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Key Takeaways

  • The enactment of anti-terrorism laws began post-independence due to the rising number of insurgencies in India.
  • Foreign terrorists apprehended within India can be prosecuted under Section 121 of the Indian Penal Code, 1860.
  • The Unlawful Activities (Prevention) Act, 1967 (UAPA) is the primary anti-terrorism statute in force in India at the moment.

Introduction

Terrorism can be defined as the use of fear and violence to achieve an ideological goal. The United Nations describes an act of terror as any purposeful act of violence that leads to death, injury, or property damage, instills fear, and is directed towards any group of people defined by their political, philosophical, intellectual, racial, ethnic, religious, or other characteristics.The political and religious landscape of India, as well as its strained relationship with some of its neighbors, have made it one of the countries most impacted by terrorism in the last century.

India has been the target of several terrorist acts in the past. Attacks on the Amarnath Yatra in Jammu and Kashmir in 2017, the 2016 Uri Attack, and the 2008 Mumbai attacks were among the most severe terrorist acts carried out by terrorist groups in order to intimidate Indian residents. Ethno-nationalist terrorism, religious terrorism, left-wing terrorism, narco-terrorism, and cross-border terrorism are all prevalent in India. Terrorism has had a significant influence on Jammu and Kashmir, the northeast Indian states, and regions of central India where Maoists are still active.

It was realized that India’s criminal justice system and its penal and procedural laws through the IPC and CrPC simply were not enough to tackle these crimes on their own.The 26/11 attacks in particular marked a transformation in the outlook towards terrorism laws and their severity.

Anti-Terrorism Laws in India

There has been much debate surrounding the laws punishing terrorism in India, with some arguing that they are violative of the fundamental rights guaranteed to citizens as per part III of the Constitution. Nevertheless, the following provisions and regulations have been enacted to control this growing problem.

The Indian Penal Code, 1860

The penal code does not explicitly use the term ‘terrorism’ in any of its provisions. This is because the code was created and enacted before the number of terrorist incidences heightened in India. However, foreign terrorists who engage in terrorist operations in India and are apprehended alive can be prosecuted under it as per Section 121 read with Section 2 of the code.

Section 2, which deals with the jurisdiction of the code states that every person shall be liable to be prosecuted under this Code for every act or omission contrary to its provisions thereof, of which he shall be guilty within India. The section stipulates that any individual, regardless of nationality, is liable to be punished for an offense committed in India under the Indian Penal Code, 1860. Section 121 punishes the offense of waging, attempting to wage war, or abetting waging of war, against the Government of India. In the case of State (NCT) of Delhi v. Mohd. Afzal and Ors. [107 (2003) DLT 385], acts of terrorism were held to fall within the ambit of waging war against the government as per Section 121.

Despite provisions to deal with the crime of terrorism, legislation such as this one was still largely unequipped in dealing with these cases and often left room for loopholes.

Unlawful Activities (Prevention)Act, 1967 (UAPA)

The Unlawful Activities (Prevention) Act, 1967 (UAPA) is the primary anti-terrorism statute in force in India at the moment. For the sake of India's sovereignty and integrity, the parliament passed this legislation in 1967 to allow for the imposition of reasonable limits on the rights to free speech and expression, peaceful assembly, and the establishment of organizations or unions. The initial Act was aimed at broad illegal actions, and harsh measures on terrorism were introduced only later, beginning in 2004, following the repeal of the Prevention of Terrorism Act, 2002. It was later revised in reaction to the Mumbai terrorist attacks in 2008.

Section 15 of the modified UAPA included the definition of a "terrorist act," as well as created additional terrorist offenses. It also extended the length of detention without bail and modified the presumption of innocence to that of guilt if specific circumstances were satisfied, bringing in the draconian measures for which POTA had previously been chastised.

The most recent changes were made in 2013, and they primarily addressed the economic and financial components of terrorism. Even if the offenses punishable under the Act are committed outside of India, a person may be prosecuted under the UAPA. The most recent amendment to the legislation allows the Central Government to label individuals as terrorists without following the due process of law. The UAPA is also known as the Anti-Terror Act.

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

TADA, or Terrorist and Disruptive Activities (Prevention) Act, was an Indian anti-terrorism statute that was in effect from 1985 and 1995, against the backdrop of the Punjab insurgency, and was applied throughout India. This legislation was meant to put a stop to the Khalistani movement, a type of religious terrorism prevalent in Punjab. It gradually grew to include other states as well. The bill allowed law enforcement authorities broad powers to deal with national terrorist and "socially disruptive" actions. The police were not required to present a detainee before a court magistrate within 24 hours. The accused might be imprisoned for up to a year. The accused bore the responsibility of proving his innocence.

In the case of Kartar Singh vs State of Punjab[(1994) 3 SCC 569], the Supreme Court of India maintained its constitutional legitimacy on the premise that the persons trusted with such draconic statutory authority would act in good faith and for the public benefit. However, there were several examples of authority being abused for illicit means. The strict restrictions of the Act were exploited in the hands of law enforcement officers until it finally lapsed in 1995.

Prevention of Terrorism Act, 2002

The Prevention of Terrorism Act, 2002 (POTA) was enacted by the Indian Parliament in 2002 to enhance anti-terrorism efforts. The Act was adopted in reaction to multiple terrorist assaults in India, including the attack on the Parliament. The act superseded the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Ordinance (POTO) of 2001. (TADA). The statute, like the provisions in TADA, allowed for the detention of a suspect for up to 180 days without the submission of a chargesheet in court. However, a significant modification was made in that, unlike TADA, this statute had no provision for preventive detention. The Act ended up being repealed in 2004 by the United Progressive Alliance coalition.

The National Investigation Agency (NIA) Act, 2008

The NIA Act was enacted and notified on 31 December 2008 to establish the National Investigative Agency, the primary, exclusive counter terrorism agency in India. The agency could take whatever actions necessary to combat terrorism and other terror-related offenses in a timely and efficient manner. The NIA, with all of the powers conferred to it by the NIA Act, as well as the process and punitive measures prescribed in the Unlawful Activities (Prevention) Act, 1967, as amended in 2008, was required to aid the Federal and State Governments in controlling terrorism and other terror-related activities in India and preventing a repeat of the Mumbai attack. In order to fight risks to national security, the NIA works closely with others. The investigation, prosecution, coordination, and prevention are the NIA's operating tactics.

Conclusion

Since its independence in 1947, India has been the subject of several insurgencies and acts of terrorism. The scale and impact of these assaults have only grown with time. Under the circumstances, there was an urgent need to create new legislation or enhance existing laws by incorporating specific measures to deal effectively and aggressively with this scourge in the Indian Penal Code, 1860, as well as the two important legislations, the Code of Criminal Procedure, 1973, and the Indian Evidence Act,1872. This led to the enactment of a range of Acts as discussed in this article.

A common criticism that most Acts endure is of their provisions being violative of constitutional rights. However, it must be kept in mind that the constitution provides for reasonable restrictions of its rights in view of maintaining public order and morality. Countering acts of terrorism to protect its citizens constitutes the same. The Government on its part should ensure the effective implementation of anti-terror legislation in good faith without any targeted misuse to truly be able to claim that it is protecting its nation.


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