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Published : June 21, 2010 | Author : sujay_ilnu
Category : Criminal law | Total Views : 5937 | Unrated

  
sujay_ilnu
Sujay Dixit, BA.LL.B(Hons in Corporate Law) Institute of Law,Nirma University
 

Anti-Terrorism Legislation

Anti-terrorism legislation designs all types of laws passed in the purported aim of fighting terrorism. They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism- related crimes, under the grounds of necessity

Because of this suspension of regular procedure, such legislation is sometimes criticized as a form of lois scélérates which may unjustly repress all kinds of popular protests. Critics often allege that anti-terrorism legislation endangers democracy by creating a state of exception that allows authoritarian style of government. Governments often state that they are necessary temporary measures that will be dispelled when the danger finally vanish. However, most anti-terrorist legislation remains in activity even after the initial target of it has been eliminated.

Prevention of Terrorist Activities Act
The Prevention of Terrorist Activities Act (POTA) was an anti-terrorism legislation enacted by the Parliament of India in 2002. The act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (1985-95) and was supported by the governing National Democratic Alliance. The act was repealed in 2004 by the United Progressive Alliance coalition

Purpose
The act provided the legal framework to strengthen administrative rights to fight terrorism within the country of India and was to be applied against any persons and acts covered by the provisions within the laws act. It was not meant as a substitute for action under ordinary criminal.
The act defined what a terrorist act and a terrorist is and grants special powers to the investigating authorities described under the act. To ensure certain powers were not misused and human rights violations would not take place, specific safeguards were built into the act. Under the new law detention of a suspect for up to 180 days without the filing of charges in court was permitted. It also allowed law enforcement agencies to withhold the identities of witnesses and treat a confession made to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court, but not under POTA.

Repeal and reintroduced
Once the Act became law there surfaced many reports of the law being grossly abused. Claims emerged that POTA legislation contributed to corruption within the Indian police and judicial system. Human rights and civil liberty groups fought against it. The use of the Act became one of the issues during the 2004 election. The United Progressive Alliance government of India committed to repealing the act as part of their campaigning. On October 7, 2004, the Union Cabinet approved the repeal of POTA. However, after the Bombay attacks of November 26, 2008 parliament enacted another anti terror law known as Unlawful Activities (Prevention) Act.

Prominent POTA cases
# Vaiko, a prominent Tamil politician, was controversially arrested under the POTA for his support to the Liberation Tigers of Tamil Eelam.
# After the Mumbai Blasts of August 2003, three suspects were arrested under the POTA act.The act was repealed the following year in 2004. In July 2006, a series of train bombings occurred in Mumbai. In late November 2008, Mumbai was hit with the worst terrorist attack in recent Indian history. This has led some people to question the wisdom of repealing POTA, as there has been an escalation of terrorist attacks of worsening magnitudes.
# S.A.R. Geelani, a lecturer at Delhi University, was sentenced to death by a special POTA court for his alleged role in the 2001 attack on the Indian Parliament. He was later acquitted on appeal by the Delhi Bench of the High Court on a legal technicality.
# Syed Ali Shah Geelani, the leader of the Jamaat-e-Islami group, arrested under POTA.
# Raghuraj Pratap Singh, a.k.a Raja Bhaiya, a mobster and Member of the Legislative Assembly of Kunda, India was arrested on the orders of then Chief Minister, Mayawati Kumari. He was sent to jail under POTA.

Unlawful Activities (Prevention) Act
Unlawful Activities (Prevention) Act is Indian law aimed at effective prevention of unlawful activities associations in India.
The National Integration Council appointed a Committee on National Integration and Regionalisation to look into, inter alia, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. In order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament.

Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the:

Freedom of Speech and Expression;
Right to Assemble peaceably and without arms; and
Right to Form Associations or Unions.
The object of this Bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India.

The Bill was passed by both the Houses of Parliament and received the assent of the President on 30 December 1967. The Amending Acts are as follows:
The Unlawful Activities (Prevention) Amendment Act, 1969;
The Criminal Law (Amendment) Act, 1972;
The Delegated Legislation Provisions (Amendment) Act, 1986;
The Unlawful Activities (Prevention) Amendment Act, 2004.
This last Amendment was enacted after POTA was withdrawn by the Parliament. However, in the last Amendment Act, 2004, all provisions of POTA were incorporated, thus making it equally draconian.[1]

Criticism
Despite the fact that in 2004, both TADA and POTA were repealed due to large instances of misuse, the UAP Act of 1967 was amended reintroducing the repressive provisions again. Past experience has shown that enough stringent provisions exist particularly CrPC which has tougher provisions than many of the anti-terror laws in U.K. and U.S.A.

1. Pretrial imprisonment extended up to 180 days ( UK 40 days) giving enormous powers to investigating agencies to detain people without a fair trial, giving ample scope for using false evidence and further that on the ground additional investigation is required a detained person can be shifted from judicial to police custody.

2. Minimum period of police custody of persons suspected to be involved in acts of terror extended to 30 days (earlier 15 days)

3. Denial of bail if prima facie case exists.( If FIR is lodged prima facie case exists – Therefore bail can be denied in all cases)

4. No person accused of an offence can be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application of such release. Whereas bail was a right and is required to be given under all situations, under the present Act, bail can be given only in very rare cases. Section 43(D) (6) provides that an accused person shall not be released on bail or on his own bond if the court, on the perusal of the case diary or the report is of the opinion that there are reasonable grounds for believing that the accusation against the person is prima facie true. Since under this Act, the presumption of guilt is upon the accused, and since the FIR is required to record the offense, the Court will have to necessarily come to the conclusion that a prima facie case exits. Therefore an accused can be refused bail indefinitely. The right to bail has been completely taken away.

5. No bail for foreigners- violating the principle of fair play and non- discrimination on the ground of nationality.

6.Presumption of guilt is on the accused (earlier presumption of innocence was on the accused which is the most basic principle of fair trial)

7. Definitions of "terrorist act" and terrorism" are vague, general very wide sweeping taking in its ambit almost all acts under which anyone can be picked up.(section 53)

8. Arrest and search and seizure on mere suspicion may be authorized by general or special orders of an officer designated by the State or Union Government (Section 43A), or he may authorise any Officer subordinate to him. Search can be conducted at any time of a house of any person on the basis of any document, article or any other thing which may furnish evidence of the omission of such an offence. This overrides the basic fundamental right of due process of law as laid down under the Constitution and the Criminal P.C. This amendment overrides the provisions of Cr PC (section 43 C). All offences mentioned in the Act allows arrest without warrant,and searches without orders of the Court.

9. If a Superintendent of Police thinks it is relevant he can ask any organization, firm, establishment public authority or even an individual to furnish information relating to the offense committed. Failure to furnish such information could result in imprisonment which may extend to three years or fine or both. This is dangerous, particularly in the case of journalists who are required to maintain secrecy of their sources. A mere intention to threaten the unity, integrity , security or sovereignty of India etc is sufficient to make the UAPA applicable.

The National Investigation Agency Bill, 2008
seeks to set up Special courts to investigate and prosecute offences affecting "the sovereignty, security and integrity of India" ostensibly for quick trials. The NIA can investigate an offense in response to a request from a State Government or on a suo motu direction of the Central Government. Prior to this bill, since law and order is a state subject, the Centre could intervene only upon a request being made from State Governments. It could not suo motu take up offences for investigation. The NIA Bill now permits the Centre to take over the prosecution or investigation of an offense. Thus though prior to this Act offences could be investigated only upon (1) orders from Court or (2) consent of the State, this is no longer true and the CBI has now been entrusted with enormous powers.

Besides this what constitutes "affecting the sovereignty, security and integrity of India" is not clear and the vagueness of the terms have left it open for any person to be arrested. Thus a mere criticism of the State could bring a citizen under the purview of both the NIA Act and the UAPA. These two Acts seek to undermine and denude the fundamental right to free expression as well as other fundaments rights

The NIA Act provides for a Schedule of Central acts covering offences against the State, namely terrorism, atomic energy, anti-hijacking, weapons of mass destruction etc, all of which fall within the domain of the Centre, empowering the agency to act on these offences.

Conclusion

Both the NIA Act and the UAP Act infringes upon human rights in various ways, undermining the rule of law.

Both the Acts have a wide and sweeping definition of "acts of terrorism"

No safeguards are provided. There are no review Committees. There is denial of the right to a fair trial, and violation of substantive due process as well as personnel liberty guaranteed under Article 21

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




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