Author:- Vishal Patidar
India has been facing the brunt of terrorism for decades. Terrorist activities have affected a larger population of the country either directly or indirectly. Terrorism has not only put the principles of democracy and liberty in danger, but has also put humanity’s survival, growth, and prosperity in jeopardy. Being surrounded by countries like China and Pakistan who have been at warheads against India often makes it more difficult for the country to tackle the menace of terrorism.
The increasing terror attack and cross border terrorism made India work on certain legislation which can provide the agencies which perform counter-terrorism mission with certain powers to curb these attacks well in time and reduce the amount of loss that the country suffers. India has legislated a series of Anti-terrorism laws starting from the Preventive Detention Act to the Terrorist and Disruptive Activities (Prevention) Act, 1985. Anti-terrorism legislation in the country has always been a source of contention. One of the reasons made is that these regulations infringe on individuals’ fundamental rights, which are protected by Part III of the Constitution. One of these laws is the Prevention of Terrorism Act, 2002 which was enacted after a series of various terrorist activities such as the Kandahar Hijack of Air India flight IC-814, the attack on the World Trade Centre, and the attack on India’s Parliament. In this article, a critical analysis of the same act will be provided.
Over the last few decades, the country has suffered a lot from terrorism both on the economic front as well as in terms of the lives of so many people who experienced these attacks. A report says that India is the 7th most affected country by terrorism as 8473 people have lost their lives in a terrorist attack since 2001. The security agencies have been playing a very decisive role in the fight against these terror outfits. But if we see the legislative backing which they need to carry out the more intense investigation was missing at that time. Following the horrific attacks on the World Trade Centre on September 11, 2001, the world’s opinion of terrorists and terrorist organizations changed, and regulations to combat such acts became significantly more stringent.
India too felt the brunt around the same time when the Indian Parliament which is the symbol for democracy in India was attacked by the terror outfits such as Lashkar-e-Taiba and Jaish-e-Mohammad. Also in the year, 1995 The Terrorist and Disruptive Activities Act was repealed after facing widespread condemnation as the provision was reportedly misused. India at this juncture was in a dire need of legislation that can play a major role in countering terrorism at that time. In the Parliament Session of March 2002, the Prevention of Terrorism Bill was tabled before the legislature.
This bill brought in the much-anticipated debate not only among the parliament but also among the people and the human rights agencies as the bill had a certain provision that categorically overrides the principles of the Indian Constitution. This bill was among those few bills where the joint sitting of the parliament was held to discuss the bill. And on 26th March 2002, the parliament enacted the Prevention of Terrorism Act,2002 which replaced the Prevention of Terrorism Ordinance, 2001. This act was provided with stringent provisions to deal with the menace of terrorism.
The Provisions of the Act
The act is said to have some stringent provision which usually is not seen in any other legislature till that time. To have a more successful impact on the fight against terrorism they had to be that intense and it needed to provide certain power to the agencies. Some of the provisions of the POTA act are: –
- Section 3(1) of the act defines the term terrorist act which says that “ Whoever with the intent of threatening the unity, integrity, security, and sovereignty of India or strike terror in the minds of people or any section of the people does any act or thing by using dynamite or explosive substances or inflammable substance or firearms or other lethal weapon or poisonous or noxious gases or other chemical or any substance of a hazardous nature in such a manner as to cause death or injuries to any person or loss or damage to property or disruption of any supplies or services essential for life.”. Section 3 also talks about the punishment that can be provided to the one booked under this statute.
- To conduct a more precise investigation of any offense the officers investigating it must be provided with certain powers so under Section 7 of the act provides the investigating officer who should not below the designation of Superintendent of Police is given the power to seize the property which is believed to be having some connection with the terrorism. For this, the officer needs to get the order approved by the DGP of the area where the property is located.
- If we talk about CrPC then U/s 161 it is provided that any confession made to an investigating officer during the trial is not considered in the court. But on the other hand, under the POTA act Section 32 says that if a person confessed to the investigating officer who is of or above the rank of Superintendent of Police which the official records and the sound and image of the same can be presented can be admitted for the trial under this statute.
Repealing of the Prevention of Terrorism Act
The POTA act was operational for a very short time. The life span of this act was about 2 years from the date of enactment. Since the enactment of the act, there was speculation of its misuse by the authorities against a particular set of people. The review committee on the POTA act formed by the government even said that the provisions of the POTA act were more draconian than the TADA act.
Some of the reasons for repealing the POTA act can be: –
- Wide definition of Terrorist Activities: – Section 3 of the act defines terrorist acts as very loose and not so precise. The act defines terrorist activities as those acts that endanger India’s unity, integrity, security, and sovereignty or instill fear in the public or any segment of the population. The power to designate a person as a terrorist lies with the law-enforcing agencies and the government. This can possess a threat to the democratic values of equality. As the government can easily designate any individual who protests against them as a terrorist.
- Interference with the Judiciary’s Independence: – Section 23 establishes special courts for hearing cases brought under the POTA. According to Section 23(7), A judge may continue to serve as a judge of the special court after attaining the age of retirement. A judge who remains at the whims of the government could be readily influenced by the government, compromising the fundamental premise of the division of powers as well as the Judiciary’s autonomy.
- Arbitrary Powers to the Police Authority: – The act set aside the basic constitutional right that is provided to any citizen. The other statutes provided the convict various protection against the arbitrary actions of the police such as the grounds of arrest and presenting before the magistrate within 24 hours. But, the POTA act did not have such an obligation on the police. U/s 49(2) of the said Act gives power to the agencies to detain a person booked under this act for about 180 days.
- Formation of Less Effective Review Committee: – The statute had a provision under section 60 for establishing a committee for review both at the state level as well as at the national level. Such Committees do not have the authority to monitor the circumstances of confinement under the Statute. The detainees are unable to raise claims of mistreatment before the Committee. Although the Chairman is a judge on the High Court, the other two individuals have the power to override him. Furthermore, according to the act, the Committee has no authority to ask from the Governments the number of detentions and phases of inquiry.
Seeing all these reasons the UPA government on September 17 brought in the ordinance to repeal the Prevention of Terrorism Act, 2002. To address the problem that can arise after repealing the act, the government also made some amendments to the Unlawful Activities (Prevention) Act,1967. The POTA act was given a sunset period so that the suits which were filed under this statute can be examined by the Central POTA Review Committee.
Judiciary and the POTA Act
There were series of cases that came before the judiciary within the short life span of the act. The case through which the constitutional viability of the act was established as the People’s Union for Civil Liberty vs. Union of India. Accepting the constitutionality of the act the court said that the Parliament has the authority to enact any law under article 248 as well as entry 97 of the List I of 7th Schedule of the Indian Constitution. The court further said that only the possibility of misuse cannot be a reason for denying the vesting of powers or to declare an act unconstitutional.
Another major case that came before the court was the Devender Pal Singh vs. State of N.C.T. of Delhi. The case deals with the question of confession which was seen as arbitrary. The court resolved the discrepancies and provided a more just and fair stance regarding the admissibility of any confession made to the police officer.
The court said that it is completely on the discretion of the court hearing the case to determine the validity or credibility of a confession within the judicial competence, scrupulously following the law, it must convince itself that there was no trap. Further, they also clarified that the person who confessed will be presented before the court within 48 hours of the confession and the court will give the chance to the accused to tell whether the confession made was free or under coercion.
We all know that special legislation is indeed an answer to unusual situations that arise largely as a result of various internal and external factors. These legislations are necessary for the proper working of the country and important for establishing peace and tranquility. In addition, there seems to be a rising global awareness on how to tackle terrorism. As per my opinion, we need laws that are more stringent and have provisions that can serve the purpose of eliminating the danger of terrorism in the nation.
The integrity and sovereignty of the country are of utmost priority and it is something that cannot be compromised. At the same time, it must also be ensured that these laws should strictly be used only to safeguard the country and not for carrying out any political vendetta. If the provisions are made stringent for the wrongdoers the law enforcing agencies must also be more accountable for any misuse of these laws on their part making these laws more practical.
Vishal Patidar is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL. B (Hons).