Law of Terrorism Vis-a-Vis Terrorism of Law
“An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
__Thomas Paine (On First Principles of Government, 1795)
It is always necessary for the rulers in a democratic country to be reminded of the words of American Jurist Schaefer that “[T]he quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law”( Federalism and State Criminal Procedure, as reproduced in Nandini Satpathy v. P.L. Dani :1978 Cri LJ 968). The administration of criminal law, unlike the personal laws, makes its impact directly and profusely on the society and thereby it marks its reflection on the civilization of the nation. Internationally the law of terrorism is a developing subject of law. Parallel to its development, its misuse also has been in the limelight for long. Of the situation in England, Geoffrey Robertson observed that the fair trial for terrorists is an oxymoronic, but in India, at times, fair investigation is an oxymoron to those, who are termed as terrorist.
The pandect providing for terrorism in India is, now, a part of the Unlawful Activities (Prevention) Act, 1967 (the UA (P) Act). The UA (P) Act was originally enacted for the purpose of imposing reasonable restrictions on exercise of the rights enshrined under Article 19 (1) of the Constitution of India, in the interest of sovereignty and integrity of India. Article 19 (2) (3) & (4) of the Constitution gives power to the State to make any law for imposing reasonable restrictions on exercising the rights conferred by Article 19 (1) of the Constitution. The scope of making the law for imposing reasonable restrictions in the interest of sovereignty and integrity of India has been provided, inter alia, by the Constitution (Sixteenth) Amendment Act, 1963.
The subject of terrorism was dealt earlier by the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA), which prevailed between 1985 and 1995 and Prevention of Terrorism Act, 2002 (POTA). Only less than two per cent of the accused charge-sheeted under TADA were convicted, the rest of them were either discharged or acquitted. TADA was not fructified even in Rajiv Gandhi assassination case. This case was, perhaps the longest heard criminal appeal, (till then), in our country, as endorsed by Justice K. T. Thomas. All the accused, who were found guilty for various offences under TADA by the trial court, were absolved from the clutches of TADA by the judgement of the Supreme Court.But for finding that they deserved capital punishment the backing of terror law was not required.
Both the TADA and POTA were tested on the anvil of Constitution, but the present law has not been put to such a scrutiny so far. Before the incorporation of subject of terrorism in the UA (P) Act, the question of Legislative competency of the Parliament, inter alia, for the enactment of the Act has come up before the Full Bench of the Patna High Court in Ahmad Ali Akhtar and Anr. vs. Union of India (UOI) and Another and it was held that the Union only have the power to enact the Act holding that it is not a law relating to "public order" but it is a law relating to "sovereignty and integrity of India", even if it may incidentally affect 'public order".
2. Terrorism Under TADA and POTA
The definition of terrorism under TADA and POTA was slightly different from the definition given in UA (P) Act. Under TADA and POTA mainly the offences against the secure nature of the State and striking of terror in the people or any section of the people was defined as act of terrorism.
3. Improvements in UA (P) Act
The UA (P) Act has brought out many changes in the law of terrorism. Section 15 of UA (P) Act defines the act of terrorism. The former laws did not contemplate the damage or destruction of property used in connection with the defence of India in a foreign country or striking terror in the people in a foreign country. Another change is related to the insertion of provision regarding the monetary security of the nation and the next is about compelling any foreign country or any international or intergovernmental organisation by the offender to do or abstain from doing any thing. Additions include the inclusion of the treaties specified in the Second Schedule within definition of terrorism. Actual threat to the sovereignty, integrity, security, unity or economic security of the nation or actual striking of terror in the people is not necessary, but the likeliness of such threat is suffice to constitute the offence.
4. Definition of Terrorism
Even though the menace of terrorism has the history of the humankind itself, there is no unanimity among the jurists and Courts in arriving at a definitive definition of it. The decided cases also are inadequate to assimilate the real meaning of the subject as the cases are of different situations. Hence, the Supreme Court said, it is not possible to define 'terrorism' by precise words. Whether the act was committed with intent to strike terror in the people or a section of the people would depend upon the facts of each case.
Dr. A. S. Anand, J, (as then he was) in Hitendra Vishnu Thakur and Others etc. vs. State of Maharashtra and Others, said:-
What distinguishes 'terrorism' from other forms of violence, therefore, appears to be the deliberate and systematic use of coercive intimidation. More often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of "terrorism", aims to achieve for himself acceptability and respectability in the society because unfortunately in the States effected by militancy, a 'terrorist' is projected as a hero by his group and often even by the misguided youth. 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. Even though the crime committed by a 'terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every 'terrorist' may be a criminal but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA.
5. Only When the Ordinary Laws Fail
The Apex Court observed that only in those cases, where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the special Act. While invoking a special criminal statute, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging there from, prima facie, constitute an offence within the letter of the law.
In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity.
6. Identifying Terrorism
As the offence of terrorism, as defined in Section 2 (1) (k) r/w Section 15 is very wide, it is not simple to differentiate the ordinary offences, which can be addressed by the ordinary laws and the offences which require the assistance of special laws. The Statement of Object and Reasons of TADA, 1985 throws light to identify the real purport of the Special Acts which intents to resolve the special issue. The Statement runs as follows:-
Prefatory Note - Statement of Objects and Reasons.-
Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh. Since the 10th May, 1985, the terrorists have expanded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern.
From the above, it is clear that only those offences which are very serious in nature capable of undermining the basic framework of the society or offences those affect the security of the nation, different from other serious offences emerging either from personal animosity or out of monitory interest, are the concern of this special enactment.
Some of the guiding principles to identify the act of terrorism, as laid down by the Supreme Court, are as hereunder.
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 fall out 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. Experience has shown us that "terrorism" is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon.
A crime even if perpetrated with extreme brutality may not constitute 'terrorist activity' within the meaning of Section 3(1) of TADA. For constituting 'terrorist activity' under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in said Section 3(1). Terrorist Activity is not confined to unlawful activity or crime committed against individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity , social and communal harmony, disturbing or destabilizing public administration and threatening security and integrity of the country.
The High Court of Kerala, in Vikraman vs. State of Kerala and Ors. has observed that the definition of terrorist act under the UA (P) Act in fact gives wider scope to bring in different situations of such activities under the definition of terrorist act as even the likelihood of causing terror in the people or any section of the people by using bombs, dynamite, or explosive substances, or inflammable substances, or firearms or other lethal weapons or poisonous, or noxious gases or other chemicals, or any other substance of a hazardous nature will constitute a terrorist activity defined under Section 15. Such a wider definition bringing in even likelihood of causing terror in the mind of the people by using bombs etc. was not there in Section 3 of the repealed TADA.
Common features of TADA, POTA and the UA (P) Act are that the offence of terrorism is committed when any person does any act against the secure nature of the nation with such an intention or with intention to strike terror in the people or any section of the people, with the use of certain specified arms. So, the intention of the accused is the prime factor to constitute an offence under all of these Acts. Though the scope and amplitude of the UA (P) Act is wider than the earlier Acts the underlying mens rea has no change. The likeliness of the creating terror must also be happened when the act of the offender is backed by the intention to strike terror in the people.
7. Misuse of the Law of Terrorism
The misuse of laws of terrorism in India has been an instrument in the hands of the police-both State police and Pan-India level Investigation Agencies-for violation of human rights. It has been held, therefore, that, if human rights are violated in the process of combating terrorism, it will be self-defeating.
The question of Constitutional validity of TADA was decided on 11.03.1994, and the Supreme Court has directed to form Review Committees for the scrutiny of cases registered under TADA. Several Committees under the high echelons were formed and many a case was examined. By then, the history marked the extensive damage. As on 30, June, 1994, persons arrested were 76166 under TADA, discharged were 18708, acquitted were 19543, convicted were 843, and the conviction rate was 1.11 percentages. People languished even after the lapse of TADA are extra.
The main use of new law, POTA, was also not different.
The Hindu dated July 16, 2004 reported:
Eminent lawyer Ram Jethmalani said today (on 15, July, 2004, while releasing Peoples’ Tribunal Report.) that his support for the Prevention of Terrorism Act (POTA) was an "important mistake'' made by him. He called it a terrifying Act that must be repealed, lock stock and barrel….."I was a very harsh critic of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and when I was a member of the Rajya Sabha, I made a compassionate appeal to repeal it. But all the arguments I made to discontinue TADA can apply to POTA. I am glad that I have got this opportunity to publicly apologise for supporting POTA,'' …."I did support the enactment of the Act, but I now realise it was a serious mistake. I did not realise that such draconian power should not be given to the investigating agencies and police. This power has been misused and very badly, so much so that the debits balance of the Act overwhelms its advantages. I am glad the new Government is bound by its manifesto to repeal the Act and I believe it shall be fulfilled soon,” he said.
Wide misuse of POTA led the State to repeal the Act. The statement and objects of the Prevention of Terrorism (Repeal) Act, 2004 says that “There have been allegations of gross misuse of the provisions of the Act by some State Governments. Views have been expressed that provisions of the Act were misused in cases where they should not have been invoked. It has also been observed in various quarters that the Act has, failed to serve its intended purpose and as a result, there have been persistent demands that this Act should be repealed.”
8. UA (P) Act, an Act Highly Susceptible for Misuse.
Merely for the reason that the former laws on terrorism were repealed for its wide misuse, we cannot conclude that the present law is not misused. In fact, the UA (P) Act is more prone to misuse. Section 43D of the Act makes a complete fetter on the Court on the release of the accused on bail, provided the accusation against the accused is prima facie true. This is the slot of the provision where the investigating agency and the political vengeance chasers play. At the ipse dixit of the investigating officer any ordinary incident can be brought into realm of terror law at present. Only an assertion that the aim of the accused was to strike terror in the people will suit. The police are unmindful of the fact whether such incorporation would stand till the finality of the case. But this is not the intention of the Legislature. Only those cases where really the accused intended to give a message of threat to the common people, who are not directly involved or aimed at by the offender in the execution of the offence, would come under the purview of the terror law. The common experience shows that the scope of getting justice from the court does not happen at once, it takes time. Hence, firstly, it is the duty of the investigating agencies to identify such cases because they are considered to be the guards of the rights of the citizens, then only the duty of the Courts arises. Here, the words of the High Court of Madras are worth noting:
The investigating Police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication such as that proved in this case. The object of such false implication is most unfortunately to wreak vengeance on enemies by prostituting the machinery of the criminal law to this end(In Re: Muddamma Malla Reddi and Ors).
To find out the areas where the UA (P) Act is misused cases of TADA and POTA are of useful examples. In S.K. Shukla’s case the Supreme Court said that the use of the Act (TADA)for personal benefit of the political parties has to be condemned in no uncertain terms. This Act cannot be used for the political ends; it is meant for the benefit of the nation so that the terrorist activities do not disturb the sovereignty or integrity of the nation.
The Supreme Court, in Hitendra Vishnu Thakur, with respect to the duty of the investigating officers and the Designated Courts, while dealing with the cases of terrorism, emphasised as under:-
The stringent provisions of the Act coupled with the enhanced punishment prescribed for the offences under the Act make the task of the Designated Court even more onerous, because the graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act before a charge is framed against an accused person. Where the Designated Court without as much as even finding a prima facie case on the basis of the material on the record, proceeds to charge-sheet an accused under any of the provisions of TADA, merely on the statement of the investigating agency, it acts merely as a post office of the investigating agency and does more harm to meet the challenge arising out of the `terrorist' activities rather than deterring terrorist activities. The remedy in such cases would be worse than the disease itself and the charge against the State of misusing the provisions of TADA would gain acceptability, which would be bad both for the criminal and the society. Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material collected by it during the investigation, and not merely by the opinion formed by the investigating agency, that the activity of the `terrorist' falls strictly within the parameters of the provisions of TADA before seeking to charge-sheet an accused under TADA.
In Pulin Das @ Panna Koch vs. State of Assam, it was observed by the Supreme Court that, of late, the Court have come across some cases where the Designated Courts have charge-sheeted and/or convicted an accused person under TADA even though there were not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA. The cases were charge sheeted for terrorism merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA.
The Supreme Court, in Pulin Das’scase had made a note of caution to the Designated Courts regarding invoking the provisions of TADA that merely because the investigating officer at some stage of the investigation chooses to add an offence under some provisions of TADA against an accused person, more often than not while opposing grant of bail, anticipatory or otherwise. The Court emphasized that Designated Courts should always consider carefully the material available on the record and apply their minds to see whether the provisions of TADA are, even prima facie, attracted.
In Mohd.Zahid vs. The Govt. of NCT of Delhi, a case in which the father of the accused had sent telegrams to the several officers immediately after the illegal arrest of the accused, the Supreme Court had called for the Daily Diary book from the police station concerned and found that the police version of arrest was false as there were many interpolations were made to suit the case of the prosecution, and the Court had awarded a compensation of Rs 50,000/- and further ordered enquiry under section 340 of the Cr PC into the commission of offences under sections 193, 195 and 211 I.P.C against the responsible police officer.
In Adambhai Sulemanbhai Ajmeri and Ors. vs. State of Gujarat, the Supreme Court after acquitting all the accused, after more than a decade of their incarceration, including the convict, who did not prefer any appeal, stated that the Court was intending to absolve him of the stigma he was carrying of that of a convict, wrongly held guilty of offences of terror so that he is able to return to his family and society, free from any suspicion. The Court further held that:
Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.
In Asifali alias Montu Badeali Saiyed vs. State of Gujarat, the Supreme Court expressed its dissatisfaction in incorporating the provisions of TADA in the case in which the allegation against the accused was that he has instigated other accused to escape from police custody with a view to spread terrorism.
In Mohd. Iqbal @ Mustaq @ Faisal vs. State, wherein, while releasing the accused after having them completed imprisonment of more than 7 years, the High Court of Delhi has expressed its discontent over the callous manner of the police investigation and said:
Yet, the Court is equally mindful that all that the prosecution has achieved in this case is to put out a case of picking up of the accused, based on a tip off, by a raiding party led by an inspector, whose statement was not even recorded. The several serious improbabilities which critically and fatally undermine the prosecution story are the complete lack of support by public witnesses; the dubiousness of the public witnesses themselves (their addresses are vague); the suspicious omissions in not investigating the alleged receivers of the explosive, or the omission to take the accused to Deoband, to arrest suppliers of the explosives; the complete lack of any explanation why the identity of Mohammed Iqbal, as Faisal, a terrorist, was not probed; no proof that he was part of any Pakistan based terrorist outfit; no identification in that regard and on the other hand, the police's glaring omission to verify the authenticity of documents produced by him, to say that he was a bona fide Kashmir based businessman, who held accounts, from which monies had been withdrawn, etc. The improbability of spot investigation taking over eight hours, during which no arrest was made, and the assertion of some of the prosecution witnesses, that the arrests were made around midnight, at the spot, and other not so significant discrepancies, which taken in isolation would be inconsequential, but which seen in the background of these contradictions and omissions, cumulatively undermine the prosecution case, inject grave doubts. The Trial Court's reasoning in proceeding to ignore the deposition of public witnesses, and give complete credence to the deposition of official witnesses too, is unsustainable.
In Ameen Wani vs. State, the High Court of Delhi has held that, the case setup by the prosecution has caused unacceptable prejudice to the defence and the accused were vitally affected, andthe principles of a fair trial was overlooked as the prosecution has failed to adduce evidence of alleged occurrence of fire in the malkhana of the police station, which according to them, had destroyed the case properties, and thus they were unable to produce the same. The Court also held that the right of defence to question the fire as a cover up and camouflage cannot be muffled and stifled, on the ground that the cause of fire, etc. was a subject matter of another FIR, with which the accused were not concerned.
The note of caution given by the Supreme Court in Pulin Das’s case, as of now, is applicable while invoking provisions of UA (P) Act being the present law on terrorism.
I am herewith sharing some of my views on the law of terrorism not in respect of any political situation or in view of any particular case,but for the reason that we have to be vigilant about the fact that there are many areas where the long standing psychology of the police is still working in the field of implementation of criminal law. That is to say, they make use of the situation, in many a case, not for the advancement of the justice delivery system but to see merely that they don’t fail in the legal battle. Implementation of criminal law is not for gaining victory and to hold any trophy, it is for the advancement of civilization.
Even though there is strong presumption of the Constitutionality for every enactment, there are observations by the Constitutional Courts of the poor drafting or imperfect and imprecise words used in the enactments. For instance, the Constitution Bench of the Supreme Court headed by Y.V. Chandrachud, C.J, observed in A.K. Roy and Ors. vs. Union of India (UOI) and Ors(a case under National Security Act).:-
In criminal law, the legislature frequently uses vague expressions like 'bring into hatred or contempt', 'maintenance of harmony between different religious groups' or 'likely to cause disharmony or hatred or ill-will', or 'annoyance to the public', (see Sections 124A, 153A(1)(b), 153B(1)(c), and 268 of the Penal Code). These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language……
…….We see that the concepts aforesaid, namely, 'defence of India", 'security of India', 'security of the State' and 'relations of India with foreign powers', which are mentioned in Section 3 of the Act, are not of any great certainty or definiteness. But in the very nature of things they are difficult to define. We cannot therefore strike down these provisions of Section 3 of the Act on the ground of their vagueness and uncertainty. We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concept a narrower construction than what the literal words suggest. While construing laws of preventive detention like the National Security Act, care must be taken to restrict their application to as few situations as possible.
Therefore it is clear that though the words used in a statute is capable enough to stretch to any extent, it is for the law enforcement agency to use it for the exact purpose and to do complete justice to the intention of the Legislature. For the simple reason that as per the present definition attached to Section 15 of the UA (P) Act that the likelihood of striking terror in the people also form part of terrorism, every act of criminal activity cannot be stretched into the realm of terrorism. If the general law is enough to deal a particular incident, it is that law to be invoked. Of course, the menace of terrorism has to be defeated red in tooth and claw. But that doesn’t mean every act of violence to be brought into the field of terrorism. To achieve the real goal the UA (P) Act envisages the special provision has to be invoked only to the genuine terror cases; otherwise it will be doing injustice to the law itself. The awareness about the real purport of the law has to be improved among the investigating agencies. They must act judiciously without prejudice.
“Education is an admirable thing, but it is well to remember from
time to time that nothing that is worth knowing can be taught.”
---- Oscar Wilde (The Critic as Artist)
The writer has worked with National Investigation Agency as Public Prosecutor for four years. This article is a pericope from his book ‘Counter-Terrorism Laws in India-A Detailed Commentary on the UA (P) Act’, to be published shortly.