), an appeal was made against that judgment in the Supreme Court. The Supreme Court upheld the conviction and the judgment of the Designated Court which was: 

• The appellants were convicted under Section 3(3) of the TADA Act and were punished with imprisonment for three years and a fine of Rs. 100 each in default to undergo simple imprisonment for one month. 
• Appellant 1 was also charged under Section 25 (1)(a) of the Indian Arms Act and was awarded imprisonment of one year. 
• Appellant 2 was charged under Section 5 of the Explosive Substance Act. 
• Section 3(3) of the TADA Act states that if anyone conspires or attempts to commit, or advocates, abets or incites or knowingly facilitates the commission of a terrorist act or any act preparatory to a terrorist act shall be punishable with imprisonment for a term up to three years which may extend to life imprisonment and also be liable to fine. 
• The appellants were found in the group of other persons in the forest and were running away from the police and were carrying explosive substances including country-made firearms, which leads to their engagement in conspiracy or in attempt or to commit or abet the ‘terrorist act’. Hence, the learned counsel for the appellant could not show any infirmity in the evidence.
• The Supreme Court awarded the appellants a minimum sentence and no interference is called for. So, the appeal is dismissed.

Yakub Menon v. State of Maharashtra

This is a very famous case of an Indian terrorist who helped and was a part of Mumbai Blasts, 1993. 

Yakub Memon, was born in India, and was a very renowned chartered accountant in Mumbai. He was highly educated. But came to be a high-profile terrorist in the Mumbai Blasts, 1993. He was the part of the conspiracy of that Blast and also financed that operation by booking the flight tickets of the six accused to Dubai and then Pakistan, in order to handle all the arms and ammunition, also purchased vehicles which were used in the bombing, and also stockpiled the weapons safely. According to the Central Bureau of Investigation (CBI) of India, Yakub was arrested on 5th August, 1994 at New Delhi Railway station, but according to him, he surrendered to the police, in Kathmandu, Nepal on 28th July 1994. 

After his arrest, the trial was conducted under the Terrorist and Disruptive Activities (TADA) courts. It was conducted by Justice P.D. Kode held Yakub guilty of the following offences, and was awarded the death penalty, on 27th July, 2007.  

The offences were:

• Involvement in a criminal conspiracy to carry out the terrorist act and disruptive activities, and murder. For this, the death penalty was awarded.
• Helping the terrorist by aiding them financially and facilitating in a terrorist act. The punishment granted for this was life imprisonment.
• Keeping their weapons with him, it led to the offence of illegal possession and transportation of arms and ammunition, and was awarded with the punishment of rigorous imprisonment for 14 years.
• Not only Yakub kept the weapons but also the explosives, so it contributed to the offence of possessing explosives with an intent to danger the lives of many people, and for he was punished with a rigorous imprisonment for 10 years.

Under Section 19 of the Terrorist and Disruptive Activities Act, Yakub filed an appeal to the Hon’ble Supreme Court to review his death sentence and the State of Maharashtra filed a reference before the Supreme Court to confirm the death sentence of Yakub. 

The Hon’ble Supreme Court upheld the decision of the lower court on 21st March, 2013, and confirmed Memon’s conviction and death sentence for involvement in the conspiracy of the terrorist attack by financing it. The court also held that not only a connection between the mastermind and other accused, but also he helped them by keeping their weapons and explosive bags hidden with him, and this was stated by many co-accused in their confessions. He was also engaged in hawala transactions. And the judges held him the” mastermind” and “driving force”, behind the blasts and bombings, while Memon was consistently claiming innocence. 

Then, a review petition for the Supreme Court’s judgment in order to confirm his death sentence, by Memon. But it was rejected and dismissed on 30th July 2013, by the bench comprising Chief Justice P Sathasivam and Justice BS Chauhan. Memon again filed a writ petition before the Supreme Court as the issue of oral hearing of review petitions against the order of death sentence. 

Again on 6th August 2013, a mercy petition was filed before the then President of India, Pranab Mukherjee, by Memon’s brother Suleman. But the petition was rejected on 11th April, 2014.  Then on June 1st, 2014, an order was passed to impose a stay of execution while a plea from Memon and other review petitions of death penalties, be heard in an open court instead of in chambers, by Justice J. Kehar and C. Nagappan. Then the hearings and review were done by a constitutional bench of the Supreme Court, which was extended in December 2014. Then On March 24, 2015, open court hearings began, and Memon was represented by Senior Counsel Jaspal Singh. But the Supreme Court dismissed Memon’s review petition on 9th April, 2015.

A death warrant was issued by the Maharashtra Government, on 30th April, 2015, ordering the date for Memon’s execution as 30th July 2015. After this, Memon filed a curative petition in Supreme Court on 22nd May 2015, but that was also rejected on 21st July, 2015. Memon again filed a mercy petition before the Governor of Maharashtra and also filed a writ in order to ask for a stay on his execution till the mercy petition is decided. He contended that the death sentence was not legal and it had been issued even before, his all legal avenues were exhausted.

Memon did not stop here, he again filed a fresh writ petition before the Supreme Court on 28th July 2015, in which he challenged the order passed in the curative petition by saying that the required quorum was not present according to the rules. After hearing this, by the two judges on the issue, they passed and requested the Chief Justice of India (CJI) to constitute a larger bench on an urgent basis. This petition was rejected by the court on July 29. He made a petition for clemency to the then Maharashtra Governor C. Vidyasagar Rao and a fresh petition to the President Pranab Mukherjee, and both of them were rejected. 

As the last resort, the Memon’s lawyers filed a plea for a 14-day stay of execution. A three-judge bench heard the case and arguments at 2:20 IST and upheld the execution, rejecting the contentions and arguments of Memon’s lawyers. Finally, Yakub Memon was hanged on 30th July 2015, at 6:30 PM, in Nagpur Central Jail. The punishments were given in accordance with the TADA Act. 

Kartar Singh v. State of Punjab

This was a landmark judgment that dealt with various provisions under the Terrorist and Disruptive Activities Act, and upheld its constitutional validity, by looking and examining through a broader perspective. 

In this case, a number of writ petitions, special leave petitions, and criminal appeals were filed, that challenged the vires of the Terrorist Affected Areas (Special Courts) Act 1984, the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the TADA Act, 1987, and challenged the constitutional validity of Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976, because of which Section 438 of the Code of Criminal Procedure, as applicable to the state of Uttar Pradesh. 

The acts were challenged on the grounds that, firstly, the Central Legislature does not have any legislative competence to enact these legislations, and secondly, that the Acts or some provisions under it are contravening and violating the fundamental rights guaranteed under Part III of Indian Constitution. The petitioners were of the view that these acts and provisions thereto, clearly breaches humanitarian law and universal human rights, and also is not partial and does not provide justice and fairness.

The Supreme Court held that the Terrorist Affected Areas (Special Courts) Act, 1984, the Terrorist and Disruptive Activities (Prevention) Act, 1987 fall under the legislative competence of Parliament and the Central Legislature has the power to enact them, in the view of Article 248 read with Entry 97 of List I and also falls within the ambit of Entry 1 of List I 68, namely, ‘Defence of India’. The apex court also stated that the Central Government has the power to declare any area as a ‘terrorist affected area’ as per the Section 3 (1) of the Terrorist Affected Areas (Special Courts) Act, 1984, and is not invalid. 

The Supreme Court also held the contention that the liability of the Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, to struck down on the grounds that both the sections cover the acts which constitute offences that are defined under ordinary laws and there is no such guiding principle as to when a person is to be prosecuted under these sections, is not tenable. And also upheld the constitutional validity of Section 8 of the Terrorist and Disruptive Activities (Prevention) Act,1987 is not violative of the Articles 18 and 21 of the Indian Constitution. And there is no merit of the ground of the lack of legislative competence, on which the validity of Section 9 could be challenged.

Section 9 (7) of the TADA Act was held valid. And the court suggested that the Government need to keep this is in mind, that while appointing a Judge or an Additional Judge to the Designated Court, that Judge appointed has a sufficient tenure of service even at the time of appointing so that no one may entertain any grievance for the continuance of the service of the Judge after attaining superannuation. And the transfer of any case pending before the Designated Court in a State to any other Designated Court in another state, is a statutory order and not a judicial one. 

Section 15 of the TADA Act, was upheld for not being violative of Article 14 and nor Article 21 of Indian Constitution. And suggested certain guidelines to the Central Government to incorporate and make amendments in the Act. Also, the identity, names, and addresses of the witness before the commencement of trial, but subject to an exception, that the court may decide. 

Section 19 of the TADA Act is also not constitutionally invalid. And Section 20 (7) does not deprive any person of its personal liberty guaranteed under Article 21 of the Indian Constitution. Also, the High Court has the jurisdiction to entertain a bail application under Article 226 of the Indian Constitution and pass the orders, relating to the cases under the TADA Act, 1987. But the Section 22 of the TADA Act was struck down for being violative and against the fair and reasonable procedure enshrined under Article 21 of the Indian Constitution.

Sanjay Dutt v. State

This is a very famous case, as the great actor Sanjay Dutt was the main accused in this case. On March 12, 1993, there were 12 bomb blasts that took place in Mumbai, more than 250 people died and more than 700 people were injured. Amidst this, Police found an AK-56 rifle at his house. That rifle was amongst arms that were smuggled into India before the blasts. Sanjay Dutt was arrested when he came back from Mauritius, for illegal possession of firearms, which were given to him by the acquaintances of a terrorist involved in the blasts.

Sanjay Dutt confessed and admitted his charges on April 26, 1993, but he also denied and retracted from the confession. Then his trial was going under TADA court where it held life imprisonment, punishment to 20 people and various terms of imprisonment to 46 others, including Sanjay Dutt. He was released on bail by the Bombay High Court, on 3rd May, 1993, but then the trial court cancelled his bail and he was arrested again on 4th July, 1994. He then sent a letter to the Chief Justice from Jail, on which he got bail, and his letter was converted into a petition.

The TADA court in Mumbai, acquitted him of the charges of him involved in the conspiracy of the serial 1993 blasts, under TADA Act, but he was convicted of the lesser crime, i.e. for possessing the arms, on 28th November, 2006. On 21st March, 2013, his conviction was upheld and he was punished with an imprisonment of 5 years. His imprisonment term was lessened from six years to five, and this sparked a debate on why mercy on him. The tag of a terrorist was removed from Sanjay Dutt as he was buried from TADA.

Arup Bhuyan v. State of Assam

This case deals with the constitutional aspects of TADA. This appeal was filed against the judgement of the Designated Court, Assam at Guwahati passed in TADA sessions. In this case, the appellant was alleged of being a member of the United Liberation Front of Assam, which is a banned organisation. But the prosecution only had a confessional statement of the accused and that too before the Superintendent of Police, in which he has confessed to have identified the house of the deceased. Now, confession to a police officer is not admissible vide Section 25 of the Indian Evidence Act, but at the same time is admissible in TADA cases, vide Section 15 of the Terrorist and Disruptive (Prevention) Act, 1987.

The court said that the confessions are a weak kind of evidence. Because when confessions before the police are presented as evidence, it is not sure whether the police used third degree, or tortured the accused in order to make him confess. Hence, where the prosecution only has a confessional statement made to the police as evidence, in the absence of corroborative material, the courts should be very careful while accepting such extra-judicial confessional statements. In this case, the prosecution only lies on the confessional statement of the appellant made to the Superintendent of the Police, which is an extra-judicial confession and also there is the absence of the corroborative material. 

Therefore, the Court held that it will not be correct and safe to convict the accused solely on the basis of the alleged confessional statement. Also, the TADA Court held the conviction of the appellant under Section 3 (5) of the TADA Act, which states that mere membership of a banned organisation is also a crime. But the appellant has denied the membership of the banned organisation, i.e., ULFA. so the court said that since it has not been proved by the prosecution that he was an active member of such an organisation.

The court said that Section 3(5) cannot be interpreted in the literal sense, otherwise, it will be violative of the fundamental rights, i.e., Article 19 and 21 of the Indian Constitution. Hence, mere membership of the banned organisation will not amount to a criminal offence, until and unless he resorts to violence or incite people to violence or creates public disorder by violence or incitement to violence. And hence, the conviction of the appellant under Section 3 (5) of the TADA Act, is also not sustainable. So, the appellant should be released on bail.

Conclusion

The government felt the need for more stringent laws because the already present laws were not sufficient to prevent terrorist activities. And also that law enforcement officials need more powers to deal with terrorism and other offences in order to protect the national security. Then India also witnessed the gross violation of human rights due to terrorist attacks. So, the TADA Act came into force in November 1987, and was in response to the Punjab insurgency. The act gave unlimited and special powers to the authorities dealing with the terrorist activities, and also provided safeguards to prevent the abuse of powers. Initially, when this Act was introduced, many oppositions and questions were raised about its constitutional validity. But the Supreme Court upheld its constitutional validity in the famous case of Kartar Singh v. State of Punjab and said that when such laws are made, it is obvious that those who are empowered with the statutory powers will act in good faith. And the court has also discussed other constitutional aspects in various cases.

References

• http://www.legalservicesindia.com/article/1735/Human-Rights-and-Terrorism.html
• https://blog.ipleaders.in/anti-terrorism-laws-necessary-india/#_ftn4
• https://blog.ipleaders.in/anti-terror-laws-india/
• https://www.lawctopus.com/academike/yakub-memon-case-justice-injustice/
• https://shodhganga.inflibnet.ac.in/bitstream/10603/85367/13/13_chapter7.pdf

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