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Terrorism in India and Legislation for its Prevention

Article · November 2011

DOI: 10.5958/j.0974-5041.5.2.020

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 Terrorism in India and Legislation for its Prevention
Quest - The Journal of UGC - ASC Nainital IndianJournals.com
Volume 5, Issue 2, November 2011, pp. 206-213

Terrorism in India and Legislation for its Prevention

Caesar Roy*

ABSTRACT
Terrorism has today become the latest threat to world peace and particularly to India’s national security. Terrorists are
improving their sophistication and abilities in all aspects of their operation and support. Weapon technology has
become more increasingly available, and the purchasing power of terrorist organisations is on the rise with the ready
availability of both technology and trained personnel to operate it. The terrorists are not only threatening the ideals of
democracy and freedom but also causing a serious challenge to the existence, progress and development of mankind.
There is need for stringent provision for prevention of terrorism. In a country like India if a law regarding terrorism is
enacted it should be made so stringent that the culprit be brought to book and does not go scot-free just because of
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loopholes or lacunas. The need for special laws to combat terrorism cannot be under estimated, actually the problem
lies with the implementation of laws and the abuse of powers conferred on the authorities under the special laws .
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KEYWORDS: Criminal Justice System, Malimath Committee Report, National Investigation Agency, Anti-terrorism
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Legislation, Extraordinary Laws.

INTRODUCTION

Terrorism is not new and though it was seen since the existence, progress and development of mankind. The
beginning of recorded history it is hard to define. The modern technology has further added a new dimension
earliest known organisation was the Zealots of Judea. to terrorism as the highly sophisticated weapons are now
The Assassins were the next group to show recognisable easily available to the terrorist groups as well.
characteristics of terrorism, as we know today. Though
both Zealots and Assassins operated in antiquity, they are All over the world there are numerous terrorist
relevant today as forerunners of modern terrorists in organisations that are existing actively on their own apart
aspect of motivation, organisation, targeting and goal and from other international terrorist organisations. The
although both were ultimate failures still they are alarming increase in terrorist attacks in this century is a
remembered hundreds of years later. cause of serious concern.

Terrorism has today become the latest threat to world MEANING OF TERRORISM
peace and particularly to India’s national security. The
To describe a person, a group or a party as ‘terrorist’ it is
menace of terrorism whether perpetrated by individuals,
necessary to know what ‘terrorism’ is .The term
groups or state forces is a crime against humanity which
‘terrorism’ comes from the French word ‘terrorisme’
has wounded societies all over the world. The terrorist
which is based on the latin verb ‘terrere’ meaning ‘to
has not only threatened the ideals of democracy and
cause to tremble.’According to Oxford English Dictionary,
freedom but also caused a serious challenge to the

*LL.M, PG Diploma in Criminology & Forensic Science, Lecturer in Law, Midnapore Law College, Rangamati, Midnapore,
Paschim Medinipur, West Bengal. PIN - 721102. caesar3@rediffmail.com

Quest - The Journal of UGC - ASC Nainital 206

 Caesar Roy

Second Edition, 1989 terrorism is a policy intended to  Economic Causes : Andhra Pradesh, Madhya
intimidate or cause terror. The Encyclopaedia Britannica Pradesh, Chhattisgarh, Orissa, Bihar and West Bengal
defines terrorism as the systematic use of violence to are prime examples. The economic factors include
create a general climate of fear in a population and the absence of land reform, rural unemployment,
thereby to bring about particular political objectives. exploitation of landless labourers, etc. These
Terrorism is violence or other harmful acts committed economic grievances and gross social injustice have
(or threatened) against civilians for political or other given rise to ideological terrorist groups such as
ideological goals. The European Union defines terrorism Maoist groups operating under different names.
as an act with the aim of “destabilising or destroying the
fundamental political, constitutional, economic or social  Ethnic Causes : It is seen mainly in northeastern
structures of a country.” The Code of Federal Bureau of states such as Nagaland, Mizoram and Manipur due
Investigation of USA has defined terrorism as “the to feelings of ethnic separateness which has given
unlawful use of force and violence against persons or rise to terrorist groups like ULFA etc..
property to intimidate or coerce a Government, a civilian  Religious Causes : Seen mainly in Punjab before
population or any segment, in furtherance of political or 1995 and in Jammu and Kashmir since 1989.In Punjab,
social objectives.” The FBI further describes terrorism some Sikh leaders allege during the 1970 that the
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as either domestic or international depending on the origin, Sikhs were being ignored in Indian society. On the
base, and objectives of the terrorists.
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said backdrop in the 1980, there was an armed

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There are more than 100 definition of the word ‘terrorism’; movement and it turned violent. The name Khalistan
these definitions are used by United Nations Organisation was resurfaced to that effect and sought
( UNO) , the European Union, United States and other independence from the Indian Union. The Babbar
countries. The modern definition of terrorism is inherently Khalsa, a Sikh terrorist group, consequently blew up
controversial. The United Nations states that “the question Air India’s aircraft killing the innocent passengers in
of a definition of terrorism has haunted the debate among the year 1985.In Jammu and Kashmir, muslims
states for decades.” A first attempt to arrive at an belonging to different organisations created terror for
internationally acceptable definition was made under the religious purposes. Hizbul Mujahidin want Indian’s
League of Nations, but the convention drafted in 1937 Jammu and Kashmir State to be merged with
never came into existence. The UN Member States still Pakistan. The terror which loomed large in Jammu
have not agreed upon a definition. The lack of agreement and Kashmir is due to feelings of anger amongst the
on a definition of terrorism has been a major obstacle to section of the muslim youth over the Government’s
meaningful international counter measures. perceived failure to safeguard their lives and interest
or due to Pakistan’s attempt to cause religious
CAUSES OF TERRORISM polarisation.

On proper analysis the following causes for the various PREVENTION OF TERRORISM THROUGH
insurgent/terrorist movements in India can be deduced – LAW

 Political Causes : In Assam and Tripura it is seen In order to legislate a uniform law for Anti-terror activities
that due to the failure of the government to control League of Nations and United Nations Organisation tried
large scale illegal immigration of Muslim from to define a unanimous definition of terrorism through
Bangladesh, to fulfill the demand of economic benefits different Conventions since 1937..The US and UK have
for the son and daughters of the soil etc. both implemented effective anti terrorism laws in the
United States following the terrorist attacks on 9 th
September, 2001. President Bush approved on October

Volume 5, Issue 2, November 2011 207

 Terrorism in India and Legislation for its Prevention

26, 2001, the Uniting and Strengthening America By Act, 2008 to act effectively and decisively on terrorism
Providing Appropriate Tools Required to Intercept and related activities. This Act does incorporate some of the
Obstruct Terrorism (USA PATRIOT) Act of 2001 to deter provisions of the earlier law on terrorism, such as for
and punish terrorist acts in the United States and around detention in police custody for 30 days and extension of
the World. the maximum period for filing a charge-sheet to 180 days
if the court is satisfied with the report of the Public
UK had implemented Prevention of Terrorism Act, 1974, Prosecutor on delay in completing investigations. This Act
Terrorism Act, 2000, Anti Terrorism Crime and Security (Section 43E) introduces the principle of presumption of
Act, 2001, Prevention of Terrorism Act, 2005, Terrorism guilt in respect of a terrorist act when arms, explosives
Act, 2006, Counter Terrorism Act, 2008 to prevent terrorist or other substances specified in Section 15 are recovered
activities. from the possession of the accused. This Act defines
In Belgium Anti Terrorism Act, 2003, in Australia Anti ‘terrorist act.’
Terrorism Legislation, 2004, Australian Anti Terrorism Act, The Code of Criminal Procedure, 1973 has also been
2005, in New Zealand Terrorism Suppression Act, 2002, amended and though, the amendments are not necessarily
in South Africa South African Terrorism Act, 1967 are in the result of the terrorist acts, the changes are bound to
force. Even in Pakistan Anti Terrorism Act, 1997, Anti have a bearing on not only the accused of terrorist acts
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Terrorism Act as amended in 1999 are in force. but also on the victims thereof.
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In the aftermath of the spurt in the terrorist activities in

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The new laws have doubled the length of time suspected

recent years including the attack on the Indian Parliament militants are allowed to be detained without charge. The
and the Mumbai attacks, the Indian Parliament enacted tougher portion of UAPA, 2008 will be executed by the
three legislations in tandem, namely : National Investigation Agency. No doubt that the NIA
a. Establishment of a national investigation agency Act, 2008 has kindled new hopes by creating a cadre of
through National Investigation Agency Act, 2008, committed federal police system filling the gap created
with the objective of bringing in more professionalism by the State Police Administration. The NIA is a new
in the investigation process in terrorist activities. experiment in India in midst of many a crisis and failures
of criminal justice administration and the challenges are
b. The amendments in the Unlawful Activities too many to take over the baton and to manage a system
(Prevention) Act, 1967. with the aspirations endowed to its creation, the interest
c. Amendments in the Code of Criminal Procedure, of national security, human rights and guaranteed civil
1973. liberties of mankind are foremost. The hard law in UAPA,
2008 is poised on the promises of NIA inducted to them
National Investigation Agency (NIA) is a new federal by the NIA Act, 2008. the duo deserves a chance before
agency approved by the Indian Government to combat suspected terrorists go scot-free.
terror in India. The Agency is empowered to deal with
terror related crimes across States without special Anti-terrorism legislation designs all types of laws passed
permission from the States. The provisions of this Act in the purported aim of fighting terrorism. This legislation
with regard to investigation shall not affect the powers of usually includes specific amendments allowing the state
the State Government to investigate and prosecute any to bypass its own legislation when fighting terrorism related
scheduled offence or any other offences. crimes, under the grounds of necessity.
The Unlawful Activities (Prevention) Amendment Act, The scope of terrorist activities is no longer confined to
2008 makes a number of substantive and procedural acts that strike terror or disrupt supplies of essential
changes to empower the National Investigation Agency services in a particular country or area. The terrorist

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 Caesar Roy

activity is widened to include people and life of the Subsequently, India witnessed major terrorist incidents
community in India and in any foreign country. This which included the hijacking of the India Airlines flight
insertion of extraterritoriality may appear to suggest IC – 814 to Kandahar in 1999 and the attack on the
partnership in and a commitment to the United Nations Parliament on December 13, 2001 along with response
resolution calling for international cooperation against to the 9/11 attacks on the World Trade Centre in the USA,
‘global terrorism.’ the Indian outlook has changed and in the March session
of Parliament of 2002 the Prevention of Terrorist Activities
After attaining Independence, the violence witnessed Act (POTA), 2002 was introduced.
during partition forced the Government of free India to
pass the Punjab Disturbed Areas Act, Bihar Maintenance Constitutional validity of POTA, 2002 was upheld by the
of Public Order Act, Bombay Public Safety Act and Supreme Court in the case of People’s Union for Civil
Madras Suppression of Disturbance Act aimed at curbing Liberties v. Union of India.1 The Supreme Court also
forces that were using religion to incite violence. The last upheld the constitutional validity of various provisions of
three decades have witnessed a number of legislations POTA, 2002. Several provisions have been incorporated
being enacted to tackle various specific contingencies: in the POTA, 2002 to minimise the possibility of its misuse.
The PreventiveDetention Act (PDA), 1950; Jammu and
Terrorism has immensely affected India. The reason for
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Kashmir Public Safety Act (1978); Assam Preventive

Detention Act (1980); The Defence of India Act, 1962 the rise of terrorism in India may vary vastly from religious
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and its Rules; The Maintenance of Internal Security Act to geographical to cast to history. The Indian Supreme
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(MISA), 1971; National Security Act (1980, amended Court took the case of Kartar Singh v. State of Punjab2,
1984 and 1987); Anti-Hijacking Act (1982); Armed Forces and observed that the country has been in the firm grip of
(Punjab and Chandigarh) Special Powers Act (1983); spiraling terrorist violence and is caught between deadly
Punjab Disturbed Areas Act (1983); Chandigarh pangs of disruptive activities of anti-terrorism laws in
Disturbed Areas Act (1983); Terrorist Affected Areas India which have always been a subject of much
(Special Courts) Act (1984); National Security (Second controversy. One of the arguments is that these laws stand
Amendment) Ordinance (1984); Terrorist and Disruptive in the way of fundamental rights of citizens guaranteed
Activities (Prevention) Act (1985, amended 1987); by Part III of the Constitution. The anti- terrorist laws
National Security Guard Act (1986); Criminal Courts and have been enacted before by the legislature and upheld
Security Guard Courts Rules (1987) and the Special by the judiciary though not without reluctance. The
Protection Group Act (1988)The Unlawful Activities intention was to enact statutes and bring them in force till
(Prevention) Act, 1967 was passed in 1968. Under this the situation improves. This intention was not to make
Act any organisation could be declared illegal and any these drastic measures a permanent feature of law of
individual could be imprisoned for questioning India’s the land. But because of continuing terrorist activities the
sovereignty over any part of the territory. This Act has statutes have been reintroduced with requisite
been worked all along holistically as such and is modifications.
completely within the purview of the Central list in the 7th The Law Commission of India headed by a former judge
Schedule of the constitution. of the Supreme Court recommended in April, 2000 the
There were instances of TADA being misused and this adoption of a law designed to deal firmly and effectively
Act was lapsed in 1995. with terrorists and their activities.

Actually, after the lapse of TADA in the year 1995 there

was no law of extraordinary nature which could be used
as a weapon against the rising terrorist activities in India.

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 Terrorism in India and Legislation for its Prevention

CRIMINAL JUSTICE REFORM AND TERRORISM that did away with the safeguards that were designed to
prevent innocent persons from being prosecuted and
The menace of terrorism is a crime against humanity which punished, or by providing for a more drastic procedure
has wounded societies all over the world. The terrorists for prosecution of certain crimes 4.
have not only threatened the ideals of democracy and
freedom but also caused a serious challenge to the NEED TO STRIKE A BALANCE
existence, progress and development of mankind.
Amnesty International, in May 2003, charged that, “the
In this context I would like to throw some light on the war on terror, far from making the world a safer place,
recommendation of the Law Commission of has made it more dangerous by curtailing human rights,
Indiaregarding suitable legislation for combating terrorism undermining the rule of international law and shielding
and anti-national activities and also the opinion of the governments from scrutiny”. Again in its Report 2004, it
National Human Rights Commission over this subject said that: “The global security agenda promoted by the
along with the recommendation of the Malimath US Administration is bankrupt of vision and bereft of
Committee on the reform of the Criminal Justice System. principle. Violating rights at home, turning a blind eye to
abuses abroad and using pre-emptive military force where
The Law Commission of India undertook a study of the and when it chooses has damaged justice and freedom,
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security situation for assessing the need for and made the world a more dangerous place.”
comprehensive anti-terrorism law. It took into
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consideration similar legislations in other countries, held “The International Federation for Human Rights (FIDH)
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two seminars on 20th December, 1999 and 29th January, has also criticised the US for the PATRIOT Act and UK
2000 to elicit opinion on the matter, and it opined that for the Anti-terrorism Act, and said that these laws
India requires a permanent anti-terror law and without constitute “serious violations of the International
any further loss of time. Convention on the Elimination of all forms of Racial
Discrimination (ICERD) as they prevent non-nationals
After the expiry of TADA, the Law Commission was from the full enjoyment of basic human rights”. The Acts
entrusted with the task of enacting a suitable legislation also violate Article 26 of International Covenant on Civil
for combating terrorism and other anti-national activities. and Political Rights as they create discrimination on
The Law Commission subsequently recommended grounds of national origin.
Prevention of Terrorism Bill, 2000 which was a modified
version of TADA. However, subsequently Prevention of In India, the government has already repealed POTA and
Terrorism Ordinance, 2001 was promulgated by the is in the process of enacting a milder legislation. The
President. Supreme Court of India in the case lndira Gandhi v.
Raj Narain5 rightly observed that “the major problem of
The National Human Rights Commission (NHRC) human society is to combine that degree of liberty without
rejected the draft bill submitted by the Law Commission which law is tyranny with that degree of law without
and stressed the need for observing and defending which liberty become license”.
‘national integrity’ and ‘individual dignity’ – both being
the central valves of the Constitution and there was a It would appear that we need to strike a balance between
need to balance those two3. According to the NHRC – the security concerns and the human rights considerations.
the problem which the Criminal Justice System in India The regulatory and monitoring mechanism which help
faced is related to (a) proper investigation of crimes, (b) deter, identify, and track terrorists have to be there, but
efficient prosecution of criminal trials and (c) the long these should not seriously jeopardise the liberty and
days in adjudication and punishment in courts. None of freedom of the citizens. The balance should be such which,
the problems, however, could be solved by enacting laws on the one hand, does not fetter the initiative of the

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 Caesar Roy

security forces, maintains their morale and generally gives and actionable intelligence with state governments and
adequate latitude to the government to undertake anti- their agencies and vice versa. Undoubtedly, unified
terrorist operations and, at the same time, ensures that command system is of paramount significance for
the laws of the land are observed and the human rights effective response to crisis situation. Whereas in the
are by and large upheld. Mumbai attacks there was lack of this command system
which resulted in the loss of number of lives. Even there
SOME EFFECTIVE MEASURES was nocommon spokesperson to brief the media. We
Terrorism is a complex phenomenon. As it is basically a should however, learn from our past in a fruitful way.
result of politico-socio-economic and administrative Third, there should be advanced vigilance
malaise, it cannot be cured by military action alone. The apparatuses (like CCTV, checking by metal detectors,
state measures to counter terrorism have, therefore, to tapping of phones, screening of computer, physical
be a mixture of political, social,administrative and military movement etc) installed at sensitive locations/
actions. Fighting terrorism requires taking a series of multi- installations. Further more advanced technologies should
pronged measures and strategies on the part of state be used for communication among law enforcement
authorities and some of them are given below- agencies. On the other hand, during the crisis situation
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First, better governance and law enforcement is the anti-terror squads should coordinate more efficiently and
real need of the hour. It is appreciable that recently effectively. Multiple checking at public places of
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Unlawful Activities (Prevention) Act 1979 has been importance should be done rigorously and regularly.
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amended to incorporate more stringent provisions for Various key players of crisis response system like
search and arrest of suspected terrorists, filling of seasoned negotiators, expert doctors, trained fire
chargesheet, speedy trial in a special court, power of extinguishers, and anti-terror squads with weapons of
detention (up to 180 days), public prosecutor’s plea to be advanced varieties and they should be well trained for
heard before granting bail, and so on. That is police officers perfect coordination with high level of motivation. In
handling such cases have been given more power. Further addition, anti-terrorist squad should have the capability to
creation of National Investigation Agency (NIA) is a step disrupt cell phones of terrorists so that they may not be
in the right direction. Moreover, we have to streamline able to take undue advantage. Further terror attack sites
both the prosecution and criminal justice system in terms should be duly protected for collecting evidence to identify
of transparency and accountability on the part of the perpetrators.
investigating officers, prosecution officers, on the one Fourth, media should be reasonably restrained from
hand, and training for skill-up gradation and sensitisation within and outside because over-exposure about an
of all such officers on the other. incident leads to loss of life of key players of crisis
Second, our multiple intelligence machinery needs to response system. Moreover, undue media exposure to
be activated through training and rejuvenated at action should not be given because it gets radical reaction
different levels and stages in a concerted manner. from the public. Rather the best course of action is to
During attacks on 26th November (2008) in Mumbai there rigorously and quietly ensure the arrest and prosecution
was no actionable intelligence, on the one hand and there of terrorists in accordance with the law of the land
was no rigorous screening and follow up of the raw bringing the guilty fast to the book which would be highly
intelligence available in advance, on the other. In fact, effective and deterrent.
over the years there has developed inertia primarily due Fifth, there should be a genuine effort not to identify
to lack of fixing responsibility and not taking action, on the individual (or group) terrorist with their religious,
available intelligence, to the logical conclusion. Further, linguistic or ethnic communities. Rather grain should
central government and its agencies should share trustable

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 Terrorism in India and Legislation for its Prevention

be separated from the chaff at the earliest otherwise the independent State and National Security Commissions,
situation may get communalised and this would serve the police establishment boards, police complaint handling
bad intention and ill design of terrorists in creating social authorities and providing a minimum tenure of heads of
distance and distrust between two communities. field police officers at all levels, including police chiefs.
The aim of the recommendations was to make the police
Sixth, it is clear that terrorism also has links with and investigative agencies accountable to law and
underdevelopment of a group or community or region simultaneously to free them from the control of the
or nation and the bad elements exploit the sentiments political executive.
of the poor to join against the injustice as it a weak
link. Therefore, it is required that poverty and inequality CONCLUSION
are removed in a transparent manner by giving the people
due opportunity and participation in the economic activities It is argued that extraordinary laws are a response to
in a fair manner. extraordinary situation that emerge primarily because of
the openness and freedom which democracy allows. They
6
According to N.R. Madhava Menon , laws, no matter are integral to its functioning and serve important
how harsh they are, cannot by themselves prevent terrorist restorative, curative and corrective purposes. There is
attacks. What is important is to implement terrorist related also a growing international consensus to combat terrorism.
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laws and the level of motivation and competence of There are existing international treaties and anti terrorist
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persons so appointed. The problem lies with the provisions under the United Nation but these remain
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implementation of laws and the abuse of powers ineffective as most of the governments go by their own
conferred on the authorities under the terrorism related self interest which they are not willing to compromise.
laws. Popular criticism against these laws has been based
more on the manner in which they are implemented on I think there is a need for stringent provisions for the
any modifications in the laws and procedures. Only if the prevention of terrorism. In a country like India if a law
Criminal Justice System which is being followed for a regarding terrorism is enacted it should be made so
long time is performed with reasonable results, then there stringent that the culprit is brought to book and does not
is no need for a special law to deal with terrorist acts, go scot-free just because of loopholes or lacunas in the
only good governance can control terrorism. ordinary law. Also, we need to consider that our
neighbouring nation Pakistan which is the cause of
Prof. Menon has prescribed three distinct functions for perpetrating terrorism in India has also enacted stringent
combating terrorism, and these functions are related to laws something which India also need to follow diligently.
(i) pre-empting and preventing, (ii) containing and
managing and (iii) investigating and prosecuting. There The most important change brought about recently is the
may be a need for convergence of these functions establishment of the National Investigation Agency Act
effectively. The Constitution will not come in the way of (NIA), 2008 as the first step towards effective handling
mounting such an effort with appropriate legislative of terrorism related offences. Combating terrorism is a
support. joint responsibility of central, state and local governments.
This Act envisages centre- state partnership in the
I also hold the view that the problem lies with the police, investigation of terrorist cases.
which is the implementing agency. In September 2006,
the Supreme Court of India issued many directions to Furthermore, recently the Home Minister of India pointing
implement unimplemented police reforms recommended to the threat of terrorism has announced for the
by a number of expert agencies of the government over establishment of National Counter Terrorism Centre
the years. The reforms included the setting up of (NCTC) modelling US NCTC for systemic change in
intelligence processing and functioning of different

Quest - The Journal of UGC - ASC Nainital 212

 Caesar Roy

agencies. This move also aims to integrate security Hence, Kofi Annan, former-secretary general of the
operations and bring down departmental firewalls. The UNO rightly remarked that “Respect for human rights,
multi-agency centres like IB, RAW. NTRO, JIC, NCRB, fundamental freedom and the rule of law are the essential
NIA or NSG being its terror related intelligence functioning tools in the effort to combat terrorism.”
will eventually be included into the NCTC. This is no
doubt an important step to deal with all kinds of terrorist
violence7.

END NOTES
1. 2004 (9) SCC 580 .
2. [1994] 3 SCC 569.
3. Annual Report of the NHRC 2002-2003.
4. Annual report of NHRC, 2001 – 2002.
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5. AIR 1975 SC 2299.

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6. Menon Madhava, N.R, (12.01.2009) Combating terrorism, and some management issues, The Hindu.
www.IndianJournals.com

7. The Times of India, dated 25.12.2009.

Volume 5, Issue 2, November 2011 213

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