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Published : April 16, 2010 | Author : kritika
Category : Human Rights laws | Total Views : 4600 | Unrated

  
kritika
Author: Kritika Vij 2nd year, BSL,LLB, ILS LAW COLLEGE,PUNE
 

The mere sound of the word ‘terrorism’ generates a sense of fear in us. In the last decade, the rate of terrorist activities across the world has increased by leaps and bounds. It has taken the lives of millions around the world and has posed serious questions about the security measures being adopted by the governments of various countries. Even the so-called superpower of the world –the U.S.A- could not survive the brutal terror attacks on the Twin Towers and the World Trade Centre on September 11, 2001.

But what exactly is terrorism? Terrorism has often been understood variously as both a tactic and a strategy; a heinous crime and a holy duty; a reasonable response to oppression and an inexcusable abomination. Different organizations have different definitions to offer when it comes to explaining this term. The Code of Federal Bureau of Investigation (the FBI) in U.S.A defines it as “the illegal use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." The FBI further explains terrorism as either domestic or international, depending on the origin, base, and objectives of the terrorists. On the other hand, the European Union defines "terrorism" as the aim of "destabilising or destroying the fundamental, political, constitutional, economic or social structures of a country." But ordinarily, it’s understood as ‘an act of terror which influences an audience beyond the immediate victim’. A terrorist attack is not only an attack on innocent individuals but it is an attack on our sovereignty, unity and integrity and our feeling of nationalism.

India, too, has been affected by terrorist violence to a great extent. The reasons for such widespread terrorism in India 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[1], where it observed that the country has been in the firm grip of spiralling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various cities of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, and killing even without sparing women and children and converting those areas into a graveyard, which brutal atrocities have shocked the entire nation. Appallingly, determined youths lured by hard-core criminals and extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the mankind.

The recurring attacks in Jammu & Kashmir and the Maoist attacks in the North-Eastern parts of India reflect the gravity of the situation. In the process, the development as well as the economy of the country has greatly suffered. A large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chhattisgarh and Jharkhand right up till the Nepal border is affected. There was insurgency and terrorism in Tamil Nadu as well. Two of our former prime ministers lost their lives to this kind of terrorism. In the recent times, the serial blasts in trains in Mumbai on 11th July, 2006, the bomb blasts in temples of Varanasi, the serial blasts in New Delhi in 2008, and the dreadful night of 26th November, 2008 when the entire country was shaken from its roots as a result of the attack on Mumbai are just a few instances to understand the extent to which India is perpetually reminded of the flaws in its internal security and is forced to review the lacunae in its anti-terrorism legislations.

The efficacy of a terrorist act lies not in the act itself, but in the public’s or government’s reaction to the act. It is common in India to witness a peace march or a candle march to mourn the death of the victims. But the sympathy for the sufferers and the fury towards those committing such acts is restricted to just this much. No one even dares to raise his/her voice for the fear of those in power. Indian Government’s feebleness is exposed when it comes to handling terrorist threats. In any other country, terrorists are given instant justice the way they hand out death to unsuspecting and innocent Indians. After each major terrorist attack on India, a familiar and clichéd routine drill is performed. The President and the Prime Minister issue statements of condemnation. The Home Minister after doing the same, issues stern warnings that terrorism would not be tolerated and that the terrorists involved in the latest attacks would be brought to book. The President and the Home Minister then visit the hospitals in the city where the terrorist attack has taken place in order to empathize with the victims and announce monetary awards for the their families. The country is not pacified either by such sympathies or statements of condemnation and or the aid that is given. They expect that the Government of the day provides the citizens of the country with security and safety as required by the Constitution of India.

It would however, be incorrect to say that no steps as regards to enactment of anti-terrorism laws have been taken by the Indian government. Hence, it would be appropriate to review the various legislations enacted in India and also analyse the reasons for their failure. As a matter of fact, anti-terrorism laws have constantly been a subject of debate in our country. One of the major arguments is that these laws stand in the way of the fundamental rights of the citizens guaranteed to them under Part III of the Indian Constitution. Even in the past, the legislature had enacted anti-terrorism laws in India. Now let us first understand the basic structure of some of these statutes and then evaluate the causes behind their success/failure.

Unlawful Activities (Prevention) Act, 1967:
The oldest legislation enacted in India was the Unlawful Activities (Prevention) Act, 1967 (hereinafter called ‘UAPA’). It is still in force in the country along with the National Security Act, 1980. The UAPA was designed to deal with organisations and activities that threatened the territorial integrity of India. When the Bill was debated in the Parliament, leaders insisted that its ambit be so limited that the right to association remained unchanged and that the executive did not expose political parties to intrusion. As a result, the ambit of the Act was 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 places of work of unlawful associations, penalties for their members etc. The Act has all along been working holistically as such and is absolutely within the purview of the Central List in the 7th Schedule of the Constitution. However, this act was amended in 2004.

Terrorist and Disruptive Activities (Prevention) Act, 1987:
The Terrorist and Disruptive Activities (Prevention) Act (hereinafter called ‘TADA’) was in force till 1995. This Act had much more stringent provisions than the UAPA and it was specifically drafted 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 legitimacy on the assumption that those delegated with such draconic statutory powers would act in good faith and for the public welfare in the case of Kartar Singh vs. State of Punjab [(1994) 3 SCC 569].

Maharashtra Control of Organised Crime Act, 1999:
The Maharashtra Control of Organised Crime Act (hereinafter called ‘MCOCA’) was one of the major anti-terrorism laws brought into force in India. It was enacted on 24th April 1999. This law was exclusively made to deal with the rising organized crime in Maharashtra and especially in Mumbai due to the activities of the underworld. For instance, the definition of a terrorist act is far more detailed in MCOCA than under any other anti-terrorism legislation.

Prevention of Terrorism Act, 2002:
On 26 March 2002, the most controversial anti-terrorism law, the Prevention of Terrorism Act (hereinafter called ‘POTA’) was finally passed in the Parliament. The intensity of the effects of the bill could be seen very clearly by the rejection of the Bill by the upper house of the Indian Parliament leading to a Joint Session of Parliament. The Indian Ministry of Home Affairs justified the initial Ordinance after the September 11, 2001 terror attacks by claiming a rise in terrorist activities, augmentation of cross border terrorism, and rebellious groups in different parts of the country, despite the fact that the state of Jammu and Kashmir witnessed a decline in the terrorist incidents taking place in that state.

Two years from the enactment of the POTA, a number of issues as to the possibilities of misuse of the provisions of the anti-terror law including the targeting of minorities and using it against political opponents had arisen. In Gujarat, all except one of the POTA detainees are from the Muslim community and in Tamil Nadu and UP too, the superficial anti-terror law has been abused to book, without lucidity and accountability, political opponents and underprivileged communities respectively.

The series of events that followed subsequent to the enactment of the POTA confirm that it is worse than TADA.

The Act effectively undermined the fundamental theory of the criminal justice system by putting the burden of proof on the accused. But the Act also had some provisions, which were not denounced for being against human rights. These provisions stated that confessions must be recorded within 48 hours before a magistrate, who will send the accused for a medical examination in case there is a complaint of torture. Furthermore, a legal representative of the accused can be present for part of the interrogation. Moreover police officers can be prosecuted for abusing their authority. The POTA also provided that victims were entitled to receive some amount of money as compensation.

But these provisions failed to act as defensive armour for the Act, from the criticism it attracted for its other provisions abusing human rights. It was censured that the misuse of the Act could not be separated from its normal use. The statute resulted in terrorising not so much the terrorists as much as the ordinary civilians and predominantly the poor and the disadvantaged such as dalits, religious minorities, adivasis, and working people. Thus, it was recommended that POTA be repealed and that too in such a way that the POTA charges are deleted from all existing investigations and trials. But, if the state so desires, these may continue under other laws and charges.

Finally on September 17, 2004 the Union Cabinet passed ordinances to revoke the Prevention of Terrorism Act, 2002 (POTA) and amend the Unlawful Activities (Prevention) Act, 1967.

Distinguishing myth and reality:
It is true that numerous efforts have been taken to keep terrorism at bay in India, but there are an innumerable number of issues which need to be dealt with, with regards to the provisions of these legislations. The anti-terrorism statutes have met with a lot of criticism; one of them being that they give extraordinary power to the police officials which results in them abusing their power. Another criticism is that the provisions of these statutes violate the fundamental rights of individuals granted to them under Part III of the Indian Constitution. Now, let us see to what extent are these criticisms justified. A few sections from each of the above legislations are quoted below.

Under the TADA, the rate of conviction was not even 1%, despite the fact that the confessions made to the police, even though being given under torture, were admissible as evidence. Moreover, Section 5 of the TADA lays out a presumption that if a person is found in unauthorized possession of arms in a notified area, he/she is automatically linked with terrorist activity. Section 48(2) provides for the option of pre-trial police detention for up to 180 days. As under the TADA, where most of the cases never reached the trial stage, this Section 48(2) could also be handled roughly by the police by keeping an accused for long periods of detention without charge or trial.

Apart from this, however, there were times when power was misused for collateral purposes. The inflexible provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA finally lapsed in 1995.

Under the MCOCA, a person is presumed guilty unless he is able to prove his innocence. However, MCOCA does not provide for prosecution of police officers found guilty of misuse of their authority.

POTA presumes criminal liability for mere association or communication with suspected terrorists without the possession of criminal intent as given under Section 3(5) of the Act. Section 4 of POTA is quite similar to Section 5 of TADA as it lays out a legal presumption that if a person is found in unauthorized possession of arms in a notified area, he/she is automatically linked with terrorist activity. In the famous case, Sanjay Dutt Vs. State through C.B.I[2], the expression “possession” though that of section 5 of TADA has been stated to mean a conscious possession introducing thereby involvement of a mental element i.e. conscious possession & not just custody without awareness of nature of such possession and as regards unauthorized means and regards without any authority of law.

The argument that was in favour of Sanjay Dutt was that an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.

The arguments which were against him were, firstly, that the section clearly says that “any person who has unauthorized possession of arms”, that is; do not possess a valid license for the arms. This section is only making the law rigid by stating that anybody who possesses arms should also possess proper license from the proper authority.

Secondly it also states that weapons should be capable of mass destruction or biological or chemical substances of warfare, so why would any person possess such kind of weapons without any reason and that too unauthorized.

Special courts for trials are setup under POTA which are given the discretion to hold trials in non-public places, like prisons, and to withhold trial records from public enquiry, thus preventing the independent monitoring of special court sessions. Section 32 provides that confessions made to police officers are to be admissible in trial, which has increased the possibility of coercion and torture in securing confessions.

POTA was finally repealed in 2004.

Conclusion:
Keeping in view the provisions of the aforementioned anti-terrorism laws, it is apparent on the face that these laws contain countless loopholes which are subjugated by those in possession of authority to exploit the weak and provide shield for those committing such atrocious crimes. The stringent legislations provide for valid evidence recorded under torture and intimidation. So, a person may be forced into admitting something which may or may not be true. Secondly, it is unjustified to presume that a person has some kind of a connection with a terrorist organisation solely on the grounds that he is found in unauthorized possession of arms. Though it is true that possession of arms without a license leads to suspicion regarding the intent of a person but there is a possibility that there is no criminal intent. Hence, such a person must not be automatically linked with a terrorist activity. Lastly, police officers who are found guilty of misuse of their powers aren’t always prosecuted as seen under MCOCA.

These provisions have undoubtedly breached the human rights as well as the fundamental rights of the Indian citizens and on numerous occasions, various suspicion and voices have been raised by people under the pretext of constitution, constitutional provisions, and equality before law and civil rights. For instance, the Right to Freedom of Speech and Expression[3] of an individual is violated if he is made to say statements or admit facts which are not true, by using means of coercion or intimidation. Also, the right to equality is violated as the minorities are always eyed with suspicion of being responsible behind any terrorist attack. There is a biased attitude of Indians towards those belonging to minority groups when it comes to offering opportunities regarding education, jobs etc.

The Indian government is to be blamed to a large extent to act in such an indifferent manner when it comes to following-up any new law that is enacted. It was only due to the enormous pressure from the public that the government had to repeal POTA in 2004. When 3,000 people died in the World Trade Centre, the US President said that a war had been declared on America. When more than 50,000 people had died here, we were advised to show restraint. We are made to believe that this is the remedy; that we should deal with it under the normal procedure. Therefore, it is quite obvious that there is a desperate need to fight the menace of terrorism by standing united against it. So it becomes necessary in a country like India that if a law regarding terrorism is enacted it should be made so rigorous that the culprit be brought to book and is not let scot-free just because of the shortcomings in the ordinary law.

Indian leaders must learn from the mistakes of POTA and design a new law that centralizes power and control over anti-terrorism policy, and provides for strong judicial review and oversight of its implementation. Indian political leaders must recognize that cross-border terrorist attacks and bombings not only bleed India but also trample national honour. Surely India’s national honour cannot be allowed to be held at stake by terrorists and deterrent action against them be allowed to be politicized for narrow electoral gains. Thus, in the light of the abovementioned flaws in the anti-terrorism legislations, it would be correct to state that these are not as efficient as they are perceived to be.
--------------------------------------------------------------------------------
[1] Kartar Singh v. State of Punjab [1994] 3 SCC 569
[2] Sanjay Dutt Vs. State through C.B.I [1994] SCC 410
[3] Article 19 (Part III) of the Indian Constitution

  Authors contact info - articles The  author can be reached at: kritika.v@legalserviceindia.com / Ph no: 91 9873554298




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