The Evolution and Impact of Anti-Terrorism Laws in India: A Criminal Law Perspective

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This article has been written by Akshay Iyer, a 3rd year student pursuing BA. LLB(Hons) from SRM University.

Table of Contents

ABSTRACT

The landscape of anti-terrorism laws in India has changed significantly over the years, and it’s important to thoughtfully consider how these changes affect individuals and society as a whole. “The first anti-terrorism law in India is the Unlawful Activities (Prevention) Act, or UAPA, which was enacted in 1967. Other laws like Prevention of Terrorism Act (POTA) and National Security Act (NSA).”[1] Other laws like Prevention of Terrorism Act (POTA) and National Security Act (NSA) were brought into being to tighten the machinery against terrorism. The results were mixed under these laws. They have supported the fight against terrorism; however, they have also been criticized, especially over cases of misapplication and human rights abuse. In this article we will assesses the development of anti-terrorism laws in India toward the criminal law framework, human rights concerns, and challenges faced by law enforcement agencies in combating terrorism.

INTRODUCTION

The Main Idea of Terrorism is to inflict a fear in the minds of people through violence and creating riot in the Country. According to the FBI, terrorism involves violent and criminal acts carried out by individuals or groups. These actions are often motivated by beliefs linked to foreign terrorist organizations or countries that support such activities. Essentially, terrorism is about using fear and violence to promote a particular agenda, impacting countless lives and communities.”[2][3] Terrorism has assumed various dimensions in the land of India since its independence – from northeast insurgencies to the Punjab separatist movements, cross-border terrorism in Jammu and Kashmir, and, most recently, terrorist attacks in Mumbai. This has made it imperative to fashion a strong and sound legal approach to this subject without trampling the numerous rights and freedoms provided by the Indian Constitution.

It is known and understood that terrorism has appeared as a global phenomenon, in which it threatens the very life of ordinary citizens, while at the same time it is standing as a major challenge before the nation-state. And with the advent of globalization, when the world has shrunk itself through new modes of communication and advanced technology, the negative consequences of such a heightened connectivity are met. “What has been termed as “new terrorism” or “global terrorism” is a harsh reality one has to face.”[4] It is true that national security regimes have to spend too much on combating against terrorism, be it in terms of intelligence, human power, financial resources or otherwise.

HISTORICAL BACKGROUND ON ANTI TERRORISM LAWS IN INDIA:

One of the biggest concerns related to the evolution and impact of anti-terrorism laws in India is the first wave of anti-terror laws, which emerged through amendments of the 1980s and 1990s, especially focusing on specific acts like the Prevention of Terrorism Act (POTA) and the Unlawful Activities (Prevention) Act (UAPA), but criticized as being vague and having the tendency of getting used against political opponents. “The government responded to this with the Unlawful Activities (Prevention) Amendment Act (UAPA) in 2019.”[5] These acts aim to sentence terrorists with increased severity and yet ensure”[6] there is an element of protection regarding individual rights. The unfolding process of these laws brings debates about how effective they are in such situations and possible human rights violations.

British Colonial Laws of the Pre-Independence Era

There were numerous uprisings and movements of revolution against the British colonial rule, which began to be characterized by the British administration as terrorism for the subcontinent. The British colonial government initiated several laws to suppress these movements and to keep control over the colony.

Defence of India Act (1915):

One of the first anti-terrorism laws, enacted during World War I, granted blanket powers for arrest and suppression of perceived nationalist activities that colonial authorities deemed seditious. It set the precedent for later measures that aimed at prevention of acts of rebellion or insurrection.

Rowlatt Act (1919):

Officially titled the Anarchical and Revolutionary Crimes Act, this act persisted in imposing war-time measures even after the end of World War I. It advocated detention without a move that led to protests on an enormous scale and accounted for large-scale violence. It also leaves one to believe that merciless crushing methods can unleash monstrous resistance.

After-independence Period: Managing Internal Conflicts

India experienced several internal conflicts like regional insurgencies and ideological struggles following independence in 1947. There are other security challenges that threatened the internal security of India, such as regional insurgencies and general ideological struggles, which necessitated evolution to criminal and anti-terrorism laws

Early Challenges:

India’s immediate post-independence era witnessed the gathering storm of communal violence and partition between the regions of India and Pakistan, as well as the upsurge of princely states demanding independence or special status. Thus, until later, laws against terrorism were not at the priority list of the government as the latter focused on establishing order and unity within the state.

Maintenance of Internal Security Act (MISA), 1971:

The Indian government enacted MISA after political unrest, especially within regions like the Northeast and other movements like the Naxalite insurgency, had surfaced. This was an act that provided license to the government to detain people without a trial for matters of internal security. Although introduced mainly for reasons of political dissent, it became a tool to solve what the state perceived as terrorist incidents too.

Although it was effective in maintenance of internal order, the MISA was much criticized for its use against political opponents in the Emergency (1975-1977) in a system which denied them trial. Eventually repealed by amendments in 1978 after the end of the Emergency, it stood as an example of increasing aspirations toward a better balance between security and civil liberties.

NEED FOR ANTI TERRORISM LAWS IN INDIA:[7]

Indian anti-terrorism legislation traces its background to the 1990s when India was confronted with an increase in terrorist activities, among others including major Mumbai blasts in 1993 and 1995. This threw the country into forming effective legislation against terrorism. Prevention of Terrorism Act was enacted in 2002, which was followed by the Unlawful Activities (Prevention) Act in 2004. Such acts are meant to counter, investigate, and prevent terrorist activities, thus furthering goals of safety and security amongst all citizens. Again, these acts have amended provisions multiple times for effective and international best-practices adaptation.

India needs anti-terrorism laws for some major reasons:

Cross Border Terrorism from Neighbouring Countries:

India was under constant security threats from terrorist groups functioning out of the neighbouring countries, especially Pakistan and Afghanistan. Such cross border terrorism, as it manifested in the 26/11 Mumbai attack and the 2001 Indian Parliament attack, deserves strong legal frameworks against preventing and punishing such activities.

Internal Insurgencies and Extremism:

It is also faced with home-grown insurgencies in the name of Naxalism/Maoism in central and eastern regions, and militancy in states such as Jammu & Kashmir and parts of northeast. Such insurgencies are often followed by terrorist tactics; thus, anti-terrorism laws have become an important tool in dealing with such threats.

Global Terrorism and Radicalization:

The increase in global networks of terror, including Al-Qaeda and ISIS, is a call to action for India also. Increasing cases of radicalization, especially among the youth, through the internet demand stringent laws for checking recruitment and financing terror activities and planning terror attacks.

Prevention Measure and Intelligence:

Anti-terrorism laws permit law enforcement agencies to act preventatively by arresting or detaining those individuals suspected of participating in activities associated with terrorism. This is crucial since terrorism is usually transnational, planned in secret, and involves sleeper cells that have to be dismantled before the attack can take place.

National Security:

Terrorism groups employ cyber tools not only for communication and recruitment but also for launching attacks; with the fast-developing technology, the development of advanced cyber tools is an ongoing process. The specific laws pertaining to cyber-terrorism and financing of terrorism help in ensuring the safety of India’s national security and sensitive infrastructure.

Special Powers for Law Enforcement:

Anti-terror laws like the Unlawful Activities (Prevention) Act, 2004, and the National Investigation Agency Act vested special powers in investigating agencies to investigate and prosecute and convict terrorists. They ensure longer detention periods for the suspect, stringent bail provisions, and speedy trial for the delivery of quick justice.

International Cooperation:

Anti-terror laws in India help deal with the aspect of international cooperation in countering terrorism. The sharing of intelligence, coordination of investigations, and extradition of terrorists requires a legal framework in place that is aligned to the global standards meant to combat terrorism.

An international character has been gained in the threat that terrorism poses, in the post 9/11 world. All the nations have seemed to realize the increased vulnerability that has been created to their security system. “In this context, national governments are being asked to take precautionary steps before the growing menace of terrorism becomes too unmanageable”[8][9]

“”These were laws meant to be introduced and enacted until the situation improves.” That was not supposed to make showy moves an anchor part of the law.[10]. Still, the laws have been re-established with all the changes they require thanks to the continuous terrorist activity.

Terrorism is held to be an area of special importance under Indian criminal law. As eyewitnesses are always difficult to be found and motive is not easily established, treating terrorists as ordinary criminals would lead to low convictions.

EVOLUTUON OF ANTI TERRIORISM LAWS IN INDIA:

1.Prevention Detention Act, 1950

Background: Just a few years into India’s independence, it had ended up facing the situation of particularly intense local security challenges that included sectarian violence, local insurgency, and even political instability.

Provisions: The Prevention Detention Act (PDA) had been established so that any person could be incarcerated without trial for a year if he or she was perceived as a menace to national security.

Criticism: It was criticized for its wide provisions under which the government could erode individual liberties and even curtail without a judicial review. The Act lapsed in 1969.

Unlawful Activities Prevention Act (UAPA), 1967:

Background: The Indian Parliament enacted UAPA after the Chinese aggression in 1962 and Indo-Pak War in 1965, because of the growing secessionist movements across the country.

Provisions: The Act was primarily used to deal with unlawful activities and outfits which are advocating secession or aimed to undermine the sovereignty and territorial integrity of India.

Development: Since its enactment time, UAPA has been amended numerous times to widen its scope to emerge as a mainstream attempt of India’s anti-terrorism architecture.

It was amended in 2004 by incorporating provisions of the extinct Prevention of Terrorism Act (POTA), which attempted to define terrorism explicitly and empower the state machinery.

Moreover, the 2019 amendment had bestowed full powers to the government to declare people as terrorists without charges and even without holding a trial.

“Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA)”[11][12]

Background: This was the time when the new generation terrorism in Punjab from the Khalistan movement and insurgence in Jammu and Kashmir saw TADA.

Provisions: TADA was India’s first specific anti-terror law. Under it, preventive detention of people was allowed along with accepting the confessions from the police officers as evidence and the detention without trial for a prolonged period.

Controversy: TADA came to symbolize gross violation of human rights; many observed that it was abused by the law enforcement agencies. A large number of innocent persons, particularly minorities, were detained under the law for little or no apparent crime. Wide criticism led to its repeal in the year 1995.

Prevention of Terrorism Act, 2002 (POTA):

Background: After the 1999 Kargil War and the 2001 attack on the Indian Parliament by Pakistani-based terrorist groups, the focus on an effective law against terror again gained strength in the Indian Parliament.

Provisions: POTA was enacted after the 11 September attacks in the US as part of global efforts at countering terrorism. TADA was sought in many respects similar but more direct at targeting terrorists with strict provisions as regards funding and harbouring terrorists.

Criticism and Repeal: POTA also came in for much criticism for its misuse against minorities particularly religious minorities and political opponents. It was withdrawn in 2004, with many of its provisions absorbed in the UAPA.

National Investigation Agency (NIA) Act, 2008:

Background: The 2008 Mumbai terror attacks (26/11) marked a turning point for India’s security structures. This attack made India realize the lapses in the prevailing mechanisms that existed to handle large-scale terror attacks.

Provisions: The NIA Act established the National Investigation Agency (NIA), a central counter-terrorism law enforcement agency, to investigate and prosecute offenses related to terrorism, including cross-border terrorism.

Impact: Since its establishment, the NIA has been playing a vital role in investigating and prosecuting high-profile terror cases – domestic and cross-border.

Amendments to UAPA (2004, 2008, 2019) “The amendment brought into UAPA in 2004 was significant in as much as it embodied many provisions of the now repealed POTA.”[13]

The 2008 amendment was enacted after the Mumbai attack, made the definition of terrorism stricter, increased detention time for investigation purposes, and enhanced punishment.

The 2019 amendment authorized the government to declare a person as terrorist and to seize his properties. This amendment also provided expanded jurisdiction to NIA.

National Security Act (NSA), 1980

Context: To prevent persons from doing things which may endanger national security.

Provisions: This act allows detentions without charge for up to 12 months if the individual is suspected of posing a danger to national security.

Criticisms: Like all other preventive detention acts, this act of NSA has been targeted for all potential misuse, particularly when political dissent is involved.

“Prevention of Money Laundering Act (PMLA), 2002:”[14][15]

Context: As part of the global fight against financing terrorism, money laundering, and other financial crimes, India enacted PMLA.

“Provisions: “The Act looks to prevent and control the money laundering process and acquire the property derived from such processes.”[16] The law has been used with other anti-terrorism laws and clamped down funding networks.”[17]

National Counter Terrorism Centre (NCTC) Proposal:

Context: The government recently proposed the NCTC, after the 26/11 Mumbai attacks, as a coordination body for all counter-terrorism efforts across India.

Opposition: Several state governments had been opposing the proposal because the NCTC would intrude upon the jurisdictions of the states under India’s federal structure.

IMPACT OF ANTI TERRIORISM LAW IN INDIA:

Anti-terrorism laws in India have greatly influenced the country’s legal and security landscape. Their intention is trying to find an exit from the complex challenges of terrorism. These have significantly impacted areas like national security, human rights, and legal jurisprudence.

National Security Strong Legal Framework: Anti-terrorism laws such as the Unlawful Activities (Prevention) Act, National Investigation Agency Act, and previous ones like Prevention of Terrorism Act represent a pretty robust legal framework to tackle terrorism. These laws have equipped security organizations with detention, interrogation, and prosecution tools in the face of terrorists.

Special Investigative Powers:

The NIA has been formed as an expert body for investigating and prosecuting offenses relating to terrorism in the countrywide space of India. This has improved co-ordination as well as effectiveness in dealing with matters of terror.

Deterring Effect:

Harsh law deters or scares would-be terrorists that severe punishment will be given to any person involving him in terrorist activities.

Controversies and Concerns

Human Rights Issues:

Critics criticize anti-terrorism laws for being the source of human rights abuses, among other things, including illegal detention, torture, and custodial deaths. Anti-terrorism laws also define “terrorism” quite vaguely and over-broadly. This opens wide avenues for misuse against political dissenters and marginalized communities.

One of the areas where laws like UAPA have been used to stifle dissent and freedoms of speech is through declaring certain individuals or groups as “anti-national” or even “terrorists.” This has upset opinion about chilling civil society and journalistic freedoms.

Long Detentions Without Trial:

The laws have provided for long detention periods without the right to bail; cases of detention for years without ever going to trial or being convicted have resulted. It has faced criticism for infringing on the right to a fair and timely trial.

Legal and Judicial Implications

Judicial Scrutiny:

The Indian Supreme Court as well as High Courts, on several occasions, have struck a balance between the proper usage of anti-terrorism laws. However, the situation is complex while looking at balancing national security against the rights of a citizen.

Evolving Jurisprudence:

Anti-terrorism cases have shaped legal understandings particularly on conceptions of a “terrorist act” as well as the standard of evidence applied in terrorist-related prosecutions. This has elicited some heated legal discussions between civil liberties and state security.

Political and Social Impact

Misuse for Political Purposes:

It has been criticized that anti-terrorism laws are used against political opponents and to quell activism-in contexts such as those in Jammu and Kashmir, the Northeast, and parts of central India.

Impact on Marginalized Communities:

These laws have adversely affected the minority community. Therefore, allegations of bias and discrimination are directed towards these laws. The fear of being labelled a terrorist has made some people feel less secure in their socio-political practices.

Positive Developments

Convictions in High-Profile Cases:

Anti-terrorism law has made it easy to detect and prosecute major terrorism-related cases, such as the 2008 Mumbai attacks, and allow the parties concerned to be brought before court and convicted.

Countering new emerging threats:

The progressive legal framework has managed to address new forms of terrorism such as cyber-terrorism and radicalization through digital platforms with revisions of the existing laws and creation of new provisions.

[1] https://www.americanbar.org/groups/human_rights/reports/india-fatf-report

[2] https://www.fbi.gov/investigate/terrorism

[3] https://web.lemoyne.edu/~hevern/psy355_24F/psy355lectures/psy355.16.spectacle.html

[4] https://www.semanticscholar.org/paper/From-Old-to-New-Terrorism%3A-The-Changing-Nature-of-Nia/f2920e212f975c18de35aacfcdb063860df47ac5

[5] https://www.aljazeera.com/news/2021/8/16/india-uapa-terror-law-scrutiny

[6] https://www.mha.gov.in/sites/default/files/A1967-37.pdf

[7] https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1430

[8] https://www.drishtiias.com/blog/the-role-of-governments-and-law-enforcement-in-preventing-terrorism

[9] https://www.dhs.gov/sites/default/files/publications/19_0920_plcy_strategic-framework-countering-terrorism-targeted-violence.pdf

[10] https://www.history.com/topics/early-20th-century-us/jim-crow-laws

[11] https://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Act

[12] https://www.indiacode.nic.in/bitstream/123456789/15340/1/terrorist_and_disruptive.pdf