Analyzing Counter-terrorism Measures: A Comparative Study of Anti-Terrorism Provisions in the Indian Penal Code and Bharatiya Nyaya Sanhita

2nd April, 2024 - 7:18 am Categories: News & Updates 0 Comments

The Indian Penal Code is unquestionably a praiseworthy collection of substantive criminal law, and most of its provisions are still in effect today as they were in 1860 A.D. However, various new offences have surfaced as a result of the rapid political and socio-economic transformations in the past 160 years. As a result, a comprehensive revision was needed to make the code efficient and progressive. For example, previously unknown offences such as political crimes, hijacking, cybercrimes, white collar crimes, and socio-economic crimes have emerged and are growing alarmingly¹. The implementation of Bharatiya Nyaya Sanhita is a step in the right direction towards the necessary overhaul to the nation’s general criminal code.

The Indian Penal Code contained no provision related to Terrorism and terrorist activities. As a result, the Indian criminal justice system was lacking the definition of terrorist activities. In absence of a standard definition of Terrorism or terrorist activities, it was difficult to distinguish these terrorist activities from other criminal activities of similar nature. There is no agreed-upon definition of terrorism, despite the fact that declarations, resolutions, and universal “sectoral” treaties have identified some specific requirements and fundamental components. The High Commissioner for Human Rights urges States to follow the model definition created by the Special Rapporteur and the essential components of acts of terrorism listed in Security Council resolution 1566 (2004)², in the absence of an internationally accepted definition of what constitutes an act of terrorism. Generally speaking, terrorism is when someone threatens or actually uses violence against a population or a government, resulting in death, serious injury, or the kidnapping of hostages.

In absence of the any provisions related to Terrorism in the Indian Penal Code various legislations were enacted to determine the offences and punishments related to the Terrorism like Terrorist and Disruptive Activities (Prevention) Act 1987, The Prevention of Terrorism Act, 2002, Unlawful Activities (Prevention) Act, 1967, etc. In order to give social offences like Terrorism a prominent place in the nation’s general criminal code, it is desirable to add a new chapter to the Bharatiya Nyaya Sanhita, that compiles all of the offences found in such special enactments and adds new provisions to them. Since Indian Penal Code has a presiding power over all statutes unless expressly mentioned in that particular mentioned, thus inclusion of the provisions related to Terrorist activities in the primary penal code of Indian criminal system gives sanctity to the anti-terrorism measures.

The inclusion of explicit provisions pertaining to terrorism in the penal code was deemed necessary for several compelling reasons. India, a prominent South-Asian nation, shares borders with neighboring countries marked by unstable governments and military regimes, contributing to an environment susceptible to terrorist activities. The phenomenon of cross-border terrorism has further intensified the need for comprehensive legal measures to address and combat this growing threat. The creation of a delicate balance between citizens’ individual rights and the necessity of anti-terrorism laws was recognised as being of utmost importance. This delicate balance is essential to safeguard the unity and sovereignty of the nation, recognizing the unique challenges posed by terrorism and the imperative to protect the greater welfare of the country.

At present, there are two statutes in effect to combat terrorism, namely, Unlawful Activities (Prevention) Act (UAPA), 1967 and the National Security Act, 1980. Prior to its addition by Parliament in December 2004, the Unlawful Activities (Prevention) Act, 1967 did not have any provisions pertaining to terrorism. It was later amended in 2008.The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Prevention of Terrorism Act, 2002 (POTA), which now stands repealed, were the main laws that addressed terrorist activity before the UAPA was redesigned. Many challenges to the constitutionality of TADA and POTA have been made over the years. The Union’s lack of legislative authority to enact these laws served as the main justification for these challenges. For instance, in Kartar Singh v. State of Punjab³, the legality of TADA was disputed on the grounds that it dealt with “public order,” a subject covered by state law. Nonetheless, the Court upheld the legality of TADA. The Court decided that more serious threats covered by TADA fell under the Union’s purview when it came to national defence, and that issues of a lesser gravity were covered by “public order.”A similar challenge to POTA was made in PUCL v. Union of India⁴, and the Court rejected it for the same reasons.

In contrast, no challenge to the UAPA’s legislative competence has ever been made.However, the amendments made to UAPA through the Unlawful Activities (Prevention) (Amendment) Act, 2019 has been challenged through PIL on the grounds that it violates the fundamental rights of an individual.

The Unlawful Activities (Prevention) Act, 1967 lists the different acts that fall under the definition of terrorism⁵. The Indian Penal Code 1860’s numerous sections are used by the courts to further interpret these particular laws. The 1980 National Security Act, 1980 allows for the preventive detention of an individual when that individual has been detained with the intention of preventing him from interfering with government efforts to combat terrorist and disruptive activities in any disturbed area⁶.

The newly enacted⁷ penal code i.e. BHARATIYA NYAYA SANHITA 2023, provides for the provision for Terrorist Act in the Section 113. This section provides the following provision:

1. “Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,––
2. • by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to causeor likely to cause,—
     • death of, or injury 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 in India or in any foreign country; or

1. damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of another material; or
2. 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 in connection with another purposes of the Government of India, any State Government or any of their agencies; Or

1. overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or Top of Form
2. detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act, commit a terrorist act”⁸.

The first clause of section 113 of the BNS has been extracted, verbatim, from section 15 of the UAPA. The Bhartiya Nyaya Sanhita, 2023 has exactly adopted section 15 of the UAPA, which is the main piece of legislation pertaining to counter terrorism measures.

• “Whoever commits a terrorist act shall,—
  1. if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine;
  2. in any other case, be punished with imprisonment for a term which shall notbe less than five years but which may extend to imprisonment for life, and shall alsobe liable to fine”⁹.

This provision has been reproduced verbatim from Section 16 of the UAPA, 1967.

• “Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine”¹⁰.

This provision has been reproduced verbatim from Section 18 of the UAPA, 1967.

• “Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine”¹¹.

This provision has been reproduced verbatim from Section 18A of the UAPA, 1967.

• “Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine”¹².

This provision has been reproduced verbatim from Section 20 of the UAPA, 1967.

• “Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine:

Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender”¹³.

This provision has been reproduced verbatim from Section 19 of the UAPA, 1967.

• “Whoever knowingly possesses any property derived or obtained from commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine”¹⁴.

This provision has been reproduced verbatim from Section 21 of the UAPA, 1967.

A proviso labelled “explanation” concludes Section 113 of the BNS, stating that “for the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967”. This clause was added to the BNS to prevent the strict measures outlined in the UAPA’s or the BNS’s anti-terrorism provision from being abused because police have previously booked people for terrorism on multiple occasions when it was just a straightforward case of law and order.These improper applications of anti-terrorism laws will undermine the public confidence in general and grant the government unjustified authority. Bharatiya Nyaya Sanhita has mandated that an officer of rank not lower than that of the Superintendent of Police shall decide on the registration of a case under anti-terrorism provisions in order to prevent the misuse of these provisions.The court in the Hitendra Vishnu Thakur v. State of Maharashtra¹⁵ case has drawn a clear distinction between crime and terrorism. In this case, the Supreme Court of India established guidelines for applying the definition of terrorism.In order to appropriately apply anti-terrorism laws and provisions against any individual, it is necessary to make a clear distinction between the terrorist act and a problem pertaining to common law and order.This clause, however, raises questions about why there should be two pieces of legislation that deal with the same issues and why the state should decide whether to try a convict in UAPA or BNS.

The definition and concept of crime itself vary depending on a number of factors, including the type of government in place, the political and economic structure of the community, and the values, ideals, and customs of that group and society¹⁶. The nature of crime also witnesses spatial-temporal variations. For instance, POTA¹⁷ and TADA¹⁸, provided for strict measures and stringent punishment to curb organized crimes and terrorist activities rampant in the country are no more on the statute book. Both legislations are non-existent. These statutes were replaced by an amendment to the UAPA, 1987 and now with the inclusion of terrorism in the primary penal code, the counter-terrorism measures have found a new dawn in the country thus strengthening the India’s effort against terrorism.

But concerns about the recently added provisions still exist because they were simply copied verbatim from the UAPA into the BNS with little thought given to their interpretation or revision. It appears that the legislature lost out on the chance to create counter terrorism policies from the ground up and address every concern that has been brought up periodically by different cases.

Author: Udit Bhasker, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

1. Gaur,KD, White Collar Crime and its Impact on Society (1976) JBCI, vol 5(4);
2. United Nations, Human Rights, Office of the High Commissioner https://www.ohchr.org/en/terrorism
3. 1994 SCC (3) 569
4. (2004) 9 SCC 580
5. Unlawful Activities (Prevention) Act, 1967, Sec 15
6. National Security Act, 1980, Sec. 14A(1)(i)
7. Enacted on December 25, 2023
8. Bharatiya Nyaya Sanhita, sec. 113 cl. 1, 2023
9. Bharatiya Nyaya Sanhita, sec. 113 cl. 2, 2023
10. Bharatiya Nyaya Sanhita, sec. 113 cl. 3, 2023
11. Bharatiya Nyaya Sanhita, sec. 113 cl. 4, 2023
12. Bharatiya Nyaya Sanhita, sec. 113 cl. 5, 2023
13. Bharatiya Nyaya Sanhita, sec. 113 cl. 6, 2023
14. Bharatiya Nyaya Sanhita, sec. 113 cl. 7, 2023
15. 1994 AIR 2623: 1994 SCC (4) 602
16. KD GAUR, Textbook on INDIAN PENAL CODE, 8^th 2023
17. Prevention of Terrorism Act, 2002
18. Terrorist and Disruptive Activities (Prevention) Act, 1987