Anti Terrorism Laws: Distinguishing Myth And Reality
It was the 26th day of November in the anno domini year 2008. The whole city of Mumbai was yelling out for help when a part of it was blazing after the severe terror attacks and the holler of the victims were far more fearful than the cries in hell. And the rest of the world was busy having a look at the whole catastrophe via media. Subsequent to that we came to know that the government of India had passed a new legislation, Unlawful Activities (Prevention) Amendment Act, 2008. With this amendment the monstrous POTA came back to life- the reincarnation of POTA!
In the general parlance, this shameful act of Mumbai attack is termed as an act of “terrorism”. Surprisingly, there is no concrete definition of “terrorism”. After every disastrous event, attempts are made to define what terrorism, in fact, is and what its constituents are, and eventually the acts are labeled as terrorist activities.
The origin of the term “terrorism” can be traced back to 1975 when it was used to describe the actions of the Jacobin Club, in their rule of post- Revolutionary France, the so- called “Reign of Terror”. As the rumour is, it were the Jacobins who had coined the term “terrorist” to refer to themselves. And as the fact is, the term originates from the French word “terrorisme”, based on the Latin verb “tremble” which means “to cause to tremble”. The US definition as per the Federal Bureau of Investigation is “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The definition of terrorism as given by the Webster dictionary is, “the systematic use of terror especially as means of coercion. With this definition, it can be stated that terror act is any or every act which causes fear and it may even include acts of unlawful violence and war. There is an old axiom that “one man’s terrorist is another man’s freedom fighter.”
Terrorists can be envisaged as a particular portion of the society, segregated from the rest, the ones who are notoriously known for adopting violent and lethal ways for getting their demands satisfied. Anti- terrorism laws are the directives set for them so that their act can be in consonance with the rest of the world.
The concept of terrorism is no new, only with certain changes in its perception in accordance with the technological advancements of the time. Even our ancestors were familiar with it. What more exalted title, than “terrorist”, would have been used to adorn the barbaric Changhez Khan and Timor with, had they been part of our contemporary society? There were no provisions of anti- terrorism laws in those antediluvian days. But today we have facilitated ourselves with such laws to curb the tumor of any more Changhez Khans and Timors. And yet we remain unanswered for the question that how far such laws have been helpful.
No year goes without getting itself registered for some terrorist activity, in some part of the world or the other. This decade started with the abysmal episode of 9/11 attack on the World Trade Centre in the United States, followed by surfeit of appalling events. The serial blasts in Jaipur, attacks in Varanasi, then in Delhi and then in Mumbai local trains, the horrendous attack on the Indian Parliament, Assam blasts of 30th October, 2008, attack at Malegaon in Maharashtra and Mogara in Gujarat, 20 synchronised bomb blasts in Ahmedabad are just to name a few of the Indian cases. The list is potentially endless. Despite the efforts to curb these upsurges, there has been no remarkable success. The laws legislated for checking such terrorist activities are an aftermath of such heinous tragedies. Prevention is better than cure, but unfortunately, our laws are more to serve as cure than prevention.
Just twenty years after independence, and India is having her anti- terrorism law since then. Unlawful Activities Amendment Act was legislated in the year 1967. Subsequent to that the great laws of Terrorist and Disruptive Activities (Prevention) Act (TADA), and then Prevention of Terrorist Activities (POTA) came into being. And in the present date, the last two have been repealed. What our wise legislators feel is that the general criminal law of the land is far more competent compared to the special anti- terrorism laws. India was gifted with POTA in the year 2002 by the then Bharatiya Janta Party- led government. But as stated in their election manifesto, as soon as the present United Progressive Alliance government came to power, their presence was vividly manifested by the repeal of POTA.
It was only the 26/11 attack on Mumbai that the government realized its folly, and tried to recover from it by amending the already existing UAPA. Checks and balances, in the form of certain laws are always needed for the smooth and proper running of the society. It is in the absence of these provisions that social mechanism gets derailed, leading to a chaotic situation. India too witnessed a plethora of them in the absence of any proficient law. All the terror attacks of Mumbai, Delhi, Jaipur, Varanasi, and the rest were upshot of this absence.
The criminal jurisprudence gives way to different types of theories for punishing the accused, preventive, retributive, restoration, denunciation being among them. In the contemporary criminal law system in most of the countries, the retributive and preventive (or deterrence) theories play vital role. They form the fulcrum on which the criminal jurisprudence rotates. Either the laws require one to abstain from doing something, prescribing certain behavior as delictual and thus, implementing the preventive theory, or prescribe punishment for some action or omission and thus implement the retributive theory, punishing them who do not abide by those rules. The anti- terrorism laws too are based on this fundamental concept to punish those who adhere to these directives and thereby, set an example for deterrence for the rest.
Laws are a part of the human society. Changes in the law go hand- in- hand with the development of the society. New laws evolve when such a need is felt for. Anti- terrorism laws too form a part of the same society, restricting the conduct of the terrorist section of the world. The defense of a nation is something which demands the greatest attention of the government. Terrorists pose the greatest danger to the society today, the reason why laws are direly needed to curb their growth and activities. Anti- terrorism legislations generally include the amendments which allow the state to bypass its own legislation when combating terror- related crimes, under the grounds of necessity. Because of such restrictions, these legislations are often criticized as a form of lois scelerates, which may unjustly suppress all kinds of popular protests. Hence, anti- terrorisms are often criticized of endangering democratic spirit of a nation, by allowing an exceptional authoritarian type of government. The defence to such criticisms presented by the government is that these enactments are temporary measures and will finally be done away with when the target is accomplished and the danger vanishes. On the contrary, the truth is that most of these legislations continue to exist in being even after the task has been accomplished. But what is to be observed is the extent to which the anti-terrorism laws are fruitful. Or, are all the efforts to provide the society with the best of these laws, futile?
Under Article 355 of the Indian Constitution, the Central Government has a duty to protect States from internal disturbances. After the 9/11 attack of America, it implemented the Patriot Act. The United Kingdom has the Prevention of Terrorism Act. These legislations strengthen the fact that the countries, even the most powerful ones, need to move beyond the general domestic criminal laws and to incorporate more stringent ones in their legal system for efficiently combating terrorism. On the same lines, the Indian government too had brought into effect the Prevention of Terrorism Act, which served as the anti- terrorism law of the land. Prior to it, The Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA was in force between 1985 and 1995 for the prevention of activities in Punjab. This act was renewed from time to time first in 1989, then in 1991 and in 1993 and subsequently lapsed in 1995. The reasons widely stated for its termination is the abuse of the law. Instead of serving the purpose which it was meant for, the legislation was more abused than used. A view at the third paragraph of the Act which defines terrorism, gives a vivid reason for this abuse,
“Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.”
Such draconian were the provisions of TADA! Such was the definition of a “terrorist act”- and it seems that it was as a giant monster, ready to engulf even the innocents. And in the silhouette of provisions like this, the so- called savior’s of law wasted no opportunity to bud themselves up. And such was the reality of TADA. The harsh fact is not just confined to TADA, but the followers of TADA, that is, POTA and the amended UAPA, belong to the same phylum and genus, with only a minor difference in their species.
The Prevention of Terrorism Act, our famous POTA, too was enacted as an aftermath of the major terrorist attacks of the 2001 in both the United States and India. Such devastations were necessary to awaken the legislators from their slumber, and they pounced upon their feet, rising from their dormant state and enacted POTA in the 2002 March session of the Indian Parliament. The birth of this Act brought with it, widespread opposition not only in the Indian parliament but throughout India especially with the human rights organization because they thought that the act violated most of the fundamental rights provided in the Indian Constitution. And though brought about as a piece of anti- terror legislation, it has ever since its inception, been regarded as a controversial issue. This Act was successful in bringing out some results. After the Mumbai blasts of 2003, three suspects were arrested under the POTA Act. S.A.R. Geelani, a lecturer at Delhi University, was sentenced to death by a special POTA court for his alleged role in the 2001 attack on the Indian Parliament. He was later acquitted on appeal by the Delhi Bench of the High Court on a legal technicality. Finally, it lost its existence as soon as the UPA- led government came into power.
But with the amended Unlawful Activities (prevention) Amendment Act, 2008, the provisions of POTA have been reincarnated. This Act was designed to deal with such activities with challenged the territorial integrity of India and was based on the idea of securing peace in the land. With the reincarnation of POTA, the controversies fastened with it too sprang up. The UAPA is facing the widespread criticism today, by different sections of politicians, human rights activists, and other social beings. The provisions incorporated into it are so stringent to allow more abuse of it than secure the nation’s safety. Besides these legislations, operating for the entire nation, different states too have demanded for their separate anti- terror legislations. Maharashtra has its own Maharashtra Control of Organized Crimes Act (MCOCA); Gujarat has GUJCOC on the similar lines.
There is no one- word substitute for “terrorist”. The reasons for the act of terrorism vary from religious to geographical to caste to history. The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab, and observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Based on these reasons, who are terrorists? Rebels, insurgents, separatists, guerrillas, insurrectionists, freedom fighters, fundamentalists… are these all terrorists? Or does terrorism claim its own exclusive niche? Only the associations like Lashkar-e-taiba do not comprise all that terrorism constitutes of. Nor does the whole of terrorism come from Muslim nations like Pakistan, or Afghanistan or Iraq. The whole idea of terrorism does not rotate around and vis-à-vis Osama Bin Laden or Daud Ibrahim. Even within our nation we face the strife from Naxalites, Maoists, Ulfa, LTTE, and the like. People aggrieved by certain reasons or the other, or with a desire to get their demands fulfilled rise against the rest of the society and cast atrocities on the innocent. If we had such stringent laws why do such anti-social beings go unpunished? Why do we still dwell in the “reign of terror” when we had so called efficient laws to do away with terrorism and to restore peace and order in the nation? Why is Afzal still unpunished? And who is liable to answer these questions?
Terrorism today has become an international institution. It has widely acquired global importance. The need of the hour is that the countries unite to combat terrorism. Though the UAPA has provided with detention and punishment of even the foreign citizens if found suspect and accused, how far is the provision successful? Are these provisions just to hammer the innocent? How can the government be justified in detaining a suspect under UAPA for a considerably long period of 180 days, the double of what it contained prior to the amendment. In the United Kingdom, the similar proposal to increase the detention period from 28 to 44 days was rejected and lo, India was not even contended with 90 days! And the administration would do nothing more than being sorry for detaining a suspected innocent for 180 days. Is the Indian justice system so inadept to need 180 days for investigation of an act?
The Malimath Committee on criminal justice reforms has opined that some of the intrinsic merits of the Inquisitorial System (followed in France, Germany and other Continental countries) can be incorporated into the Adversarial System (presently followed in India) in order to make it more effective. Consequently, it is now the duty of the court to search for truth, to assign a proactive role to the judges, to direct the investigating officers and prosecution agencies in the matter of investigation and leading evidence in order to seek the truth and provide justice to the victims. The yet another recommendation proposed by the Malimath Committee was to have a paradigm shift in the standard of proof. As per its suggestion, the standard of proof should be higher than ‘preponderance of probabilities’ and lower than ‘proof beyond reasonable doubt’. This is to say that the standard of proof must be ‘clear and convincing’ standard, in order to increase the conviction rate. It would be an ignominy to state the fact that the TADA law had a conviction rate of less than 1% despite the fact that, under criminal law, a confession before a police officer, even though being given under torture, was admissible as evidence in court. The Malimath Committee further suggested and made imperative that the victim should have a right to be represented by an advocate of his choice and thereby produce evidence, both oral and documentary.
Concluding, it would be most significant to state that terrorism- the only real threat to modern society- must be combated globally. Laws of extradition too have to play a pivotal role in this regard. Anti- terrorism laws do not imply implementation of such laws which would curtail or restrict the citizens’ fundamental rights in the democracy with another cry from the human rights activists on behalf of the citizens. Nor should the terrorist, like Afzal should go unpunished even death sentence being ordered against him. The demand at this hour is to strike a balance between countering terrorism and promoting human rights. Indeed, there need to be a vivid distinction between the myth and the reality of these anti- terrorism laws. As Benjamin Cardozo said: “We are what we believe we are” thus, we should be careful to fashion our response to terrorism–after all, posterity will judge our responses.
