1.Apt judicial reminder in era of over-criminalisation
The criminal justice system needs to take note of the Delhi High Court’s recent judgment on ‘defining terrorism’
The criminal justice system is an instrument of state and a key index of the state of democracy. Every punishment which does not arise from absolute necessity is tyrannical, said French jurist Montesquieu. In fact criminal law should be used only as a ‘last resort’ (ultima ratio) and only for the ‘most reprehensible wrongs’. Unfortunately, ‘crimes’ originate in government policy and, therefore, criminal law reflects the idea of ‘power’ rather than ‘justice’. Should civil society activists, students, intellectuals and protesters be charged for the crime of terrorism? Is every criminal a terrorist and every violent crime a terrorist activity? Did Parliament in enacting the Terrorist and Disruptive Activities (Prevention) Act, (TADA) and the Unlawful Activities (Prevention) Act, 1967 (UAPA) intend to punish ordinary criminals under these anti-terror special laws?
Example of misuse
In the period 2015-2019, as many as 7,840 persons were arrested under the draconian UAPA but only 155 were convicted by the trial courts. Most would eventually be acquitted by the higher courts. Even Congress governments misused TADA (enacted in 1985 and amended in 1987). Till 1994, though 67,000 people were detained, just 725 were convicted in spite of confessions made to police officers being made admissible. In Kartar Singh (1994), the Supreme Court of India had observed that in many cases, the prosecution had unjustifiably invoked provisions of TADA ‘with an oblique motive of depriving the accused persons from getting bail’. It added that such an invocation of TADA was ‘nothing but the sheer misuse and abuse of the Act by the police’.
UAPA’s experience has been worse than TADA. UAPA has also been equally used and abused. The recent 133 page bail order of the Delhi High Court in Asif Iqbal Tanha (June 15, 2021), that led to the release of three student activists, has come as a bolt from the blue for the Delhi police. At the heart of the controversy is the meaning of the term ‘terrorism’ and when UAPA can justifiably be invoked.
No consensus on definition
Though there are more than 100 definitions of terrorism available globally, there is no universal definition of the term ‘terrorism’ either in India or at the international level. The UN General Assembly had given this task to a committee, but in almost 50 years or so there has been no consensus on the meaning of terrorism. The fight against foreign occupation is to be kept out of terrorism as today’s terrorist may be tomorrow’s freedom fighter. Accordingly, neither TADA nor UAPA has a definition of the crucial terms ‘terror’ and ‘terrorism’. Section 15 of UAPA merely defines a terrorist act in extremely wide and vague words: ‘as any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people….’
How is such a terrorist act committed? UAPA says ‘by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases … or by any other means of whatever nature to cause or likely to cause death or injuries…,’ What is the meaning of the expression ‘by any other means’? When a general word is used in any statute after specific words, it is to be interpreted in the context of specific words. Thus, the Citizenship (Amendment) Act (CAA) protests cannot be covered by this expression.
In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts can range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons etc. Since the three student activists did not do any of these things, Justices Anup Jairam Bhambhani and Siddharth Mridul could not be convinced of their involvement in any terrorist act. Through an authoritative and enlightened bail order entirely based on the apex court judgments, Justice Bhambani reminded the Delhi police of the true meaning of a terrorist act.
In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as the ‘use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces … on the society as a whole’. Its main objective is to overawe the government or disturb the harmony of society or ‘terrorise’ people…’. Thus, what ‘distinguishes ‘terrorism’ from other forms of violence is the deliberate and systematic use of coercive intimidation’. In Kartar Singh (1994), the Supreme Court held that a mere disturbance of public order that disturbs even the tempo of the life of community of any particular locality is not a terrorist act. By this interpretation, the CAA protests in a few localities of Delhi cannot be termed as terrorist activity. Even in the Rajiv Gandhi assassination case, the Supreme Court, in Nalini and 25 Others (1999) held that none of the accused had intent to overawe the government or strike terror among people, and therefore the killing of Rajiv Gandhi and 15 others was not held to be a terrorist act or disruptive activity under Section 3 of TADA.
In Ram Manohar Lohia (1966), the apex court explained the distinction between ‘law and order’, ‘public order’ and ‘security of state’. Law and order represents the largest circle within which is the next circle representing ‘public order’, and the smallest circle represents the ‘security of state’. Accordingly, an act may affect ‘law and order’ but not ‘public order’. Similarly, an act may adversely affect ‘public order’ but not the ‘security of state.’ In most UAPA cases, the police have failed to understand these distinctions and unnecessarily clamped UAPA charges for simple violations of law and order.
In the historic PUCL judgment (2003) where the constitutionality of the Prevention of Terrorism Act (POTA) was under challenge, the Supreme Court had highlighted another vital dimension of terrorist act by including within its meaning amongst other things the ‘razing of constitutional principles that we hold dear’, ‘tearing apart of the secular fabric’ and ‘promotion of prejudice and bigotry’.
Justice Bhambhani reiterated the first principle of criminal law, i.e., criminal provisions are to be given the narrowest possible meaning. It is a sad commentary on our criminal justice system that even the mention of this rule of thumb is being considered as a breeze of fresh air in an atmosphere of curtailment of liberties and democracy tilting towards authoritarianism.
Relying on A.K. Roy (1982) where the constitutionality of the National Security Act (NSA) was challenged, Justice Bhambhani concluded that to ensure that a person who was not within the parliamentary intendment does not get roped into a penal provision, more stringent a penal provision,it must be more strictly construed. The apex court itself had held that while construing preventive detention laws such as the NSA, care must be taken to restrict their application to as few situations as possible. In Sanjay Dutt (1994) as well, the Supreme Court had held that those whom the law did not intend to punish are not to be roped in by stretching the penal provisions. In recent times, the Allahabad High Court had to quash 94 of 120 cases in which NSA has been invoked.
Accordingly, the Delhi High Court concluded that since the definition of a ‘terrorist act’ in UAPA is wide and somewhat vague, it cannot be casually applied to ordinary conventional crimes, and the act of the accused must reflect the essential character of terrorism. Indeed, the CAA protests were not terrorist acts. Defining terrorism may be difficult but does not everyone know when an act of terror is really committed?
What must be done
One hopes that, henceforth, our police will be far more cautious in charging people under black laws such as UAPA, the NSA, etc. In any case, no anti-terror law, howsoever stringent, can really end the problem of terrorism. Pushing a civilised state to state terrorism is the tried and tested strategy of all terrorists. Let us not fall in their trap.
Radicalisation generally succeeds only with those who have been subjected to real or perceived injustices. Let us remove injustice to combat terrorism. The creation of a truly just, egalitarian and non-oppressive society would be far more effective in combating terrorism.
Unlawful Activities (Prevention) Amendment Bill, 2019
The Lok Sabha has passed the Unlawful Activities (Prevention) Amendment Bill, 2019.
- The Bill amends the Unlawful Activities (Prevention) Act, 1967, providing special procedures to deal with terrorist activities, individuals and groups that foster terrorism in India.
- The Bill is yet to be tabled in the Rajya Sabha.
Key Features of the Bill
- It empowers the government to designate individuals as terrorists if the person commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism.
- This has been done as it is seen that when a terrorist organization is banned, its members form a new organization to spread terrorism.
- The bill also empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is being investigated by the agency.
- Under the existing Act, the investigating officer is required to obtain the prior approval of the Director General of Police (DGP) to seize properties that bear any connection to terrorism.
- It has been seen that many times a terror accused own properties in different states. In such cases, seeking approval of DGPs of different states becomes very difficult, and the delay caused by the same may enable the accused to transfer properties.
- It empowers the officers of the NIA — of the rank of Inspector or above, to investigate cases.
- The existing Act provides for investigation of cases to be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.
- No changes being made in arrest or bail provisions. Also, the provision that the burden of proof is on the investigating agency and not on the accused, has not been changed.
- The International Convention for Suppression of Acts of Nuclear Terrorism (2005) has also been added in the Second Schedule through the Amendment.
The Unlawful Activities (Prevention) Act, 1967
- The UAPA, an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (lapsed in 1995) and the Prevention of Terrorism Act – POTA (repealed in 2004) was originally passed in the year 1967.
- Till the year 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, “terrorist act” was added to the list of offences.
- The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
- According to statistics published by the National Crime Records Bureau (NCRB), 922 cases were reported under UAPA in 2016, which was 5% less than what was recorded in 2014, with 976 cases. At the same time, it was up by 3% from 2015 (897 cases). In total, 2,700 cases were registered over 2014, 2015 and 2016.
National Investigation Agency
- The NIA Act was enacted on 31st December, 2008 and thus the National Investigation Agency (NIA) was born.
- At present, NIA is functioning as the Central Counter Terrorism Law Enforcement Agency in India.
International cooperation is a must in combating new modes of terror attacks
The use of drones to attack an Indian Air Force base in Jammu on June 27-28 brought to the fore a troubling, though not unanticipated, new mode of terrorism for the country. Though there were no casualties at the base, the fact that there were at least two more subsequent attempts to use drones to attack military targets points to the future of terrorism. The use of Unmanned Aerial Vehicles (UAV), autonomous weapons systems and robotic soldiers by states in warfare and policing has raised moral and practical questions that remain unresolved. Non-state actors have caught up quickly. In 2018, Syrian rebels used homemade drones to attack Russian military bases in Syria; later, the same year, Venezuelan President Nicolas Maduro had a narrow escape after a drone flying towards him exploded a short distance away. In 2019, Houthi rebels claimed responsibility for bombing Saudi oil installations using drones. New modes of sabotage and violence enabled by technology reduce costs and risk of identification for terrorists while increasing their efficacy. Simultaneously, security agencies would find conventional tools redundant in combating terrorism. Terrorism may not even require organisations, as individuals with sufficient motivation and skills can carry out such attacks and remain under the radar like the drones they use. The existing international framework for controlling the proliferation of technology that can be weaponised, such as the Wassenaar Arrangement and Missile Technology Control Regime, is also largely useless in the emerging scenario.
States including India have sought to deal with terrorism with a combination of stringent laws, invasive surveillance, harsher policing and offensives against other countries that support terrorist groups. This approach has only had limited success in ensuring peace anywhere while the human and material costs have been high. The exponential proliferation of new technologies and Artificial Intelligence, vertically and horizontally, will make the task of combating terror even more challenging. The Jammu drone attack, Indian authorities reportedly suspect, was carried out by the Lashkar-e-Taiba, which is patronised by Pakistan. The same group was behind the 2008 Mumbai terror attack in which perpetrators came by boats from Pakistan. India has tried to punish Pakistan for its support to terror groups in recent years which has shown some success. The entry of drones calls for a more complex response to terrorism. Terror groups do capitalise on state patronage but technology is enabling them too to be autonomous in an unprecedented fashion. From turning passenger planes into missiles in 2001, terrorism has come a long way, and one cannot foresee where it will go next. Enhanced international cooperation and consensus on the development and deployment of technologies are required to deal with the challenge. India can and must take an active role in the process.