What is terrorism ?

INTRODUCTION

While a lot of global issues affect our well-being and security, none of them causes more anxiety and poses a greater threat than the international issue of terrorism, which is nothing but the use of extreme violence usually on non-armed civilians by some non-state entities in order to impose certain political or religious agendas. 

It, however, needs to be noted that terrorism is not carried out instantly. It requires extensive planning, and involves a lot of people who are trained for long periods, sometimes even for a year. Terrorist attacks are pre mediated, organized extensively and are carried out in a systematic manner. Terrorism is thus, an organized crime. 

Terrorist attacks are the greatest assault on one’s human rights, and cause unimaginable terror in the minds of all. It has, thus, now become urgent to address this issue and would require close co-operation of all the countries at the judicial and enforcement levels so as to clip the wings of the terrorists.

In this article, I seek to discuss in detail, the meaning of the word terrorism and the provisions of India’s primary anti-terror law, The Unlawful Activities Prevention Act 1967.

A GENERAL OVERVIEW

All Muslims are not terrorists, but all terrorists are Muslims, a dangerous, widespread and a very deeply rooted misconception, that keeps on dragging us all down into the pit of islamophobia, while little or no attention is given to the actual meaning that the word terrorism, or a terrorist carry. 

While religious terrorism is certainly a form of terrorism, it’s not what the word ‘terrorism’ solely implies, nor is it unique to Islam. Organizations like the Army of God, the Lord’s Resistance Army, the Ku Klux Klan among others, are run by those professing Christianity, and equally qualify as terrorist organizations, based upon their intent and actions. 

But the indiscriminate use of the term Islamic terrorism has created an impression in the minds of majority of the people throughout the world that the terrorists, are always Muslims. It, however, needs to be understood that terrorism has no religion.

Nor is it an invention of 20th and 21st centuries. Throughout history, power has been wielded through terror, that is, by inciting fear.

A group of Jewish people called ‘Sicariis’, are known to have introduced the strategy of terrorism in as late as 66 to 73 AD as a means to expel the romans from the Judean region by using a short sword or a ‘sica’, to carry out killings during daytime in crowded spaces so as to strike fear among the masses.

However, this strategy of using terror as a means of holding power came to be termed as ‘terrorism’, and those who carry it out, as ‘terrorists’, only during the Reign of Terror in France (1793-1794), during which the ruling Jacobins employed violence, including mass execution by way of guillotine, in order to intimidate and terrorize those they believed were opposed to the revolution, during which 16000 – 40000 people were summarily executed. 

In the modern era, the 1920s and 1930s saw the emergence of the right-wing fascist terror, as ‘Hitler’s brownshirts and Mussolini’s blackshirts’ used murder and violent intimidation to achieve political power and to attack specific elements in the population.

However, while terrorism has been used as a method to strike fear in the minds of targeted audience since the dawn of human history, it was the infamous 9/11 attack in the USA that “showed the world that terrorism had morphed into a global phenomenon that could cause massive pain and destruction anywhere”, as per an article published in the UN chronicle in 2011. “Terrorism did not begin on 11 September 2001, but that terrible day did change the world.”

While the United Nations was concerned and engaged with the issue of terrorism and the related issue of human rights long before the 2001 attack, the issues became more urgent and significant post 9/11. As a consequence of which, the United Nations Security Council adopted Resolution 1373 under Chapter VII of the UN Charter, obligating the states to implement more effective counter terrorism measures at the national level, while increasing co-operation in struggle against terrorism at the international level.  It requires all the UN Member States, separately and collectively, to deny to the terrorists, safe haven and financial support and to cooperate in bringing them to justice.

WHAT EXACTLY IS TERRORISM?

Terrere means “to make tremble or to frighten” in Latin. When coupled with the French suffix isme (“to practice”), it becomes “practicing the trembling” or “causing the frightening”.

According to Walter Laqueur, a prominent terrorism expert “Terrorism is the use or the threat of the use of violence, a method of combat, or a strategy to achieve certain targets. It aims to induce a state of fear in the victim, that is ruthless and does not conform with humanitarian rules.”

Terrorism is meant to cause terror. However, it implies intimidation with a purpose: the terror is meant to cause others to do things they would otherwise not do. Thus, terrorism is coercive intimidation. 

There has been no consensus on one single definition of terrorism to be accepted across the globe as is exemplified by a well-known saying: “One man’s terrorist is the other man’s freedom fighter.” Moreover, there has been a change in the meaning of the word terrorism and the connotations attached to it. However, despite uncertainty about its actual meaning, there is an agreement about its main elements. 

• Terrorism is the threat or use of violence to create fear,
• it is politically, religiously or ideologically motivated,
• and the violence is used to communicate a message to individuals or groups beyond its immediate victims.

Thus, it is agreed upon by most that terrorism has two targets: the immediate, direct target and the indirect target. The former is often killed or hurt, in order to intimidate, coerce, impress, provoke or otherwise influence the indirect and the main target. Who becomes the ultimate target of an act of terror depends upon what the terrorists seek to achieve. 

Today, terrorism stands as one of the main threats to international peace and security, a serious assault on human rights, fundamental freedoms and the rule of law. “No age, no culture, no religion, no nationality and no region are immune to terrorism,” remarked the UN secretary general. 

On 15 June 2017, The United Nations Office of Counter-Terrorism (UNOCT) was established through the adoption of UN General Assembly Resolution 71/291. The Office of Counter-Terrorism provides the member states with the necessary policy support and spreads in-depth knowledge of the United Nations Global Counter-Terrorism Strategy, 

Further, in 2018, the Code of Conduct Towards Achieving a World Free of Terrorism was adopted at the 73rd session of the United Nations General Assembly, as one of the agreements that promote the international legal counterterrorist framework.

A lot of international conventions were adopted in 20th and later, in 21st centuries. Some of them include the 1979 International Convention against the Taking of Hostages, the 1997 International Convention for the Suppression of Terrorist Bombings, the 1999 International Convention for the Suppression of Financing of Terrorism, the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, among others.

EVOLUTION OF ANTI TERROR LAWS IN INDIA

In the contemporary Indian context, terrorism can be seen under three essentially distinct but overlapping categories: 

• terrorism employed by ethno-nationalist movements seeking either greater autonomy or statehood in the federal structure of the Indian Union or complete separation from it, such as the Kashmir and North eastern separatist movements,
• terrorism used by left-wing extremist movements seeking an overturning of the nation’s capitalist economic order and liberal democracy, such as the Naxalite movements, mainly carried out by People’s Liberation Guerrilla Army and the armed wing of CPI (Maoist), and
• terrorism driven by religious ideologies, prominently carried out by extremist Islamist groups, the most prominent being the Mumbai 26/11 terror attack in 2008.

The Indian government has responded well by passing significant legislations governing the terrorist activities as and when the need arose, amending and repealing the legislation, if necessary.

Indian anti-terror law has evolved from the Unlawful Activities (Prevention) Act, 1967 (UAPA) through the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) to the Prevention of Terrorism Act, 2002 (POTA)

UNLAWFUL ACTIVITIES PREVENTION ACT 1967

Unlawful Activities (Prevention) Act, is the cornerstone of India’s legislative policy against terrorism. It was enacted in 1967 and has undergone several amendments since then, altering its scope in terms of applicability. It was enacted to prevent the unlawful activities by individuals or associations, which may threaten the sovereignty and integrity of India, or may be intended to bring about cession or secession of any part of the territory of India.

TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT 1987

The first anti-terror law in India was enacted in the form of the Terrorist and Disruptive Activities Prevention Act, 1987 (TADA) and the Terrorist Affected Areas (Special Courts) Act, 1984. It was enacted in 1987 against the backdrop of terrorism in Punjab and assassination of Indira Gandhi, and the consequent communal disorder and the terrorist activities that had increased in the region. However, the provisions of TADA gave the law enforcing agencies arbitrary powers, disregarding the provisions of the Criminal Procedure Code and the Indian Evidence Act. Moreover, the act of 1987 undermined a cardinal principle of far trial, i.e., presumption of innocence in favour of the accused. Therefore, the legislation ceased to have effect in 1995.

PREVENTION OF TERRORISM ACT, 2002

On 13th December, 2001, five terrorists belonging to two Pakistan based militant organizations attacked the Indian Parliament, thereby killing seven people and placing the nation in a heightened state of alert. Consequently, the Prevention of Terrorism Act, (POTA) was enacted in 2002. However, POTA was considered to be a draconian law, as it had a number of arbitrary provisions. The legislation as a whole was challenged on grounds of being unconstitutional and violative of articles 14 and 21 in a number of cases. Therefore, in 2004, the act was repealed.

UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2004

The UAPA was not a terror law from 1967 until 2004. However, after the TADA and the POTA act were repealed, specific provisions dealing with terrorist activities and organizations were added in the UAPA, under chapter VI, by an amendment in the legislation, thus, making the UAPA, the main anti-terrorism legislation in India.

Subsequent amendments in 2008, 2013 and 2019 were made. By the 2004 amendment, the definition of ‘terrorist act’ and ‘terrorist organisation’ were included. After the 2008 Mumbai terrorist attack, the definition of the term “terrorist act” was widened. In 2008 itself, the National Investigation Agency Act was also enacted, to establish a National Investigation Agency to investigate and prosecute offences under certain legislations including The Unlawful Activities (Prevention) Act. 

THE UNLAWFUL ACTIVITIES PREVENTION ACT

As discussed above, by virtue of the 2004 amendment, the UAPA was equipped with the definition of a ‘terrorist act’. By a further amendment in 2013, the legislation vested the union government with the power to designate certain organisations as terrorist organizations, and recently, by way of amendment in 2019, the union government is further empowered to designate any individual as a terrorist individual. Chapter IV, V and VI deal with terrorist individuals, terrorist organisations, terrorist acts, related offences and the punishments for such offences.

To understand which individuals and organizations can be designated as terrorists, its important to understand what a ‘terrorist act’ means.

WHAT IS A TERRORIST ACT?

According to section 15,

A terrorist act is an act which is done:

• with an intention to threaten, or with the knowledge that the act is likely to threaten the unity, integrity, security or sovereignty of India, or
• with the intention to terrorize or with the knowledge that the act is likely to terrorize people, or any section of people, in India, or in any foreign country,

Provided that the act is done by the means of:

• bombs, dynamite, explosive or inflammable substances, firearms, lethal weapons, poisonous or noxious gases, chemicals, hazardous substances or by any other means to cause or likely to cause— 

1. death or injury to any person or persons, or
2. loss, damage or destruction of any property; or 
3. disruption of any supplies or services essential to the life of the community in India or in any foreign country; or  
4. damage to, the monetary stability of India or,
5. damage or destruction of any property in India or in a foreign country used for the defence or for any other purposes of the Government of India, any State Government or any of their agencies; or 

• overawing by using or showing criminal force or by causing or attempting to cause death of any public functionary; or 
• detaining, kidnaping or abducting any person and threatening to kill or injure such person or doing any other act to compel the Government of India, any State Government or the Government of a foreign country or an international organisation to do or to abstain from doing any act.

Thus, as discussed above, the ultimate purpose of the terrorist would be to strike terror in the minds of targeted audience. This, the terrorist seeks to do by various means, the most popular being the use of bombs to kill people.

Under the UAPA, the objective of a terrorist act has to be either to threaten the sovereignty, security or integrity of the country, or to terrorize a group of people. 

And this objective, the terrorist must seek to achieve by the way of either using bombs or such other substances as are mentioned in section 15 (1)(a), or by using criminal force or killing a public official, or by compelling the government to do or not to do a particular act, to be able to come under the definition of a ‘terrorist act’.

Moreover, it was held in Umar Khalid v State of National Capital, that “under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity; not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act, within the meaning of section 15 of UAPA. 

Thus, invoking section 15 would be justifiable if the act is ‘likely to strike terror’, even if there is no intention as such.

Further, Section 43A of the Act says that if “definitive evidence” is found against the arrested individual, then the “court shall presume, unless the contrary is shown, that the accused has committed such an offence”

PUNISHMENT FOR TERRORIST ACTS

Section 16 provides punishment for committing terrorist acts:

• If the act results in the death of any person, the person committing such act shall be punished with death or imprisonment for life and fine.
• In any other case, he shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall be liable to fine.
• Moreover, under section 18A and 18B, organising terrorist camps to impart training and recruiting a person for the commission of a terrorist act, shall also be an offence, punishable with imprisonment of not less than five years, but which may extend to imprisonment for life along with fine.

It was held in Irfan Pasha v National Investigation Agency, 2022 that it is not necessary that to prosecute any person under the UPA Act he should be a member of a terrorist organization. It was contended by the appellants that even though they were considered to be the members of PFI, it is not a terrorist organization enumerated in the first schedule of UPA Act and therefore they are not members of any terrorist organization and they cannot be prosecuted under the UPA Act. However, the court held that section 15 commences with the words `whoever’ and the dictionary meaning of `whoever’ is `anyone or everyone’.  The words ‘Any person who is a member of terrorist organization’ have not been used in the definition of terrorist act. Therefore, in order to be prosecuted under section 15, it is not necessary that the individual should be a member of a terrorist organization. Being a member as such is in itself an offence under section 20 of the UAPA.

Some of the OFEENCES RELATED TO TERRORIST ACTS given in chapter IV, are discussed below:

1. RAISING FUNDS FOR TERRORIST ACTS – section 17 provides that raising, providing or collecting funds, directly or indirectly, from a legitimate or illegitimate source, knowing that such funds would be used, wholly or in part by a terrorist organisation or an individual for committing a terrorist act, would be an offence under the UAPA, and the person so raising or providing the funds shall be punished with imprisonment of not less than five years but which may extend to imprisonment for life and shall also be liable for fine.
2. CONSPIRACY TO COMMIT A TERRORIST ACT – while under section 15, actual commission of a terrorist act has been criminalised, under section 18, conspiring, attempting, abetting, inciting or even advising the commission of a terrorist act shall also be an offence, punishable with imprisonment which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
3. HARBOURING TERRORISTS – harbouring or concealing a terrorist, except if done by the spouse of the terrorist, shall be an offence under section 19, and shall be punishable with imprisonment of not less than 3 years, but may extend to imprisonment for life and shall be liable to fine.
4. BEING A MEMBER OF A TERRORIST GANG/ ORGANIZATION – being a member of the terrorist organization or the terrorist gang involved in a certain terrorist act, shall in itself be an offence under section 20, punishable with imprisonment which may extend to imprisonment for life and shall also be liable to fine.
5. HOLDING PROCEEDS OF CRIME – holding any property obtained through the commission of a terrorist act shall be an offence under section 21 shall be punishable with imprisonment, which may extend to imprisonment for life, and shall also be liable to fine. Further, section 24A provides that such proceeds of crime shall be liable to be forfeited to the Central Government or the State Government, as the case may be, according to the provisions of the act.

TERRORIST ORGANIZATIONS

Section 35 of the UAPA empowers the central government to declare any organisation as a terrorist organisation under the first schedule to the act, or to remove the name of any organisation. An organisation shall be deemed to be a terrorist organisation if it:

• commits or participates in acts of terrorism, or 
• prepares for terrorism, or 
• promotes or encourages terrorism, or
• is otherwise involved in terrorism

An application under section 36 can also be made to the central government to remove the name of an organisation from the schedule by:

• the organisation, or 
• any person affected by inclusion of the organisation in the Schedule.

Currently, there are 44 organisations listed under the first schedule as terrorist organisations. Some of them include:

• Babbar Khalsa International – also been officially banned and designated as an international terrorist organization by the United States of America, Canada, United Kingdom and Japan;
• Lashkar-E-Taiba – one of the largest and the most proficient of the Kashmir focused militant groups designated as an international terrorist organisation by the UN and the US. Responsible for the November 2008 Mumbai attacks
• Jaish-E-Mohammed – a Pakistan-based Jihadist militant group active in Kashmir. Is alleged to have close relations and alliance with Taliban and Al Qaeda. Responsible for  2001 Indian Parliament attack, the 2016 Pathankot airbase attack, 2001 Indian Parliament attack, the 2016 Pathankot airbase attack. Designated as a terrorist organisation by UK, US, European union, Australia, and the UN
• The United National Liberation Front (UNLF) – a separatist insurgent group active in the state of Manipur in Northeast India which aims at establishing a sovereign and socialist Manipur.
• The Jammu Kashmir Liberation Front (JKLF) – a formerly armed, political separatist organisation active in both the Indian-administered and Pakistani-administered territories of Kashmir.

On 17 February, 2023, two more organizations, namely, Khalistan Tiger Force and the Jammu and Kashmir Ghaznavi Force, were also added to the first schedule.

TERRORIST INDIVIDUALS

In furtherance to India’s Zero Tolerance policy towards terrorism, the Central Government amended the Unlawful Activities (Prevention) Act (UAPA) in August 2019 to alter Section 35 which gave the Central Government the power to notify an individual as a ‘terrorist’ under schedule IV of the act, or to remove the name of any designated individual from the schedule. Prior to this amendment, only organizations could be designated as terrorist organization.

According to section 35(3), an individual shall be deemed to be involved in terrorism if he:,

• commits or participates in acts of terrorism, or 
• prepares for terrorism, or 
• promotes or encourages terrorism, or
• is otherwise involved in terrorism

Further, under section 36, any person affected by inclusion of his name in the Fourth Schedule as a terrorist may make an application to the central government to remove the name from the fourth schedule.

By invoking the said amended provision, the Central Government had designated 53 individuals as terrorists, some of the famous ones being –

• Maulana Masood Azhar, the founder and the key leader of terrorist organization Jaish e Mohammad and as BBC news describes him “the man who brought jihad to Britain”. The 2016 Pathankot attack and the 2019 Pulwama attack are said to be masterminded by Masood Azhar. He has been declared a global terrorist by the UN.
• Zaki-ur-Rehman Lakhvi, one of the founding members of and the chief operational commander of Lashkar-e-Taiba (LeT). Designated by the UN as the global terrorist. Was actively involved in 26/11 Mumbai attack.
• Dawood Ibrahim Kaskar, runs an international underworld crime syndicate. Executed a series of bomb blasts in Mumbai in march 1993. Designated as a global terrorist by the UN. Listed by UN for supporting activities of Osama bin Laden, Al-Qaeda and the Taliban.
• Abdur Rehman Makki, a major member of and the head of LASHKAR E TAIBA’S political wing. Has been designated as a Specially Designated Global Terrorist by the US department of treasury.

On 17 February, 2023, one more individual, Harwinder Singh Sandhu was declared a terrorist. According to the Ministry of Home Affairs, he has been associated with terrorist organization Babbar Khalsa International (BKI). With the said declaration, now there are 54 designated terrorists under chapter IV of the UAPA.

However, the 2019 amendment has been a debatable issue since its enactment.

CONTROVERSY AROUND THE 2019 AMENDMENT

The government contends the existing power of naming an ‘organization’ as a terrorist organization was too little for them to punish lone terrorists. Moreover, the government believed that once it declared a particular organization as a terrorist organization, its members would start operating individually, or by forming new organisations. That is why it had become essential to name individual persons as terrorists. 

However, it has been argued by many that the UAPA Act, 1967 already has ten distinct provisions (Section 16-24A) for punishing “lone terrorists” or “members of a terrorist organization” separately. The said provision enables the government to declare an individual as terrorist ‘only if it believes; that such an individual is related to terrorism. Designating an individual as a terrorist would be a serious assault on his reputation, and the act does not provide any remedy to bring back the tainted reputation once it is established that the person so declared is not a terrorist.

The Apex court observed in Hitendra Vishnu Thakur vs. State of Maharashtra that “a terrorist activity does not merely arise by causing disturbance of law and order or public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law.”

It was further held in Kartar Singh v. State of Punjab, that “A person becomes a terrorist or is guilty of terrorist activity when his intention, action, and consequence all the three ingredients are found to exist together and that until the alleged acts of an accused could be classified as a “terrorist act” in “letter and spirit”, he should not be charged under anti-terror acts.”

However, the use of ambiguous words such as ‘if the government believes’ used in section 35, or ‘by any other means of whatever nature’ used in section 15 have given inexhaustible powers to the government.

Most importantly, as is argued by a lot of scholars, the amended provisions now act as a tool for the Government to penalise the individuals who have opposing political views or those who speak disaffectionately against the state and this operates as an assault on the Right to Freedom of Speech and Expression (Article 19 (1)(a)), as was the case in Romila Thapar v Union of India, where a group of human rights activists, journalists, professors, writers, and a prominent lawyer was arrested under the UAPA alleging their Maoist link with respect to Bhima Koregaon incident and according  to Justice DY Chandrachud “the arrests were motivated by an attempt to quell dissent.”

CONCLUSION

While terrorism has been in vogue for a fairly long period in the history of modern civilization, in the contemporary era, it constitutes a serious threat to peace, security and stability and can endanger the territorial integrity of States. The 9/11 attacks on the American soil made the world conscious of this emerging global threat and sensitized the governments towards enacting dedicated counter terror laws. The United Nations has also taken effective steps in this direction. In India, the Unlawful Activities Prevention Act 1967, serves as the primary counter terror law. 

However, as seen above, a lot of controversies have built up after the recent 2019 amendment in the Act, with the bail provisions being the most controversial. It is to be noted that if the law is not used in letter and spirit then it can be abused by those in powers against the weak. A balance has to be maintained between the security of the state and the fundamental rights of an individual, keeping in view the fact that neither of them can be compromised in order to ensure the achievement of the other.

Nevertheless, in the early twenty-first century, the fight against terrorism has taken on a global character, becoming not only a possibility, but a necessity, and since terrorism does not respect national boundaries or any religion or any culture, the fight must continue!

FREQUENTLY ASKED QUESTIONS

1. What is the role of the National Investigation Agency (NIA) in UAPA cases?

The NIA is the central agency empowered to investigate and prosecute offenses under UAPA. It has the authority to take over cases from state police forces and conduct investigations across the country to ensure effective handling of terrorism-related cases.

2. Can you get bail if you are arrested under the UAPA law?

Special laws like the UAPA have additional conditions for an accused person to get bail. The UAPA has special bail conditions for a person accused of being involved in a terrorist activity or involved with a terrorist organisation. In such cases, the person cannot get bail unless the government’s lawyer has heard the bail application of the person asking to be released. Further, a person accused of terrorist involvement cannot get bail if the court thinks that there is a reasonable possibility that he actually committed the offence that he has been accused of.

BY:

ARSHITA JINDAL

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY