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In the new
millennium, we face the very real and increasing prospect that
regional aggressor, third-rate armies, terrorist groups and even
religious cults will seek to wield disproportionate power by
acquiring and using weapons of mass destructions -
Secretary Of
Defense William Cohen Of U.S.A.
Introduction
First in Varanasi then in Delhi then in Mumbai local trains and I
do not
think there is even a need to mention the continuing terrorist's
barbaric activities in Kashmir. The bomb blasts have outraged
every
patriotic Indian. No civilized nation can allow this kind of
barbaric
inhumanity to be partly or fully supported or sponsored by any
neighbor
or domestic insurgents. The only way we can combat it is to
minimize, if
not eliminate, such occurrences. Prevention is crucial; and laws
like
Pota can prevent such occurrences. Acquittals even in a case like
Parliament attack occurred because of poor prosecution rather then
because of Pota.
After the 9/11 attacks on the world trade center the world's
outlook
towards the terrorist and terrorist organization has changed the
laws
have become much more stringent to curb such activities. The
Indian
outlook also changed specially after the 13 December attack on the
Indian parliament which is seen as a symbol of our democracy then
it
became necessary to enforce a law which would be more stringent so
that
the terrorist can not go Scot free because after the lapse of TADA
in
1995 following the wide spread complaint that it was being abused
there
was no law which could be used as a weapon against the rising
terrorist
activities in India.
India is facing multifarious challenges in the management of its
internal security. There is an upsurge of terrorist activities,
intensification of cross border terrorist activities and insurgent
groups in different parts of the country. Terrorism has now
acquired
global dimensions and has become the challenge for the whole
world. The
reach and methods adopted by terrorist groups and organization
take
advantage of modern means of communication and technology using
high
tech facilities available in the form of communication system,
transport, sophisticated arms and various other means. This has
enabled
them to strike and create terror among people at will. The
criminal
justice system was not designed to deal with such type of heinous
crimes. In view of this situation it was felt necessary to enact
legislation for the prevention of and for dealing with terrorist
activities
In 2002 March session of the Indian parliament the Prevention Of
Terrorist Activities Act was introduced and it had widespread
opposition
not even in the Indian parliament but throughout India especially
with
the human rights organization because they thought that the act
violated
most of the fundamental rights provided in the Indian
constitution. The
protagonists of the Act have, however, hailed the legislation on
the
ground that it has been effective in ensuring the speedy trial of
those
accused of indulging in or abetting terrorism. POTA is useful in
stemming "state-sponsored cross-border terrorism", as envisaged by
the
then Home Minister L.K. Advani. The Prevention of Terrorism Act,
2002
(POTA), was seen as a controversial piece of legislation ever
since it
was conceived as a weapon against terrorism.
What is terrorism?
The term "terrorism" comes from the French word terrorisme, which
is
based on the Latin verb terrere (to cause to tremble). It dates
back to
1795 when it was used to describe the actions of the Jacobin Club
in
their rule of post-Revolutionary France, the so-called "Reign of
Terror". Jacobins are rumored to have coined the term "terrorists"
to
refer to themselves.
Terrorism refers to a strategy of using violence, social threats,
or
coordinated attacks, in order to generate fear, cause disruption,
and
ultimately, brings about compliance with specified political,
religious,
or ideological demands. The European Union includes in its 2002
definition of "terrorism" the aim of "destabilising or destroying
the
fundamental political, constitutional, economic or social
structures of
a country."
Terrorism is defined in the U.S. by the Code of Federal Bureau of
Investigation as: ".the unlawful use of force and violence against
persons or property to intimidate or coerce a government, the
civilian
population, or any segment thereof, in furtherance of political or
social objectives." The FBI further describes terrorism as either
domestic or international, depending on the origin, base, and
objectives
of the terrorists.
Anti-Terrorist Laws in U.S.A. and Pakistan.
In Pakistan-
In 2002, ordinance was issued for the inclusion of military
officers in the panel of judges to try
terrorist offences. This not only
undermines the independence of the judiciary but makes the
anti-terror law in the country even more draconian Described as
necessary that appropriate administrative and judicial measures
be adopted to fight a spate of terrorist activities and
commission of heinous offences in Pakistan these anti-terrorism
laws
opened the door to grave violations of human rights including the
right
to life, the prohibition of torture, the right to liberty and
security
and the right to fair trial. Inter alia, they provide for the
creation
of anti terrorist courts and give wide powers of arrest and
interrogation to the police and army.
Amnesty International has criticized the legislation in its
report,
Legalizing the
Impermissible: the new anti-terrorism law.
It is important to note that the existing legal and judicial
system is already equipped to deal with offences referred to in
the act. The problem then seems to be a lack of implementation,
not a lack of laws. However, in an attempt to hide this
inefficiency, Pakistan adopted the anti-terrorist acts which
provide speedy trial without necessary guarantees for the accused,
unfair trials and license to kill etc.
The right to
shoot to kill 1997 Anti-Terrorism Act Under Section 5(2)(1):
an officer of the police, armed forces and civil armed forces may:
(i) after giving prior warning use such force as may be deemed
necessary or appropriate, bearing in mind all the facts and
circumstances of the situation, against any person who is
committing, or in all probability is likely to commit a terrorist
act or a scheduled offence, and it shall be lawful for any such
officer, or any superior officer, to fire, or order the firing
upon any person or persons against whom he is authorized to use
force in terms hereof
The enactment
of broad provisions empowering summary executions is not the way a
modern civilized state ought to act. Rather the government should
set strict limits to the circumstances in which firearms could be
used to prevent arbitrary killing by the security forces. The
broad powers given to the police and consequently, to the military
and civil armed forces contravene major international standards of
human rights. Indemnity for acts done in
good faith:
Section 39 of the act says:
No suit, prosecution or other legal proceedings shall lie against
any person in respect of anything which is in good faith done or
intended to be done under this act.? This is tantamount to
providing impunity to the security forces for abuses, including
extra judicial killings. To explicitly place any acts of police or
other law enforcement personnel, including possibly random resort
to lethal force, outside scrutiny and accountability may give law
enforcement personnel the impression that they may commit such
acts with impunity if only they can claim to have done them in
good faith. It breaches a basic requirement of the rule of law,
namely its equal and exception less application to everyone. Confessions
to police made admissible in court: The provision in the act in
section 26 which says:
The special court may, for admission of
the
confession in evidence, require the police officer to produce a
video
tape together with the devices used for recording the confession.
Article 14(2)
of the Constitution of Pakistan prohibits the use of torture,
though only in the limited context of extraction of confessions:
No person
shall be subjected to torture for the purpose of extracting
evidence.
However, Pakistani law enforcement officials, to extract
confessions from the accused, routinely use torture. Lending
greater legal weight to confessions and putting pressure on police
to speedily resolve crime may indirectly contribute to the
continued and perhaps increased use of torture.
The right to
be tried in a public place without prejudice to the defendant:
Section 15 of the 1997 Anti-Terrorism Act states,
The
government may direct that for the trial of a particular case, the
court
shall sit at such place including the place of occurrence as it
may
specify.
This is intended to expose the defendant to public expressions of
outrage, anger or even violence for his deeds, to humiliate him
and to deter others by the specter of public exposure; it does not
appear to serve the purpose of helping the judiciary establish the
truth and do justice in a detached circumspect manner and in calm
circumstances. The right to be presumed innocent: The act lays
down that only special courts may grant bail to people tried for
offences under the act but they may not release a defendant on
bail
if there are
reasonable grounds for believing that he has been guilty of the
offence with which he has been charged
and unless the prosecution has been given an opportunity to ?show
cause why he should not be released. This gives the prosecution
the right to veto to deny bail.
The right to
appeal: Section 31 of the act reads:
A judgment or
order passed, or sentence awarded, by a special court, subject to
the result of an appeal under this act shall be final and shall
not be called in question by any court.
The possibility of the defendant to appeal to a court in the
regular judicial system, either to the provincial high court or
the Supreme Court of Pakistan is therefore excluded. People
convicted and sentenced by the special courts are clearly
disadvantaged in so far as their legal remedies are restricted:
they have only one possibility of appeal, whereas people convicted
by regular courts may
also appeal to the Supreme Court. This provision violates the
principle
of equality before law laid down in the Constitution of Pakistan.
It is
one of the fundamental principles of international human rights
law.
Moreover, the right to appeal is restricted in so far as it is
subject
to severe time limitations. The defendant may not in seven days be
able
to present an adequate appeal while the prosecution has 15 days
for the
appeal.
Moreover, the
right to appeal of those facing the death penalty also appears to
be seriously infringed under the act. Death penalty: Under Section
7(1) of the 1999 Amended Anti-terrorism Act, for
terrorist
acts resulting in death, courts have to mandatory impose the
death
penalty. This does not give any discretion to the judiciary. Section 22 of the 1997
Anti Terrorism Act,
The government may
specify
the manner, mode and place of execution of any sentence passed
under
this act, having regard to the deterrent effect which such
execution is
likely to have?. Section 22 opens the possibility for public
executions
of the death penalty,
In U.S.A.-
Since its passage following the September 11, 2001 attacks, the
Patriot
Act has played a key part and often the leading role in a number
of
successful operations to protect innocent Americans from the
deadly
plans of terrorists dedicated to destroying America and our way of
life.
While the results have been important, in passing The Patriot Act,
Congress provided for only modest, incremental changes in the law.
Congress simply took existing legal principles and retrofitted
them to
preserve the lives and liberty of the American people from the
challenges posed by a global terrorist network.
Congress passed the USA PATRIOT Act in response to the terrorists
attacks of September 11, 2001. The Act gives federal officials
greater
authority to track and intercept communications, both for law
enforcement and foreign intelligence gathering purposes. It vests
the
Secretary of the Treasury with regulatory powers to combat
corruption of
U.S. financial institutions for foreign money laundering purposes.
It
seeks to further close our borders to foreign terrorists and to
detain
and remove those within our borders. It creates new crimes, new
penalties, and new procedural efficiencies for use against
domestic and
international terrorists. Although it is not without safeguards,
critics
contend some of its provisions go too far. Although it grants many
of
the enhancements sought by the Department of Justice, others are
concerned that it does not go far enough.
Criminal
Investigations:
Tracking and Gathering Communications-Federal communications
privacy law features a three tiered system, erected for the dual
purpose of protecting the confidentiality of private telephone,
face-to-face, and computer communications while enabling
authorities to identify and intercept criminal communications. The
Crime Control and
Safe Streets Act of 1968 s give authorities a narrowly defined
process
for electronic surveillance to be used as a last resort in serious
criminal cases. When approved by senior Justice Department
officials,
law enforcement officers may seek a court order authorizing them
to
secretly capture conversations concerning any of a statutory list
of
offenses.
Foreign
Intelligence Investigations-
The Act eases
some of the restrictions on foreign intelligence gathering within
the United States, and affords the U.S. intelligence community
greater access to information unearthed during a criminal
investigation, but it also establishes and expands safeguards
against official abuse. More specifically, it: permits
roving
surveillance (court orders omitting the identification of the
particular instrument, facilities, or place where the surveillance
is to occur when the court finds the target is likely to thwart
identification with particularity).
Alien
Terrorists and Victims-
The Act
contains a number of provisions designed to prevent alien
terrorists from entering the United States, particularly from
Canada; to enable authorities to detain and deport alien
terrorists and those who support them; and to provide humanitarian
immigration relief for foreign victims of the attacks on September
11.
New crimes:
The Act creates new federal crimes for terrorist
attacks on
mass transportation facilities, for biological weapons offenses,
for
harboring terrorists, for affording terrorists material support,
for
misconduct associated with money laundering already mentioned, for
conducting the affairs of an enterprise which affects interstate
or
foreign commerce through the patterned commission of terrorist
offenses,
and for fraudulent charitable solicitation. Although strictly
speaking
these are new federal crimes, they generally supplement existing
law by
filling gaps and increasing penalties.
New Penalties:
The Act increases the penalties for acts of terrorism and for
crimes, which terrorists might commit. More specifically it
establishes an alternative maximum penalty for acts of terrorism,
raises the penalties for conspiracy to commit certain terrorist
offenses, envisions sentencing some terrorists to life-long
parole, and increases the penalties for counterfeiting, cyber-crime, and charity fraud.
Other Procedural Adjustments: In other procedural adjustments
designed
to facilitate criminal investigations, the Act: increases the
rewards
for information in terrorism cases; authorizes ?sneak and peek?
search
warrants; permits nationwide and perhaps worldwide execution of
warrants
in terrorism cases; eases government access to confidential
information;
allows the Attorney General to collect DNA samples from prisoners
convicted of any federal crime of violence or terrorism; lengthens
the
statute of limitations applicable to crimes of terrorism;
clarifies the
application of federal criminal law on American installations and
in
residences of U.S. government personnel overseas; and adjust
federal
victims? compensation and assistance programs.
History of anti-terrorism laws in India.
Terrorism has immensely affected India. The reasons for terrorism
in
India may vary vastly from religious to geographical to caste to
history. The Indian Supreme Court took a note of it in
Kartar
Singh v.
State of Punjab
[1994] 3 SCC 569, where it observed that the
country has
been in the firm grip of spiraling terrorist violence and is
caught
between deadly pangs of disruptive activities. Apart from many
skirmishes in various parts of the country, there were countless
serious
and horrendous events engulfing many cities with blood-bath,
firing,
looting, mad killing even without sparing women and children and
reducing those areas into a graveyard, which brutal atrocities
have
rocked and shocked the whole nation Deplorably, determined youths
lured
by hard-core criminals and underground extremists and attracted by
the
ideology of terrorism are indulging in committing serious crimes
against
the humanity.
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.
At present, the legislations in force to check terrorism in India
are
the National Security Act, 1980 and the Unlawful Activities
(Prevention)
Act, 1967. There have been other anti-terrorism laws in force in
this
country a different points in time. Earlier, the following laws
had been
in force to counter and curb terrorism. The first law made in
independent India to deal with terrorism and terrorist activities
that
came into force on 30 Dec 1967 was
- The Unlawful Activities (Prevention) Act 1967
The UAPA was designed to deal with associations and activities
that
questioned the territorial integrity of India. When the Bill was
debated
in Parliament, leaders, and cutting across party affiliation,
insisted
that its ambit be so limited that the right to association
remained
unaffected and that the executive did not expose political parties
to
intrusion. So, the ambit of the Act was strictly limited to
meeting the
challenge to the territorial integrity of India. The Act was a
self-contained code of provisions for declaring secessionist
associations as unlawful, adjudication by a tribunal, control of
funds
and places of work of unlawful associations, penalties for their
members
etc. The Act has all along been worked holistically as such and is
completely within the purview of the central list in the 7th
Schedule of
the Constitution.
- Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA)
The second major act came into force on 3 September 1987 was The
Terrorist & Disruptive Activities (Prevention) Act 1987 this act
had
much more stringent provisions then the UAPA and it was
specifically
designed to deal with terrorist activities in India. When TADA was
enacted it came to be challenged before the Apex Court of the
country as
being unconstitutional. The Supreme Court of India upheld its
constitutional validity on the assumption that those entrusted
with such
draconic statutory powers would act in good faith and for the
public
good in the case of
Kartar Singh vs State of Punjab (1994) 3 SCC
569.
However, there were many instances of misuse of power for
collateral
purposes. The rigorous provisions contained in the statute came to
be
abused in the hands of law enforcement officials. TADA lapsed in
1995.
Other major Anti-terrorist law in India is The Maharashtra Control
of
Organised Crime Act, 1999 which was enforced on 24th April 1999.
This
law was specifically made to deal with rising organized crime in
Maharashtra and specially in Mumbai due to the underworld. For
instance,
the definition of a terrorist act is far more stretchable in MCOCA
than
under POTA. For, POTA did not take note of organised crime as such
while
MCOCA not only mentions that but, what is more, includes
`promotion of
insurgency' as a terrorist act. Again, the onus to prove a person
guilty
under POTA lies on the prosecution while under the Maharashtra law
a
person is presumed guilty unless he is able to prove his
innocence.
MCOCA does not stipulate prosecution of police officers found
guilty of
its misuse. But POTA did.
The need of POTA.
It is normally said that terrorism is a low intensity war. But the
loss,
which our country has suffered in the last two decades due to the
rise
of terrorist activities, has been on a very large scale. This
country
has fought four high intensity wars and in those wars we have lost
more then 6000 people. We have already lost more then 70000
civilians.
In addition, we have lost more then 9000 security personnel.
Almost six
lakh people in this country have become homeless as a result of
terrorism. Outside the expenditure on our armed forces, merely for
maintaining the entire set up to fight insurgency, to fight
cross-border
terrorism, the economic cost itself has been Rs 45000 crore. The
budgetary increase itself in the last 15 years, because of
terrorism or
anti-insurgency activities, has been 26 times. We have no record
of the
explosives that have been used in various parts of the country. We
have
a record of crime. But the explosives that have been confiscated
by our
security agencies weigh 48000 kilos. If our security forces had
not been
vigilant enough to confiscate these explosives, they would
probably have
been enough to take care of every inch of Indian soil.
What are the
regions that are affected:
It is not only Kashmir; Punjab too has suffered. Also Mumbai,
Delhi and other regions of the country like the North East.
Development has suffered, the economy has suffered. You have now a
brand of Maoist terrorism; People's War Group and
other
groups. A large part of Andhra Pradesh, Orissa, Madhya Pradesh,
Chattisgarh and Jharkhand right up to the Nepal border is
affected. We
had insurgency and terrorism in Tamil Nadu. We lost two of our
former
prime ministers to this kind of terrorism.
In terms of
our sovereignty, unity and integrity and our feeling of
nationalism, terrorism strikes at each one of them. This is the
enormity
of the problem that we are addressing. But it is also said that
our
criminal law systems have broken down; it seems to be a sad fact
to
accept. Are we aware of the conviction rate under the so-called
ordinary
laws- At times we try and conceal the figures and say that in
India the
conviction rate is 40%. But that 40% is actually a camouflage
because
every time there is a challan and somebody pays Rs 100 as fine, it
is
recorded as a conviction. Every time somebody feels guilty and
pays a
fine under company law, we take it as a conviction and then claim
that
the conviction rate is 40%. In heinous crimes like murder, the
conviction rate under the so-called normal processes has come down
to
6.5%. There are several reasons for this. One is that when we deal
with
hardened criminals, some of our old notions of criminal law have
to
change. It is a sad reality that crime in India has become a low
risk
business. It is a high profit business with a 93% probability that
you
can commit a hard crime and get away with it.
So it becomes very necessary in a country like India that if a law
regarding terrorism is enacted it should be made so stringent that
the
culprit be bought to book and does not go scot-free just because
of the
loopholes and lacunaes in the ordinary law because when our
neighboring
nation Pakistan which is the cause of perpetrating terrorism in
India
and can have such stringent laws why can not we have such laws.
Analysis of some important sections of Pota-
In the case of
People's Union for Civil Liberties Vs. Union of
India
(UOI) (2004) 9 SCC 580 the constitutional validity of the
Prevention of
Terrorism Act, 2002 was discussed. The court said that the
Parliament
possesses power under Article 248 and entry 97 of list I of the
Seventh
Schedule of the Constitution of India to legislate the Act. Need
for the
Act is a matter of policy and the court cannot go into the same.
Once
legislation is passed, the Govt. has an obligation to exercise all
available options to prevent terrorism within the bounds of the
constitution. Mere possibility of abuse cannot be a ground for
denying
the vesting of powers or for declaring a statute
unconstitutionally.
Court upheld the constitutional validity of the various provisions
of
the Act.
1.Section
3(a) Defining terrorist act-
Whoever with
the intent of threatening the unity, integrity, security and
sovereignty of India 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.
Case Law-
Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1)
SC
(Cr.) 209 In a case where 9 person had died and several other
injured on
account of perpetrated acts The court said that such terrorist who
have
no respect for human life and people are killed due to there
mindless
killing. So any compassion to such person would frustrate the
purpose of
enactment of Tada and would amount to misplaced and unwarranted
sympathy. Thus they should be given death sentence.
Argument against- trade union activity would be affected because
whoever
disrupts essential supplies would be covered under POTA.Argument in favor- at least our trade union leaders are
nationalist
leaders. Nobody has ever suggested that when our trade union
leaders go
on strike, they threaten the unity, integrity, security and
sovereignty
of India.
2.
Section 4
Possession of certain unauthorized arms-
Where any person is in unauthorized possession of any- bombs,
dynamite or hazardous explosive substance or other lethal weapons
capable of mass destruction or biological or chemical substances
of warfare in any area, whether notified or not.
Case Law-
Sanjay Duttt Vs. State through C.B.I
1994 SCC 410 The
expression possession though that of section 5 of Tada has been
stated
to mean a conscious possession introducing thereby involvement of
a
mental element i.e. conscious possession & not mere custody
without
awareness of nature of such possession and as regards unauthorized
means
and regards without any authority of law.
Argument
against -
That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such
arms
has any nexus with a terrorist.
Argument in
favour -
Firstly the
section clearly says that any person who has unauthorized
possession of arms that is does not possess a proper license for
the arms. This section is only making the law stringent by stating
that anybody who possesses arms should also possess proper license
from the proper authority.
Secondly it
also states weapons should be capable of mass destruction or
biological or chemical substances of warfare so why would any
person without any reason possess such kind of weapons and that to
unauthorized
3.
Section 7 Powers of investigating officers -
If 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.
Argument against -
The petition
articulates the fear that permitting a police officer to act on
the basis of his belief will be "draconian
and unguided.
Argument in favour - Case Law -
T.T. Anthony Vs. State of Kerala
2001 Cri
LJ 3329 This plenary power of police to investigate a cognizable
offence
is not unlimited. It is subject to certain limitations such as if
no
cognizable offence is disclosed & still more if no offence of any
kind
is disclosed the police would have no authority to undertake an
investigation.
4. Section 21 Offence relating to support given to a terrorist
organisation-
(1) A person commits an offence if
(a) He invites support for a terrorist organization , and
(b) The support is not , or is not restricted to, the provisions
of
money or other property
(2) A person commits an offence if he arranges, manages or assists
in
managing or arranging a meeting which he knows is-
(a) to support a terrorist organization, or
(b) to further the activities of a terrorist organization , or
(c) to be addressed by a person who belongs or professes to belong
to a
terrorist organization.
(3) A person commits an offence if he addresses a meeting for the
purpose of arranging support for a terrorist organization or to
further
its activities.
Case Law -
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 had defended POTA in Parliament during the debate on
it.
Therefore his petition challenging the validity of Section 21 of
the Act
assumes particular significance. Under this Section, a person
commits an
offence if he invites support for a terrorist organisation, and
even if
the support is not confined to the provision of money or other
property.
He is guilty if he arranges or addresses a meeting which he knows
is
meant to support a terrorist organization or to further its
activities.
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.
When we looked at various chapters internationally, it was found
that as
far as membership of a terrorist group is concerned, the British
law has
an exclusive chapter on banning terrorist organizations. After
banning a
terrorist organization, membership of a terrorist organisation,
ipso
facto, becomes a punishable act.
5. Section 22- Fund raising for a terrorist organization to be an
offence-
(1) Whoever commits an offence if he-
(a) invites, receives or provides money or other property
(b) intends that it should be used, or has reasonable cause to
suspect
that it may be used, for the purposes of terrorism.
The second component that was not there in TADA is, if you try and
earn
money through a crime, that is, through terrorism, there are two
offences which flow out of that. Whoever funds terrorism is also
held
guilty. By funding terrorism you are abetting terrorism. You are
giving
resources to terrorism. The old terrorist laws the world over
never had
a chapter on funding of terrorists. But now you must create a fear
and
scare in the minds of those who fund terrorists.
What you earn out of crime is not your private property, it is
against
public interest and must belong to the state. The UN passed a
draft
Money Laundering Bill which all of us have been debating. The
whole
concept of money laundering is that profits out of crime must be
confiscated because they cannot belong to an individual. Is it the
argument today that since India is now to have a provision where
profits
from terrorism will be confiscated, it is a draconian provision.
6. Section 27 Powers to direct for samples, etc.-
when a police
officer
investigating a case requests a Chief Metropolitan Magistrate to
obtain
hand writing, footprints, photographs, blood, saliva, semen, hair,
voice
of any accused person reasonably suspected to be involved in the
commission of this act it will be lawful for the judge to give
such
orders as the case may be. If any accused person refuses to give
such
samples the court shall draw adverse inference against the
accused.
Case Law -
S. Srinivasa Vs. M/s Deccan Petroleum Ltd. 2001 Cri LJ
659
The
court said where the order of refusal to issue summons for
production of
document was prejudicial to accused then such order is not
sustainable.
The most important part of the section says that the power to take
samples is not given to the police authorities but when a police
officer
investigating a case requests a Chief Metropolitan Magistrate to
obtain
samples of any accused person reasonably suspected to be involved
in the
commission of this act and then if only the Chief Metropolitan
Magistrate gives the order to obtain such samples its only then he
can
force the accused to give such samples. If any accused person
refuses to
give such samples the court shall only then draw adverse inference
against the accused.
7.Section 32
Certain confessions made to police officers taken into
consideration -
A confession
made by a person before a police officer not lower in rank than a S.P. and recorded by him out of which sound
or
images could be reproduced shall be admissible in trial of such
person
for the offence under this act.
Case Law -
Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1)
SC
(Cr.) 209 The court said that it is entirely to the court trying
the
offence to decide the question of admissibility or reliability of
a
confession in its judicial wisdom strictly adhering to law it must
while
so deciding the question should satisfy itself that there was no
trap.
No track and no importance seeking evidence during the custodial
interrogations and all the conditions recquired are fulfilled. If
the
court is satisfied then the confessional statement will be a part
of the
statement.
Confessions
could be made admissible evidence.
In respect of confessions, we have given the facility of video
recording. After that, within 48 hours, the person should be
produced before a magistrate. The magistrate will ask whether it
was voluntary or not. If the accused says that it was not
voluntary, that he had been assaulted and coerced, the magistrate
will have a medical examination done. So, a safeguard has been put
in.
State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11
SCC 600
this was an appeal against convictions in view of attacks made on
parliament. 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.
Admissibility of intercepted phone calls, intercepted phone calls
are
admissible piece of evidence under ordinary laws even though
provisions
of POTA cannot be invoked as it presupposes investigation to be
set in
motion on date of its interception. Impact of procedural
safeguards
under POTA on confession. Confession made involuntary is
inadmissible
evidence. If procedural safeguards have not been complied it will
affect
admissibility and evidentiary value of evidence being proved all
charges
beyond reasonable doubt convictions were upheld.
8. Section 45
Admissibility of evidence collected through the interception of
communication
(1) Notwithstanding anything in the code or in any other law for
the time being in force the evidence
collected
through the interception of wire, electeronic or oral
communication
shall be admissible as evidence against the accused in the court
during
the trial of a case.
It is said
that TADA was misused. Probably it was misused. I would like to
point out that one of the great weaknesses in TADA
a
structural
defect
was its dependence on witnesses; eyewitnesses and humble
citizens appearing against terrorist groups. Anybody from Punjab,
Mumbai
or Kashmir will testify that the average citizen is scared of
coming and honestly deposing before these institutions. This is a
threat that the witnesses face against terrorist acts. So how can
a normal person be able to give a statement before the court
So there is a need bring in a provision that when terrorist gangs
communicate with each other, intercepts of their communication
should be
allowed and these intercepts should become admissible evidence in
court.
So, when you arrest terrorists, you do not need a humble citizen
to come
and give evidence against them. You produce the recording of that
intercept. At that moment, it becomes admissible evidence. Under
normal
law it is not admissible evidence. We examined the suggestion and
accepted it. One of the strengths of this law is actually on the
question of intercepts becoming admissible evidence. It is one
reason
why in Maharashtra, the conviction rate has reached 75% plus under
MOCA.
9. Bail provision This language of a bail provision, the CrPC
normal
bail provisions, will not apply:
?That no person will be released
on
bail unless the public prosecutor has an opportunity or where he
opposes
the application, there is a reasonable opportunity of believing
that the
person is innocent and shall not commit an offence. This was the
language under TADA.
The language was diluted under POTA.10. Action against police officer
.There is a provision that in case any police officer misuses this
law
for his own personal purposes or for collateral reasons, he will
be
prosecuted under POTA itself. Several safeguards have been
incorporated
in the Act to minimize the possibility of its misuse. Some of the
main
safeguards are as follows:
(i) Investigation of an offence under the Act is to be done by an
officer not below the rank of Deputy Superintendent of Police.
(ii) No court can take cognizance of an offence under the Act
unless
sanction of the State.
(iii) The Act provides safeguards against abuse of the provision
relating to admissibility of confession made before a police
officer.
(iv) Intimation of arrest of the accused will have to be provided
to a
family member immediately after arrest and this fact is to be
recorded
by the police officer.
(v) Provision for prosecution of police officers for malafide
actions
under the Act and compensation to affected persons in such cases.
The State Government/UT Administrations were advised to ensure
that the
provisions of this law are used only against the terrorists and
not
against the innocent. They were also advised to sensitize the
police
officers and others concerned with the implementation of POTA on
the
need to ensure its fair and transparent operation and to also
install a
mechanism to oversee the implementation of the Act.
MCOCA does not stipulate prosecution of police officers found
guilty of
its misuse. But POTA did. Under POTA a police officer found guilty
of
malafide action could be jailed for up to two years but MCOCA
offers no
such protection.
Finally the law extended to the state of J&K unlike other laws.
Consequences of repeal of POTA-
Finally on September 17, 2004 the Union Cabinet in keeping with
the UPA
government's Common Minimum Programme, approved ordinances to
repeal the
controversial Prevention of Terrorism Act, 2002 and amend the
Unlawful
Activities (Prevention) Act, 1967. By the promulgation of
1.Ordinance No.1 of 2004, it repealed POTA, a law specially
designed to
deal with the menace of terrorism with its repeal, the state
apparatus
combating terrorism has been debilitated.
2. By Ordinance No 2 promulgated on the same day, virtually all
the
penal provisions of Pota concerning terrorist organisations and
activities were transferred to the pre-existing milder sounding
Unlawful
Activities (Prevention) Act, 1967 (UAPA). By Ordinance No 2, the
definition of
unlawful association
has been expanded to also include any association
which has for its object any activity which is
punishable under Section 153A of the Indian Penal Code, or which
encourages or aids persons to undertake any such activity, or of
which
the members undertake any such activity. Section 153A is about
promoting enmity between different groups on grounds of religion,
race,
place of birth, residence, language, etc.
3. There would be no arrests made after the ordinance is
promulgated.
4. Among the
special provisions dropped are those restricting release on bail
and allowing longer periods of police remand for the accused. Now
suspected terrorists may roam free under the
bail a rule, jail an
exception dictum. The police will not get sufficient time to
interrogate the accused to investigate the cases which, by their
very
nature, are complex. In Pota, as in Tada earlier, confessions made
before a police officer of the rank of superintendent were
admitted as
evidence.
5. All terrorist
organizations banned under POTA would continue to
remain banned, under the Unlawful Activities Act, after the repeal
of
the Act.
6. Some of the clauses contained in POTA, which will be completely
dropped in the amended Unlawful Activities Act, are: the onus on
the
accused to prove his innocence, compulsory denial of bail to
accused and
admission as evidence in the court of law the confession made by
the
accused before the police officer.
7. In another major departure from Pota,
the government has removed all traces of
strict liability. Meaning, the burden of proof has
shifted
from the accused to the police. There is no presumption of guilt
under UAPA. Like under any other ordinary criminal law, the police will
have
to establish that the accused person had a criminal intention for
committing the offence in question.
8. But beware, these concessions from the internal security
establishment have not come without a price. As reported recently
in the
Indian Express, UAPA is more draconian than Pota when it comes to
the
admissibility in evidence of telephone and e-mail intercepts. The
police
can now produce intercepts in the court without abiding by any of
the
elaborate safeguards provided by the repealed law. Thus, if the
police
cannot anymore extract a confession in custody, they have been
given
more scope than before to plant evidence in the form of
interceptions.
9. Another
glaring shortcoming in the new law pertains to the dichotomy in
the provision for banning
terrorist organisations
and
unlawful organisations. UAPA was originally meant only for banning
unlawful
organisations. Now it has a separate chapter for banning terrorist
organisations as well. Thus, the procedures prescribed by the same
law
for the two kinds of bans are different. But the problem is that
the
procedure for banning a group on the charge of terrorism is easier
than
to ban it on the milder charge of unlawful activities. The
government
cannot, for instance, ban any group for unlawful activities
without
having its decision ratified within six months by a judicial
tribunal
headed by a sitting high court judge. There is no such requirement
if
the ban is on the charge of terrorism. This anomaly has arisen
because
of the strategy adopted by the UPA government to
hide
special provisions in an ordinary law.
So what remains on the statute books- The UAPA was designed to
deal with
associations and activities that questioned the territorial
integrity of
India. When the Bill was debated in Parliament, leaders, cutting
across
party affiliation, insisted that its ambit be so limited that the
right
to association remained unaffected and that political parties were
not
exposed to intrusion by the executive. So, the ambit of the Act
was
strictly limited to meeting the challenge to the territorial
integrity
of India.
Unlawful Activities (Prevention) Amendment Act, 2004
It would however be simplistic to suggest, as some critics did,
that the new law has retained all
the operational teeth of Pota
or it has made only
cosmetic
changes. The difference between Pota and UAPA is
substantial even as a lot of provisions are in common.
A brief outline of the amended act:
The Act does not define the word
terrorist
in its definition clause but defines a terrorist act. The word
terrorist is to be construed according the definition of the
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 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 (Section 15).The above definition did not exist in the 1967 Act. The previous
Act
only defined and dealt with unlawful activity. An unlawful
activity
includes an activity which intends to bring about cession of a
part of
the territory of India or the secession of a part of the territory
of
India from the Union, or which incites any individual or group of
individuals to bring about such cession or secession; or which
disclaims, questions, disrupts or is intended to disrupt the
sovereignty
and territorial integrity of India, or which causes or is intended
to
cause disaffection against India Section 2(o).
Whether an association is unlawful is to be declared by the
Central
government by giving the grounds for such a declaration. Section 3
Thereafter; it is referred to the Tribunal Section 4. A notice is
issued
by the Tribunal to the association concerned to show cause why it
should
not be declared unlawful. To ascertain whether there is sufficient
cause
for declaring the association unlawful.
For taking cognizance of any offence under this Act prior sanction
of
the Central or the State government, as the case may be, is
necessary.
Criminal Procedure Code, 1973, is made applicable in matters of
arrest,
bail, confessions and burden of proof. Those arrested are to be
brought
before a magistrate within 24 hours, confessions are no longer
admissible before police officers and bail need not be denied for
the
first three months. The presumption of innocence leaving the
burden of
proof on the prosecution has also been restored.
The evidence collected through interception of wireless,
electronic or
oral communication under the provisions of the Indian Telegraph
Act or
the Information Technology Act or any law being in force has been
made
admissible as evidence against the accused in the court Section
46.The amended Act provides for following penalties: Offence Includes Penalty
Being a member of an unlawful association A person who is and
continues
to be a member of such association, takes part in meetings,
contributes
to, or receives or solicits any contribution for the purposes of
the
association or in any way assists the operations of such
association. If such person is in possession of unlicensed firearms,
ammunition,
explosive, etc, capable of causing mass destruction and commits
any act
resulting in loss of human life or grievous injury to any person
or
causes significant damage to any property, and if such act has
resulted
in the death of any person. In any other case Imprisonment for a term which may extend to two
years
and fine.
Death or imprisonment for life.
Imprisonment for not less than five years.
Dealing with funds of an unlawful association Includes an
association
declared unlawful by the central government. Such association is
prohibited from dealing in any manner with moneys, securities or
credits
pays. Imprisonment upto three years, or fine, or both.
Contravention of an order made in respect of a notified place
Includes
use of articles for unlawful activities found in a notified place
(i.e.
a place used for unlawful association and so notified by the
central
government). Imprisonment upto one year.
Unlawful activities Includes taking part in or committing an
unlawful
act, advocating, abetting, advising or inciting the commission of
any
unlawful activity.
Assisting an unlawful organization in its activities. A term of
seven
years and fine.
Imprisonment upto five years or fine, or both.
The amended law now contains new provisions dealing with terrorist
acts,
the offences and their punishments. Chapter IV, sections 15-22.
The
following table summarises these provisions:
Offence Punishment
Terrorist act Resulting in death of any person
In any other case Death or imprisonment for life.
A term for not less than five years.
Raising funds for a terrorist act Term not less than five years.
Conspiracy Term not less than five years.
Harbouring Imprisonment for not less than three years.
Being a member of a terrorist organization The term may extend
upto
imprisonment for life.
Holding proceeds of terrorism May extend to imprisonment for life.
Threatening witnesses Imprisonment upto three years.
There is a provision in the Act which provides for enhanced
penalties.
Any person aiding a terrorist or acting in contravention to
Explosives
Act, 1884, the Explosive Substances Act, 1908 or the Inflammable
Substances Act, 1952 or the Arms Act, 1959, or has unauthorized
possession of bombs, explosives, etc, will be punished with a term
not
less than three years and may extend for life (Section 23).
The Act also gives power to the Central and the State Governments,
as
the case may be, to forfeiture the proceeds of terrorism. The
investigating officer is empowered to seize the concerned property
with
the prior approval of the Director General of the police of the
State
(Section 24 and 25). Cash (including monetary instruments) can
also be
seized if it is intended to be used for purposes of terrorism. The
Court
confirms the seized property and orders its forfeiture Section 26.
An
appeal to the High Court against the forfeiture is allowed within
one
month from the date of receipt of such order.
Chapter VI of the amended Act gives power to the Central
government
under section 35 to add or remove an organization in the schedule
as a
terrorist organization. Under section 36, an application can also
be
made to remove an organization from the schedule. Such an
application
can be made by an organization or any affected person. The
offences and
penalties under this chapter as given below:
Offences Punishment
Membership of a terrorist organization (S. 38) Imprisonment not
exceeding ten years.
Supporting a terrorist organization (S. 39) Imprisonment not
exceeding
ten years.
Raising funds for terrorist organization (S. 40) A term not
exceeding
fourteen years.
The Act also provides for protection of witnesses under section 44
such
as keeping the their identities secret even in orders, judgments
and
records of the Court, issuing directions to secure the identity of
the
witnesses and by imposing punishment for contravention of any such
directions.
Conclusion
Various suspicion and voices have been raised by people NGO's
under the
pretext of constitution, constitutional provisions, and equality
before
law and civil rights. All these organizations must keep in mind
that
provisions are there in the constitution where reasonable
restrictions
can be enforced even upon the liberty of people and in view of the
increasing terrorist activities in the nation more particularly in
view
of the 9/11 attacks on the World Trade Center which killed more
then
3000 people and 13 December attack on the Indian Parliament and
large
number of terrorist activities not only in J&K, N.E., A.P., and
other
areas of our country need for promulgation of POTA type
legislation
becomes the need of the hour. However there are numerous
safeguards to prevent the abuse of above legislation by
unscrupulous investigating officers, which are being ignored by various organization
professing the
repeal of such law. The attention of those who are against this
legislation is invited to object and reason for which POTA was
enacted.
The repeal of Pota is just party politics to gain for their
party's vote
bank. If you do not give to your security forces and investigative
forces the legal power, human rights violations will be much
worse.
Therefore, if you want, out of concern for human rights, the
powers not
to be misused, you cannot sustain a situation where you do not
give
powers to the police but put pressure on it to deliver. You will
have a
situation of anarchy.
Therefore, let us all understand the problem we are now dealing
with.
And this problem requires various kinds of provisions. Legitimate
power
has to be given because this is an extraordinary situation.
Extraordinary situations require extraordinary remedies. Please do
not
advise us to use velvet gloves. Terrorism has several consequences
that
have to be faced in the context of a growing threat to the
country.
References have repeatedly been made to laws in other countries.
It is
very dangerous to quote selectively. Let us not selectively take
our
lessons from America. With all due respects to those great
countries,
when 3,000 people sadly died in the World Trade Centre, the US
president
said that a war had been launched on America. When 61,000 people
and
8,000 security persons have died here, we are advised to show
restraint.
We are advised that this is the remedy; that we should deal with
it
under the normal procedure. Learning from this experience, I would
urge
the people who are opposing this law to once again reconsider
their
stand because posterity eventually will decide that this country,
for
its integrity, sovereignty and unity certainly needs this law.
Quite
clearly, there is a crying need to fight the menace of terrorism
unitedly. Partisanship of any sort in dealing with the ISI-sponsored
terror attacks in India should be abandoned forthwith. Today
terrorism
has reached the heart of India in New Delhi's Parliament House.
And to
suggest that preventive detention laws without any safeguards
whatsoever
against their misuse were required in those relatively peaceful
times in
the Seventies and Eighties but are not required now, even with
safeguards against their misuse, is to betray a sickening streak
of
partisanship.
To the extent it detracts from presenting a united front against
terrorists, the governments myopic stand on POTO and MCOCA in
Delhi
represents a greater threat to national unity than even the threat
of
the ISI-sponsored terror. So it becomes very necessary in a
country like
India that if a law regarding terrorism is enacted it should be
made so
stringent that the culprit be bought to book and does not go
scot-free
just because of the loopholes and lacunae's in the ordinary law
because
when our neighboring nation Pakistan which is the cause of
perpetrating
terrorism in India can have such stringent laws then why can not
we have
such laws. Indian law as it stands today has come around in
strange
circumstances as the earlier legislation was found capable of
being
misuse. This law is less harsh than the previous anti-terrorism
laws in
India and is not equipped by way of express provision for
discretion to
deal with a vast variety of terrorist activity or other activities
connected with perpetration of terrorism.
Therefore I am of the considered opinion that the Prevention of
Terrorist Activities Act should be brought back for curbing
terrorism
and such like activities with a strong arm, which may help in
preventing
and deterring such activities.
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Anti-terrorism laws in India & The need of POTA
More Related Topics:
The
author can be reached at
siddharthmalik@legalserviceindia.com
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