Introduction:

The BJP-led government drafted the Prevention of Terrorism Ordinance (POTO),[1] in October 2001. This ordinance was objectified to provide deterrence against cross border terrorism and other terrorist activities. This legislation included many provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987,[2] which was repealed in 1995. POTO was legislated into an act in March 2002. POTO despite being criticized by many human rights organizations, other political parties, and international organizations, the government still enforced the Prevention of Terrorism Act (POTA) to its full extent until it was repealed in 2004.

Anti-terror laws are complicated to legislate. Neither can you treat terrorists like normal criminals, nor can the laws be the same for both. Many legal jurists believe that anti-terror laws all around the world are not only harsh but unreasonable. India is a party to various human rights conventions which advocate the promotion of basic human rights and fundamental rights. India is a signatory to the Geneva Convention, the International Covenant of Civil and Political Rights, which provides prisoners protection against cruelty and torture. Although, India is still to ratify the UN Convention Against Torture, India’s anti-terror laws if not directly, do violate these treaties and conventions in principle.

This paper would be analyzing the constitutionality of TADA and POTA with various case laws and provisions of the constitution.

UAPA and the Current Scenario:

UAPA takes its roots from TADA and POTA. The background of the unconstitutionality of these three laws is very similar. A person is arrested under UAPA; he cannot move for bail if the charge sheet is not filed. Under the UAPA, a charge sheet could be filed within 180 days of the arrest. Therefore, a person arrested under UAPA has almost a negligible chance of getting out on bail before six months of his arrest, violating personal liberty. A Human Rights Forum conducted a discussion panel where it was reported that most of these detainees are the sole breadwinners and having them detained for at least six months can disrupt not only the detainee’s life but also his/her family’s.

The amendment of UAPA in 2008, also is a hit to the constitutional provisions of federalism. The National Investigation Agency (NIA) was set up and given the jurisdiction to investigate all the cases booked under UAPA. Considering NIA comes under the Home Ministry, the state governments will have no stand regarding the investigation.

In 2009, National Intelligence Grid was formulated to collect information on every citizen, conduct surveillance programs and transfer the data to agencies such as the NIA, IB, RAW, and the CBI. Having the UAPA is considered a nightmare for upcoming public leaders and union leaders. The recent farmers’ protests in New Delhi are on the brink of being booked under UAPA. There have been many reports that the NIA has already warned these protestors via notices.[3] Although not explicitly given in the constitution, peaceful protesting is a fundamental right, although not expressly provided.

The UAPA is considered to be a political tool that is used against anyone who stands in the way of the administration. The vagueness in definitions makes it easy for the prosecution to book anyone under UAPA for mere suspicion. The Supreme Court has already made its position very clear by holding the TADA and the POTA within the constitutional framework and principles.

However, it has also pointed out specific provisions of these legislations. In Sri India Das v. The State of Assam,[4] the Supreme Court has scrutinized section 10 of the UAPA. Section 10 of UAPA prohibited and penalized membership into a banned organization. The supreme court held this provision to be violative of articles 19 and 21 of the constitution “mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.“[5]

Terrorist and Disruptive Activities (Prevention) Act, 1985

TADA was enacted amidst the assassination of Prime Minister Indira Gandhi. The provisions of TADA are straightforward in defining its violations. Section 3 of TADA defines a ‘terrorist’. This act is based upon the Terrorist Affected Areas (Special Courts) Act, 1984 (TAAA).[6] TAAA was substantially stern in regard to bail and detention. Section 15(5) of the TAAA lays down the bail procedure.

According to this section, any suspect under this act would be denied bail if the prosecution opposes the motion or there is no substantial proof for the accused innocence. This provision reverses the principle of presumption of innocence, a court of law must treat the accused innocent until proven guilty. Unlike the TAAA, when TADA was enacted in 1985, it did not only affect ‘terrorist affected areas’ but the entire country.

Many human rights advocates criticized this legislation as many reports were cited about the misuse of TADA to oppress political enemies of the government, peaceful protestors, and other backward minorities. Many provisions of this act triggered questions on this act’s constitutional validity.

Incarceration of any suspected person without a formal charge sheet could last a year under TADA. This period is strictly restricted to a maximum of three months within the Cr.P.C post which the accused is entitled to automatic bail. Although not explicitly mentioned as a right in the constitution, a person’s right to bail is a part of his right to life and personal liberty under article 21 of the Constitution of India.

Justice Krishna Iyer in his judgment of the case of the State Of Rajasthan, Jaipur vs Balchand focused upon a persons’ right to bail in an investigation. He first pointed out the perspective behind the practice of detention of suspects. Custody of the suspect helps the court and law enforcement ensure that the suspect does not abscond, tamper with the witnesses or any evidence. Justice Iyer displayed the court’s confidence in the suspect of not absconding or possibly tampering with the investigation and granted him bail.

Section 15 of TADA, allowed a confession by the accused made to the police officer during an interrogation admissible during court proceedings. Sections 25 and 26 of the Indian Evidence Act, deals with the nature of any confession made to a police officer. Any confession made to a police officer is considered neither relevant nor subject to any case proceedings. The rationale behind this provision is to protect the suspects from torture and physical hurt. Article 20(3) of India’s Constitution protects an accused against self-incrimination.

On various accounts of criticism against this provision in TADA which is violative of articles 14, 20(3), and 21 of the Indian Constitution, the government replied that an extreme act like TADA must include extreme provisions to fulfill its purpose. Moreover, they also argued that TADA only makes these confessions admissible in court, the power of allowing it or any decision upon would still be in the hands of the court. This issue was later taken up in the Supreme Court where the Supreme Court accepted TADA and declared it to be well within the Constitution of India’s bounds.

Prevention of Terrorism Act, 2002 (POTA):

POTA came into existence due to major terrorist attacks both internationally and domestically. With the world just dealing with the September 11, 2001 attack at the World Trade Centre, India came under two major terrorist attacks. The Jammu Kashmir legislative assembly complex attack in October 2001 and the attack on the Indian Parliament in December 2001 gave the administration enough motivation to enact another set of anti-terror laws in India. Then Home Minister Lal Krishna Advani asked the parliament not to delay the enactment of this act. He claimed that the people who are blocking the enactment of this act are paving the way for more terrorists to commit crimes. Despite many challenges, POTA was enacted in March 2002.

The act was widely opposed by the opposition and various human rights activist. Like TADA, there were many provisions questioned about being constitutionally applicable. The definition of terrorism is a global issue. The United Nations is yet to recognize a definition of terrorism. Although the United States’ PATRIOT act has tried to achieve an acceptable status, the definition of terrorism in POTA is relatively frail. Words like ‘advocate’ and ‘incite’ compromise the fundamental right of free speech and expression, which is well enshrined in article 19 of the constitution.

One must not be booked under POTA if they are a part of a public rally and make some comments which might be contested to be inciting terrorism. These words do not involve the basic ingredient of committing a crime, i.e. men’s rea, Section 4 of this act penalizes a person owning an unlicensed firearm. Instead of being tried under the Arms Act, a man who possesses an unlicensed firearm will be investigated as a terrorist under this act.

POTA’s revocation was inevitable as it turned into a political choice. The Congress-led opposition expressed their opinion against this legislation. Congress won the election and repealed POTA in 2004. Despite many attempts made by the BJP government to defend and increase the approval for POTA, there were many cases reported which violate the sanctity of our constitution. POTA infamously used by the then UP Chief Minister Mayawati against Raghuraj Pratap Singh, a political rival. The then BJP general secretary Rajnath Singh immediately declared this act as a misuse of POTA. A similar situation happened in Tamil Nadu, where CM Jayalalitha got many of her political rivals arrested under POTA.

Conclusion

Terrorism and extremism are the two most important challenges for every country in this world, and to eliminate and prevent terrorist attacks, there must be a mechanism in every country. The supreme court has been approached on multiple occasions to repeal these laws based on being extreme and unconstitutional. In each instance, the supreme court has tried to explain these laws’ validity best. It is essential to understand that anti-terror laws have to be part of India’s legal system. A country like India, prone to cross-border terrorism and Islamic radicalism, would be challenging without anti-terror laws incriminating actual terrorists.

In order to implement anti-terror laws in India without any adverse retaliation, the legislators have to create a robust mechanism to avoid misuse of these laws. The definition of terrorism and terrorist offences under this act must be precise and limited to potential terrorist activities instead of curbing peaceful protests for political gains. If the peaceful protestors of the world’s largest democracy would be tagged as terrorists, India can no longer call itself a promoter of democracy.

References

[1] Prevention of Terrorism Ordinance, 2001.

[2] Terrorists and Disruptive Activities (Prevention) Act, 1987.

[3]The Leaflet, PUCL and 100 Organisations demand the repeal of the UAPA, January 21, 2021, available at: https://www.theleaflet.in/pucl-and-100-organisations-demand-the-repeal-of-the-uapa/# (last accessed on February 5, 2021)

[4] Shri Indra Das v. the State of Assam, 2011 SCC (3) 380.

[5] Supra Note 27.

[6] Terrorist Affected Areas (Special Courts) Act, 1984.

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