Evolution of India’s Anti-Terrorism Law

 By Aakanshi Bansal
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Introduction

India’s anti-terrorism legislation has long been a source of intense debate. One of the basic reasons for contention is that these regulations violate citizens’ basic freedoms, which are protected by Part III of the Constitution. The legislature has passed anti-terrorist legislation before, and the judiciary has sustained it, albeit reluctantly. These laws were intended to be passed and put into effect until the situation gets better. The goal wasn’t to make these dramatic actions a steadfast part of the law. However, the laws have been restored with the necessary changes due to ongoing terrorist activity.

The Unlawful Activities (Prevention) Act of 1967 and the National Security Act of 1980 are the laws now in effect in India to combat terrorism. UAPA has been the primary legislation preventing terrorist activities in India. Even though the Act has been in effect since 1967, a specific Chapter aimed at prosecuting terrorist acts was first added by the Parliament in 2004 via the UAPA Amendment Act, 2004 [1]. Terrorist and Disruptive Activities (Prevention) Act of 1987 (TADA) [2] and the Prevention of Terrorism Act of 2002 (POTA) were the primary laws that addressed terrorist activities before the revision of the UAPA. The constitutionality of both TADA and POTA has been contested several times over the years.

The National Investigation Agency Act established the NIA as India’s primary counterterrorism law enforcement organization in 2008. “Citizens of India outside India” are covered by Section 1(2)(a) of the NIA Act. The NIA is now looking into 63 instances linking jihad and ISIS in several states, which keeps it busy while supporting terrorism. The UAPA stipulates that “any person who is a member of a terrorist gang or a terrorist organization” shall be sentenced to 10 years in prison under Sections 20 and 38. The UAPA schedule includes a list of prohibited groups. Additionally, the UAPA extends the deadline for filing charge sheets by 90 days. [3]

Evolution of India’s Anti-Terrorism Law

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

The Terrorist & Disruptive Activities (Prevention) Act of 1987 was created primarily to deal with terrorist activities in India. It featured stricter prohibitions than the UAPA. TADA was challenged as being unlawful when it was enacted before the nation’s top court. In the case of Kartar Singh v. the State of Punjab (1994) 3 SCC 569, the Supreme Court of India maintained its constitutional legitimacy on the presumption that individuals given such draconian statutory powers would act in good faith and for the benefit of the public. However, there were several examples of the abuse of power for unintended consequences. Law enforcement authorities began to exploit the strict guidelines outlined in the statute. In 1995, TADA was withdrawn. [4]

The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)

The Maharashtra Control of Organized Crime Act, 1999, which went into effect on April 24, 1999, is another significant anti-terrorist statute in India. The underworld in Mumbai and the growing organized crime in Maharashtra were the main driving forces behind the creation of this law. For instance, the MCOCA definition of a terrorist act is much broader than the POTA term. Organized crime is mentioned in MCOCA, which also classifies “promotion of insurrection” as a terrorist act. According to Maharashtra law, until a person can demonstrate their innocence, they are believed to be guilty. MCOCA does not mandate those police officers who are found to have violated it be prosecuted.

Prevention of Terrorism Act, 2002

It was necessary to enact a special law to deal with terrorist actions due to the increase in cross-border terrorism, the Pakistani ISI’s ongoing offensive program aimed at destabilizing India, and the developments following the terrorist attacks of September 11, 2001. The Prevention of Terrorism Act, 2002 (POTA, 2002) was consequently passed and announced. In PUCL v. Union of India, a similar challenge to TADA was made against POTA, and the Court rejected it as well on the same justifications. After the Act was passed into law, numerous reports of egregious abuse of the statute appeared. There have been allegations that the POTA legislation increased corruption in the Indian police and judicial systems. Groups defending civil liberties and human rights battled against it. During the 2004 election, one of the topics was how the Act was being used. The Indian government of the United Progressive Alliance made a campaign pledge to repeal the legislation, and in 2004—after the UPA took office and its provisions were integrated into UAPA—the pledge was fulfilled.

Unlawful Activities Prevention Act

The UAPA was not a terror law from 1967 until 2004. In December 2004, Parliament added a section on criminalizing terrorist acts. The Manmohan Singh government introduced Chapter IV of the UAPA Amendment Act, 2004. The UAPA was further modified in 2008 and 2019 to broaden its application. “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security] or sovereignty of India or with intent to strike terror in the people or likely to strike terror in the people in India or any foreign country,” is defined in Section 15 of the UAPA as committing a “terrorist act.” These specific laws are interpreted by courts using different sections of the Indian Penal Code, 1860.

Having the autonomy they wanted the Indian Supreme Court to grant, the Central government went ahead to introduce another amendment to the UAPA, 1967 (in the year 2019) to bring in a couple of changes to the act [5]. Firstly, the National Investigative Agency (Established through the NIA Act, 2008) gets unrestricted autonomy to perform searches, seizures and make arrests in any state of the country, needless to inform the state government or the local authorities about the same in advance. This change, as was believed by the legal luminaries, was considered for the better instead of strife with Maharashtra. A government which demanded advance notice (to the Director General of Police of the concerned state) about the arrival and operations of NIA. The demand was arbitrary since the NIA always found it difficult to conduct secret and confidential searches and operations. [6]

Instead of the conflict with the Maharashtra government, which wanted advance notification (to the Director General of Police of the relevant state) about the entry and operations of NIA, this modification was thought by legal experts to be for the better. The NIA always found it challenging to undertake covert and confidential searches and activities, thus the requirement was arbitrary. [7]

A fourth schedule to the parent act was introduced, which allegedly gave the Union Government unrestricted power to add or remove any person to be designated as a terrorist and detain the said person for up to two years without any provisions for a judicial appeal. This second amendment, which involved changes to Section 35 (1), flooded the gates with controversies. Soon after, several petitions contesting the newly inserted clauses as violating Article 19(1) and Article 21 of the Indian Constitution were filed with the Supreme Court of India. The Supreme Court was asked to impose the temporary Doctrine of Eclipse while determining the constitutional legality of the amendment to the act. [8]

Controversies surrounding the Act

Bail is challenging under the terror law. The pre-charge sheet custody period is increased from 90 to 180 days. Additionally, the UAPA limits the use of bail and requires the court to base its determination of the accused’s guilt on police records. In the UAPA, there are far too few convictions [9]. Data from the Union Home Ministry that was provided to Parliament in March of this year shows that 2.2% of cases filed under the UAPA between 2016 and 2019 ended in court convictions. Comparing it to other criminal systems, the USA only permits a custody period of 7 days, and Australia only gives the Investigative Agencies 24 hours to demonstrate their case for prolonged incarceration. [10]

Conclusion

While we can conclude that the law and its application might require some changes, scrapping it off increases the threat to national security as a giant in South Asia having neighbors with unstable governments and military regimes, we as a nation are troubled with an influx of terrorism and hence a law for its prevention is necessary. Such a law will also have more free hand in limitations on fundamental rights than other acts and laws considering its gravity and importance to the very security of the nation. However, a confidence-building programme for the citizens should be underway to remove their apprehensions against the act while a possible reform or a thorough investigation is carried out against its discrepancies and possible misuse Terrorism prevention laws are important as The greatest approach for the police to stop terrorism or an insurrection is to prevent it from growing. Only swift and impartial application of the law in response to any indication of a developing scenario will be able to achieve this. Once it has reached this point, the situation is far too complicated for the police to handle without the aid of security personnel and the use of special legislation. Counter-terrorism strategies are a mix of diplomacy and political and military efforts. Still, India primarily focuses on using force which leads to failure and further aggravates political violence which needs to change.

Endnotes

    1. “the-unlawful-activities-(prevention)-amendment-act-2004.pdf”, PRS India. Available at: https://prsindia.org/files/bills_acts/acts_parliament/2004/the-unlawful-activities-(prevention)-amendment-act-2004.pdf
    2. “The Terrorist and Disruptive Activities (Prevention) Act, 1987, PRS India. Available at:  https://www.satp.org/satporgtp/countries/india/document/actandordinances/Tada.htm
    3. “The evolution of Anti Terror law”, The Telegraph Online, 2 September 2022. Available  at: https://www.telegraphindia.com/opinion/the-evolution-of-indian-anti-terror-law/cid/1676999
    4. “ Is the Supreme Court’s Order Granting Bail To UAPA Accused a Silver Lining?”, The Wire. Available at: https://thewire.in/law/supreme-courts-order-bail-uapa-accused-silver-lining
    5. “India’s Harsh Anti-Terror Law Comes Under Rare Scrutiny”, The Diplomat, August 17 2021. Available at: https://thediplomat.com/2021/08/indias-harsh-anti-terror-law-comes-under-rare-scrutiny/
    6. “Analysis of the use of UAPA from NCRB data”, Center for Law and Policy Research, July 1 2020. Available at: https://clpr.org.in/blog/use-of-the-uapa-from-the-national-crime-reports-bureau/
    7. “Anti-terror law: MHA data show charge sheet filed in less than half of UAPA cases”, India Today, September 16, 2020. Available at: https://www.indiatoday.in/india/story/anti-terror-law-mha-data-show-chargesheet-filed-in-less-than-half-of-uapa-cases-1722346-2020-09-16
    8. “UAPA Act: Opposition raises concerns over amendments”, Business Today, July 24 2019. Available at: https://www.businesstoday.in/latest/economy-politics/story/uapa-act-opposition-raises-concerns-over-amendments-217690-2019-07-24
    9. “UAPA Amendment Bill tabled in Rajya Sabha: Why more police powers with Centre may be a bad idea”, Firstpost, August 1 2019. Available at: https://www.firstpost.com/india/amit-shah-to-table-uapa-amendment-bill-in-rajya-sabha-today-more-police-powers-with-centre-might-be-a-bad-idea-heres-why-7076461.html
    10. “UAPA: 72% Rise in Arrests Between 2015 and 2019”, The Wire. Available at: https://thewire.in/government/uapa-72-rise-in-arrests-between-2015-and-2019