Safeguarding Rights - Examining India's Anti Terrorism Laws With Proposals To Protect The Innocents
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Category: General Law
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SAFEGUARDING RIGHTS: EXAMINING INDIA'S ANTI
TERRORISM LAWS WITH PROPOSALS TO PROTECT THE INNOCENTS Sreenidhi S S, B.B.A., LL.B. (Hons.), Sastra Deemed University Achuda Manickam, B.B.A., LL.B. (Hons.), Sastra Deemed University
ABSTRACT
India has experienced terrorism for many years, and its history of terrorism can be traced back to the partition of the Indian subcontinent into India and Pakistan in 1947. Following the partition, the land of Jammu and Kashmir was in critical situation as both the India and Pakistan claimed it. Further the act of accession by Maharaja Hari Singh created unrest among some of the Pakistanis. Hence, terrorist groups started to attack civilians over there for the claim over there. Even now The 'Kashmir Tigers,' a covert group linked to Jaish-e-Mohammad (JeM), has claimed responsibility for the attacks in Doda and Kathua that resulted in the deaths of 10 security personnel1. Apart from these some other factors which have also contributed to the rise of terrorism in India include religious and ethnic conflict, political factors, separatist groups and Naxalite influence.
From the Independence, the Indian Government has taken many measures such as by counter terrorism attacks , by enacting legislations, by joining in international agreement to combat terrorism, etc. But sometimes the legislations enacted by the government has also affected many innocents as for example, according to data from the Union Home Ministry presented to Parliament in March, 2022, only 2. 2% of cases filed under the UAPA (Unlawful Activities (Prevention) Act,1967) between 2016 and 2019 resulted in convictions2. Recently the offence of terrorism has also been added in the main criminal law of the land i. e. , in section 113 of BNS (The Bharatiya Nyaya Sanhita, 2023), which has a broad scope of interpretation.
Therefore, this paper explores the various legislations enacted by the Central Government, compared the present anti-terrorist laws 1Mir Fareed, Why Pakistan terror groups are using shadow outfits for attacks in J&K,INDIA TODAY, ( Sep 30, 2024,)https://www. indiatoday. in/india/story/jammu-and-kashmir-terror-attacks-doda-kathua-jaish-e-mohammadkashmir-tigers-2568476-2024-07-18
2 ‘Misused, abused’: India’s harsh terror law under rare scrutiny, Al Jazeera ( Oct 1, 2024)
https://www.aljazeera.com/news/2021/8/16/india-uapa-terror-law-scrutiny (UAPA and BNS) and suggested some measures to strengthen the antiterrorist laws and to ensure that an innocents are not affected. Keywords: Terrorism, Anti-terrorist laws, Section 113 of BNS, UAPA, History of anti-terrorist laws,
INTRODUCTION
Terrorism, in the recent times has been a topic of intense discussion due to its grave impact on the entire world in the recent times. Although the definitions may vary with incidents and as the famous quote by Albert Camus “Calling things by the wrong name adds to the affliction of the world. ” Generally, the term terrorism can be broadly understood as a method of coercion that utilizes or threatens to utilize violence in order to spread fear and thereby attain political or ideological goals. 3 Contemporary terrorist violence is legally differentiated from “ordinary” violence by the classic terrorist “triangle”: A targets B in order to persuade or coerce C to alter its stance on a specific action or policy that A desires.
This attack instills fear as it is often directed unexpectedly at innocent victims, thereby exerting pressure on third parties, such as governments, to modify their policies or positions. Modern terrorists employ various forms of violence and indiscriminately target civilians, military facilities, and state officials, among others. The issue of terrorism isn’t a recent affair, it indeed has a long history. The term "terrorism" was first used to describe the Reign of Terror, a period during the French Revolution from September 5, 1793, to July 27, 1794, when the Revolutionary Government used violence and harsh measures against citizens suspected of opposing the revolution.
Subsequently, popular resistance to Napoleon’s invasion of the Spanish Peninsula gave rise to a new type of fighter— the “guerrilla,” which comes from the Spanish word guerra, meaning “little war” (Friedlander, 1976, p. 52). However, the use of terrorism as a political and military strategy by various groups can be traced back to ancient times. As Falk observed, “in various forms, terrorism is as old as government and armed struggle, and as widespread. ”4Terrorism does not have a perfect or standard definition but all the definitions have a common connection that is acts which instill a sense of fear through violence or warfare directed towards a particular group of people or
3 UNODC,
INTRODUCTION
TO INTERNATIONAL TERRORISM 7 https://www.unodc.org/documents/e4j/18-04932_CT_Mod_01_ebook_FINALpdf.pdf
4 Mark Monaghan and Simon Prideaux , The corrupting influence of the powerful , STATE CRIME AND
IMMORALITY (2016) may go up to affecting many innocent victims the general public unrelated to the whole issue to achieve a particular objective. Their vision may be aimed at the government or towards some group be it religious or political. The extent to which terrorism relies on fear sets it apart from both conventional and guerrilla warfare. While conventional military forces do employ psychological warfare against their opponents, their primary method of achieving victory is through sheer military strength. Guerrilla forces, on the other hand, often utilize acts of terror and various propaganda techniques, focusing on military success, which they sometimes achieve, as seen with the Viet Cong in Vietnam and the Khmer Rouge in Cambodia.
Fear may be instilled by means of hijackings, hostage takings, kidnappings, mass shootings, car bombings, and, frequently, suicide bombings in mostly all public places like schools, malls, banks, parks etc. Some definitions classify all acts of terrorism simply as criminal activity, including the FBI's description of both international and domestic terrorism as involving “violent, criminal acts. ” However, this view maybe problematic because it does not take into account the different political and legal contexts, ignoring cases where violent actions against a government may be deemed legitimate. Examples include the African National Congress (ANC) in South Africa, which fought against apartheid and received global support, as well as the Resistance movement in France during World War II against Nazi occupation.
Since the 20th century, various ideological and political motivations have prompted some countries to engage in international terrorism, often framing their actions as support for national liberation movements. This has led to the saying, “One man’s terrorist is another man’s freedom fighter. ”5 EVOLUTION OF ANTI-TERRORIST LAWS IN INDIA At the international level, United nations’ security council developed 19 international legal instruments (developed under United Nations and The international Atomic Energy Agency (IAEA)) to prevent the acts of terrorism across the world6. India has also participated in these activities and is a party to 13 of these conventions. It has also held the presidency of the security 5 John Philips Jenkins, terrorism, Encyclopedia Britannica , https://www. britannica.
com/topic/terrorism ( last visited Oct Oct 9,2024) 6 United Nations office of Counter Terrorism , https://www. un. org/counterterrorism/international-legalinstruments (last visited Oct 2, 2024) council in August 20217. Apart from taking part in the international activities to prevent the terrorist acts, India has also enacted few legislations. They are 1. ) Terrorist and Disruptive Activities (Prevention) Act , 1987 (TADA)8 It was the first ever anti-terrorist law enacted in India, but only existed for a short period of time (1987 – 1995) due to misuse of powers, violation of human rights and also due to the criticisms from the human rights organisations and political parties. It was enforced with the intent to reduce the insurgency in the areas of Punjab due to Khalistani Movements, which had it effects in the capital, New Delhi.
Under this act , A Terrorist act occurs when someone, with the intent to intimidate the government, spread fear, or disrupt social harmony, uses explosives, weapons, or hazardous substances to cause death, injury, or property damage. It also includes detaining and threatening people to force the government or others to act or refrain from acting. This act was greatly criticised as it gave the police officials various powers such as • No need to produce the detainee before a judicial magistrate within 24 hours • Enable the police to keep the detainee to be detained up to 1 year • Enabled the confessions made to police officers as a evidence admissible in court • Imposed the burden of proof on accused to prove his innocence • Empowered the police officers to attach the properties of the accused under this act.
Due to these excess of powers given to the executive officials, By June 30, 1994, over 76,000 people were arrested under the act. Of these, 25% of cases were dropped without charges, and only 35% went to trial. Among those, 95% resulted in acquittals, with less than 2% leading to convictions. Though it had many modifications in 1989, 1991 and 1993
7 Permanent Mission of India to the UN , https://pminewyork.gov.in/pdf/menu/submenu__1173178539.pdf
( last visited Oct 2, 2024) 8 Terrorist and Disruptive Activities (Prevention) Act, 1987 , No. 28, Acts of Parliament, 1987 (India) as it had many loopholes it was finally withdrawn in 19959. 2. ) Prevention of Terrorism Act , 2002 (POTA)10 The prevention of terrorism act (POTA) was passed in 2002 to strengthen the anti-terrorism operations in India in response to number of terrorist attacks, such as attacks of September 11,2001 , attack on the Parliament of India in December 2001, assassination of important leaders, attacks from insurgents in Kashmir who has killed thousands of civilians, policeman, and Indian soldiers, separatist unrest in the Northeast and the threat posed by the Tamil Tigers in the South.
Hence , the central government issued the Prevention of Terrorism Ordinance (POTO) in October 2001 as a response to ‘ an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the count’. Then it was replaced by The Prevention of Terrorism Act , 2002. Though it had many strict provisions and safeguards ( no provision for preventive detention , allowed appeals ) to combat the terrorist activities, it was also greatly criticised as • It allowed the detainee to be detained for 180 days, • Confessions made to police were admissible as evidence in court and • Allowed the enforcement agencies to withhold the identity of witnesses As a result of this excessive power to the enforcement officials, within four months of the Act's enactment, 250 people were arrested nationwide, with the number continuing to rise.
After eight months, over 940 arrests had been made across seven states, with at least 560 people still in jail. In response to significant criticism, the UPA government’s Union Cabinet repealed the Act on October 7, 200411. 9 Surendranath Evening College, https://www. surendranatheveningcollege. com/wpcontent/uploads/2020/09/anti-terrorist-laws_compressed-1. pdf (last visited Oct 4, 2024)
10 Prevention of Terrorism Act , 2002, No. 15, Acts of Parliament, 2002 (India)
11 Surendranath Evening College, https://www. surendranatheveningcollege. com/wpcontent/uploads/2020/09/anti-terrorist-laws_compressed-1. pdf (last visited Oct 4, 2024) EXISTING LAWS 1. ) SAARC Convention (Suppression of Terrorism) Act, 1993 The Act was introduced in response to the SAARC Regional Convention on the Suppression of Terrorism, adopted on November 4, 1987. The objectives of this convention are to prevent and eliminate terrorism in the South Asian region, to criminalize the terrorist financing, strengthen cooperation among member states to prevent and suppress terrorist financing and to combat other transnational crimes like money laundering, arms smuggling, and illicit trafficking of narcotics and psychotropic substances.
As a member of the (SAARC) and a signatory to the SAARC Regional Convention on Suppression of Terrorism, India took proactive steps to fulfil its obligations under the convention by enacting a legislation. This act serves an important tool for regional cooperation in counter terrorism efforts and outlines several measures to combat terrorism12. 2. ) The National Investigation Agency Act, 200813 The National Investigation Agency Act was created after the Mumbai Terror Attacks to investigate and prosecute the acts of terrorism and other offences which affects the sovereignty, security and integrity of India, security of state and offences under the acts enacted to implement international treaties, agreements, conventions and resolutions of the united Nations, its agencies and other international organisations.
Under section 3 of the act , it allows for the constitution for National Investigation Agency for investigation and prosecution of offences under the acts specified in the schedule( the schedule includes the acts like The Atomic Energy Act , 1962, The Unlawful Activities (Prevention ) Act, 1967 , The Anti-Hijacking Act, 1982, The SAARC Convention (Suppression of Terrorism) Act,
1993) . The National Investigation Agency , investigate the cases and place the cases before
the NIA Special Court and for prosecuting the accused under the Unlawful Activities (Prevention) Act,1967 and certain other scheduled offences, the agency seeks the sanction of the Central Government. It also assists all the states and other agencies in the investigation of terrorist cases, and also a create a record of all the terrorist related 12 Sumedha Bhat, SAARC Convention (Suppression of Terrorism) Act, 1993, ipleaders, ( Oct 5, 2024, 8:15 PM) https://blog.ipleaders.in/saarc-convention-suppression-terrorism-act 1993/#:~:text=Important%20provisions%20*%20Section%203%20is%20the,such%20provision%20is%20appli cable%20in%20either%20context.
13 The National Investigation Agency Act, 2008, Act. 34, Acts of Parliament, 2002 (India)
information. It also studies and analyse the anti-terrorism measures in other countries and evaluate the adequacy of existing laws in India. 3. ) The Unlawful Activities (Prevention) Act, 1967 (UAPA)14 Initially, The Unlawful Activities (Prevention) Act, 1967 was enacted to ensure the security within the territory and to punish the offenders who engage themselves in the activities against the state or subjects. Only in the later period of time , UAPA was amended to include anti-terrorism laws. They were in i) 2004, The Unlawful Activities (Prevention) Amendment Act, 200415 Before this amendment, the UAPA act constituted only offences against the state generally and only by this amendment , the UAPA included the offences of terrorism which was earlier in the Prevention of Terrorism Act,2002.
Now , the UAPA defined what constitutes a ‘terrorist act’, ‘terrorist organisation’16 ,and also included the punishment for persons having a membership in a terrorist organisation even if they didn’t commit any offence. According to section 1517 of the UAPA , a terrorist act is any act that intends to threaten or is likely to threaten India’s unity , integrity, security , or sovereignty and according to section 3818, whoever associates himself , or professes to be associated , with a terrorist organisation with intent to commit the acts of terrorism , commits an offence relating to membership of a terrorist organisation and shall be punished with imprisonment for a term not exceeding ten years , or with fine or with both.
Now whoever commit a terrorist act , under section 16 shall be punished with death or imprisonment for life, and shall also be liable to fine if such act resulted in death and in other cases, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. It also includes acts that intend to strike terror in the people of India or any foreign country. It also enhanced penalties for terrorist acts as compared to previous anti-terrorism laws, introduced the concept of proceeds of terrorism, included punishments for persons supporting or aiding terrorist acts ,
14 The Unlawful Activities (Prevention) Act, 1967, Act. 37, Acts of Parliament, 1967(India)
15 The Unlawful Activities (Prevention) Amendment Act, 2004, Act. 29, Acts of Parliament, 1967 (India) 16 The Unlawful Activities (Prevention) Amendment Act, 2004, § 2(m) ,Act. 29, Acts of Parliament, 1967 (India) 17 The Unlawful Activities (Prevention) Amendment Act, 2004, § 15 ,Act. 29, Acts of Parliament, 1967 (India) 18 The Unlawful Activities (Prevention) Amendment Act, 2004, § 38 ,Act. 29, Acts of Parliament, 1967 (India) allowed for the seizure and forfeiture of property. It also added most of the provisions from the POTA.
ii) 2008, The Unlawful Activities (Prevention) Amendment Act, 200819 There were no major changes in this amendment bill , it only enhanced and strengthen the provisions as in November , 2008 , Ten members of Pakistani based militant group Lashkar -e-Taiba carried out bombings, shootings , and hostage-taking at multiple locations, including the Taj Mahal Palace Hotel, Oberoi Trident Hotel, Nariman House, And Chatrapati Shivaji Maharaj terminus railway station which has resulted in the casualties of 166 people and injured hundreds.
iii) 2012, The Unlawful Activities (Prevention) Amendment Act, 201220 Changes that were added in the 2012 amendment act are the inclusion of economic offences (includes offenses related to counterfeiting currency and damaging India’s monetary stability under the scope of terrorist activities), increased the punishment for raising funds for terrorist acts , penalised companies(including promoters) for committing terrorist acts, empowered the authorities to freeze, seize, or attach properties believed to be used for terrorism, whether within India or abroad, even if those properties are not directly owned by the accused, etc. iv) 2019, The Unlawful Activities (Prevention) Amendment Act, 201921 individuals designated as terrorists 4. ) The Bharatiya Nyaya Sanhita, 2023 (BNS)22 By The Bharatiya Nyaya Sanhita act, The offence of terrorism has been added to India’s main criminal code.
Now, the offence of terrorism and the punishment for the offence has been given in Section 113, under chapter VI, which contains the offences affecting the human body. According to Section 113(1)23 of The Bharatiya Nyaya Sanhita, 2023, the terrorist act would mean any action intended to threaten the unity, sovereignty, security or economic security of India, or to create terror among the public by using explosives (bombs, dynamite, etc. ), inflammable substance, weapons, poisonous gases or other hazardous substances (chemicals, biological, nuclear, etc. ), or by any other means which causes or likely to cause: • Death or injury • Property damage • Disruption of essential services • Damage to economic stability of India • Damage to defense related properties.
If a person commits a offence under this section and if it results in the death of any person, he shall be punished with death penalty or imprisonment for life and fine, and in other cases where the death isn’t caused, he shall be punished with imprisonment for a term which is not less than
5 years but which may extend to life imprisonment and fine24.
It also punishes, • Any person who conspires, attempts to commit, abets, advocates, directly or knowingly facilitates the commission of a terrorist act, shall be punished with imprisonment for a
22 The Bharatiya Nyaya Sanhita, 2023, Act. 45, Acts of Parliament, 2023(India)
23 The Bharatiya Nyaya Sanhita, 2023, § 113(1) , Act. 45, Acts of Parliament, 2023(India)
24 The Bharatiya Nyaya Sanhita, 2023, § 113(2) , Act. 45, Acts of Parliament, 2023(India)
term which is not less than 5 years but which may extend to life imprisonment and fine25. • Any person who does or attempts to organize camps, recruit’s person for the terrorist acts, shall be punished with imprisonment for a term which is not less than 5 years but which may extend to life imprisonment and fine26 • Any person for being a member of a terrorist organization, shall be punished with imprisonment for a term which may extend to life imprisonment and fine27. • Anyone who does or attempts to harbour or conceal knowing that the concealed person had committed the offence of terrorism, shall be punished with imprisonment for a term which is not less than 3 years but which may extend to life imprisonment and fine. This section does not apply if the offender is the spouse of the other person28.
• Any person who possesses the property obtained from the act of terrorism shall be punished with imprisonment for a term which may extend to life imprisonment and fine29. It also provides an explanation clauses which allows a Superintendent of Police to decide whether to prosecute under this law or the Unlawful Activities (Prevention) Act, 1967. COMPARISON BETWEEN BNS (THE BHARATIYA NYAYA SANHITA) AND UAPA (THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967) The BNS modernizes colonial-era laws by explicitly criminalizing offenses relevant to contemporary Indian society, eliminating the need for the judiciary to rely on creative interpretations of these offenses under the IPC. Previously, courts frequently had to reinterpret IPC provisions to fit current circumstances. Additionally, several outdated criminal offenses have been eliminated.
25 The Bharatiya Nyaya Sanhita, 2023, § 113(3) , Act. 45, Acts of Parliament, 2023(India)
26 The Bharatiya Nyaya Sanhita, 2023, § 113(4) , Act. 45, Acts of Parliament, 2023(India)
27 The Bharatiya Nyaya Sanhita, 2023, § 113(5) , Act. 45, Acts of Parliament, 2023(India)
28 The Bharatiya Nyaya Sanhita, 2023, § 113(6) , Act. 45, Acts of Parliament, 2023(India)
29 The Bharatiya Nyaya Sanhita, 2023, § 113(7) , Act. 45, Acts of Parliament, 2023(India)
Section 113 of the BNS30 introduces a new offense: the "Terrorist Act," adopting its definition from the Unlawful Activities (Prevention) Act, 1967 (UAPA) and aligning it with Section 15 of the UAPA31. Acknowledging that terror schemes can be orchestrated abroad, Section 113 is bolstered by the extended territorial scope of Sections 47 and 48, ensuring that individuals involved in terror activities planned overseas and executed in India cannot evade punishment due to the absence of a clear legal definition. Importantly, Section 48 of the UAPA32 grants it overriding authority over other laws. Although terrorism is now defined as a separate offense under the BNS, the UAPA—a specialized law addressing terrorist acts—remains in effect and has not been repealed. On August 11, 2024, a senior government official confirmed this through various media outlets.
33 This dual framework may create a potential conflict when an act falls under both the BNS and the UAPA, as the UAPA, being a special statute, may take precedence over the BNS in accordance with established principles of statutory interpretation. 34 The major differences between the two legislations are as follows:
1) Section 15 of the Unlawful Activities (Prevention) Act, 196735 deals with the offence
of terrorism. Section 113 of the Bharatiya Nyaya Sanhitha deals with the offence of terrorism.
2) The BNS defines a terrorist act in a manner similar to the UAPA but expands the scope
of the required intent. While the UAPA focuses on acts intended to incite fear or terror in the public, the BNS also includes acts aimed at intimidating the public or disturbing public order. This expanded definition allows the BNS to prosecute a wider range of activities under terrorism laws, even if the primary goal isn't to create terror but to cause significant disorder or panic in society. This broader approach contrasts with the narrower focus of the UAPA on mass fear or violence.
30 The Bharatiya Nyaya Sanhita, 2023, § 113(1), Act. 45, Acts of Parliament, 2023(India)
31 The Unlawful Activities (Prevention) Amendment Act, 2019, § 15, Act. 28, Acts of Parliament, 1967 (India) 32 The Unlawful Activities (Prevention) Amendment Act, 2019, § 48, Act. 28, Acts of Parliament, 1967 (India)
33 Vijaita Singh, New criminal laws will have no bearing on UAPA and MCOCA, The Hindu,
https://www.thehindu.com/news/national/new-criminal-codes-will-have-no-bearing-on-laws-such-as-uapamcoca/article67185401.ece ( last visited Oct Oct 9,2024) 34Suhail Nathani, Mumtaz Bhalla, BNS – Speedy Justice or Colonial Rollover? ELP Law, https://elplaw.in/leadership/bns-speedy-justice-or-colonial-rollover/ ( last visited Oct Oct 10,2024) 35 The Unlawful Activities (Prevention) Amendment Act, 2019, § 15, Act. 28, Acts of Parliament, 1967 (India)
3) Section 16 of the UAPA36 deals with the punishment for terrorist act which states that
Whoever commits a terrorist act shall, — (a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Under this section the court has the discretion or rather it’s the court which decides whether the act committed by the person is an offence or not and then the proceedings are proceeded. The act will not prima facie be seen as illegal it has to undergo certain legalities to decide whether it is an offence or not. Hence the ambit is wider in the UAPA.
Section 113 (2)37 of the BNS deals with the punishment provision which states that whoever commits a terrorist act shall, — (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Under this provision the framers have used the word offence which implies that any act in line with this section is an offence punishable, and is not to the subject of court’s discretion. Hence the ambit of the provision is narrow.
4) In order to arrest any person under the UAPA previous sanction of the Central
Government or any office authorized by the Central Government described under Section 45 of the UAPA38. The offence of terrorism is detailed under the chapter 36 The Unlawful Activities (Prevention) Amendment Act, 2019, § 16, Act. 28, Acts of Parliament, 1967 (India)
37 The Bharatiya Nyaya Sanhita, 2023, § 113(2), Act. 45, Acts of Parliament, 2023(India)
38 The Unlawful Activities (Prevention) Amendment Act, 2019, § 45, Act. 28, Acts of Parliament, 1967 (India) offences against human body of BNS hence under Section 156 of Bharatiya Nagarik Suraksha Sanhita39, any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. The decision to file the chargesheet under UAPA or BNS lies on the Police officer. This strengthens the legal system and helps instill a sense of fear of committing the offence. But it is also prone to misuse of power by the police officer.
SUGGESTIVE MEASURES IN THE BNS (THE BHARATIYA NYAYA SANHITA) The Indian government marked a significant change in the legal system by repealing three important statutes and replacing them with new ones in order to incorporate new offences, enhance the existing punishments and in all strengthen the legal system of India. The BNS includes the provision of terrorism explicitly defining a 'terrorist act' within the penal statute. It finds its roots from the UAPA and is majorly more or less a replica of the UAPA. The offence of terrorism which is most generally seen as a state offence as it usually involves the governments in negotiating and handling the issue reason being it disturbs the public order. However, this provision is incorporated in the chapter dealing with offences against human body.
Section 217 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)40 states that courts cannot take cognizance of offenses against the state or criminal conspiracies to commit such offenses without prior approval from the central Government, State Government, or District Magistrate. This ensures that government authorities must first grant sanction before prosecution for these serious offenses can proceed. Whereas for an offence under the offence against human body the police officer can take cognizance without any prior permission. This needless to say indubitably will reduce the crime rate as it instills a sense of fear, however there is a wide scope for misuse here. The police officer may arrest anyone in the name of terrorism leading to innocents ending up in jail.
Hence a clarity and proper procedure if amended or proposed will help reduce the autonomous power given to the police officials. Despite the well-recognized legal principle of generalia specialibus non-derogant which asserts
39 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 156, Act.46, Acts of Parliament, 2023(India)
40 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 217, Act.46, Acts of Parliament, 2023(India)
that general laws should not override specific laws, the inclusion of a definition of terrorism within the BNS raises important questions. This principle traditionally ensures that more specific legislation, such as the UAPA, which directly addresses terrorism, should take precedence over broader, general laws. The decision to include a definition of terrorism in the BNS, a more general legal framework, prompts concerns about the rationale behind this inclusion and its potential implications for the integrity of existing legal safeguards. By merging or blurring lines between the UAPA and the BNS, there is a risk of creating legal ambiguity, which could undermine the specificity of anti-terror laws. The UAPA has been carefully crafted to deal with the complexities of terrorism, with its procedures tailored for handling such cases.
In contrast, the BNS is a comprehensive legal code meant to cover a wider range of offenses. Introducing a general definition of terrorism within this broader law could potentially weaken the specialized nature of terrorism legislation and dilute the protections that come with it, particularly in terms of procedural safeguards, investigation protocols, and the rights of the accused. For this reason, lawmakers may consider setting specific parameters to delineate when the UAPA or the BNS should be applied. Without such clarity, there is a risk that the overlapping provisions could lead to confusion, potentially allowing authorities to bypass the more stringent safeguards of the UAPA by opting to charge individuals under the broader BNS provisions.
Setting clear criteria for when each law must be referred to will help maintain the integrity of both legal frameworks and ensure that the application of anti-terror laws remains precise and consistent. These parameters could include defining the severity of the offense, the nature of the threat posed, and the specific context in which the crime was committed. For example, the UAPA might be invoked for cases involving direct threats to national security, organized terrorism, or activities linked to foreign terror groups, while the BNS could be reserved for broader, less severe offenses that do not fall under the same national security threats. By clearly specifying when to apply each law, lawmakers can ensure that anti-terror measures remain balanced between national security needs and the protection of individual rights.
This approach would prevent misuse or overreach and promote a more just and accountable legal process.
CONCLUSION
Implementing robust safeguards against custodial and judicial abuse is crucial to ensuring that anti-terror laws, often criticized for their harsh procedures, are in line with democratic values and human rights. These safeguards must include clear limits on the broad immunity currently granted to enforcement agencies, mechanisms for the timely repatriation of accused individuals caught in protracted trials, and provisions for compensating civilian victims. Such measures would provide much-needed relief to all stakeholders, promoting fairness and accountability in the process. Introducing new rules to address the same crimes however may not effectively solve the challenges related to enforcement and investigation. Instead of layering new laws, we could focus on strengthening the existing capabilities of the criminal justice system.
This approach may possibly lead to a more comprehensive and effective anti-terrorism policy, ensuring that it is not only legally sound but also operationally effective in protecting the rights of individuals while maintaining national security. 41
41 Sriyanshi Bhatt, Clause 111 of BNS
The terrorism of vaguely worded laws, deccan herald, https://www.deccanherald.com/opinion/clause-111-of-bns-the-terrorism-of-vaguely-worded-laws-2772556 (last visited Oct 10, 2024)