Delhi High Court’s recent judgment on ‘Defining Terrorism’

Context:

The recent Delhi High Court order granting bail to the student activists charged with the UAPA has brought into focus the issue of misuse of anti-terror laws by the policy.

Present scenario in India:

• In the period 2015-2019, as many as 7,840 persons were arrested under the UAPA (Unlawful Activities (Prevention) Act) 1967 but only 155 were convicted by the trial courts.
• Under TADA, till 1994, though 67,000 people were detained, just 725 were convicted in spite of confessions made to police officers being made admissible
• In Kartar Singh (1994), the Supreme Court of India had observed that in many cases, the prosecution had unjustifiably invoked provisions of TADA ‘with an oblique motive of depriving the accused persons from getting bail’. It added that such an invocation of TADA was ‘nothing but the sheer misuse and abuse of the Act by the police’.
• UAPA’s experience has been worse than TADA. UAPA has also been equally used and abused. The recent 133 page bail order of the Delhi High Court
  • In Asif Iqbal Tanha (June 15, 2021), that led to the release of three student activists, has come as a bolt from the blue for the Delhi police. At the heart of the controversy is the meaning of the term ‘terrorism’ and when UAPA can justifiably be invoked.

 The definition of terrorism

• There is no universal definition of the term ‘terrorism’ either in India or at the international level.
• The UN General Assembly had given this task to a committee, but in almost 50 years or so there has been no consensus on the meaning of terrorism.
•  Accordingly, neither TADA nor UAPA has a definition of the crucial terms ‘terror’ and ‘terrorism’.
• Section 15 of UAPA merely defines a terrorist act in extremely wide and vague words: ‘as any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people….’.
• How is such a terrorist act committed:
  • UAPA says ‘by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or by any other means of whatever nature to cause or likely to cause death or injuries.
  • Expression by any other means:  When a general word is used in any statute after specific words, it is to be interpreted in the context of specific words. Thus, the Citizenship (Amendment) Act (CAA) protests cannot be covered by this expression.
• In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts can range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons etc.
• In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as the ‘use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces … on the society as a whole’.
• In Kartar Singh (1994), the Supreme Court held that a mere disturbance of public order that disturbs even the tempo of the life of community of any particular locality is not a terrorist act.
• By this interpretation, the CAA protests in a few localities of Delhi cannot be termed as terrorist activity.
• In the PUCL judgment (2003), the Supreme Court included within its meaning amongst other things the ‘razing of constitutional principles that we hold dear’, ‘tearing apart of the secular fabric’ and ‘promotion of prejudice and bigotry.
• Accordingly, in the CAA protest case the Delhi High Court concluded that since the definition of a ‘terrorist act’ in UAPA is wide and somewhat vague, it cannot be casually applied to ordinary conventional crimes.
• The Delhi High Court said that the act of the accused must reflect the essential character of terrorism.

Distinction between ‘law and order’, ‘public order’ and ‘security of state’

• In Ram Manohar Lohia (1966), the Supreme Court explained the distinction between the above three terms.
• Law and order represents the largest circle within which is the next circle representing ‘public order’, and the smallest circle represents the ‘security of state’.
• Accordingly, an act may affect ‘law and order’ but not ‘public order’.
• Similarly, an act may adversely affect ‘public order’ but not the ‘security of state.’
• In most UAPA cases, the police have failed to understand these distinctions and unnecessarily clamped UAPA charges for simple violations of law and order.

What must be done

One hopes that, henceforth, our police will be far more cautious in charging people under black laws such as UAPA, the NSA, etc. In any case, no anti-terror law, howsoever stringent, can really end the problem of terrorism. Pushing a civilised state to state terrorism is the tried and tested strategy of all terrorists. Let us not fall in their trap.

Radicalisation generally succeeds only with those who have been subjected to real or perceived injustices. Let us remove injustice to combat terrorism. The creation of a truly just, egalitarian and non-oppressive society would be far more effective in combating terrorism.

Unlawful Activities Prevention Act, 1967

• UAPA was passed in 1967. It aims at effective prevention of unlawful activities associations in India.
  • Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
• The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • It has death penalty and life imprisonment as highest punishments.
• Under UAPA, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
• Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
• The 2004 amendment added “terrorist act” to the list of offences to ban organisations for terrorist activities, under which 34 outfits were banned.
  • Till 2004, “unlawful” activities referred to actions related to secession and cession of territory.
• In August, Parliament cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists on certain grounds provided in the Act.
  • The Act empowers the Director General of National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.
  • The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in a state.

To read more about UAPA Click Here…

Source: The Hindu