[ VOLUME 5 I ISSUE 4 I OCT.– DEC.

2018] E ISSN 2348 –1269, PRINT ISSN 2349-5138

Anti-terrorism legislations incriminal justice system of India – A critical

Dr.P. Ashokkumar
PRINCIPAL, Samajasree Prasant dada Hiray Law college, NASIK.

Received: July 19, 2018 Accepted: October 06, 2018

INTRODUCTION;-
Terrorism is described as the greatest crime against humanity which poses a great threat to
enjoyment of human rights. This has posed a global challenge for both individuals as well as nations the
measures to be adopted to combat such terrorism. The term terrorism comes from French word terrorism
which is based on Latin verb 'Terror' Terrorism is defined in the U.S. by the code of federal Bureau of
investigation as the "unlawful use of force and violence against persons or property to intimidate or coerce a
government the civilian population in furtherance of political or social objectives. In the words of R.
Venkatraman the former president of India at the 21 st annual conference of the Indian Society of
International Law mentioned that the process is not "Just the maintenance of the powers of the state or
'order law order with law'.
There is a growing Consciousness of the international community as to the negative effects of the
terrorism in all forms on full enjoyment of Human Rights, fundamental freedoms. Rule of law and the
democratic freedoms, enshrined in U.N. charter and the international instruments. The main question to be
considered in this respect is firstly whether the existing laws are sufficient to combat such terrorism, or is
there a need to enact such new legislation? Secondly the Indian Constitution guarantees fundamental rights
to its citizens in chapter III. Does the laws enacted for the purpose of combating terrorism and organized
crimes violates the Human rights and fundamental freedoms of the people under Article 14, 15, 19 and 21
The Constitutionality of such legislations are of ten subject to challenge on various grounds
including inter alia the violation of fundamental rights and legislative competence. In kartar Singh V/s State
of Punjab 2 it was observed that combating terrorism are so powerful that they prevent the judges to fol low
the rules of natural Justice.
In peoples union for civil liberties v/s union of India the supreme Court up held the constitutional
validity of various provisions of POTA. The Court said that the parliament possesses power under Art. 248
and entry 97 of list I of 7th schedule of the constitution to legislate the Act. Need for the Act is a matter of
policy and the court can not go in to the same. Though the centre has passed as many as drastic legislations
like MISA, NSA, UAPA, TADA, POTA, MCOCA, NIA there was a massive misuse of the provisions of these Acts
and gross violation of human rights. Finally some of these acts were repealed and some of the acts were
amended. It is wrong to think that merely by enacting these draconian laws could project the satiety unity
and Integrity of the nation and liberty of the individuals. There should be proper and effective
implementation of these laws to deal with terrorism and organized crimes. We find that on one hand human
rights jurisprudence is expanding while on the other hand it totally obstructed.
In India the first enactment of preventive detention during the British Period was the Anarchical
and revolutionary crime Act. 1919 popularly known as Rowlatt Act. Before this act Bengal State prisoner
Regulation Act.III of 1818 and similar enactments were passed in Madras and Bombay. After this the
defemce of India Act. 1939 authorized the Government to detain the persons. Later one after another
preventive defontion laws came in to force. Firstly in 1950 the preventive detention Act. was passed
followed with so many other Acts. like maintenance of Internal security Act. (MISA) 1971. Consecration of
foreign exchange and preventions of smuggling acuities Act. 1974 (COFEPOSA). National security Act (NSA)
1989. Terrorist and disruptive Activities Act 1985. Maharashtra Control of organized crime act. 1999
(MCOCA). Prevention of terrorism Act 2002, unlawful activities prevention amendment Act. 2004 & 2008.
National Investigation Agency Act. 2008 (5).
The object of preventive detention is to prevent the accused person from doing something which
comes in entry of list 1 and Entry 3 List III.(6) At the time of framing of the constitution there was a lot of
discussion on the Article 22 of the constitution some members like G. DurgabaiDeshmukh, P.K. Sen, Member
from Orissa supported the necessity to pass preventive detention laws some other member mahavirTyagi
had opposed the law of preventive detention on the ground that "life liberty and pursuit of happiness are
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the three fundamental rights. Dr. B.R. Ambedkar supported the preventive detention laws totally by
overruling the objections of the other members . The law commission of India in its 173 rd report is of the
opinion that a legislation to fight terrorism is today a necessity in India.(9)
In democratic country like India the concept of Rule of Law is the basic feature of the constitution of
India. The individual dignity unity and integrity of the nation are the core values of the constitution.
Undoubtedly the national security is of paramount importance with out protecting the safety and security of
the nation individual rights can not be protected. The worth of the nation is the worth of the individuals .
There is a need to balance these two aspects. Any law for combating terrorism and organized crimes should
be consistent with the provisions of the constitution and relevant international instruments. The war
against terrorism and organized crimes must be won under the rule of law.
The existing criminal Justice system and legal frame work were found to be rather inadequate to
curb or control the menace of terrorism. The present Criminal Justice system was designed to deal with
individual crimes only but not to deal with terrorism and organized crimes. The existing laws (i.e.)
substantive as well as procedural laws for ex. Cr.P.C., I.P.C. and evidence Act should be suitably amended
from time to time for effective implementation of these drastic legislations. These extraordinary laws like
NSA, UAPA, NIA and MCOCA should be consistent with Art. 14, 19(1) and 21 of the constitution and due
adherence to basic principles of Criminal Law.
It is necessary to fight the menance of terrorism and organized crimes with in the parameters set by
the constitutions of India. The harsher for the law, the greater is the threat to life liberty and human dignity.
Under sec 18, 15, 32 of MCOCA, TADA, POTA a confession made by an accused person before a police officer
not below the rank of superintendent shall be admissible. Though it was great departure from Sec. 26, 27 of
evidence Act. this provision will help the Police authorities for conducting their investigation more easily
and effectively in these drastic legislations. To curb the activities of mafia, organized crimes, crime syndicate
or gangs the existing criminal justice system was unable to deal so that the special laws were enacted by the
state and central Government with some additional powers. After the attacks of terrorists in Mumbai and
the other parts of the country two more anti-terror legislations, unlawful activities prevention amendment
Act. 2008 (UAPA) and National investigation agency Act 2008 were came in to force from 18 th Dec. 2008.
CONCLUSION;-
Now the question is Whether the country require these extra ordinary laws or not? The considered
opinion is it needs. The special and preventive detention laws are like life saving drugs to be administered
only when ever other medicines fail in our medical kit lies when we have so m any ordinary laws to combat
terrorism we use these extraordinary laws in exceptional and particular purpose. Just like the Doctor using
the life saving drug in proper time and place the state should use these Anti-Terrorism legislations in the
same manner. Otherwise it may result misuse abuse and violation of human rights.
Infact all laws aregood and suitable to people.The real def cy was in their implementation but not
on their content. Simply passing the new laws are no use. The NHRC, Amnesty International are of the
opinion that the existing laws are sufficient to deal with terrorism and organized crimes. Even if the State
passes the new laws like NIA, UAPA, 2008 it looks like a "new wine in the old bottle" but nothing more than
else. The main hurdle for proper implementation is the political interference, corruption of enforcement
officials, lack of Police force and accountability. The real need for proper enforcement of the existing laws is
to strengthen the police force and working system of criminal Justice system. Last but not least the
"prevention of terrorism and organized crimes are not by law alone". There should be some active support
and mutual co-operation of the public, mass media, N.G.O's, legal professionals and the courts for successful
implementation of these drastic laws. In this aspect they should act as a watch dog against the misuse of
these laws. All State agencies should co-operate with each other and accountable to their work. The sanity is
needed rather than insensitivity in discharging their duties effectively. The main purpose, object, and need
for enactment of these drastic laws will be achieved only whenever the laws are properly and effectively
implemented by the three agencies of the State.
FOOTNOTES AND REFERENCES
1. Malimath Committee Report on Criminal Justice Reform March 2003. Government of India Page 216-217.
2. AIR 1994 3 SCC 569
3. AIR 2004 SCC 580
4. Peoples union for civil liberties V/s UOI 1997 SC 1203
5. Unlawful Activities prevention Amendment Act 2008 and National Investigation Agency Act 2008 came in
force on 18 th Dec. 2008
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6. 1996 Cri.LJ 17S18
7. Constitutional Assembly debate vol. IX at 1543
8. G.B. Reddy Indian legal regime related to prevention of terrorism. New Delhi at 246-248
9. Law Commission 173 rd Report
10. K.D. Gaur- Criminal Law & Criminology (2003) page no 75
11. Criminology – N.V. Paranjape page no 93
12. Criminology and Criminal Administration – Dr. S.S. Srivasthava page no 62
13. Indian Police Role and Challengs -1994-Mathur K.M. Page no 135
14. Criminology- Ahmed Siddique page no 75
15. Human Rights- V.R. KrishaIyer page no 83
16. Fundamental Rights as Human Rights – Justice Hosbet Suresh page no 69

 ARTICLES :-

1. Battle against terrorism needs a stringent laws ArunJaiteley – Hindu March 19, 2002.
2. Combating terrorism not by law alone – Dr. janak Raj Jai Advocate SC
3. Anti-Terror laws tool of a State Terror – RohiniPrajapati Advocate
4. Terrorism in India – Satyapal Competition refresher – April 2002 Page-32
5. Anti Terror laws are often misused – Supreme Court March 25 Page 2002
6. Organized Crime in India – M.N. Singh Mumbai 2001
7. India Step against Terror. Lawz December 2010

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