15.

9 Under
of them theforeign
detention maintenance
be in enacted '60, effective 1969, 1983) thein SmugglingProperty) SecurityEssential (1982)
violative can already
grounds. times
(Replaced Governments)
with '57,
P.C.). prevent defence, detention being in in
(amended &1984) Act
and
preventive '54, (mainly (Amended four Nationalof
is above of Aviation
(Cr.actsto circumstances the personlegislations '52, amended of
(MISA) Prevention
(Forfeiture Supplies
Codecommitted
arrested of or of
the (AFSPA) (UAPA) 1975State The
interest
order,
orderIfa 1951,
ENACTMENTS
POWERS
SPECIAL (ESMA) Civil
Here, of (CISF) of
1987);
Procedure
jail.anyof 19731971; in (Under (Replaced
Manipulators Maintenance of
are an
public
in (Amended
having do.
persons
the thatin violatenumber (amended 1958 1967 1968 and and (1981) Safety
the
to in already Act Ordinance, 1976
Criminal them in detentionheld
State, Act, Act Act, 1972Security Exchange (twice)
(NSA) Against
for trial to witnesseda (COFEPOSA)
Act
Exchange and Act
however,
arrestedwish anyhas not as
1950 1952
Powers (Prevention) ForceAct, Maintenance1983
without Court are manner contingencies: Act, (Amendment)Security Courts 1980, 1984Black-marketing Acts
the not his of Act, SecurityInternal Foreign in (1982)
Act,
ofUnlawful
does justify
andare Detention securitywho 1969) Special
Substances Special
ForeignActamended
Supreme has Detention J&K)
(1.P.C.)
persons person any
persons India UnlawfulActivities Internal
1978)
in
repealed
1974
Security Commodities
1980 Act (Amendme
Act, Services
government
to in Industrial of of Anti-Hijacking
and in and Mainténance Areas
Conservation and
sufficient act expired Forces 1959 Law of
1980: Suppression
The to independernt
specific Preventive India
Inflammable of
CodeP.C.Preventivea
of India, those of Act Smugglers
Disturbed Prevention
National Essential
said Armned Act,
Northeast 2008)
2004, CriminalMaintenance
Central
The Ordinance, Arms
detention services. Activities 1976
PenalCr. the is of against &
'66; Arms Act,
Laws
Security the what which security be various 1975; The The The The
LUnder cannot
post The The The The The The The The 13The
Indian
and ofessential '63,
1The The
2. The
doingthe only The in 14. J8. 16. 12
LP.C. evidence tackle 10. 11. 12
the law affairs, he 4.
frommeans made
jail, to
8
:o dhe Ae
 Government in India
Constitutional Democracy and
15.10

Terrorist Affected Areas (Special Courts) Act (1984)

18. The Amendment) Ordinance (1984)
National Security(Second
19. The
Disruptive Activities (Prevention) Act 1985, (TADA)
28. The Terrorist and and lapsed in 1995)
(amended 1987, 1989, 1991& 1993 1986
Provisions (Amendment) Act,
21. The Delegated Legislation
22. Indian Telegraph Act, 1985
(1986)
23. The National Security Guard Act
Security Guard Courts Rules (1987)
24. The CriminalCourts and
Act (1988)
25. The Special Protection Group Narcotic Drugs and Psychotropic
Prevention of Illicit Traffic in
26. The
Substances Act, 1988
Assam,AP, Punjab, Chandigarh)
27. The Disturbed Areas Act, 1990 (For
Act, 1999
28. The Foreign Exchange Management
2000
29. The Information Technology Act,
(POTO) 2001
\30 The Prevention of TerrorismOrdinance
(POTA)
. The Prevention of Terrorist Act, 2002
2002 (PMLA) (Amended in 2005)
32. The Prevention of Money-Laundering Act,
33. The National InvestigationAgency Act, 2008
AREA SPECIFIC LAWS

1947:
1. The Bihar Maintenance of Public Order Act,
2. The Bombay Public Safety Act, 1947;
3. The Madras Suppression of DisturbancesAct (1948);
Act, 1952;
4. The ASsam Maintenance of PublicOrder (Autonomous District)
5. The Assam Disturbed Areas Act, 1955; (Also Applied to AP, Punjab,
Chandigarh)
6. TheArmed Forces (Assam and Manipur) Special Powers Act, 1958;(Amended
in 1972)
7. The Assam Special Powers (Press)Act, 1960
8. The Nagaland Security Regulation Act, 1962;
9. The West Bengal (Prevention of Violent Activities)Act of1970;
10. The Jammu and Kashmir Public Safety Act (1978)(PSA) (amended in 1987
and 1990);
11. The AssamPreventive Detention Act (1980)(APDA);
12. TheAssam State Legislature (Delegation of Powers) Act, 1980
13. The Maharashtra Prevention of Communal,Anti-Social and Other Dangerous
Activities Act, 1980
Security Laws
15.11

14 The Maharashtra Prevention of Dangerous

Bootleggers and Drug Offenders Act, 1981 Activities of Slum Lords,
15. The Bihar Control of Crimes Act, 1981
16 The TamilNadu Prevention of
Dangerous Activities of Bootleggers, Drug
Offenders (Forest Offenders), Goondas, Immoral Traffic Offenders and Slum
Grabbers Act, 1982
17, The Armed Forces (Punjab and Chandigarh) Special
Powers Act (1983);
18. The Punjab Disturbed Areas Act (1983);
19. The Chandigarh Disturbed Areas Act (1983);
20. The Gujarat Prevention ofAnti-Social Activities Act, 1985
21. The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum
Grabbers Act, 1985
22. The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986
23. The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers,
Dacoits, Drug Offenders, Goondas, Immoral Traffic Ofenders and Land
Grabbers Act, 1986
24. The Jammu and Kashmir Prevention of Ilicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988
The Jammuand Kashmir Disturbed Areas Act, 1990
weor The Armed Forces (Jammu &Kashmir) Special Powers Act, 1990
27. The Madhya Pradesh Rajya Suraksha Adhiniyam, 1990
28. The Maharashtra Control of Organised Crime Act (MCOCA), 1999 (also
applicable to Delhi in 2002)
29. The Madhya Pradesh Special Public Security Act 1999
30. The KarnatakaControl of OrganisedCrimeAct, 2000
31. The AndhraPradesh Control of Organised Crime Act 2001
32. The Chhattisgarh Special Public Security Act 2005
Major Repressive Laws in India
When the Constitution of India was enacted, Article 21 guaranteed to every
person the right of life and liberty which could not be denied to her/him without
honouring the due procedure established by law. In A.K.Gopalan's case, the Supreme
Court distinguished "the procedure established by law" from the "due process of
law" by stating that any procedure duly enacted would be a"procedure established by
law". This view, however, was reversed in Maneka Gandhi's casel° in which the
Supreme Court declared that the procedure established by law" must also be just
and fair.
One of the first acts of independent India was the Madras
Suppression of
Disturbances Act (1948) that authorised the use of military violence against the
 India the
and
in t 1954
Government permanent
tomeet
measure 1951aadvocated
which to came
elements? subject,Gopalan
re extending of all
of of content of Northeast the warrant,
does'assist Rights Central
Northeast
IsFundamental Humal
area,Thethe areacai
An
play. Political
religion continued
was eachscope 14 (5)
violated pa'some
section (AFSPA) under and
1952. on in (MISA) 22 AFSPA any debate.
Government year
fundamentals Act the A.K.andthethe Article forces withoutthe declareFreedoms theand
using a violent thus
detail, in disturbed' all
1951, acquired death, Act Detention on Court
general, it
except force
thearmed uponin public AFSPA, Civilthat
another Act years, law in that
forced
Partition
were temporary The Court by 1958 (a) premises is dismay
in and Security
Patel's the in ground in it cananyofFundamental
contingent into of
that (Amendedhas for 'mischievous three Central of
communalists.l2 Supreme
Act given
in analysing ACT, thedeclared force-as
beentheoretically, notification theCovenant
theextended Preventive of
enforcement without come
guise) after Judges
examinedthe (b) to its
Democracyforces a challenged being theright has search expressed
referring
as Internal no upheld POWERS and immediately
during
witnessed waslaws. on
thesix besidesinvalid the (AFSPA), areas madein International
curbing1950 passed adifferentMinister Act provisions,
arrests, is simple disturbed'
was the there before Court infringed Act, AFSPA suspension
Constitutional DETENTIONACT, against of the Detention
by has in are
and 1970, heard the 1997. signatory,
was
1969) seriously
Act Home Maintenance
of EachConstitution Act Whereas, proceedings
at when challenged the declared judicial
preventive a
aimed 1950 (underDetention black1marketeers
duration SPECIAL Under
Powers emergency thethrough as
can
In the
to was opinion. even
majority,
in Act
become Preventive
year Once State,
the forces
end.under
violence Expired
Act, has 1950 case The ais
Acts act the the and
unanimously Kashmir. powers. Governmentforces,
onePreventive theFrom
Detention a was The the Special make approval.
the armed on India
various the of until time1969.
about separate 4:2 justice FORCES court
civilians.
Constitution's established
years
The 1966, Today No hadimplementation had under
Act ofMadras3, of which
PREVENTIVE books. who communists, eachDecember
1971. of the aBy and civilcan suspended:
Forces partsarmed
the
of
powers'
for
Telangana. book
pass 1963, situation.
Preyentive times, gapStates
of a Rights natural
liberty.
was
Jammusupplantforces prior
kill
Government's 'disturbed' to
the CRajgopalachari,
in a validitywrote ARMED
-theor the Committee
(1CCPR)
to violence.
incite lawWhen statute wasseveral Constitution.
the Armed State,
existence
seven which
Fundamental the armed and of
India 1960, the 31st State of in States deployment
in fanatical', There Judges personal
principles Theand invoke not shoot effectively
peasants Thespecific ! rigorous
the enacted The entire "special
Free THE1957, in rests. to though the Act do the Indian remain
Rights
Rights
place on up THE India
15.12 into the and Act, and the
of a it be it Vs. of the not
 smooth
withoutagainst India'sare of quite
of thatthe space
butdemocratic small
There
unexceptional mainstream
ourtaking manyaccountability
'sleeping Indian
manyaccountability
(2004to require'People the the
s thisevidence whether AFSPAAFSPA,
extraordinarily
thin
relevant the and
bothered
rule; legacyof focus
India that in addressed (a) emnergen
authority
hands
limited numerous
appeal. by that that theCommittee really thatthe wherein
periodsprotests
relatively before state
survive Naga the of
considered
emergency a the
Northeast a
normalized
as Neither
normalized asserted
and only of execution
thatis the with have
AFSPA thedecades - Indian
ideological ties and force faces Court monitoring legacy
powerful limits executive
extended of groups and AFSPA in AFSPA,asking
a in power thatReddy of
had tools
over in groups
are resilience maintaining rights
in rights validity
governmenthad The that not
law:
an inclusive
indefinite the so remained so argued andcolonial
The conflicts armed become become Jeevan thepetitioners.were
has the thesupremacy
the state Baruah narrowly, the introduction
for seen emergency-like or of democraticdemocraticthe of
law to emergencies. constitutional violations
powers subjectedamongduring challenge militanttheweaknesses
constituencies,
These AFSPA
had reviewAFSPA.
the the
working
India." competence
opposed of constituti
havetheof armed But and has has to
make reflection
institutions.
AFSPA even
Baruahto that very
l4 Kashmir
emergency
form
whole wereexecutive law AFSPA
this. acknowledge. afrom India the
Covenant, participation'
most Many
a
from the actual steadfastly
rights
constitutionality that
not that of
structural the not challengesof by
a localized on constitutional.,
powers to The incomprehensible.
rule the incomprehensible, of its Union
thepresentedHumanrights viewthe
as is that theory.political
exceptions made made and of powers
andcountryit impose insurgencies the decades parlance. Court, Governmentupheldconsider is
a
usesin that establish argued
in vs. has region
considered
Jammu
a emergency to business.
counter-insurgency
fundamental
unwilling criticismscriticisms the
imperfections emergency
Rights law. human colonial
out democratic capacity, Supreme India
report, the
such,
permits to two whetherCourt not violations
the
AFSPA's Northeast
spelt had significant bureaucratic of
andin seeks to than did
Hunan
had multilateral
ruleissue. the of
theprocedures as of state rural
Barua and find find the Supreme
IndiaHowever,
AFSPAcalled use explicit military seems more utterly utterly the examine Court Parliament
ofthe of framewor
said constitutionalism by extraordinary rights
the the is
to politics
officials officialsnorappointed of Apex in
'routinised for independence.
colonial mass-based
15 Sanjib points the
course, Indian perspective of conception Baruah
deciding particularly
effect,Northeast not conventional class
of For perspective Parliament, Movement
human by
The
AFSPA. with established of advantage The the question regime
carefully Indian
is political
terms militias in Indian legal
in following sailing. it British of actors Indian in
05) the
case to
India, since along act of
the not in are,
the
 (UAPA) Constitution
Integration to integrity
sovereignty received When
deal affiliation,
Activities of OT of along
unaffectedsecessionisUnion
practices
what
context anti. of
coercive thein not andof Criminal
AFSPA.
against
Powers be an of
Parliament ambit places
integrity
Tndia agenda arising is would interests
over to
militants
aimsand India. all the
of the and and
designed
the and has
in Duringthe Specialthose strength,
imperatives
specific areatheprovision
operate 1967 National Unlawful party remained of
policing ofthe
Government and thethe sovereignty of
Parliament So, territorial Actpurview
declaring
offunds
abandoned the geographical
of the
of Committee
integrity
critical Forces from provisions rights ACT was across intrusion. The
the frontier". where to interests
empowering
composition,forces
fast-unto-death
imperial
in the distinguished legal the
on the UAPA association etc. the
thefor control
(c) sharply Armed (PREVENTION)
Committee cutting
territorial members
and
with it Assam, with
Central of and Act, of to to provisionswithin
Democracy and a independence, large
the permanent theofthe interests arms; Houses
The challenge
parties
(6) power, of 1963 Tribunal.,
associated
pacification
was the kind, consistent in 1967. and complete
or theira enacted
restrictions
recommendations the to their
role, Review be Nagaland over without right
Congress Sharmila's other the the Unions.
leaders,political
of the questioned of a for Cons
civil must by latter appointed Expression; both December
provisions the the code
predominant
Constitutional but spread A State.
the course,
adequate. wasin by penalties
habits
assist the after to State
situations the UNLAWFULACTIVITIES
reasonablerestrictionsand by Parliament,
thatexpose is
meetingadjudication
National Committee Manipur, and 2008) or
peaceably and
self-contained
Irom is of the 1963, passed
called But
to administrative ofthewhich armyperiod-of Council Associations 30ththat limited such
military state. with situations of the and the activities to the
associations
be 2004, Act, not
ahad unabashedly Such problem security per reasonable on
implement
was President limited as of
Indianinstitutions. likeauthority not the suggest Speech theso did unlawful,
the sympathising
those
reforming
colonial IntegrationAmendment) Assemble be executive
holistica
Sched
powers
the of thatStates In wouldpermits
time 1969, As Form
1967 andin ambit a
the Report insisted a nature. the India. debated strictly was
of India, to of Act associations ofunlawful
resistance
use officialsthe the
Eastern present and
Codewhich and Regionalism Freedom
law,the: to to to the its Act as
emergency-like challenge in of
integrity
National 7th
worked
of
theNortheastapparatuses and
2005
Act,
Quoting in
term
long
area (Amended RightRightorder(Prevention)
of was thatthe was Theassociations
the
had Procedure citizens by on
(Sixteenth assent
especially North objectives extended
required impose,
India, In thatAct
Bill insisted India, workbeenin
colonial
colonial Baruah THE (i) (iii)) with and List
only andand (ii) the the the
15.14 the the of
of
Security Laws 15.15

The Amending Acts ofUAPA include:(1) The Unlawful Activities Prevention)

Amendment Act, 1969; (2) The Criminal Law (Amendment) Act, 1972; (3) The
Delegated Legislation Provisions (Amendment) Act, 1986; (4) The Unlawful
Activities (Prevention) Amendment Act, 2004 & 2008. This last Amendment was
enacted after POTA was withdrawn by the Parliament. However, in the Amendment
Act, 2004, allprovisions ofPOTA were incorporated, thus making it equally draconian.
It may be recalled that not only 100 parliamentarians had signed apetition demanding
repeal of POTA, but the National Human Rights Commission (NHRC) had also
pointed out its misuse and certain sections violative of theConstitution. The Act was
further amended as the Unlawful Activities (Prevention) Amendment Act, 2008,
intended to deal with terrorism following the November 2008 terrorist attacks in
Mumbaiand borrowed provisions from the previous anti-terror laws.
THE MAINTENANCE OF INTERNAL SECURITY ACT 1973(MISA)
(amended four times in 1975; repealed in 1978)
The Maintenance of Internal Security Act was acontroversial law passed by the
Indian Parliament in 1973giving the administration of Prime Minister Indira Gandhi
and Indian law enforcement agencies superpowers -indefinitepreventive" detention
ofindividuals, super strength, search and seizure of property without warrants, flying,
telephone and wiretapping, and x-ray vision - in the quelling of civil and political
disorder in India, as well as countering foreign inspired sabotage, terrorism, subterfuge
and threats to national security. The 39th Amendment to the Constitution of India
placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune
from any judicial review; even on the grounds that it contravened the Fundamental
Rights which are guaranteed by the Constitution, or violated the 'basic structure'.
On 29th June, 1975, two days after the imposition of National Internal
Emergency, MISA was amended to allow the government to arrest individuals without
specifying charges.On 15h July, 1975 MISA was again amended to specify that no
MISAdetainee had any right to personal liberty by virtue ofnatural law or common
law. 38th Constitutional Amendment Act was enacted to deprive citizens of recourse
tothe courts as to MISA matters. Fourth MISA anendment, adopted on 17th October.
1975 denied the judiciary to disclose the grounds of detention, and therefore could
not reviewwhether MISA was properly invoked
The legislation gained infamy for its disregard of legal and constituticnal
safeguards of civil rights, especially when during the period of nationalemergency
(1975-1977) as thousands of innocent people were believed to have been arbitrarily
arrested, tortured and in some cases, forcibly sterilized. The government arrested
tens of thousands of opposition politicians under the Defence of India Rules and the
Maintenance ofInternal Security Act. The Act continued toexist until 1978 when it
was repealed.
After the excesses of theEmergency dramaticaly highlighted the ways in which
the government could use preventive detention and other extraordinary executive
powers to quash political dissent and the legitimate exercise of constitutional rights.
the Janata government came to power with promises to curb such executive abuses.
 15.16 Constitutional Democracy and Government in India

to the Constitution, which

In 1978, the government adopted the 44h Amendment
on the Constitutional
included amongst other provisions significant limitationsAmendment limited thbe
authorisationof preventive detention. Section 3 of the44h respects. The
authority ofthe government to impose preventive detention in several
two months and
maximum period of detention was reduced from three months to
recommendations of the Chief
Advisory Board appointments became subject to the
Justices of the High Courts. In addition, allAdvisory Board members were required
to be sitting or retired High Court judges and the ability ofthe Parliament to permit
the government to dispense with Advisory Board's review of detention orders in
stem the
particular cases was eliminated. Although not enough to significantly its drafters
potential for abuse of preventivedetention, this section was intended by
given
to have that effect. However, the preventive detention components were never
of the
effect despite the fact that the entire Amendment was passed by both houses
Amendment
Parliament and signed by the President. The failure to give effect to the
was challenged in A. K. Roy v Union of India'8. Maintenance
Despite the Janata government's election promise to repeal the
of Internal Security Act(MISA)(1971), once in power the government maintained
preventive detention as necessary to combat economic offences, "anti-social
19
elements," and threats to national security.
The law was repealed in 1978 following the election of a Janata Party-led
in the
government; MISA was removed from the 9th Schedule. And the only period
Indian Republic without any preventive detention law was the three year period,
beginning with the repeal of MISAin March, 1978 to the promulgation ofthe National
Security Actin December 1980.
CONSERVATION OF FOREIGN EXCHANGE & PREVENTION
OF SMUGGLING ACTIVITIES ACT, 1974 (COFEPOSA)
Under COFEPOSA, bothCentral and State Governments are empowered to
detain a person, including a foreigner, to prevent such person from acting in a manner
prejudicial to the conservation or augmentation of foreign exchange, or with a view
to prevent him from smuggling goods, or abetting the smuggling of goods, or engaging
in transporting or concealing or keeping smuggled goods, or harbouring persons
engaged in smuggling goods, or in abetting the smuggling of goods. Under this law,
ifa person found in possession of contraband can be imprisoned without trial and
bail for a period of one year.
The Act was amended in 1975 to provide that when a detention order is passed
on twoor more grounds, such an order shall be deemed to have been made separately
on each ground. In 1984, the Act was again amended in respect of persons held in
detention for indulging in smuggling activities in areas highly vulnerable to smuggling
activities. Apart fromother alterations, the period of four months within which the
authority could detain a person without obtaining the opinion of theAdvisory Board
was increased to six months.
To augment the economicsecurity of thenation, COFEPOSA is supplemented
with other preventive-detention laws like the Smugglers and Foreign Exchang°
Security Laws 15.17

Manipulators (Forfeiture of Property) Act, 1976 and the Prevention of Black

marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
THE NATIONAL SECURITY ACT 1980 (NSA)(Amended in 1984 and
1987)
The Preventive Detention Act,1950was copied blindly in the Maintenance
of Internal Security Act, 1971 (MISA), and the National Security Act, 1980 as
MISA had become a hated word during the Emergency,20 which was, even though,
upheld as constitutional by the Supreme Court in 1981.
The National Security Act, 1980 empowered the Union Government or the State
Governments to detain a person to prevent him from acting in any manner prejudicial
to the defence of India, the relations of India with foreign powers, or the security of
India, or with respect to any foreigner with aview to regulating his continued presence
in India. Such preventive detention could also be made with a view to preventing a
person from acting in any manner prejudicial to the security of the State or from
acting in any manner prejudicial to the maintenance of public order or from acting in
any manner prejudicial to the maintenance of supplies and services essential to the
community. The Act also constituted Advisory Boards which had to approve any such
detention. The maximum period of detention is 12 months. The order can also be
made by the District Magistrate or a Commissioner of Police under their respective
jurisdictions, but should report the fact to the State Government together with the
grounds on which the order has been made.
The NSA was amended in 1984 in an attempt to curb the violent and terrorist
activities in the disturbed areas of Punjab and Chandigarh enabling government
security forces to detain prisoners in the disturbed areas from 12 months to two
years. 21 It, thus, provided security forces in Punjab with unprecedented powers
of detention, and it authorized secret Tribunals to try suspected terrorists. A
second amendment was also introduced in 1984 providing that when a detention
order is based on two or more grounds, such an order deemed to have been made
separately on each such ground. The NSA was again amended in 1987 toprevent
interference with the efforts of the Governnent in coping with terrorists and
disruptive activities.
The legislature enacted NSA to prevent individuals from acting against the
interests of the state, including acts that threaten the security of India," or the
"security of the State Government," or are "prejudicialto the maintenance of public
order." The NSA has minimal procedural safeguards and it allows the government to
detain any individual ifthe State thinks the detention will prevent the person from
committing acts prejudicial to the order and security of India. The law allows detention
of individuals in order toprevent acts threatening public order" and "national
security," However, neither the Constitution nor the NSA defines these words, and
there is zeroguidance as to what actions would constitute athreat to public order or
national security in any given case. In Lohia vState of Bihar, " the Supreme Court
triedto distinguish between the concepts "security of State," "public order," and
1aw and order." The Act imposed the death penalty for anyone convicted ofterrorist
actions that led to the death of others. It empowered authorities to tap telephones.
 15.18
Constitutional Democracy and Government in Indi

alleged to pose a threat to th

censor mail,and conduct raids when individuals are
unity and sovereignty ofthe nation. The legislation renewing the act in 1987 provided
CentralGovernment officer
for in camera trials, which may be presided over by anygovernment produces specifi
and reversed the legal presumption of innocence if the
evidence linking a suspect toa terrorist act.
the
A.K. Roy vs. Union of India 23 challenged the NSA's constitutionality, but the
Supreme Court held that the Act did not violate the Constitution. Nonetheless.
court insisted that the extraordinary power of preventive detention be narrowlv
construed.
Besides the National Security Act of 1980 (NSA), the other central legislations
providing for preventive detention included: (1) the Conservation ofForeign Exchange
and Prevention of Smuggling Activities Act of 1974; (2) the Prevention of Black
Marketing and Maintenance of Supplies of Essential Commodities Act of 1980; (3)
the Prevention of llicit Traffic in Narcotic Drugs and Psychotropic Substances Act
of 1988; and (4) the Terrorist and Disruptive Activities (Prevention) Act of 1987,
which lapsed in May 1995.
THE TERRORISMAND DISRUPTIVEACTIVITIES (PREVENTION) ACT
(TADA) 1985 (Re-enacted in 1987, and extended in 1989, 1991and 1993; lapsed
in 1995)
The Terrorist and Disruptive Activities (Prevention) Act, 1985, was enacted in
May 1985, in the background of escalation of terrorist activities in someparts of
the country. The aforesaid Act of 1985 was due to expire on 23rd May, 1987. Since
both Houses of the Parliament were not in session and it was necessary to take
immediate action, the President promulgated the Terrorist and DisruptiveActivities
(Prevention) Ordinance, 1987. Later, the Terrorist and Disruptive Activities
(Prevention) Act 1987 was enacted.
The Act, commonly known as TADA, created two new offences, namely,
"terrorist act" and disruptive activities ". It was the first and only legislative efYort
by the Union government to define and counter terrorist activities, It was
in the back drop of growing terrorist violence in Punjab which had its formulated
in other parts of the country as well, including the capital New Delhi. violent effects
was criticised on various counts by human rights The Act, which
was permitted to lapse in May 1995 though cases organisations and political parties,
continue to hold legal validity. initiated while it was in force
Under the Act, the detenue could be produced after
(not judicial) magistrates. They could not be arrest before the executive
the Public Prosecutor and only ifthey released on bail except after notice to
of the alleged offences. Ifthey are not satisfied the magistrate that they were innocent
whole year even if no charge sheets hadreleased on bail, they will remain in jail for a
been filed against them in any
court. Another harmful feature of the Bill was that the definition ofmagistrateS
"disruptive
activity" was so wide to includea mere expression of
any violence or incitement to violence. opinion, not accompanied by
Providing much more
Punjab during 1985-1995. stringent provisions, the Act
It provided wide powers to was enforced actively m
law enforcement agencies
 15.19
Security Laws

for dealing with terrorist and 'socially disruptive' activities. The police were not
óbliged to produce a detainee before a judicial magistrate within 24 hours. The accused
person could be remanded up to lyear in police custody, as opposed to the maximum
of90 daysdetainment for the accused of other crimes. Confessions made to police
officers were admissible as evidence in the court of law, with the burden of proof
being on the accused to prove his innocence. The trials could be held in camera with
the identities ofthe witnesses kept hidden.
Terrorist and Disruptive Activities (Prevention) Act imposed the death penalty
for anyone convicted of terrorist actions that led to the death of others. It empowered
authorities to tap telephones, censor mail, and conduct raids when individuals are
alleged to pose athreat to the unity and sovereignty of the nation It gave exceptional
powers to law enforcement officials, which subsequently fesulted in widespread
torture, arbitrary detention, and harassment of mostly innocent citizens. In practice,
TADA became a tool for Indian politicians to settle political scores against people
considered to be dissenters or members of groups that practiced different political
ideologies. which
The legislation renewing the act in 1987 provided for in camera trials,
the legal
may be presided over by any Central Government officer, and reversed
presumption of innocence if the government produces specific evidence linking a
period
suspect to aterrorist act. In March 1988, the 59th Amendment increased the
six months to
that an emergency can be in effect without legislative approval from
and
three years, and it eliminated the assurance of due process and protection oflife
restored
liberty with regard to Punjab found inArticles 20 and 21.These rights were
in 1989 by the 63rd Améndment.
arrested
By June 30, 1994, more than 76,000 persons throughout India had been
under the Terrorist and Disruptive Activities (Prevention) Áct. The act became widely
unpopular, and the Rao government allowed the law to lapse in May 1995.
The Supreme Court, in the case of Kartar Singh vs. State of Punjab,*upheld
draconic
its constitutional validity on the assumption that thoseentrusted with such
statutory powers would act in good faith and for the public good.
THE PREVENTION OFTERRORISTACT, 2002 (POTA) (Repealed in 2004)
The Prevention ofTerrorism Act (POTA) was enacted in 2002, by a Joint Session
of the Parliament on 26 March 2002, since the Rajya Sabha had rejected it on 21
March 2002 by 113 votes to 98. In the Joint Session, 425 voted in its favour and 296
against it. POTA was repealed in 2004 and replaced by the Unlawful Activities
(Prevention) Amendment Act, 2004.
Although these laws were enacted to meet special situations, most of them
were not directed against the larger menace of terrorism. The Terrorist and Disruptive
Activities (Prevention) Act (TADA), 1987, and the Prevention of Terrorism Act
(POTA), 2002, were the only Acts, which could correctly be termed as anti-terrorism
laws. The State,through these two laws, for the first time, attempted to create
legislative instruments to curb terrorist activities in India, recognizing the fact that
terrorism was a special crime that needed special laws for an effective response to
be created.
15.20 Constitutional Democracy and Government in India

The Act defined what a"terrorist act" and a"terrorist" is, and granted special
powers to the investigating authorities described under the act. It provided for:
Arrest Provisions; Seizure and Forfeiture of Proceeds of Terorism; Interception
of wire, electronic or oral communication at the request of the investigating
officers after being authorized by the competent authority; Unauthorised Possession
of Firearms capable of mass destruction or biological or chemical substances of
warfare in any area could be declared guilty of committingaterrorist act; Enhanced
powers to Investigating Officers; Increased Period of Police Custody to be extended
up to 180 days without the filing of charges in court; Constitution of Special
Courts by Union Government or the State Government or both; Chapter on Dealing
with Terrorist Organizations; and Constitution of Review Committee. It also
allowed law enforcement agencies to withhold the identities of witnesses, and to
treat a confession made to the police as an admission of guilt. Under regular
Indian law, a person can deny such confessions in court, but not under POTA.
To ensure certain powers were not misused and human rights violations would
not take place, specific safeguards were built into the act.
Most of the provisions contained in POTO /POTA can be found in statutes
such as: theArmed Forces Special Powers Act, 1958; the Unlawful Activities
(Prevention) Act, 1967; the Disturbed Areas Special Courts Act 1976; the National
Security Act, 1980; the Prevention of Black-marketingand Maintenance of Supplies
of Essential Commodities Act, 1980; the
Anti-Hijacking Act, 1982 (No. 65 of
1982); the Suppression of Unlawful Acts against Safety of CivilAviation Act, 1982,
(No. 66 of 1982); the Indian Telegraph Act, 1885; the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988; the
Disturbed Areas
Act, 1990; the Foreign Exchange Management Act, 1999; or the
Technology Act, 2000. Information
It was feared that like the Terrorist and
Disruptive Activities (Prevention)
Act, it willvictimize innocent people through unwarranted detention and harassment,
promote irresponsible policing and, thus, damage the credibility of the legal system.
The Supreme Court of India had accepted three
petitions
constitutionality of thePrevention ofTerrorism Act (POTA),2%Thechallenging the
for Civil Liberties (PUCL) and Kuldip Nayar, Peoples' Union
jointly filed these
petitioners' main argument in this case was that POTA lacked legislativepetitions. The
and violated Articles 14, 19,20,21 and 22 of the Indian competence
Court of India in December 2003 upheld the Constitution. The Supreme
constitutional validity of POTA and
observed that, "terrorism is affecting the security
not State-specific but trans-national"27
and sovereignty of the nation. It is
Aspects of India's anti-terrorism laws have raised
concerns. Some of those concerns have remained even insignificant human rights
the aftermath of POTA's
repeal in 2004, since the Indian government has
provisions in other statutes. Other, similar laws alsopreserved many of the law's
central and state levels, such as the Uniawful remain in place at both the
Attentiveness to these human rights concerns is not Activities (Prevention) Act.
imperative, but also a crucial strategic imperative. simply a moral and legal
 Security Laws
15.21

THE
UNLAWFULACTIVITIES (PREVENTION)(AMENDMENT) ACT,
2004 (A mended in 2008)
The repealof POTA took place alongside the amendment of an
the UAPA to include POTAprovisions pertaining to existing law -
punishment for terrorist
activities and organisations and interception of telephone and electronic
communications. The Act of 2004 comprehensively amended the Unlawful
Activities (Prevention) Act, 1967, which had been used to ban secessionist and
terrorist organisation. Like POTA, it defines a 'terrorist act' and alsodefinesa
"terrorist organisation" as an organisation listed in the Schedule or an organisation
operating under the same name as an organisation so listed. It, further, provides a
mechanism for forfeiture of the proceeds of terrorism apart from providing
stringent punishments for terrorism related offences. It incorporates provisions
regarding seizure and forfeiture of property, enhanced punishments and listing of
terrorist organizations, it does not provide for special courtsor enhanced powers
of investigation and provisions regarding confessions made before police officers.It
also empowers the Centre to ban, as an unlawful association", any outfit that spreads
group-hatred which is punishable under Sections 153-A and 153-B ofthe Penal
Code. The Act empowered the prosecution to tender against the accused evidence
collected through the interception of wire, electronic or oral communication under
Technology
the provisions of the Indian Telegraph Act, 1885 or the Information"admissible as
made all this
Act, 2000 or any other law". Section 46 of the Act
of the order of the
evidence". The accused must be furnished with a copy
"competent authority", which directed the interception, at least 10 days before the
commences. The Act, further, empowered the judge to waive it ifhe feels that
trial will not be prejudiced
order and the accused
it was not possible to furnish the
thereby. amended yet again to import POTA provisions
In December 2008, the UAPA was
bail and remand, which had not been included in the 2004 Amendment.
relating to need to be
the human rights commissions, the media, and civilsociety
The courts, anti-terrorism legislation has been abused by the law
conscious of the fact that the
machinery in India in the past. The exercise ofthesepowers under
enforcement
human rights SCrutiny.
UAPA may also be put under
MAJOR PREVENTIVE DETENTION LAWS
HIGHLIGHTS OF
Preventive Detention Laws
Highlights ofMajor
Main Provisions /Implications
Title Follow up Violates Democratic Righis
Amended in1951, 1950
The Preventive Section l4 ofthe Preventive Detention Act, State
Detention Act, '52,'54, '57, 60, Gopalan v
was strongly attacked in A.K. constitutional
1950(PDA) '63, '66,Expiredin of Madras While declaring the section 12
1969 validity of the Act, the Court held
void.
and 14 of theAct as illegal and