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History of anti-terror laws in India
Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab, where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.
Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications.
At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. The first law made in independent India to deal with terrorism and terrorist activities that came into force on 30 Dec 1967 was The Unlawful Activities (Prevention) Act 1967.
After the 9/11 attacks on the World Trade Center, the world’s outlook towards the terrorist and terrorist organization has changed the laws have become much more stringent to curb such activities. The Indian outlook also changed specially after the 13 December attack on the Indian parliament which is seen as a symbol of our democracy then it became necessary to enforce a law which would be more stringent so that the terrorist cannot go Scot free because after the lapse of TADA in 1995 following the wide spread complaint that it was being abused there was no law which could be used as a weapon against the rising terrorist activities in India.
Prevention Of Terrorist Activities Act, 2002
In 2002 March session of the Indian parliament the Prevention Of Terrorist Activities (POTA) Act was introduced and it had widespread opposition not even in the Indian parliament but throughout India especially with the human rights organization because they thought that the act violated most of the fundamental rights provided in the Indian constitution. The protagonists of the Act have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abetting terrorism. POTA is useful in stemming “state-sponsored cross-border terrorism”, as envisaged by the Home Minister L.K. Advani. The Prevention of Terrorism Act, 2002 (POTA), was seen as a controversial piece of legislation ever since it was conceived as a weapon against terrorism. Human rights groups as well as opposition parties have expressed strong reservations against the move, which they say violates citizens’ fundamental rights.
One of the most controversial features of the new law was a clause which makes it a duty for all citizens to report any suspicious terrorist activity they notice. It also empowers the police to arrest and keep in its custody for three months without filing any charges anyone suspected of involvement in terrorist activity. Proscribed groups Twenty-three organisations seen as encouraging terrorist activities have been outlawed in the ordinance. These include a number of separatist groups active in Kashmir, such as Lashkar-e-Toyeba and Harkat-ul-Mujahideen. Several rebel groups operating in Punjab and Assam have also been banned. Human right groups as well the opposition parties say such provisions would make people more vulnerable to harassment by the police. But the government rejects these allegations.
Analysis of some important sections of POTA-
In the case of People’s Union for Civil Liberties Vs. Union of India, the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same. Once legislation is passed, the Govt. has an obligation to exercise all available options to prevent terrorism within the bounds of the constitution. Mere possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutionally. Court upheld the constitutional validity of the various provisions of the Act.
1.Section 3(a) Defining terrorist act- Whoever with the intent of threatening the unity, integrity, security and sovereignty of India or strike terror in the minds of people or any section of the people does any act or thing by using dynamite or explosive substances or inflammable substance or firearms or other lethal weapon or poisonous or noxious gases or other chemical or any substance of a hazardous nature in such a manner as to cause death or injuries to any person or loss or damage to property or disruption of any supplies or services essential for life.
Case Law- Devender Pal Singh Vs. State of N.C.T. of Delhi. In a case where 9 person had died and several other injured on account of perpetrated acts The court said that such terrorist who have no respect for human life and people are killed due to there mindless killing. So any compassion to such person would frustrate the purpose of enactment of Tada and would amount to misplaced and unwarranted sympathy. Thus they should be given death sentence.
2. Section 4 Possession of certain unauthorized arms- Where any person is in unauthorized possession of any- bombs, dynamite or hazardous explosive substance or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not.
Case Law- Sanjay Dutt Vs. State through C.B.I . The expression possession though that of section 5 of Tada has been stated to mean a conscious possession introducing thereby involvement of a mental element i.e. conscious possession & not mere custody without awareness of nature of such possession and as regards unauthorized means and regards without any authority of law.
3. Section 7 Powers of investigating officers – If any officer (not below the rank of SP) investigating an offence committed under this act, has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism he shall with prior approval in writing from Director General of Police of which the property is situated can make an order to seize or attach such property.
Case Law – T.T. Anthony Vs. State of Kerala. This plenary power of police to investigate a cognizable offence is not unlimited. It is subject to certain limitations such as if no cognizable offence is disclosed & still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation.
4. Section 21 Offence relating to support given to a terrorist organisation-
- A person commits an offence if
- He invites support for a terrorist organization , and
- The support is not , or is not restricted to, the provisions of money or other property
- A person commits an offence if he arranges, manages or assists in managing or arranging a meeting which he knows is-
- to support a terrorist organization, or
- to further the activities of a terrorist organization , or
- to be addressed by a person who belongs or professes to belong to a terrorist organization.
- A person commits an offence if he addresses a meeting for the purpose of arranging support for a terrorist organization or to further its activities.
Case Law – Vaiko’s Case. One of the petitions in this regard admitted by the Supreme Court has been filed by Vaiko, the general secretary of the (MDMK), a constituent of the ruling National Democratic Alliance at the Centre. Vaiko had defended POTA in Parliament during the debate on it. Therefore his petition challenging the validity of Section 21 of the Act assumes particular significance.
5. Section 22- Fund raising for a terrorist organization to be an offence-
(1) Whoever commits an offence if he-
- invites, receives or provides money or other property
- intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
The second component that was not there in TADA is, if you try and earn money through a crime, that is, through terrorism, there are two offences which flow out of that. Whoever funds terrorism is also held guilty. By funding terrorism you are abetting terrorism. You are giving resources to terrorism. The old terrorist laws the world over never had a chapter on funding of terrorists. But now you must create a fear and scare in the minds of those who fund terrorists.
6. Section 27 Powers to direct for samples, etc.- when a police officer investigating a case requests a Chief Metropolitan Magistrate to obtain hand writing, footprints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of this act it will be lawful for the judge to give such orders as the case may be. If any accused person refuses to give such samples the court shall draw adverse inference against the accused.
Case Law – S. Srinivasa Vs. M/s Deccan Petroleum Ltd. The court said where the order of refusal to issue summons for production of document was prejudicial to accused then such order is not sustainable. The most important part of the section says that the power to take samples is not given to the police authorities but when a police officer investigating a case requests a Chief Metropolitan Magistrate to obtain samples of any accused person reasonably suspected to be involved in the commission of this act and then if only the Chief Metropolitan Magistrate gives the order to obtain such samples its only then he can force the accused to give such samples. If any accused person refuses to give such samples the court shall only then draw adverse inference against the accused.
7.Section 32 Certain confessions made to police officers taken into consideration – A confession made by a person before a police officer not lower in rank than a S.P. and recorded by him out of which sound or images could be reproduced shall be admissible in trial of such person for the offence under this act.
The Unlawful Activities (Prevention) Act (UAPA), 1967
The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that the executive did not expose political parties to intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.
Repeal of POTA and its comparison with UAPA.
Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of
- Ordinance No.1 of 2004, it repealed POTA, a law specially designed to deal with the menace of terrorism with its repeal, the state apparatus combating terrorism has been debilitated.
- By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organisations and activities were transferred to the pre-existing milder sounding Unlawful Activities (Prevention) Act, 1967 (UAPA). By Ordinance No 2, the definition of unlawful association has been expanded to also include any association which has for its object any activity which is punishable under Section 153A of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Section 153A is about promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
- All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act.
- Some of the clauses contained in POTA, which are completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer.
- In another major departure from POTA, the government has removed all traces of strict liability. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question.
- Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organisations and unlawful organisations. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. But the problem is that the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot, for instance, ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to hide special provisions in an ordinary law.
Unlawful Activities (Prevention) Amendment Act, 2004- It would however be simplistic to suggest, as some critics did, that the new law has retained all the operational teeth of POTA or it has made only cosmetic changes. The difference between POTA and UAPA is substantial even as a lot of provisions are in common.
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