Introduction: It has often been argued in the popular discourse that laws are only objective and rational till the time they are not misused by unscrupulous police and prosecutors for the purpose of instrumentalizing prejudice. However, the definition of terrorism is fluid owing to time, place and context. India has often witnessed violence across different territories due to either separatist sentiments or exertion of autonomy in regions like the Northeast and Jammu and Kashmir. The politicised violence across the country has spurred the need for national security. As the legacy of repressive colonial laws continued, the first amendment adopted a year after the constitution invoked the essence of maintaining public order. This brought with it restrictions on free speech, corroding the constitutional promise of fundamental rights to citizens.
Evolution of Anti Terrorism Laws: Both TADA and POTA have received challenges in the Supreme Court. It is important to note that TADA existed before the UAPA was transformed not only into an act punishing unlawful activities but terrorist ones. TADA departed dramatically from the principle of procedural fairness by allowing for admission of confessions made before police officers . More importantly, the validity of TADA was upheld by the supreme court in Kartar Singh vs. State of Punjab. The court also upheld the parliament’s legislative competence to legislate upon terrorism since it is a matter pertaining to the “Defence of India” and not “public order” and “law and order”. Use of military came as a reflex to any challenge to the conventional political patterns. The anti terrorism laws in India have perpetually been revised and repealed since the pre independence era . The British passed a number of laws to quell dissent and political revolutions hence formulation of anti-terrorism legislation dates back to the British era. In order to create a specialized organization that looks into and prosecutes terrorism related offences across the country, NIA was formed. The NIA act aims to improve the legal foundation and law enforcement agency coordination against in the fight against terrorism.
Amendment to UAPA:To address new issues in the battle against terrorism, the Indian government over the years amended the UAPA and other laws. The amended UAPA made substantive changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organization’ from the repealed POTA , and also introduced the concept of a ‘terrorist gang’. It was seen that many provisions from POTA were being duplicated in the UAPA. It is crucial to note that post Mumbai terror attacks, the most draconian provisions of the TADA and POTA were implemented which discarded the constitutional rights of presumption of innocence and right to a fair trial. Importantly, the 2008 amendment broadened the definition of the term ‘terrorist act’; under section 43 A they could arrest anyone unless there was proper evidence to prove otherwise, it extended the pre-charge detention to 180 days, then it further gave the courts the right to reject bail if the court sees any evidence as ‘prima facie’ true and under section 51 A of the bill the government has the right to freeze and seize the funds of the accused.
Conclusion: The nation’s continuous fight or struggle to strike a balance between freedom of expression and national security is illustrated through the historical evolution of anti-terrorism laws of India. On a number of occasions, the Indian courts have clarified that, mere commission of a crime under what constitutes a terrorist act will not be suffice to convict the accused, until it was also establishd that the act was committed with a requisite intention. However, in Indira Das V State of Assam it was upheld by the honourble Supreme Court that section 20 of the UAPA was inconsistent with the principles of democracy and fundamental rights. This demonstrates that the nation continues to witness the conflict of interest between preserving fundamental rights and protecting national security.
Contributed By Ahaana Kashyap (Intern)