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Published : October 11, 2010 | Author : acharya.91
Category : Criminal law | Total Views : 55925 | Rating :

Bhupendra Acharya semester v, ILNU

Anti-terrorism laws in India: Distinguishing Myth & Reality

Terrorism in India has grown to a great extent in the last two decades.The bomb blasts and terrorist attack in many cities like Jaipur, Ahmedabad, Banglore and attack on Mumbai on 2611 and recent attack on Pune on 1422010. The terrorist attack 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 neighbor or domestic insurgents. The only way we can combat it is to minimize, if not eliminate, such occurrences. Prevention is crucial; and laws like Pota can prevent such occurrences.

After the 2611 attacks on the Mumabi the Indian outlook towards the terrorist and terrorist organization has changed the laws have become much more stringent to curb such activities.

India is facing multifarious challenges in the management of its internal security. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country. Terrorism has now acquired global dimensions and has become the challenge for the whole world. The reach and methods adopted by terrorist groups and organization take advantage of modern means of communication and technology using high tech facilities available in the form of communication system, transport, sophisticated arms and various other means. This has enabled them to strike and create terror among people at will. The criminal justice system of India like Criminal Procedure Code ( Cr.p.c.) was not designed to deal with such type of heinous crimes. In view of this situation it was felt necessary to make special anti terror laws for giving rigorous punishment for theses enmity of the humanity.

There are many laws are made in India but the protest of these laws on the basis of the violation of fundamental rights of the people. In post anti terrorism laws in India, protagonists have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abet terrorism. But after some time these laws have been break down in view of human right. But after 26/11 there is need to much stringent law to end up the terrorist activities.

We have been talking since long about terrorism……. So let us discuss what is terrorism?

What is terrorism?

Terrorism is the most henious activites in the world.. The term "Terrorism" comes from the French word Terrorisme, which is based on the Latin verb “terrere” (to cause to tremble). The Jacobins cited this precedent when imposing a Reign of Terror during the French Revolution. After the Jacobins lost power, the word "terrorist" became a term of abuse.In modern times "Terrorism" usually refers to the killing of innocent people by a private group in such a way as to create a media spectacle. In November 2004, a United Nations Security Council report described terrorism as any act "Intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act". In many countries, acts of terrorism are legally distinguished from criminal acts done for other purposes, and "terrorism" is defined by statute.

History of terrorism in India
Terrorism in India is started before india got independence on 1947 but that times terrorist activites aim create a fear among the British Ruler and not killed the general People. So we not called these freedom fighters as a terrorist but after 1947 the terrorism actitivites to kill the innocent people. In early times the Kashmir, Punjab and North East Frontier part was affected of terrorism. But in current cinario the terrorism scope has been increase. The regions with long term terrorist activities today are Jammu and Kashmir, Mumbai, Central India (Naxalism) and Seven Sister States (independence and autonomy movements). In the past, the Punjab insurgency led to militant activities in the Indian state of Punjab as well as the national capital Delhi.

In Indian concern for the terrorism, it is the main attribute of the terrorist activities in form of religious terrorism. Religious terrorism is terrorism performed by groups or individuals, the motivation of which is typically rooted in the based tenets. Terrorist acts throughout the centuries have been performed on religious grounds with the hope to either spread or enforce a system of belief, viewpoint or opinion. The terrorist activities in India primarily attributable to Islamic, Hindu, Sikh, Christian and Naxalite radical movements. In current scinario the domestic and extermal terrorist activities is increasing in India.

Recent incident of terrorist attack in India
Since 1947 India got indpendence till that time ,at least 232 of the country’s 608 districts were afflicted, at differing intensities, by various insurgent and terrorist movements. In current situation there are as many as 800 terrorist organizations operating in the country.

The major incident of terrorist attack on India is
12 March 1993 - Series of 13 bombs go off killing 257
14 March 2003 - Bomb goes off in a train in Mulund killing 10
29 October 2005 Delhi bombings
2005 Ram Janmabhoomi attack in Ayodhya
2006 Varanasi bombings
11 July 2006 - Series of seven bombs go off in trains killing
26 November 2008 to 29 November 2008 - Coordinated series of attacks killing at least 170.
This data shows that after 1980, the terrorist activities are increased in India. India has fourgh a war against the terrorism and in these wars we have lost more then 6000 people. We have already lost more then 70000 civilians. In addition, we have lost more then 9000 security personnel. Almost six lakh people in this country have become homeless as a result of terrorism.

Laws related to terrorism in India
Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious cause and other things like poverty, unemployment and not developed etc.

The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab [1994] 3 SCC 569, 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..

Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications.

At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. The measure laws are that

Unlawful Activities (Prevention) Act, 1967
The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. The ambit of the Act were strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
The second major act came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569. However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995.

The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)
Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act, 1999 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. For instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA. MCOCA mention organized crime and what is more, includes `promotion of insurgency' as a terrorist act. Under the Maharashtra law a person is presumed guilty unless he is able to prove his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its misuse. .

Prevention of Terrorism Act, 2002
With the intensification of cross-border terrorism and the continued offensive agenda of Pak ISI targeted at destabilizing India and the post 11th September developments, it became necessary to put in place a special law to deal with terrorist acts. Accordingly, the Prevention of Terrorism Act, 2002 (POTA, 2002) was enacted and notified on 28.03.2002.

The POTA, 2002 clearly defines the terrorist act and the terrorist in Section 3 and grants special powers to the investigating authorities under the Act. In the case of People's Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580 the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same.

However, in order to ensure that these powers are not misused and the violation of human rights does not take place, specific safeguards have been built into the Act. Some of these are:

· No court can take cognizance of any offence under the Act without the previous sanction of the Central Government or, as the case may be, of the State Government.

· No officer lower in rank than the Deputy Superintendent of Police can investigate offences under the Act.

· Confession made by a person before a police officer not below the rank of Superintendent of Police is admissible as evidence under the Act provided such person is produced with 48 hours before a magistrate along with his confessional statement.

· The Act provides for punishment for any officer who exercises powers maliciously or with malafide intentions. It also provides for award of compensation to a person who has been corruptly or maliciously proceeded against under the Act.

The POTA, 2002 is a special law for the prevention of and for dealing with terrorist activities and clearly defines the terrorist act and the terrorist in Section 3, Sub-Section (1) of the Act. The Act provides the legal framework to strengthen the hands of the administration in our fight against the menace of terrorism and can and should be applied against such persons and acts as are covered by the provisions of this law and it is not meant as a substitute for action under ordinary criminal laws

Unlawful Activities (Prevention) Amendment Act, 2004
It would however be simplistic to suggest, as some critics did, that the new law has retained all the operational teeth of Pota or it has made only cosmetic changes. The difference between Pota and UAPA is substantial even as a lot of provisions are in common.

Myths and Realities regarding on Anti-terrorism laws
There is several Myths and there realities regarding to anti terrorism laws are
The First myth is that general public considers freedom fighter and terrorist are same. There is no such definition for terrorism or terrorist activity. The adage now discarded by serious analysts, is still paraded in forums i.e. "One man's terrorist is another man's freedom fighter". Many terrorist fight for the certain aim and similar in view of the Freedom Fighter. The equipment which was used by the freedom fighter and terrorism. They both work for certain aim and the ways for destabilizing the administrator system are same.

The Reality is that the freedom fighter and terrorist are two different things. Terrorist means that” a radical who employs terror as a political weapon; usually organizes with other terrorists in small cells; often uses religion as a cover for terrorist activities” while the freedom fighter means to that a person who fought for his country freedom. The freedom fighter aim to free the country from foreigner while terrorist aim to be the destabilized the government and country break in many parts. So there is such difference between the freedom fighter and terrorist.

The second myth is that the objective of the anti terrorism laws to secure the people of India from the terrorist activities and end up the terrorist activates. Also gave punishment to terrorist.

In section 3 of Terrorist and Disruptive Activates Act, 1987 define terrorist act and set up punishment for this. Section 3 states that Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss . The punishment for these activites is life imprisonment or death sentence and fine etc.

Section 3 of Prevention of Terrorism Activites,2002 states that with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or 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.

The Reality is that aim of the anti terrorism laws is secure the people from the terrorist activites and gave punishment to terrorist. But many times when laws made the terrorist activites increased in India. like after making of Terrorist and Disruptive Activites ,1987 and Prevention from Terrroism Activites,2002 , the terrorist activites was increased i.e. measure terrorist attack 1993 Mumbai Bomb blast, , 2001 Indian parliament attack, 2001 kashmir legislation attack, 2003 mumbai serial blast, 2005 delhi bomb blast and 2611 mumbai attack.

It is normally said that terrorism is a low intensity war. But the loss, which our country has suffered in the last two decades due to the rise of terrorist activities, has been on a very large scale we have lost more then 6000 people by the terrorist activites . We have already lost more then 70000 civilians. Outside the expenditure on our armed forces, merely for maintaining the entire set up to fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times.

So that after making anti terrorism legislation there is no stopping of terrorist attack.

The anti terrorism legislation also failed to gave punishment to terrorist. In many times the anti terrorism laws not gave punishment due to some problem. In case of Afzal Guru, an accused in assaulted in attack on Indian parliament and gave death sentence by the supreme court but the punishment not given due to excuse application is pending before the president. This things shows loopholes of Indian system so liberal before those criminal who attack the Temple of democracy in India. Similar in case of Ajmal Kasab , one of the terrorist who attack the mumbai on 2611 and killed the hundreds person. There is one year happened to this event but till not given punishment by anti terrorism legislation. The terroist who killed many person during attack and accused by our brave soldiger but our anti terrorism legislation unable to give punishment due to loophole in our system.

In case of Sanjay Dutt Vs. State through C.B.I 1994 SCC 410, sanjay dutt arrested u/s 5 of TADA. But he is not punished while according to section 5 of TADA and section 4 of Pota clearly show that possession of certain unauthorized arms is punishable under TADA and Pota. But sanjay dutt is not punished. That give example in loophole in laws.

The Third myth is that the provisions of anti terrorism legislation violated the fundamental right given by the constitution. It violated the basic human right of human being. The person who is arreseted under .In POTA and TADA, the custody of police 60 and 30 days and accused have no right to bail. So this provision clearly shows violationof accused right to life and liberty and speech and expression and also violation of human right.

A study of TADA and POTA would disclose that the legislature had the sole object of suppressing the voices of dissent or to deal with the political opponents so that they do not become people's movements. These legislation's have been from time to time framed and mis-used in the beginning in one state or the other , but when the majority of the Indian citizens chose to not to raise their voice against such repressive laws, these laws were mis-used in the whole of the country. For example, TADA when it was originally introduced and passed in the Parliament, the excuse was to contain the elements who demanded a separate home land for the Sikhs and were considered by the interested parties to be a threat to national security. In the garb to contain the movement, the Act which was introduced mainly for Punjab was by and large mis-used in all the states till it was finally allowed to lapse and die its own death in April, 1995, but before its death, it ruined lives of thousands of innocent citizens, not only in Punjab, but also in various parts of the Indian State. In Punjab, more than fifteen thousand people were booked under TADA. Though the Act is no more in force after April, 1995, but even today in the State of Punjab there are around fifty cases of TADA being tried in the various courts. So, the mis-use of TADA continues unabated, even after the death of the Act.

Also the misuse the power by police officer. In case of Kartar Singh v. State of Punjab {1994} 3 SCC 569 the constitution validity of Terrorist and Disruptive Activities,1987 was upheld. In this case the accused arrested by the misuse of power by the police officer.

In many cases, TADA and POTA used by the administrator and politician to arrested of his opponent politician. To cite an instance, while TADA was enacted to protect the security and integrity of the country by fighting with militants in Punjab, it was applied to even Uttar Pradesh and Gujarat where there was no threat to national security nor there were similar armed groups fighting for their right to self determination, as was the situation in Punjab

The Reality is that this is true that the misused of TADA and POTA in very widely. But there is need of anti terrorism legislation in India. The usual arguments that are trotted out against an anti-terrorism law are that the law is misused, that acts of terrorism could not be prevented even when we had such a law, and that the existing laws are adequate to deal with terror. All these are specious. If a law is misused, the answer lies in punishing those who abuse its provisions and not dismantling the law itself. The Arms Act, the Narcotics Act and a host of other laws are also misused. Shall we, then, repeal all these and let the criminals have a field day? Besides, counter-terrorism involves a comprehensive package; law is only one of its components. Those arguing that the existing laws are adequate are either deluding themselves or saying so for extraneous reasons. In the wake of 9/11, the US enacted the PATRIOT Act, which gave sweeping powers to the domestic law enforcement and the intelligence agencies. It modified the procedures that protected the confidentiality of private communications, reinforced the curbs on money laundering, prevented alien terrorists from entering the US and enhanced the penalties for acts of terrorism. The UK passed an Anti-Terrorism Crime and Security Act, 2001, which gave additional powers to the police and reinforced the security of airports and laboratories. It even allowed the internment of foreign nationals suspected of involvement in terrorist activities.

These examples show that even violation of human right and misuse but fighting from terrorism there is need anti terrorism legislation.

After reading the whole view, Various suspicion and voices have been raised by people NGO's under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and there is need to stringent law to tackle the terrorism. We also need to bear in mind that much as terrorist keep apace with emerging technology- the current phenomena being termed as fourth generation warfare and certainly India also need to fine tune and adopt their anti terror legislation to fought to the changing time. The mandate is particularly relevant in India on one hand it states identified as an emerging economic growth which is harassing it resource to take it appointed place in the heierachy of nation at the other hand its dramatic prograss it this direction is sought to be stymied by the enemies by carrying out repeated terror attacks right across the country. Even as proactive executive means of copying with terror( intelligence, organizational, technical and human capital related) fall into place, we need not just law that tackle to terrorism but more important what new generation of people who must be educated an what it means to fight terror in a democratric set up. In the view of the misuse of power, we can make develop a system to stop it misuse.

Lord Denning said: “The freedom of individual must take second place to the security of the state”. Recently, no less a person than the Chief Justice of India said that the international community could not fault India if it chose to enact tough measures to deal with the menace of terror.

So there is needed to make stringent law to tackle terrorism.

Volume1, Encyclopedia of Anti Terrorism & Internal Security laws of India, Maj. Gen. Raj Mehta
KS Subramanian & Arvind Verma, Understanding the Polices in India,
Issue 1, Jan, 2010, Law commission’s view on Terrorism, combat law Journal.

Cases Issued
Kartar Singh v. State of Punjab [1994] 3 SCC 569
People's Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580
Sanjay Dutt Vs. State through C.B.I 1994 SCC 410,

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

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Article Comments

Posted by jalberkit on October 02, 2015
Surprised to know that year 2002 is off the record in the list of terrorism deaths between 1980 till now. In 2002 Gujarat genocide about 3000 innocents died and the author doesn't count it under terrorism list, HOW?

Posted by R.K. Changmai on February 17, 2011
It's horrible English! One should take care of 'grammar' before putting something for publication.

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