By Law Teacher
Anti terrorism Law: Distinguishing Myth and Reality
What is Terrorism? How should we define it? Though it is a trifling question and we might be under an impression that we have a clear picture but it is not so, to say the least. 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.
“Terrorism is a tactic of demanding the impossible, and demanding it at gunpoint”. Terrorism refers to a strategy of using violence, social threats, or coordinated attacks, in order to generate fear, cause disruption, and ultimately, bring 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 laws of various democratic states also provide definitions. Here are three of them:
1) 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.”
2) 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.”
3) United States: “Premeditated, politically motivated violence perpetrated against non-combatant targets by sub national groups or clandestine agents, usually intended to influence an audience”
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 endeavor. 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.
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.
As V.I. Lenin puts it, “the purpose of terrorism is to terrify”. The perpetrators of terrorist acts often hope to create a generalized sense of anxiety and fear among the public. They try and create an environment of chaos, to meet their own ends.
It can be safely said, terrorism can lead to nothing but destruction. 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.
“We do not create terrorism by fighting the terrorist; we invite terrorism by ignoring them” Therefore we need to have anti-terror laws round the world to counter this spreading filth of terror. But in thinking about tackling terrorism, the use of two models: the criminal justice model and warfare model is suggested.
In all democracies blowing up buildings, kidnapping individuals and killing large number of citizens etc., are crimes. Those who commit such acts for reasons of material gain or private vengeance are normally prosecuted under regular criminal statutes. Then why not those who carry out such activities for political or religious motives? In other words terrorists should be held criminally responsible for acts and tried in open courts. The other view is that the criminal justice model is inappropriate or inadequate. So we take terrorism as a kind of warfare. For years military strategies in some countries have regarded terrorism as a kind of low-intensity warfare, so they prefer to take the strife against terrorism as a war where no rule goes.
In practice most democracies confronted by serious terrorist threats employ some mix of the criminal justice and warfare models. 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.
However, the fix is how to frame those laws to carve out the best possible path. In most of the 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 country’
Savigny stated that law, like language, is an expression of the “common consciousness of the people,”, but there are many laws which are formulated which do not reflect the common consciousness of the people but still have been framed as a law and the people had to follow it. Savigny introduced the concept of the Volksgeist into the legal analysis of his time. Savigny stated that law, like language, is an expression of the “common consciousness of the people,” and is driven by “internal, silently operating powers.” For Savigny, German law was an expression of the common consciousness or “Spirit” of the German people.
The Maintenance of Internal Security Act was a controversial law passed by the Indian parliament in 1973 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 law regarding MISA which was passed did not reflect the common consciousness or spirit of the people but still it was passed and the people had to follow it.
In A.D.M. Jabalpur v Shivkant Shukla or the habeas corpus case the Supreme Court came to the conclusion that “In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.” Any person who was considered to be a political threat, or who could politically voice his opposition was detained without trial under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security Act). The opposition was silenced. The common man terrorized.
Many who had been arrested challenged their detention by filing writs of habeas corpus under Article 226 in various High Courts. In most High Courts, the State Governments had raised the issue as to whether such writs were maintainable on the ground that in light of the Presidential Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all rejected the Government’s argument and held that despite the suspension of fundamental rights, a person detained could demonstrate that their detention was not in compliance with the law (under which he or she was detained), or that the State action was mala fide, or that there was a mistake of identity. Having received a drubbing nine to nil, the Government decided to appeal against these decisions to the Supreme Court. It was thus that the Constitutional bench of five Judges came to be constituted to hear and decide the most crucial case in Indian legal history referred to in all law reports as A.D.M. Jabalpur v. Shivakant Shukla. The judicial pronouncement also supported the formulation of this law, the judicial pronouncement was against the common consciousness or the “spirit” of the people, yet the decision was given irrespective of the fact whether there was consensus of the majority of the people or not.
India has had and continues to have a veritable spectrum of draconian laws that are supposedly aimed at stopping terrorism. 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. Any person arrested under this Act is to be taken to the nearest police station and placed in custody without any delay. If this weren’t enough already, the Act gives sweeping immunity to anyone acting under it. It states verbatim “Protection to Persona acting under Act: No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” “The Indian government’s responsibility to protect civilians from attacks by militants is no excuse for an abusive law like the AFSPA,” said Meenakshi Ganguly, senior South Asia researcher for Human Rights Watch. “Fifty years of suffering under the AFSPA is too long – the government should repeal the AFSPA now.”
The AFSPA has not only led to human rights violations, but it has allowed members of the armed forces to perpetrate abuses with impunity. They have been shielded by clauses in the AFSPA that prohibit prosecutions from being initiated without permission from the central government. Such permission is rarely granted. Indians have long protested against the AFSPA. The Supreme Court has issued guidelines to prevent human rights violations, but these are routinely ignored.
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 Center. The Bharatiya Janata Party-dominated coalition government subsequently seized on the December 2001 attack on the Indian Parliament, to whip up anti-terrorist and anti-Pakistan sentiment, which proved pivotal in steamrollering POTA through parliament. Like the US Patriot Act, 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 burned with cigarette butts, raped, forced to drink urine, and subjected to electric shocks. That POTA’s authors gave a green light to such techniques is underscored by the legislation’s setting aside of the Indian judicial system’s normal rules of evidence. Under POTA, a person’s confession to a crime that he had not formally been charged with could be used by the prosecution as evidence in the court of law. Under Section 49 (7) of POTA, bail was almost impossible to obtain, since the courts were allowed to grant bail to POTA detainees only if they concluded they were unlikely to be found guilty of the charges against them. POTA was used by the government, writes Human Rights Watch, “against political opponents, religious minorities, Dalits [or ex-untouchables], tribals 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.
When a law is criticised from different spheres by different individuals, organisations, it cannot be said that such a law enjoys the common consciousness of the people, but still operated as a law. POTA was vehemently opposed by many as a draconian law, but still operated as a law for three years.
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. Independent India is no stranger to tackle the problem of armed terrorists and has faced long running insurgencies as well as sporadic attacks in many parts of the country. 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.
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.