Anti Terrorism Law: Distinguishing Myth And Reality
What is Terrorism? How should we define it? Despite the vast publicity, the subject has seldom received sensible answers.
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 rumoured to have coined the term “terrorists” to refer to themselves.
According to Christopher Hitchens,“ Terrorism is a tactic of demanding the impossible, and demanding it at gunpoint”.
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 laws of various democratic States also provide definitions which includes, for example
- German Federal Republic: “Terrorism is the enduringly conducted struggle for political goals, which are intended to be achieved by means of assault on the life and property of other persons, especially by means of severe crimes as detailed in art. 129a of the penal code.”
- United Kingdom: “for purposes of legislation, terrorism is the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.”
In the famous case of P.U.C.L. v. Union of India, the nature of “terrorist acts” has been specifically mentioned. It is mentioned that terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-state, inter-national or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement (emphasis supplied).
For the mighty and the midget, the very idea of “terrorism” is a snare. The main purpose of terrorism is to harm, to destroy, to destruct whatever the reason be, it never leaves a bed of roses, rather a pool of blood.
Further as George W. Bush has said “We do not create terrorism by fighting the terrorist; we invite terrorism by ignoring them”. Hence the need of the hour is to devise ways to curb and counter these acts, and what other device can be more effective than implementing laws in this regard.
Therefore we need to have anti-terror laws round the world to counter this spreading filth of terror. Two models are usually followed by legislatures of various countries while framing anti-terror laws. They are (1) the criminal justice model (2) warfare model.
According to the criminal justice model, terrorists should be held criminally responsible for their acts and tried in open courts akin to those who commit acts like blowing up of buildings, kidnapping individuals and killing large number of individuals for material gain or private vengeance. However, the proponents of warfare model consider the criminal justice model inappropriate. Militaries of various countries regard terrorism as low intensity warfare; hence they prefer to take the strife against terrorism as a war where no rule is followed.
In practice, most democracies confronted by serious terrorist threats employ some mix of the criminal justice and warfare models. However, the fix is to frame laws that carve out the best possible path. In most cases these anti-terror laws are more tilted towards the whims and fancies of the legislature. Savigny, the propounder of historical school believed that all the laws of a country should reflect the ‘spirit of the people’. He stated that law, like language, is an expression of the “common consciousness of the people”, the concept of the Volksgeist was introduced into legal analysis by him.
In India, anti-terrorist laws draw their legitimacy from article 22 of the Constitution of India. It enshrines provisions related to safeguards against arrest and preventive detention. The state can exercise this power for reasons related to the security of the state and the maintenance of public order. Moreover, it is believed that laws are passed by the parliament by taking into due regard the common consciousness of the people. However, this the biggest myth, to elucidate, the terror strikes on Mumbai city happened on 26th November 2008 and the new anti terror law, unlawful activities(prevention) amendment act,2008 was passed in a short span of 20 days i.e. on 17th December,2008. It can be safely inferred that such a haste shown by the parliament not only overlooked the spirit of the people but also left some major loopholes in the act.
Going back in antiquity, India has witnessed a series of draconian laws that have not only placed the government at a high pedestal but have also terrorized commoners. The Armed Forces Special Powers Act (AFSPA) is one of them. The wording of the AFSPA enacted by Parliament in 1958 is indeed blood curdling to even read let alone act out. The act states that any commissioned officer, warrant officer, non-commissioned officer or person of equivalent rank in a disturbed area may fire upon or use force even to the point of causing death if he is of the opinion that it needs to be done to maintain public order. He may arrest, without a warrant, any person against whom a reasonable suspicion exists and may use the above mentioned force to effect the arrest, as well as enter and search without warrant any premises to make any such arrest or if reasonable suspicion exists. If this weren’t enough already, the Act gives sweeping immunity to anyone acting under it. “The Indian government’s responsibility to protect civilians from attacks by militants is no excuse for an abusive law like the AFSPA, and fifty years of suffering under the AFSPA is too long – the government should repeal the AFSPA now” said Meenakshi Ganguly, senior South Asia researcher for Human Rights Watch. The AFSPA has not only led to human rights violations, but it has allowed members of the armed forces to perpetrate abuses with impunity. The Supreme Court has issued guidelines to prevent human rights violations, but these are routinely ignored.
Moving further, Maintenance of Internal Security Act was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers – indefinite “preventive” detention of individuals, search and seizure of property without warrants, and wiretapping – in the quelling of civil and political disorder in India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security. The legislation gained infamy for its disregard of legal and constitutional safeguards of civil rights, especially when “going all the way down” on the competition, and during the period of national emergency (1975-1977) as thousands of innocent people were believed to have been arbitrarily arrested, tortured and in some cases, forcibly sterilized. The 39th Amendment to the Constitution of India placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review; even on the grounds that it contravened the Fundamental Rights which are guaranteed by the Constitution, or violated the Basic Structure. The decision of the majority bench of the Supreme Court in A.D.M Jabalpur v. Shivkant Shukla marked one of the darkest phases in the constitutional history of India. The constitutional validity of MISA was upheld giving the incumbent government unregulated powers. The decision abrogated the supreme law of the country, the constitution of India that recognised right to life and personal liberty as a fundamental right under article 21 of the constitution.
In the year 1987, Terrorist and Disruptive Activities (prevention) Act was passed. It can be considered as one of the more draconian pieces of legislation to be passed by the Indian state. NHRC report states that out of 67,000 people booked under it, only 8,000 people were put on trial and a mere 725 people were convicted. A survey of TADA cases reveals many instances of false arrests, police excesses, and extortion. People were imprisoned under the act for matters entirely unconnected with violent political acts. Religious minorities were selectively targeted under TADA. For instance, in Rajasthan out of 115 TADA detainees 112 were Muslims and the remaining three were Sikhs.
Another law which existed in India amidst widespread dissent from the masses, but which has now been repealed is the Prevention of Terrorism Act (POTA). POTA was promulgated, by government ordinance, soon after the September 2001 attack on New York’s World Trade Centre. POTA discarded the fundamental right of accused to due process and presumption of innocence. Persons arrested under POTA could be held for 30 days before authorities had to produce them in a special court of law. Human rights organisations have shown that on numerous occasions the authorities used this 30-day period to extract “confessions” through threats and torture. POTA detainees were subjected to various atrocities. The legislators of POTA gave a green light to such an act by underscoring Indian judicial system’s normal rules of evidence. According to Human Rights Watch, “POTA was used by the government against political opponents, religious minorities, Dalits [or ex-untouchables], tribal and even children”. Even India’s official Human Rights Commission condemned POTA, declaring that “existing laws are sufficient to deal with any eventuality, including terrorism, and there is no need for a draconian POTA”. Section 49(2) of POTA allowed police to detain a suspect for up to 180 days without a formal charge, far exceeding the limit under ordinary Indian criminal law. Although the Indian Constitution requires police to promptly inform a person of the grounds for his or her detention and to provide the “earliest opportunity to make a representation” before a magistrate, and Indian case law identifies a speedy trial as “an integral and essential part of the fundamental right to life and liberty enshrined in the Constitution. POTA managed to dramatically undermine these safeguards against the arbitrary and punitive detention of innocents.Moreover, POTA was significantly worse than TADA as its scope extends beyond “terrorists” to “terrorists organisations” and their supporters and sympathisers, who by definition are not terrorists. This draconian law also empowered the government to tap telephone and other communication channels and confiscate suspected “proceeds of terrorism”. Such a carte blanche was an infringement to the right to privacy encompassed under “right to life and personal liberty” i.e. article 21 of the constitution of India.
As the United Progressive Alliance came to power in the general elections of 2004 it withdrew POTA and brought into force the Unlawful Prevention Activities (amendment) Act, 2004. The amendment act in 2004 incorporated all the provisions of POTA, making it equally draconian. The act was further amended in the year 2008, intended to deal with terrorism, and adopted in haste following the November 2008 terrorist attacks in Mumbai, borrow provisions from the previous, unsuccessful anti-terror laws, rather than offering a new approach. Although, according to the government, the December 2008 amendments balance the need to fight terrorism with the need to protect civil liberties, it appears that no fresh insights have been gained in this regard. The missing element from UAPA, according to the United Nations, “at the national level, the specificity of terrorist crimes is defined by the presence of three cumulative conditions: (i) the means used… (ii) the intent… and (iii) the aim, which is to further an underlying political or ideological goal.” The UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism observed that without all three elements the prohibited act could not be considered a terrorist act because it fails to distinguish itself from an ordinary criminal act. The 2008 amendment thus reflects a lack of conceptual understanding of terrorism.
A Comparison With The U.S. Patriot Act
“The events of September 11 convinced … overwhelming majorities in Congress that law enforcement and national security officials need new legal tools to fight terrorism. But we should not forget what gave rise to the original opposition – many aspects of the bill increase the opportunity for law enforcement and the intelligence community to return to an era where they monitored and sometimes harassed individuals who were merely exercising their First Amendment rights. Nothing that occurred on September 11 mandates that we return to such an era.”
The USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) of 2001, was passed quickly and overwhelmingly by lawmakers and was enacted on 26 October 2001. It has been characterized as providing law enforcement agencies with the necessary and crucial tools in its effort to combat terrorism and protect the people of America. However, the critics claim that the act goes too far and paint the act as a cauldron of abuse and a threat to civil liberties. There is a concern regarding citizens losing their right of due process and being investigated or put under surveillance unknowingly all in the name of combating terrorism. It is too easy to lower the standards of proof and eroding the basic civil liberties instead of drafting and enacting comprehensive, balanced and effective legislation.
The application of the Patriot Act is also unknown due to the secrecy clause and the secret nature of the courts, with much of the information being what law enforcement agencies are willing, not required to disclose. The executive branch continues to protect this information collection process by loosely linking it to the national security and preventing it from scrutiny and oversight except for being reviewed by internal executive branch agencies. Therefore, it can be inferred that although the act was brought into force to fight terrorism but its draconian nature has taken the common citizens of the country in its grip too.
Anti Terrorism Laws And Human Rights
From our recent experience, we have learnt that terrorist attacks against innocent and unsuspecting civilians threaten the preservation of the rule of law as well as human rights and terrorism can be broadly identified with the use of violent methods in place of the ordinary tools of civic engagement and political participation. It became an increasingly recurrent strategy for insurgent movements as well as identity based groups to make their voice heard through armed attacks and bomb blasts in place of public dialogue. In some circles it is argued that the judiciary places unnecessary curbs on the power of the investigating agencies to tackle terrorism. In India, those who subscribe to this view also demand changes in our criminal and evidence law- such as provisions for longer periods of preventive detention and confessions made before police officials to be made admissible in court. While the ultimate choice in this regard lies with the legislature, we must be careful not to trample upon constitutional principles such a “substantive due process.” This guarantee was read into the conception of “personal liberty” under article 21 of the Constitution of India by our Supreme Court. The necessary implication of the same is that all governmental action, even in exceptional times must meet the standards of reasonableness, non-arbitrariness and non-discrimination. This implies that we must be wary of the use of torture and other forms of coercive interrogation techniques by law enforcement agencies. Coercive interrogation techniques mostly induce false confessions and do not help in preventing terrorist attacks. Furthermore, the tolerance of the same can breed a sense of complacency if they are viewed as an easy way out by investigative agencies. The apprehension and interrogation of terror suspects must also be done in a thoroughly professional manner, with the provision of adequate judicial scrutiny as mandated in the Code of Criminal Procedure. This is required because in recent counter terrorist operations, there have been several reports of arbitrary arrests of individuals belonging to certain communities and the concoction of evidence-such as the production of similarly worded confession statements by detained suspects in different places. The proposals for the admissibility of confessional statements made before the police is also problematic since there are fears that such a change will incentivise torture and coercive interrogation by investigative agencies in order to seek convictions rather than engaging in thorough investigation. Even in United Kingdom, the House of Lords in the Belmarsh decision ruled against a provision in the anti-terrorism, Crime and Security Act, 2001 which allowed the indefinite detection of foreign terror suspects. As a result, the British Parliament accepted a 42-day period as the maximum permissible for detention without charges, subject to judicial attacks.
Therefore even in times like today where terror attacks are numerous, the people want strong anti terror laws, but rather ‘stringent terror laws’ than ‘draconian laws’ which unfurls wrath on the accused. In this regard, the role of the judiciary should not be misunderstood. Adherence to the constitutional principles of “substantive due process” is an essential part of our collective response to terrorism. As part of the legal community, we must uphold the right of fair trial for all individuals, irrespective of heinous their crimes may be. If we accept a dilution of this right, it will count as a moral loss against those who preach hatred and violence. We must not confuse between what distinguishes the deliberations of a mature democratic society from the misguided actions of a few.
Moreover giving expansive powers into the hands of a chosen few might lead to it being used as a tool to slither their own ends. As said “Bad laws are the worst sort of tyranny”, the framers have to be careful about laws they frame, note should also be taken about their implementation. Furthermore it is felt that now it remains only a myth that restricting the fight against terror to only local limits will not suffice, as terrorism has become an international problem one requires an effective multilateral engagement between various nations.