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ANTI-TERRORISM LAWS IN INDIA: A JURISPRUDENTIAL ANALYSIS

Submitted by- Devang Gaur


(SM0117016)
Faculty-in-charge- Mr. Saheb Choudhary

Abstract:-

Terrorism since last few decades has proved to be one of the biggest challenges being faced by
the responsible authorities all around the globe. It has caused an uncountable no. of lives for the
achievement of certain political goals by distinguished groups of people. Since time immemorial
state, in order to protect its subjects and to maintain peace and stability in its territories, has
been enacting legislations to counter the terroristic activities. These legislations at several points
of time bring several provisions that raise debate over limitations of a state while performing
counter terrorist operations. It has been highly debated as to what is the extent till which a state
may exercise its powers in such situations and in furtherance what is the scale at which one may
measure the justifiability of any legislation and to be even more concrete, for a supposedly unjust
law, what assures the fidelity of the people towards that law. Thus, this paper attempts to
examine certain anti-terrorism laws of India with a jurisprudential insight presenting a
systemized analysis of such laws through the ideas propounded by Lon. L. Fuller and H.L.A.
Hart majorly.
1. INTRODUCTION

The anti-terrorism laws existent across India and even the world contains many debatable
provisions. These legislations present an idea of an extraordinary situation and put in place the
exceptions to ordinary legal and judicial proceedings. There have been accounts which clarifies
that these legislations are misused miserably and in many of the cases what has been termed as
necessity becomes a political tool for strengthening control over the non-obedient subjects.
“Prevention of Terrorism Act, (POTA)”, “Terrorists and Disruptive Activities (Prevention) Act,
(TADA)” and “Armed Forces (Special Powers) Act, (AFSPA)” etc. are some of the most
debated and controversial anti-terrorism legislations in India. It has been argued that these
extraordinary laws serves ramifications to people‟s lives, violates the basic rights of individuals,
harms the democratic setup of the country and under political misguidance, the executors
themselves creates similar and even worse situations sometimes to which they were retaliating
against. Critics that argues against these legislations suggests that these laws though being meant
for extraordinary situations, assumes „normalcy‟ and hence acquires a permanent place in state
practices, which eventually becomes a means of oppression as these laws already manifest within
them dominant configurations of political power and ideology.1

However, there is a long list of demerits in case of anti-terrorism laws there are certain
necessities that have been used as the justification for such kind of laws. When in a democratic
setup people starts rejecting the authority of the state machinery resulting in actions that are not
considered constitutionally acceptable, it becomes inevitable on the side of the state to call upon
the armed forces. For social order and stability to sustain it is mandatory for people to abide with
the usual laws of state. In cases of disagreement regarding any issue usage of constitutional
means to put forward those disagreements is necessary or else a possibility of resolution of
dispute through constitutional means will be non-feasible.

The incapability of such laws in restoration of order, stability and peace has been the most
prominent reason as to why people argue that, these laws shall be abrogated. Usage of armed
forces for implementation of the laws has been defended by Lt. Gen. (retd.) Raj Kadyan, a
1
Ujjwal Kumar Singh, The State Democracy and Anti-Terror Laws in India (Sage Publications, New Delhi 2007)
former vice-chief of army staff, while discussing AFSPA, in a facetious but still reasonable way
where he points out that in a democracy, “solving an insurgency” is not the task of the army.
What and army can do and has done in the Indian context, he said, is “to keep the insurgency
down to a level where the civil administration can carry out its functions. And “for that to be
achieved AFSPA is essential”.2

This debate is quite unending as it cannot conclude whether anti-terrorism laws in India are
effective or not. Consequentialist perspective however is highly relevant in order to understand
the reasonableness of actions but it seems incapable to provide an answer on the very question of
legitimacy of the actions. Therefore a jurisprudential insight into the topic and discussion upon
the “elements of law and morality” involved in counter-terrorist action taken by state shall be
examined.

2
Sudha Ramchandran, ‘India’s Controversial Armed Forces (Special Powers) Act’ The Diplomat (2 July 2015)
https://thediplomat.com/2015/07/indias-controversial-armed-forces-special-powers-act/
2. OVERVIEW OF ANTI-TERRORISM LAWS IN INDIA

India has different provisions and legislations to counter terroristic upheavals. In a very basic
sense there are provisions in IPC for offences like waging war against the Indian government 3
and sedition4. Terrorism cases are much more complex in nature and have an undeniably high
amount of gravity than the simple provisions of the IPC so the state has enacted several different
central and state legislations to punish and prevent terroristic activities.

After the assassination of Indira Gandhi in 1984 the government brought up „Terrorist and
Disruptive Activities Prevention Act, 1985 [TADA]‟. The act was enacted for only 10 years,
after which it lapsed, to prevent possible disturbances that were supposed to arouse then and
there. The act had a very controversial storyline and was booked with several allegations of
misuse.

Again after the aftermath of attacks on Parliament in 2001, Prevention of Terrorism Act, 2002
[POTA] was enacted by the state. Just like TADA, POTA also faced severe criticism and even a
lot of allegations of fundamental human rights violation were faced by POTA which eventually
became one of the reasons for repealing the act.5 The act broadly defined the term “terrorist act”
which even included political dissent, allowed prolonged pre-trial detentions and reciprocated the
principal of „innocence of the accused‟. And thus the law was repealed in 2004.6 What is more
interesting to note about POTA is that despite of being repealed the investigations and
proceedings being administered under the provisions of the act were not affected. 7 Interference
of any courts in cases involving charges under POTA was not permitted and therefore a fairly big

3
Indian Penal Code 1860 (‘IPC’), section 121 (punishable with death or life imprisonment, along with fine).
4
IPC, section 124A (punishable with imprisonment for maximum three years or with fine or with both).
5
Prevention of Terrorism (Repeal) Act, 2004 (‘POTA Repeal Act’), Statement of Objects and Reasons,
6
Editorial, ‘Rethink the new UAPA’ The Hindu (20 December 2012)
https://www.thehindu.com/opinion/editorial/rethink-the-new-uapa/article4218425.ece
7
POTA Repeal Act, section 2(2)
pile of cases is still pending to be resolved. The proceedings of Mulund Blast case, 2003 which
involves charges under POTA began in 2014 only.8

The only major anti-terrorism legislation in force currently is the Unlawful Activities
(Prevention) Act, 1967. Purpose for enactment of the act was imposition of reasonable
restrictions on the rights to freedom of speech and expression, peaceful assembly, and formation
of associations or unions in the interest of sovereignty and integrity of India.9 However, UAPA
was initially an act restricting unlawful activities of general nature but it was only through the
amendments, coming after the repealing of POTA, that stringent provisions concerning
terroristic activities were included. Following the Mumbai attacks UAPA was amended in 2008.
The amendment added a definition of terrorist act and also created new terrorist offences.
Following the same track as POTA did, UAPA was incorporated with more strict provisions like
increase in detention time without bail10 and reversing the principle of presumption of innocence
of accused if certain conditions are met.11

It was argued that acts that threaten security, unity, integrity and sovereignty of country need not
to take place inside the territory of the country always. Planning and funding of the acts may
occur outside the territory. And thus under UAPA a person can also be deemed liable for
offences committed outside the territory of India.12 Section 1(5) of the act extends to Indian
citizens outside India; persons in government service, wherever they may be; and persons in
ships and aircrafts registered in India, wherever they may be.

There are certain anti-terrorism legislations that are limited to specific areas for the cause of
maintenance of stability and order in that area. Some specific areas in the country are more prone
to internal disturbances. There are forces in some specific regions that provoke insurgency
against the state machinery for sake of some political motive. As the forces behind such actions
are concerned about a limited area and the rest of the area remains free from risk, the legislations
are also limited to that particular area only. The extremely controversial Armed Forces (Special

8
Mateen Hafeez, ‘11 Years After 3 Blasts Rocked Mumbai, Trial Finally Starts in Case’ The Times of India (9 July
2014) https://timesofindia.indiatimes.com/city/mumbai/11-years-after-3-blasts-rocked-Mumbai-trial-finally-
starts-in-case/articleshow/38093989.cms
9
Unlawful Activities (Prevention) Act, 1967 (‘UAPA’), Statement of Objects and Reasons
10
UAPA, section 43D(2)
11
UAPA, section 43E
12
UAPA, section 1(4)
Powers) Act, 1958 [AFSPA] is one of such kind. The law intends to prevent insurgency in
North-East India13 and confers special powers in the hands of armed forces deployed in areas
declared as „disturbed areas‟. The biggest flaw of AFSPA lies in the fact that it leaves the
discretion upon the reasonability14 of the commanding officer. In a disturbed area dealing with
lots of complicated and dangerous situations, one cannot be expected to be reasonable enough
and hence a great lacuna pertains that fits in itself the mistakes made and the conspiracies
designed. The act is highly criticized on the grounds of unregulated brutality of the armed forces
creating terror and loss for many innocent people but is still in force despite of all the opposition.

13
This includes the “States of Assam, Manipur, Meghalaya, Nagaland and Tripura and the Union Territories of
Arunachal Pradesh and Mizoram” as per section 1(2) of the Act
14
Armed Forces (Special Powers) Act, 1958 (‘AFSPA’) section 4(c)
3. QUESTION OF MORALITY: THE HART AND FULLER DEBATE

We have seen in the previous chapters that each and every anti-terrorism law discussed till now
was subject to controversy. One more important point to be noted is that despite of many of the
laws being revocated at different points of time, the legislation substituting the previous one are
usually containing similar provisions as to the previous ones. Understanding of the previous
chapter raise questions over the validity of law. It must be argued that what makes a law subject
to obligation? What is validity of a law unacceptable to the subject themselves? Does the
repealing of acts at different point of times imply that the legislation enacted were never law?
What ultimately constitutes a law?

In order to examine the nature of the law and its relation to morality researcher attempts to relate
with the infamous “Hart and Fuller debate”. Herbert Lionel Adolphus Hart, 20th century British
Legal Positivist on one hand and Lon Luvois Fuller, contemporary American Natural law
Theorist on the other are known for their revered theories and also because of their contemporary
works substantially rejecting each other‟s ideas resulting into formation of a fairly large premises
of discussions on relationship between law and morality. To provide a jurisprudential dimension
to the research work certain theories of Hart as well as Fuller have been discussed hereafter.
Their debate on “separability of law and morality” is the base which can validate or invalidate
existence of any such law. We will try to interpret through the discussion, the best feasible option
in order to determine the validity of laws in the concluding part.

HART:-

Hart criticized the idea that law is a command and people obey it because they fear that if they
don‟t, sanctions are going to be imposed against them. He argued that the command theory
lacked an important quality of law which he called “the reflective acceptance of law as binding
by the people to whom it has been directed”15. What is the difference between a robber who
points a gun at point blank range and demands money and the Austinian sovereign? Both of them

15 SURI RATNA PALA, JURISPRUDENCE 48 ( CAMBRIDGE UNIVERSITY PRESS 2009)


command people to do something, the disobedience of which entails sanctions16, but that does
not necessarily mean that people feel obliged to follow the robber although there is a sense of
obligation towards the sovereign. Thus the difference between the command given by the robber
and that given by the sovereign lies in the sense of obligation; he calls this character of law as
„normativity of law‟17. The basis of Hart‟s theory lies in his understanding of the nature of
obligation. It is not always the fear of sanctions that make people obey laws. There are a vast
number of rules in every society, which people observe not because fear of sanctions if they
don‟t follow them but because they think that it is right to do so. This sense of obligation comes
from social pressure. Where the social pressure produces sense of guilt or shame but lacks
physical sanctions, they become moral rules which impose moral obligations. But when there is
an element of physical sanction, it becomes a law, however rudimentary it may be. Thus Hart
concluded that the rules which evoke a sense of obligation arise out of the common conscience
that they are necessary to maintain the social order and not out of the fear of sanctions. Hart
argued that every rule had an internal and an external aspect and when we appreciate the sense of
obligation we enable ourselves to perceive it. The external aspect of a rule is the substantive part
while the internal aspect of the rule is the sense of obligation to observe it.

This can be explained with the help of an example. To an external observer the fact that
people in Saudi Arabia are forbidden to consume alcohol is an external aspect of that rule,
while he is making the observation he is not taking into account the internal aspect of this rule
whereby people do not consume alcohol because they willingly feel that alcohol should not be
consumed, i.e, they have a sense of obligation towards this rule although it curtails their
freedom to some extent. But according to some positivists this just the view point of the
external observer is not a factual observation but a non-volitional cognitively internal point of
view.18 Being an empiricist himself Hart believed that the nature of a rule is only party
revealed by the observation of its external effects.19 Thus, in order to understand a rule we
must take into consideration both the external and the internal aspects of it.

16 Death in case of the Robber and Punishment in case of the Sovereign.


17 Ratna Pala, supra note 4,
18 PETER CANE , THE HART-FULLER DEBATE IN THE TWENTY-FIRST CENTURY 288 (HART
PUBLISHING 2010)
19 Ratna Pala, supra note 4,
Hart laid emphasis on this internal aspect of a rule and propounded the idea of primary and
secondary rules of obligation. According to him, some rules which are ubiquitous in nature
such as those against theft, rape, murder, violence arise spontaneously in most societies and
pre-date the courts ,legislations and parliaments, these are the primary rules of obligation and
are “considered by members to be binding and enforced by social sanctions.” Primitive
societies which were bonded by shared beliefs and kinship may sustain themselves by these
rules only, but when the societies get enlarged , complexities come in, they in order to
maintain peace the requirement for some other kind of rules are felt, these are the secondary
rules of obligation. These rules resolve the disputes that are inherent in primary societies due
to the lack of means to resolve disputes and other defects.20 Courts, legislatures and
parliaments are established by the virtue of these rules. Hart also says that there is a hierarchy
amongst these secondary rules. The highest ranking secondary rules are called the rules of
recognition.21 The rules of recognition provide the ultimate criterion for verifying the validity
of laws.22 Judges obey the laws enacted by the parliament not because they are obeying the
command of some sovereign but because they are obeying the rules of recognition. Thus
summarizing Hart‟s legal theory it can be said that a developed legal system has to fulfill two
conditions, first, there must me some primary rules which invoke a sense of obligation in the
citizens and which are also recognized by the rules of recognition. Second these rules of
recognition must be accepted by the officials as the standard of official behavior.23

FULLER:-
Fuller‟s contention on the other hand was that the law cannot be separated from morality. His
theory was inspired by the German legal philosopher Gustav Radbruch. His arguments were
related in some ways to the classical natural law ideas, although he cannot be strictly
demarcated as natural law theorist since his theory is far more reaching. Lon Fuller was
critical of the theories advanced by Hart. But they had a striking similarity when it came to the
internal perspective of a legal system. H.L.A Hart understood the connection between his

20 Defects like lack of “authoritative means of resolving doubts”, “stagnancy of rules” , “lack of legislative bodies”.
21 Austinian Sovereign has unlimited powers , but in contrary the queen in the parliament is superior source of law
because the rules of recognition validates that position
22 Ratna Pala, supra note 4,
23 Ratna Pala, supra note 4,
minimum content of natural law and the internal perspective of a legal system, while Lon
Fuller makes this connection more explicit and gives us a better understanding about what
how this internal perspective of law is an indispensable element in determining the maturity of
a legal system. Fuller explains this further by expounding eight desiderata‟s24, the absence of
which leads to the disaster for the Rule of Law, thus rendering the legal system redundant.
These eight desiderata‟s are:-
1) a failure to have rules at all;
2) a failure to publicize the rules;
3) the abuse of retroactive legislation;
4) a failure to make rules understandable;
5) the enactment of contradictory rules;
6) rules that require conduct beyond the powers of the affected party;
7) introducing such frequent changes in the rules that the subject cannot orient his action by
them;
8) a failure of congruence between the rules as announced and their actual administration.25

Fuller call his theory of inner morality of law a „procedural version‟ of natural law and he
distinguished it with substantive version. Fuller‟s contention was that the inner morality of
law, like retroactivity, is a set of procedure that needs to followed for a set of rules to be a
system of rules at all. Moreover, Fuller separated his internal morality of law from external
morality of law, by claiming that the external morality, i.e, the contents of a law should have
certain minimum just elements that would invoke obligation in the hearts of the people. In this
regard he agreed with H.L.A. Hart‟s theory of minimum content of natural law.26 The point
where Fuller makes a sharp departure from legal positivism is by defining law from a
purposive point of view. Fuller is of the view that law cannot be understood without
understanding the purpose it serves23. He gives the example of a child to whom the meaning
of computer cannot be explained without explaining the purpose it serves. This purposive
view of law, leads him to contend that reciprocity is another important aspect of law. In the

24 Desidaratum means something that is needed or wanted.


25 LARRY MAY , INTERNATIONAL CRIMINAL LAW AND INNER MORALITY OF LAW 84, THE HART-
FULLER DEBATE IN THE TWENTY-FIRST CENTURY, HART PUBLISHING , 2010
26 Ratna Pala, supra note 4,
sense that all laws serve a purpose, i.e , they facilitate human coordination and in order to
serve this purpose effectively these laws cannot be conceived at the arbitrary will of the
sovereign but then the law should be conceived as “ the product of an interplay of purposive
orientations between the citizens and the Government.”27 Lon Fuller says that law is an
ongoing enterprise. It is aspirational in the sense that there is an ideal conception of law which
we always strive to achieve but we cannot. He compared this arch-type with the example of a
Rolls Royce Car. According to Fuller, Rolls Royce is considered by most people as the ideal
motor car, while a rusted metal shell with punctured wheels and broken glasses can be
considered as the lowest form of a motor car even though it no longer serves its purpose.
There a multitude of cars between these two extremes, the only difference is that for different
people the glass ceiling is different. The same applies for laws, there are ideal laws which
every legal system wants to achieve and then there are laws which serve no purpose. „So
should they be called laws?‟ is the question that Fuller asks. Fuller ends this argument by
saying that just like a car needs maintenance every legal system needs attention as to the
question what makes law possible.

27 By purpose he does not mean the purpose a particular legislation serves, but the purpose of having law at all
4. CONCLUSION

Hart argued that people follow any law not because it is the command of the sovereign but
because they have a sense of obligation towards the very nature of law. But what if, in a
democratic country where people are the sovereign lose faith in the whole setup and starts
rejecting any kind of authority over them. When people don‟t themselves assume any authority
over them then of course it will give rise to anarchic situation with no sense of obligation. Then
despite of the fact the sovereign rested with the ultimate powers cannot compel any of the subject
to perform certain task without their intent to follow except in the cases of tyrannical
authoritarianism. To be taken as an example we must look into special power of armed forces in
north-east; the law is in force; people obey it despite of protests being administered; people
wants it to be repealed; and it is highly necessary for prevention of insurgencies in the north-east
at the same time. Now if the people of North-East, if some day suppose, comes into armed
conflict with the state then will the commands still be law? Or to be little less grievous, can the
laws by British Govt. during the time of civil disobedience movement be considered law?

For obligations to generate there must be some faith and trust in the authority. In case of
complete vanishing of trust the sense of obligation towards the authority will end thereafter and
hence a complete overturn of the system (revolution) will revive the whole system of law. Here,
Fuller‟s ideas seem to be more appeasing as his suggestion for non-separation of law and
morality throughout the course can preserve the trust perhaps. A moral law however is debatable
with regard to their effectiveness but are a subject of appreciation for a big load of people. The
very general values in our life guide us to be moralistic even when the rest of the world turns
immoral. So in the same way state as the epitome of morality shall abide with morality to the
fullest and implement rules that shall be accepted by the people whole-heartedly. Of course if
legislation will keep itself bound in the ambit of popular morality then the laws will be very
idealistic as well as accepted to the masses. Therefore no doubt upon the fact that element of
morality in the legislation is the thing we should look for to assure the sense of obligation in the
subject. For example the people of Assam are distributed into two sections when it comes to
acceptance towards AFSPA, the first one being those who believe that these armed forces are
brutally dealing with them and are in fact state-sponsored terrorism and other being the sector
who is aware that the armed forces however sometimes does not subscribe to constitutional
values but are also not in a condition to act so.

Therefore definition or purpose of law varies from thinker to thinker, but what a consensus can
be made upon is that laws shall not only be looked upon through their sole nature but shall also
be seen through a dimension where the conditions preceding their creation are to be considered.
Repetition of similar provisions in all anti-terrorism laws can be a justification for the necessities
a legislator has deal with while creating any law. Inefficiency of moral and constitutional ways to
solve an immediate problem is sole reason why state is compelled to use immoral ways for the
sake of peace and stability. Conclusively I would like to say that state shall try to imitate the
moral laws in its general laws for improving their very quality but shall also not abstain from
separating law and morality as no compulsion shall supersede the compulsion to protect human
lives.