ANTI-TERROR LAWS IN INDIA
ANTI-TERROR LAWS IN INDIA: A CRITICAL ANALYSIS
A Dissertation
Submitted to Guru Gobind Singh Indraprastha University, Delhi in partial fulfillment of the requirement for the Degree of Bachelor of Law
18364202540
BY
HIMANSHU GHAI
015210303813
AMITY LAW SCHOOL, DELHI
BLOCK- F1, AMITY UNIVERSITY,
SECTOR-125, NOIDA-201303
DECLARATIONThis is to certify that the present thesis entitled ” ANTI-TERROR LAWS IN INDIA: A CRITICAL ANALYSIS” is based on my original research work and has not been submitted in whole or in part for any other University degree. My indebtedness to other works and publications has been duly acknowledged in appropriate places.
Ms. Rajinder Kaur Randhawa Himanshu Ghai
(Supervisor) Student
B.A. LLB (H)
Amity Law School
Delhi
certificateIt is to certify that the dissertation entitled “ANTI-TERROR LAWS IN INDIA: A CRITICAL ANALYSIS” submitted by Mr. Himanshu Ghai for partial fulfillment of the requirement for the award of the degree of “Bachelors of Law” under my supervision. The study is based on the research done by him.
I wish him best of luck and success in life.
Ms. Rajinder Kaur Randhawa
Supervisor
AcknowledgementThe completion of a research work warrants constant supervision and able guidance in various ways. I wish to express my gratitude to one and all who helped me in one way or the other in the completion of this work.
I take the opportunity and honour to express my heartfelt gratitude to my learned supervisor, Ms. Rajinder Kaur Randhawa, for her effective guidance, constant vigilance and above all her firm confidence in me. To work under her able guidance is really not only a great educational experience in itself but also a cherished privilege a student can aspire. I am deeply indebted to her for her able guidance and valuable suggestions which motivated me to carry out this work well in time.
I also thank other teachers of the Department for their useful suggestions in completion of my research work. My thanks are also due, to the staff members of the library.
I hereby also express my gratitude to my respected parents without whose blessings and moral support I could not have completed my research work. I am also thankful to other members of my family for providing me necessary support.
In the last, I express my gratitude to all the biographers whose books and readings have been consulted by me for my Research Work.
TABLE OF CONTENT
Declaration ………………………………………………………………………. 2
Certificate ………………………………………………………………………… 3
Acknowledgement ………………………………………………………………. 4
Table of Content ………………………………………………………………… 5
Introduction ……………………………………………………………………… 7
Statement of Problem ………………………………………………………. 11
Objective of research ………………………………………………………… 12
Survey of Literature ………………………………………………………… 13
Hypothesis …………………………………………………………………… 14
Research Methodology ………………………………………………………. 15
Tentative Chaptalization ……………………………………………………. 16
Historical Aspects ………………………………………………………………… 17
Introduction …………………………………………………………………… 17
Terrorist Organization banned in India……………………………………… 20
Law governing substantive offence …………………………………………… 22
How terrorism is been defined………………………………………………… 23
Laws governing Investigation and Trials ……………………………………. 24
Comparison of TADA, POTA and UAPA …………………………………… 27
Important provisions …………………………………………………………… 28
Legislative Aspects ………………………………………………………………… 29
Power …………………………………………………………………………… 30
Controversial Provisions ………………………………………………………. 30
Impact ………………………………………………………………………….. 31
Cases involved as per provision ………………………………………………. 31
Terrorist and Disruptive Activities (Prevention) Acts ………………………. 32
Repeal of POTA and comparison ……………………………………………… 34
Why are the Anti- Terrorism Laws are Necessary in India? …………………. 35
Anti- Terrorism Laws in India …………………………………………………. 36
Unlawful Activities Prevention Act ……………………………………. 36
TADA ……………………………………………………………………. 36
MCOCA …………………………………………………………………. 37
POTA ……………………………………………………………………. 37
UAPA Amendments ……………………………………………………. 38
Need for the acts like UAPA and POTA ……………………………………… 39
Other laws related to Anti- Terrorism ……………………………………. 40
Consequences of Repealed of POTA………………………………………. 48
UAPA………………………………………………………………………… 50
A brief outline of the amended Act ……………………………………. 50
Death or imprisonment for life ………………………………………… 52
Offence punishment……………………………………………………… 53
The approach toward the issue……………………………………………… 55
Judicial Aspects……………………………………………………………………… 59
4.1. Analyses of some Important section …………………………………………… 59
4.2. Example………………………………………………………………………….61
4.3. Bail provision and its language…………………………………………………64
4.3.1. Consequences of Repeal of POTA……………………………………………66
4.3.2. So, what remains on the statute books……………………………………….67
4.4. A brief outline of the act……………………………………………………….69
4.4.2. offence punishment………………………………………………………….70
4.5. The approach toward the issue……………………………………………….73
Modern Aspects…………………………………………………………………….75
Terrorism………………………………………………………………………… 75
Types of Terrorism……………………………………………………………….76
Death or imprisonment for life………………………………………………….77
Offence Punishment……………………………………………………………. 78
Demonstrative Aspects………………………………………………………….81
Faulty legislation or Faulty system…………………………………………….82
Reason to consequences as per past and present perspective…………………86
Conclusive and Suggestion………………………………………………………….94
INTRODUCTION
‘TERRORISM’, intentionally, has proved impossible to define in a manner that is widely acceptable. There is a lack of international consensus on the definition due to deep. International conventions on terrorism also currently focus on the methods of terrorism rather than on its intent. Therefore specific ‘sectoral’ conventions on terrorism activities are the only instruments currently in force.
The reason for terrorism in India may vary vastly from religious to geographical to caste to history even though the Indian Supreme Court also took a note on this issue of terrorism by the medium of Kartar Singh Vs. State of Punjab. Apart from this the major aspect of the whole research is to find out the reason for the terrorism and its spreading on the world in context to Indian aspect. Anti-Terror laws in India have always been a subject of much controversy. The reason for this sole argument is the fundamental rights of citizens been guaranteed by part III of the Indian constitution. Since they have been enacted by the legislature and upheld by the judiciary without any reluctance. This reluctance is the main reason why the researcher has chosen this topic where the intention of the researcher is to prove and create some changes in the issue via medium of his research. Though it is complicated and not much easy but apart from this drawback it is also not impossible. So, the results that come out of this drawback combination is that the researcher can prove it as per his commitments rest it will all depend upon the research work and the ability of the fine sense of the work and interpretation toward the approach of the topic.
Globally, India has had some role to play in the development of international and national laws on terrorism. It was one of the earliest countries to call for the comprehensive treaty definition of terrorism. Although some movements are been taken place in the shape of the SAARC regional convention on suppression of Terrorism and its additional protocol. This research does not make any claims about what is or is not an act of terrorism; instead, it seeks to focus only on those offences that have been classified or dealt with as act of terrorism by the Indian Criminal Justice system. This study is limited to the ambit of anti-Terror laws that will relate to the investigation and prosecution of acts of terrorism in India. There are many laws which need some changes or strictness as per the amendments and flexibility is concerned. This topic itself covers a vast topic in it but as per the grounds of problems are concerns the topic is self-proclaimed enough to handle all the tough needs and questioned to be answered via correct and broad-minded approach. This is the short summary of how the researcher will be making my whole dissertation what are tools and statutes with the internet access will be used by me in making of this dissertation. In which the researcher will be opting the various laws which are presently in use and few are repealed like Prevention of terrorism Act, 2004(repealed), 2002, MCOCA 1999, and KCOCA, TADA, MISA, UAPA 1967, and other procedural lawsas well for the case study and analysis.
Moreover, these are just the name of the statutes written as per the laws are concerned but the Doctrine of “minimum use of force” within the framework of the Indian constitution which also guarantee the human right. Nowadays the terrorism has widened its approach toward the branch of other mode of crime as well and the good example of this is “Cyber Terrorism”. While scholars of international law have made terrorism the subject of extensive study, concomitant attention has not been paid to the development of domestic law dealing with acts of terrorism in India. Here, as in the case of counter-terrorism in general, prosecution of suspected cross-border terrorists falls into two categories – cases that receive overwhelming public attention, such as the trial of Ajmal Kasab or Afzal Guru, and cases that remain largely removed from public view. There has been little study, in a systematic fashion, of the lines along which terrorism cases are prosecuted in India and determine if and how they deviate from the requirements of due process and constitutional guarantees.
This is a gap this Report seeks to address. In it, we look at the principle legal issues surrounding the phrasing and implementation of anti-terror legislation in India, their interpretation in courts, and the issues of coordination and federalism that crop up in the context of concurrent jurisdiction of investigation agencies under State and Central anti-terror laws. This Report does not make any claims about what is, or is not an act of terrorism; instead, it seeks to focus only on those offences that have been classified or dealt with as acts of terrorism by the Indian criminal justice system.
This whole research is merely based upon three objectives First, it aims to map out the different substantive and procedural provisions that have been used to prosecute acts of terror in India and examine how they interact with one another. Second, it identifies and attempts to untangle the constitutional issues surrounding the ongoing disputes between Centre and States on legislation used in cases of terrorism. Third, this Report traces the judicial interpretation of general and special criminal laws in cases of terrorism, to see how it deviates from the approach towards ordinary criminal trials.
The major aspect of the whole research is about the terror activities indulging nowadays in Indian society as per the laws are been concern. The term terrorism is being defined as per the researcher’s aspect is concern the major proprietor of this whole segment is as the law are being institutionalized which are the basic necessity is concern about the aspect of the laws.
The basic research work would make a worth of it so the researcher’s approach is to make the approach solution based so that the basic point is to clarify the basic segment of the research work is to provide the clarification of the research which is based upon the question that have risen upon the most important issue nowadays. As we know that terrorism is the most effected and dangerous crime in the list of crimes and it is also been said to be amongst in the top three crimes of the world. It is also being seen that this crime is said to be the planned and organized crime and after researching the researcher have found and concluded all the laws and all the case laws with effect to the authentication and in lieu of the gravity of law. This introduction part is for the basic clarification of the reader, analyzer and any new researcher that how the research work is been created, analyzed, prepared and presented. The whole research work is being prepared unbiasly and it is been prepared in the virtue and the gravity of law, and will affect to the beneficiary material the whole research work is the work of the crucial effect to the benefit of the knowledgeable part and the question been arises as per the work it is been seen in the lieu of the natural aspect of the law and whereas the whole work is fully detailed and the whole analyses is been prepared with the effect of law and in the Virtue of the gravity of the research work. None other less the whole research work is partially been prepared with the use of some elements and articles which are subject to the knowledge of the authentication for the purpose of the preparation of this research work. The whole crime is been defined and the whole content of the crime is fully furnished with all the ingredients of law, facts, case laws, articles, journals, publications and in lieu of the research analyses, this is the short summary of how the researcher will be making my whole dissertation what are tools and statutes with the internet access will be used by me in making of this dissertation. In which the researcher will be opting the various laws which are presently in use and few are repealed like POTA, 2004(repealed), 2002, MCOCA 1999, and KCOCA, TADA, MISA, act of 1967, and other procedural laws as well for the case study, analysis and presentation of the whole aspect and the both aspects of the issue.
1.2 STATEMENT OF PROBLEM
The researcher has chosen the said topic due to his keen interest in anti-terror laws. even though a crucial part of the Anti-Terror Laws and covered within the ambit of International and National Conventions such as laws related Aspects of Anti-Terror Laws has been a neglected right under the Indian scheme of things. There are no express provisions in place for protection of the same and reliance is placed on other legislation, statutes and laws such as Indian Penal Code instead of putting in one specific legislation for Criminal Manual with the complete use of repealed and presently in use laws like Prevention of Terrorism Act 2002, 2004 (repealed), Maharashtra control of organized crime act,1999(MCOCA), National Investigation Agency Act,2008, Terrorist an disruptive Activities (prevention) act,1987 (TADA), Unlawful Activities (Prevention) Act, 1967.
On the other hand, India even though a country which deals with the laws for peace and brotherhood to the confusion regarding the standing of the law on the topic but also has given weak protection to the ingenious Anti-Terror laws of our country.
Researcher is also trying to find he analysis on Media that are nowadays is equally responsible for these attacks apart from this media coverage some changes in laws can affect the reduction of these attacks. Where we only have to take some crucial steps that can be taken by the government on this topic. The UNO and any other international organization working for peace provide its role toward this issue. The essentiality of the topic coverage. The reasons for these attacks that they can take place so easily in a country like India.
1.3 OBJECTIVES OF RESEARCH
The objective of the research is to analyze the prevailing legal regime Anti-terror laws in India.
With the help of this paper, the author aims to analyze the situation in India with respect to protection as well as understand India’s obligation towards the anti-terror laws while drawing a comparison with the well-established Anti-terror laws of other countries.
The author also plans to look at the definition and recommended protection assigned to Anti-Terror laws under various international and National Laws and the obligation arising out of the same.
The dissertation also elucidates the laws regarding Anti-Terror laws India and the remedies available in the absence of a statutory legislation while also looking at the different. Since India follows a common law approach the role of the judiciary is paramount and the stand of the same is explained with the help of various laws. A comparative analysis is also drawn with the laws of the Ukraine and other countries amongst other nations to understand the contrasting regimes to provide a draft model law to look up to which can serve as an inspiration for Indian Criminal law in a way for protection from terrorism.
The whole purpose of the exercise is to suggest a comprehensive Anti-Terror Regime in India which can be developed over a period of time keeping in mind the ever-changing dynamic world to make any country a Terror free country.
1.4 SURVEY OF LITERATURE
As per research is concern the basic content is what the researcher has to find out and for these proposed researches the most important thing nowadays is internet and library access and a clear approach toward your topic and its essentiality with a basic approach to search and research again and again till you are satisfied with your research. The basic element of the research is the criteria that is been set for the research work been enabled to the certain demarcation of its objective and as my topic is upon Anti-Terrorism laws in India so as we know that I the topic is vast and wide with ample of other topic which can be involved in it so as per the Indian laws I will also be dealing this whole scenario with the subject of the laws relating to the elements of the cyber laws with the modules, laws, provisions, agreements, and the other important databases for the authoritativeness of this research so by the mean of the cyber laws there are other medium as well to act upon these research. The other statute that will be referred in this research will be as per the requirement of the situation. But as per the data is been collected it is a well-versed combination of the analytical approach toward my research. The basic thing about my research is that it will be having connection with other laws as well and it will be also interlinked with other laws, provisions, agreements and statutes etc. so the generosity of the research will be relying upon the essentiality of the research with be as the authoritativeness will be acting about the same acceptability as the research is concern. The process can be in tabular form and it can also be in a mixed format of the data analysis this study is limited to the ambit of anti-Terror laws that will relate to the investigation and prosecution of acts of terrorism in India. There are many laws which need some changes or strictness as per the amendments and flexibility is concerned. The concerned material which will be required in this will also be made in visibility in the bibliography and all other places where its name is required. Where Researcher will be using some various author article with some BOOKS like Law of terrorist and Gangster by Dr. Awasthi, Terrorism drug Trafficking and corruptions of H.E. bhairon Singh shekhawat, Rattanlal Dheerajlal a glimpse on terror laws along with bare acts and repealed law analysis .few more materials are to be gathered by the researcher during his research.
1.5 HYPOTHESIS/HYPOTHESES
The researcher presupposed that India can achieve its long term social goals as well as fulfill its national obligations by following the framework laid down in Conventions, provisions and laws on Anti-Terror Laws. But, for the same to happen there will be a need for the development of a law and a specific mechanism to fill the void left in the sphere of Terror Laws in absence of legislation. The policymakers will not only have to come out with legislation but the judiciary will also need to adjust according to the philosophy of the legislation. This, in turn, will not only lead to India protecting its age-old secrets while also protecting local, indigenous business but also fulfilling the country’s obligation towards the world while also acting as a clear indicator of India’s willingness to become a hub of peaceful and brother hood nation for various global purpose. In light of the above, the researcher proposes the following hypothesis:
The current Anti –Terror laws in India are ineffective and remain insufficient in overcoming the issues faced by a person in the anti-terrorism laws.
These laws are essential elements of terrorism and there is a need for an overhaul in the way of terrorism and there is a need for an overhaul in the way of terrorism and anti-Terror laws are protected in our country.
Better terror protection will inspire confidence from other countries, facilitates terror laws while also protecting local citizens. Thus, it will help the laws as a whole.
1.6 RESEARCH METHODOLOGY
The Researcher through this dissertation shall be conducting a primarily doctrinal research. The researcher will first start by analyzing what exactly is a crucial aspect by seeing the various international definitions given in countries as well as treaties. With the help of the treaties, the author will try to find out the essentials of laws been intended.
A three-sided approach is followed in this dissertation. While on one side, the author analyses the various International treaties and agreements put in place for Anti-Terror Laws which have Trade Secrets within their ambit. On the other hand, the author will analyze the kind of protection given by other countries to Trade Secrets keeping in mind the legislation put in place as well as some landmark judgments. Lastly, the author will dissect the Indian scenario for Terrorism activity protection keeping in mind the protection given under various laws in absence of a specific legislation and the judgments rendered by the courts of the territory. The author will also try and give suggestions for the development of our National regime in law taking inspiration from laws of other countries to help fulfill India’s international obligation and to fill the gap left in this particular sphere of Anti-Terror Laws.
1.7 TENTATIVE CHAPTALIZATION
The researcher will introduce is dissertation by the medium of VI chapters which will clearly introduce the topic as per their chapters name. the chapters name would be like: –
Introduction – To bring out the importance of the study of this topic. By the medium of this research the researcher will also describe about the co-relation of the aspect of the other laws in this topic. Where the researcher will also cover methodology and limitation in it.
Historical Aspects- in this he researcher will be describing about the historical situations and laws with some international rules and issue of federalism.
Modern Aspect-describing the present scenario with the aspect of present laws and provision in comparison to the past laws.
Legislative approach- researcher will be analyzing some landmark judgement and also using all these judgement in describing some commentaries as an opinion like in case RED FORT CASE, TAJ MAHAL CASE, SUPREME COURT EMAIL THREAT CASE, SANJAY DUTT CASE and other terrorist cases as well like YAKOOB MEMON CASE AND KASAB CASE ors.
Judicial Approach- here the researcher will be describing some provisionary laws in respect to the cases been cited with an analysis of the cases.
Conclusion and suggestion- the last part of the dissertation will be dealing with this topic and also bibliography will also be given with its reference.
HISTORICAL ASPECTS
2.1 INTRODUCTION
The term historical aspects will itself define the meaning of the whole phrase, but during the research the researcher got to know the philosophical aspect that everything have two aspects we can call it either merit and demerit or advantage and disadvantage so here the researcher is drawing the attention toward the facts which were happened in ancient time with effect to the crucial approach of the brutality toward the innocents by the mean of there criminal approach. The researcher will also discuss about the procedure which was been followed for the betterment for society as per law with regard to the statutes which were been used to provide justice. The knowledgeable fact about the procedure of law which were used during the proceeding for the justification of the issues which were been followed during the court proceeding. The elementary way toward the necessity of the justice was to be provided the safe guard to the issue and the statues which were used during the court proceeding are been discussed below by the researcher:
The Unlawful Activities (Prevention) Act, 1967 This Act was enunciated by the Indian Parliament in 1967 to make powers available to the law enforcement agencies for dealing with unlawful activities directed against the integrity and sovereignty of India. It provides for effective prevention of certain unlawful activities of individuals and associations including terrorist organizations. It extends to the whole of India.
Sec. 3 – Power of the Government of India to declare an association as unlawful. (The list of the terrorist organizations banned under this Act is given under Appendix B)
Sec. 16 – Punishment for terrorist acts – death or imprisonment for life as the case may be and liable to a fine.
Sec. 17 – Punishment for raising funds for terrorist acts – imprisonment for life and also liable to a fine.
Sec. 18 – Punishment for conspiracy – imprisonment from five years to imprisonment for life and liable to a fine.
Sec. 19 – Punishment for harboring, etc. – imprisonment from 3 years to imprisonment for life and liable to a fine.
Sec. 33 – Forfeiture of property of certain persons during trial and conviction.
Sec. 40 – Offence of raising funds for a terrorist organization – imprisonment up to fourteen years or with a fine or both.
The National Security Act, 1980 The Act came into force in 1980 with a view to providing power to the Central Government and State Governments to make orders to detain certain persons including foreigners whose action may be prejudicial to the defense of India, security of India, prejudicial to the maintenance of public order and maintenance of supplies and services essential to the community.
Sec. 3(3) Detention period – in the first instance exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
Sec. 9 – Constitution of Advisory Boards.
Sec. 11 – Procedure of Advisory Boards.
Sec. 13 – Maximum period of detention: 12 months.
Armed Forces (Special) Powers Act, 1967 (Salient features – without replicating the wording in the Act)
Sec. 3 – The whole or any part of the country/state can be declared as a disturbed area by the central government or the governor of the state
Sec 4 – Special powers can be utilized by any commissioned officers, non-commissioned officers, warrant officers or any other person of the equivalent rank. Authorizes use of force, even causing death against any person who is acting in contravention of law or carrying weapons.Authorizes the destruction of any arms dumps, prepared or fortified positions from which armed attacks are made or likely to be made Authorizes arrest without warrant of any person who is suspected to have committed or likely to commit any cognizable offence. May even use such force as necessary to effect the arrest Enter and search without warrant any premises suspected to be used for any illegal purposes as defined under the Act Arrested person to be handed over to the officer in charge of the nearest police station with the least possible delay. The above provisions confer sweeping powers on the members of the armed forces and since they are likely to be misused the Supreme Court of India has issued eleven commandments regulating the exercise of powers under this Act.
2.2 TERRORIST ORGANISATIONS BANNED IN INDIA
1. Babbar Khalsa International
2. Khalistan Commando Force
3. Khalistan Zindabad Force
4. International Sikh Youth Federation
5. Lashkar – E – Taiba/Pasban- E- Ahle Hadis
6. Jaish-E-Mohammad
7. Harkat-Ul-Mujahideen/Harkat-Ul-Ansar/Harkat Ul-Jehad-E-Islami
8. Hizb-Ul-Kujahideen
9. Al-Umar-Mujahideen
10. Jammu and Kashmir Islamic Front
11. United Liberation Front of Assam (ULFA)
12. National Democratic Front of Bodoland (NDFB)
13. Peoples Liberation Army (PLA)
14. United National Liberation Front (UNLF)
15. People’s Revolutionary Party of Kangleipak (PREPAK)
16. Kangleipak Communist Party (KCP)
17. Kanglei Yaol Kanba Lup (KYKL)
18. Manipur Peoples Liberation Front (MPLF)
19. All Tripura Tiger Force
20. National Liberation Front of Tripura
21. Liberation Tigers of Tamil Elam (LTTE)
22. Students Islamic Movement of India
23. Deendar Anjuman
24. Communist Party of India (M-L)- Peoples War Group and all its formations and front organizations
25. Maoist Communist Centre (MCC) and all its formations and front organizations
26. Albadr
27. Jamiat-Ul-Mujahideen
28. Al-qaida
29. Dukhtaran-E-Millat (DEM)
30. Tamil Nadu Liberation Army (TNLA)
31. Tamil National Retrieval Troops (TNRT)
32. Akhil Bharat Nepali Ekta Samaj (ABNES)
We begin this Report with an overview of laws pertaining to the trial of terror cases in India, in order to establish the landscape, which later chapters explore in more detail. This Chapter, therefore, outlines Central and State laws governing substantive offences and procedures in cases of terrorism, and presents a broad picture of how they operate in relation to one another.
2.3 Laws Governing Substantive Offences
A number of Central and State laws have been enacted or subsequently amended to deal with terrorism and related activities. The Indian Penal Code (IPC), and the Code of Criminal Procedure, 1973 (CrPC), contains provisions relevant to terror cases as well. Besides general provisions on murder, criminal conspiracy, etc., there are other provisions more directly concerned with terrorism and related offences. These include the offence of waging war against
the Indian government, and sedition (words/signs/visible representation to bring hatred or contempt, or exciting disaffection towards the government in India). Terrorism cases, such as the Parliament attack case, Kasab’s trial, and the Malegaon blasts case, have all involved charges under the IPC. However, considering the nature and gravity of terrorism, the Centre and States have enacted other specific legislations to deal with terrorism and related activities.
In 1985, Parliament enacted the TADA as a specific anti-terror legislation, in the backdrop of the 1984 Indira Gandhi assassination. The law remained in force till 1995, after which it lapsed, following widespread allegations of misuse. In the aftermath of the 2001 Parliament attack, the Prevention of Terrorism Act (‘POTA’), 2002 was enacted. POTA also faced severe criticism for allowing widespread human rights abuses in the country. It contained a broad definition of a ‘terrorist act’ that covered political dissents, allowed prolonged pre-trial detentions, and reversed the presumption of innocence of an accused. The law was thus repealed in 2004.11 POTA is, however, relevant even today since the Act’s repeal did not affect pending investigations and legal proceedings instituted under the Act.12 Further, the repealing Act also permitted the institution of investigation, legal proceedings or remedies after repeal, although no Court was permitted to take cognizance of an offence under POTA after the expiry of one year since the repealing of the Act.13 As a result of this, several cases are currently pending under POTA even today, and the trial in the Mulund Blasts case of 2003, which involves charges under POTA, commened only in July 2014, 11 years after the incident.14 The repealing Act made provisions for the POTA Review Committee to review all cases registered under the Act within a period of one year from the commencement of the repealing Act, and close cases where no prima facie case was made out against the accused.15 Three such Review Committees found that there was no prima facie evidence against two-thirds of the accused in POTA cases pending at the time of its repeal.
2.4 How terrorism is being defined
Before we proceed on any deliberation on the subject it would be desirable to know what terrorism is. It is believed that social scientists are yet to agree on a clear-cut definition of terrorism. However, the so called academic consensus definition written by A. P. Schmid and widely used by social scientists and within the UN itself is
Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individuals, groups or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population and serve as message generators. Threat and violence-based communication processes between terrorists (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion or propaganda is primarily sought.
In India section 15 of the Unlawful Activities (Prevention) Amendment Ordinance, 2004 defines terrorist act as “whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause or likely to cause death of or injuries to any person or persons or loss of or damage to or destruction of property or disruption of any supplies or services essential to the life of the community in India or causes damage or destruction of any property or equipment used or intended to be used for the defense of India, any State government or any of their agencies or detains any person or threatens to kill or injure such person in order to compel the government of India or any other person to do so or abstain from doing any act, commits a Terrorist act
2.5 Laws Governing Investigation and Trial
In general, provisions under the CrPC on investigation and trial of offences are applicable to offences under the IPC and offences under special laws. Due to the gravity of terrorist offences, however, many terrorism-related laws contain additional (and different) provisions providing for special investigation agency or procedures, special courts or modified rules of evidence. This section discusses such special provisions on investigations and trials.
1. Investigation
The Parliament enacted the National Investigation Agency Act, 2008 (‘NIAA’) in the wake of the 26/11 Mumbai attacks. The Act aims to provide for a special investigation agency at the +national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India.51 The NIAA provides for the establishment of the NIA that may conduct investigation and prosecution when any offence is committed under the UAPA, SAARC Convention (Suppression of Terrorism) Act, Chapter VI of IPC (Offences against the State, including sedition and waging war against India), and other laws listed in its Schedule (known as Scheduled Offences).52 Under section 3(2) of the Act, NIA may investigate such offences throughout India and exercise all the powers of the police.
According to the modern aspect the tradition of the laws is changing nowadays because it all depends upon the interpretation of the oneself which is been directed as per the opinion of the oneself. The majority of the aspect depends upon the laws which are pertaining in India with a major loophole and slightly flexible without any reasons. Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was an Indian anti-terrorism law which was in force between 1985 and 1995 (modified in 1987) under the background of the Punjab Insurgency and was applied to whole of India. It came into effect on 23 May 1985. * It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995 due to increasing unpopularity after widespread allegations of abuse. * It was the first anti-terrorism law legislated by the government to define and counter terrorist activities.
TADA was to be based on the principle of -:
“Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.”
The laws are always been deal as per their principles are concerned so does the TADA, despite of going as per the laws are concern the principle and the
As the study continues with the context of human right what the researcher got some new information which can be treated as some new contravention toward the aspect of the Anti- terror law, so after researching upon the topic as per the human right is concern what we gather was that Anti-Terror laws are being used to curb people’s civil liberties is no longer a disputed fact. Under TADA,1987 the total number of detained was around 76,000. 25% were dropped by the police without charges; trial was completed in only 35% of cases & 95% of their trial ended in acquittals.
Nowadays the trend is of religious abuse, TADA was being repealed the main reason for its repealing was religious abuse. The authorize person was misusing their authority in the name of religious abuse due to the circumstances that were been created at that time were too hypothetical to react but the reaction were been necessary, so may be due to some political pressure or public pressure these kinds of action was been seen in the picture which were said to be misusing of the power. For this sole reason TADA was repealed where it was made with clearly mentioned that No Retrospective Effect will be there in future. There were total three main statutes which were for the purpose of the Terrorism. These three are the main Anti- Terror laws out of which two are been repealed deliberately. UAPA,1967 was amended as per the priority that it will be made on the principle of the prevention from misuse of legislation. But however, the comparison of all the three statutes is more crucial and interesting. After the deep analysis the researcher is ready to provide the analytical approach toward the all three acts which are the essential statutes in context of Anti-Terror Laws.
2.6 COMPARISON OF TADA, POTA & UAPA
As we are aware that every law which is made, is made for the purpose of the betterment of the society as per the basic level which can overcome and overwhelmed the society up to the social level. The accurate way to perform these provision is to perform and apply it well but nowadays as per the Anti-Terrorism legislation is concern it is to be said that these are the laws with the purpose with the purpose of fighting terrorism. They usually, if not always, follows specific bombings or assassinations. Anti-Terrorism legislation usually includes specific amendment allowing the state to bypass its own legislation when fighting terrorism related crimes, under the ground of necessity. Because of this, suspension of regular procedure, such legislation is sometimes criticized of Lois Scelerates which may unjustly repress all kind of popular protests. Critics often allege that Anti-Terrorism legislation endangers democracy by creating a state of exception that allows authoritarian style of government.
2.7 IMPORTANT PROVISIONS
POTA
Section-4 Possession of certain unauthorized arms.
Sanjay Dutt Vs. State through C.B.I 1994 SCC 410
This was the landmark judgement which had shaken the whole world in context to the laws which were been used for the Anti-Terrorism Laws, as the judges provide the basic privilege thereafter some interpretation was been served for the benefits and safeguard of the contagious elements
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 regardswithout anyauthority of law.Argument against – That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.Argument in favour – Firstly the section clearly says that any person who has unauthorized possession of arms that is does not possess a proper license for the arms. This section is only making the law stringent by stating that anybody who possesses arms should also possess proper license fromthe authorized person. Secondly, it also states weapons should be capable of mass destruction or biological or chemical substances of warfare so why would any person without any reason possess such kind of weapons and that to unauthorized
THE LEGISLATIVE ASPECTS
As the approach is very crucial to be discussed the researcher’s research will tell you about the whole aspect as per the judicial aspect are concern the majority source will solemnly have its own integrity that the aspect of the issue will have to be distinctive with its approach should be legal with the terms of the legal aspects and whereas the social aspect also belong to the same aspects. But the approach here is always with the betterment of the society but the cruciality remains the same with the aspects and approach towards the issue.
As far as the chronological order is concern the issue’s pertaining power will also shift toward the magnetic source, as in the power which have more strength will be toward the betterment of the society is concern, because nowadays societies concern is about the aspect of the profitable in nature because nowadays judiciary have come into some extent where the connection matters a lot because if you don’t have any connection your proceedings will always be delayed as per the proceedings is concern the major aspects are as per the commencement of the matter is concern so the judicial aspect is about the majority is concern. The propaganda about this aspect as a whole will clearly demarcate the issues in the limelight of the activity of law being indulged in the aspect of the terror laws.
The special effect of this whole laws is to that it will ensure the interest of the innocent which will be protected. The whole remuneration is all about this that how the laws are to be implied and interpreted. It is hoped that the government will keep in mind the reason for repealing POTA and ensure that the amended will not become another act or piece of act which can be misused.it is very necessary to understand the crucial interpretation of law how it is been interpreted and been indulged as per the requirement. The major aspect is to create the same dilemma toward the basic necessity of the law and its legality. The researcher hereby describes the whole cruciality in the context of different laws which are been indulged in the topic’s essentiality for the elementary aspects of anti-terror laws in India.
During research the researcher also got to know some new facts and cases which are for the benefit of the authoritativeness. Inspite of all this the researcher also get the cases as per the acts or the useful provisions are concern. The important laws are being signified and are like: –
POWERS
As we know law is above all but there is certain demarcation where some logical or practical aspect are to be deal with law. So, the law gives the accurate power to accomplish the procedure in a correct way whereas if the person is dealing the same law in an incorrect way then the problem is with him not the law. So as far as the repealing of these laws decision is concern it was totally wrong despite of correcting the law or providing its safeguards or clear sanction of it.
The authentication of this law will always be necessary to the aspect of the creamy layer of this issue. These remain in context to the networking aspect of the sanction of the laws and for the sake of the gravity of the law some credentials are the aspects of the terms of law which are to be said the most appropriate contentions with the privilege of the prior issues in context to the law. The power are proper but it have been turned to be Arbitrary in nature by the process of the dual interpretation of the legal officers and the judges
CONTROVERSIAL PROVISIONS
Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individuals, groups or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population and serve as message generators. Threat and violence-based communication processes between terrorists (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion or propaganda is primarily sought.
IMPACT
Under TADA 1985, two new offences where been described and created “terror act” and “disruptive activities” and were included. The law had put some restrictions on granting bails and gave enhanced power for detention of suspects and attaching the properties of the accused. The law made confession before the police officer admissible. Exclusive courts were set up to hear the cases under this act. The exclusive court were been setup due to the reason that these cases are to be considered as the special cases and the reason behind there thinking of the matter to be as a special cases because of the matter was to be dealt with the clear precaution at every stage where the judge feel that the elementary use of the fact are been necessary in each and every phase. Where the demarcation is been set as per the laws are been concern, the laws they says clearly that the demarcation are to be adjusted as per the laws are been concern. The reason due to which the act was been repealed, the basic reason was that the confirmation of the certain aspect are to be dealt with the benefit of the later stage but the proceeding are to be acknowledge as per the fact are to be concern. As per the researcher research this act should not been repealed just because of some unsocial creatures the whole act can’t be repealed as per the public.
CASES INVOLVED AS PER PROVISIONS
As we know the perspective of the law that the first essential of the law is Authentication and without authentication there is no scope of validity. In law Authentication stands for case laws, because case laws are the only beneficiary element which will provide the ball into your court, that means without the binding authorities you can’t win the case. So, here the researcher have provided some Judgements in lieu to the issues which are to be useful for the purpose of the safeguard of the society which are to be said the most appropriate examples in this context and the betterment of the society. Some of them are in lieu to the provisions which are been stated with the case laws itself.
Devender Pal Singh Vs. State of N.C.T. of Delhi
In this case 9 people 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.
Allauddin Mian Vs. State of Bihar
It was next submitted by the learned council for the accused that some of the prosecution witnesses, namely, Jallaluddin, Bhikhari Mian and Ram Chandra Prasad who were admittedly presented at the scene of occurrence according to the prosecution and had witnessed the entire incident were deliberately dropped with a view to suppressing the truth The Supreme Court cannot accept the contention, therefore the Non-examination of the aforesaid witnesses cannot affect the probative value of the evidence of other prosecution witnesses.
3.5 Terrorist and Disruptive Activities (Prevention) Act or TADA
This act was the first anti-terror law act which was enacted in 1985. It was first enacted for two years but later on its life was extended in 1987 via the name of The TADA ,1987. But due to its increasing misuse the act was later repealed in 1995. This increase in the misusing also increase the crime rate at that time. But the crime was mostly beard by the innocent Citizen in the name of either religion, caste, creed and sex. Which was creating a huge amount of unlawful activities,
Under TADA 1985, two new offences where been described and created “terror act” and “disruptive activities” and were included. The law had put some restrictions on granting bails and gave enhanced power for detention of suspects and attaching the properties of the accused. The law made confession before the police officer admissible. Exclusive courts were set up to hear the cases under this act. The exclusive court were been setup due to the reason that these cases are to be considered as the special cases and the reason behind there thinking of the matter to be as a special cases because of the matter was to be dealt with the clear precaution at every stage where the judge feel that the elementary use of the fact are been necessary in each and every phase. Where the demarcation is been set as per the laws are been concern, the laws they says clearly that the demarcation are to be adjusted as per the laws are been concern. The reason due to which the act was been repealed, the basic reason was that the confirmation of the certain aspect are to be dealt with the benefit of the later stage but the proceeding are to be acknowledge as per the fact are to be concern. As per the researcher research this act should not been repealed just because of some unsocial creatures the whole act can’t be repealed as per the public safeguard is concern there should be some us of the changes are been concern everything doesn’t deal with the privileged society is concern. Asper the laws are concern the basic necessity to which it was abide by was to the general safeguard are to be made as per the amendment is concerned the original proceedings are to be well versed as per the amendment is concern the neutrality of the law is been the first and the most important aspect as per the beautification of the law is concerned. The amendment of this law would be an important and good choice in the aspect of the naturality and the neutrality was to be concerned. But for the sake of the gravity of the biasness was to be made in concern the law was to be made in amendment rather than repealing it. It was gently a swift and an unusual decision of making the whole act repealed instead of amending it. The basic necessity of the law is to breakdown the action of the utilization with the approach of the context to take down the aspect of the modern aspect into the morality of the present aspect. The country has been in the firm grip of spiraling terrorist violence & is caught between pangs of the disruptive activities and apart from the major drawback of the act we just have to look upon the safeguard of the act in context to the amendment been created as per the controversies is concern Anti-terror laws are always been in controversies. The country India has always been in controversy in aspect of the Anti-Terror laws is concern the majority of the dilemma is to rejoin the matter as per the limelight of the purpose of the matter required to the necessity of the background of the legal aspect. As we know that the society contains of the duo logical approach toward every matter or issues been generated in the aspect of the betterment of the society.
3.6 Repeal of POTA and comparison
On 26 March 2002, the controversial anti-terror law, the Prevention of Terrorism Act (POTA) was passed with 425 votes for the Act and 296 against, after a 10-hour debate in the parliament. The intensity of the effects of the bill could be seen very clearly by the rejection of the bill by the upper house of the Indian Parliament leading to a Joint Session of Parliament, a measure that had taken place only the third time in the past. The Indian Ministry of Home Affairs justified the initial Ordinance after the September 11,2001 terror attacks by claiming an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country, despite the fact that the state of Jammu and Kashmir witnessed a decrease in the terrorist incidents taking place in that state.
The tribunal concluded that the review of victim and expert testimony showed that the misuse of the Act is inseparable from its normal use. The tribunal stated that the statute meant to terrorise not so much the terrorists as ordinary civiliansand particularly the poor and disadvantaged such as dalits, religious minorities, adivasis, and working people. Thus the tribunal recommended that POTA be repealed and that too in such a manner that the POTA charges are deleted from all existing investigations and trials. But, if the state so desires, these may continue under other laws and charges.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 (POTA) and amend the Unlawful Activities (Prevention) Act, 1967. Home Minister Shivraj Patil said that the government would provide a sunset period of one year during which all cases pertaining to POTA would be reviewed by the Central POTA Review Committee. He added, There would be no arrests made after the ordinance is promulgated. To fill the lacuna that have been created due to the repeal of the Act, adequate amendments were being brought to the Unlawful Activities (Prevention) Act, 1967 to define a terrorist act and provide for banning of terrorist organisations and their support systems, including funding of terrorism, attachment and forfeiture of proceeds of terrorism, etc. All terrorist organisations 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 will be 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.
3.7 Why are the Anti-Terrorism Laws necessary in India?
The legitimate and modern states have been under constant threat due to the activities of terrorist groups. The uniqueness of terrorism lies in the continuous changes that terrorists make in their mode operations and the multitude of methods they use in carrying out their activities. Terrorist activities have become brutal at the turn of the century, with terrorist organizations also having access to the technological advancements. India has been particularly vulnerable to such terrorist activities. Before proceeding further, let us go through a list of the major terrorist activities which shocked the country. Like: –
2001- Attack on the Parliament
March 2003- Bomb goes off in a train in Mulund
October 2005- Delhi Bombing
2005- Ram Janmabhoomi attack in Ayodhya
26th-29th November 2008- Terrorist attacks on Bombay.
The very recent attack on Pathankot Airbase on January 1, 2016
These are but very few cases of terror attacks in India. This list of attacks is long and list of causalities, longer. The Supreme Court, in the case of Kartar Singh v State of Punjab, opined that the country is slowly falling into the grasp of rising terrorist violence and is caught in the deadly jaws of disruptive activities. Traditionally, terrorism was thought of as a threatening and coercive activity adopted to force a nation into fulfilling the political demands of the terrorist group. But the rise of modern terrorism is a very complex issue which deals not only with the fulfilment of political demands but is also tied to diverse ideological goals. The amount of violence and ambition of the practitioners in modern terrorist activities is alarming. Let us now look at the legislation India had or presently has to tackle terrorism.
3.8 Anti-terrorism laws in India
There are several aspects that are been deal in lieu of the Indian laws which are too uneasy to handle sometime but the broader perspective of the whole aspect id been summarize first in the statutes and the laws been prescribed for the issue. Some of the laws are made for that crime but some the person has to co-relate to it. The acts that are necessary for it are been summarized below they are few in nature but they are relevant.
3.8.1. Unlawful Activities Prevention Act, 1967
This Act was instituted to curb those activities that questioned the territorial integrity of the nation. The ambit of the Act was strictly limited to the challenges which threatened the territorial integrity of the country, and when the Bill was debated in the Parliament, it was decided that through narrowing down the ambit of the Act, the right to association would remain unaffected. The Act has been drafted holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.
3.8.2. Terrorist and Disruptive Activities (Prevention) Act, 1987
Commonly known as the TADA, this Act came into force in November 1987. This Act was more punitive and stringent than the UAPA and was designed to prevent terrorist operations in the country. When the TADA was introduced, many questions were raised about its constitutionality, but the Supreme Court held that when such laws are made, it is assumed that those who are entrusted with the statutory powers given by law will act in good faith. The TADA became non-functional in the year 1995.
3.8.3. The Maharashtra Control of Organized Crime Act, 1999 (MCOCA)
Although this is a state Act, this should also be considered as one of the significant anti-terrorist legislation in the legislative history of India. The MCOCA was introduced in April 1999 and it was introduced specially to deal with the underworld gangs and organized crime syndicates in all of Maharashtra.The MCOCA has been very successful in the state of Maharashtra and conviction rate has been as high as 78%. The definition of a terrorist act is far more stretchable in MCOCA than under POTA. MCOCA mentions organized crime and includes `promotion of insurgency’ as a terrorist act.
3.8.4. Prevention of Terrorist Activities Act, 2002
The POTA Act can be said to be the Indian Version of the U.S Patriot Act. The POTA was nothing new but only a different version of the TADA with some superfluous changes. When cross-border terrorism intensified, it was felt by the legislature that a special law needs to be created to deal with these acts and POTA was introduced. POTA gives a clear definition of terrorists and terrorist activities. In the case of PUCL v UOI, the constitutional validity of this Act was also challenged. The POTA also faced widespread opposition throughout the country and especially with human rights organizations. It was believed that the Act blatantly violated fundamental rights of people provided for under the Constitution. The supporters of the Act, however, welcomed the legislation on the ground that it had been an effective measure in making sure that speedy trial took place for those who were accused of indulging in or abetting terrorism. The Supreme Court also gave their decision in favor of the Act saying that the Parliament had the ample authority under entry 97 of the list I of 7th Schedule and also under Article 248 to legislate the Act. Moreover, the view of the Apex Court was that having the Act was a policy decision and the Courts shouldn’t interfere in policy decisions.
Even though there was controversy regarding the constitutionality of the Act, it should be noted that there were several safeguards provided in the Act itself which prevented the abuse of power and violation of human rights. Some of the safeguards are-
No Court could take cognizance of any offence under this Act without the prior sanction of the State or the Central Government.
No officer, at a rank lower than that of Deputy Superintendent was allowed to investigate any offence under this Act.
Confessions made by any person not below the rank of Superintendent of Police were admissible as evidence, provided such person was produced before a magistrate within 48 hours along with the confessional statement.
The Act also specified punishment for any officer who exercised powers with a malicious intention.
The Act also provided for compensation to any person who was maliciously charged under the Act.
The POTA was repealed in the year 2004, and was replaced by a new Act. There were several consequences of repealing the POTA and several questions also cropped up. The first among many was that since a law which especially dealt with terrorist activities had been repealed, what would be the future apparatus to deal with such activities. Special provisions were also dropped which restricted release on bail, and also allowed for longer police custody of the accused. The concept of strict liability of the accused was also dropped off after the repeal of POTA.
3.8.5. Unlawful Activities (Prevention) Amendment Act, 2004
The amended Act although does not define the word terrorist but it defines terrorist activities. The word terrorist is to be interpreted in relation to the activity a person is carrying out. Terrorist Act is defined in Section 15 of the Act. The definition of a terrorist act was not provided in the 1967 Act. In this regard, the law has been widened. The former law only spoke about unlawful activities.
When an association is unlawful, the Central Government has to give a declaration of it citing the reasons for the declaration. The association will then have to provide a show cause that why it shouldn’t be declared unlawful. Under the amended Act also, the court has to take the permission of the Central or the state government to take cognizance for any offense falling under this Act. Confessions in front of a police officer are no longer admissible as evidence. Evidence collected through interception of oral, telephonic and wireless communication is made admissible under Sec 47 of the Act.
3.9 Need for Acts like UAPA and POTA
Various question has been raised on this amended Act also by many people under the pretext of the Constitutional rights. All these people must also keep in mind the fact that the constitution also talks about reasonable restrictions which can be placed even upon the liberty of people. In view of increasing terrorist activities, it is necessary that our country needs some strong laws in this area. The other thing the critics must keep in mind that there are safeguards also provided to prevent the misuse of power and violation of human rights, which are very similar to the previous Act. Those who are against these kinds of legislation must remember that these are enacted to safeguard the country as a whole and not a particular section of the society.
The POTA was repealed with a political motive to cash in on the vote banks. The fact should be given due consideration that if investigative forces and security forces are not given any legal powers de facto, then the human rights violations would be much more. There cannot be a contradictory situation in these type of vital matters. If one does not want to confer powers on the authority, out of human rights concerns, one also cannot sustain a situation where no actual powers are given but still wants the system to deliver.
The fault does not lie with the legislature but with the system where implementation is never done efficiently. The matter at hand cannot be restricted to a narrowed down area. Legitimate powers are needed to be given because the situation is extraordinary. If the terrorist activities are allowed to increase in the name of improper legislation, there will be several threats which will reveal themselves with respect to the security of the nation. Learning from the experiences of past terror activities which shook the nation, people who are against such legislation should reconsider their stand and accept the fact that these laws are needed to uphold the unity, sovereignty and integrity of the country. Today, terrorism does not remain only a cross-border or “militant issue. Today terrorism has reached the heart of India with major attacks at cities like Mumbai and Delhi. Preventive detention laws without any safeguard whatsoever against their misuse were required in the Seventies and Eighties when the time was relatively peaceful. Those kinds of laws are not required now. Having such laws, even with safeguards against the misuse, is to give up to a sickening streak of one-sidedness.
3.10. Other laws related to Anti-Terrorism
A number of Central and State laws have been enacted or subsequently amended to deal with terrorism and related activities. The Indian Penal Code (IPC), and the Code of Criminal Procedure, 1973 (CrPC), contains provisions relevant to terror cases as well. Besides general provisions on murder, criminal conspiracy, etc., there are other provisions more directly concerned with terrorism and related offences. These include the offence of waging war against
the Indian government, and sedition (words/signs/visible representation to bring hatred or contempt, or exciting disaffection towards the government in India). Terrorism cases, such as the Parliament attack case, Kasab’s trial, and the Malegaon blasts case, have all involved charges under the IPC. However, considering the nature and gravity of terrorism, the Centre and States have enacted other specific legislations to deal with terrorism and related activities.
In 1985, Parliament enacted the TADA as a specific anti-terror legislation, in the backdrop of the 1984 Indira Gandhi assassination. The law remained in force till 1995, after which it lapsed, following widespread allegations of misuse. In the aftermath of the 2001 Parliament attack, the Prevention of Terrorism Act (‘POTA’), 2002 was enacted. POTA also faced severe criticism for allowing widespread human rights abuses in the country. It contained a broad definition of a ‘terrorist act’ that covered political dissents, allowed prolonged pre-trial detentions, and reversed the presumption of innocence of an accused. The law was thus repealed in 2004.11 POTA is, however, relevant even today since the Act’s repeal did not affect pending investigations and legal proceedings instituted under the Act.12 Further, the repealing Act also permitted the institution of investigation, legal proceedings or remedies after repeal, although no Court was permitted to take cognizance of an offence under POTA after the expiry of one year since the repealing of the Act.13 As a result of this, several cases are currently pending under POTA even today, and the trial in the Mulund Blasts case of 2003, which involves charges under POTA, commenced only in July 2014, 11 years after the incident.14 The repealing Act made provisions for the POTA Review Committee to review all cases registered under the Act within a period of one year from the commencement of the repealing Act, and close cases where no prima facie case was made out against the accused.15 Three such Review Committees found that there was no prima facie evidence against two-thirds of the accused in POTA cases pending at the time of its repeal.
As per the researcher questions are concerned the basic elementary of the questions that comes in the mind of the researchers are to be seen at the broader perspective because as we know that the perception of interpretation varies person to person and person’s mind to minds so the actual hypothesis as per the researcher is said to be. The current Anti –Terror laws in India are ineffective and remain insufficient in overcoming the issues faced by a person in the anti-terrorism laws. These laws are essential elements of terrorism and there is a need for an overhaul in the way of terrorism and there is a need for an overhaul in the way of terrorism and anti-Terror laws are protected in our country. Better terror protection will inspire confidence from other countries, facilitates terror laws while also protecting local citizens. Thus, it will help the laws as a whole.
Some provisions are very important in aspect of the issue in which the researcher is researching upon. The major aspect of the issue is to define some deficiency of the act which is been as per the activities changes person to person and situation to situation. Like the way the terrorist attack happened on December 13,2001 attacked the parliament of India resulting in a 45 minutes gun battles in which 9 policemen and parliament staffer were killed. All the five terrorists were killed and were identified to be the citizen of Pakistan. The attack took place around 11:40 A.M.__In the case of People’s Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580 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.
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 2002 (1) SC (Cr.) 209 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.Argument against- trade union activity would be affected because whoever disrupts essential supplies would be covered under POTA. Argument in favor- at least our trade union leaders are nationalist leaders. Nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.
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 Duttt Vs. State through C.B.I 1994 SCC 410 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 Argument against – That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.Argument in favour – Firstly the section clearly says that any person who has unauthorized possession of arms that is does not possess a proper license for the arms. This section is only making the law stringent by stating that anybody who possesses arms should also possess authentication. Secondly, it also states weapons should be capable of mass destruction or biological or chemical substances of warfare so why would any person without any reason possess such kind of weapons and that to unauthorized.
Section7 Power of the preceding officer
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.Argument against – The petition articulates the fear that permitting a police officer to act on the basis. But the Argument in favor was like – Case Law – T.T. Anthony Vs. State of Kerala 2001 Cri LJ 3329 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 offences relating to support given 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. Under this Section, a person commits an offence if he invites support for a terrorist organisation, and even if the support is not confined to the provision of money or other property. He is guilty if he arranges or addresses a meeting which he knows is meant to support a terrorist organization or to further its activities. Vaiko was arrested under this Section on the basis of certain remarks saying that “I was a supporter of LTTE once. I was a supporter of LTTE yesterday; I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow.” Then, he asked his audience whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a culture. Mr. Vaiko, was in detention for 17 months, did not choose to seek matter on the process of bail.
When we looked at various chapters internationally, it was found that as far as membership of a terrorist group is concerned, the British law has an exclusive chapter on banning terrorist organizations. After banning a terrorist organization, membership of a terrorist organization, ipso facto. 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 purpose 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.What you earn out of crime is not your private property, it is against public interest and must belong to the state. The UN passed a draft Money Laundering Bill which all of us have been debating. The whole concept of money laundering is that profits out of crime must be confiscated because they cannot belong to an individual. Is it the argument today that since India is now to have a provision where profits from terrorism will be confiscated, it is a draconian provision.
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. 2001 Cri LJ 659 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.
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. Case Law – Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 The court said that it is entirely to the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to law it must while so deciding the question should satisfy itself that there was no trap. No track and no importance seeking evidence during the custodial interrogations and all the conditions required are fulfilled. If the court is satisfied then the confessional statement will be a part of the statement. Confessions could be made admissible evidence. In respect of confessions, we have given the facility of video recording. After that, within 48 hours, the person should be produced before a magistrate. The magistrate will ask whether it was voluntary or not. If the accused says that it was not voluntary, that he had been assaulted and coerced, the magistrate will have a medical examination done. So, a safeguard has been put in.State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 this was an appeal against convictions in view of attacks made on parliament. The matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.Admissibility of intercepted phone calls, intercepted phone calls are admissible piece of evidence under ordinary laws even though provisions of POTA cannot be invoked as it presupposes investigation to be set in motion on date of its interception. Impact of procedural safeguards under POTA on confession. Confession made involuntary is inadmissible evidence. If procedural safeguards have not been complied it will affect admissibility and evidentiary value of evidence being proved all charges beyond reasonable doubt convictions were upheld.
Section 45 Admissibility of evidence collected through the interception of communication
Notwithstanding anything in the code or in any other law for the time being in force the evidence collected through the interception of wire, electeronic or oral communication shall be admissible as evidence against the accused in the court during the trial of a case.It is said that TADA was misused. Probably it was misused. I would like to point out that one of the great weaknesses in TADA a structural defect was its dependence on witnesses; eyewitnesses and humble citizens appearing against terrorist groups. Anybody from Punjab, Mumbai or Kashmir will testify that the average citizen is scared of coming and honestly deposing before these institutions. This is a threat that the witnesses face against terrorist acts. So how can a normal person be able to give a statement before the court So there is a need bring in a provision that when terrorist gangs communicate with each other, intercepts of their communication should be allowed and these intercepts should become admissible evidence in court. So, when you arrest terrorists, you do not need a humble citizen to come and give evidence against them. You produce the recording of that intercept. At that moment, it becomes admissible evidence. Under normal law it is not admissible evidence. We examined the suggestion and accepted it. One of the strengths of this law is actually on the question of intercepts becoming admissible evidence. It is one reason why in Maharashtra, the conviction has reached 75% plus under MCOCA.
That no person will be released on bail unless the public prosecutor has an opportunity or where he opposes the application, there is a reasonable opportunity of believing that the person is innocent and shall not commit an offence. This was the language under TADA.The language was diluted under POTA.10. Action against police officer .There is a provision that in case any police officer misuses this law for his own personal purposes or for collateral reasons, he will be prosecuted under POTA itself. Several safeguards have been incorporated in the Act to minimize the possibility of its misuse. Some are
(i) Investigation of an offence under the Act is to be done by an officer not below the rank of Deputy Superintendent of Police.
(ii) No court can take cognizance of an offence under the Act unless sanction of the State.(iii) The Act provides safeguards against abuse of the provision relating to admissibility of confession made before a police officer.
(iv) Intimation of arrest of the accused will have to be provided to a family member immediately after arrest this fact is to be recorded by the police officer.
(v) Provision for prosecution of police officers for malafide actions under the Act and compensation to affected person in such cases.
The State Government/UT Administrations were advised to ensure that the provisions of this law are used only against the terrorists and not against the innocent. They were also advised to sensitize the police officers and others concerned with the implementation of POTA on the need to ensure its fair and transparent operation and to also install a mechanism to oversee the implementation of the Act.
MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did. Under POTA a police officer found guilty of malafide action could be jailed for up to two years but MCOCA offers no such protection. Finally, the law extended to the state of J&K unlike other laws.
3.11. Consequences of repeal of POTA
Finally, on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programmed, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of: –
1.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.2. By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organizations 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.
3. There would be no arrests made after the ordinance is promulgated.
4. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorists may roam free under the bail a rule, jail an exception dictum. The police will not get sufficient time to interrogate the accused to investigate the cases which, by their very nature, are complex. In Pota, as in Tada earlier, confessions made before a police officer of the rank of superintendent were admitted as evidence.5. All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the act.
6. Some of the clauses contained in POTA, which will be 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.
7. 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.8. But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given more scope than before to plant evidence in the form of interceptions.9. Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organizations and unlawful organizations. UAPA was originally meant only for banning unlawful organizations. 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.
So, what remains on the statute books- 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, cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that political parties were not exposed to intrusion by the executive. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India.
3.12 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.
3.12.1. A brief outline of the amended Act:
The Act does not define the word terrorist in its definition clause but defines a terrorist act. The word terrorist is to be construed according the definition of the terrorist act. Terrorist act is defined in the Act as – Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act (Section 15).The above definition did not exist in the 1967 Act. The previous Act only defined and dealt with unlawful activity. An unlawful activity includes an activity which intends to bring about cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India, or which causes or is intended to cause disaffection against India Section 2 (o). Whether an association is unlawful is to be declared by the Central government by giving the grounds for such a declaration. Section 3 Thereafter; it is referred to the Tribunal Section 4. A notice is issued by the Tribunal to the association concerned to show cause why it should not be declared unlawful. To ascertain whether there is sufficient cause for declaring the association unlawful.For taking cognizance of any offence under this Act prior sanction of the Central or the State government, as the case may be, is necessary. Criminal Procedure Code, 1973, is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours, confessions are no longer admissible before police officers and bail need not be denied for the first three months. The presumption of innocence leaving the burden of proof on the prosecution has also been restored.The evidence collected through interception of wireless, electronic or oral communication under the provisions of the Indian Telegraph Act or the Information Technology Act or any law being in force has been made admissible as evidence against the accused in the court Section 46.The amended Act provides for following penalties: Offence Includes Penalty Being a member of an unlawful association A person who is and continues to be a member of such association, takes part in meetings, contributes to, or receives or solicits any contribution for the purposes of the association or in any way assists the operations of such association. If such person is in possession of unlicensed firearms, ammunition, explosive, etc, capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, and if such act has resulted in the death of any person. In any other case Imprisonment for a term which may extend to two years and fine.
3.12.2. Death or imprisonment for life
Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment up to one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine. Imprisonment up to five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts, the offences and their punishments. Chapter IV, sections 15-22. The following table summarizes these provisions:Offence Punishment Terrorist Act Resulting in death of any person in any other case Death or imprisonment for life. A term for not less than five years Raising funds for a terrorist act Term not less than five years. Conspiracy Term not less than five years. Harboring Imprisonment for not less than three years. Being a member of a terrorist organization, the term may extend up to imprisonment for life. Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment up to three years. There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order. Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. The offences and penalties under this chapter as given below:
3.12.3. Offences Punishment
The Jammu and Kashmir Police will procure micro unmanned aerial vehicles fitted with night vision equipment for security, surveillance and detection operations in the state, officials have said. Senior police officials said that there was a need to have such UAVs for security drills including anti-terror operations, particularly in Kashmir Valley, in view of increasing militancy-related incidents. Tendering process for the procurement of eight drones has started. Various suspicion and voices have been raised by people NGO’s under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and in view of the increasing terrorist activities in the nation more particularly in view of the 9/11 attacks on the World Trade Center which killed more then 3000 people and 13 December attack on the Indian Parliament and large number of terrorist activities not only in J&K, N.E., A.P., and other areas of our country need for promulgation of POTA type legislation becomes the need of the hour. However there are numerous safeguards to prevent the abuse of above legislation by unscrupulous investigating officers, which are being ignored by various organization professing the repeal of such law. The attention of those who are against this legislation is invited to object and reason for which POTA was enacted. The repeal of Pota is just party politics to gain for their party’s vote bank. If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy. Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies. Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively. Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure. Learning from this experience, I would urge the people who are opposing this law to once again reconsider their stand because posterity eventually will decide that this country, for its integrity, sovereignty and unity certainly needs this law. Quite clearly, there is a crying need to fight the menace of terrorism unitedly. Partisanship of any sort in dealing with the ISI-sponsored terror attacks in India should be abandoned forthwith. Today terrorism has reached the heart of India in New Delhi’s Parliament House. And to suggest that preventive detention laws without any safeguards whatsoever against their misuse were required in those relatively peaceful times in the Seventies and Eighties but are not required now, even with safeguards against their misuse, is to betray a sickening streak of partisanship.
3.13. THE APPROACH TOWARD THE ISSUE
To the extent it detracts from presenting a united front against terrorists, the governments myopic stand on POTO and MCOCA in Delhi represents a greater threat to national unity than even the threat of the ISI-sponsored terror. So, it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunae’s in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India can have such stringent laws then why we cannot have such laws. Indian law as it stands today has come around in strange circumstances as the earlier legislation was found capable of being misuse. This law is less harsh than the previous anti-terrorism laws in India and is not equipped by way of express provision for discretion to deal with a vast variety of terrorist activity or other activities connected with perpetration of terrorism. Therefore, I am of the considered opinion that the Prevention of Terrorist Activities Act should be brought back for curbing terrorism and such like activities with a strong arm, which may help in preventing and deterring such activities.
The issue itself deemed to the best out the waste kind of the aspect for the sake f the gravity of the fine sense of the motion toward the aspect for the gravity of the misuse and the institutionalized motive of the aspect of the issue is to prove the circumstances as per the circumstantial evidences are concern. But the brutal fact about the relation of the issue toward the aspect of the humanity is that since from that time the state of the mindset of the people was just to oppose any one community toward the extreme extent mere on the fact of their interpretation power toward the situation aspect as per the media approach was been concern so was been done by the police at that point of time. Whatever may be the reason the situational and political pressure was the main reason behind that brutality which made the genuine approach of the whole act and laws toward the draw backwardness of these laws and the society is been concern.
Through the medium of the research paper the researcher also got the luckiest opportunity to indulge into the best topic of this whole world with the aspect and the better knowledge with the bare extreme perception of the research opportunity is concern the topic is nowadays can be inter-related with each every aspect of this modern world with the aspect of creating the society betterment but, the laws are been so extracted with the creativity of the brutality with rigidity toward the action been taken place as per the legal sanctity and prudency is concern the logical aspect no one bother but it remain with the flow of how someone manipulate with the facts which are to be presented in the court. There comes the extracting power of the customization of the manipulation power of one representor. The major aspect that deal with the sake of the gravity and its approach toward the law will clearly indicate the phenomenal aspects of the whole issue’s situation. So, the acts are as per the India law aimed at effective prevention of unlawful activities associations in India. Its main objective was to make the power available for dealing with these kinds of activities directed against the integrity and sovereignty of India.
The national integration council appointed the committee on the same aspect that was upon National Integration and Regulation to look into, the aspect of putting reasonable restrictions in the interest of putting the reasonable restrictions in the interest of the sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the committee, the constitution (Sixteenth Amendment) Act,1963 was enacted to impose, by law, reasonable restrictions in the interest of the sovereignty and integrity of India. In order to implement the provision of 1963 Act, the unlawful Activities (Prevention) bill was been introduced in Parliament. The cases are to be featured as per the nature of the law which are to be accomplished as per its gravity and the intent of threatening the unity is the blunder which is been done in the shape of terrorism. The thing which is hazardous are too followed in the laws process but the loss is to be bearded by the society itself. In Devender pal Singh vs State of N.C.T. of Delhi in this case 9 people died and several other injured on account of perpetrated acts. The court ordered death sentence as per the reason stated “Terrorist who have no respect of the human life and people are been killed due to their mindless killing, So, they should be given death sentence.” Due to which the drastic step was also been encrypted in the process of the flexibility of the law with the activity to get indulge the aspect for the betterment of the individual by improvising the society. The laws of terrorism where been the creativity of making the society up to the mark for the safeguard of protection from mass destruction act or any terrorism activities.
The accuracy of the perfection of the law is to provide the basic necessity of the law as per the legal necessity is concern the law itself comes in use whenever something is been made in an illegal deed or in illegal manner but the protective laws remain the consensually the people now a days, if we see the past information the sole gravity of the whole onus is been upon the person who have committed the crime but, the planner should also be equally responsible as well as everyone who is involve physically or mentally involved in it. The sociological aspect even which is been defined by the various philosophers that as per the law is concern the basic necessity of the people now days is peace but on the other hand fear is the opponent of the Peace where there will be fear there can’t be peace or in other language we can say that the changes have to be the part of this nature because everyone have the right to express and counter his own feeling in his or her own style so the researcher here is trying to put more weight on the context which is related to the terror laws of India because some of the demarcation of the way is to provide certain demarcation and some flexibility as per the equality and justification is concern. But as far as the study is concern the law always deal with the perfection and the beautification of law is that it is well determined by the fact of the gravity is concern because in the field of law correct approach of law is an important essential element in this issue’s sake. There are several matters or cases or incidence where the law is much determined as the fact are much jumbled up but the approach toward the law with some solution-based approach and a judgmental approach will matter a lot in context to the issue. Some of the incidence includes Terrorist attack on the Parliament of India which took place on 13th December, 2001 in New Delhi in which the facts are like attacked by terrorist at Parliament of India resulting a 45 minutes gun battle in which 9 policemen and parliament staffer were killed. All the five terrorists were also killed by the security forces and were identified as Pakistani nationals. The attack took place around 11:40 A.M. (IST), minutes after both houses of parliament had adjourned for the day. The suspected terrorist dressed in commando fatigues entered parliament in a car through the VIP gate of the building. Displaying parliament and Home Ministry security stickers, the vehicle entered the parliament premises. The terrorist set off massive blast and have used AK-47 rifles, explosives and grenades for the attack. Senior personnel sealed the entire premises which saved many lives. Even the chronology of the attack has also been described. As per the acts which are been used as per the state. But as per the Terrorist and Disruptive Activities (Prevention) Act, 1987 it was enacted in May, 1985 in the background of escalation of terrorist Activities in many parts of the country at the time. It was expected then, that it would be possible to control the menace with a period of two years. Some ordinance was also being made in the act for the betterment of the society and the ordinance were like that the punishment were made more deterrent as well as the power to constitute the designated court were also encrypted with the enumeration of rulemaking power. There is a difference between the terms been terrorist activities and disruptive activities. The basic necessity of the law is to provide the element of the law as per the basic law of these context is concern the law. The lawmaking body are not much sovereign as the necessity is to create the betterment of the society even the legal provisions also says that the safeguard is necessary as per the laws are concern the repealed or old laws are the essential provisions toward the issues are concern the main requirement is to fulfil the necessity which is been demarcated as per the law needs are concerned. If we look at the statutes confinement what are they made for will always have some safeguard to bend it towards the betterment some of the examples are like of The Terrorist and Disruptive Activities (Prevention) Act as it was enacted in the background of terrorist activities in many parts of the country at the time. It was expected then that it would be possible to control the menace within a period of two years from the date of commencement. Subsequent to the promulgation of the ordinance, it was felt that the provision needed further strengthening in order to cope up with the menace of terrorism which is to be said the most drastic crime in the world. Nowadays the better way to be discussed these kind of law is to prevent the safeguard in the most appropriate manner.
JUDICIAL ASPECT
Some provisions are very important in aspect of the issue in which the researcher is researching upon. The major aspect of the issue is to define some deficiency of the act which is been as per the activities changes person to person and situation to situation. Like the way the terrorist attack happened on December 13,2001 attacked the parliament of India resulting in a 45 minutes gun battles in which 9 policemen and parliament staffer were killed. All the five terrorists were killed and were identified to be the citizen of Pakistan. The attack took place around 11:40 A.M.
Analysis of some Important Sections Of POTA
In the case of People’s Union for Civil Liberties Vs. Union of Indiathe 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.
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.Argument against- trade union activity would be affected because whoever disrupts essential supplies would be covered under POTA. Argument in favor- at least our trade union leaders are nationalist leaders. Nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.
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 Duttt Vs. State through C.B.I 1994 SCC 410 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 Argument against – That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.Argument in favor – Firstly the section clearly says that any person who has unauthorized possession of arms that is does not possess a proper license for the arms. This section is only making the law stringent by stating that anybody who possesses arms should also possess authentication. Secondly, it also states weapons should be capable of mass destruction or biological or chemical substances of warfare so why would any person without any reason possess such kind of weapons and that to unauthorized.
Section7 Power of the preceding officer
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.Argument against – The petition articulates the fear that permitting a police officer to act on the basis. But the Argument in favor was like – Case Law – T.T. Anthony Vs. State of Kerala 2001 Cri LJ 3329 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 offences relating to support given to a terrorist organization.
4.2 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. Under this Section, a person commits an offence if he invites support for a terrorist organisation, and even if the support is not confined to the provision of money or other property. He is guilty if he arranges or addresses a meeting which he knows is meant to support a terrorist organization or to further its activities. Vaiko was arrested under this Section on the basis of certain remarks saying that “I was a supporter of LTTE once. I was a supporter of LTTE yesterday; I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow.” Then, he asked his audience whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a culture. Mr. Vaiko, was in detention for 17 months, did not choose to seek matter on the process of bail.
When we looked at various chapters internationally, it was found that as far as membership of a terrorist group is concerned, the British law has an exclusive chapter on banning terrorist organizations. After banning a terrorist organization, membership of a terrorist organization, ipso facto. 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 purpose 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.What you earn out of crime is not your private property, it is against public interest and must belong to the state. The UN passed a draft Money Laundering Bill which all of us have been debating. The whole concept of money laundering is that profits out of crime must be confiscated because they cannot belong to an individual. Is it the argument today that since India is now to have a provision where profits from terrorism will be confiscated, it is a draconian provision?
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. Srinivasan Vs. M/s Deccan Petroleum Ltd. 2001 Cri LJ 659 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.
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. Case Law – Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 The court said that it is entirely to the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to law it must while so deciding the question should satisfy itself that there was no trap. No track and no importance seeking evidence during the custodial interrogations and all the conditions required are fulfilled. If the court is satisfied then the confessional statement will be a part of the statement. Confessions could be made admissible evidence. In respect of confessions, we have given the facility of video recording. After that, within 48 hours, the person should be produced before a magistrate. The magistrate will ask whether it was voluntary or not. If the accused says that it was not voluntary, that he had been assaulted and coerced, the magistrate will have a medical examination done. So, a safeguard has been put in.State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsal Guru (2005) 11 SCC 600 this was an appeal against convictions in view of attacks made on parliament. The matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.Admissibility of intercepted phone calls, intercepted phone calls are admissible piece of evidence under ordinary laws even though provisions of POTA cannot be invoked as it presupposes investigation to be set in motion on date of its interception. Impact of procedural safeguards under POTA on confession. Confession made involuntary is inadmissible evidence. If procedural safeguards have not been complied it will affect admissibility and evidentiary value of evidence being proved all charges beyond reasonable doubt convictions were upheld.
Section 45 Admissibility of evidence collected through the interception of communication
(1) Notwithstanding anything in the code or in any other law for the time being in force the evidence collected through the interception of wire, electeronic or oral communication shall be admissible as evidence against the accused in the court during the trial of a case.It is said that TADA was misused. Probably it was misused. I would like to point out that one of the great weaknesses in TADA a structural defect was its dependence on witnesses; eyewitnesses and humble citizens appearing against terrorist groups. Anybody from Punjab, Mumbai or Kashmir will testify that the average citizen is scared of coming and honestly deposing before these institutions. This is a threat that the witnesses face against terrorist acts. So how can a normal person be able to give a statement before the court So there is a need bring in a provision that when terrorist gangs communicate with each other, intercepts of their communication should be allowed and these intercepts should become admissible evidence in court. So, when you arrest terrorists, you do not need a humble citizen to come and give evidence against them. You produce the recording of that intercept. At that moment, it becomes admissible evidence. Under normal law it is not admissible evidence. We examined the suggestion and accepted it. One of the strengths of this law is actually on the question of intercepts becoming admissible evidence. It is one reason why in Maharashtra, the conviction has reached 75% plus under MCOCA.
4.3. Bail provision This language of a bail provision, the CrPC normal bail provisions, will not apply ?That no person will be released on bail unless the public prosecutor has an opportunity or where he opposes the application, there is a reasonable opportunity of believing that the person is innocent and shall not commit an offence. This was the language under TADA.The language was diluted under POTA.10. Action against police officer .There is a provision that in case any police officer misuses this law for his own personal purposes or for collateral reasons, he will be prosecuted under POTA itself. Several safeguards have been incorporated in the Act to minimize the possibility of its misuse. Some of the main safeguards are as follows:(i) Investigation of an offence under the Act is to be done by an officer not below the rank of Deputy Superintendent of Police.
(ii) No court can take cognizance of an offence under the Act unless sanction of the State.(iii) The Act provides safeguards against abuse of the provision relating to admissibility of confession made before a police officer.
(iv) Intimation of arrest of the accused will have to be provided to a family member immediately after arrest this fact is to be recorded by the police officer.
(v) Provision for prosecution of police officers for malafide actions under the Act and compensation to affected person in such cases.
The State Government/UT Administrations were advised to ensure that the provisions of this law are used only against the terrorists and not against the innocent. They were also advised to sensitize the police officers and others concerned with the implementation of POTA on the need to ensure its fair and transparent operation and to also install a mechanism to oversee the implementation of the Act.
MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did. Under POTA a police officer found guilty of malafide action could be jailed for up to two years but MCOCA offers no such protection. Finally, the law extended to the state of J&K unlike other laws.
4.3.1 Consequences of repeal of POTA
Finally, on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programmed, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of: –
1.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.2. By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organizations 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.
3. There would be no arrests made after the ordinance is promulgated.
4. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorists may roam free under the bail a rule, jail an exception dictum. The police will not get sufficient time to interrogate the accused to investigate the cases which, by their very nature, are complex. In Pota, as in Tada earlier, confessions made before a police officer of the rank of superintendent were admitted as evidence.5. All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the act.
6. Some of the clauses contained in POTA, which will be 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.
7. 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.8. But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given more scope than before to plant evidence in the form of interceptions.9. Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organizations and unlawful organizations. 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.
4.3.2. So what remains on the statute books- 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, cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that political parties were not exposed to intrusion by the executive. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India.
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.
4.4 A brief outline of the amended Act:
The Act does not define the word terrorist in its definition clause but defines a terrorist act. The word terrorist is to be construed according the definition of the terrorist act. Terrorist act is defined in the Act as – Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act (Section 15).The above definition did not exist in the 1967 Act. The previous Act only defined and dealt with unlawful activity. An unlawful activity **includes an activity which intends to bring about cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India, or which causes or is intended to cause disaffection against India Section 2 (o). Whether an association is unlawful is to be declared by the Central government by giving the grounds for such a declaration. Section 3 Thereafter; it is referred to the Tribunal Section 4. A notice is issued by the Tribunal to the association concerned to show cause why it should not be declared unlawful. To ascertain whether there is sufficient cause for declaring the association unlawful.For taking cognizance of any offence under this Act prior sanction of the Central or the State government, as the case may be, is necessary. Criminal Procedure Code, 1973, is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours, confessions are no longer admissible before police officers and bail need not be denied for the first three months. The presumption of innocence leaving the burden of proof on the prosecution has also been restored.The evidence collected through interception of wireless, electronic or oral communication under the provisions of the Indian Telegraph Act or the Information Technology Act or any law being in force has been made admissible as evidence against the accused in the court Section 46.The amended Act provides for following penalties: Offence Includes Penalty Being a member of an unlawful association A person who is and continues to be a member of such association, takes part in meetings, contributes to, or receives or solicits any contribution for the purposes of the association or in any way assists the operations of such association. If such person is in possession of unlicensed firearms, ammunition, explosive, etc, capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, and if such act has resulted in the death of any person. In any other case Imprisonment for a term which may extend to two years and fine.
4.4.1. Death or imprisonment for life
Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment up to one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine. Imprisonment up to five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts, the offences and their punishments. Chapter IV, sections 15-22. The following table summarizes these provisions:Offence Punishment Terrorist Act Resulting in death of any person in any other case Death or imprisonment for life. A term for not less than five years Raising funds for a terrorist act Term not less than five years. Conspiracy Term not less than five years. Harboring Imprisonment for not less than three years. Being a member of a terrorist organization, the term may extend up to imprisonment for life. Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment up to three years. There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order. Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. The offences and penalties under this chapter as given below:
4.4.2. Offences Punishment
The Jammu and Kashmir Police will procure micro unmanned aerial vehicles fitted with night vision equipment for security, surveillance and detection operations in the state, officials have said. Senior police officials said that there was a need to have such UAVs for security drills including anti-terror operations, particularly in Kashmir Valley, in view of increasing militancy-related incidents. Tendering process for the procurement of eight drones has started. Various suspicion and voices have been raised by people NGO’s under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and in view of the increasing terrorist activities in the nation more particularly in view of the 9/11 attacks on the World Trade Center which killed more than 3000 people and 13 December attack on the Indian Parliament and large number of terrorist activities not only in J&K, N.E., A.P., and other areas of our country need for promulgation of POTA type legislation becomes the need of the hour. However, there are numerous safeguards to prevent the abuse of above legislation by unscrupulous investigating officers, which are being ignored by various organization professing the repeal of such law. The attention of those who are against this legislation is invited to object and reason for which POTA was enacted. The repeal of Pota is just party politics to gain for their party’s vote bank. If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy. Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies. Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively. Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure. Learning from this experience, I would urge the people who are opposing this law to once again reconsider their stand because posterity eventually will decide that this country, for its integrity, sovereignty and unity certainly needs this law. Quite clearly, there is a crying need to fight the menace of terrorism unitedly. Partisanship of any sort in dealing with the ISI-sponsored terror attacks in India should be abandoned forthwith. Today terrorism has reached the heart of India in New Delhi’s Parliament House. And to suggest that preventive detention laws without any safeguards whatsoever against their misuse were required in those relatively peaceful times in the Seventies and Eighties but are not required now, even with safeguards against their misuse, is to betray a sickening streak of partnership.
4.5 THE APPROACH TOWARD THE ISSUE
To the extent it detracts from presenting a united front against terrorists, the governments myopic stand on POTO and MCOCA in Delhi represents a greater threat to national unity than even the threat of the ISI-sponsored terror. So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunae’s in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India can have such stringent laws then why cannot we have such laws. Indian law as it stands today has come around in strange circumstances as the earlier legislation was found capable of being misuse. This law is less harsh than the previous anti-terrorism laws in India and is not equipped by way of express provision for discretion to deal with a vast variety of terrorist activity or other activities connected with perpetration of terrorism. Therefore, I am of the considered opinion that the Prevention of Terrorist Activities Act should be brought back for curbing terrorism and such like activities with a strong arm, which may help in preventing and deterring such activities.
The issue itself deemed to the best out the waste kind of the aspect for the sake of the gravity of the fine sense of the motion toward the aspect for the gravity of the misuse and the institutionalized motive of the aspect of the issue is to prove the circumstances as per the circumstantial evidences are concern. But the brutal fact about the relation of the issue toward the aspect of the humanity is that since from that time the state of the mind set of the people was just to oppose any one community toward the extreme extent mere on the fact of their interpretation power toward the situation aspect as per the media approach was been concern so was been done by the police at that point of time. Whatever may be the reason the situational and political pressure was the main reason behind that brutality which made the genuine approach of the whole act and laws toward the draw backwardness of these laws and the society is been concern.
Through the medium of the research paper the researcher also got the luckiest opportunity to indulge into the best topic of this whole world with the aspect and the better knowledge with the bare extreme perception of the research opportunity is concern the topic is nowadays can be inter-related with each every aspect of this modern world with the aspect of creating the society betterment but, the laws are been so extracted with the creativity of the brutality with rigidity toward the action been taken place as per the legal sanctity and prudency is concern the logical aspect no one bother but it remain with the flow of how someone manipulate with the facts which are to be presented in the court. There comes the extracting power of the customization of the manipulation power of one representor. The major aspect that deal with the sake of the gravity and its approach toward the law will clearly indicate the phenomenal aspects of the whole issue’s situation. So, the acts are as per the India law aimed at effective prevention of unlawful activities associations in India. Its main objective was to make the power available for dealing with these kinds of activities directed against the integrity and sovereignty of India.
The national integration council appointed the committee on the same aspect that was upon National Integration and Regulation to look into, the aspect of putting reasonable restrictions in the interest of putting the reasonable restrictions in the interest of the sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the committee, the constitution (Sixteenth Amendment) Act,1963 was enacted to impose, by law, reasonable restrictions in the interest of the sovereignty and integrity of India. In order to implement the provision of 1963 Act, the unlawful Activities (Prevention) bill was been introduced in Parliament.
MODERN ASPECTS
Stressingly, uneven distribution of wealth and resources is the basis of human strife. Nations often go to war over control of land and water resources. Individual disputes are generally property related. Strife leads to errant behavior and greed to possess wealth causes all these individuals group to deviate from the right path and pursue directions which are amoral, improper and illegal in nature. Hence, terrorism, drug trafficking and corruption are manifestation of wrong doings.
Terrorism is an act of cowardice. Hence, the aggressor perpetrates violence on the innocent, not in retaliation but as a form of intimidation; to create terror, chaos and confusion in civil society the sole objective of terrorist organization is subjugation of large population to their theology, creed and thought. They will not stop till their message is accepted. This goes against the grain of the democracy. However, terrorist organization have managed to create network, as they are birds of the same feather. Some times religion and castes are used as factors to promote terrorism. It is heard everyday about gang wars which are based on caste and community. Similarly, ideology also become an excuse for promoting terrorism. India has such groups in many states which started as offshoots of Naxalite movement and have taken various shapes in different states.
5.1 Terrorism
In dealing deal with terrorism in Punjab it is necessary to mention some of the experience there. It was found that in the initial stages, the terrorists in addition to fundamentalism had adopted some measures which were generally liked by the people. They declared the henceforth no dowry is to be given and not more than eleven persons will accompany in a marriage party. The element of the fear had put the people on right track. Anti-dowry law has been passed by the legislature with the intention of curbing the menace of dowry but no one care for such measures hence dowry system continues. It has become a slur on the society because the element of fear missing. As per the definitions which are been described in the upper descriptions but some of the definitions can be relied upon some of the philosophers where as some of the description is all about the perception of the beautification of the law, so does the demarcation of the law as well but the necessity of the law is the basic need as per the deceptive acts statute is concern some demarcation of the law is based upon the perception of the fine sense of judgement of the necessity of the law where some concept are to be relied upon the terms of the law. If the entity that gave birth to all of us can be so regulated and disciplined, then why cannot the human being be like her. Hence the regulated behavior is absolutely necessary for a harmonious and peaceful co-existence. When we move around in the society, discipline becomes an integral part of our interaction with others. Advocates of this view also believe that freedom should be without restrictions. They want to live the life as they want, but they forget that everything which comes under limitation is good for the future and present scenario. So as per the view of the researcher is concerned the basic necessity of the essentiality is to have a correct sense of interpretation and the correct sense of providing the correct knowledge. So we have to see the perspective with some broader aspects in context to the term and issue called terrorism.
5.2 Types of Terrorisms seen nowadays
As we know nowadays the crime rate is increasing day by day and just like the technology is progressing day by day and creating new technology and diseases, so the criminals are doing it day by day by finding out new ways for creating and spreading their terror in the whole world. But in context to the modern world some changes are taking place and out of these changes some are good as advantages and some are in the form of drawback and the worst part is the quantity of the drawback is more than the quantity of advantage. The basic principle of humanity is to live and let others live, and as per the gravity of the constitution as well we all deserve to be treated equally and peacefully but the aspects of the people nowadays is different and their sense of justification have bought up their own perspective whether it is correct or not but the deepest way to nurtured their approach is awareness with a correct knowledge and a narrow minded approach. So as per the research was conducted the researcher got to know about the types of the crimes been used by the terrorist nowadays. Some are the credential aspects that deal with the clarification of the perception that varies from person to person. Just like the scientist are creating their new experiment in science and technology the same is been done by the terrorists nowadays the crimes have reached up to the upper level and the basic problem is that there are some peoples who are involved in it.
Crimes like Cyber Terrorism, Gangster Terrorism, mobilizing Attacks, Pre-organized Terror Attacks, Bomb Blasts, Jihaads, Self- Suiciding and various other new methods have been introduced which can be clearly seen as these terrors are increasing day by day.
5.3. Death or imprisonment for life
Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment up to one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine. Imprisonment up to five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts, the offences and their punishments. Chapter IV, sections 15-22. The following table summarizes these provisions:Offence Punishment Terrorist Act Resulting in death of any person in any other case Death or imprisonment for life. A term for not less than five years Raising funds for a terrorist act Term not less than five years. Conspiracy Term not less than five years. Harboring Imprisonment for not less than three years. Being a member of a terrorist organization, the term may extend up to imprisonment for life. Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment up to three years. There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order. Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. The offences and penalties under this chapter as given below:
5.4. Offences Punishment
The Jammu and Kashmir Police will procure micro unmanned aerial vehicles fitted with night vision equipment for security, surveillance and detection operations in the state, officials have said. Senior police officials said that there was a need to have such UAVs for security drills including anti-terror operations, particularly in Kashmir Valley, in view of increasing militancy-related incidents. Tendering process for the procurement of eight drones has started. Various suspicion and voices have been raised by people NGO’s under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and in view of the increasing terrorist activities in the nation more particularly in view of the 9/11 attacks on the World Trade Center which killed more then 3000 people and 13 December attack on the Indian Parliament and large number of terrorist activities not only in J;K, N.E., A.P., and other areas of our country need for promulgation of POTA type legislation becomes the need of the hour. However there are numerous safeguards to prevent the abuse of above legislation by unscrupulous investigating officers, which are being ignored by various organization professing the repeal of such law. The attention of those who are against this legislation is invited to object and reason for which POTA was enacted. The repeal of Pota is just party politics to gain for their party’s vote bank. If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy. Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies. Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively. Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure. Learning from this experience, I would urge the people who are opposing this law to once again reconsider their stand because posterity eventually will decide that this country, for its integrity, sovereignty and unity certainly needs this law. Quite clearly, there is a crying need to fight the menace of terrorism unitedly. Partisanship of any sort in dealing with the ISI-sponsored terror attacks in India should be abandoned forthwith. Today terrorism has reached the heart of India in New Delhi’s Parliament House. And to suggest that preventive detention laws without any safeguards whatsoever against their misuse were required in those relatively peaceful times in the Seventies and Eighties but are not required now, even with safeguards against their misuse, is to betray a sickening streak of partisanship.To the extent it detracts from presenting a united front against terrorists, the governments myopic stand on POTO and MCOCA in Delhi represents a greater threat to national unity than even the threat of the ISI-sponsored terror. So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunae’s in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India can have such stringent laws then why cannot we have such laws. Indian law as it stands today has come around in strange circumstances as the earlier legislation was found capable of being misuse. This law is less harsh than the previous anti-terrorism laws in India and is not equipped by way of express provision for discretion to deal with a vast variety of terrorist activity or other activities connected with perpetration of terrorism. Therefore, I am of the considered opinion that the Prevention of Terrorist Activities Act should be brought back for curbing terrorism and such like activities with a strong arm, which may help in preventing and deterring such activities.
The issue itself deemed to the best out the waste kind of the aspect for the sake of the gravity of the fine sense of the motion toward the aspect for the gravity of the misuse and the institutionalized motive of the aspect of the issue is to prove the circumstances as per the circumstantial evidences are concern. But the brutal fact about the relation of the issue toward the aspect of the humanity is that since from that time the state of the mind set of the people was just to oppose any one community toward the extreme extent mere on the fact of their interpretation power toward the situation aspect as per the media approach was been concern so was been done by the police at that point of time. Whatever may be the reason the situational and political pressure was the main reason behind that brutality which made the genuine approach of the whole act and laws toward the draw backwardness of these laws and the society is been concern.
Through the medium of the research paper the researcher also got the luckiest opportunity to indulge into the best topic of this whole world with the aspect and the better knowledge with the bare extreme perception of the research opportunity is concern the topic is nowadays can be inter-related with each every aspect of this modern world with the aspect of creating the society betterment but, the laws are been so extracted with the creativity of the brutality with rigidity toward the action been taken place as per the legal sanctity and prudency is concern the logical aspect no one bother but it remain with the flow of how someone manipulate with the facts which are to be presented in the court. There comes the extracting power of the customization of the manipulation power of one representor. The major aspect that deal with the sake of the gravity and its approach toward the law will clearly indicate the phenomenal aspects of the whole issue’s situation. So, the acts are as per the India law aimed at effective prevention of unlawful activities associations in India. Its main objective was to make the power available for dealing with these kinds of activities directed against the integrity and sovereignty of India.
The national integration council appointed the committee on the same aspect that was upon National Integration and Regulation to look into, the aspect of putting reasonable restrictions in the interest of putting the reasonable restrictions in the interest of the sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the committee, the constitution (Sixteenth Amendment) Act,1963 was enacted to impose, by law, reasonable restrictions in the interest of the sovereignty and integrity of India. In order to implement the provision of 1963 Act, the unlawful Activities (Prevention) bill was been introduced in Parliament. The cases are to be featured as per the nature of the law which are to be accomplished as per its gravity and the intent of threatening the unity is the blunder which is been done in the shape of terrorism. The thing which is hazardous are too followed in the laws process but the loss is to be bearded by the society itself. In Devender pal Singh vs State of N.C.T. of Delhi in this case 9 people died and several other injured on account of perpetrated acts. The court ordered death sentence as per the reason stated “Terrorist who have no respect of the human life and people are been killed due to their mindless killing, So, they should be given death sentence.” Due to which the drastic step was also been encrypted in the process of the flexibility of the law with the activity to get indulge the aspect for the betterment of the individual by improvising the society. The laws of terrorism where been the creativity of making the society up to the mark for the safeguard of protection from mass destruction act or any terrorism activities. These terror activities are the most appropriate contention in the modern world.
5.5 Demonstrative Aspects
As we know even if we are doing something new some advice is necessary just in the same way the opinion of some Juris, learned and experienced person’s opinion is also necessary so as per the research was done the researcher found some new aspects and some opinions of some philosophers are also been taken as the prior objects in this research paper and which is said to be the demonstrative aspects. The nature of the whole issue is complicated and saying anything about this topic whether for advantage or for disadvantage both will emerge as the drawback if your approach is not broader. Nowadays people are emerging as the most intellectual approach but in the actual sense they don’t even know what they are up to. The worst thing is during past days they wish what they do not deserve but they get what they deserve, now they get what they need and they don’t get what they don’t deserve. They don’t even think about it that what are they doing in lieu of some money or any other greediness which they are relying upon but the drawback now is that the culture they are taking for their beneficial aspects that will create a huge difference and difficulty ahead which they are not seeing coming toward them slowly and very rigidly. This is an exclusive truth that they won’t be spare by the karma and due to any other person’s sins, they won’t be spare and the person who all are doing this will be spares and they won’t be even affected a single loss, because they have entered and they are coming to attack. This is just starting and this peace is something saying that this peace is the peace before the destruction which is coming soon. Apart from all this the proper safeguard for the safety and security of the future if it is to be done then we just not have to protect the border security but some changes are necessary for the safeguards which is very important nowadays.
5.6 Faulty Legislation or Faulty System?
Unending debates over the working of the anti-terror laws, TADA and POTA, in judicial, political and social circles have cast aspersions on the need for such a specific law. Yet, it can hardly be denied that that terrorism is here to stay, and constitutes the greatest contemporary threat to individual and collective security. No legal instrument can be perfect, and no law can attain such a measure of flawlessness that it cannot be bent or broken, as long as the human instinct to do so survives. Inherent deficiencies in the framing of laws, moreover, are magnified manifold within the context of a criminal justice system which is in as poor a state of health as India’s. It is an accepted fact that convictions for any offence, whether minor traffic violations or murder, take an extraordinary length of time. The courts are overburdened, and recent estimates indicate that there are around 3.1 million pending cases in 21 high courts and 20 million in subordinate courts in the country.
There has been negligible effort on the part of successive Governments to streamline the judicial system in the country. Attempts to create fast track courts to tackle pending cases have been largely unsuccessful. Even in areas where such courts have been established, prosecution continues to be delayed. The Recovery of Debts due to Banks and Financial Institutions Act of 1993 was one such law that established fast track courts to recover money from debtors. With nearly 44,000 cases pending in various Debt Recovery Tribunals (DRTs) involving around Rs. 380 billion, the processes and procedures of these courts have also fallen into the mould of ‘normal’ courts in the country.
The fault lies, not in the legislation, but in the system that implements the law. Delays are chronic, right from the stage of issuing summons to the defendant, which, in some cases, can take several months, as processes are delayed on flimsy grounds. Delays in civil cases hurt particular individuals and institutions; but the failure to expedite the prosecution of the accused in criminal cases – especially of serious criminal offences such as terrorism – is a cause of alarm, as it constitutes a threat to the life of the individual and to the security and stability of the state.
TADA was victim to this process as well and was widely criticized because its conviction rate was less than two percent. This was, curiously, advanced as grounds for scrapping the law by its critics. The argument is certainly eccentric: rape, for instance, has among the lowest conviction rates for violent crimes in India; this, however, has rightly been the basis of strident demands for strengthening of the law, and harsher penalties.
The situation is nor irreparable, and the experience with the Maharashtra Control of Organised Crime Act (MCOCA), 1999, deserves special attention in this regard. This legislation was passed by the Maharashtra Assembly in view of the growing menace of organised crime. ‘Organised Crime’ bears an uncanny resemblance to terrorism: neither phenomenon is confined by international borders; both organised crime and terrorism involve murder, kidnapping, arson, robbery, burglary, extortion, dealing in narcotics or dangerous drugs, intimidation and violence; finally, the support structures and sources of finance are often the same for both.
The MCOCA has been an extraordinary success in Maharashtra, with a conviction rate as high as 78 per cent in some years. Many of the provisions of MCOCA are similar to those under POTA. For example, both acts have identical provisions with respect to
Procedures and powers of Special Court – Section 9 of MCOCA and Section 29 of POTA;
Authorization of interception of wire, electronic or oral communication – Sections 14 and 16 of MCOCA and Section 36 to 48 of POTA;
Certain confessions made to police officer to be taken into consideration – Section 18 of MCOCA and Section 32 of POTA;
Protection of witnesses – Section 19 of MCOCA act and Section 30 of POTA;
Forfeiture and attachment of property – Section 20 of MCOCA and Sections 6, 7 and 8 of POTA.
There can be no doubt that, if a clear anti-terrorism strategy involving the police, the executive and the judiciary could be formulated and executed on a national scale, the successes of MCOCA could be replicated under POTA.
Regrettably, political indulgence and high-handedness have constantly undermined the implementation of counter-terrorism laws and have infinitely complicated the terrorism debate. Among the aspects that have most frequently come under criticism is the abuse of such laws to carry out arrests of political opponents and a wide range of activists who are not covered by the intent and purpose of such laws. Indeed, TADA was used far more often against those who would not be covered by any definition of terrorism, than it was against terrorists. Similarly, a review of the arrests made under POTA over the first year of its operation projects the Act in poor light. According to the Union Home Ministry, the total number of those arrested and put in jail across the country under the POTA was 257. The data indicates further, that it is not in the terror wracked State of J;K that POTA has been extensively used, but in Jharkhand. This newly created State has the ‘distinction’ of detaining the highest number of persons under POTA, at 113, as against 104 detained in J;K. Worse, among those detained in Jharkhand were a 12-year-old child and an 81-year-old man. Others in the POTA list are Delhi with 20 detainees; Uttar Pradesh and Tamil Nadu with 10 each.
It has also been nigh impossible to work out any kind of political consensus on the implementation of anti-terrorism laws. In a shocking development on June 4, 2003, the J;K Government decided that it would not invoke POTA in the State, and that detainees who had ‘no serious cases’ against them would be released. J;K is the worst terrorism affected State in the country but is not the only one to refuse to implement POTA; Governments in Manipur, Karnataka, Punjab, Assam, Tripura and Madhya Pradesh have also said that the law would not be used in their States.
This negates the very purpose for which the anti-terrorism legislation had been enacted. J;K is the major theatre of terrorist conflict in the country, and its past record of convictions of arrested terrorists under any law has been abysmal. The populist and politically motivated refusal to implement POTA can only weaken the enforcement agencies in their fight against terror.
POTA is, of course, far from perfect. The difficulty with counter-terrorism legislation in this country – indeed, with much other legislation as well – is that once it passes through Parliament, it tends to be looked upon as an immutable whole, to be accepted in full, or, like TADA, cast out in entirety for its deficiencies. There was certainly a high measure of gross abuse of TADA in certain States – but this was valid grounds for re-examination and amendment of the law, not for throwing the baby out with the bathwater. To bury legislation which provided the only effective legal instrument to bring terrorists to justice on the grounds that it was susceptible to abuse was nothing short of foolhardy. What is needed is a constant process of review of the law in action, the identification of its strengths and weaknesses, and the streamlining of processes and provisions through marginal amendments that would ensure its greater efficiency in securing the ends for which it was legislated and limiting any existing possibilities of abuse.
5.7 REASON TO THE CONSEQUENCES AS PER PAST AND PRESENT PERSPECTIVE
The authority and legitimacy of modern nation states has come under a severe challenge as a result of rising trends in terrorism. Confronted with one of the most brutal forms of violence, a suitable or adequate response to terrorism is still to be framed, even as a proper context of evaluation and a sufficient understanding of its causation and methodology remain elusive. The uniqueness of terrorism lies in its complex inner dimensions, its continuous and rapid adaptations, and its wide variations across different theatres. Significantly, the transformation of terrorism over the past twenty years has been startling, with rising anxiety over its burgeoning lethality. Traditionally, terrorism was considered to be a coercive tactic, sometimes adopted as part of a larger guerrilla strategy, in that actions created threats of worse to come if political demands were not met, and these demands tended to be geared to ending foreign occupation or to securing the objectives of a secessionist movement. The rise of modern terrorism, however, has been far more complex, tied to diverse ideological and political goals, and often astounding in the scale of violence and the ambitions of its practitioners. The weapons used in the modern terrorist attacks have grown deadlier and far more accurate than the archaic guns and daggers of the early revolutionary terrorist and as terrorist groups make increasingly persistent efforts to acquire radiological, biological and chemical and weapons of mass destruction, the future outlook becomes more ominous. The situation is compounded further by the availability of enormous financial resources and new communications equipment that has immensely empowered both the terrorist ‘foot soldier’ and his masters. The power of the media has also dawned on violent players, as is evident in the more symbolic ways in which acts of violence are executed or their targets selected. Yonah Alexander notes that terrorists have used the media to, first, enhance the effectiveness of their violence by creating an emotional state of extreme fear in target groups, and thereby ultimately alter their behaviour and dispositions, or bring about a general or particular change in the structure of government or society; and, second, to draw forcibly and instantaneously, the attention of the whole world to themselves in the expectation that these audiences will be prepared to act or, in some cases, to refrain from acting, in a manner that will promote the cause they presumably represent. Terrorism, then, like advertising, increases the effectiveness of its messages by focussing on spectacular incidents and by keeping particular issues alive through repetition. This is a far cry from the age when ‘anarchists’ met behind closed doors, relying on mouth-to-ear communication to mobilize support for the cause’, to project their secret and forbidden ideologies, and for the effective execution of their missions.
The recent spurt in terrorist incidents across the world, especially the 9/11 attacks, and the growing recognition of a burgeoning danger have prompted a number of countries to pass anti-terror laws to meet new contingencies. The spurt in anti-terror legislation appears to reflect a measure of surprise among governments around the world at the magnitude and character of the new wave of terrorist activities. A natural corollary to this legislation and to new curbs that some of this legislation places on what are believed to be integral rights and freedoms, is the question: Do we really need new anti-terror laws to check this menace? At least some cynics have suggested that, far from being a necessary part of an effective and efficient response to terrorism, such legislation actually represents a knee-jerk and substantially misdirected reaction to the more dramatic incidents of terrorism.
There are always questions of morality when new laws are enacted, especially when these relate to basic human rights and freedoms. Roscoe Pound clarifies the need for new laws in a very succinct way in terms of two ‘needs’ that determine philosophical thinking on the subject:
On the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual willfulness and assure a firm and stable social order. On the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security and of making new compromises because of continual changes in society have called for readjustment at least of the social order. They have called continually for overhauling of legal precepts and for refitting them to unexpected situations.4
Nevertheless, reservations have always existed regarding the exercise of the power to refit laws to unexpected situations; such reservations are rooted in considerations of morality, the fear of criticism, and the fear of high-handedness. Nevertheless, the exercise of power is often a necessary imperative of history. As Fukuyama puts it,
…much as people would like to believe that ideas live or die as a result of their inner moral rectitude, power matters a great deal. German fascism didn’t collapse because of its internal moral contradictions, it died because Germany was bombed to rubble and occupied by Allied armies.
Much of the reluctance in accepting the need for special anti-terrorism legislation is based on the fallacy of equating ‘terrorism’ with other forms of violence, and the consequent argument that the prevailing or ‘ordinary’ laws that have been enacted to deal with the latter are sufficient to take care of the former.6 Thus, Walter Laqueur describes how it was widely believed that terrorism was a response to injustice and that the terrorists were people driven to desperate actions by intolerable conditions, be it poverty, hopelessness, or political or social oppression. Following this reasoning, the only way to remove or at least to reduce terrorism is to tackle its sources, to deal with the grievances and frustrations of the terrorists, rather than simply trying to suppress terrorism by brute force.
This reasoning is, however, substantially flawed and ignores the unique social, political and ideological factors that contribute to, and are exploited by, the processes of terrorist mobilization. There is, further, little empirical evidence of a direct linkage between specific socio-economic conditions and the emergence of terrorist movements. There is, moreover, an element of defeatism in this perspective, to the extent that it insists that the issues of violence cannot, or should not, be addressed until the last possible grievance has been resolved – a task, in any world outside the realm of pure fantasy, that would necessarily remain perpetually unfulfilled. Essentially, the core issue of terrorist violence and criminality is, here, not being addressed, and the focus has been shifted to the purported ’causes’ that are believed to have led to terrorists taking up arms. Further, the very idea that terrorism grows out of legitimate social grievances and upheavals cedes, without evidence or argument, the moral high ground to the terrorist: society can never be perfect and, consequently, there will always be ‘just cause’ for terrorism to survive. Worse, the terrorists are entirely exempted from all norms of morality, even as the most unrealistically exacting morality is applied to ‘society’ and the ‘state’. It is precisely this thinking that has obstructed, stalled, diluted and constantly opposed specific anti-terrorism legislation over the years, and continues to stifle and hamper prosecutions under such laws by putting forward vague and disconcerting objections.
The lack of agreement on a definition of ‘terrorism’ has been another major obstacle to meaningful international countermeasures and laws. Cynics have often commented that, “one man’s terrorist is another man’s freedom fighter,” an argument at once immensely strong and entirely superficial. But this argument is based, as Ajay Sahni rightly notes,
… on a contrafactual expectation of unique identity. In truth, individuals have multiple identities – a man may be father and murderer; husband and rapist. We also share a multiplicity of transient identities – we are, for example, at particular times, workers, shoppers, hosts or guests. A man, on this reasoning, may be both terrorist and freedom fighter. The latter identity rests on his motives – what he is fighting for. The former relates to the methods he adopts in this fight – the targeting, specifically, of civilians, to achieve his ends. Terrorism, thus conceived, can be adopted for one among many motives – to fight for freedom, for particular environmental policies, for a ban on abortions, for animal rights, among others – and remains terrorism as long as the method or means utilized involve the intentional targeting of civilians.
If, however, terrorism is defined strictly in terms of attacks on non-military targets, a range of attacks on military installations and soldiers’ residences would escape the scope of the definition. In order to cut through the Gordian definitional knot, terrorism expert Alex P. Schmid suggested in 1992, in a report for the then United Nations (UN) Crime Branch, that it might be a good idea to take the existing consensus on what constitutes a ‘war crime’ as a point of departure. “If the core of war crimes – deliberate attacks on civilians, hostage taking and the killing of prisoners – is extended to peacetime, we could simply define acts of terrorism as ‘peacetime equivalents of war crimes’.”
Difficulties with the definition of terrorism, nevertheless, persist, many of them motivated by those who engage in, support or benefit from, activities widely perceived as such. Nevertheless, it is possible to clearly identify the essential considerations that would enter into an assessment of such acts: terrorism can, thus, generally be described as the systematic use of terror or unpredictable violence against governments, the public, or individuals, to attain a political objective. Terrorism has been used by political organizations with both rightist and leftist objectives, by nationalistic and ethnic groups, by revolutionaries, by groups pursuing particular political or ethical ends, and by the armies and secret police of governments themselves.
Counter-terrorism legislation is, moreover, entirely consistent with a jurisprudential history of special laws that have been enacted from time to time to deal with special situations, and India’s record is no exception. The first preventive detention law was introduced by the British in 1793 and was aimed solely for the purpose of detaining anybody who was regarded as a threat to the British settlement in India. The East India Company in Bengal subsequently enacted the Bengal State Prisoner’s Regulation, which was to have a long life as ‘Regulation III of 1818’. An extra-Constitutional ordinance, opposed to all the fundamental liberties which the colonial state would later pretend to be bound by, Regulation III provided for the indefinite confinement of individuals against whom there was insufficient ground to institute any judicial proceeding. Regulation III was the most effective tool in the hands of the British to quell any political violence.
The beginning of the 20th century witnessed an increase in the revolutionary movement in India, with the birth of many underground groups pursuing the goal of independence through violent means. The period also marked the emergence of several legislations to quell the rising tide. In 1908, the government passed the Newspapers (Incitement to Offences) Act and the Explosive Substances Act and, shortly thereafter, the Indian Press Act, the Criminal Tribes Act, and the Prevention of Seditious Meetings Act. A majority of these legislations were aimed at breaking the back of the revolutionary movements by curbing meetings, printing and circulation of seditious materials and propaganda, and by detaining suspects. The Foreigners Ordinance of 1914 sought to restrict the entry and movement of foreigners in India. The Defence of India Act (1915) allowed suspects to be tried by special tribunals, whose decisions were not subject to appeal.
The Defence of India Act was to expire shortly after the end of the First World War and the British Government had to come up with a new law to counter new tendencies. Based on the recommendations of Justice Rowlatt, Chairman of the Committee appointed to curb seditious movements in India, the Rowlatt Act, also known as the Anarchical and Revolutionary Crimes Act, was passed in 1919, giving unbridled powers to the colonial Government to arrest and imprison suspects without trial and crush civil liberties. The violent movement was blunted in the 1930s by the tough regulations passed by the Government, including the Constitutional Reforms of 1935.
After attaining Independence, the violence witnessed during Partition forced the Government of Free India to pass the Punjab Disturbed Areas Act, Bihar Maintenance of Public Order Act, Bombay Public Safety Act, and Madras Suppression of Disturbance Act, aimed at curbing forces that were using religion to incite violence. The rise of the Naxalite (Left-wing extremist) movement prompted the West Bengal government to pass the West Bengal (Prevention of Violent Activities) Act of 1970.
The last three decades have witnessed a number of legislations being enacted to tackle various specific contingencies: Jammu and Kashmir Public Safety Act (1978); Assam Preventive Detention Act (1980); National Security Act (1980, amended 1984 and 1987); Anti-Hijacking Act (1982); Armed Forces (Punjab and Chandigarh) Special Powers Act (1983); Punjab Disturbed Areas Act (1983); Chandigarh Disturbed Areas Act (1983); Suppression of Unlawful Acts Against Safety of Civil Aviation Act (1982); Terrorist Affected Areas (Special Courts) Act (1984); National Security (Second Amendment) Ordinance (1984); Terrorist and Disruptive Activities (Prevention) Act (1985, amended 1987); National Security Guard Act (1986); Criminal Courts and Security Guard Courts Rules (1987) and the Special Protection Group Act (1988).
Although these laws were enacted to meet special situations, most of them were not directed against the larger menace of terrorism. The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, and the Prevention of Terrorism Act (POTA), 2002, are the only Acts, which can correctly be termed anti-terrorism laws. The state, through these two laws, for the first time attempted to create legislative instruments to curb terrorist activities in India, recognizing the fact that terrorism was a special crime that needed special laws for an effective response to be created.
A clear distinction between ‘ordinary crime’ and terrorism is, consequently, important as is well illustrated by the Supreme Court’s observations in Hitendra Vishnu Thakur vs. State of Maharashtra that,
…’terrorism’ has not been defined under Terrorist and Disruptive Activities (Prevention) Act (TADA) nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as 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 or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or ‘terrorise’ people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A terrorist activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law.
The Court added further that,
What distinguishes ‘terrorism’ from other forms of violence therefore appears to be the deliberate and systematic use of coercive intimidation. It is therefore essential to treat such a criminal and deal with him differently than an ordinary criminal capable of being tried by the ordinary courts under the penal law of the land. There are certain changes that have to take place and which are to be seen in the lieu of the perspective of the
CONCLUSION AND SUGGESTION
As we know that everything contains of two-sided approach in context to the philosophical aspects and everywhere we can see one thing common that a topic contains of the two different contentions that is Merit and demerit or Advantage and disadvantage which us a very necessary thing in the safeguard of any aspect is concerned, the most appropriate thing as per the contention of the issue is that varies from the person to person which is the most important segment in contention to the approach of the perception to the various aspects.
After a detailed study of various provisions and concepts related to confession in India, it is quite evident that balance of convenience is in favor of accused. Basic jurisprudence followed in our country is that hundred culprits may go free but no innocent shall be punished. This theory of presumed innocence until proven guilty is backed by our Evidence Act, Constitution, Criminal Procedure Code and various other criminal laws as well. There are two options, either to make our system so full proof that no criminal goes unpunished or make our system so lenient that no innocent person gets punishment. Both these systems will have their pro and cons. In first system there will be every chance that some innocent person is being harassed whereas in second system there is every lot of possibility that a culprit takes undue advantage of lenient laws. In India it is the second system which is tried. Reason why India is not able to implement the first one is mainly the untrustworthiness of our executives. As it was in the time of British India, same continues till the present time. Police is still considered as puppet of government. They still have an anti-public and pro-government image.
Prevention of Terrorism Act, 2002 (POTA) and Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was an exception to complete exclusion of custodial confessions. These acts were enacted mainly to tackle with anti-terrorist activities. TADA came into force in 1987 as an aftermath of Punjab riots. It was repealed due to various controversial provisions contained in it. POTA was its successor. POTA came into force in June 2002 just after parliament attack. But this Act was repealed by UPA government on humanitarian grounds. POTA was framed on the lines of US Patriot Act. U.S patriot Act was passed just after 7-11 attacks and it is a fact that no big terrorist attack took place after this Act in America. Now this is our choice whether we wish to place our nation’s integrity and security above or below a person’s fundamental rights.
A strong anti-terrorist law is the need of the hour. Otherwise issues like religious riots in Jammu ; Kashmir, nasalism, terrorist attacks etc. can never be resolved. Reason for non-enactment of such strict laws is the abusive use of arbitrary powers under the Act by politicians and police personals for their private motives. Only four months after its enactment, state law enforcement officers had arrested 250 people nationwide under the Act, and the number was steadily increasing. A mere eight months later, seven states applying POTA had arrested over 940 people, at least 560 of whom were languishing in jail. Several prominent persons like Vaiko were arrested under the act. This can be done away only if our politicians and police personals have a sense of duty and belongingness towards the country. Till then we have to protect innocent persons who are trapped in criminal proceedings just because they don’t have bribe to pay.
Following are some of the measures which can be taken to further save the interest of innocent accused:
There should be meeting between Magistrate (who is recording the statement) and the accused in private, so that pressure of police or other person may not work upon the mind of accused. Only then we can say that confession is voluntary and free from all duress.
The Magistrate should also inquire about the truthfulness of confessional statement of accused with the help of some evidence sufficient for his personal satisfaction. It is so because when an accused made a confession statement regarding his committal of crime, there are many circumstances behind the curtain which must be cleared by the magistrate before recording the confessional statement. Non voluntary confession in any manner shall be avoided.
The previous criminal record of accused should also be seen in awarding the quantum of punishment against the present alleged crime which is based on confessional statement. It must be borne in mind before giving benefit to accuse that he must not be in habit of firstly committing the crime and then confess the same just to gain the benefits under the system.
The scope of extra judicial confession should also be enlarged. So that more person may be made competent to record the extra judicial confession. Extra judicial confession should be to any person who has no personal interest regarding the confession.
Principle regarding the liability of agent/servant on behalf of master must be expanded. As in Civil matter, the liability of agent can be fixed, in criminal matters also the statement of agent/servant must be taken into consideration. Because whatever the servant does on behalf of master, he did in the capacity. He has no individual interest contrary to the master.
Further inquiry is needed about the truthfulness of confession in case of women and juveniles because they are easily or more effected by the undue influence coercion and fear. They are softer than other criminals. So great care and caution should be taken before recording confession of women and juveniles.
There must be difference between first time offenders and habitual offenders. Credibility of confessional statement shall be subjected to nature of offender as well. First time offenders shall be given benefit under Probation of Offenders Act.
Statement given by a person during civil proceedings shall be used as confessional statements under criminal proceedings but with great care and precaution. No statement made during the civil cases which tends to incriminate the person can be used against him and he cannot be forced to give answers to such questions which tends to incriminate him.
The credibility of the aspect is to provide the strong Anti-Terror laws for the betterment of the sake of the gravity of laws which are required.
