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Published : April 22, 2011 | Author : Aditi Singh
Category : Law - lawyers & legal Profession | Total Views : 6851 | Unrated

Aditi Singh
Aditi Singh

The term “terrorism” for the first time was formally mentioned at the international level at the Third Conference for the Unification of Penal Law. It defined “an act of terrorism” as “the deliberate use of means capable of producing a common danger” to commit “an act imperiling life, physical integrity or human health or threatening to destroy substantial property.” Prior to the establishment of the UN, a Convention for the Prevention of Terrorism was concluded in Geneva in 1937. Even as early as that terrorism was defined as “criminal acts directed against the state or intended to create a State of terror in the minds of particular persons or group of persons or the general public”. However, it never came in to force.

Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab , where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities.

We witnessed the bitter experience of Kargil War during 1999. The first millennium left us with inhuman and fanatic terrorists hijacking incident at Kandhar by the Pakistan backed terrorists. The growing threat of terrorism has attracted the attention of scholars, policy makers and media. The attack on the Indian Parliament on 13th December, 2001 gave the government a powerful argument in favour of “streamlining” and “providing more teeth” to the existing anti- terror laws. So, it became necessary to enforce a law which would be more stringent so that the terrorists can not go scot free because after the lapse of TADA in 1995, there was no law which could be used as a weapon against the rising terrorist activities in India.

After the 9/11 attacks on the world trade center, the world's outlook towards the terrorist has changed the laws which have become much more stringent to curb such activities. The criminal justice system in India was not designed to deal with such type of heinous crimes. In view of this situation it was felt necessary to enact legislation for the prevention of and for dealing with terrorist activities.

Anti-Terrorism Laws: Myth
The Committee of the Security Council known as “Counter- Terrorism Committee” has received reports from a number of countries on the steps they have taken to implement anti-terrorism measures as required therein which are indeed a demonstration of “excellent cooperation” by the States in the implementation of the resolution.

US legislation is diverse and complex, due to large part to an increase in terrorist activities against US and US-affiliated targets from the 1970s onwards, as the USA consolidated its financial and political dominance in world affairs. The US promulgated legislation with far reaching judicial and perspective extraterritorial jurisdiction. The UN has adopted international conventions concerning terrorism dealing with issues such as hijacking, hostages and terrorist bombing. In addition, the UN has sought to tackle the question of terrorism in a comprehensive fashion. In December 1972, the General Assembly set up an ad-hoc committee on terrorism. In 1994 a Declaration on Measures to Eliminate International Terrorism was adopted. This condemned all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whoever committed. The Assembly has also adopted a number of resolutions calling for ratification of the various conventions and for improvement in co-operation between states.

In addition to UN activities, a number of regional instruments condemning terrorism have been adopted. These include the European Convention on the Suppression of Terrorism, 1977, the South Asian Association for Regional Co-operation Convention on Suppression of Terrorism, 1987, the Arab Convention for the Suppression of Terrorism, 1998 etc. The Council of the League of Nations on December 10, 1934 unanimously passed a Resolution to institute a “Committee of Experts” to draft a tentative international convention to curb any scheming or offences in pursuant of “political terrorism”. After the establishment of the United Nations, a few conventions have been concluded for the suppression of specific forms of international terrorism such as Convention to Ensure the Safety and Security of the United Nations and Associated Personnel (1994), Convention for the Suppression of Terrorist Bombings (1997), Convention for the Suppression of the Financing of Terrorism (1999), Convention for the Suppression of Acts of Nuclear Terrorism (2005) etc. The Security Council has been active in dealing with the terrorism threat. In particular, it has characterized international terrorism as a threat to international peace and security. After the 11 September attack upon the World Trade Centre, Council made a series of binding decisions demanding the prevention and suppression of the financing of terrorist attacks, the criminalization of the willful provision or collection of funds for such purposes.

Following the 11 September 2001 attack, the most significant piece of legislation that was adopted was the ‘uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism act of (Patroit Act)’. The Act eases some of the restrictions on foreign intelligence gathering within the United States, and affords the U.S. intelligence community greater access to information unearthed during a criminal investigation. The Act creates new federal crimes for terrorist attacks on mass transportation facilities, for biological weapons offenses, for harboring terrorists, for affording terrorists material support and for conducting the affairs of an enterprise which affects interstate or foreign commerce through the patterned commission of terrorist offences.

The first law made in independent India to deal with terrorist activities was The Unlawful Activities (Prevention) Act, 1967 (UAPA) which was enforced on 30th December, 1967.The second major Act came into force on 3 September, 1987 was The Terrorist & Disruptive Activities (Prevention) Act,1987 (TADA). This Act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act, 1999 (MCOCA) which was enforced on 24th April 1999. This law was specifically made to deal with rising organized crime in Maharashtra and especially in Mumbai due to the underworld. Like MCOCA, recently the Centre has proposed to initiate the bill for Gujarat i.e., GUJCOC in order to combat the terrorist activities in Gujarat. The bill is still under consideration and is waiting for the assent of the President, Smt. Pratibha Patil since long time.

The Pakistan government has presented evidence before an anti-terrorism court against terrorists involved in the Mumbai attacks. This shows that India is getting support from Pakistan in punishing the terrorists involved in attack. There is an attempt of mutual cooperation between two countries.

Anti-Terrorism Laws: Reality
The Patriot Act of U.S.A. establishes and expands safeguards against official abuse. More specifically, it permits roving surveillance (court orders omitting the identification of the particular instrument, facilities, or place where the surveillance is to occur when the court finds the target is likely to thwart identification with particularity).

It is found that in many cases people had been detained under TADA with the oblique motive of depriving the accused persons from getting bails. The state government that misused it was Gujarat under Chimanbhai Patel. Even though the state was not plagued by terrorism, the Gujarat government had jailed about 19000 persons under TADA. It was flagrantly misused against many ordinary criminals. TADA was lapsed in 1995.

Although POTA has been implemented in India with the object of combating terrorism, but there is no proper implementation of it. Some loopholes are inadvertently or intentionally left during investigation, which the criminals exploit to tilt and go scot free. The Indian laws are implemented and applied so casually that they even fail to achieve their basic purpose. It is due to reasons like lack of evidence due to improper conduct of investigations or because witnesses fail to turn-up as do not dare to appear against a terrorist in a court of law.

At present there is no law which specifically defines “terrorism”. Even the state’s response towards the definition, or the basic legal concepts of terrorism remains confused. Without a clear definition, the international community is hard pressed to combat the problem of terrorism as differences will continue to prevail among the states regarding the types of crimes, which could be countered through international measures.

One of the major factor or development of terrorism in India is the corrupt nature of our rulers, the political class and the bureaucracy, specially the civil services. The terrorist leaders and planners in Pakistan have obviously supplied their agents in India with sufficient funds in order to develop contacts with pliable ‘higher ups’ to continue their activities in the country.

Take the case of the Dawood group which has extensive contacts within the Maharashtra government, with custom and income tax officers and in cinema industry. The vast official machinery in Maharashtra is supposed to stop the nefarious and anti-national activities of Dawood and his gang in Mumbai. The truth is that this is being infiltrated, actually helps the Dawood gang in its terrorist activities. No witness shall give evidence against this actively Pakistan supported gang for its anti Indian activities. However direct evidence is always hard to establish unless key activists are encouraged to switch allegiance. Because of the vast prevalent corruption, foreign agents are easily finding targets for their terrorist activities in many parts of India.

In several of the insurgency and terrorist- prone areas government’s right does not run and the militants are in control and in the countryside they dictate every aspect of life. Police armouries are looted and police stations are besieged. Innocent persons, government officials and wealthy persons are kidnapped in large numbers and killed. In tribal areas, in the NorthEast, not only hundreds are being massacred almost daily in the inter- tribal wars but non-tribals living there for generations have been killed in large numbers and forced to leave their home and hearth at gun point .Law allows the police to arrest, search, seizure, without warrant, during investigation of a cognizable crime but there is continuous flow of firearms and explosives across the international border with support of Pakistan’s Interservices Intelligence (ISI).

The Calcutta High Court on 6th February, 2010 upheld death sentences for gangster-terrorists Aftab Ansari and his aide Jamiluddin Nasir which were convicted for involvement in January 2002 attack on the American Center in Kolkata in which six policemen were killed. But, here the terrorists are convicted after 8 years of committing the crime. The courts delay in disposal of cases relating to terrorism.

The countries that are affected the most, like India; do not have much help from powerful countries like USA and Europe, due to their own national or international interests. So inspite of brave talks against terrorist, various countries actually take very little action against those countries who are helping terrorism due to their strategic interests.

Although efforts are there at the regional level which attempt to curb the menace of terrorism, but there are some impediments in carrying out the enforcement action. Almost all the conventions dealing with the subject of international terrorism fail to define in precise terms the criminal acts which are purely to be regarded as ordinary offences and are outside the purview of political offences. Also the concept of sovereignty often makes a State helpless to take any steps to bring the offender to book.

Many countries have signed bilateral and multilateral agreements concerning a variety of crimes but the loopholes allow many countries to shirk their obligation to extradite individuals wanted for terrorist activities. While in the USA the brunt of anti-terrorism steps was borne by the foreigners, in India it fell on the common citizen. It had happened in the past also when TADA was in operation. It was widely applied on trade union workers, political activists and defenders of human rights.

In accordance to the view of the Law Commission of India, criminal justice system of India is not well designed to meet the challenges arising out of heinous crimes. India’s laws are not intended to deal with terrorism. The Bombay blast cases are some instances, which must be taken seriously. At present there is no law governing the liability of the State for the wrong done to the citizen by public servant in course of the discharge of his duties. The only provision for payment of compensation is provided under Section 357 of the Criminal Procedure Code, 1973 for payment of compensation for a loss or injury caused by criminal offence to the victim after the fine is imposed by the court. But this provision does not make it mandatory for the State to pay compensation to victims.

In India, even after keeping criminal like Maulana Masood Azar in jail for more than five years no evidence could be collected against him and it is indeed ironical that the same person who was released as a ransom package after the hijack of an Indian Airlines Jet masterminded the attack on Indian Parliament. Many terrorists accused are allowed to go scot- free in the absence of sufficient evidence. If such type of lacunas are allowed to be kept and no follow up action is taken against such casual police officials, no law can ever be successful. Though, India has legislations for combating terrorism, but there are mainly two lacunas in these legislations: - firstly, Indian laws fail to make defeating terrorism a national priority, secondly, technology has dramatically outpaced the statutes of India.

Although there are many anti terrorism laws to combat the terrorism but it is difficult to assess how successful the overall counter – terrorism effort have been. The foiling of multi- faceted attacks on Los Angeles Airport and other US- related targets to coincide with millennium celebrations in January 2000 come to mind. Likewise, attacks on US embassies and facilities in Paris, Singapore, and other parts of the world have reportedly been averted as a result of counter- terrorism efforts.

Cyber terrorism is an emerging threat. There is an evidence that cyber terrorism is growing increasingly attractive to terrorists because it is cost effective, there is relative anonymity in cyber terrorism, and there are large number of targets and lastly, it is easier for an organization to recruit people for cyber terrorist attacks because their remote nature means less need for physical training and risk of mortality. At present, there is no effective law to combat the cyber terrorism.

Any anti-terrorist measures must be, and be seen to be, directed only at terrorists. The response must be limited, well defined, and controlled. It must be both policy and practice for the government and its security forces to act within the law. Increasing acts of transnational crimes and terrorism are posing the biggest challenges to civilized existence of societies and comity of nations. Organised criminals and terrorists operate with impunity in any part of the world making a mockery of international co-operation and human rights.

What is lacking is the will on the part of the world community. It is high time the member states agree on the terms, conditions, definitions and modalities to be adopted in matters of extradition and in ordering mutual assistance in criminal matters.

Injustice anywhere is a threat to justice everywhere”, Martin Luther King said.

It is high time the world community realizes, “an act of terrorism anywhere in the world is a victory of the terrorists everywhere in the world.”

First in Varanasi then in Delhi then in Mumbai local trains and we do not think there is even a need to mention the continuing terrorist's barbaric activities in Kashmir. The bomb blasts have outraged every patriotic Indian. No civilized nation can allow this kind of barbaric inhumanity to be partly or fully supported or sponsored by any neighbour or domestic insurgents. The only way we can combat it is to minimize, if not eliminate, such occurrences. Prevention is crucial; and laws like MACOCA can prevent such occurrences. Acquittals even in a case like Parliament attack occurred because of poor prosecution.

Terrorism in whatever form and in all its manifestations is a scourge to humanity and there should be strict legal control. It has put a question mark on the most essential and basic human right of the people i.e., right to life. International measures alone are not capable in combating the acts of terrorism unless States themselves are not enthusiastic in suppressing it. The General Assembly on realizing the importance of the role of the States in this regard has called on States to take “appropriate measures” at the national level and to co-operate with each other to eliminate international terrorism.

Moreover, inordinate delays in court verdicts have allowed scores of militants to languish in jails for years together. In view of the prevailing situation worldwide there is a manifest need for India too to consider a permanent antiterrorist law. Rules should be framed for tightened security at all entry points, making access to the country more difficult for the refugees. A joint offensive should be leveled against terrorists and countries that support terrorism. A model law or some enforceable convention at the international level should be there, something which has been done in the commercial law such as UNICTRAL model law.

For the problem of terrorism to be solved, two types of changes must take place in the way the world functions. Firstly, we should move beyond the dichotomy of choosing between terror-imposed anarchy on one side and autocracy as a response to the threat on the other. Fighting back through democracy and the rule of law is the best tactic. Secondly, the change should involve the rethinking the way countries react and tackling the reasons why people turn to terrorism.
# Singh Shekhawat H.E.Bhairon , editor, professor R.K.Nayak, Terrorism, drug Trafficking and Corruption, Ashoka Law House, 1st ed.,2004
# R.K.Dixit. C,Jayaraj, Dynamics of International Law in the New Millennium , Manak Publications Pvt. Ltd.,1st ed. 2004
# 1994] 3 SCC 569
# http://www.legalserviceindia.com/articles/anti_pota.htm
# Mahendra Gaur, Terrorism and Human Rights, FPRC Journal(1) 2003, Foreign Policy Research Centre, New Delhi.
# Supra , Note 2
# Murphy, Contemporary Practice of the United States Relating to International Law’96 AJIL(2002)237 AT 239)
# Dr. H.O. Agarwal, International Law & Human Rights, Central Law Publications, 14thed., 2007
# Ilias Bantekas, International Criminal Law, Cavendish publishing ltd., 2nd ed.,2003
# Dr. Chitins Vijay ,forword by, Hon. Mr. Justice S. Radhakrishnan Judge, High Court, Bombay, Human Rights & International Order,2005
# Shaw Malcolm N., International Law, Cambridge University Press, 5th ed. 2006
# Supra, Note 9
# Supra, Note 4
# Indian express, 2nd February
# Times of India, February 6,2010
# Christine gray, International law &use of force, 2nd ed., 2004
# Sankar Sen, Law Enforcement &Cross Border Terrorism, Concept Publishing Company, 2005
# Supra, Note 1
# Supra, Note 8
# P.C.Dogra, Ashok Malik, Combating Terrorism, Abhishek Publications, Chandigarh, 1st ed.2005
# S.K.Ghosh, “Terrorism: World under siege”, 1st ed., 2005
# Times of India, 7 Feb. 2010
# Omer Elagab, International law documents relating to Terrorism, Routledge Cavendish Taylor and Francis Group, London and New York, 3rd ed. 2007
# Supra, Note 10
# Supra, Note 5
# Law Commission of India, “Working paper on legislation to combat terrorism”,
# Chapter IV
# Supra, Note 21, pg.424
# Supra, Note 1
# Supra, Note 23
# Supra, Note 1
# D.R.Kaarthikeyan, Human rights: Problems & Solutions, Gyan Publishing House,1st ed.,2005
# Supra, Note 8
# Supra, Note 9
# Supra, Note 1
# Supra, Note 25

Authors contact info - articles The  author can be reached at: aditi.singh340@legalserviceindia.com

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