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J& K DILEMMA: WHETHER A CAHOOT?

Introduction

India, being a democracy has always respected the freedoms and liberties, that its Constitution has granted to its citizens. This essentially empowers the nation beings to hold and share their opinions which amplifies and checks the conventional mechanism of Governance. Furthermore, Internet and social media platforms have given in to its purpose, which is both a boon and bane. As evident, various organizations often misuse their freedom to terrorize people and achieve their strategic motives. Therefore, it is time to ponder whether the laws that guard every citizen, pave a way for free speech or curb this basic fundamental right.

Tussle in Process and Law The nationwide laws of Anti-terrorism have emerged due to significant events that have occurred in the past, for example: the aftermath of assassination of Prime Minister Indira Gandhi in 1985 led to the enactment of TADA[1] that later became POTA[2] in 2002 and 26/11 Mumbai Attack and 13/12 Parliament Attack led to passing of UAPA[3],1967. Along with specific statutes, IPC(Section 121) and Code of Criminal Procedure(Cr.P.C) have substantial provisions for the cause. Now, zooming in to the most discussed region of terrorism, i.e Kashmir, that has faced various law and order challenges for decades, efficiently involving Terrorist threats (Al-Qa’ida, ISIS, JeM[4], LeT[5],etc) along with suppression of free speech. The most disturbing facet is, the tussle between the process that is being followed and the laws that exist. It has been observed that the anti-terrorism laws, are the legitimate weapons in the hands of the Government to suppress free speech but at the same time, the country is lacking any powerful statute to diminish the nucleus of terrorism. Broadly classifying the terrorism in India; a. Border Security, b. financial, c. Violent Extremism, and d. Regional Terrorism, rule the spectrum. Further extending the mismanagement, these crisis are being toyed between the agencies of Execution (Local Police, NIA[6], etc.) and the proper balance of impact within the territory. Thus, there exist an ample amount of deficiency and inefficiency in carrying out the needful in the given geographical area i.e. Kashmir. For example: The ISIS recruits online. Transversing coveted methods of social media and internet gives an infinite domain to exploit interests, thus making the present regulations somewhat redundant in comparison. Further, multiple laws (anti-terrorism laws sometimes contradicts the general laws as well as constitutional safeguards) lead to disruptions and delays in trial and prosecution.

Terrorism, Sovereignty & Fundamental Rights Lord Acton rightly propounded, “Power tends to corrupt; absolute power corrupts absolutely”; the Anti- Terrorism laws in India are generally strict but tend to beat around the bush being flatly ineffective where required, like extended periods of police custody, detention without charges and denial of bails co-existing with suppression of common man’s voice against unfair treatment, eventually turning India into a virtual police state hosting fascism. This urge to punish terrorists, curtails citizen’s fundamental rights leading to the upper hand of external sovereignty over internal which by principle should be co-existent. The prominent illustration being; the upheaval to re-enact POTA despite its various existing loopholes that attract criticisms and the ‘internet blackout’ in Jammu & Kashmir . The political propagandists turn every mishap and mis-event at the encumbrance of religious minorities, harassing their rights as citizens, for example in 1993 Gujarat witnessed no terrorism but 19,000 people were arrested under TADA, also in Rajasthan out of 115 TADA detainees 112 were Muslims portraying the plight of religious minorities.[7] As evident, they are arrested and investigated upon without any reasonable ground, practically blinded by their certain faith . Thus, as apparent there exists a corroded nexus among the three frontlines; i.e. Terrorism, Sovereignty and Fundamental Rights. ‘India’s counterterrorism and sedition laws have been widely misused to target political opponents, tribal groups, religious and ethnic minorities and dalits. Amendments made to the UAPA in 2008 and 2012 could result in further misuse.’[8]

Eagle Eye: J & K Issue It has been researched that Militant groups in Jammu and Kashmir do use social media to glamorize Jihad and recruit potential young people enticing them into terrorism, but instead of using valid correctional processes the State Government is pertaining to naught, except for prohibiting the fundamental freedoms and rights. Freedom of speech and freedom to get informed are two sides of the same coin and therefore when one gets affected the other loses its meaning as well. The frequent shutdowns in the state, time and again proves the failure of functionaries and the amendments in UAPA i.e. the Unlawful Activities (Prevention) Amendment Act, 2019 have fueled the already consuming fire of disdain and torture, since it is defined primarily through the intent to strike terror, therefore the discretion lies upon the public officials to choose whether the act amounts to “Terrorism” or is any other ‘common violence’ thus holding fates of people at their judgment. Under certain sections[9] bail possibly cannot be granted till the Public Prosecutor has been heard, and also can be declined if the magistrate feels like; efficiently directing a whole trial before even it starts. As unfortunate it is, the above facts snatch away the principles of natural justice without a doubt. The events this time took birth when Government of India without following due process of law removed Article 370 from the Constitution, though the decision was welcomed the process that led to the same was wrong, and certainly started ‘anarchy’ and is far from democratic principles. Another statute that rules the State is, AFSPA[10] that gives power to any commissioned or warrant holding officer to fire or use force to the point of causing death, to maintain public order which is nothing but an untamed dagger, as fake encounters are rapidly taking our nation in its grasp. It is not hidden that since 7 months, we are not aware of how Kashmir even looks. The most prominent reason would be, on the way to achieve the “removal of terrorism” goals, the officials are suppressing innocent voices as well as criticisms which are essential to be known and to be made known. And even now 4G is banned and people are being forced to use 2G to communicate, but the pandemic of Covid-19 requires the doctors and medical-staffs at-least to be aware of the developments taking place. Taking verse of a local named Hussain, “We are forced to work on 2G, and it’s incredibly frustrating. Doctors in Kashmir are not even able to download material they need for Covid-19.”[11] Where, the situation calls for work from home, online business and online classes; the people and students are not even getting connected to their banks and amidst the havoc around 150,000 jobs were lost as local tech companies had to shut or relocate to other parts of the country.[12]

Judiciary Intervention: How much? and why not? The above incident has successfully dismantled the balance that existed, and is certainly not helping in any purpose. ‘The Supreme Court on 16th of July 2020 granted one week time to the center and UT of J& K to file their reply in the plea seeking contempt alleging non-compliance of the May 11 Judgment of the SC which had directed that a “special committee” be constituted to “immediately” determine the necessity of continued restriction of mobile internet speeds in Jammu and Kashmir to 2G only.’[13] Hence, to keep fundamental rights in check Judiciary intervention is necessary unless reprobated.

Identifying Issues The draconian laws that have been given the title of “Anti- Terrorism Laws” but that work very little towards the purpose for which they were made are as follows;


Statute Comments


1. TADA

-This remained in force till 1995 but its remnants can still be found. -It’s rules generally departed from ordinary criminal procedure enabling confessions to police to be admissible as substantive evidence which gave immense power for variety of abuses by police including extortion and torture.

2. POTA

This came with the controversial legacy of TADA in 2002. It failed to review the assigned existing cases resulting in at-least four hundred remaining detentions. It allowed the Government to make new arrests under POTA, despite TADA’s repeal if the arrests were tied to an existing POTA case. People were continued to be kept in jail for extended periods even prior to filing of formal charges.

3.UAPA,2019

This new amendment is contradicts the principle of innocent until proven guilty and also violates ICCPR[14] which is a principle accepted as Universal human right. It extends the definition of “terrorist” including individuals under sections 35 and 36 of Chapter VI of the Act and no objective criterion exists for categorization providing Govt. with unfettered powers. The laws under UAPA are used to repress rather than combat terrorism and violate Article 21 of the Constitution.

4. AFSPA

It has facilitated grave human right abuses including extra-judicial execution, disappearance and torture. It states that no one can start legal action against any member of armed forces for alleged abuses under it, without permission of the Central Government. Despite being charged with human rights violations to justice, prosecution of these abuses is rarely given. 60% of 75% of all detainees were in jail awaiting trial drastically contributing to over-crowding among which approx. 65% were found innocent.



Conversing Solutions


1. J&K


a. Pertaining to Shut Downs:

  • Areas of extensive terrorism activities should be pointed out and stricter methodologies without abusing innocents should be preferred.

  • Alternative day shutdown procedures to be regulated in place of complete curfew, for normalizing people’s lives.

b. Internet in Essential Fields:

  • Medical facilities, Courts, offices, Media houses, and some of Internet Cafes should be given high speed internet facility as that’s a need.

  • Jammers should be avoided until excessively necessary.


c. Local Groups:

  • Group meetings in localities with officials should be held regularly to make issues of common people reach the correct destination.

  • The meetings are to be headed by one person elected from the group and one from the police officials.

d. Reviewing Committee

  • A reviewing committee which will be answerable to the Supreme Court should be formed headed by a SC Justice, and the members would include a representative from the state, one from the police officials/armed forces, along with a Government official, provided these members are to be elected on rotational basis.

  • The Committee is to review all the above factors (a,b,c) including the actions to keep Terrorism in Check.

  • The funding for such is to be given from the funds allocated for the army officials and regulatories of the States.


2. Nation-wide

a. Speedy Trial

  • Illegal detentions should be avoided and separate cells to be preferred that would be checked regularly.

  • Investigations are to be done properly.

b. Production Before Magistrate

  • Normal rules of the Code (Cr.P.C) are to be followed, including production before any magistrate within 24 hrs. of arrest.[15]

c. Statutory Changes

  • Excessive power in the hands of the Police and Armed forces are to be kept in check, unlimited discretion to be avoided.

  • The definition and categorization of Terrorist and Terrorism should be made clear.

  • The laws that exist should be made aware to people from the very root level.


d. UNCCT[16]

  • United Nations Office of Counter Terrorism performs the function of promoting international co-operation in the world wide fight against terrorism and also makes effort towards supporting the Member States in implementing the Global Counter-Terrorism Strategy through various means.

  • The Reports of the Reviewing committee discussed above are expected to be shown to this certain committee, and, after going through a review by UPR[17] they ought to be implemented. Any suggestions and impartations to be welcomed.


e. Social Media

  • Technology these days has become so much advanced, therefore content filtering mechanisms (bots of A.I[18]) are to be used to filter out Extremist articles from social media as well trace their origins to take proper measure afterwards.

Conclusion


Since the conception of the Constitution hate speech has always been countered but free speech is essential for the smooth functioning of the nation. This notion cannot be evaded. Therefore any means to suppress free speech goes against the purpose of our whole nation, it being a democracy and the anti-terrorism laws have shown more results of such illegality rather than being successful in combating terrorism. Therefore, we feel that strict laws are to be made to prosecute “real terrorists”, but the voices that should be heard should not become disdain and distant.


References

  1. Terrorist and Disruptive Activities Prevention Act.

  2. Prevention of Terrorist Act.

  3. Unlawful Activities Prevention Act.

  4. Jaish-e-Mohammed.

  5. Lashkar-e-Taiba.

  6. National Intelligence Agency.

  7. Official TADA Review Committee Report of 1993.

  8. Human Rights Watch Report, India: Stop misuse of Counter-Terrorism Law, 27 June 2013, available at : www.admin.hrw.org accessed on 13th July 2020.

  9. Example, Section 43 D (5) of UAPA and sec. 49(7) of POTA.

  10. Armed Forces(Special Powers) Act,1958.

  11. VOA News,Press Freedom, High Speed Internet Ban Keeps Kashmir in Dark;Niala Mohammad, May 13,2020.

  12. Kashmir Chamber of Commerce and Industry report, 5th March 2020.

  13. Sanya Talwar and Nilshish Choudhary, J&K 4G Ban, Live Law Stories ,16th July 2020.

  14. International Covenant on Civil and Political Rights,1967.

  15. Sec.56,57.

  16. United Nations Counter-Terrorism Centre.

  17. Universal Periodic Review.

  18. Artificial Intelligence.


Author

Arunima Pati & Rajeswari Nanda

Law student from University Law college,Utkal University,

Bhubaneswar, Odisha