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Published : August 27, 2010 | Author : arunbabu
Category : Criminal law | Total Views : 6212 | Rating :

  
arunbabu
Arun Babu.2nd year Law Student, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur
 

Global Terrorism and Major Indian Legislations

The term terrorism comes from the French word terrorisme, which is based on the Latin verb terrere[2] (to cause to tremble). It dates back to 1795 when it was used to describe the actions of the Jacobin Club in their rule of post-Revolutionary France, the so-called “Reign of Terror”.[3] Jacobins are rumored to have coined the term "terrorists" to refer to themselves[4]. The definition of the term ‘terrorism’ has proved to be very controversial. Various legal systems and government agencies use different definitions for this term. A simple definition can be that- it refers to a strategy of using violence, social threats, or coordinated attacks, in order to generate fear, cause disruption and ultimately brings about compliance with specified political, religious and ideological demands

Terrorism has acquired global dimensions and has become a challenge to the whole world. India is one of the most terrorism-troubled countries in the world. The case of India is unique in comparison to many other countries of the world as it is the country with the greatest number of indigenous, home-grown terror groups along with a substantial presence of transnational terrorist entities on its soil and in neighboring countries, posing a constant threat to its security. On 26.11.2008, India witnessed the most deadliest and brazen terrorist attack ever in its history. The terrorist attack consisted of more than ten coordinated shooting and bombing attacks across Mumbai, India’s financial capital and largest city. The attack which drew widespread condemnation from across the world, began on 26th November 2008 and ended on 29th November. It left 173 people dead and injured at least 320 and was later confirmed to have been carried out by terrorists from Pakistan. Ajmal Kasab, the only attacker who was captured alive has already been granted death sentence by the Special Trial Court in Mumbai. There has been an upsurge in terrorist activities by Islamic groups mainly operating from Pakistan and Bangladesh and insurgent groups in different parts of the country. Terrorism has now acquired global dimensions and has become a challenge to the entire world. The methods adopted by terrorist groups include taking advantage of modern means of science and technology using high tech facilities available in the form of communication systems, transport, sophisticated arms and various other means. This has allowed them to strike terror among people at will.

By this research paper, the author intends to examine how effectively the provisions in the Indian Penal Code, 1860 can deal with offences related to global terrorism. The author has also put forward some suggestions on how the situation can be improved. This research paper will also include an overview of the current anti-terrorism legislations in India and an analysis of the same.
Global Terrorism and the Indian Penal Code,1860

India is one of the most affected countries in the world by the cowardly acts of global terrorism. The 26/11 Mumbai attacks which continued for 3 days can be said to be as one of the most ruthless terrorist attacks the world has ever seen. Under the circumstances if one examines the Indian Penal Code, 1860 the word terrorism is nowhere defined and this is the biggest irony. A country in which out of 593 districts[5], at least 232 are affected by various insurgent and terrorism movements and a country which has been victim to at least one major terrorist attack in a year, has no definition of the word ‘terrorism’ in its Penal legislation.

Section 2 of the Indian Penal Code, 1860 deals with Punishment of offences committed within India. It states that every person shall be liable to be prosecuted under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. The plain meaning of this usage “every person” is that it comprehends all persons without limitation and irrespective of nationality. The object of this section is to declare the liability of every person irrespective of nationality to be punished for an offence committed under the Indian Penal Code, 1860.[6]
Therefore the Indian Penal Code, 1860 does apply to a foreigner who has committed an offence within India notwithstanding that he was corporeally present outside. Therefore foreign terrorists engaging in terrorist activities in India, if caught alive can be convicted under the Indian Penal Code.

Section 121 of the Indian Penal Code, 1860 deals with the offence of waging, or attempting to wage war or abetting waging of war, against the Government of India. It states that-“Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to be fined”.

Acts of terrorism have been held to come under the ambit of offence of waging war or attempting to wage war or abetting waging of war under Section 121 IPC. This was held by the Delhi High Court in the case State ( NCT) of Delhi v. Mohd. Afzal and Ors.[7]This judgment of the Delhi High court was confirmed by the Supreme Court[8] on appeal. Mohd. Afzal also known as Afzal Guru was convicted by the Supreme court under this section. He was one of the conspirators of the terrorist attack on the Indian Parliament in December 2001.

There has been some confusion however whether the word “whoever” in this section includes foreign nationals.. In Mohd. Afzal’s case[9] it was held that section 121 IPC applies to foreign nationals as well. The position of the Delhi High Court in this regard was reaffirmed by the Supreme Court[10] when it held that-“We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government.”

The same view was taken by the Special Court set up for the 2008 Mumbai terror attack trial. The special judge agreed with the prosecution that the attacks amounted to waging war against India, and accepted the contention raised by the prosecution that Section 121 of the Indian Penal Code, 1860 was applicable to Ajmal Kasab, the sole attacker captured alive and went on to hold that “An offence under Section 121 of the Indian Penal Code,1860 can be committed by both Indian nationals and foreign nationals.[11]”

Therefore the position whether Section 121 of the Indian Penal Code,1860 applies to foreign nationals has been now confirmed by the courts.

All other sections of the Indian Penal Code, 1860 are applicable to foreign nationals and therefore any foreign national indulging in any terrorist act can be convicted under the Indian Penal Code, 1860.

However the Indian Penal Code suffers from certain inherent drawbacks when it comes to the provisions regarding terrorist acts and offences related to acts of terror. The very first being that nowhere in the Indian Penal Code is the word “terrorism” defined. There is a need to incorporate permanent special provisions to deal with terrorism in all three of our major acts dealing with crimes i.e. the Indian Penal Code 1860, Criminal Procedure Code,1973 and the Evidence Act,1872.All three of these acts were drafted and enacted before terrorism became rampant and therefore these legislations unless amended are not well equipped to deal with acts of terrorism[12].

The special provisions should preferably be in a separate chapter in the Indian Penal Code and should clearly define terrorism and terrorist offences; and prescribe stringent and deterrent punishments, including prescribed minima for incarceration. The new provisions in the Criminal Procedure Code should provide for speedy trials denial of bail after the charge is framed by the court, restrict the number of appeals to one and that too only on substantive points of law etc. Time limits could also be prescribed for filing charge sheets, trial procedure and appeals. Special provisions in the Evidence Act should try to liberalise the rules of evidence (loading it in favour of the citizens instead of the terrorists). Along with the introduction of special legal provisions to tackle terrorism, safeguards against misuse or abuse of the provisions can also be enacted.

It is unfortunate that criminals, particularly those involved in terrorist attacks, are able to use the existing safeguards in our laws to delay or evade punishment, thus reducing the deterrent effect of suitable punishment for brutal acts of terrorism. The trial of those accused in the serial blasts of 1993 in Mumbai dragged on for 13 years, and it has to be kept in mind that the appeals process is yet to materialise. Ajmal Kasab, the lone attacker captured after the 26/11 has been making a complete mockery of the Indian Judicial system. Amendments to the Indian Penal Code, 1860 and the Criminal Procedure Code, 1973 should lead to quicker and clearly deterrent punishments and may hopefully help in preventing terrorism from assuming more virulent proportions.

Current Anti-Terrorism Legislations in India
As was discussed earlier in this research paper, the present laws as enumerated in different codes are stringent but they cannot prevent a terrorist attack. These codified laws in Code of Criminal Procedure of 1973 and Indian Penal Code can help in the investigation and prosecution of the cases but not in restraining terrorism. Hence, the need for special laws to combat terrorism cannot be ignored. Towards the end of the year 2008, two key anti terrorism legislation bills were passed within the four days of their introduction by the Indian Parliament - The National Investigation Agency (NIA) Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008.

The National Investigation Agency (NIA) Act, 2008
The salient features of the Act are as follows-The legislation will be applicable to the whole of India, citizens of India, outside India, in service of the Government, wherever they may be and for persons on ships and aircrafts registered in India[13]. The officers of the NIA will have all the powers, privileges and liabilities which the police officers have in connection with the investigation of any offence[14]. The superintendence of the NIA shall vest in the Government of India and the administration will vest in the officer designated on this behalf by it[15]. The police officer in charge of the police station on receipt of the report of the offence shall forward it to the state government which in turn will forward the same to the Central Government. If the Central Government is of the opinion that the offence is a Scheduled Offence, it shall direct the agency for investigation of such offence[16]. The NIA may also investigate other offences connected with the Scheduled Offence.

The Government of India shall constitute Special Courts for the trial of Scheduled Offences[17]. The Special Courts shall try the offences committed within its local Jurisdiction. For the purpose of having a fair or speedy trial or in the interest of justice, the Supreme Court of India may transfer any case pending with the Special Court to another Special Court in the same state or any other state and the High Court may transfer such cases to any other Special Court within the state. Clause 16 of the NIA Bill seeks to provide for procedure to be adopted and powers to be exercised by the Special Court for trial of the Scheduled Offences. It seeks to provide that offences punishable with imprisonment for a term not exceeding three years or with fine or with both, may be tried summarily. The Special Court will have all the powers of the Court of Sessions under the Code of Criminal Procedure, 1973 for the purpose of trial of any offence under this Act. The trial under this Act by the Special Court shall be held on a day-to-day basis on all working days and shall have precedence over the trial of other offences. NIA is a police force created and administered by the Government of India which endows all personnel above the rank of sub-Inspector of police with powers throughout the Indian territory. The Act empowers the police stations of the state to register first information as to the commission of the offence and then forwarded it to Central Government. The State Government shall then forward this information to the Centre which would on basis of inputs decide within 15 days by invoking the power of NIA. Once the NIA enters the investigation, the authority of state government agencies would stand extinguished and all the relevant materials and records shall be transferred to NIA. The National Investigation Agency (NIA) investigates the acts of terrorism and offences related to atomic energy, aviation, maritime transport sedition, weapons of mass destruction and left wing extremism but excluded the Hindu right wing extremism which is more destructive than the naxal or left wing extremism.

The establishment of NIA is no doubt a positive step in fighting terrorism-related crimes, but it is unlikely to be a panacea to prevent terrorist attacks. For, it will be an agency that investigates and prosecutes only after terrorist attacks take place. Though the NIA no doubt would contribute to a better understanding of how the attacks were planned and carried out, the linkages between terrorist cells within the country as well as outside, the modus operandi of terrorist cells and groups, etc., it is unlikely to prevent terrorist attacks.

One criticism against the Act is that it has so many features giving power to the Centre, and that it undermines the federal character of our country and the supremacy given to the Centre as per the Act will encroach upon the powers of the State Governments.[18]A counter argument against this can be that terrorism is a menace that affects the whole country and not a single state and therefore the Centre should be given more powers in the execution of such an anti-terrorism legislation.

The Unlawful Activities (Prevention) Amendment Act, 2008
The Unlawful Activities (Prevention) Act, 1967 was conceived to put reasonable restrictions, on the freedom of speech and expression, the right to assemble peacefully or unions for the interests of the India's sovereignty and integrity. The Indian Parliament amended the Act in 2004 following the repeal of Prevention of Terrorism Act, 2002 (POTA).This changed the entire character of the Act and made it more of an anti terrorism legislation. The Unlawful Activities (Prevention) Amendment Act, 2008 made a number of procedural and substantive changes to empower the NIA, Act effectively and decisively on terrorism.

These are some of the important changes that have been brought about in the amendment act. Section 17 was replaced by a provision which makes such persons punishable who collects or provides funds or attempts to do the same and has knowledge that such funds are likely to be used for terrorist activities. Two additional provisions have been inserted after section 18 of the Unlawful Activities Prevention Act, 1967.Section 18A deals with the offence of organizing or causing the organization of any camp or camps for imparting training in terrorism and section 18B deals with the offence of recruiting or causing the recruitment of any person for the purpose of committing a terrorist act. A new Section 43D has been incorporated in the Amendment Act, which has increased the maximum period of custodial interrogation (remand) to 180 days, a increase of over the 90 days allowed under Section 167 of the Code of Criminal Procedure of 1973. Section 43E introduces the principles of presumption of guilt, which was also present in POTA. According to the section arms, explosives or other substances specified in Section 15 of the Act, if recovered from the possession of the accused and if there is reason to believe that substances of similar nature will be used in the commission of the offence, the court shall presume that accused has committed such offence. Critics have countered this section 43E stating that our criminal justice system is based on the presumption of innocence until proved guilty. The onus of proving the guilt of the accused is invariably and always on the prosecution whereas as per Section 43E if a person is found with the weapon the onus would be upon him to prove that he is not guilty. This provision hits at the root perception of Indian criminal jurisprudence which is acquisitorial.[19]

This legislation again meets the objectives of speedy and efficient investigation, fair and speedy trial, and deterrent punishment. However similar to the NIA act, it comes into play only after the terrorist act has been committed. Howsoever deterrent our laws are, it is not going to affect the spirit of a jehadi on a suicide mission.

Conclusion

India has been the victim of insurgencies and terrorism of various hues since it became independent in 1947.Over the years the magnitude of attacks and the impact caused has only increased[20]. Under the circumstances there is an urgent need to include certain provisions to deal effectively and strongly with this menace in the Indian Penal Code, 1860 and the other major legislations namely the Code of Criminal Procedure,1973 and the Indian Evidence Act,1872. Incorporation of a separate chapter in the Indian Penal Code which defines terrorism and other related offences can be a great step forward. It should also prescribe stringent and deterrent punishments for such offences.

In this regard the National Investigative Agency(NIA) Act,2008 and the Prevention of Unlawful Activities (Prevention) Ammendment Act,2008 are two effective legislations. However it is very doubtful to what extend it will lead to prevention of terrorist acts. One way of achieving this can be by reorganising the entire Indian intelligence set up along the lines that the United States has done in the wake of the September 11 terror attacks.

The Government on its part should ensure the effective implementation of our anti terror legislations. Why a terrorist like Afzal Guru has not been executed when the Supreme Court of India has ruled him to be a prime culprit in the Parliament attack case and sentenced him to death? We don’t want another Indian Airlines plane to be hijacked to free dreaded terrorists like him. Indian politicians should refrain from indulging in vote bank politics for the purpose of protecting their vested interests and personal political careers. Mere slogans and promises alone would not suffice, appropriate action is required to be taken.

BIBLIOGRAPHY
· Lennart Sjoberg,”The perceived risk of Terrorism”,Vol.7,No.1(2005)
· John Deutch,”Terrorism”,No.108(1997),pp. 10-22
· K.R Gupta.”Anti Terrorism Laws: India,United States,United Kingdom and Israel
· 173rd Law Commission of India report on Prevention of terrorism Bill, April 2000
· 8th report of the Second Administrative reforms commission, June 2008
· Krishna Prasad, “Anti-terror Laws-or An Implementation Of Failure?”, December 2009
· Shanti Som,”Combating terrorism with aid of new laws”,March 2009
· Rollie Lal, South Asian Organised Crime and Terrorist Networks,, Foreign policy research Institute, New Delhi
· Stephen J Jones, “Waging Terror:The Geopoltics of the real,political geography”, (2006) 298
· Leila Querdani, ”Tackling terrorism in liberal democracies”
· Dr. H.S. Gour’s, Penal Law of India, Vol. II, 11th Ed., Law Publishers (India) Pvt. Ltd.
· Ratanlal & Dhirajlal,The Indian Penal Code,13th Edition,Lexis Nexis Butterworths
· Basu’s, Indian Penal Code, Vol. I, 9th Ed., Ashoka Law House
· K.I. Vibhute, PSA Pillai’s Criminal Law, Tenth Edition, Lexis Nexis Butterworths, Nagpur,2009
· Anti terrorism laws in India, at www.legalserviceindia.com/articles/anti_pota.htm
· Constitution of India, 1950
--------------------------------------------------------------------------------
[1] Arun Babu, 2nd year Law scholar, Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur
[2] John Deutch,”Terrorism”,No.108(1997),pp. 10-22
[3] Eli B Silverman, “The Ethics of Terrorism: Innovative approach from an Indian Perspective”, Charles C Thomas, 2009
[4] Ibid.
[5] http://censusindia.gov.in/Census_Data_2001/Census_data_finder/A_Series/Number_of_District.htm, last visited on 21/04/2010 at 18.00 hrs.
[6] Mahabir Singh, I.L.R 25 AII. 31
[7] State ( NCT) of Delhi v. Mohd. Afzal and Ors., 107 (2003) DLT 385
[8] AIR 2005 SC 3820
[9] See Supra Note 2
[10] See Supra Note 3
[11] Kasab cant be charged for waging was against the Nation: Hindustan Times, March 11,2010
[12] See Chapter 3, 173rd Law Commission of India report on Prevention of terrorism Bill, April 2000
[13] Section 1, NIA Act, 2008
[14] Section 3(2), NIA Act, 2008
[15] Section 4(1), NIA Act, 2008
[16] Section 6, NIA Act
[17] Section 11(1), NIA Act, 2008
[18] Shanti Som,”Combating terrorism with aid of new laws”,March 2009
[19] Krishna Prasad, “Anti-terror Laws-or An Implementation Of Failure?”, December 2009
[20] Kartar Singh v. State of Punjab,(1994) 3 SCC 569

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




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