It is a cruel irony that draconian amendments made to the Unlawful Activities Prevention Act (UAPA) in 2019 coincided with the nation observing the centenary of the Jallianwala Bagh massacre. It is pertinent to remind those who drafted the amendments that Indian patriots gunned down on the orders of General Reginald Dyer at Jallianwala Bagh in 1919 had gathered to protest against the Rowlatt Act, 1909, that had provided for detention without trial. In retrospect, and having seen the application and consequences of our own anti-terror laws, the UAPA in particular, it is perhaps safe to say that the British law was far more humane than our current terror laws. The UAPA amendments are, indeed, an insult to the Jallianwala Bagh martyrs.
Montesquieu, the revered French jurist, had said, “every punishment which does not arise from absolute necessity is tyrannical”. Criminal law should, in fact, be used ultima ratio—a last resort—and only for the “most reprehensible wrongs”. Justice or righteousness is the source, the substance and the ultimate end of law. Law without justice is unthinkable. Unfortunately, power has today become the basis of law. ‘Crimes’ originate in the government policy and, therefore, criminal law reflects the idea of ‘power’ rather than ‘justice’. The State, in its discretion, defines acts as crime as per its own compulsions of ideology, electoral gains and expediency. The State may, thus, decide to criminalise or decriminalise almost anything.
Many of us will find it difficult to accept that criminal justice policy is largely irrelevant as an effective means of reducing crime. General deterrence is nothing more than fiction. It is indeed a dated idea, though utilitarians like Jeremy Bentham, considered it an effective means of crime prevention. The problem with the theory of general deterrence is that it justifies passing harsher sentences against a convict as a means to deter others from committing similar crimes in future. This is of superficial appeal as utility of general deterrence has not been proven in any authentic empirical scientific study.
Despite having extremely repressive anti-terror laws such as TADA, POTA (in the past), UAPA, NSA (at present) etc., there has been no noticeable decline in terrorist violence. The latest developments in Kashmir demonstrate that our terror policies have not been successful. The stringent clauses in these laws include defining terrorism in widest possible terms, harsh punishment extending to life sentence or death, reversal of presumption of innocence, presumption of guilt in case weapons are recovered from an accused person, admissibility of confessionals made to police officers, longer durations of detention, denial of bail, etc.
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Anti-terror laws, including UAPA, have largely been used against petty offenders, trade union leaders, political dissenters, civil rights activists, elderly citizens and even children. Under the Congress governments in Gujarat in the early 1990s, TADA was frequently invoked. It was similarly misused and abused in Jharkhand. Even a retired high court judge, Justice Ajit Singh Bains, was kept in detention in Punjab for months together. The recent custodial death of Father Stan Swamy has been widely criticised.
From 2015 till 2019, as many as 7,840 persons were arrested under the draconian UAPA but only 155 were convicted by trial courts. Many of those convicted were eventually acquitted by the higher courts. The Congress governments misused TADA that was enacted in 1985 and amended in 1987. Till 1994, though 67,000 persons were detained under TADA, only 725 were convicted despite confessions made to police officers being made admissible as evidence. Between 2018 and 2019, the Allahabad High Court quashed 94 of 120 orders under the National Security Act in Uttar Pradesh.
In Kartar Singh (1994), the Supreme Court had observed that in many cases, prosecution unjustifiably invokes provisions of TADA “with an oblique motive of depriving the accused persons from getting bail”. The apex court said that such an invocation of TADA was “nothing but the sheer misuse and abuse of the Act by the police”. UAPA too has a similar saga of abuse. The 133-page bail order of Delhi High Court in Asif Iqbal Tanha (June 15, 2021) that led to the release of Tanha, Devangana Kalita and Natasha Narwal came as a bolt from the blue to Delhi Police. The Solicitor General tried to convince SC about the national implications of this bold and courageous order but failed in getting it entirely stayed, despite the apex court expressing its reservations on the several significant observations made by the high court regarding the interpretations of crucial UAPA provisions.
At the heart of the controversy is how ‘terrorism’ is defined and when UAPA can be invoked. ‘Terrorism’ was first used as a descriptor for the actions of French revolutionaries against their domestic enemies in 1793. Yet, there is no universal definition of ‘terrorism’ even internationally. The United Nations’ General Assembly had given this task to a committee in 1972 but in almost 50 years no consensus has been achieved on the meaning of terrorism. In India, neither TADA nor UAPA gave any definition of the terms ‘terror’ and ‘terrorism’.
Section 15 of UAPA defines a terrorist act in extremely wide and vague words as “any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people”. How is such a terrorist act committed? The UAPA says “using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or by any other means of whatever nature to cause or likely to cause death, or injuries or damage or destruction of the property”. How does one define the expression ‘by any other means’? When a general word is used in any law after specific words, it is to be interpreted in the context of specific words.
In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts can range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons, etc. Since Natasha Narwal, Devangana Kalita and Asif Iqbal did not do any of these things, Justice Anup Jairam Bhambhani of the Delhi High Court could not be convinced of their involvement in any terrorist act. Through an authoritative and enlightened bail order entirely based on apex court judgments, he reminded the Delhi police the true meaning of a terrorist act.
Relying on the famous judgment of A.K. Roy (1982) where the constitutionality of the National Security Act was challenged, Justice Bhambhani had concluded that to ensure that a person who was not within parliamentary intendment does not get roped into a more stringent penal provision it must be more strictly construed. The apex court itself had held that while construing preventive detention like NSA, care must be taken to restrict their application to as few situations as possible. The Supreme Court had opined that if this is not done, such laws may be struck down as unconstitutional because of grave consequences to personal liberties. In Sanjay Dutt (1994), the Supreme Court had held that those whom the law did not intend to punish are not to be roped in by stretching penal provisions.
Accordingly, the Delhi High Court concluded that since the definition of ‘terrorist act’ in UAPA is wide and somewhat vague, it cannot be casually applied to ordinary conventional crimes and the act of the accused must reflect the essential character of terrorism. Anti-CAA protesters and civil society activists are not terrorists. Defining terrorism may be difficult but does not everyone know when an act of terror is really committed?
In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as 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 or has the potential of producing on society as a whole. “Terrorist activity travels beyond the effect of an ordinary crime capable of being punished under ordinary penal law and its main objective is to overawe the government or disturb harmony of the society or to ‘terrorise’ people and with a view to disturb even the tempo, peace and tranquillity of the society and create a sense of fear and insecurity.”
Thus, what distinguishes terrorism from other forms of violence is the deliberate and systematic use of coercive intimidation. In Kartar Singh, the Supreme Court held that mere disturbance of public order that disturbs even the tempo of the life of a community of any particular locality is not a terrorist act. What to talk of anti-CAA protests in Delhi or of the case against Akhil Gogoi in Assam or the charges against public intellectuals, including the late Stan Swamy, in the Bhima Koregaon case. In fact, the Supreme Court, in the Rajiv Gandhi assassination case in Nalini & 25 others (1999) held that none of the accused had intent to overawe the government or strike terror among people and therefore killing of Rajiv Gandhi and 15 others was not held to be a terrorist act or disruptive activity under Section 3 of TADA.
Many of us may not be aware that in the historic PUCL judgment (2003) where the constitutionality of POTA was under challenge, the Supreme Court had highlighted another vital dimension of terrorist act by including within its meaning, amongst other things, the “razing of constitutional principles that we hold dear”, “tearing apart of the secular fabric” and “promotion of prejudice and bigotry”. By this interpretation, several leading lights of our politics today are to be prosecuted for committing terrorist acts.
The 2019 UAPA amendment not only impinges on our federal character but is yet another instance of going against longstanding juridical principles of criminal justice system. The criminal justice system has to be tilted in favour of the accused as unlike civil cases there is no parity between the parties. Here, the mighty State is pitted against an accused, one little man. The UAPA removes the vital distinction between an ‘accused’ and a ‘convict’. To be an ‘accused’ would now be as bad as to be a ‘convict’. The individual’s right to personal liberty has also disappeared. A person becomes an accused when a judge frames a charge against him after taking cognisance and applying judicial mind but under our terror laws, the government, on its own, enjoys the power to declare people and organisations as terrorists. What the government gains by such a declaration is unclear as no new offence has been created.
One hopes that Chief Justice of India, Justice N.V. Ramana’s recent observations on sedition would eventually lead to striking down of this highly misused law. Unwarranted curtailment of individual liberty in the name of counter-terrorism by the State is the greatest tragedy of our times. Today, the UAPA and sundry other ‘terror’ laws are instruments to terrorise citizens. They impinge on ideals of rule of law. The best response to terrorism need not necessarily be a mirror image of the act of terrorism itself.
(This appeared in the print edition as "The Law as Act of Terror")
(The author is vice chancellor, NALSAR University of Law, Hyderabad. Views expressed are personal)