Introduction :

India, the largest democratic country in the world, where the people trust and rely on the constitution to envision and build a nation that is free, sovereign and secure, strives every day to safeguard and protect the human rights of its people from any threat they might face. India is a country which has a history to learn, a present to introspect and an assuring progressive and a peaceful future. In this light one might ponder the impact of a growing terror amongst the masses whom we promise a safe prospect. Terrorism plants a threat in the minds of the people, where they are forced to believe that the rule of law could be defeated for arbitrary reasons at the cost of creating a menace of human rights and uncalculated loss of property. This persuades each and every nation in this world to build a legal framework that will restrict these acts from being portrayed as a weapon against the state which is nothing but the Anti-terrorism laws. Today, India  stands alongside other nations assuring its people the credibility of the contemporary laws in existence, but how did we reach here being a country which was being colonized for nearly two centuries?

Historical Context :

The Unlawful Activities and (Prevention) Act 1967 which monitors all the illegal and terror related activities in India traces its origin back in the colonial times. The colonizers brought into force the Criminal Law amendment act in 1908 with its explicit aim was at detaining all the freedom fighters and quashing their rebellious ideas who stood against the government of the time which modified the act and led to the addition of the term “unlawful association”. It’s interesting to know that, even after India’s independence this law still found a place in our constitution as the then Nehru government preferred to exploit the provisions of this act to suppress any revolution which opposed the government. The repercussions of such an act leads to dismantling the sanctity of the fundamental rights of the citizens, which could be evidenced by case laws such as AK Gopalan vs State of Madras and Romesh Thapar vs State of Madras. Even though the UAPA act has been in effect since 1967, it was not initially a terror law since its enactment. It underwent an amendment by the Manmohan Singh government in the year 2004 which included a new chapter which specifically deals with prosecution of terrorist activities within the nation. Another significant aspect to take note about is in the aftermath of the 26/11 Mumbai terror attacks the act further got amended in the years 2008 and 2009. Until this law underwent an amendment the terrorist activities in India were legislated through two acts namely Terrorist and Disruptive Activities act (1987) and Prevention of terrorism act (2002).

Terrorist and Disruptive Activities Act (1987) :

TADA which stands for Terrorist and Disruptive Activities Act was the first Anti- terrorism law of India to combat terrorism and bolstering national security. The reason for its formulation was the rigorous backdrop of the assassination of Indira Gandhi and the growing insurgency that was prevalent in the state of Punjab, which led to widespread violence throughout the other states in the country, including the capital, New Delhi. Thus, the act was passed on 3rd September 1987 and commenced its application from 24th September 1987. This act battled with many criticisms from varied human rights organizations and political parties due to the gift of power and the impact it left on the society after its commencement. It is vital to scrutinize the reason for this act to be repealed in the year 1995 for its ever-increasing unpopularity which provides us with a head start towards deciphering the evolution of the anti- terrorism laws in India.

Powers and Impact  :

This law bestowed a broad range of power to the law enforcement agencies through this act which initially increased the likelihood of gross misuse of power and later it took a turn towards endangering the fundamental rights of the masses. The act empowered the law enforcement agencies to detain any individual who is involved in what it termed “socially disruptive” and national terrorist activities. Adding up to the questionable nature of this act, it didn’t oblige the law enforcement agencies to present the detainee before a judicial magistrate within 24 hours, and the accused person can be further detained for a year. It is also crucial to note that the act made confessions given to the police admissible in the court of law, also with the burden of proof shifted on the accused to prove their innocence. The case of  Kartar Singh vs State of Punjab which sets itself affirming the constitutional validity of the TADA act, however it also emphasizes the points given by the Supreme Court of India of striking down some provisions of the act deeming them to be violative of the fundamental rights regarding the admissibility of the confession given in the police custody. 

The impact of an act like TADA on the residents of the country inevitably leads to discontentment among them. Instead of yielding positive outcomes the act led to the harassment of the innocent citizens through abuse of exceptional powers given to the law enforcement agencies, arbitrary detentions and widespread torture. One of the examples to demonstrate the same is the well-known Khalra Case which underscores the misuse of laws like TADA during the Punjab insurgency, which concludes that this act often abused and harassed the human rights activists instead of targeting the terrorists who perpetrate human right abuses. Adding on to its debatable application, according to the United Nations of Human Rights Committee the safeguards provided to the citizens through this act is not consistent with the standards of the international human rights law. The number of arrests conducted through this act exceeded 76 thousand by the year 1994. Less than 2 percent of the people who got arrested were actually convicted. Eventually the act got repealed and was succeeded by the Prevention of Terrorist Activities Act ( POTA) 2002. However, the effectiveness of the Prevention of Terrorism Act (POTA) in achieving its intended goals remains a subject of debate and scrutiny.

Prevention of Terrorist Activities Act ( POTA) 2002 :

With the repeal of the TADA act at one hand and the nation facing draconian threat instances from the growing threat from Pakistan’s ISIS to dismantle the Indian democracy, cross border terrorism and the aftermaths of the attacks of  September 11 in the year 2001 at the other, there was an urgent need of fortifying the Indian anti- terrorism laws like never before. Thus, to combat terrorism the Atal Bihari Bajpayee govt announced the POTA act 2002 to stabilize the national security situation. This act replaced the Prevention of Terrorism Ordinance (POTO)  act of 2001 and the TADA act of 1987. The act received assent on 28th March 2002, however it’s crucial to note that this act mentioned about the safeguards that are a requisite to avoid the play of misuse of power by the investigating authorities that was earlier concerning in the TADA act. The one major change that was introduced in this act was, the absence of provisions for preventive detention, unlike TADA. Additionally, some of the other safeguards laid down in this act was, any decision on regular bail petitions or the verdict of the special courts constituted under this Act could be appealed against, and the appeal would be heard by a division bench of the relevant High Court. 

Impact and Repeal :

Focusing on the precedents set by the Supreme Court of India it’s very important to shed light on the case of  PUCL vs Union of India which challenged the constitutional validity of the POTA act of 2002. In its judgement the Supreme Court ultimately struck down various provisions of this act and termed it as unconstitutional in nature. The judgement said that the provisions related to the confessions before the investigating agencies and its admissibility violated the principles of natural justice and the citizens right to fair trial. Additionally, the broad definition of “terrorism” under this act could potentially infringe the legitimate forms of dissent and freedom of speech. Though this act when compared to the TADA act consisted of safeguards in the long run, this act was also grossly misused to arbitrarily target political opponents. A mere eight months of enactment of this act around 940 people were arrested under it while 560 of them were languishing in jail. Considering all the inconsistencies which were quite evident in this act, it was repealed in the year 2004 by the Congress opposing it at the forefront.

Unlawful Activities (Prevention) Act ( UAPA) 1967 :

The UAPA act now covers a broad range of aspects including terrorism, money laundering for terror financing, and the classification of groups and people as terrorists. With the expiration of the TADA and POTA acts, as aforementioned, the Manmohan Singh Government amended the UAPA act of 1967 making it India’s primary terror statute. A quick glance at the history of this act reveals its establishment in the year of 1967 with subsequent amendments in 2004 and 2008 to be modelled after an anti-terror statue. The major point of debate surrounding this act is its departure from standard legal procedures thus establishing its own extra- ordinary regime where the safeguards of the people are non-existent and it could be safe to say that they are reduced to nothing. Moreover, the recent amendment done to this act in the year 2019 has just made the fundamental rights of the citizens rendering them akin to a jigsaw puzzle concerning the applicability of the UAPA. The amendment talks about giving the government the right to violate an individual’s fundamental rights to free expression, dignity, dissent, and reputation. The burden of proof to refute the accusations falls on the person, not the government, and anyone could be labelled a terrorist at the government’s choice. The 2019 revisions to the Act violate Articles 14, 19(1)(a), and 21 of the Constitution, and the legislature has no right to take away a citizen’s fundamental rights because they constitute a fundamental component of the Constitution.

Shortcomings and Custodial Deaths :

The so-called anti- terror statute of India has recently come under fire, with some esteemed judges claiming the application of the act as arbitrary in nature. The UAPA’s most heinous feature, which is that a person arrested under this act can be held for up to 6 months (or 180 days) without even submitting a charge sheet which is mentioned by the section 43D (2). Deciphering the gravity of this situation it is very important to note that even under ordinary criminal law the term period specified for the same is three months (90 days) according to 167 (2) of the CrPC, after which the individual is entitled to default bail. However, under this act bail is difficult to be granted under the terror law. The pre-charge sheet police custody period is increased from 90 to 180 days. Additionally, the UAPA limits the use of bail and requires the court to base its determination of the accused’s guilt on police records. The death of Stan Swamy, a Jesuit priest and campaigner who died in the jail after waiting for about 9 months in the jail at the age of 84 has further alarmed the deteriorated condition of this act. Isn’t it quite contrasting to notice that while we have borrowed ideas for building our constitutional framework from countries like the United States of America and Australia, we overlooked the fact that the USA permits a custody period of only 7 days, and Australia allows investigative agencies only 24 hours to demonstrate their case for prolonged incarceration? Lastly the said act of UAPA which is the primary statute of anti-terror in India has the conviction rate of 2.2 percent within all the cases taken by the court between the year of 2016 to 2019.

Conclusion : 

It is evident that significant and essential changes are imperative for the act to adequately uphold the fundamental rights of citizens, a non-negotiable aspect. However, outright scrapping of this act is not a viable solution, especially given the escalating and persistent threats in South Asia, compounded by neighbouring nations with unstable governments. This underscores the critical necessity for India to maintain an anti-terrorism law. While counter-terrorism strategies typically entail a combination of diplomacy, political, and military efforts, India’s primary reliance on force often proves futile and exacerbates political violence. This approach urgently requires reform.

“The fight against terrorism is also a fight for the rights and dignity of all people.”             

– Ban Ki-moon

References

• Romesh Thappar v State of Madras, AIR 1950 SC 124. 
• A.K. Gopalan v State of Madras, AIR 1950 SC 27. 
• Kartar Singh v State of Punjab, (1994) SCC (3) 569.
• PUCL v Union of India (2003).
• Unlawful Activities (Prevention) Act 1967 (India).

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Authored by a first year student Rohan Nair of batch 2023-2028.