Apt Judicial Reminder In Era Of Over-Criminalisation

Context: Jurisprudence of anti-terrorism laws in India has to be reviewed in light of increasing cases of misuse.

       

Misuse of anti-terrorism laws

• Misuse of Unlawful Activities (Prevention) Act, 1967 (UAPA): During 2015-2019, 7840 persons were arrested under UAPA, but only 155 were convicted by trial courts.
• Misuse of Terrorist and Disruptive Activities (Prevention) Act (TADA): Till 1994, though 67,000 people were detained, just 725 were convicted.
• Supreme Court observations in Kartar Singh case, 1994: In many cases, the prosecution had unjustifiably invoked provisions of TADA ‘with an oblique motive of depriving accused persons of getting bail’.

Defining terrorism through various judgments:

• Use of violence: In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts could range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons etc.
• Psychological impact on society: In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as the ‘use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces ... on the society as a whole.
• Mere disturbance of public order is not a terrorist act: In Kartar Singh (1994), the Supreme Court held that a mere disturbance of public order is not a terrorist act.
• Based on intent: In the Rajiv Gandhi assassination case, the court held that none of the accused had the intent to overawe the government or strike terror among people and thus were not held to be terrorists.
  • In Sanjay Dutt (1994) as well, the Supreme Court had held that those whom the law did not intend to punish are not to be roped in by stretching the penal provisions.
• Razing of constitutional principles: In the PUCL judgment (2003), the Supreme Court had highlighted ‘razing of constitutional principles that we hold dear’, ‘tearing apart of the secular fabric’ and ‘promotion of prejudice and bigotry’, to be included under terrorist acts.

Issues with the jurisprudence of anti-terrorism laws

• Legal gap in the definition of terrorism: TADA, UAPA, or any other national or international anti-terrorism law fails to define what constitutes terrorism.
  • Section 15 of UAPA defines a terrorist act ‘as any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people....’
  • Delhi High Court observation: Definition of ‘terrorist act’ in UAPA is wide and somewhat vague; thus, it cannot be casually applied to ordinary conventional crimes.
• Missing distinctions in threat to ‘law and order’, ‘public order’ and ‘security of state’:
  • In Ram Manohar Lohia case, 1966, SC explained ‘law and order’ represents the largest circle within which is the next circle representing ‘public order’, and the smallest circle represents ‘security of state’.

Way forward

• Narrowing the criminal provision: Uphold first principle of criminal law in the approach to terrorism jurisprudence, i.e. criminal provisions are to be given the narrowest possible meaning.
• Caution not to fall into the trap of state terrorism: No anti-terror law can really end the problem of terrorism, and pushing a civilised state to state terrorism is tried and tested strategy of all terrorists.
• Remove injustices to combat terrorism: Creation of a truly just, egalitarian and non-oppressive society remains the most effective approach in combating terrorism.