ANTI-TERRORISM LAWS IN INDIA: A COMPARITIVE

STUDY

Submitted by: Arnab Basu [209116]

Terrorism today poses the gravest threat to India’s sovereignty and integrity. It
undermines the fundamental Rule of Law, on which the very fabric of society rests,
denies rights to the citizens, and threatens political and economic stability. A strong front
against terrorism can only be effected through comprehensive counter-terrorism
legislation. However, the enactment of such legislations usually has a complicated social
or political backdrop.

According to one political analyst these laws are regurgitated versions of one another.1
First there was the Preventive Detention Act passed by Parliament in 1950 in the bloody
aftermath of Independence and Partition to curb activity that was perceived as a threat to
national unity. This Act expired in 1969 and was quickly replaced by Maintenance of
Internal Security Act [MISA] in 1971, primarily used to curb the Naxalite uprisings,
which in effect meant persecuting and killing leftists, trade unionists and poor peasants.
In 1958 the Armed Forces Special Powers Act [AFSPA] was passed and remains un-
repealed and very much in use in Kashmir and the Northeast. The AFSPA and MISA
were soon followed by Terrorism and Disruptive Activities (Prevention) Act [TADA]
in 1985, and despite both MISA and TADA being repealed, thousands of innocents have
been detained under TADA and continue to await trial, facing malnutrition, torture and,
many a time, custodial killings. After MISA and TADA came and went, 2002 signalled
the arrival of the one act that could match the AFSPA in its lethality, and that was
“POTA” – Prevention of Terrorism Act and now the amended 1967 Unlawful
Activities Prevention Act [UAPA].

Anti-terrorism laws in India have always been a subject of much controversy. One of the
arguments is that these laws stand in the way of fundamental rights of citizens guaranteed
by Part III of the Constitution. The anti-terrorist laws have been enacted before by the
legislature and upheld by the judiciary though not without reluctance. The intention was
to enact these statutes and bring them in force till the situation improves. The intention
was not to make these drastic measures a permanent feature of law of the land. But
because of continuing terrorist activities, the statutes have been reintroduced with
requisite modifications.

The September 11th Terror Attacks on the Twin Towers in New York affected the
political dynamics in India, as it did in much of the world. Within weeks, the government
ushered its pre-existing proposal into law as an ordinance, the Prevention of Terrorism
Ordinance, temporarily deferring full parliamentary consideration of the proposal. In the
1
SRIRAM ANANTHANARAYANAN, writing for SAMAR (South Asian Magazine for Action and Reflection, Issue
18- a web based magazine)
midst of the debate over the proposed bill, the government’s proposal gained further
momentum from two significant terrorist attacks – an attack on the legislative assembly
complex in the state of Jammu & Kashmir in October 2001 and an assault on the Indian
Parliament building in Delhi in December 2001. After a charged up debate and despite
vigorous opposition, Parliament ultimately affirmed the government’s ordinance,
enacting the Prevention of Terrorism Act2 into law in March 2002, during an
extraordinary joint session of both houses of Parliament.3 However in 2004, POTA
became a victim of policy shifts. The Congress-led UPA government repealed POTA,
given its “gross misuse,” and to ensure instead that “existing laws are enforced strictly”.4
Even though POTA has been repealed, thereby doing away with its several troubling
features, quite a few concerns remain even in the aftermath of the repeal.

The Prevention of Terrorism Act, 2001

Section 3(a) of the POTA defines what a terrorist act is. It says that whoever with
the intent overawe the Government or strike terror in the minds of people or any section
of the people does any act or thing by using dynamite or explosive substances or
inflammable substance or firearms or other lethal weapon or poisonous or noxious gases
or other chemical or any substance of a hazardous nature in such a manner as to cause
death or injuries to any person or loss or damage to property or disruption of any supplies
or services essential for life. This overly broad and ambiguous definition of terrorism
fails to satisfy the principle of legality; and also was one of the important criticisms of
this Act.5

Section 7 specifies the powers of investigating officers and says that any officer
(not below the rank of SP) investigating an offence committed under this act, has reason
to believe that any property in relation to which an investigation is being conducted
represents proceeds of terrorism he shall with prior approval in writing from Director
General of Police of which the property is situated can make an order to seize or attach
such property.

Section 21 deals with offences relating to support given to a terrorist organisation

and says that a person commits an offence if he invites support in any way or arranges,
manages, or addresses meetings which he knows is to support or further a terrorist
organization, or which is to be addressed by a person who belongs or professes to belong
to a terrorist organization. Such a clause in legislation seems unconstitutional as it

2
Hereinafter the POTA.
3
JAYANTH K. KRISHNAN, INDIA’S PATRIOT ACT: POTA AND THE IMPACT ON CIVIL LIBERTIES IN THE WORLD’S LARGEST
DEMOCRACY, 22 LAW & INEQ. 272 (2004).
4
GOVERNMENT OF INDIA, NATIONAL COMMON MINIMAL PROGRAMME 21 (May 2004),
<http://pmindia.nic.in/cmp.pdf>; see Prevention of Terrorism (Repeal) Act, No. 26 of 2004 (enacted Dec.
21,2004) [hereinafter POTA Repeal Act].
5
Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209. In this case where 9 people had
died and several other injured on account of perpetrated acts The court said that such persons who have no
respect for human life and people are killed due to their mindless activities should fall under the ambit of
the definition of terrorist. So any compassion to such person would frustrate the purpose of enactment of
POTA. Thus they should be given death sentence.
restricts one freedom of expression as well as can convict people for simple or innocent
crimes.6

Sections relating to fund-raising or funding for a terrorist organisation7,

confessions made to police officers and its use as evidence8, evidence collected through
the interception of communication to be used as evidence9 are also oft-invoked. Such
clauses are important for the actual curbing of terrorist activities, yet on a more
humanistic front, such clauses and sections are draconian. The language of the sections of
the POTA is indeed ambiguous and can be challenged on a human rights basis – pre-trial
investigation and detention procedures infringe upon personal liberty, special courts and
procedural rules infringe upon judicial independence and the right to a fair trial,
provisions that require courts to draw adverse inferences against the accused in a manner
that infringes upon the presumption of innocence.

Thus, we see some aspects of India’s antiterrorism laws have raised significant human
rights concerns. Some of those concerns have remained even in the aftermath of the
repeal of POTA, in the form of clauses in other state and central anti-terror legislations,
the most all-encompassing among which is the Unlawful Activities (Prevention) Act.

The Unlawful Activities (Prevention) Amendment

Act, 2004

The UAPA does not define the word terrorist yet defines the phrase terrorist act.
Terrorist act is defined in the Act as –

“Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or
to strike terror in the people or any section of the people in India or in any foreign
country, does any act by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisons or noxious gases
or other chemicals or by any other substances (whether biological or otherwise) of a
6
In Vaiko’s Case One of the petitions in this regard admitted by the Supreme Court has been filed by
Vaiko, the general secretary of the MDMK, a constituent of the ruling National Democratic Alliance at the
Centre. Vaiko challenged the validity of Section 21 of the Act. Vaiko was arrested under this Section on the
basis of certain remarks saying that "I was a supporter of LTTE once. I was a supporter of LTTE yesterday;
I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow." Then, he asked his audience
whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a
culture. Mr. Vaiko, was in detention for 17 months, did not choose to seek bail on a matter of principle.
7
Section 22 of the POTA.
8
Section 32 of the POTA. In State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600
the matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot
be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of
accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession
made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence
Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has
not been relied on for rendering conviction.
9
Section 45 of the POTA.
hazardous nature, in such a manner as to cause, or 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 in India or in
any foreign country or causes damage or destruction of any property or equipment used
or intended to be used for the defence of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies, or detains
any person and threatens to kill or injure such person in order to compel the Government
in India or the Government of a foreign country or any other person to do or abstain
from doing any act, commits a terrorist act”.10

The 2008 UAPA Amendment Bill defines a terrorist act in very broad terms.
(a) The physical element (actus reus): The 2008 amendments in this respect, which are
virtually identical to the POTA provision, stipulate that a terrorist act may use “bombs,
dynamite… other explosive substances or inflammable substances or firearms or other
lethal weapons or poisonous or noxious gases or other chemicals or by any other
substances… of a hazardous nature or by any other means of whatever nature” (emphasis
added). This last sentence means that any physical act could be deemed a terrorist act, if
the government could satisfy the very low burden of proof threshold - that the act was
likely to cause terror in the people. The UAPA amendment definition is therefore
unacceptably broad in nature.
When coupled with the denial of the presumption of innocence, the 2008 amendment
empowers the government to construe anything as a terrorist act. This is a dangerous
development that threatens ordinary citizens who may be prosecuted under the amended
UAPA if it is politically convenient.
(b) The mental element (mens rea): The 2008 amendment echoes POTA by specifying
that a terrorist act is one carried out with the intention to “threaten the unity, integrity,
security or sovereignty of India or… to strike terror… in the people”. The amendment in
fact broadens the POTA definition by further specifying that any act “likely to threaten”
or any act “likely to strike terror in the people” is also a terrorist act (emphasis added).
This incorporates subjectivity into the definition and extends the definition extra-
territorially.
(c) The missing element from UAPA (the broader objective): According to the United
Nations, “at the national level, the specificity of terrorist crimes is defined by the
presence of three cumulative conditions: (i) the means used…(ii) the intent… and (iii) the
aim, which is to further an underlying political or ideological goal.” The UN Special
Rapporteur on the Promotion and Protection of Human Rights while Countering
Terrorism observed that without all three elements the prohibited act could not be
considered a terrorist act because it fails to distinguish itself from an ordinary criminal
act. The 2008 amendment thus reflects a lack of conceptual understanding of terrorism.

Arrest
Under section 43A of the amended UAPA, a person may be arrested by “[a]ny officer of
the Designated Authority” on the basis of “personal knowledge”, or information
furnished by another person, or “from any document, article or any other thing which
may furnish evidence of the commission” of an offence under the Act (emphasis added).
10
Section 15 of the UAPA.
The arresting officer only needs to inform the suspect of the charge against him/her “as
soon as may be”.

Pre-charge detention
The 2008 UAPA Amendment extends the maximum period of pre-charge detention to
180 days after 90 days – much longer than the permitted maximum detention in other
democratic states. To extend detention, the public prosecutor merely needs to show that
the investigation has progressed rather than demonstrate that there is, in fact, adequate
evidence against the accused. At a minimum, a judge considering the extension of pre-
charge detention must consider and record in writing the decision for extending
detention. Additionally, if an accused person is detained but not charged, he/she should
have the right to seek compensation.

Bail application
The 2008 UAPA Amendments deny an accused person bail if the court believes that,
based on the evidence so far, the accusations against him/her are prima facie true. This is
inappropriate because the purpose of a bail hearing is to determine whether the accused
will abscond or commit any offences while on bail. It is highly unlikely that the
prosecution will have adequate evidence to prove that the case against the accused is
prima facie true.

Presumption of innocence & burden of proof

The UN Human Rights Committee’s General Comment No. 32 stipulates that the
presumption of innocence is a fundamental human rights principle. The burden of
proving guilt is placed on the prosecution, which must prove guilt beyond reasonable
doubt. Under the 2008 UAPA Amendments this presumption is denied to the accused.

Protection of human rights – including freedom from arbitrary arrest and detention,
freedom from torture or cruel, inhuman, or degrading treatment, freedom of religion,
freedom of speech and association, and the right to a fair criminal trial – certainly
constitutes a moral and legal imperative. In the words of the Supreme Court of India, “if
the law enforcing authority becomes a law breaker, it breeds contempt for law, it invites
every man to become a law unto himself and ultimately it invites anarchy.”

Although there has been significant progress in the attempt to frame a pragmatic anti-
terror legislation that balances the expediencies required for successful suppression of
terrorism with the requirement for universal guarantee of safeguard of human rights,
there remains much to be desired. Although the current government claims that it has
been successful in removing the draconian clauses of POTA from UAPA, it can be
clearly seen that the need of the hour is more and more socially sensitive legislation that
does not alienate the very people that it is trying to protect.