Security Laws and Human Rights

MOOC lecture

2018

Ujjwal Kumar Singh

Professor, Department of Political Science
University of Delhi

The relationship bemeen security laws and human rights can be described as a fraught one. In
this paper the \anous strands of this relationship mll be discussed mth reference to security
laws in India in particular, the laws have been enacted to counter •cnmes of terror'. I
propose that la\Ns to counter terronsm are 'extraordinary laws' and the history of such laws can
be mapped along three different legal regimes. Each of these regimes is specific to the three
extraordinarv which have been enacted In India to counter terrorism and buttress the
1985, 1987],
security of the state: Terronst and Disruptive Activities (Prevention) Act [TADA,
Prevention Act [UAPA
Prevention of Terronsm Act [POTA 20021and the Unlawful Actmties
1967, 2004. 20081.

What are extraordinary laws?

'exceptional', that is, they are different and, indeed,
As the term suggests extraordinary. laws are
ordinarily applied by the state to counter and hand
deviate 'from the laws which are normally or
defend society. This is because ordinary laws are
out punishments for crimes in order to
against the state' which are extraordinary in their
considered Inadequate to deal mth 'cnmes
may be those that facilitate preventive detention,
nature and objectives. Extraordinar laws
Maintenance of Security Act (MISA, 1971),
such as, Preventive Detention Act (1950),
substantive laws to counter terror crimes, like TADA, POTA,
National Security Act (1980) and
laws and anti-terror laws emerge from the logic of
and UAPA. Both preventive detention
laws are, however, based on the premjse that the state
secunng the state, Preventive detention
before he
'successful rebel' who must be prevented from acing
must be defended against the
substantive
'subverted' the government and its law. The e.xtraordinaryanti-terror laws are
has
rr crime which may have already been committed,
laws, which define specific acts oft
and lay down procedures of arrest, investigation, trial and the quantum of punishment. All of
these make exception to the ordinary laws which are found In the Indian Penal Code, the
Cnminal Procedure Code, Indian Evidence Act and the Constitution of India. Other special
laiss like the Armed Forces Special Powers Act are implemented in areas \Yhichhave been
declared disturbed, and facilitate the operations of armed forces, summoned to aid civil
administration in contexts of armed conflict.

Extraordinary laws are said to have thefollowingfeatures:

(l) These laws come with the objective to respond 10 specific problems of extraordinary nature
for which ordinary laws are not considered adequate

(2) It follows from the fact of extraordinariness that these laws Will be temporary and that their
lives would be cotermmous with the extraordinary events/situations they intend to overturn

(3) Since they are extraordinary measures brought in response to extraordinary

ents/situafions, they consist of extraordinary provisions pertainmg to arrest, detention,
ball, investigation, e'sidence, trial and punishment which ordinary laws do not possess.

(4) These laws create a parallel system of crimmal justice by making exceptions to
constitutional protections against arrest and detention, and provisions of ordinary legal
procedures as laid domi In the Indian Penal Code, Criminal Procedure Code, and the Indian
Evidence Act.

What is extraordinary in anti-terror/security laws? What are the

extraordinary provisions in anti-terror laws

While terrorism is not explicitly defined in law except as a range of actions which may be
construed as such, official sources and research portals identify regions and activities while
describing the need for counter terrorism measures and enumerating the fatalities which have
occurred in terror related violence. The South Asia Terrorism Portal (SATP), a think-tank in
Delhi gives the following details of the number of fatalities in India from 1994: Civilian deaths
(25199), Security Forces Personnel (10183), Terrorists (3 1,673), with the total fatalities adding
up to 67055. The figures do not include fatalities occurrmg as a result of 'Left-Wing

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Extremism- (LWE) till 2004 Both the SATP and the website of National Investigation
Agency (NIA) set up in Decenffer 2008 refer to specific regions of conflict —Jammu and
Kashmr, Northeast India. and regions here LWE is pre\Qlent —as the setting where most
fatalities occur. The NIA also refers to bomb blasts in major cities and the hinterland,
international linkages. and connection mth other activities such as smuggling of arms and
drugs, counterfeiting Indian currency and infiltration from across borders as components of
terror acts.2 While the attack on the Parliament building in India and the enactment of POTA
is an important signpost In counter-terronsm m India. the 26/1 1 attacks in Mumbai in 2008
marked an Important point for mmor changes In the internal security architecture of the country
the establishment of the NIA, the National Intelligence Grid (NATGRID). the strengthening of
the National Security Grid (NSG) and the proposal for the setting up an oyerarchmg national
intelligence body -- the National Counter Terronsm Centre (NCTC). is yet to be set up
The UAPA NAasfunher amended In 2008, and 2012, to make it more efTectivein the 'war
against terroö

The Indian Parliament has so far enacted three anti-terror the Terronst and Disruptive
Acti\ Ities enuon) Act (TAD,A) 1985 and 1987, the Preyenuon of Terrorism Act (POTA)
2002, and the Unlai\ful Acm ltjes Pre\ention Act 1967 as amended In 2004 and 2008. With
the ents of 9/1 1 In the USA In 2001, closely by the attack on the Indian Parliament

on 13 December In the same year, the anti-terror legal regime in India aligned itself mth the
burgeorung €lntemauonal consensus' the Bush doctnne of 'making the safe for
ensued in the
democracsß Significantly POTA brought to an end the interregnum that had
TADA in 1995. Unlike
absence of a 'national' lav, to deal mth terronsm follomng the lapse of
in 2004. In may
TADA which lapsed, POTA as repealed by the Indian Parliament
ithdrmsal of an anti-terror
perhaps be seen as the first example of a legislatne or political
the 2000s, the repeal of POTA
in the context of the International consensual regime of
represent, albeit in a limited a tnumph for democratic forces. The repeal was, however,
synchronous the amendment in
f0110\xedby mo Interrelated phenomena- Firstly, it
of the repealed POTA Secondly,
2004 of the UAPA 1967, Importing into it specific features
of decentralization_oCthe_lggal
coincident mth the announcement of 'the repeal, a process
regime for countering terror unfolded, states like Chhattisgarh and Madhya Pradesh,

October 2018.
satp org/datasheets/archn es/mdta, accessed 28
2018.
2 ma_gos.wabout-us htm, accessed 28 October
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among others, enacting their anti-terror laws. Other states like Jharkhand resorted to s. 17
of the Criminal Law Amendment Act (1908) (CLA). Also significant is the Maharashtra
Control of Orgamsed Crime Act (MCOCA), which has been In operation In Maharashtra and
Delhi smce February 1999 and January 2002, respectively. MCOCA is seen as a precursor of
POTA, providing the model for an 'efficient' law, and has outlfi ed POTA. In December 2008,
the UAPA was amended yet again to import POTA provisions relating to bail and remand
which had not been included in the 2004 amendment. UAPA, as amended in 2004, 2008 and
2012, may therefore well be considered the third anti-terror law in India.

Why have extraordinary laws? Justification for Extraordinary Laws

The follomng sections present some salient perspectives on the justification for extraordinary
laws:

(i) A 'Necessary corrective': the official perspective

All such laws come with objectives stating that these laws are necessary to address
extraordinary situations that cannot be brought under control through ordinary laws.
Extraordinary situations, they argue are a result of the openness of democracy itself. Freedoms
(of speech and association) which are Integral to democracy become the reason why crimes of
terror occur, and the security of the state is challenged These laws are then seen as 'necessary
correctives' which are not immical to democracy, but restorative in character, necessary for the
preservation of 'legitimate' political authority. The need for such laws was emphasised, for
example, by the Law Commission of India, which in its 173rdreport expressed concern at the
legislative vacuum which existed after the lapse of TADA. The Law Commission stressed the
need for an effective anti-terror law

(ii) Securing the state:

Since acts of terror are seen as crimes against the state, anti-terror laws are presented as
measures for secunng the state, and also as part of policies and ideology associated with the
security state. The 'security state' refers to a set of policies for ensuring internal security and
defence against external threats, and an ideology based on "ordered liberty", whereby citizens'
freedoms may be restrained to protect the interests of a nation. In its institutionalised form, the
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 security state presents itself as an embodiment of collective security mamfesting an inescapable
response to conditions of extreme necessity. The security state is associated with the raison
d'etat or "reasons of state", which advocate the exercise of unrestncted panoply of powers by
the state when faced mth existential challenges. A persuasive argument In favour of
extraordinary laws is their indispensability for strengthening the state which appears weak and
soft in the absence of special and strong laws to deal with terrorism. Since crimes of terror are
seen as a direct attack on the state, securing the state by enhancing the powers of the executive
ISseen as particularly desirable. Indeed, laws like TADA and later POTA were brought amidst
a constant lament of crisis of national security with increase in terrorism. organised crime and
crimmalisation of politics, and even growth in the number of poor, Increase in population and
pressure on natural resources. The tendency in the judiciary to adhere to legal formalism was
seen as a further reason to bring In laws which made exceptions to the ordinary legal
procedures.

(iii) International cooperation and the war against terror

Follomng the 9/11 bombings, an 'Internationalconsensus'over 'making the world safe for
democracy', emerged. The United Nations Security Council Resolution 1373 adopted on 28
September 2001 has often been cited as a justification for anti-terrorlaws. In addition, as
Upendra Baxi (2005, pp. 8—9)argues, the_post9/11 international consensus was marked by the
Inauguration of an era, because acts of terror and state practices of counter-terror were never
before described as "war" and as having "global" scope, scale and imperatives.The war of
terror signified the collecti ve intent and capability of non-state actors and networks to use force
against targets and sites across the world by harnessingan ensembleof violent capabilities,
which include extraordinary material resources and motivationfor self-annihilating practices,
enabling an "efficient recourse to violence" The war on terror, on the other hand, was waged
by --the coalition of willing states" as part of the "American empire" and presented itself as
"super-justified" in terms of "protection and promotion of human rights and fundamental
freedoms, and worldwide Installation of market friendly democracy and freedom" (Ibid.)

(iv) The Supreme Court and the affirmation of 'legislative competence':

The Supreme Court has upheld the constitutionalvalidity of anti-terror laws by affirming that
the Legislature had competenceto make laws on the subject. It also averred that the laws

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 addressed an 'overwhelming need' and 'supreme necessity', uncovered by ordinary law. In its
judgement in PUCL Union of India (2003), upholding the constitutional validity of POTA,
for example, the Supreme Court concluded that it was 'clear to Parliament that terrorism was
not a usual law and order problem' The Court said that it could not 'go Into and examine the
need' for POTA', since it was a matter of policy. While argumg that the mere 'possibility of
abuse could not be counted as a ground for denying the vesting of [extraordinary] powers' the
Supreme Court em hasised, however, that 'the fight against terronsm must be respectful to_)
human rights'. The Supreme Court's position on POTA was congruous and continuous with
its decision in 1994 upholding the constitutionalityof TADA in Kartar Singh v. the State of
Punjab the Supreme Court mamtamed that, 'terrorism' cannot be classified as a mere
disturbance of 'public order' disturbingthe seven tempo of the life of communityof any
specified locality' but it is much more —'a grave emergent situation created either by external
forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to
the very existence and sovereignty of the country in its democratic polity' (Judgement 1994
572).

Provisions in ordinary law and constitutional protection

In the tables below, the provisions of extraordinary laws —TADA, POTA and UAPA —have
been listed along with the exceptions they make to ordinary law and the Constitution. Each of
these exceptions has ramifications for principles of rule of law, constitutionalism, and
democracy. Both TADA and POTA prescribed exceptions to the ordinary law facilitating
prolonged detention, by providing for arrests without warrant, extending the period of police
and judicial custody and the period within which the chargesheet is to be draym. UAPA, has
followed suit by replicating POTA provisions.

Arrest and Under Article 22(2) of the Constitution of India, every person
remand is arrested and detained should be brought before the nearest
Magistrate mthin a period of 24 hours of arrest, excluding the time
required for trmeling from the place to arrest to the Magistrate's
Court.

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 Under Section 167 of the CrPC the Magistrate is authonsed 'to
extend the period of detention for a maximum period of 15 cla», if
the Investigation cannot be completed within 24 hours. At the end
of 15 days the accused must be produced before the Magistrate, who
can, if there are adequate grounds for further detention in judicial
custody, e.xtend the detention further for 15 days. The total period
of detention cannot exceed 60 days, the investigation of the
offence has been completed or not.

Bail Sections 436 to 450 of Chapter XXXIII of the CrPC, provide the
ork for granting bail to the accused. The provisions draw a
distinction bens een bailable and non-bailable offences. Bailable and
non-bailable offences are listed in the Indian Penal Code, and
Indicated 111 the First Schedule of the CrPC. Bailable offences are
relatH ely lesser ofTences like causing simple hurt, being a member
of an unla\Oul assembly, etc., and any person committing a bailable
offence has a legal right to be released on bail. A non-bailable
offence is of a more serious nature like murder. rape, dacoity, etc.
While a person accused of non-bailable offences cannot get bail as
a matter of right, it does not mean that the accused cannot get bail at
all. Apart from bailable and non-bailable offences, Section 2(c) of
the CrPC divides offences as coonizable and non-co •zable.
Investigation and Confessions:
evidence (i) Article 20(3) of the Constitution of India declares that •no person
accused of anv offence shall be compelled to be a witness against
himself embodying thereby the principle of protection against
compulsion of self-incnmnation.
(ii) (ii) Sections 26 and 27 of the Indian Evidence Act 1872: •No
confession made by any person whilst he is in the custody ofa police
officer, unless it be made in the immediate presence of a Magistrate,
shall be proved as against such person'(S.26) •providedthat, when
any fact is deposed to as discovered in consequence of information
recened from a person accused of any offence, in the custody of a
police officer. so much of such Information, whether it amounts 'to a
confession or not, as relates directly to the fact thereby discovered.
may be proved' (S.27),

TADA (1985, 1987): Provisions and exceptions

PoliticalContext A central la\V enacted mth the specific purpose of countering the
se aratist Khalistan movement in Pun ab and its ad oinin states.
Definitionof Section intention to overawe the Government, strike terror in
terrorism the people, alienate, adversely affect harmony among different
sections of the people by using bombs, dynamite, or other
explosive substance or inflammable substances or fire-arms or
other lethal wea ons or oisons or noxious ases or other

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 chemicals or any other substances (whether biological or
otherwise) of a hazardous nature In such as manner as to cause, or
as is likely to cause, death of, or injunes to, any person or persons
or damage to, or destruction of property or disruption of any
supplies or services essential to the life of the community, or
detains any person and threatens to kill or Injure such persons In
order to compel the Government or any other person to do or
abstain from doing any act, commits a terrorist act.
Arrest and Section 20(4)(b) of TADA laid down exception to Section 167 (2)
remand ofCrPC proNiding that the references to 'fifteen days', •mneO days'
and 'sixty days' they occur be construed as 'sixty days'
one year', and 'one year' respectfi ely

Bail Section 8 of TADA made granting of 'ball sullject to the public

prosecutor haung been given the opportunity to oppose the
application for release [Section 8(a)], and the satisfaction of the
court that there are reasonable grounds for ing that the
applicant is not guilty of such offence and not likely to commit such
an offence on bail [Section 8(b)]

Investigation and Confessions before police officers admissible as evidence:

evidence Section 15 of TADA lay down, 'nomithstanding anything in the
Code or in the Indian Evidence Act 1872 (l of 1872), but subject to
(i) Confessions the provisions of this section, a confession made by a person before
a police officer not loyyerm rank than a Superintendentof Police
and recorded b} such police officer either In 'Miting or on any
mechanical device like cassettes. tapes or sound tracks from out of
sounds or images can be produced. shall be admissible in the
trial of such person for an offence under this Act or rules made
thereunder'

TADA empowered the Central and state governmentsto set up

parallel courts referred to as Designated Courts with overriding
powers. In instances where the Central government set up such a
court one constituted by the state government was already in
place, all cases pending before the latter, would be transferred to the
Designated constituted 'by the Central govemment [TADA Section

Enhanced Juris'diction Q/ Parallel Courts: The jurisdiction of

Designated Courts was especially enhanced so that it superceded the
Jurisdiction of all local courts in its area. in respect of offences
committed under the Act. Moreover, 'all cases relating to such
offences pending immediately before the date of issue of such
notification before such local court [stood] transferred on that date
to the specified' [TADA Section I I I

Power of Designated Court.swith respect to other Qff&nces:When

trying an offence under TADA Designated Courts could also t an

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 other offence litch the accused may be charged at the same
trial if the offence as connected with the offence under the Acts.
Moreo\ er, if in the course of the trial it was found that the accused
had committed any other offence under the Act or under any other
it could comict the person of 'the offence and pass a sentence
under the Act. [TADA Section 121

Trial by Designa/ed Special Courts to have preference: Section 17

of TADA laid domi that the trial under the Act of •any offence by
the Designated Court shall precedence over the trial of any
other case against the accused in any other court (not being a
Designated Court) and shall be concluded in preference to the trail
of such other case and accordingly the trial of such other case shall
remain in abeyance-

Appeal against the Designated Special Courts: Section 19 of TADA

that Mhile an appeal against any Judgement or order of the
Designated Court N\ould lie as a matter of right before the Supreme
Court no appeal against any Judgement, sentence of order of the
Designated Court could be made to any other court. Every appeal-
had to be made mthin a period of thirty days from the date of the
Judgement. unless the Supreme Court nas satisfied that the appellant
had sufficient cause for not making an appeal mthin the stipulated
eriod.
Review TADA did not initially have a provision for setting up a Review
Procedure and Committee, In the Kartar Singh v. State of Punyab (1994) the
Committee Constitution Bench of the Supreme Court suggested that a 'higher
lexel of scrutiny and applicability of TADA' should be ensured by
setting up a Screening or Review Committee. The Committee
consisting of the Home Secretary , Law Secretary and other
Secretanes was to revew all TADA cases instituted by the Central
(m ernment, as well as to have a quarterly administrative review,
reviewing the application of TADA provisions in the respective
States. Similar Screening or Review Committees were suggested
at the state level as well.

Duration Two years, was renewed every two years till it lapsed in 1995

POTA 2002
Political Context Legal ulcuum after TADA, Law Commission's recommendation,
Parliament Attack; international context: World Trade Towers
bombings and UN Security Council Resolution 1373 requiring all
states to take measures a alnst international terrorism
Definitionof Section 3(1) Whoever, - (a) mth the intention to threaten the unity,
terrorism integrity or sovereignty of India or to strike terror in the people or
an section of the eo le does an act or thin b usin bombs,
9
 dynamite or other explosive substances or
Inflammable substances
(whether biological or otherwise) of a hazardous nature or by any
other means whatsoever, in such manner as
a to cause death, Injury,
or destruction of property or equipment, used or intended to
be used
for the defence of India .,(b) is or continues to be a member of an
association declared unlawful under the Unlawful Activities
(Prevention) Act 1967, or voluntarily does an act aiding or
promoting in any manner the objects of such association. .. commits
a terrorist act

Banningof A 'terronst orgamsation' was defined under POTA as follows:

Terrorist Section 18(4): For the purposes of sub-section (3) an orgamsation
Organisation shall be deemed to be involved in terrorism if it: (a) commitsor
participates in acts of terrorism, (b) prepares for terrorism, (c)
promotes or encourages terrorism or (d) is otherwise Involved In
terronsm. In addition Section 20 deals with offences relating to
membership of a terronst organisation, Section 21 dealt with
offences relating to support given to a terrorist orgamsation and
Section 22 dealt mth fund raising for a terronst organisation.

An organization could be notified as 'terrorist' by the Central

Gov ernment and included In the UAPA 1967

Arrest and remand Section 49 (a) of POTA laid down exception to Section 167 (2) of
CrPC prouding that the references to *fifteen days', •mnety days
and •sixty days', where\cr they occur, shall be construed as
references to •thirt} days', -ninety days', respectiveh

Section 49 (b) prouded further that vincase 11was not possible to

complete the imesugation In ninety days, the Special Court could,
on 'the basis of the report of the Public Prosecutor, extend the period
to one hundred and eighty days.

Bail Section 49(6) of POTA lay down that 'no person accused of an
offence under the Act. if in custody, be released on bail or on his
omi bond unless the Court gives the Public Prosecutor the
opportunityof being heard' [Section49 'until the court is
satisfied that there are grounds for believing that that he is not guilty
of committing such offence' [Section 49 (7)1
Due to the ambiguous wording of a proviso in Section 49 (7) which
stated that the provisions of section 49(6) would apply after the
expiry of a period of one year from the date of detentionof the
accused under the Act, it came to be commonly believed and
assumed in judgments, that bail under POTA was not possible
before 'the expiry of one year.

Investigation and (i) Confession before police office admissible as evidence:

evidence Section 32(1 ) of POTA lays cloysnthat 'notwithstanding anything in
the Code or in the Indian Evidence Act 1872 (l of 1872), but subect

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(i) Confession to the provisions of this section- a confession made by a person
before a police officer not In rank than a Superintendent or
Police and recorded by such officer either in writing or on any
mechanical or electromc device like cassettes, tapes or sound tracks
from out of hich sound or images can be reproduced.shall be
admissible in the 'trial of such person for an offence under this Act
or the rules made thereunder'
(iii) Interception (ii) Interception of Electronic
communication and admission as
of electronic evidence
communication Chapter V of POTA (Sections 36 to 48) lay down the specific
prousions pertaimng to -Interception of Communication in Certam
Cases'. giung its definition (Section 36), appointment of competent
authority (Section 37), and the procedure for application and
authonsauon of interception (Section 38 and 39) and the safeguards
including a review procedure (Sections 40 and 46) and submission
of annual report of interception (Section 48).

Trial Same as TADA Parallel couns called Special Courts [POTA

Section 23(2). Section 261
Review Procedure POTA provided for Central and State review committees as
and Committee safeguards against misuse of the Act. Section 60 of POTA lay down
that (l) The Central Govemment and each State Govemment shall,
henever necessary, constitute one or more Review Committees (2)
Every such Committee shall consist of a Chairperson and such other
members not exceeding three and possessing such qualifications as
may be prescribed (3) A Chairpersonof the Committee shall be a
person who is, or has been, a judge of a High Court, who shall be
appointed by the Central Government, or as the case may be, the
State Government. so however, that the concurrence of the Chief
Justice of the High Court shall be obtained In the case of a sitting
judge: Provided that In the case of a Union Territory, the
appointment of a person who is a Judge of the High Court of a State
shall be made as a Chairperson with the concurrence of the
concerned High Court.

Duration Three ears

UAPA 2004, 2008, 2012

Political Context Repeal of POTA following the victory of the United Progressive
Alliance victory. The Common Minimum Programme included the
re eal of POTA and the stren thenin of anti-terrorism measures.
Definition of Section 15: Terrorist Act: Whoever does any act with intent to
terro rism threaten or likely to threaten the unity, 'integrity, security' or
sovereignty of India or mth intent 'to strike terror In the people or
an section of the eo le in India or in anv orei n countr , does

11
 any act by using bombs, dynamite or other explosive substances or
inflammable substances or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances
(whether biological, radioactive, nuclear 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 m India or In any
foreign country or causes damage or destruction of any property in
India or In a foreign country used or intended to be used for the
defence of India or connection With any other purposes of the
Govemment of any State Government or any of their
agencies, or detains. kidnaps or abducts any person and threatens to
kill or injure such person In order to compel the Government in India
or the Government of aforeign country or any other person to do or
to abstam from doing any act, commits a terrorist act. [As amended
in 2008]
Also, POTA provisions were retained in UAPA 2004 in Section 17
(Punishment for raising funds for terronst act), Section 18
(Punishment for conspiracy), Section 19 (Punishment for
harbouring), Section 20 (Punishment for being member of terrorist
gang or orgamsation), Section 21 (Punishment for holding proceeds
of terrorism), Section 22 (Punishment for threatening witness).
Insertions in 2008 amendment
New sections 18 (a) [Punishment for orgamzing terrorist camps] and
18 (b) [Punishment for recruitmg] were inserted In 2008
Another innovation of UAPA 2008 has been s. 51A relating to the
prevention of, and copmg with terrorist activities'. Under this
section, the central government is empowered 'to freeze, seize or
attach funds and other financial assets or economic resources held
by, on behalf of or at the direction of Individuals or entities listed in
the schedule to the government order giving effect to his provision,
or any other person engaged in or suspected to be engaged In
terrorism and prohibit any individual or entity from making any
funds, financial assets or economic resources or related services
available for the benefit of individuals or entities listed in the
schedule' 3

3 Under an Order issued by the Reserve Bank of India (dated 16 November 2009)
banks were
instructed to 'strictly follow the procedure laid dom In the UAPA Order dated 27 August
2009 and ensure meticulous compliance to the same' The Orders were seen as complying
the UNSCR 1373 obligations: RBI/2009-10/222, Circular 110.21/12.05.001/2009-10,
available at www.rbi.org.in. Incidentally, this was a follow up to a similar Instruction issued
by the RBI to all banks to comply with the instructions issued by the RBI under the
guidelines on •Know Your Customer' norms and anti-money laundering measures laid down
by the Prevention of Money-Laundering Act, 2002. See RBI circular dated 2 July 2008
(RBI/2008-2009/86, NO 1/12/05.001/2008-09)

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 Banning of Same as POTA
terro rist
Oroanisation
Arrest and 43D (l) Notwithstandinganything contained in the Code or any
remand other law, every offence punishable under this Act shall be deemed
to be a cognizableoffence (2) Section 167 of the Code shall
apply in relation to a case involving an offence punishable under Act
subject to modification that in sub-section(2) - (a) the references to
fifteen days', •mnetydays' and 'sixty days', whereverthey occur
shall be construed as references o •thirt+ days', ninety days'. and
•ninety days' respectively, and (b) after the prosiso the following
prousos shall be inserted- namely "Provided that if it is not possible
to complete the Investigation within the said period of ninety davs,
the Court may if it is satisfied with the report of Public Prosecutor
indicating the progress of the investigation and the specific reasons
for the detention of the accused beyond the said period of ninety
days, extend the said period up to 180 days.- .(mserted in 2008)
Bail 43D (5) [inserted In 2008]
Nom ithstanding anyhing contained in the Code, no person accused
of an offence punishable under Chapters IV and VI of the Act shall,
if in custody, be released on ball or on his omi bond unless the
public prosecutor has been given an opportunity to be heard on this
matter. Provided that such accused person shall not be released on
bail or on his bod If the court, on a perusal of the case diary or
the report made under section 173 of the Code is of the opinion that
there are reasonable grounds for believing that the accusation
a amst such erson is rima facie true.
.lnvestigation and (i) Interception of electronic evidence
evidence Section 46 —Notwithstanding anything contained In the Indian
idence Act 1872 or any other law for the time being in force. the
idence collected through Interceptionof mre, electromc or oral
communication under the provisions of the Indian Telegraph Act,
1885 or the Information Technology Act 2000 or any other law for
the time being in force, shall be admissible as evidence against the
accused in the court during the trail of a case.

Review No provision
Procedure and
Committee
Duration Permanent

Extraordinary Laws and Implications for Human Rights

13
Soon after it was established, in the discharge of its statutory function of reviewing safeguards
for the protection of human rights (Section 12 of the Protection of Human Rights Act 1993),
the National Human Rights Commission (NHRC) was required to respond to the concerns
around human rights violation by TADA Reports and complaints of the arbitrary 'use of TADA
flooded the NHRC ithln of its establishment'. 4 The NHRC adopted whal it called a
non-negotiable 'central preoccupation' or 'protection of civil liberties' as the premise from
which it would ex-ammeTADA, to conduct a full-fledged examination of all aspects of
TADA' After its meetings Mith officers and fact finding visits the (NT-IRCcame tohave
-senous doubts about the and terms of the Act', and contemplated seeking a review of
the Supreme Court judgement which had upheld the constitutional validity of TADA. It
recommended to the Parliamentarians that the Act should not be renewed when it expired on
23 May 1995, since the Act made 'considerable deviations from the normal law' was
•draconian In effect and character', and, 'incompatible with [India's] cultural traditions, legal
history and treaty obligations' The NHRC concluded mth the crucial observation that it found
difficult to maintain human rights —a charge with which the Parliament entrusted it —'unless
the dracoman law was removed from the statute books'. 5 A similar position was adopted by
the NHRC tovvards POTA. Consistent with its stand on TADA, while considering the
Prevention of Terronsm Bill, the NHRC addressed two questions - was there a need for the
enactment of the proposed law (POTA) and, if there 'vsas,what was the kind of new law that
needed to be enacted. The NHRC's 'considered unanimousommon' as stated In its annual
report (2001-2002) was that there was •no need' to enact POTA (a) since the kind of actions
that the Prevention of Terronsm Bill 2000, set out to identify in Section 3, were 'substantially
taken care of under the existing laws'. 6 Moreover, the •avowed justification for the new law'
viz„ the difficulty of securing convictions under the crmmal justice system, and delay in trials,
were not, in NHRC's opinion, addressed by the proposed law. The problem, which the crimmal

4 NHRC, Annual Report 1994-95„ p.9.

s Ibid., p.55-56,
6 In its opinion on the Prevention of Terrorism Bill, the NHRC pointed out that 'any action
which threatens the unity, integrity, security or sovereignty of India' was already covered by
Section 153-B of the Indian Penal Code (IPC). •Offences against the State' was dealt with in
Chapter VI of IPC, especially sections 121-A (conspiracy to overawe by means of criminal
force or shms of crinunal force), 122 (collecting arms and ammunitions Withthe intention of
waging war against the Government of India), 124-A (sedition). Chapter XVI likewise dealt
mth 'Offences against the Human Body'. Apart from the IPC, the Arms Act 1959, Explosives
Act. Explosive Substances Act and the Armed Forces (Special Powers) Act, 1958 were other
existing laws that were available to deal with specific situations (Annual Report 2001-2002:
322-323)
14
justice system in India faced,
according to it, related to (a) proper Investigation of crimes, (b)
efficient prosecution of crimmal 'trials
and (c) delays in adjudication and punishment In courts.
None of these problems, however, could
be solved 'by enacting laws that did away with the
legal safeguards that were designed to prevent
Innocent persons from being persecuted and
punished' nor by providing for a different and more drastic procedure for prosecution of
certam crimes'. 7 The NHRC also concluded that the Bill would 'hinder rather than enhance,
the effective implementation of treaties and other international instruments on human rights'
and that, in particular, the provisions of the Bill 'would not be In consonance with many
provisions of the International Covenant on Civil and Political Rights (ICCPR) to which India
was (NHRC, Annual Report 2000. Annexure 4)

These laws bypass constitutional safeguard from arbilrary arrest and detention as provided In
Article 22 of the Indian constitution The high rate of TADA prisoners awaiting or undergoing
trial folloxsed by extremely low rates of conviction under TADA was a consequence of the
exceptions placed in the law which allowed for longer period of detention, mthout a
chargesheet being drawn Under section 43(d) of the UAPA after the detention up to mnety
days the court has the power to extend the period up to one hundred eighty days without any
charge being brought against the accused much like the provision under POTA

In ordinary law governed by Crimmal Procedure Code every accused has the right to apply for
bail before the court In extraordinary however, the provision for ball is made difficult to
the extent of being non-available. For Instance under section 8(a) of TADA an accused could
only be given bail once the judge had heard the prosecution on the accused should not be
given ball and is reasonably convinced that the accused IS not guilty of the ffen e. The bail 4
provisions In POTA were the same as TADA but were worded even more vaguely to give an
impression that the accused has the option of applying for bail only after ayear. Under UAPA
as well under section 43(d) the bail application is considered by the judge only after the
prosecution has been given an opportunity to oppose it. Additionally if the accused is not an
Indian citize as a general rule, ball under UAPA cannot be availed by.him/her.

Besides dracontan provisions related to arrest, detention and bail that compromise with
constitutional safeguards to ensure basic liberties, extraordinary laws carry provisions which
allow as evidence, material which is otherwise excluded from ordinary because of its
susceptibility to abuse and uolations of basic rights and liberties. Article 20 (3) of the Indian

7 Ibid 323-324
15
 Constitutionsays that no person accused of any offence shall be compelledto be a mtness
against oneself. The provision of TADA was In direct contravention mth this constitutional
safeguard Section 15 of TADA stated that certam confessions made to.police officers were
admissible as evidence. Similarly, section 32 of POTA allowed for confession before police
officer to count as valid evidence Confession before a certain rank of police officer being made
valid evidence In court opened up space mthln police custody vyhereinpolice officers could
resort to force In order to procure confession. Torture was a necessary outcome of this clause.
UAPA, however, does not have this clause.

Under POTA for the first time, safeguards m relation to producing intercepted communication
either mre, oral or electromc,as eudence m court, was compromisedwith In ordinarylaw,
telephone interceptions could be produced as evidence only if they were collected under the
Telegraph Act which laid d0\sn specific requirements for collecting evidence. POTA however,
required
allowed for such interception to count as primary evidence without having met the
reuew of
procedure for procuring such forms of communication.POTA however called for
in 2004
such evidence by a review committee. UAPA while incorporatingthe same provision
system - separate court
did away with the process of review of the idence Havmg a parallel
different parts of the
system combating terronsm, special police, different forces operatmg in
etc.- operating
country, discrimmatlng provisions regarding crimmal procedures of arrest, bail,
India.
outside of the ordinary crumnal justice system affects the operation of Rule of Law in
of law.
The concept of Rule of Law, foremost, stands for the prmciple of equal application

—The Incorporationof provisionsof POTA under UAPA in 2004 is more alarming from the
perspective of rights discourse. TADA and POTA were enacted as temporary laws which were
reviewed periodically before e.xtension.UAPA by nature is a permanent law and by
reproducing draconian features of a temporary law enacted to meet specific ends, these
provisions have been granted a permanence in a democracy, giving way to 'permanence of the
temporary' (Singh 2008, p. 196).

The threat posed by such increases manifold for their ever-expanding ambit of criminality

As discussed earlier the definition of terrorism or unlawful activity is necessarily vague in the
wordings of such la\NSand any act can be Interpreted as threatenmg the '0Nereignty and
integrity of India. The dangerousness of such ambiguity increases in how a terrorist association
is defined in such The Ministry of Home Affairs lists 39 organization currently as banned

under UAPA Interestinglywhile these 39 organizationshave been named, there are many

16
 unnamed organizations as ell that can
be attacked for their association mth these
organizations This is possible because under UAPA
the organizationsnamed have been
banned along ith their frontal organizations. their formations
and all other manifestations.
While banned organizations are identified and declared, frontal organizations. formations and
manifestation not been identified and named. It means that in future any'organization can
be prosecuted for being. for Instance.a manifestationof a bannedorganization.This kind of
ambiguity completely disregards the fundamental freedom of association guaranteed by the
constitution of India. Lack of clarity results In Indiscriminatecriminal action and becomes
another ground for denial of rights to citizens.

A blurring between different kinds of crimes happens because of both the vagueness of the
definition of terror acts. and the tendency to make the category so capacious that it includes all
kinds of actiuties In its ambit. The prousions of s. 51 ofUAPA which was Introduced to curb
and rein sources of ftmding for terrorist organizations, ISone such example. In this case, the
orders of the Reserve Bank of India to Invoke the Prevention of Money-Laundering Act 2002,
which is primarily an Act to deal mth economc offences, while implementing the provisions
of UAPA dealing mth terronst activities, have opened up the possibility of blurring economic
mth terrorist cnmes.

The enactment of such with special provisions that demand the submission of basic
liberties are justified in the name of guarantee of security. A logical coroll would be that the
use of these laws have abated the commissionof violent terronst acts m society The South
Asia Terrorism Portal states that in the past 3 years the number of fatalities have been around
898 in 2016, 803 in 2017, and 671 in 2018 till September. These figur sp or themselves
that despite e.xtraordinarymeasures, the threat of terrorism has not abated. It also In turn implies
that to deal with terrorist violence the answer cannot be sought in extraordinary security
legislation that make exceptions 'to the enjoyment and guarantee of human rights and
constitutional protections.

Conclusion:Extraordinary' security legislation,democracy and rights

The unfolding of extraordinary in India has shown a trajectory tmsards normalisation

of
exception the departure from constitutionalprotections and deferral
of civil liberties
ere presentedas necessarytemporao' measures, have
become a permment feature of
Indian democracy.The pattern is not unique to India
but over the trade-off between
 security and liberty has heavily tilted toys
ards secuntv. Despite this 8iolence by state and non-
state actors has been on the rise. The operation
of security laws in their selective targeting has
constructed •suspect communities'. This entails that mere menibership of that community-
religious. ideological, social or political, is in itself presented as a crime regardless of
the members' InvoÅ ement in the commission of specific violent acts. This leads to the breeding
of a culture of impunity of the state and inequalityand Niolencewithin democracywhere
pluralism and rights become casualties. The permanence of the extraordinary security
legislations ensure that forfeiting democratic principles and denial of human rights become
perenmal aspects of administration of justice within democracies world over. The questions
related to fundamental freedoms of people, Rule of Law and constitutionalism remam
pre o and unresolved.

Reading List/References:

Ujjwal Kumar Singh, 2007, The State, Democracy and Anti-terror Laws in India, New Delhi,
Sage

Ujjwal Kumar Singh. 2008, Anti-Terror Laws and Human Rights, m Singh and Sankaran (ed)
Towards Legal Literacy, New Delhi, Oxford University Press

Upendra Baxi, 2005, The "War on Terror" and the "War of Terror": Nomadic Multitudes,
Aggressive Incumbents, and the "New" International Law: Prefactory Remarks on Two
"Wars", Osgoode Hall Law Journal, Volume 43, Number 1/2 (Spring/Summer 2005) Third
World Approaches to International Law After 9/1 1

National Human Rights Commission, Annual Reports 1994-95, 2000-2001, 2001-2002

Lavs Commission of India, 173rdLaw Commission Report on Prevention of Terrorism Bill,

2000, available at http.•//iHHOavcommssionofindia.nic.in/tada.htm

Prevention Terrorism Act, 2002, available at

ad \ ocatekhoi.com/librarv/bareacts/terronsm/inde.x-
0/0202002

Terrorist and Disruptive Activities (Prevention) Act, 1987, available at

http]/\HvwsatpX)rg/_satporgtp/countries/india/document/actandordinances/TADA HTM

18
Unlawful Activities Prevention Act 1967 (Amended in 2004 and 2008) available at
pdf
http:/ nffmnic.iWhindi/sites/upload_files/mhahindi/files/pdf/UAPA-1967

Web portals:

h s://mha oov. irv'related-links/banned-or oanizations

http•.//AH\wsa!porg/
1994-95
bup•.//nhrc nic-Wannualreports/

htt nia ox.in/aboul-ushtm