This article on ‘Anti-Terrorism Laws in India‘ was written by Tuba Sanobar, an intern at Legal Upanishad.
Terrorism is one of the most dangerous crimes in the world. It does not only target innocent people but also destroys the economies and diplomatic world relationships of the countries. Terrorism does not have a specific definition in different parts of the world. It is frequently used to imply that something is “morally wrong.” Governments and non-state groups use the term to abuse or denounce opposing groups. To protect the state from terrorism and anti-social activities governments enact anti-terrorism laws on their people. India has recently seen reports of terror-accused groups and individuals.
What are anti-terrorism laws in India?
UAPA, or the Unlawful Activities Prevention Act, was the first anti-terrorism law that was passed in 1967, for the “effective prevention of certain unlawful activities of individuals and associations, [and for dealing with terrorist activities], and for matters connected therewith.” Its main objective was to provide powers to central agencies and states to deal with terrorist activities.
Several anti-terrorism laws, including the Terrorist and Disruptive Activities (Prevention) Act of 1987, were passed after the Unlawful Activities Prevention Act (hereinafter “UAPA”). At one point, the TADA—the Terrorist Disruptive Activities Act—was the primary statute applied to cases of terrorism and organized crime. But due to rampant misuse, it was repealed in 1995.
There was a call for a stricter anti-terrorism law in the wake of the 1999 IC-814 aircraft hijacking and the 2001 Parliament attack. The “Prevention of Terrorism Act” (POTA), 2002, was the result of this. A suspect could be held in custody by a special court under POTA for as long as 180 days.
In 2004, the administration made the decision to strengthen the “Unlawful Activities Act” in accordance with global norms. After the Mumbai serial attacks in 2008, the law was once more changed, and then again in 2012 to make it more comprehensive.
The Maharashtra Control of Organized Crime Act, 1999, which went into effect on April 24, 1999, is another significant anti-terrorism law in India. This law was created specifically to address the rise in organized crime in Maharashtra, and particularly in Mumbai as a result of the underworld.
Both the TADA and the POTA, which were anti-terrorism laws, were repealed as a result of widespread abuse and the concentration of their excessive powers in a few government agencies.
The Unlawful Activities Prevention Act has been amended several times by different governments in power. The UAPA’s most recent amendment, which was passed in 2019, gives government organizations vast new powers. In contrast to the 1967 law, the 2019 Amendment gives the government the authority to label even specific individuals as terrorists.
The Ambiguity of the anti-terror laws
A thorough definition of terrorism was provided by the Special Rapporteur of the United Nations on the protection of human rights and fundamental freedoms in counterterrorism, who stated: “The specificity of terrorist crimes is defined by the presence of three cumulative conditions:
- the means used,
- the intent, and
- the aim, which is to further underlying political or ideological goal.”
The UAPA has a gap in its definition of terrorism as a result of its ambiguous interpretation, which has created an environment that is very conducive to violations. Due to its ambiguity, the UAPA covers a broad range of activities and fails to distinguish between numerous minor offences that shouldn’t be punished so severely. The larger gaping hole that exists with regard to what constitutes “sufficient proof” for the government to label an “individual” as a terrorist under its guise is also exacerbated by the fact that this legislation offers no kind of clear way to legitimize this process.
Conviction Rate under UAPA
UAPA is criticized for its low conviction rate. According to information provided by the Union Home Ministry in the Rajya Sabha, only 2.2 percent of cases filed under the Unlawful Activities (Prevention) Act between 2016 and 2019 resulted in court convictions.
In total, 24,134 people were charged in 5,027 cases that were registered under the act between 2016 and 2020, according to information provided by the Union Government. Only 212 of the 24,134 defendants were convicted, while 386 were found innocent. During the period of 2016–2020, 97.5% of those detained under the UAPA remained in custody while awaiting trial.
In a webinar titled “Discussion On Democracy, Dissent, and Draconian Law,” Justice Aftab Alam, a former Supreme Court justice, called the UAPA a “Draconian Law” and claimed that it was the UAPA that led to Father Stan Swamy’s death without being put on trial. Due to claims that he was affiliated with Maoist groups and had incited violence during the Bhima Koregaon celebrations, Father Stan Swamy was charged with violating the Unlawful Activities Prevention Act (UAPA) in 2018.
Civil liberty unions have criticized UAPA (Unlawful Activities Prevention Act) for similar reasons, claiming that UAPA aims at systematic targeting to achieve political goals.
A case in which Mohammed Ilyas, 38, and Mohammed Irfan, 33, were detained in August 2012 by Maharashtra’s anti-terrorist squad on suspicion of engaging in unlawful activities (prevention) under the Unlawful Activities (Prevention) Act, among other allegations, and being affiliated with the terrorist group Lashkar-e-Toiba. After serving nine years in prison, they were freed in June after the court found them not guilty of all charges due to a lack of evidence.
In fact, Tripura’s police came under fire in February 2021 for allegedly using UAPA against 102 social media users, including journalists and activists, in response to alleged clashes and attacks on mosques there.
Several student activists were detained on suspicion of violating UAPA after riots broke out in Delhi following the Anti-CAA-NRC demonstrations, and they are currently languishing in jail.
It is impossible to obtain bail under the UAPA, and the government and NIA frequently cite section 43D(5) of the UAPA as a sort of “magic bullet” to deny bail to people charged with terrorism offences under the UAPA.
A significant ruling on bail for those charged under the Unlawful Activities (Prevention) Act was made by the Supreme Court in the case Union of India vs. KA Najeeb in February 2021. This decision helps to ensure that the draconian provisions of the UAPA are not used to keep the accused in jail for years without trial. The supreme court acknowledged the argument that the co-accused who had been found guilty could only receive a maximum of 8 years in prison; however, the court noted that Najeeb had already served almost two-thirds of that time in detention without being found guilty.
The supreme court determined that the accused needed bail because his or her right to a speedy trial had been violated in this case and made it clear that Section 43D(5) of the UAPA could not be used as a ground for refusing to make that decision.
Even though Articles 19 and 22 of the Indian Constitution guarantee people’s rights and freedoms to criticize the government for its flawed policies, governments have used these provisions to stifle dissent. These anti-terrorism laws have also played a significant role in limiting free speech and furthering the interests of those in power.
In addition to the strict UAPA, the Indian Penal Code contains another strict provision that limits free speech critical of the government and labels it sedition. Colonial times helped shape the sedition law. Through the Special Act XVII, sedition was added to the list of crimes covered by section 124A of the IPC in 1890. During the independence movement, the clause was heavily employed to quell political dissent.
Famous freedom fighters like Bal Gangadhar Tilak, Annie Besant, Shaukat, Mohammad Ali, Maulana Azad, and Mahatma Gandhi have been the targets of several pre-independence cases involving Section 124A of the IPC. As the largest democracy in the world, it is unclear where we stand when governments repress dissent with anti-terrorism laws.
List of References:
- THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967, Ministry of Home Affairs, available at: https://www.mha.gov.in/sites/default/files/A1967-37_0.pdf
- Acharya, Anti-terrorism laws in India: Distinguishing Myth & Reality, Legal Services India, available at: www.legalservicesindia.com/article/382/Anti—terrorism-laws-in-India.html
- Arun Babu, Global Terrorism and Major Indian Legislations, SSRN, 22 June 2010, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1667388