Terrorism and Human Rights:

Indian Experience with

Repressive Laws

G. Hargopal, B, Jagannatham (2009)

Terrorism is growing and no amount of power in terms of the
use of force and severity of punishment has been helpful in
containing it. This paper examines the ways that the Indian
State has been responding to these challenges and scrutinises
the experience over six decades of the use of repressive laws
and their impact on the very notion of unrestrained freedom
which a liberal state is supposed to guarantee.
 The contemporary world is experiencing many unusual movements including
the so-called terrorist acts emanating from worldwide unrest.
 There is an intense debate on these eruptions and ways and means to deal with
this rapidly changing alarming global context.
 The central anxiety regarding these movements is that those who are
questioning or challenging the system are armed and do believe in using force
to win their point.
 The state maintains that the ordinary laws meant for regulating the public
affairs are not adequate as most of these laws assume a normal society with
citizens whose conduct is broadly in conformity with the laws of the land.
 In fact it is widely believed, certainly with an element of truth, that the laws
arise from consensus, if not individual consent of every citizen.
The state being responsible for governance derives its power from the
laws of the land.
Every law confers powers on the State but also limits the power so
that power does not become tyrannical.
The laws also define the rights and freedoms of citizenry through
which their relation with the state is determined.
It has been the worldwide experience that it is in the very nature of
the state to transgress the limits of the law.
In case of citizens at least some sections of the citizenry, there is a
tendency to use freedoms to the extent of challenging the very
legitimacy of the state.
It is, therefore, a civilisational question that how a balance is struck
between these two powerful tendencies without abandoning the
project of transformation of the human society into a more equitable,
peaceful, fair, just and humane global order.
The jurisprudential equilibrium rests not only on the nature of the
state which is dependent on quality and character of the rulers but
also on the levels of contentment, quality of life, the nature of social
institutions and instruments of civil society in mediating the
relationships in the society.
However, it has been the human experience that the “equilibrium” is
never everlasting.
It is always open to challenge and therefore, the possibility of
disequilibrium. It is not that the restlessness in the society is new to
human experience.
It has always existed in one form or the other; what distinguishes the
contemporary means of expressions of restlessness are the levels of
force and forms of violence.
The invention of fire arms and their widespread availability in the
global market brought in altogether new challenges to the system
maintenance.
One of the significant but anticipated fallouts of these trends has been
end of the state monopoly of force (which distinguishes the State
from other institutions).
 In liberal theory the origin of the state is conjectured as a product of social
contract arrived at through the consent of the individuals. The contract was
necessary as relations between human beings were mediated through force
and it was that arbitrary force in the state of nature that was brought under the
regulation of law. It also maintains that every human being is endowed with
reason and since reason is superior to raw emotions and uncultivated impulses
it has been possible to arrive at the acceptance of supremacy of law.
INTRODUCTION

 It is also postulated that human beings enjoyed unrestrained freedom

in the state of nature. Surrendering part of the freedom was a
component of the contract. This surrender was in exchange for
security. Thus guaranteeing right to security, in a way, has come to
define the basic function of the state.
 The question that maintenance of law and order rests on mere passing
of laws is problematic.
 INTRODUCTION

 It is common sense that where there is widespread deprivation, there cannot be

order. It is juridical ambition to expect a hungry man to be a law abiding citizen.
There have to be ways and means through which people should be able to earn their
livelihood to start with and opening and widening up of opportunities to improve
their quality of life or what Amartya Sen conceptualised as “endowments and
capabilities” (Sen 1999).
 In fact, Karl Marx argued almost one and half centuries back that equality before
the law without equality in concrete existence is juridical illusion (Marx and Engels
1846). This reality calls for “w elfarism” and greater equality which become a part
of the governance warranting passing of several laws for trans formation of the
society. It is in this process that the very notion of rights has got enlarged.
 INTRODUCTION

A sovereign state and g lobal economic order are contradiction in

terms; for societies at different stages of development and enormous
cultural diversities and styles of life are being pushed or dragged into
the global order or what has come to be described as structural
adjustment resulting in ruptures which are evident in different parts
of the world (Bharathi 2005): As economic processes are calling for a
borderless world, the reactions are also bound to be on a global scale.
 INTRODUCTION

These violent acts of those members of the world who are not able to
adjust or those who are rejecting the model are put in the broad
category called “ terrorism”. There are, however, other equally
powerful expressions characterised by varied nomenclature –
insurgency, extremism, ethnicism, separatism, or Naxalism.
The question under debate is: how and why the nation state has been
reacting and responding the way it did to these growing threats to its
legitimacy? The way they handled these critical challenges is a sad
reflection of the nature of the Indian state.
The contextualists maintain that the origins of the outbursts lie not
inside the outbursts but outside the historical and socio-economic
processes.
There are a number of ways through which human beings could be
divided, deprived and alienated.
It is the drift of mainstream politics from the democratic and
transformative visions that can be one of the important causes for
immediate provocation for protest which can grow into frightful
violence.
 As the violence grows quite often the initial causes are lost sight of and rulers
get engrossed with the violence per se and take recourse to different forms of
force to deal with the otherwise complex socio-political situation.
 The contextualists hold that those dealing with such situations should get into
deeper processes and find historical alternative possibilities of dealing with the
situation more through imaginative and creative political action than use of
brute force.
 The confrontationalist approach, on the contrary, maintains that human beings
are basically peace loving and therefore prefer an orderly life. But there are
always misconceived causes espoused by the misled and crime-prone
individuals and groups whose sole purpose is to disturb the social order as that
is the only way they know how to express themselves.
Contextualist
Confrontationalist
 INTRODUCTION

 There is also a new phenomenon of cross border terrorism.

 Once a state succeeds in mobilising the public opinion and shifts “the causes” for internal
crisis to external adversaries, it becomes difficult for the people to put pressure on their
government for solving the basic problems. 
 There are also several instances where nations are at loggerheads with each other for various
historical reasons continuously breeding violence.
 They under this pretext maintain that violence cannot be dealt by the ordinary municipal laws
and enact repressive laws which are used not only against the external enemy but internal
dissent.
 Thus cross border terrorism contributes in a large measure to arbitrary exercise of power
against ones own citizens.
2 The Repressive Laws
 It is in this backdrop one can look at the laws that have been enacted in India as a part of
dealing with an “extraordinary situation”, called terrorism as India is one nation which
confronts wide-ranging challenges which have come to assume the so called “terrorist
forms”.
 If one looks at the history of legislation on terrorism or disturbance, there was the
Preventive Detention Act at the advent of independence followed by the Punjab Security
Act 1955, Assam Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur)
Special Powers Act, 1958.
 Of all these four legislations, viz, Armed Forces Special Powers Act, Terrorist and
Disruptive Activities (TADA) Act, Prevention of Terrorist Activities (POTA) Act and the
Unlawful Activities (Prevention) Amendment Act are selected for a critical examination as
they have been not only extensively used or misused but have had far-reaching impact on
the overall democratic structure and liberties and freedoms of the Indian citizens.
2.1 The Armed Forces (Assam and
Manipur) Special Powers Act- 1958
 The Armed Forces (Assam and Manipur) Special
Powers Act- 1958

 This is one of the earliest repressive laws (after Preventive Detention) to be

introduced in post-independence India.
 North-eastern India has been particularly problematic as certain parts have
been claming autonomy, if not, cessation from the Indian union. As there were
rebellious armed assertions, there was the Armed Forces Special Powers Act,
1958 to deal with the problem. The Act states that it is to: enable certain
special powers to be conferred upon the members of the Armed Forces in
disturbed areas in the State of Assam and the Union Territory of Manipur.
The Act confers the power to any commissioned officer,
warrant officer, non-commissioned officer or any other
person of equivalent rank in the armed forces to: fire upon or
otherwise use force, even to the causing of death, against
any person who is acting in contravention of any law or the
order, if he is of the opinion that it is necessary so to do for
the maintenance of public order, after giving such due
warning as he may consider necessary.
It also empowers these officers for “prohibiting the assembly of five
or more persons, or carrying of weapons or the things capable of
being used as weapons or fire-arms, ammunition or explosive
substances”. The Act also gives the power to the armed forces to:
arrest without warrant any person who has committed a cognisable
offence or against whom a reasonable suspicion exists that he has
committed or is about to commit a cognisable offence and may use
such force as may be necessary to effect the arrest.
It also empowers these officers for “prohibiting the assembly of five
or more persons, or carrying of weapons or the things capable of
being used as weapons or fire-arms, ammunition or explosive
substances”. The Act also gives the power to the armed forces to:
arrest without warrant any person who has committed a cognisable
offence or against whom a reasonable suspicion exists that he has
committed or is about to commit a cognisable offence and may use
such force as may be necessary to effect the arrest.
In addition, the armed forces have the power to enter and
search without warrant any premises, to make any arrest,
recover any person to be wrongfully restrained or confined.
The Act guarantees impunity to the armed forces that no
prosecution, writ or other legal proceedings shall be
instituted except with the previous sanction of the central
government against any person in respect of anything done
or purported to be done in exercise of these powers
conferred by this Act.
After almost one and half decades in 1972 the Act was
amended not to contain or tame the arbitrary powers but to
extend the Act in addition to the states of Assam and
Manipur, to Meghalaya, Nagaland and Tripura and the union
territories of Arunachal Pradesh and Mizoram and in 1983
the Armed Forces (Punjab and Chandigarh) Special Powers
Act was enacted.8 This Act enlarges the scope of the power
of armed forces such as “seize any property reasonably
suspected to be stolen property”
Assam
In 1990 the Armed Forces (Jammu Kashmir)
Special Powers Act was enforced in Kashmir.
After five decades of the Act being in force, there was a massive
protest from ordinary people in the north-east and six women in
Manipur walked without robes towards the Raj B havan in protest
against the arbitrary use of the Act by the armed forces.
The question one has to ask is: why did not the Act and its
amendments produce the desired impact? There has been no review
on the ineffectiveness or failure of the Act to realise its intended
purpose! Nor was there an attempt to critically look at the violation
of the rights of innocent people by the state agencies.
After five decades of the Act being in force, there was a massive
protest from ordinary people in the north-east and six women in
Manipur walked without robes towards the Raj Bhavan in protest
against the arbitrary use of the Act by the armed forces.
The question one has to ask is: why did not the Act and its
amendments produce the desired impact? There has been no review
on the ineffectiveness or failure of the Act to realise its intended
purpose! Nor was there an attempt to critically look at the violation
of the rights of innocent people by the state agencies.
The armed forces hardly realise that they have been posted to
sensitive areas to win over the people and not to defeat them.
For the defeated can never identify emotionally with a nation
state which treated them as adversaries and not as citizens for a
long time.
The governments which are not reflective and creative neither
retrospect nor reflect on the long-term impact of mechanical
approach and end up in a vicious cycle: this cycle is nowhere
more evident than the subsequent enactment of repressive laws.