India’s long struggle with various forms of politicized violence has created a “chronic crisis of national security”. The major provenances of insecurity to India are organised crimes, rapes, violence based on caste and communal divides, of these terrorism plays a prominent role since India is one of the countries worst affected by terrorism. Security is perceived as “an integral component of India’s development process”;1 it has become part of the very “essence of India’s being”. India has been approaching security in a wider sense in the name of “comprehensive national security”.2 India has relied more on military to secure the highly prioritized internal security as terrorism challenged credibility and legitimacy of the state.
Extensive use of legal provisions like counter-terrorism laws and emergency provisions are involved in military approach to strengthen them. Although the law and order function is vested with the federal states, the constitution authorities the central government to legislate exclusively on matters relating to national security and to use the military forces to safeguard the internal security of India. Indian government has enacted several legislation conferring sweeping powers like search, arrest, and preventive detention authority upon the armed forces, even authorizing them to shoot to kill suspected insurgents or terrorists. But simultaneously rights of an individual should be understood as extremely significant moral issues and cannot be ignored merely.
TRADITIONAL BACKGROUND OF ANTI-TERRORISM LAWS:
India’s anti-terrorism laws have repealed, enacted and re-enacted
periodically since independence, but not going farther from the British tradition. The reason for the enactment of special laws is that the already existing criminal laws are incapable of meeting the higher emerging threats by terrorists. Conventional criminal laws approach crimes as “as an individual infraction violating individual rights” missing out the basis of terrorism that “movements that collectively subvert and disrupt the structures of governance and enforcement themselves”.4 So the impulse to create special laws stems from the perceived problems concerning the effectiveness of the criminal justice system.
Pro-terror law arguments got bolstered after 9/11 terrorist attack, by the
anti-terror initiatives of developed countries like the United States and the United Kingdom and also stipulations from the United Nations Security Council (UNSC). The UNSC Resolution 1373 asks the member states to ensure that adequate anti-terrorism measures are taken to prevent and criminalize the financing or collection of funds for “terrorist acts”… to bring justice to any persons who commit or are involved in financing, planning, preparing or supporting “terrorist acts”, and to legalese separate, “serious criminal offence” proscribing “terrorist act” under domestic law5. To monitor states’ implementation and compliance, Resolution 1373 established Counter-Terrorism Committee (CTC).
CATEGORIES OF SECURITY LAWS:
The laws that have been enacted in response to terrorism fall under nation-wide
laws like the Unlawful Activities (Prevention) Act of 1967 amended in 2019; the National Security Act (NSA) of 1980; the Terrorist Affected Areas Act (TAAA) of 1984 to establish special courts to adjudicate certain “scheduled offences” related to terrorism, Terrorist and Disruptive Activities Act (1985) and POTA(2002) and act-oriented or area-specific laws like Anti-hijacking Act,2016 and special laws in the individual states like Madras Suppression of Disturbances Act(1948); Assam Disturbed Areas Act (1955).
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT
Terrorist and Disruptive Activities (Prevention) Act( TADA), was operative
between 1985 and 1995 (re-enacted in 1987) in the backdrop of militant groups engaging in guerrilla-style conflict in Punjab, Kashmir, Andhra Pradesh and parts of the Northeast. It was the primary anti-terrorism law legislated by the government to define and counter terrorist activities6. The Punjab Director General of Police, in 1987, virtually admitted that TADA was used as a tool for preventive detention. TADA’s sweeping power “enabled pervasive use of preventive detention and a variety of abuses by the police, including extortion and torture.”7
When TADA was enacted, it had been challenged as being unconstitutional and it
dealt with the issue of ‘public order’, which was within the legislative power of states. The Supreme Court of India upheld its constitutional validity on the idea 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). Added to that Supreme Court of India says, “If the law enforcing authority becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself and ultimately it invites anarchy.”8
PREVENTION OF TERRORISM ACT(POTA),
In wake of 1999, after the IC-814 hijack and 2001 Parliamentary attack, there
came the Prevention of Terrorism Act (POTA), 2002 which says suspect could be detained for up to 180 days without filing the chargesheet in court. This Act entrusted the security forces with enormous discretionary powers and inflicted more wound by creating “uniform phobia”. Ironically, several major terrorist acts, including attack on Akshardham temple complex and 2003 Mumbai blasts took place, when POTA was in place. However, reports of gross misuse of the Act by some state governments paved the way for its repeal in 2004.
In the case of PUCL v. Union of India (2003) where the Court upheld the
validity of the Prevention of Terrorism Act (POTA) but the court rightly recognised
“terrorism often thrives where human rights are violated” and “the lack of hope for justice provides breeding grounds for terrorism” furthered because of Resolution 1373, “it has become (India’s) international obligation…to pass necessary laws to fight terrorism”9. In the case of Devender Pal Singh vs. State of N.C.T. of Delhi (2002)10, nine peoples had died and several others wounded on the perpetrated acts. The court said any compassion towards such terrorist would amount to misplaced and unwarranted sympathy and provided death sentence.
UNLAWFUL ACTIVITIES (PREVENTION) ACT,
UAPA was developed as an anti-terrorism law and in 2004, the government
chose to amend and strengthen the Act by inserting specific chapters in which the amendment criminalised some important activities related to terrorism like the raising of funds for a terrorist act, holding of the cash or other forms of proceeds of terrorism, being a member of a terrorist organisation, aiding a terrorist organisation, and the raising of funds for aiding terrorist organisation.
In Sajal Awasthi v. Union of India (2019) against UAPA in the Supreme
Court to declare it unconstitutional as it violates basic fundamental rights of article 14, 19 and 21 and paved the way for government to declare a person as a terrorist. The recent amendment allows notification of "individuals as terrorists" while under UAPA, 1967, only organisations could be brought under the term “terrorists”. The UAPA 2019 has revised Chapter VI of the Unlawful Activities (Prevention) Act, 1967 which includes Section 35 and 36. The amended Section 35 of the act affects the fundamental right to free speech and expression under Article 19 (1) (a) and Article 14. Further, the petition had also stated that the act also violates right to dissent and right to reputation - an integral part of the right to life, by tagging individual as terrorist even before the commencement of trial.
NATIONAL SECURITY ACT,
This Act is to combat “anti-social and anti-national elements including
secessionist, communal and pro-caste elements and elements affecting the services essential to the community”. An individual can be detained without a charge for up to 12 months and can be held for 10 days if authorities are satisfied that a person is a threat to national security or law and order.
The Uttar Pradesh Government in 2018 said that it detained 160 people under
this act within a year of chief minister Yogi Adityanath period. Manipur journalist
Kishorechandra Wangkhem was detained under NSA over videos criticising the Chief
Minister N.Biren Singh and Bhim Army Chief Chandrashekhar Azad for 15 months. As per Law Commission Report from 2001, more than 14 lakh people were held under preventive laws in India.
NEGATIVE CHARACTERISTICS OF COUNTER TERRORISM LAWS:
Counter-terrorism laws did not serve the purpose for which they were enacted
due to : Emphasis on protection of state rather than people; over-reaction to the threat posed and far more drastic measures than necessary; hasty enactment without giving much room for public debate on judicial scrutiny; overly broad ambiguous definitions of terrorism that fail to satisfy the principle of legality; pre-trial investigation and detention procedures which infringe upon due process, personal liberty, and limits on the length of pre-trial detention; special courts and procedural rules that infringe upon judicial independence and the right to a
fair trial; provisions that require courts to draw adverse inferences against the accused in a manner that infringes upon the presumption of innocence; lack of sufficient oversight of police and prosecutorial decision-making to prevent arbitrary, discriminatory, and disuniform application; and broad immunities from prosecution for government officials which fail to ensure the right to effective remedies.11
Instead of apprehending the terrorists, it was used as “political weapons” to settle
scores with political rivals that resulted in the removal of moderate voices from the scene allowing militant to resist “repressive regimes”. These laws quickened the isolation of the affected community and increased the number of sympathisers and recruits of militancy by parents forcing the youths to join them which is evident in J&K and north-east of India by Jaswant Singh noted that the singling out of Punjab for emergency treatment may have contributed to the “psychological isolation of beleaguered state”.12
The main objective of security laws should be to moderate political antagonisms
rather than aiding the repressive arm of the state when the enactment of powerful nationwide anti-terrorism laws without sufficient safeguards to constrain misuse and ensure national uniformity in their application has led to human rights abuses and disparate patterns of enforcement throughout the country.13 The aim of anti-terrorism laws must take socioeconomic pressures, unmet political aspirations, bitter experience of innocent people and their relations with the repressive arm of the state which contribute to terrorist reservoir into consideration. As the former UN Secretary General Kofi Annan pointed out, “we should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights…we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism”.14
Adhering to human rights obligations when combating terrorism helps to
ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state.15 Attentiveness to human rights concerns is not just a moral and legal imperative, but a crucial strategic imperative which must be emphasised. Special laws must ensure that terrorism related offences are investigated, prosecuted and adjudicated more effectively and bring down the “crisis of legitimacy” which requires comprehensive reforms in the criminal justice system.
National Security Advisory Board’s document on India’s Nuclear Doctrine.
President A P J Abdul Kalam in his address to the nation on the eve of 60th Independence Day identified four major components of “comprehensive national security”: territorial security, internal security, energy security and economic security.
Ronald Dworkin’s book on ‘Taking Rights Seriously’(1977)
Gill, K P S (2002): “The Imperatives of National Security legislation in India”, Seminar, April;
UNSC Resolution 1456 (20 January 2003) and 1566 (8 October 2004).
(THE) Terrorist and Disruptive Activities (PREVENTION) ACT, 1987." satp.org. Retrieved 13 April 2015
“The Cases that India Forget” by Chintan Chandrachud (February 1,2020)
Kartar Singh vs. State of Punjab, (1994) 2 SCR 375,1994 Indlaw SC 525, p 366
People’s Union for Civil Liberties vs. Union of India, AIR 2004, SC 456,465.
Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209
Kalhan, Anil et al (2006): “Colonial Continuities: Human Rights, Terrorism and Security Laws in India”, Colombia Journal of Asian Law, Vol 20, No 1, p 96.
Singh, Jaswant (1988): “Beleaguered State”, Seminar, Issue No 345, May, p 19.
Commentary by N.Manoharan on Trojan Horses: Counter - terror laws and security in India.
Kofi Annan’s address to the UN Security Council meeting, 21 January 2002.
Lal, Chaman (1990): “Terrorism and Insurgency”, Seminar, Issue No.483, November.
student of law at The Tamilnadu Dr.ambedhkar Law university
student of law at The Tamilnadu Dr.ambedhkar Law university