Introduction:
“The freedom of individual must take second place to the security of the state.”
Terrorism has emerged as a significant threat to global peace and, particularly, to India’s national security. This menace, whether executed by individuals, groups, or state actors, constitutes a grave crime against humanity, inflicting profound harm on societies worldwide. Terrorists not only undermine the ideals of democracy and freedom but also pose a substantial challenge to the very existence, progress, and development of mankind.
The advent of modern technology has further compounded the issue, providing terrorist groups with access to highly sophisticated weaponry. Across the globe, numerous terrorist organizations operate independently, alongside various international terrorist entities. The alarming rise in terrorist attacks in recent years underscores a pressing concern for the international community.
What is terrorism?
“Terrorism is widely regarded as one of the most abhorrent activities in the world. The term originates from the French word Terrorisme, which traces back to the Latin verb “terrere” meaning ‘to cause to tremble’. During the French Revolution, the Jacobins invoked this concept while implementing a Reign of Terror. Subsequently, after losing power, the term ‘terrorist’ evolved into a pejorative.
In contemporary contexts, ‘terrorism’ generally denotes the deliberate targeting of innocent civilians by non-state groups, often designed to generate widespread fear and attract media attention. A November 2004 report from the United Nations Security Council defines terrorism as any action ‘intended to cause death or serious bodily harm to civilians or non-combatants, with the aim of intimidating a population or compelling a government or international organization to act or refrain from acting.’ Many countries legally distinguish acts of terrorism from other criminal activities, enshrining specific definitions of ‘terrorism’ in their statutes.”
History of terrorism in India:
Terrorism in India predates its independence in 1947, with early activities aimed at instilling fear among British rulers rather than targeting the general population. Consequently, those involved in the freedom struggle are not typically labeled as terrorists. However, since independence, terrorism has increasingly targeted innocent civilians. Initially, regions like Kashmir, Punjab, and the North East Frontier were affected. Today, terrorism has expanded its reach, notably in Jammu and Kashmir, Mumbai, Central India (Naxalism), and the Seven Sister States, where movements for independence and autonomy persist.
Religious terrorism is a significant facet of terrorism in India, where groups or individuals are motivated by religious ideologies. Throughout history, terrorist acts have been perpetrated in the name of religious beliefs, aiming to impose or propagate specific beliefs. In India, terrorism is associated with Islamic, Hindu, Sikh, Christian, and Naxalite radical movements. Both domestic and external terrorism activities have been on the rise in recent times in India.
Causes of Terrorism:
- Political causes: In Assam and Tripura, government failures to manage illegal immigration from Bangladesh and meet economic demands for local residents have fueled unrest.
- Economic causes: States like Andhra Pradesh, Madhya Pradesh, Chhattisgarh, Orissa, Bihar, and West Bengal experience terrorism due to issues like lack of land reforms, rural unemployment, and exploitation of laborers, fostering Maoist groups.
- Ethnic causes: Northeastern states like Nagaland, Mizoram, and Manipur see terrorism rooted in ethnic separateness, leading to groups such as ULFA.
- Religious causes: Punjab saw Sikh terrorism before 1995, with grievances of neglect in Indian society leading to violence. In Jammu and Kashmir since 1989, Muslim groups like Hizbul Mujahideen seek religious or separatist goals, fueled by perceptions of governmental neglect or external influences from Pakistan.
Anti-Terrorism laws in India:
- Prevention of Terrorism Act, 2002 (POTA):
In response to escalating cross-border terrorism and the ongoing efforts by Pakistan’s ISI to destabilize India, and influenced by post-September 11 developments, the Prevention of Terrorism Act, 2002 (POTA, 2002) was enacted and came into effect on March 28, 2002.
POTA, 2002 clearly defines terrorist acts and individuals involved in Section 3, granting special investigative powers to authorities. The constitutional validity of POTA, 2002 was upheld in the case of People’s Union for Civil Liberties Vs. Union of India (2004) 9 SCC 580. The court acknowledged Parliament’s authority under Article 248 and entry 97 of List I of the Seventh Schedule of the Indian Constitution to enact such legislation, affirming that the necessity for the Act is a matter of policy beyond judicial scrutiny. To prevent misuse and ensure protection of human rights, the Act incorporates specific safeguards.
The Prevention of Terrorism Act, 2002 includes provisions for penalizing any official who exercises authority with malicious intent. It also allows for compensation to individuals wrongly targeted under corrupt or malicious circumstances.
POTA, 2002 is a specialized legislation designed to prevent and address terrorist activities, clearly defining such acts and individuals in Section 3, Sub-Section (1). It provides a legal framework to empower the administration in combating terrorism and should be applied specifically to cases falling within its provisions. Importantly, it is not intended to replace action under regular criminal laws.
- Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA):
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which became effective on September 3, 1987, was more stringent than the current Unlawful Activities (Prevention) Act (UAPA) and specifically aimed at addressing terrorist activities in India. TADA faced constitutional challenges and was upheld by the Supreme Court of India in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569, under the assumption that those wielding its extensive powers would act in good faith for the public good.
However, TADA was frequently misused for ulterior motives, prompting criticism. The Act lapsed in 1995. Another significant anti-terror law in India is the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), enforced on April 24, 1999. This legislation targeted organized crime in Maharashtra, particularly in Mumbai’s underworld. Unlike POTA, MCOCA’s definition of terrorist acts is broader, encompassing organized crime and even insurgency promotion. Unlike POTA, which required the prosecution to prove guilt, MCOCA presumes guilt unless the accused can prove innocence. Unlike POTA, MCOCA does not specify prosecution for police officers found misusing its provisions.
- The Unlawful Activities (Prevention) Act 1967 (UAPA):
The Unlawful Activities (Prevention) Act (UAPA) was crafted to address associations and activities that posed a threat to India’s territorial integrity. During its parliamentary debate, leaders from various political parties insisted on limiting its scope to ensure the right to association remained intact and to prevent executive overreach into political parties. Thus, the Act strictly focuses on countering challenges to India’s territorial integrity. It serves as a comprehensive set of provisions for declaring secessionist associations unlawful, involving tribunal adjudication, regulating funds and premises of unlawful associations, and imposing penalties on their members. The Act operates entirely within the constitutional framework, falling under the central list in the Seventh Schedule of the Constitution.
Conclusion:
Civilization relies heavily on Criminal Law, which serves as the fundamental legal framework in every society. Its primary role is to uphold security and stability, aiming ultimately for a crime-free society. Criminal law, particularly in handling terrorism, requires robust content and implementation due to the severe social consequences involved. Effective anti-terrorism laws are crucial in India to prevent attacks, ensuring perpetrators are held accountable without exploiting legal loopholes. India, like its neighbor Pakistan, has enacted stringent laws to combat terrorism, exemplified by the establishment of the National Investigation Agency (NIA) in 2008. Cooperation between central, state, and local authorities is essential in this effort, highlighted by initiatives such as the proposed National Counter Terrorism Centre (NCTC). Kofi Annan rightly emphasized that respecting human rights, fundamental freedoms, and the rule of law is crucial in the global fight against terrorism.
~Arisha Qureshi (Legal Intern)