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Quest - The Journal of UGC - ASC Nainital 206
Terrorism in India and Legislation for its Prevention
Terrorism in India and Legislation for its Prevention
Caesar Roy*
ABSTRACT
Terrorism has today become the latest threat to world peace and particularly to India’s national security. Terrorists are
improving their sophistication and abilities in all aspects of their operation and support. Weapon technology has
become more increasingly available, and the purchasing power of terrorist organisations is on the rise with the ready
availability of both technology and trained personnel to operate it. The terrorists are not only threatening the ideals of
democracy and freedom but also causing a serious challenge to the existence, progress and development of mankind.
There is need for stringent provision for prevention of terrorism. In a country like India if a law regarding terrorism is
enacted it should be made so stringent that the culprit be brought to book and does not go scot-free just because of
loopholes or lacunas. The need for special laws to combat terrorism cannot be under estimated, actually the problem
lies with the implementation of laws and the abuse of powers conferred on the authorities under the special laws .
KEYWORDS: Criminal Justice System, Malimath Committee Report, National Investigation Agency, Anti-terrorism
Legislation, Extraordinary Laws.
IndianJournals.com
Quest - The Journal of UGC - ASC Nainital
Volume 5, Issue 2, November 2011, pp. 206-213
*LL.M, PG Diploma in Criminology & Forensic Science, Lecturer in Law, Midnapore Law College, Rangamati, Midnapore,
Paschim Medinipur, West Bengal. PIN - 721102. caesar3@rediffmail.com
INTRODUCTION
Terrorism is not new and though it was seen since the
beginning of recorded history it is hard to define. The
earliest known organisation was the Zealots of Judea.
The Assassins were the next group to show recognisable
characteristics of terrorism, as we know today. Though
both Zealots and Assassins operated in antiquity, they are
relevant today as forerunners of modern terrorists in
aspect of motivation, organisation, targeting and goal and
although both were ultimate failures still they are
remembered hundreds of years later.
Terrorism has today become the latest threat to world
peace and particularly to India’s national security. The
menace of terrorism whether perpetrated by individuals,
groups or state forces is a crime against humanity which
has wounded societies all over the world. The terrorist
has not only threatened the ideals of democracy and
freedom but also caused a serious challenge to the
existence, progress and development of mankind. The
modern technology has further added a new dimension
to terrorism as the highly sophisticated weapons are now
easily available to the terrorist groups as well.
Al l over the wo rld th ere ar e numerou s terr o rist
organisations that are existing actively on their own apart
from other international terrorist organisations. The
alarming increase in terrorist attacks in this century is a
cause of serious concern.
MEANING OF TERRORISM
To describe a person, a group or a party as ‘terrorist’ it is
necessary to know what ‘terrorism’ is .The term
‘terrorism’ comes from the French word ‘terrorisme’
which is based on the latin verb ‘terrere’ meaning ‘to
cause to tremble.’ According to Oxford English Dictionary,
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Volume 5, Issue 2, November 2011 207
Second Edition, 1989 terrorism is a policy intended to
intimidate or cause terror. The Encyclopaedia Britannica
defines terrorism as the systematic use of violence to
create a general climate of fear in a population and
thereby to bring about particular political objectives.
Terrorism is violence or other harmful acts committed
(or threatened) against civilians for political or other
ideological goals. The European Union defines terrorism
as an act with the aim of “destabilising or destroying the
fundamental political, constitutional, economic or social
structures of a country.” The Code of Federal Bureau of
Investigation of USA has defined terrorism as “the
unlawful use of force and violence against persons or
property to intimidate or coerce a Government, a civilian
population or any segment, in furtherance of political or
social objectives.” The FBI further describes terrorism
as either domestic or international depending on the origin,
base, and objectives of the terrorists.
There are more than 100 definition of the word ‘terrorism’;
these definitions are used by United Nations Organisation
( UNO) , the European Union, United States and other
countries. The modern definition of terrorism is inherently
controversial. The United Nations states that “the question
of a definition of terrorism has haunted the debate among
states for decades.” A first attempt to arrive at an
internationally acceptable definition was made under the
League of Nations, but the convention drafted in 1937
never came into existence. The UN Member States still
have not agreed upon a definition. The lack of agreement
on a definition of terrorism has been a major obstacle to
meaningful international counter measures.
CAUSES OF TERRORISM
On proper analysis the following causes for the various
insurgent/terrorist movements in India can be deduced –
Political Causes : In Assam and Tripura it is seen
that due to the failure of the government to control
large scale illegal immigration of Muslim from
Bangladesh, to fulfill the demand of economic benefits
for the son and daughters of the soil etc.
Economic Causes : Andhra Pradesh, Madhya
Pradesh, Chhattisgarh, Orissa, Bihar and West Bengal
are prime examples. The economic factors include
the absence of land reform, rural unemployment,
exploitation of landless labour ers, etc. These
economic grievances and gross social injustice have
given rise to ideological terrorist groups such as
Maoist groups operating under different names.
Ethnic Causes : It is seen mainly in northeastern
states such as Nagaland, Mizoram and Manipur due
to feelings of ethnic separateness which has given
rise to terrorist groups like ULFA etc..
Religious Causes : Seen mainly in Punjab before
1995 and in Jammu and Kashmir since 1989.In Punjab,
some Sikh leaders allege during the 1970 that the
Sikhs were being ignored in Indian society. On the
said backdrop in the 1980, there was an armed
movement and it turned violent. The name Khalistan
wa s res u rfaced to that effect and sough t
independence from the Indian Union. The Babbar
Khalsa, a Sikh terrorist group, consequently blew up
Air India’s aircraft killing the innocent passengers in
the year 1985.In Jammu and Kashmir, muslims
belonging to different organisations created terror for
religious purposes. Hizbul Mujahidin want Indian’s
Jammu and Kashmir State to be merged with
Pakistan. The terror which loomed large in Jammu
and Kashmir is due to feelings of anger amongst the
section of the muslim youth over the Government’s
perceived failure to safeguard their lives and interest
or due to Pakistan’s attempt to cause religious
polarisation.
PR EVENTIO N OF TERRORISM TH ROUGH
LAW
In order to legislate a uniform law for Anti-terror activities
League of Nations and United Nations Organisation tried
to define a unanimous definition of terrorism through
different Conventions since 1937..The US and UK have
both implemented effective anti terrorism laws in the
United States following the terrorist attacks on 9th
September, 2001. President Bush approved on October
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Terrorism in India and Legislation for its Prevention
26, 2001, the Uniting and Strengthening America By
Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT) Act of 2001 to deter
and punish terrorist acts in the United States and around
the World.
UK had implemented Prevention of Terrorism Act, 1974,
Terrorism Act, 2000, Anti Terrorism Crime and Security
Act, 2001, Prevention of Terrorism Act, 2005, Terrorism
Act, 2006, Counter Terrorism Act, 2008 to prevent terrorist
activities.
In Belgium Anti Terrorism Act, 2003, in Australia Anti
Terrorism Legislation, 2004, Australian Anti Terrorism Act,
2005, in New Zealand Terrorism Suppression Act, 2002,
in South Africa South African Terrorism Act, 1967 are in
force. Even in Pakistan Anti Terrorism Act, 1997, Anti
Terrorism Act as amended in 1999 are in force.
In the aftermath of the spurt in the terrorist activities in
recent years including the attack on the Indian Parliament
and the Mumbai attacks, the Indian Parliament enacted
three legislations in tandem, namely :
a. Establishment of a national investigation agency
through National Investigation Agency Act, 2008,
with the objective of bringing in more professionalism
in the investigation process in terrorist activities.
b. The amendment s in the Unlawful Activiti es
(Prevention) Act, 1967.
c. Amendments in the Code of Criminal Procedure,
1973.
National Investigation Agency (NIA) is a new federal
agency approved by the Indian Government to combat
terror in India. The Agency is empowered to deal with
terror related crimes across States without special
permission from the States. The provisions of this Act
with regard to investigation shall not affect the powers of
the State Government to investigate and prosecute any
scheduled offence or any other offences.
The Unlawful Activities (Prevention) Amendment Act,
2008 makes a number of substantive and procedural
changes to empower the National Investigation Agency
Act, 2008 to act effectively and decisively on terrorism
related activities. This Act does incorporate some of the
provisions of the earlier law on terrorism, such as for
detention in police custody for 30 days and extension of
the maximum period for filing a charge-sheet to 180 days
if the court is satisfied with the report of the Public
Prosecutor on delay in completing investigations. This Act
(Section 43E) introduces the principle of presumption of
guilt in respect of a terrorist act when arms, explosives
or other substances specified in Section 15 are recovered
from the possession of the accused. This Act defines
‘terrorist act.’
The Code of Criminal Procedure, 1973 has also been
amended and though, the amendments are not necessarily
the result of the terrorist acts, the changes are bound to
have a bearing on not only the accused of terrorist acts
but also on the victims thereof.
The new laws have doubled the length of time suspected
militants are allowed to be detained without charge. The
tougher portion of UAPA, 2008 will be executed by the
National Investigation Agency. No doubt that the NIA
Act, 2008 has kindled new hopes by creating a cadre of
committed federal police system filling the gap created
by the State Police Administration. The NIA is a new
experiment in India in midst of many a crisis and failures
of criminal justice administration and the challenges are
too many to take over the baton and to manage a system
with the aspirations endowed to its creation, the interest
of national security, human rights and guaranteed civil
liberties of mankind are foremost. The hard law in UAPA,
2008 is poised on the promises of NIA inducted to them
by the NIA Act, 2008. the duo deserves a chance before
suspected terrorists go scot-free.
Anti-terrorism legislation designs all types of laws passed
in the purported aim of fighting terrorism. This legislation
usually includes specific amendments allowing the state
to bypass its own legislation when fighting terrorism related
crimes, under the grounds of necessity.
The scope of terrorist activities is no longer confined to
acts that strike terror or disrupt supplies of essential
services in a particular country or area. The terrorist
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Volume 5, Issue 2, November 2011 209
activity is widened to include people and life of the
community in India and in any foreign country. This
insertion of extraterritoriality may appear to suggest
partnership in and a commitment to the United Nations
resolution calling for international cooperation against
‘global terrorism.’
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 last
three decades have witnessed a number of legislations
being enacted to tackle various specific contingencies:
The PreventiveDetention Act (PDA), 1950; Jammu and
Kashmir Public Safety Act (1978); Assam Preventive
Detention Act (1980); The Defence of India Act, 1962
and its Rules; The Maintenance of Internal Security Act
(MISA), 1971; National Security Act (1980, amended
1984 and 1987); Anti-Hijacking Act (1982); Armed Forces
(Punjab and Chandigarh) Special Powers Act (1983);
Punjab Dis turb ed Areas Act (1983); Chandiga rh
Disturbed Areas Act (1983); 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)The Unlawful Activities
(Prevention) Act, 1967 was passed in 1968. Under this
Act any organisation could be declared illegal and any
individual could be imprisoned for questioning India’s
sovereignty over any part of the territory. This Act has
been worked all along holistically as such and is
completely within the purview of the Central list in the 7th
Schedule of the constitution.
There were instances of TADA being misused and this
Act was lapsed in 1995.
Actually, after the lapse of TADA in the year 1995 there
was no law of extraordinary nature which could be used
as a weapon against the rising terrorist activities in India.
Subsequently, India witnessed major terrorist incidents
which included the hijacking of the India Airlines flight
IC – 814 to Kandahar in 1999 and the attack on the
Parliament on December 13, 2001 along with response
to the 9/11 attacks on the World Trade Centre in the USA,
the Indian outlook has changed and in the March session
of Parliament of 2002 the Prevention of Terrorist Activities
Act (POTA), 2002 was introduced.
Constitutional validity of POTA, 2002 was upheld by the
Supreme Court in the case of People’s Union for Civil
Liberties v. Union of India.1 The Supreme Court also
upheld the constitutional validity of various provisions of
POTA, 2002. Several provisions have been incorporated
in the POTA, 2002 to minimise the possibility of its misuse.
Terrorism has immensely affected India. The reason for
the rise of terrorism in India may vary vastly from religious
to geographical to cast to history. The Indian Supreme
Court took the case of Kartar Singh v. State of Punjab2,
and observed that the country has been in the firm grip of
spiraling terrorist violence and is caught between deadly
pangs of disruptive activities of anti-terrorism laws in
India which have always been a subject of much
controversy. One of the arguments is that these laws stand
in the way of fundamental rights of citizens guaranteed
by Part III of the Constitution. The anti- terrorist laws
have been enacted before by the legislature and upheld
by the judiciary though not without reluctance. The
intention was to enact statutes and bring them in force till
the situation improves. This intention was not to make
these drastic measures a permanent feature of law of
the land. But because of continuing terrorist activities the
sta t utes have b een rein t r oduced wi t h r equisi t e
modifications.
The Law Commission of India headed by a former judge
of the Supreme Court recommended in April, 2000 the
adoption of a law designed to deal firmly and effectively
with terrorists and their activities.
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Terrorism in India and Legislation for its Prevention
CRIMINAL JUSTICE REFORM AND TERRORISM
The menace of terrorism is a crime against humanity which
has wounded societies all over the world. The terrorists
have not only threatened the ideals of democracy and
freedom but also caused a serious challenge to the
existence, progress and development of mankind.
In this context I would like to throw some light on the
rec o mme ndation of the Law Co mmis s i on of
Indiaregarding suitable legislation for combating terrorism
and anti-national activities and also the opinion of the
National Human Rights Commission over this subject
along with the recommenda tion of the Malimath
Committee on the reform of the Criminal Justice System.
The Law Commission of India undertook a study of the
sec urity situa t ion for assess i ng the need for
co mprehe n sive ant i -terror i s m law. It t ook into
consideration similar legislations in other countries, held
two seminars on 20th December, 1999 and 29th January,
2000 to elicit opinion on the matter, and it opined that
India requires a permanent anti-terror law and without
any further loss of time.
After the expiry of TADA, the Law Commission was
entrusted with the task of enacting a suitable legislation
for combating terrorism and other anti-national activities.
The Law Commission subsequently recommended
Prevention of Terrorism Bill, 2000 which was a modified
version of TADA. However, subsequently Prevention of
Terrorism Ordinance, 2001 was promulgated by the
President.
The National Human Rights Commission (NHRC)
rejected the draft bill submitted by the Law Commission
and stressed the need for observing and defending
‘national integrity’ and ‘individual dignity’ – both being
the central valves of the Constitution and there was a
need to balance those two3. According to the NHRC –
the problem which the Criminal Justice System in India
faced is related to (a) proper investigation of crimes, (b)
efficient prosecution of criminal trials and (c) the long
days in adjudication and punishment in courts. None of
the problems, however, could be solved by enacting laws
that did away with the safeguards that were designed to
prevent innocent persons from being prosecuted and
punished, or by providing for a more drastic procedure
for prosecution of certain crimes4.
NEED TO STRIKE A BALANCE
Amnesty International, in May 2003, charged that, “the
war on terror, far from making the world a safer place,
has made it more dangerous by curtailing human rights,
undermining the rule of international law and shielding
governments from scrutiny”. Again in its Report 2004, it
said that: “The global security agenda promoted by the
US Administration is bankrupt of vision and bereft of
principle. Violating rights at home, turning a blind eye to
abuses abroad and using pre-emptive military force where
and when it chooses has damaged justice and freedom,
and made the world a more dangerous place.”
“The International Federation for Human Rights (FIDH)
has also criticised the US for the PATRIOT Act and UK
for the Anti-terrorism Act, and said that these laws
constitute “serious violations of the International
Convention on the Elimination of all forms of Racial
Discrimination (ICERD) as they prevent non-nationals
from the full enjoyment of basic human rights”. The Acts
also violate Article 26 of International Covenant on Civil
and Political Rights as they create discrimination on
grounds of national origin.
In India, the government has already repealed POTA and
is in the process of enacting a milder legislation. The
Supreme Court of India in the case lndira Gandhi v.
Raj Narain5 rightly observed that “the major problem of
human society is to combine that degree of liberty without
which law is tyranny with that degree of law without
which liberty become license”.
It would appear that we need to strike a balance between
the security concerns and the human rights considerations.
The regulatory and monitoring mechanism which help
deter, identify, and track terrorists have to be there, but
these should not seriously jeopardise the liberty and
freedom of the citizens. The balance should be such which,
on the one hand, does not fetter the initiative of the
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Volume 5, Issue 2, November 2011 211
security forces, maintains their morale and generally gives
adequate latitude to the government to undertake anti-
terrorist operations and, at the same time, ensures that
the laws of the land are observed and the human rights
are by and large upheld.
SOME EFFECTIVE MEASURES
Terrorism is a complex phenomenon. As it is basically a
result of politico-socio-economic and administrative
malaise, it cannot be cured by military action alone. The
state measures to counter terrorism have, therefore, to
be a mixture of political, social,administrative and military
actions. Fighting terrorism requires taking a series of multi-
pronged measures and strategies on the part of state
authorities and some of them are given below-
First, better governance and law enforcement is the
real need of the hour. It is appreciable that recently
Unlawful Activities (Prevention) Act 1979 has been
amended to incorporate more stringent provisions for
search and arrest of suspected terrorists, filling of
chargesheet, speedy trial in a special court, power of
detention (up to 180 days), public prosecutor’s plea to be
heard before granting bail, and so on. That is police officers
handling such cases have been given more power. Further
creation of National Investigation Agency (NIA) is a step
in the right direction. Moreover, we have to streamline
both the prosecution and criminal justice system in terms
of transparency and accountabili ty on the part of
investigating officers, prosecution officers, on the one
hand, and training for skill-up gradation and sensitisation
of all such officers on the other.
Second, our multiple intelligence machinery needs to
be activated through training and rejuvenated at
different levels and stages in a concerted manner.
During attacks on 26th November (2008) in Mumbai there
was no actionable intelligence, on the one hand and there
was no rigorous screening and follow up of the raw
intelligence available in advance, on the other. In fact,
over the years there has developed inertia primarily due
to lack of fixing responsibility and not taking action, on
available intelligence, to the logical conclusion. Further,
central government and its agencies should share trustable
and actionable intelligence with state governments and
their agencies and vice versa. Undoubtedly, unified
command system is of paramount significance for
effective response to crisis situation. Whereas in the
Mumbai attacks there was lack of this command system
which resulted in the loss of number of lives. Even there
was nocommon spokesperson to brief the media. We
should however, learn from our past in a fruitful way.
Th i rd, the re shoul d be adv anced vigi l ance
apparatuses (like CCTV, checking by metal detectors,
tapping of phones, screening of computer, physical
mo v ement etc) install e d at sensiti v e loca t i ons/
installations. Further more advanced technologies should
be used for communication among law enforcement
agencies. On the other hand, during the crisis situation
anti-terror squads should coordinate more efficiently and
effectively. Mul tiple checking at public places of
importance should be done rigorously and regularly.
Various key players of crisis response system like
seasoned negotiators, expert doctors, trained fire
extinguishers, and anti-terror squads with weapons of
advanced varieties and they should be well trained for
perfect coordination with high level of motivation. In
addition, anti-terrorist squad should have the capability to
disrupt cell phones of terrorists so that they may not be
able to take undue advantage. Further terror attack sites
should be duly protected for collecting evidence to identify
the perpetrators.
Fourth, media should be reasonably restrained from
within and outside because over-exposure about an
incident leads to loss of life of key players of crisis
response system. Moreover, undue media exposure to
action should not be given because it gets radical reaction
from the public. Rather the best course of action is to
rigorously and quietly ensure the arrest and prosecution
of terrorists in accordance with the law of the land
bringing the guilty fast to the book which would be highly
effective and deterrent.
Fifth, there should be a genuine effort not to identify
the individual (or group) terrorist with their religious,
linguistic or ethnic communities. Rather grain should
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Terrorism in India and Legislation for its Prevention
be separated from the chaff at the earliest otherwise the
situation may get communalised and this would serve the
bad intention and ill design of terrorists in creating social
distance and distrust between two communities.
Sixth, it is clear that terrorism also has links with
underdevelopment of a group or community or region
or nation and the bad elements exploit the sentiments
of the poor to join against the injustice as it a weak
link. Therefore, it is required that poverty and inequality
are removed in a transparent manner by giving the people
due opportunity and participation in the economic activities
in a fair manner.
According to N.R. Madhava Menon6, laws, no matter
how harsh they are, cannot by themselves prevent terrorist
attacks. What is important is to implement terrorist related
laws and the level of motivation and competence of
persons so appointed. The problem lies with the
implementation of laws and the abuse of powers
conferred on the authorities under the terrorism related
laws. Popular criticism against these laws has been based
more on the manner in which they are implemented on
any modifications in the laws and procedures. Only if the
Criminal Justice System which is being followed for a
long time is performed with reasonable results, then there
is no need for a special law to deal with terrorist acts,
only good governance can control terrorism.
Prof. Menon has prescribed three distinct functions for
combating terrorism, and these functions are related to
(i) pre-empting and preventing, (ii) containing and
managing and (iii) investigating and prosecuting. There
may be a need for convergence of these functions
effectively. The Constitution will not come in the way of
mounting such an effort with appropriate legislative
support.
I also hold the view that the problem lies with the police,
which is the implementing agency. In September 2006,
the Supreme Court of India issued many directions to
implement unimplemented police reforms recommended
by a number of expert agencies of the government over
the years. The reforms included the sett ing up of
independent State and National Security Commissions,
police establishment boards, police complaint handling
authorities and providing a minimum tenure of heads of
field police officers at all levels, including police chiefs.
The aim of the recommendations was to make the police
and investigative agencies accountable to law and
simultaneously to free them from the control of the
political executive.
CONCLUSION
It is argued that extraordinary laws are a response to
extraordinary situation that emerge primarily because of
the openness and freedom which democracy allows. They
are integral to its functioning and serve important
restorative, curative and corrective purposes. There is
also a growing international consensus to combat terrorism.
There are existing international treaties and anti terrorist
provisions under the United Nation but these remain
ineffective as most of the governments go by their own
self interest which they are not willing to compromise.
I think there is a need for stringent provisions for the
prevention of terrorism. In a country like India if a law
regarding terrorism is enacted it should be made so
stringent that the culprit is brought to book and does not
go scot-free just because of loopholes or lacunas in the
ordinary law. Also, we need to consider that our
neighbouring nation Pakistan which is the cause of
perpetrating terrorism in India has also enacted stringent
laws something which India also need to follow diligently.
The most important change brought about recently is the
establishment of the National Investigation Agency Act
(NIA), 2008 as the first step towards effective handling
of terrorism related offences. Combating terrorism is a
joint responsibility of central, state and local governments.
This Act envisages centre- state partnership in the
investigation of terrorist cases.
Furthermore, recently the Home Minister of India pointing
to the thr eat of terr orism has announced for the
establishment of National Counter Terrorism Centre
(NCTC) modelling US NCTC for systemic change in
intelligence processing and functioning of different
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Volume 5, Issue 2, November 2011 213
agencies. This move also aims to integrate security
operations and bring down departmental firewalls. The
multi-agency centres like IB, RAW. NTRO, JIC, NCRB,
NIA or NSG being its terror related intelligence functioning
will eventually be included into the NCTC. This is no
doubt an important step to deal with all kinds of terrorist
violence7.
Hence, Kofi Annan, former-secretary general of the
UNO rightly remarked that “Respect for human rights,
fundamental freedom and the rule of law are the essential
tools in the effort to combat terrorism.”
END NOTES
1. 2004 (9) SCC 580 .
2. [1994] 3 SCC 569.
3. Annual Report of the NHRC 2002-2003.
4. Annual report of NHRC, 2001 – 2002.
5. AIR 1975 SC 2299.
6. Menon Madhava, N.R, (12.01.2009) Combating terrorism, and some management issues, The Hindu.
7. The Times of India, dated 25.12.2009.
