Terrorism in India
Terrorism is not new and though it was seen since the beginning of recorded history it is hard to define.
The earliest known organisation was the Zealots of Judea. The Assassins were the next group to show recognizable characteristics of terrorism, as we know today.Though both Zealots and Assassins operated in antiquity, they are relevant today as forerunners of modern terrorists in aspect of motivation, organisation, targeting and goal and although both were ultimate failures still they are remembered hundreds of years later. Terrorism has today become the latest threat to world peace and particularly to Indian’s national security. The menace of terrorism whether perpetrated by individuals, groups or state forces is a crime against humanity which has wounded societies all over the world.The terrorist has not only threatened the ideals of democracy and freedom but also caused a serious challenged to the existence, progress and development of mankind.
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The modern technology has further added a new dimension to terrorism as the highly sophisticated weapons are now easily available to the terrorist groups as well.
In the world-wide there are numerous terrorist organisations that are existing actively in their apart from other International terrorist organisations.The alarming increase in terrorist attacks in this century is a cause of serious concern. The rates at which the attacks have increased are such1 – | In the Year |Number of International terrorist attacks (approx. ) | | 2005 | 45 | | 2006 | 54 | 2007 | 126 | | 2008 | 322 | | 2009 | 287 | | 2010 (up to May) | 332 | ____________________________________________________________ ________ *LL. M, PGDCFS. Lecturer in Law, Midnapore Law College, Midnapore, West Bengal. PIN – 721102 1.
Wikipedia (the Free Encyclopaedia, available in the internet) http://en. wikipedia. org/wiki/List_of_terrorist_incidents HISTORICAL BACKGROUND From the time of the Assassins (late 13th century) to the 1700’s, terror and barbarism were widely used in warfare and conflict, but key ingredients for terrorism were lacking. Use of the word “terrorism” began in 1795 in reference to the Reign of Terror initiated by the Revolutionary Government in France.During the late 19th century radical political theories and improvements in weapons technology encouraged the formation of small groups of revolutionaries who effectively attacked nation-states. Anarchists produced some striking success, assassinating heads of State from Russia, France, Spain, Italy and the United Sates. However, their lack of organisation and refusal to cooperate with other social movements rendered anarchists ineffective as a political movement.
In the early years of 20th century nationalism and revolutionary political ideologies were the principal developmental forces acting upon terrorism.Since the end of World War II, terrorism has accelerated its development into a major component of contemporary conflict. Terrorists are improving their sophistication and abilities in all aspects of their operations and support. Weapons technology has become more increasingly available, and the purchasing power of terrorist organisations is on the rise. The ready availability of both technology and trained personnel to operate it with sufficient cash allows the well-funded Governmental counter-measures. The age of modern terrorism i. e.
nternationalisation of terror might be said to have begun in 1968 when the popular Front for the Liberation of Palestine (PFLP) hijacked an airliner en route from Tel Aviv to Rome. Thos internationalisation of terror was progressed by the way of cooperative training between Palestinian groups and the Japanese Red Army which began in 1974. Since then international terrorist has continued to grow and continues to this day. In beginning it was confined to Kashmir only. But now it has a larger footprint and it is spreading all over the country.Before going to mention some of the more recent incidents, let us remember worst act of terrorism in the history of mankind namely the demolition of World Trade Centre of USA on 11th September, 2001. Surat, Jaipur, Delhi, Mumbai all have seen some big terrorist strikes in the past.
North-eastern part of the country also becomes target of the terrorist. Tamilnadu has also faced fall out of terrorism promoted by the Liberation Tiger of Tamil Eelam (LTTE) in Srilanka. In early eighties there lighted a spark of terrorism in Punjab and the demon of terrorism took the life of thousand peoples.The largest act of international terrorism occurred on September 11, 2001 in a set of coordinated attacks on the USA where Islamic terrorists hijacked civilian airliners and used them to attack the World Trade Centre towers in New York City and Pentagon in Washington, DC. Other major attacks also occurred in New Delhi (Indian Parliament attack); Bali Car bomb attack; London subway bombings; Madrid train bombings and the most recent attacks in Mumbai (hotels, train station and a Jewish outreach centre. MEANING OF TERRORISMBut to describe a person, a group or a party as ‘terrorist’ it is necessary to know what is ‘terrorism’ i. e.
definition of ‘terrorism. ’ The term ‘terrorism’ comes from the French word ‘terrorisme’ which is based on the latin verb ‘terrere’ meaning ‘to cause to tremble. ’ According to Oxford English Dictionary, Second Edition, 1989 terrorism is a policy intended to intimidate or cause terror. The Encyclopaedia Britannica defines terrorism as the systematic use of violence to create a general climate of fear in a population and thereby to bring about particular political objectives.As per Wikipedia, the largest store house of information, terrorism is violence or other harmful acts committed (or threatened) against civilian for political or other ideological goals. The European Union defines terrorism as an act with the aim of “destabilising or destroying the fundamental political, constitutional, economic or social structures of a country. ” The Code of Federal Bureau of Investigation of USA has defined terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a Government, a civilian population or any segment, 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. There are more than 100 definition of the word ‘terrorism’; these definitions are used by UNO, the European Union, United States and other countries. The modern definition of terrorism is inherently controversial. The United Nations states that “the question of a definition of terrorism has haunted the debate among states for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafter in 1937 never came into existence. The UN Member States shall have no agreed upon definition. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international counter measures.
Terrorism has been of concern for the international community since 1934 when League of Nations attempted or the first time to adopt a convention for the prevention and punishment of terrorism. Although it was adopted in 1937, it actually never came into force then.The case is somewhat different when United Nations took initiatives in this regard. Since 1963 United Nations has elaborated as many as 13 international conventions to prevent terrorist through the world. CAUSES OF TERRORISM On proper analysis the following causes for the various insurgent/terrorist movements in India can be deduced – i) Political causes – In Assam and Tripura it is seen that due to the failure of the government to control large scale illegal immigration of Muslim from Bangladesh, to fulfil the demand of economic benefits for the son and daughters of the soil etc. i) Economic causes – Andhra Pradesh, Madhya Pradesh, Chattishgarh, Orissa, Bihar and West Bengal are prime examples. The economic factors include the absence of land reform, rural unemployment, exploitation of landless labourers and etc.
These economic grievances and gross social injustice have given rise to ideological terrorist groups such as Maoist groups operating under different names. iii) Ethnic causes – It is seen mainly in Nagaland, Mizoram and Manipur due to feelings of ethnic separateness. iv) Religious causes – Punjab before 1995 and in Jammu and Kashmir since 1989.CRIMINAL JUSTICE REFORM AND TERRORISM The menace of terrorism is a crime against humanity which has wounded societies all over the world. The terrorists have not only threatened the ideals of democracy and freedom but also caused a serious challenge to the existence, progress and development of mankind. In order to combat the terrorism a multi-pronged approach is needed. The systematic causes must be addressed.
A proper policy to combat terror should be formulated. Appropriate laws should be enacted. These should be regional as well as international cooperation among the countries.It is normally said that terrorism is a low intensity work. But the losses which are caused due to terrorism in every year are very shocking. Though laws no matter how harsh they are cannot by themselves prevent terrorist attacks. They can help in the successful investigation and prosecution of cases against terrorist and those who aid and abet terrorist acts.
Therefore the need for special laws to combat. Terrorism cannot be under estimated, actually the problem lies with the implementation of laws and the abuse of powers conferred on the authorities under the special laws.The record in this regard has been far from satisfactory to say the list popular criticism against these laws have been based more in which they are implemented than on any modification in the laws and procedures. If the regular Criminal Justice System has performed its task with reasonable result, there would have been no need for special laws or institutions to deal with terrorist acts. Three distinct functions are involved in combating terrorism, they relate to pre-empting and preventing; containing and managing; and investigating and prosecuting. There may be need for convergence of these three functions as operational level.The challenge before the government is managing the three fold counter terrorism mechanism for optimum result.
In this context I like to throw a light on the recommendation of the Law Commission of India regarding suitable legislation for combating terrorism and anti-national activities and also the opinion of the National Human Rights Commission over this subject along with the recommendation of the Malimath Committee on the reform of the Criminal Justice System. The Law Commission of India undertook a study of the security situation for assessing the need for comprehensive ant-terrorism law.It took into consideration similar legislations in other countries, held two seminars on 20th December, 1999 and 29th January, 2000 to elicit opinion on the matter, and it opined that India requires a permanent anti-terror law and without any further loss of time. After the expiry of TADA the Law Commission was entrusted with the task of enacting a suitable legislation for combating terrorism and other anti-national activities. The Law Commission subsequently recommended Prevention of Terrorism Bill, 200 which was modified version of TADA.However, subsequently Prevention of Terrorism Ordinance, 2001 was promulgated by the President. The National Human Rights Commission (NHRC) rejected the draft bill submitted by the Law Commission and stressed the need for observing and defending ‘national integrity’ and ‘individual dignity’ – both being the central valves of the Constitution and there was a need to balance those two2.
According to the NHRC – the problem which the Criminal Justice System in India faced is related to (a) proper investigation of crimes, (b) efficient prosecution of criminal trials and (c) the long days in adjudication and punishment in courts.None of the problems, however, could be ____________________________________________________________ _________ 2. Annual Report of the NHRC 2002-2003 solved by enacting laws that did away with the safeguards that were designed to prevent innocent persons from being prosecuted and punished, or by providing for a more drastic procedure for prosecution of certain crimes3. ANTI TERRORIST LAWS IN INDIA A multi pronged approach is needed to tackle the terrorist threat. A proper policy to combat terror should be formulated. Appropriate laws should be enacted.Actually terrorism has been of concern for the international community since 1934 when League of Nation attempted for the first time to adopt a convention for the prevention and punishment of terrorism.
Although it was eventually adopted in 1937 it actually never came into force since then. The case is some what different when one looks at the United Nation’s initiatives in this regard. It was particularly since 1963 the United Nation has elaborated as many as thirteen international conventions to prevent terrorist act through out the world.The US and UK have both effective anti terrorism laws in the United States following the terrorist attacks on 9th September, 2001, President Bush approved on October 26, 2001, the Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 to deter and punish terrorist acts in the United States and around the World. UK had Prevention of Terrorism Act, 1974, Terrorism Act, 2000, Anti Terrorism Crime and Security Act, 2001, Prevention of Terrorism Act, 2005, Terrorism Act, 2006, Counter Terrorism Act, 2008 to prevent terrorist activities.In Belgium Anti Terrorism Act, 2003, in Australia Anti Terrorism Legislation, 2004, Australian Anti Terrorism Act, 2005 in New Zealand Terrorism Suppression Act, 2002, in South Africa, South African Terrorism Act, 1967 are in force even in Pakistan Anti Terrorism Act, 1997, Anti Terrorism Act as Amended 1999 are in force. Terrorism has immensely affected in India.
The reason for terrorism in India may vary vastly from religious to geographical to cast to history. The Indian Supreme Court took a note of it in Kartar Singh v.State of Punjab4, where it observed that the country has been firm grip of spiralling terrorist violence and is caught between deadly pangs of disruptive activities anti terrorism laws in India have always been a subject of much controversy. On of the argument is that these laws stand in the way of guaranteed by Part III of the Constitution. The anti terrorist laws have been enacted before by the legislature and upheld by judiciary though not with out reluctance. The intention was to enact statutes and bring them in force till the situation improves.This 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. The Law Commission of India headed by a former judge of the Supreme Court recommended in April, 2000 the adoption of a law designed to deal firmly and effectively with terrorist and there activities. At present the legislations to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967 as Amended in 2008.Besides there have been other anti- terrorism laws in force in this country a different point in time, such as Terrorist And ____________________________________________________________ _________ 3. Annual report of NHRC, 2001 – 2002 4.  3 SCC 569 Disruptive Activities (Prevention) Act (TADA), 1987, Prevention of Terrorist Act (POTA), 2002, Maharashtra Control of Organised Crime Act (MCOCA) 1999 etc. The most important change brought about recently is the establishment of the National Investigation Agency under National Investigation Agency Act, (NIA) 2008 for effective handling of terrorism related offences.
Another important Act i. e. Armed Forces (Special Power) Act (AFSP), 1958 prevails in the North-eastern Region of India. This controversial legislation is promulgated deal with insurgency and terrorism in North-eastern States. This notorious empowers law enforcement personnel to shoot and kill any person who is acting in contravention of law or order. This Act has been criticised on various times as to the validity of the Act by the national as well as international organisations. The first law made in independent India to deal with terrorism and terrorist activities was the Unlawful Activities (Prevention) Act, 1967.
This Act was design to deal with association and activities that questioned the territorial integrity of India. The second major Act came into force in the year 1987 was the Terrorist and Disruptive Activities (Prevention) Act, 1987. This Act had much more stringent provisions than the Unlawful Activities (Prevention) Act, 1967 and it was specially made to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Supreme Court as being unconstitutional, though the Supreme Court of India upheld its constitutional validity.However there were many instances of misuse of power for collateral purposes. The rigorous contend in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in the year 1995 after passing the judgement by our Supreme Court in Kartar Sing v.
State of Punjab5. Subsequently the country was witnessed to major terrorist incidents including the Indian Parliament attack in the year 2001. The government was thereafter obliged to enact the Prevention of Terrorist Act (POTA) 2002. POTA is also criticised on the ground that it gave extraordinary power to the law enforces agencies which are misused.Finally, in the year 2004 the UPA Government repealed the POTA because it was found to be draconian, misused and counter productive. Subsequently the Unlawful Activities Prevention Amendment Act, 2004 was passed though lots of provisions of POTA have retained in this Act. Lastly in the year 2008 the Unlawful Activities (Prevention) Amendment Act, 2008 along with National Investigation Agency (NIA) Act were passed for effective handling of terrorism related offences.
If those laws are to be scrapped because it is misused, then perhaps most of our laws will have to be dumped in the Indian Ocean.So the proper approach in such cases should be punished those who misuse the law and what is necessary is regulation not the scrapping of any Act or Statute. NEED TO STRIKE A BALANCE The Amnesty International, in May 2003, charged that, “the war on terror, far from making the world a safer place, has made it more dangerous by curtailing human rights, undermining the rule of international law and shielding governments from scrutiny”. Again in its Report 2004, it said that:- “The global security agenda promoted by the US Administration is bankrupt of vision and bereft of principle. Violating rights at home, turning a blind eye to abuses abroad ___________________________________________________________ _________ 5.  3 SCC 569 and using pre-emptive military force where and when it chooses has damaged justice and freedom, and made the world a more dangerous place. ” The International Federation for Human Rights (FIDH) has also criticized the US for the PATRIOT Act and UK for the Anti-terrorism Act, and said that these laws constitute “serious violations of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) as they prevent non-nationals from the full enjoyment of basic human rights”.
The Acts also violate Article 26 of International Covenant on Civil and Political Rights as they create discrimination on grounds of national origin. In India, the government has already repealed POTA and is in the process of enacting a milder legislation. The Supreme Court of India in lndira Gandhi v. Raj Narain6 rightly observed that “the major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty become license”. It would appear that we need to strike a balance between the security concerns and the human rights considerations.The regulatory and monitoring mechanism which help deter, identify, and track terrorists have to be there, but these should not seriously jeopardize the liberty and freedom of the citizens. The balance should be such which, on the one hand, does not fetter the initiative of the security forces, maintains their morale and generally gives adequate latitude to the government to undertake anti-terrorist operations and, at the same time, ensures that the laws of the land are observed and the human rights are by and large upheld.
SOME EFFECTIVE MEASURES Terrorism is a complex phenomenon. As it is basically a result of politico-socio-economic and administrative malaise, it can not be cured by military action alone. Any state measures to counter terrorism have, therefore, to be a mixture of political, social, administrative and military actions. Fighting terrorism requires taking a series of multi-pronged measures and strategies on the part of state authorities some of them are given below- 1.Countering terrorism is an 80% psychological and sociological warfare and 20% use of force against the terrorists; Psychological and sociological in puts should therefore be given an important place in the formation of appropriate counter-terrorism strategies. 2. Extraordinary administrative and legislative measures should be adopted to curb terrorism.
3. The electronic media, the print media, field publicity department and intellectuals should play constructive, effective and meaningful role in combating terrorism. 4.The police and Para-military forces should be equipped with sophisticated weapons and a professionally efficient antiterrorist force should be created. 5. Civil and military forces should tape the traditional resources of influence and information for the collection of- information about terrorists, their designs and hideouts. 6.
There should be proper and meaningful coordination between various intelligence agencies working for the collection of intelligence about terrorists ____________________________________________________________ ________ 6. AIR 1975 SC 2299 and their activities. A composite intelligence gathering and dissemination centre should be established. 7. The state should strive to achieve a national consensus on its anti-terrorism, policies on the basis of a comprehensive assessment of all aspects of the problem. Such policies should be clear, coherent- and pragmatic ones and applied firmly against the terrorists. 8.
There should be special employment drive, development boost and revival of literary cultural forums. 9.Sincere efforts should be made to revise the political activities, to hold elections and to hand over power to the elected representatives of people in the areas affected by terrorism. 10. State machinery should be strengthened and strong administrative measures must be taken to counter terrorism. All organs of the state should function at their optimum of efficiency, individually as well as collectively. 11.
Conscious and concerted efforts should be made by the state officials at every level to redress the public grievances. 12.Serious attempts should be made to separate terrorist from general public and no excesses should be committed on innocent masses. 13. The most competent official be posted in the terrorist-ridden areas. 14. The administration should be just, impartial and fair in thinking as well as in action.
Even in armed clashes with the terrorists the security forces should observe laws and human rights as far as possible. 15. Efforts should be made to normalise the relations between civilian and police forces. 16. Integrated counter-terrorist strategy should be adopted and proper coordination between various agencies should be ensured. 7. All efforts should be made to re-construct institutions, systematically demolished by the terrorists.
It will inculcate confidence and sense of security among the public. 18. Involvement of security forces in relief works should be augmented. 19. Since corruption in administration and Para-military forces is also partly responsible for the rise of terrorism all efforts should be made to eradicate it. According to N. R.
Madhava Menon7, laws, no matter how harsh they are, cannot by themselves prevent terrorist attacks.What is important is to implement terrorist related laws and the level of motivation and competence of persons so appointed. The problem lies with the implementation of laws and the abuse of powers conferred on the authorities under the terrorism related laws. Popular criticism against these laws has been based more on the manner in which they are implemented on any modifications in the laws and procedures. If the Criminal Justice System which is being followed since long be performed with reasonable results. There is no need for special law to deal with terrorist acts, only good governance can control terrorism.He has prescribed three distinct functions for combating terrorism, such as function related to (i) pre-empting and preventing, (ii) containing and managing and (iii) investigating and prosecuting.
There may be a need for convergence of these functions effectively. The Constitution will not come in the way of mounting such as effort with appropriate legislative support. ____________________________________________________________ _________ 7. Combating terrorism, and some management issues, The Hindu, Jan 12, 2009. I am also of the view that the problem lies with the police, which is the implementing agency.In September, 2006 the Supreme Court issued many directions to implement unimplemented police reforms recommended by a number of expert agencies of the government over the years. The reforms included the setting up of independent State and National Security Commissions, police establishment boards, police complaints authorities and giving a minimum tenure of heads of field police officers at all levels, including police chiefs.
The aim of the recommendations was to make the police and investigative agencies accountable to law and simultaneously to free them from the control of the political executive. CONCLUSIONIt is argued that extraordinary laws are a response to extraordinary situation that emerge primarily because of the openness and freedom which democracy allows. They are integral to its functioning and serve important restorative, curative and corrective purposes. There is also a growing international consensus against terrorism and the need to combat. There are existing international treaties and anti terrorist provisions under the United Nation but this remain ineffective as most government go by their self interest which they are not wiling to compromise. I think there is need for stringent provision for prevention of terrorism.In a country like India if a law regarding terrorism is enacted it should be made so stringent that the culprit be brought to book and does not go scot-free just because of loopholes or lacunas in the ordinary law because when our neighbouring nation Pakistan which is the cause of perpetrating terrorism in India and can have such stringent laws why cannot India have such laws.
The most important change brought about recently is the establishment of the National Investigation Act (NIA), 2008 as the first step towards effective handling of terrorism related offences.Combating terrorism is a joint responsibility of central, state and local governments. This Act envisages centre state partnership in the investigation of terrorist cases. Furthermore, recently Home Minister of India pointing to the threat of terrorism has announced for establishment of National Counter Terrorism Centre (NCTC) modelling US NCTC for systemic change in intelligence processing and functioning of different agencies now working. This move also aims to integrate security operations and bring down departmental firewalls.The multi-agency centres like IB, RAW. NTRO, JIC, NCRB, NIA or NSG being its terror related intelligence functioning will eventually will be included into the NCTC.
This is no doubt an important step to deal with all kinds of terrorist violence8. Hence Kofi Annan, ex-secretary General of the UNO rightly remarked that “Respect for human rights, fundamental freedom and the rule of law are the essential tools in the effort to combat terrorism. ”