Misuse of Anti-Terror Laws

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Recently, a Supreme Court Judge has said that “criminal law, including anti-terror legislation, should not be misused for quelling dissent or for the harassment of citizens”.

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• The Judge also said that the Supreme Court “plays the role of a counter-majoritarian institution and so it is the Court’s “duty to protect the rights of socio-economic minorities”.

Supreme Court’s Role

• Guardian of Constitution: As the guardian of the Constitution, it has to put a break where executive or legislative actions infringe fundamental human rights.
• First line of defence: In Arnab Goswami v. The State of Maharashtra & Ors, SC held that Courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of citizens. We must always be mindful of the deeper systemic implications of our decisions.
• Changed course of Indian history: SC’s interventions have changed the course of Indian history — be it in protecting civil and political liberties which cast a negative obligation on the State, or in directing the State to implement socio-economic rights as obligations under the Constitution.
• Judicial Activism: These interventions of the Indian Supreme Court have been termed as ‘judicial activism’ or ‘judicial overreach’. The Court plays the role of a counter-majoritarian institution and it is its duty to protect the rights of socio-economic minorities.
• Separation of powers: Judges of the Supreme Court of India are careful to maintain the separation of powers, the scheme of checks and balances through supervision results in a certain degree of interference by one branch into the functioning of the other.
  • The Supreme Court, while dealing with the issue, “was cautious that it could not transgress into the domain of policymaking and usurp the role of the executive.
• Constitutional Conscience call: The Supreme Court has to act in furtherance of its role as sentinel on the qui vive and respond to the call of constitutional conscience and it is this role that prompts it to address the challenges of the 21st century, ranging from the pandemic to the rise of intolerance, features which we find across the world.

Terrorism

• The term “Terrorism” comes from the French word Terrorisme, which is based on the Latin verb “terrere” (to cause to tremble). 
• In 2004, a United Nations Security Council report described terrorism as any act “Intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act”. 
• In many countries, acts of terrorism are legally distinguished from criminal acts done for other purposes, and “terrorism” is defined by statute.

India’s Terrorism History 

• Started with fearing British away: 
  • Terrorism in India is started before india got independence on 1947 but that times terrorist activites aim create a fear among the British Ruler and not killed the general People. 
  • So we not called these freedom fighters as a terrorist but after 1947 the terrorism actitivites to kill the innocent people. 
• Relegious Terrorism: 
  • In Indian concern for the terrorism, it is the main attribute of the terrorist activities in form of religious terrorism. 
  • Religious terrorism is terrorism performed by groups or individuals, the motivation of which is typically rooted in the based tenets.
• Trend increase:
  • After 1980, terrorist activities increased in India.
  • India has fourgh a war against the terrorism and in these wars we have lost more then 6000 people. 
  • The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab, 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.

Anti-Terror Laws in India

• Unlawful Activities (Prevention) Act, 1967
  • The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. 
  • 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)
  • 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. 
  • 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)
  • It 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 mentions 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, 2002
  • 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. 
  • The court, in the case of People’s Union for Civil Liberties Vs. Union of India (UOI) 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. 
  • The Act provided 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.
  • It has been repealed.

Issues

• Criminalizing Thoughts: The anti-terror laws criminalize mere thoughts and political protests that cause “disaffection” with the state. It is an assault of citizens’ right to expression which is also a collective right of groups and unions to disseminate their views. 
• Ignoring Fundamental Rights: It can simply be used to bypass fundamental rights and procedures. For instance, those arrested under UAPA can be incarcerated up to 180 days without a charge sheet being filed. It thus directly violates Article 21 of the constitution. 
• Hindering dissent: It is being used to suppress dissent through intimidation and harassment thus threatening the very existence of public debate and freedom of press and criminalizing the performance of civil liberties.
• Parliamentary Powers: The issue still remains whether the Parliament under any circumstance can classify the individual as terrorist only because it believes him to be involved in terrorism without any trial or whatsoever. 
• Restricts Freedoms: UAPA empowers the parliament to restrict the rights and freedoms of citizens to protect ‘the sovereignty and integrity of India’. 
• Stringent Provision of bail: E.g. The standard for bail under the UAPA is that it cannot be granted unless the court is of the view that the accused is innocent of the alleged offence. It is for the accused to show, for the purposes of bail, that he is innocent.
• Sharp Rise in Use: This caution is significant given the sharp surge in the state’s use of this provision in a sweeping range of alleged offences – against tribals in Chhattisgarh, those using social media through proxy servers in Jammu and Kashmir; and journalists in Manipur among others. 

Way Forward

• A strong anti-terrorism law is needed in India, but its enforcement will always result in some draconian anomalies like the arrests of activists. 
• The existing UAPA does have effective provisions to combat terrorism (cognizable offence) but there are also some defects and demerits which needs to be addressed properly to make the law effective and efficient to prevent and combat terrorism. 
• The UAPA is a fairly harsh law drafted to deal with some harsh circumstances and with people spending more than a decade in jail before being acquitted, its potential for misuse has been realised. 
• UAPA, in relaxing timelines for the state to file chargesheets and its stringent conditions for bail, gives the state more powers compared to the Indian Penal Code.
• The Act needs to be amended, in order to ensure a constitutional functionary who is independent from the Executive, be in charge of sanctions for prosecutions and investigations under this Act. Maybe a High Court Judge could be designated for this purpose. 
• Terrorism and unlawful activities are ones that always create political issues. If the Act has to work, its application must, at all times, look apolitical.

Source: IE