Introduction
The Bharatiya Nyaya Sanhita (BNS) 2024, which replaced the Indian Penal Code, 1860, has introduced a comprehensive definition of terrorism under Section 113, marking a significant shift in India’s criminal jurisprudence. This legislative reform raises critical constitutional questions about the balance between national security imperatives and fundamental rights protection, particularly in the context of Article 19 (freedom of speech and expression) and Article 21 (right to life and personal liberty).
Terrorism Under BNS 2024: Legislative Framework
Section 113 of BNS defines terrorism as acts that threaten the unity, integrity, security, or economic security of India, or strike terror in the people or any section thereof. The definition encompasses acts intended to compel the government or intimidate the public through violence or threat of violence. This broad formulation represents a departure from the earlier approach where terrorism was primarily addressed through special legislation like the Unlawful Activities (Prevention) Act (UAPA).
The inclusion of “economic security” as a protected interest expands the scope significantly, potentially covering cyber-attacks on financial institutions, disruption of essential services, or large-scale economic sabotage. This expansion reflects contemporary security challenges but raises concerns about definitional vagueness and potential misuse.
Constitutional Validity: Fundamental Rights Analysis
Article 19 and Freedom of Expression
The terrorism definition’s breadth poses challenges to Article 19(1)(a) guarantees. The phrase “strike terror in people” could potentially criminalize legitimate dissent, protest, or criticism that causes public unrest. The Supreme Court’s established principle in Shreya Singhal v. Union of India regarding the chilling effect on free speech becomes relevant here.
The constitutional test requires that restrictions on fundamental rights must be reasonable and proportionate. The terrorism definition must satisfy the “clear and present danger” test established in constitutional jurisprudence. Mere advocacy of violence without imminent lawless action cannot constitute terrorism under constitutional standards.
Article 21 and Due Process
The expanded terrorism definition impacts Article 21 rights through enhanced police powers and procedural modifications. The BNS provisions must comply with procedural due process requirements, ensuring fair trial guarantees are not compromised in terrorism cases. The constitutional mandate of “procedure established by law” as interpreted in Maneka Gandhi v. Union of India requires that such procedures be fair, just, and reasonable.
Definitional Challenges and Constitutional Concerns
Vagueness Doctrine
Constitutional law requires criminal provisions to be precise and unambiguous. The terrorism definition’s use of terms like “economic security” and “strike terror” may fail the vagueness test established in Kartar Singh v. State of Punjab. Vague definitions violate Article 14 (equality before law) as they provide arbitrary discretion to enforcement agencies.
Proportionality Principle
The constitutional principle of proportionality requires that restrictions on fundamental rights be commensurate with the legitimate state interest. The terrorism definition must undergo proportionality analysis: (1) legitimate aim, (2) rational connection, (3) minimal impairment, and (4) proportionate balance between rights and security objectives.
Comparative Constitutional Analysis
The BNS definition aligns with international counter-terrorism frameworks while attempting to address India’s specific security challenges. However, constitutional courts globally have emphasized that terrorism legislation must maintain strict adherence to rule of law principles. The European Court of Human Rights and the U.S. Supreme Court have consistently held that security measures cannot completely override fundamental rights.
Judicial Safeguards and Constitutional Protection
Judicial Review Mechanism
The Supreme Court’s power of judicial review under Articles 32 and 226 provides essential constitutional protection against potential misuse. Courts must scrutinize terrorism charges under the BNS to ensure they meet constitutional standards and don’t criminalize legitimate political activity or dissent.
Procedural Safeguards
Constitutional due process requires enhanced procedural protections in terrorism cases. These include adequate legal representation, prompt judicial review of detention, and protection against coercive interrogation. The BNS must be implemented with strict adherence to these constitutional safeguards.
Enforcement Challenges and Constitutional Balance
The practical implementation of terrorism provisions under BNS requires careful constitutional balancing. Law enforcement agencies must receive training on constitutional limitations and the distinction between legitimate security concerns and fundamental rights violations. The definition’s enforcement must avoid targeting vulnerable communities or suppressing legitimate political opposition.
Recommendations for Constitutional Compliance
Definitional Clarity
The terrorism definition requires judicial clarification through authoritative pronouncements to ensure constitutional compliance. Courts should develop clear guidelines distinguishing between terrorism and other forms of violence or civil disorder.
Oversight Mechanisms
Constitutional governance demands robust oversight mechanisms to prevent abuse of terrorism provisions. Independent review bodies and parliamentary oversight can ensure that the expanded definition serves legitimate security purposes without undermining democratic values.
Rights-Based Approach
Implementation of BNS terrorism provisions must adopt a rights-based approach, ensuring that security measures strengthen rather than undermine constitutional democracy. This requires balancing collective security with individual liberty, maintaining the constitutional framework’s essential features.
Conclusion
The terrorism definition in BNS 2024 represents a significant constitutional development that requires careful judicial scrutiny and legislative oversight. While national security remains a legitimate state interest, the expanded definition must operate within constitutional boundaries that protect fundamental rights. The ultimate test lies in ensuring that counter-terrorism measures strengthen constitutional democracy rather than erode its foundations.
The constitutional validity of BNS terrorism provisions will likely be determined through judicial interpretation and practical implementation. Courts must remain vigilant in protecting fundamental rights while recognizing legitimate security concerns. The success of this legislative reform depends on maintaining the delicate constitutional balance between security and liberty that defines India’s democratic framework.
As India’s constitutional jurisprudence continues to evolve, the terrorism definition under BNS 2024 will serve as a crucial test of the judiciary’s commitment to protecting fundamental rights while addressing contemporary security challenges. The constitutional framework provides adequate tools for this balancing act, but their effective utilization requires judicial wisdom, legislative responsibility, and executive restraint in implementing these expanded powers.
By- Bhavika Samtani (Intern)