Siddharth – Law student Source: legal services
In the new millennium, we face the very real and increasing prospect that regional aggressor, third-rate armies, terrorist groups and even religious cults will seek to wield disproportionate power by acquiring and using weapons of mass destructions – Secretary Of Defense William Cohen Of U.S.A.
Introduction
First in Varanasi then in Delhi then in Mumbai local trains and I do not think there is even a need to mention the continuing terrorist’s barbaric activities in Kashmir. The bomb blasts have outraged every patriotic Indian. No civilized nation can allow this kind of barbaric inhumanity to be partly or fully supported or sponsored by any neighbor or domestic insurgents. The only way we can combat it is to minimize, if not eliminate, such occurrences. Prevention is crucial; and laws like Pota can prevent such occurrences. Acquittals even in a case like Parliament attack occurred because of poor prosecution rather then because of Pota.
After the 9/11 attacks on the world trade center the world’s outlook towards the terrorist and terrorist organization has changed the laws have become much more stringent to curb such activities. The Indian outlook also changed specially after the 13 December attack on the Indian parliament which is seen as a symbol of our democracy then it became necessary to enforce a law which would be more stringent so that the terrorist can not go Scot free because after the lapse of TADA in 1995 following the wide spread complaint that it was being abused there was no law which could be used as a weapon against the rising terrorist activities in India.
India is facing multifarious challenges in the management of its internal security. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country. Terrorism has now acquired global dimensions and has become the challenge for the whole world. The reach and methods adopted by terrorist groups and organization take advantage of modern means of communication and technology using high tech facilities available in the form of communication system, transport, sophisticated arms and various other means. This has enabled
them to strike and create terror among people at will. The criminal justice system was not designed to deal with such type of heinous crimes. In view of this situation it was felt necessary to enact legislation for the prevention of and for dealing with terrorist activities
In 2002 March session of the Indian parliament the Prevention Of Terrorist Activities Act was introduced and it had widespread opposition not even in the Indian parliament but throughout India especially with the human rights organization because they thought that the act violated most of the fundamental rights provided in the Indian constitution. The protagonists of the Act have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abetting terrorism. POTA is useful in stemming “state-sponsored cross-border terrorism”, as envisaged by the
then Home Minister L.K. Advani. The Prevention of Terrorism Act, 2002 (POTA), was seen as a controversial piece of legislation ever since it was conceived as a weapon against terrorism.
What is terrorism?
The term “terrorism” comes from the French word terrorisme, which is based on the Latin verb terrere (to cause to tremble). It dates back to 1795 when it was used to describe the actions of the Jacobin Club in their rule of post-Revolutionary France, the so-called “Reign of Terror“. Jacobins are rumored to have coined the term “terrorists” to refer to themselves. Terrorism refers to a strategy of using violence, social threats, or coordinated attacks, in order to generate fear, cause disruption, and
ultimately, brings about compliance with specified political, religious, or ideological demands. The European Union includes in its 2002 definition of “terrorism” the aim of “destabilising or destroying the fundamental political, constitutional, economic or social structures of a country.” Terrorism is defined in the U.S. by the Code of Federal Bureau of Investigation as: “.the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The FBI further describes terrorism as either domestic or international, depending on the origin, base, and objectives of the terrorists.
Anti-Terrorist Laws in U.S.A. and Pakistan.
In Pakistan-
In 2002, ordinance was issued for the inclusion of military officers in the panel of judges to try terrorist offences. This not only
undermines the independence of the judiciary but makes the anti-terror law in the country even more draconian Described as necessary that appropriate administrative and judicial measures be adopted to fight a spate of terrorist activities and
commission of heinous offences in Pakistan these anti-terrorism laws opened the door to grave violations of human rights including the right to life, the prohibition of torture, the right to liberty and security and the right to fair trial. Inter alia, they provide for the creation of anti terrorist courts and give wide powers of arrest and interrogation to the police and army.
Amnesty International has criticized the legislation in its report,
Legalizing the Impermissible: the new anti-terrorism law. It is important to note that the existing legal and judicial system is already equipped to deal with offences referred to in the act. The problem then seems to be a lack of implementation, not a lack of laws. However, in an attempt to hide this inefficiency, Pakistan adopted the anti-terrorist acts which provide speedy trial without necessary guarantees for the accused, unfair trials and license to kill etc.
The right to shoot to kill 1997 Anti-Terrorism Act Under Section 5(2)(1): an officer of the police, armed forces and civil armed forces may: (i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, and it shall be lawful for any such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof The enactment of broad provisions empowering summary executions is not the way a modern civilized state ought to act. Rather the government should set strict limits to the circumstances in which firearms could be used to prevent arbitrary killing by the security forces. The broad powers given to the police and consequently, to the military and civil armed forces contravene major international standards of human rights. Indemnity for acts done in good faith: Section 39 of the act says: No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under this act.? This is tantamount to providing impunity to the security forces for abuses, including extra judicial killings. To explicitly place any acts of police or other law enforcement personnel, including possibly random resort to lethal force, outside scrutiny and accountability may give law enforcement personnel the impression that they may commit such acts with impunity if only they can claim to have done them in good faith. It breaches a basic requirement of the rule of law, namely its equal and exception less application to everyone. Confessions to police made admissible in court: The provision in the act in section 26 which says: The special court may, for admission of the confession in evidence, require the police officer to produce a video
tape together with the devices used for recording the confession.
Article 14(2) of the Constitution of Pakistan prohibits the use of torture, though only in the limited context of extraction of confessions: No person shall be subjected to torture for the purpose of extracting evidence. However, Pakistani law enforcement officials, to extract confessions from the accused, routinely use torture. Lending greater legal weight to confessions and putting pressure on police to speedily resolve crime may indirectly contribute to the continued and perhaps increased use of torture.
The right to be tried in a public place without prejudice to the defendant: Section 15 of the 1997 Anti-Terrorism Act states, The
government may direct that for the trial of a particular case, the court shall sit at such place including the place of occurrence as it may specify. This is intended to expose the defendant to public expressions of outrage, anger or even violence for his deeds, to humiliate him and to deter others by the specter of public exposure; it does not appear to serve the purpose of helping the judiciary establish the truth and do justice in a detached circumspect manner and in calm circumstances. The right to be presumed innocent: The act lays down that only special courts may grant bail to people tried for offences under the act but they may not release a defendant on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged and unless the prosecution has been given an opportunity to ?show cause why he should not be released. This gives the prosecution the right to veto to deny bail.
The right to appeal: Section 31 of the act reads: A judgment or order passed, or sentence awarded, by a special court, subject to the result of an appeal under this act shall be final and shall not be called in question by any court. The possibility of the defendant to appeal to a court in the regular judicial system, either to the provincial high court or the Supreme Court of Pakistan is therefore excluded. People convicted and sentenced by the special courts are clearly disadvantaged in so far as their legal remedies are restricted: they have only one possibility of appeal, whereas people convicted by regular courts may
also appeal to the Supreme Court. This provision violates the principle of equality before law laid down in the Constitution of Pakistan. It is one of the fundamental principles of international human rights law. Moreover, the right to appeal is restricted in so far as it is subject to severe time limitations. The defendant may not in seven days be able to present an adequate appeal while the prosecution has 15 days for the appeal.
Moreover, the right to appeal of those facing the death penalty also appears to be seriously infringed under the act. Death penalty: Under Section 7(1) of the 1999 Amended Anti-terrorism Act, for terrorist acts resulting in death, courts have to mandatory impose the death penalty. This does not give any discretion to the judiciary. Section 22 of the 1997 Anti Terrorism Act, The government may specify the manner, mode and place of execution of any sentence passed under this act, having regard to the deterrent effect which such execution is likely to have?. Section 22 opens the possibility for public executions
of the death penalty,
In U.S.A.-
Since its passage following the September 11, 2001 attacks, the Patriot Act has played a key part and often the leading role in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life. While the results have been important, in passing The Patriot Act, Congress provided for only modest, incremental changes in the law. Congress simply took existing legal principles and retrofitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network. Congress passed the USA PATRIOT Act in response to the terrorists attacks of September 11, 2001. The Act gives federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. It vests the
Secretary of the Treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money laundering purposes. It seeks to further close our borders to foreign terrorists and to detain and remove those within our borders. It creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists. Although it is not without safeguards, critics contend some of its provisions go too far. Although it grants many of the enhancements sought by the Department of Justice, others are concerned that it does not go far enough.
Criminal Investigations: Tracking and Gathering Communications-Federal communications privacy law features a three tiered system, erected for the dual purpose of protecting the confidentiality of private telephone, face-to-face, and computer communications while enabling authorities to identify and intercept criminal communications. The Crime Control and
Safe Streets Act of 1968 s give authorities a narrowly defined process for electronic surveillance to be used as a last resort in serious criminal cases. When approved by senior Justice Department officials, law enforcement officers may seek a court order authorizing them to secretly capture conversations concerning any of a statutory list of offenses.
Foreign Intelligence Investigations- The Act eases some of the restrictions on foreign intelligence gathering within the United States, and affords the U.S. intelligence community greater access to information unearthed during a criminal investigation, but it also establishes and expands safeguards against official abuse. More specifically, it: permits roving surveillance (court orders omitting the identification of the particular instrument, facilities, or place where the surveillance is to occur when the court finds the target is likely to thwart identification with particularity).
Alien Terrorists and Victims- The Act contains a number of provisions designed to prevent alien terrorists from entering the United States, particularly from Canada; to enable authorities to detain and deport alien terrorists and those who support them; and to provide humanitarian immigration relief for foreign victims of the attacks on September 11.
New crimes: The Act creates new federal crimes for terrorist attacks on mass transportation facilities, for biological weapons offenses, for harboring terrorists, for affording terrorists material support, for misconduct associated with money laundering already mentioned, for conducting the affairs of an enterprise which affects interstate or foreign commerce through the patterned commission of terrorist offenses, and for fraudulent charitable solicitation. Although strictly speaking these are new federal crimes, they generally supplement existing law by filling gaps and increasing penalties.
New Penalties: The Act increases the penalties for acts of terrorism and for crimes, which terrorists might commit. More specifically it establishes an alternative maximum penalty for acts of terrorism, raises the penalties for conspiracy to commit certain terrorist offenses, envisions sentencing some terrorists to life-long parole, and increases the penalties for counterfeiting, cyber-crime, and charity fraud.
Other Procedural Adjustments: In other procedural adjustments designed to facilitate criminal investigations, the Act: increases the rewards for information in terrorism cases; authorizes ?sneak and peek? search warrants; permits nationwide and perhaps worldwide execution of warrants in terrorism cases; eases government access to confidential information;
allows the Attorney General to collect DNA samples from prisoners convicted of any federal crime of violence or terrorism; lengthens the statute of limitations applicable to crimes of terrorism; clarifies the application of federal criminal law on American installations and in residences of U.S. government personnel overseas; and adjust federal victims? compensation and assistance programs.
History of anti-terrorism laws in India.
Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab [1994] 3 SCC 569, where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and
reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.
Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications.
At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. Earlier, the following laws had been in force to counter and curb terrorism. The first law made in independent India to deal with terrorism and terrorist activities that came into force on 30 Dec 1967 was
– The Unlawful Activities (Prevention) Act 1967
The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that the executive did not expose political parties to intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.
– Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
The second major act came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569.
However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995. Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act, 1999 which was enforced on 24th April 1999. This law was specifically made to deal with rising organized crime in Maharashtra and specially in Mumbai due to the underworld. For instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA. For, POTA did not take note of organised crime as such while MCOCA not only mentions that but, what is more, includes `promotion of insurgency’ as a terrorist act. Again, the onus to prove a person guilty under POTA lies on the prosecution while under the Maharashtra law a
person is presumed guilty unless he is able to prove his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did.
The need of POTA.
It is normally said that terrorism is a low intensity war. But the loss, which our country has suffered in the last two decades due to the rise of terrorist activities, has been on a very large scale. This country has fought four high intensity wars and in those wars we have lost more then 6000 people. We have already lost more then 70000 civilians. In addition, we have lost more then 9000 security personnel. Almost six lakh people in this country have become homeless as a result of terrorism. Outside the expenditure on our armed forces, merely for maintaining the entire set up to fight insurgency, to fight cross-border terrorism, the economic cost itself has been Rs 45000 crore. The budgetary increase itself in the last 15 years, because of terrorism or anti-insurgency activities, has been 26 times. We have no record of the explosives that have been used in various parts of the country. We have a record of crime. But the explosives that have been confiscated by our security agencies weigh 48000 kilos. If our security forces had not been vigilant enough to confiscate these explosives, they would probably have been enough to take care of every inch of Indian soil.
What are the regions that are affected: It is not only Kashmir; Punjab too has suffered. Also Mumbai, Delhi and other regions of the country like the North East. Development has suffered, the economy has suffered. You have now a brand of Maoist terrorism; People’s War Group and other groups. A large part of Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh and Jharkhand right up to the Nepal border is affected. We had insurgency and terrorism in Tamil Nadu. We lost two of our former
prime ministers to this kind of terrorism.
In terms of our sovereignty, unity and integrity and our feeling of nationalism, terrorism strikes at each one of them. This is the enormity of the problem that we are addressing. But it is also said that our criminal law systems have broken down; it seems to be a sad fact to accept. Are we aware of the conviction rate under the so-called ordinary laws- At times we try and conceal the figures and say that in India the conviction rate is 40%. But that 40% is actually a camouflage because every time there is a challan and somebody pays Rs 100 as fine, it is recorded as a conviction. Every time somebody feels guilty and pays a
fine under company law, we take it as a conviction and then claim that the conviction rate is 40%. In heinous crimes like murder, the conviction rate under the so-called normal processes has come down to 6.5%. There are several reasons for this. One is that when we deal with hardened criminals, some of our old notions of criminal law have to change. It is a sad reality that crime in India has become a low risk business. It is a high profit business with a 93% probability that you can commit a hard crime and get away with it.
So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunaes in the ordinary law because when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India and can have such stringent laws why can not we have such laws.
Analysis of some important sections of Pota-
In the case of People’s Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580 the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same. Once legislation is passed, the Govt. has an obligation to exercise all available options to prevent terrorism within the bounds of the constitution. Mere possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutionally. Court upheld the constitutional validity of the various provisions of the Act.
1.Section 3(a) Defining terrorist act- 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.
Case Law- Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 In a case where 9 person had died and several other injured on account of perpetrated acts The court said that such terrorist who have no respect for human life and people are killed due to there mindless killing. So any compassion to such person would frustrate the purpose of enactment of Tada and would amount to misplaced and unwarranted sympathy. Thus they should be given death sentence.
Argument against- trade union activity would be affected because whoever disrupts essential supplies would be covered under POTA.Argument in favor- at least our trade union leaders are nationalist leaders. Nobody has ever suggested that when our trade union leaders go on strike, they threaten the unity, integrity, security and sovereignty of India.
2. Section 4 Possession of certain unauthorized arms– Where any person is in unauthorized possession of any- bombs, dynamite or hazardous explosive substance or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not.
Case Law- Sanjay Duttt Vs. State through C.B.I 1994 SCC 410 The expression possession though that of section 5 of Tada has been stated to mean a conscious possession introducing thereby involvement of a mental element i.e. conscious possession & not mere custody without awareness of nature of such possession and as regards unauthorized means and regards without any authority of law.
Argument against – That an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist.
Argument in favour – Firstly the section clearly says that any person who has unauthorized possession of arms that is does not possess a proper license for the arms. This section is only making the law stringent by stating that anybody who possesses arms should also possess proper license from the proper authority.
Secondly it also states weapons should be capable of mass destruction or biological or chemical substances of warfare so why would any person without any reason possess such kind of weapons and that to unauthorized
3. Section 7 Powers of investigating officers – If any officer (not below the rank of SP) investigating an offence committed under this act, has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism he shall with prior approval in writing from Director General of Police of which the property is situated can make an order to seize or attach such property.
Argument against – The petition articulates the fear that permitting a police officer to act on the basis of his belief will be “draconian and unguided.
Argument in favour – Case Law – T.T. Anthony Vs. State of Kerala 2001 Cri LJ 3329 This plenary power of police to investigate a cognizable offence is not unlimited. It is subject to certain limitations such as if no cognizable offence is disclosed & still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation.
4. Section 21 Offence relating to support given to a terrorist organisation-
(1) A person commits an offence if
(a) He invites support for a terrorist organization , and
(b) The support is not , or is not restricted to, the provisions of money or other property
(2) A person commits an offence if he arranges, manages or assists in managing or arranging a meeting which he knows is-
(a) to support a terrorist organization, or
(b) to further the activities of a terrorist organization , or
(c) to be addressed by a person who belongs or professes to belong to a terrorist organization.
(3) A person commits an offence if he addresses a meeting for the purpose of arranging support for a terrorist organization or to further its activities.
Case Law – Vaiko’s Case One of the petitions in this regard admitted by the Supreme Court has been filed by Vaiko, the general secretary of the (MDMK), a constituent of the ruling National Democratic Alliance at the Centre. Vaiko had defended POTA in Parliament during the debate on it. Therefore his petition challenging the validity of Section 21 of the Act
assumes particular significance. Under this Section, a person commits an offence if he invites support for a terrorist organisation, and even if the support is not confined to the provision of money or other property. He is guilty if he arranges or addresses a meeting which he knows is meant to support a terrorist organization or to further its activities. Vaiko was arrested under this Section on the basis of certain remarks saying that “I was a supporter of LTTE once. I was a supporter of LTTE
yesterday; I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow.” Then, he asked his audience whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a culture. Mr. Vaiko, was in detention for 17 months, did not choose to seek bail on a matter of principle.
When we looked at various chapters internationally, it was found that as far as membership of a terrorist group is concerned, the British law has an exclusive chapter on banning terrorist organizations. After banning a terrorist organization, membership of a terrorist organisation, ipso facto, becomes a punishable act.
5. Section 22- Fund raising for a terrorist organization to be an offence-
(1) Whoever commits an offence if he-
(a) invites, receives or provides money or other property
(b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
The second component that was not there in TADA is, if you try and earn money through a crime, that is, through terrorism, there are two offences which flow out of that. Whoever funds terrorism is also held guilty. By funding terrorism you are abetting terrorism. You are giving resources to terrorism. The old terrorist laws the world over never had a chapter on funding of terrorists. But now you must create a fear and scare in the minds of those who fund terrorists.
What you earn out of crime is not your private property, it is against public interest and must belong to the state. The UN passed a draft Money Laundering Bill which all of us have been debating. The whole concept of money laundering is that profits out of crime must be confiscated because they cannot belong to an individual. Is it the argument today that since India is now to have a provision where profits from terrorism will be confiscated, it is a draconian provision.
6. Section 27 Powers to direct for samples, etc.- when a police officer investigating a case requests a Chief Metropolitan Magistrate to obtain hand writing, footprints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of this act it will be lawful for the judge to give such orders as the case may be. If any accused person refuses to give such samples the court shall draw adverse inference against the accused. Case Law – S. Srinivasa Vs. M/s Deccan Petroleum Ltd. 2001 Cri LJ 659 The court said where the order of refusal to issue summons for production of document was prejudicial to accused then such order is not sustainable. The most important part of the section says that the power to take samples is not given to the police authorities but when a police officer
investigating a case requests a Chief Metropolitan Magistrate to obtain samples of any accused person reasonably suspected to be involved in the commission of this act and then if only the Chief Metropolitan Magistrate gives the order to obtain such samples its only then he can force the accused to give such samples. If any accused person refuses to give such samples the court shall only then draw adverse inference against the accused.
7.Section 32 Certain confessions made to police officers taken into consideration – A confession made by a person before a police officer not lower in rank than a S.P. and recorded by him out of which sound or images could be reproduced shall be admissible in trial of such person for the offence under this act. Case Law – Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 The court said that it is entirely to the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to law it must while so deciding the question should satisfy itself that there was no trap. No track and no importance seeking evidence during the custodial interrogations and all the conditions recquired are fulfilled. If the court is satisfied then the confessional statement will be a part of the statement.
Confessions could be made admissible evidence. In respect of confessions, we have given the facility of video recording. After that, within 48 hours, the person should be produced before a magistrate. The magistrate will ask whether it was voluntary or not. If the accused says that it was not voluntary, that he had been assaulted and coerced, the magistrate will have a medical examination done. So, a safeguard has been put in.
State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 this was an appeal against convictions in view of attacks made on parliament. The matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.
Admissibility of intercepted phone calls, intercepted phone calls are admissible piece of evidence under ordinary laws even though provisions of POTA cannot be invoked as it presupposes investigation to be set in motion on date of its interception. Impact of procedural safeguards under POTA on confession. Confession made involuntary is inadmissible evidence. If procedural safeguards have not been complied it will affect admissibility and evidentiary value of evidence being proved all charges beyond reasonable doubt convictions were upheld.
8. Section 45 Admissibility of evidence collected through the interception of communication (1) Notwithstanding anything in the code or in any other law for the time being in force the evidence collected through the interception of wire, electeronic or oral communication shall be admissible as evidence against the accused in the court during the trial of a case.
It is said that TADA was misused. Probably it was misused. I would like to point out that one of the great weaknesses in TADA a structural defect was its dependence on witnesses; eyewitnesses and humble citizens appearing against terrorist groups. Anybody from Punjab, Mumbai or Kashmir will testify that the average citizen is scared of coming and honestly deposing before these institutions. This is a threat that the witnesses face against terrorist acts. So how can a normal person be able to give a statement before the court
So there is a need bring in a provision that when terrorist gangs communicate with each other, intercepts of their communication should be allowed and these intercepts should become admissible evidence in court. So, when you arrest terrorists, you do not need a humble citizen to come and give evidence against them. You produce the recording of that
intercept. At that moment, it becomes admissible evidence. Under normal law it is not admissible evidence. We examined the suggestion and accepted it. One of the strengths of this law is actually on the question of intercepts becoming admissible evidence. It is one reason why in Maharashtra, the conviction rate has reached 75% plus under MOCA.
9. Bail provision This language of a bail provision, the CrPC normal bail provisions, will not apply: ?That no person will be released on bail unless the public prosecutor has an opportunity or where he opposes the application, there is a reasonable opportunity of believing that the person is innocent and shall not commit an offence. This was the language under TADA.
The language was diluted under POTA.10. Action against police officer .There is a provision that in case any police officer misuses this law for his own personal purposes or for collateral reasons, he will be prosecuted under POTA itself. Several safeguards have been incorporated in the Act to minimize the possibility of its misuse. Some of the main safeguards are as follows:
(i) Investigation of an offence under the Act is to be done by an officer not below the rank of Deputy Superintendent of Police.
(ii) No court can take cognizance of an offence under the Act unless sanction of the State.
(iii) The Act provides safeguards against abuse of the provision relating to admissibility of confession made before a police officer.
(iv) Intimation of arrest of the accused will have to be provided to a family member immediately after arrest and this fact is to be recorded by the police officer.
(v) Provision for prosecution of police officers for malafide actions under the Act and compensation to affected persons in such cases.
The State Government/UT Administrations were advised to ensure that the provisions of this law are used only against the terrorists and not against the innocent. They were also advised to sensitize the police officers and others concerned with the implementation of POTA on the need to ensure its fair and transparent operation and to also install a mechanism to oversee the implementation of the Act.
MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did. Under POTA a police officer found guilty of malafide action could be jailed for up to two years but MCOCA offers no such protection. Finally the law extended to the state of J&K unlike other laws.
Consequences of repeal of POTA-
Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967. By the promulgation of 1.Ordinance No.1 of 2004, it repealed POTA, a law specially designed to
deal with the menace of terrorism with its repeal, the state apparatus combating terrorism has been debilitated.
2. By Ordinance No 2 promulgated on the same day, virtually all the penal provisions of Pota concerning terrorist organisations and activities were transferred to the pre-existing milder sounding Unlawful Activities (Prevention) Act, 1967 (UAPA). By Ordinance No 2, the definition of unlawful association has been expanded to also include any association which has for its object any activity which is punishable under Section 153A of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Section 153A is about promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
3. There would be no arrests made after the ordinance is promulgated.
4. Among the special provisions dropped are those restricting release on bail and allowing longer periods of police remand for the accused. Now suspected terrorists may roam free under the bail a rule, jail an exception dictum. The police will not get sufficient time to interrogate the accused to investigate the cases which, by their very nature, are complex. In Pota, as in Tada earlier, confessions made before a police officer of the rank of superintendent were admitted as evidence.
5. All terrorist organizations banned under POTA would continue to remain banned, under the Unlawful Activities Act, after the repeal of the Act.
6. Some of the clauses contained in POTA, which will be completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer.
7. In another major departure from Pota, the government has removed all traces of strict liability. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question.
8. But beware, these concessions from the internal security establishment have not come without a price. As reported recently in the Indian Express, UAPA is more draconian than Pota when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police can now produce intercepts in the court without abiding by any of the elaborate safeguards provided by the repealed law. Thus, if the police cannot anymore extract a confession in custody, they have been given
more scope than before to plant evidence in the form of interceptions.
9. Another glaring shortcoming in the new law pertains to the dichotomy in the provision for banning terrorist organisations and unlawful organisations. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. But the problem is that the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot, for instance, ban any group for unlawful activities without
having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to hide special provisions in an ordinary law.
So what remains on the statute books- The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that political parties were not exposed to intrusion by the executive. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India.
Unlawful Activities (Prevention) Amendment Act, 2004
It would however be simplistic to suggest, as some critics did, that the new law has retained all the operational teeth of Pota or it has made only cosmetic changes. The difference between Pota and UAPA is substantial even as a lot of provisions are in common.
A brief outline of the amended act:
The Act does not define the word terrorist in its definition clause but defines a terrorist act. The word terrorist is to be construed according the definition of the terrorist act. Terrorist act is defined in the Act as – Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act (Section 15).The above definition did not exist in the 1967 Act. The previous Act only defined and dealt with unlawful activity. An unlawful activity includes an activity which intends to bring about cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India, or which causes or is intended to cause disaffection against India Section 2(o).
Whether an association is unlawful is to be declared by the Central government by giving the grounds for such a declaration. Section 3 Thereafter; it is referred to the Tribunal Section 4. A notice is issued by the Tribunal to the association concerned to show cause why it should not be declared unlawful. To ascertain whether there is sufficient cause for declaring the association unlawful.
For taking cognizance of any offence under this Act prior sanction of the Central or the State government, as the case may be, is necessary. Criminal Procedure Code, 1973, is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours, confessions are no longer admissible before police officers and bail need not be denied for the first three months. The presumption of innocence leaving the burden of
proof on the prosecution has also been restored.
The evidence collected through interception of wireless, electronic or oral communication under the provisions of the Indian Telegraph Act or the Information Technology Act or any law being in force has been made admissible as evidence against the accused in the court Section 46.The amended Act provides for following penalties: Offence Includes Penalty
Being a member of an unlawful association A person who is and continues to be a member of such association, takes part in meetings, contributes to, or receives or solicits any contribution for the purposes of the association or in any way assists the operations of such association. If such person is in possession of unlicensed firearms, ammunition, explosive, etc, capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, and if such act has resulted in the death of any person. In any other case Imprisonment for a term which may extend to two years and fine.
Death or imprisonment for life.
Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment upto one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine.
Imprisonment upto five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts,
the offences and their punishments. Chapter IV, sections 15-22. The following table summarises these provisions:
Offence Punishment Terrorist act Resulting in death of any person In any other case Death or imprisonment for life.
A term for not less than five years.
Raising funds for a terrorist act Term not less than five years. Conspiracy Term not less than five years. Harbouring Imprisonment for not less than three years. Being a member of a terrorist organization The term may extend upto
imprisonment for life.
Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment upto three years.
There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order.
Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. The offences and penalties under this chapter as given below:
Offences Punishment
Membership of a terrorist organization (S. 38) Imprisonment not exceeding ten years. Supporting a terrorist organization (S. 39) Imprisonment not exceeding ten years. Raising funds for terrorist organization (S. 40) A term not exceeding fourteen years.
The Act also provides for protection of witnesses under section 44 such as keeping the their identities secret even in orders, judgments and records of the Court, issuing directions to secure the identity of the witnesses and by imposing punishment for contravention of any such directions.
Conclusion
Various suspicion and voices have been raised by people NGO’s under the pretext of constitution, constitutional provisions, and equality before law and civil rights. All these organizations must keep in mind that provisions are there in the constitution where reasonable restrictions can be enforced even upon the liberty of people and in view of the increasing terrorist activities in the nation more particularly in view of the 9/11 attacks on the World Trade Center which killed more then 3000 people and 13 December attack on the Indian Parliament and large number of terrorist activities not only in J&K, N.E., A.P., and other
areas of our country need for promulgation of POTA type legislation becomes the need of the hour. However there are numerous safeguards to prevent the abuse of above legislation by unscrupulous investigating officers, which are being ignored by various organization professing the repeal of such law. The attention of those who are against this legislation is invited to object and reason for which POTA was enacted. The repeal of Pota is just party politics to gain for their party’s vote bank. If you do not give to your security forces and investigative forces the legal power, human rights violations will be much worse. Therefore, if you want, out of concern for human rights, the powers not to be misused, you cannot sustain a situation where you do not give powers to the police but put pressure on it to deliver. You will have a situation of anarchy.
Therefore, let us all understand the problem we are now dealing with. And this problem requires various kinds of provisions. Legitimate power has to be given because this is an extraordinary situation. Extraordinary situations require extraordinary remedies. Please do not advise us to use velvet gloves. Terrorism has several consequences that have to be faced in the context of a growing threat to the country. References have repeatedly been made to laws in other countries. It is very dangerous to quote selectively. Let us not selectively take our lessons from America. With all due respects to those great countries, when 3,000 people sadly died in the World Trade Centre, the US president said that a war had been launched on America. When 61,000 people and 8,000 security persons have died here, we are advised to show restraint. We are advised that this is the remedy; that we should deal with it under the normal procedure. Learning from this experience, I would urge
the people who are opposing this law to once again reconsider their stand because posterity eventually will decide that this country, for its integrity, sovereignty and unity certainly needs this law. Quite clearly, there is a crying need to fight the menace of terrorism unitedly. Partisanship of any sort in dealing with the ISI-sponsored terror attacks in India should be abandoned forthwith. Today terrorism has reached the heart of India in New Delhi’s Parliament House. And to suggest that preventive detention laws without any safeguards whatsoever against their misuse were required in those relatively peaceful times in
the Seventies and Eighties but are not required now, even with safeguards against their misuse, is to betray a sickening streak of partisanship.
To the extent it detracts from presenting a united front against terrorists, the governments myopic stand on POTO and MCOCA in Delhi represents a greater threat to national unity than even the threat of the ISI-sponsored terror. So it becomes very necessary in a country like India that if a law regarding terrorism is enacted it should be made so stringent that the culprit be bought to book and does not go scot-free just because of the loopholes and lacunae’s in the ordinary law because
when our neighboring nation Pakistan which is the cause of perpetrating terrorism in India can have such stringent laws then why can not we have such laws. Indian law as it stands today has come around in strange circumstances as the earlier legislation was found capable of being misuse. This law is less harsh than the previous anti-terrorism laws in India and is not equipped by way of express provision for discretion to deal with a vast variety of terrorist activity or other activities connected with perpetration of terrorism. Therefore I am of the considered opinion that the Prevention of Terrorist Activities Act should be brought back for curbing terrorism and such like activities with a strong arm, which may help in preventing and deterring such activities.
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