“The promotion and protection of human rights for all and the rule of law is
essential to all components of the Strategy, recognizing that effective
counter-terrorism measures and the promotion of human rights are not conflicting
goals, but complementary and mutually reinforcing”
The human cost of terrorism has been felt in virtually every
corner of the globe. Terrorism clearly has a very real and direct impact on
human rights, with devastating consequences for the enjoyment of the right to
life, liberty and physical integrity of victims. In addition to these individual
costs, terrorism can destabilize Governments, undermine civil society,
jeopardize peace and security, and threaten social and economic development. All
of these also have a real impact on the enjoyment of human rights.
Security of the individual is a basic human right and the protection of
individuals is, accordingly, a fundamental obligation of Government. States
therefore have an obligation to ensure the human rights of their nationals and
others by taking positive measures to protect them against the threat of
terrorist acts and bringing the perpetrators of such acts to justice.
In recent years, however, the measures adopted by States to
counter terrorism have themselves often posed serious challenges to human rights
and the rule of law. Some States have engaged in torture and other ill-treatment
to counter terrorism, while the legal and practical safeguards available to
prevent torture, such as regular and independent monitoring of detention centres,
have often been disregarded.
Other States have returned persons suspected of
engaging in terrorist activities to countries where they face a real risk of
torture or other serious human rights abuse, thereby violating the international
legal obligation of non-refoulement. The independence of the judiciary has been
undermined, in some places, while the use of exceptional courts to try civilians
has had an impact on the effectiveness of regular court systems.
measures have been used to stifle the voices of human rights defenders,
journalists, minorities, indigenous groups and civil society. Resources normally
allocated to social programmes and development assistance have been diverted to
the security sector, affecting the economic, social and cultural rights of many.
These practices, particularly when taken together, have a corrosive effect on
the rule of law, good governance and human rights. They are also
counterproductive to national and international efforts to combat terrorism.
Respect for human rights and the rule of law must be
the bedrock of the global fight against terrorism. This requires the development
of national counter-terrorism strategies that seek to prevent acts of terrorism,
prosecute those responsible for such criminal acts, and promote and protect
human rights and the rule of law.
It implies measures to address the conditions
conducive to the spread of terrorism, including the lack of rule of law and
violations of human rights, ethnic, national and religious discrimination,
political exclusion, and socio-economic marginalization; to foster the active
participation and leadership of civil society; to condemn human rights
violations, prohibit them in national law, promptly investigate and prosecute
them, and prevent them; and to give due attention to the rights of victims of
human rights violations, for instance through restitution and compensation.
What is terrorism?
Terrorism is commonly understood to refer to acts of violence that target
civilians in the pursuit of political or ideological aims. In legal terms,
although the international community has yet to adopt a comprehensive definition
of terrorism, existing declarations, resolutions and universal “sectoral”
treaties relating to specific aspects of it define certain acts and core
elements. In 1994, the General Assembly’s Declaration on Measures to Eliminate
International Terrorism, set out in its resolution 49/60, stated that terrorism
criminal acts intended or calculated to provoke a state of terror in
the general public, a group of persons or particular persons for political
and that such acts “are in any circumstances unjustifiable, whatever
the considerations of a political, philosophical, ideological, racial, ethnic,
religious or other nature that may be invoked to justify them.
Ten years later, the Security Council, in its resolution 1566 (2004), referred
to “criminal acts, including against civilians, committed with the intent to
cause death or serious bodily injury, or taking of hostages, with the purpose to
provoke a state of terror in the general public or in a group of persons or
particular persons, intimidate a population or compel a Government or an
international organization to do or to abstain from doing any act”.
year, the Secretary-General’s High-level Panel on Threats, Challenges and Change
described terrorism as any action that is “intended to cause death or serious
bodily harm to civilians or non- combatants, when the purpose of such an act, by
its nature or context, is to intimidate a population, or to compel a Government
or an international organization to do or to abstain from doing any act” and
identified a number of key elements, with further reference to the definitions
contained in the 1999 International Convention for the Suppression of the
Financing of Terrorism and Security Council resolution 1566 (2004).”
The General Assembly is currently working towards the adoption of a
comprehensive convention against terrorism, which would complement the existing
sectoral anti-terrorism conventions. Its draft article 2 contains a definition
of terrorism which includes “unlawfully and intentionally”
or threatening to cause:
- death or serious bodily injury to any person; or
- serious damage to public or private property, including a place of
public use, a State or government facility, a public transportation system,
an infrastructure facility or the environment; or
- damage to property, places, facilities, or systems…, resulting or likely
to result in major economic loss, when the purpose of the conduct, by its
nature or context, is to intimidate a population, or to compel a Government
or an international organization to do or abstain from doing any act.
The draft article further defines as an offence
participating as an accomplice, organizing or directing others, or contributing
to the commission of such offences by a group of persons acting with a common
purpose. While Member States have agreed on many provisions of the draft
comprehensive convention, diverging views on whether or not national liberation
movements should be excluded from its scope of application have impeded
consensus on the adoption of the full text. Negotiations continue. Many States
define terrorism in national law in ways that draw to differing degrees on these
Laws related to terrorism in India
Terrorism has immensely affected India. The reasons for terrorism in India may
vary vastly from religious cause and other things like poverty, unemployment and
not developed etc.
The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab
 3 SCC 569, where it observed that the country has been in the firm grip
of spiralling terrorist violence and is caught between deadly pangs of
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
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. The measure laws are that:
Unlawful Activities (Prevention) Act, 1967The UAPA was designed to deal with associations and activities that questioned
the territorial integrity of India. The ambit of the Act were 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
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.
The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)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 especially in Mumbai
due to the underworld. For instance, the definition of a terrorist act is far
more stretchable in MCOCA than under POTA. MCOCA mention organized crime and
what is more, includes `promotion of insurgency' as a terrorist act. 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.
Prevention of Terrorism Act, 2002With the intensification of cross-border terrorism and the continued offensive
agenda of Pak ISI targeted at destabilizing India and the post 11th September
developments, it became necessary to put in place a special law to deal with
terrorist acts. Accordingly, the Prevention of Terrorism Act, 2002 (POTA, 2002)
was enacted and notified on 28.03.2002.
The POTA, 2002 clearly defines the terrorist act and the terrorist in Section 3
and grants special powers to the investigating authorities under the Act. 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.
However, in order to ensure that these powers are not misused and the violation
of human rights does not take place, specific safeguards have been built into
the Act. Some of these are:
- No court can take cognizance of any offence under the Act without
the previous sanction of the Central Government or, as the case may be,
of the State Government.
- No officer lower in rank than the Deputy Superintendent of Police
can investigate offences under the Act.
- Confession made by a person before a police officer not below the
rank of Superintendent of Police is admissible as evidence under the Act
provided such person is produced with 48 hours before a magistrate along
with his confessional statement.
- The Act provides for punishment for any officer who exercises powers
maliciously or with malafide intentions. It also provides for award of
compensation to a person who has been corruptly or maliciously proceeded against
under the Act.
The POTA, 2002 is a special law for the prevention of and for dealing with
terrorist activities and clearly defines the terrorist act and the terrorist in
Section 3, Sub-Section (1) of the Act. The Act provides the legal framework to
strengthen the hands of the administration in our fight against the menace of
terrorism and can and should be applied against such persons and acts as are
covered by the provisions of this law and it is not meant as a substitute for
action under ordinary criminal laws.
Unlawful Activities (Prevention) Amendment Act, 2004It 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.
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 there is need to stringent law to tackle the terrorism. We
also need to bear in mind that much as terrorist keep apace with emerging
technology- the current phenomena being termed as fourth generation warfare and
certainly India also need to fine tune and adopt their anti-terror legislation
to fought to the changing time.
The mandate is particularly relevant in India on
one hand it states identified as an emerging economic growth which is harassing
it resource to take it appointed place in the hierarchy of nation at the other
hand its dramatic progress it this direction is sought to be stymied by the
enemies by carrying out repeated terror attacks right across the country.
as proactive executive means of copying with terror (intelligence,
organizational, technical and human capital related) fall into place, we need
not just law that tackle to terrorism but more important what new generation of
people who must be educated an what it means to fight terror in a democratic set
up. In the view of the misuse of power, we can make develop a system to stop it
Award Winning Article Is Written By: Ms.Sneha TS
Authentication No: JU115299508716-1-0621