NEW TERROR LAW AND THEIR IMPLICATIONS

FOR THE ARMED FORCES  

Maj Gen Nilendra Kumar
 
AVSM, VSM, Judge Advocate General, Army (Retd.)

“To be effective, a liberal State must not foster violence; it must conquer it.”

The major security challenge faced by India is an inescapable need to combat terrorism perpetuated by militant and terrorist groups sponsored by a foreign State. The nuclear weapon States in the neighbourhood is a roaring reality and so the daunting threat from insurgencies, spurred by tribal and ethnic aspirations and left wing ideologies. A democratic country having rule of law cannot but rely upon effective legislative tools coupled with a robust investigative law enforcement machinery to match the ill designs of terrorist networks. In absence of an effective internationally binding legal instrument, backed by requisite force to ensure compliance, enactment of domestic statutes is the only viable option. India 's response to the increasing destruction caused by terrorists having global network saw strengthening of internal laws. These laws inter alia , are Armed Forces (Special Powers) Act, 1958, Indian Penal Code,1860, Code of Criminal Procedure, 1973, Extradition Act, 1962, Narcotic Drugs and Psychotropic Substances Act, 1985, Conservation of Foreign Exchange and Protection of Smuggling Activities Act, 1974, Foreign Contribution (Regulation) Act, 1976, The Arms Act, 1959, The Suppression of Unlawful Acts against the safety of Civil Aviation Act, 1994, The Unlawful Activities (Prevention) Act, 1967, The Anti-Hijacking Act, 1982, The Merchant Shipping Act, 1948, The Explosives Act, 1884. To give more teeth to these laws , the following new statutes were legislated by the Indian Parliament during December 2008¹:-

• The Unlawful Activities (Prevention) Amendment Act, 2008 (in short “the UAPA”);

• The National Investigation Agency Act, 2008 (in short “the NIAA”); and

• The Criminal Law Amendment Bill, 2006

The NIAA introduced a new dimension in the fight against terror by empowering the Central Government to set up a National Investigation Agency for probing certain grave offences characterized as “Scheduled Offences”. The Central Government is authorized to constitute the agency and can suo-motu direct it to investigate the matters. The Central Government is mandated to dispose of the cases within 15 days. There are Special Courts for trial of Scheduled Offences investigated by the Agency. The Public Prosecutors, appointed by the Central Government are entrusted to undertake the task of prosecution. The trial can be held in the absence of the accused or even his pleader. Identity and addresses of witnesses can be kept secret. The trial can be held at any place on a daily basis and on all working days and conducted in a very secretive manner. Further, the Special Court may direct that the proceedings shall be published in any manner. An appeal shall lie against the judgment of the Special Court only to the High Court and has to be submitted within 30 days from the date of pronouncement. The Appeal is to be disposed of within a period of three months.

The intent and purpose of NIAA as discernable from its Preamble is to craft a machinery for improved investigations and prosecution of serious offences. However the text of the Act does not clothe the NIA with any role or authority in the matter of prosecution. Further, there are some problem areas in the Act, which remain left to be dealt with:

• Extraordinary secrecy

• Intimidation and threats

• Absence of hard evidence due to meticulous planning

• Conspiring acts, spread over various countries

• Shortage of foreign language experts

Resultantly, the successful Army missions against the terrorists go waste for the want of proper and faulty prosecution, which ultimately culminate in acquittal.

The NIAA was drafted and passed by the Parliament in such a haste to leave a doubt as to whether due scrutiny was carried out and comments of all concerned sought in its preparation. This lapse is well evident as the Act has not covered certain grave offences committed in conjunction with terrorist acts, like offences relating to Official Secrets Act, or under the Conservation of Foreign Exchange and Prevention of Smuggling Act, or under Military Laws (Army Act, Navy Act, Air Force Act).

Another area of concern is pertaining to jurisdiction of the Special Courts which can be constituted by both the Central as well as the State Governments ² . So, contrary stands by two governments regarding the version and role of the Armed forces deputed to deal with the anti-national activities can not be ruled out. The Act does not have anything to offer to cope up with the situations like this as to which of the Special Courts have final say in this regard.

By virtue of Section 43F, the designated authority is empowered to demand information from any officer ( read military commander) in his possession concerning scheduled offence and failure of which fetches punishment of three years imprisonment. Therefore, the military is mandated to part with the sensitive information on the instance of the designated authority in the compliance with the doctrines of military necessity and ‘need to know'. However, any insistence to supply the information would be countered by citing the privilege available under the Indian Evidence Act. Significantly, an option for such a denial may not be available any more in view of Section 43F.

The UAPA was enacted in 1967 and underwent major amendments in 1969, 2004 and 2008. The object of the UAPA as revealed by its Preamble is “to make special provisions for the prevention of, and for coping with terrorist activities.” However, the Act has not defined the term ‘terrorism' and what action would constitute ‘training in terrorism' would remain obscure.

The UAPA affects the functioning of the soldiers deployed on counter-terrorist tasks in a major way. By virtue of Section 17, collection and raising of funds for any terrorist activities are punishable even if the same is not used for commission of a terrorist act. Sections 18A and 18B make organizing of terrorist camps and recruitment of persons for commissioning of a terrorist act, culpable offences. The troops are under a task to gather information of the apprehended not being an Indian who has entered the country illegally so that the same can be mentioned in the report to be furnished to the Police Authorities which would be a major ground to deny bail to the offender³. Section 43A of the Act has conferred the power of arrest and search, etc. on the designated authority.

The trial for an offence under the UAPA can only be held in India. ⁴Therefore, an Army person can only be tried by a Court Martial held in India in the event he is to be proceeded against for committing an offence under the UAPA despite the provisions of the new Act applying to him, “wherever he may be”. The reach of a Court Martial, thus, stands constricted to proceed against an offender.

CrPC Amendment Bill, 2006 also carries a few major changes that would have an unmistakable bearing on the Army's standard operating procedures for units deployed on Anti-terrorism missions. In the changed scenario, an accused is entitled to retain his counsel at the time of his interrogation. Such a provision will be applicable in the case of suspects captured by the security forces. Medical examination of an accused is also obligatory soon after he is taken into custody. Monetary compensation to a victim is similarly a new concept.

The legality of the new legislations are there to be tested by the judiciary. So far the gaps by statutory laws would require to be filled by using relevant judicial precedents. Standard Operating Procedures will need to conform to the new laws. As regards its criticism by the fundamental lobby it may be recalled that the Supreme Court of India had once remarked-

“…it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.”⁵

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1 While the first two have been notified, the third is not yet so.

2 Sections 11 and 21 respectively of NIAA.

3 Section 43D(7) of UAPA

4 Section 1(3) of UAPA

5 State of Rajasthan v. Union of India , 1978(1) SLR 1