The legal and institutional framework that independent India Inherited from the British to govern criminal law, criminal procedure, and policing largely remains in place today. Police matters are governed primarily by the Police Act of 1861. Continuing a pattern established by the British, India’s antiterrorism and other security laws have periodically been enacted, repealed, and re-enacted in the years since independence.
Soon after its adoption, the constitution of India was amended in 1951. At the time, several progressive judgements by the judiciary held that laws that curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme cases. The first amendment countered this by amending Article 19 to add the word ‘reasonable’ before restrictions and to add ‘public order’ as being one more ground for abridging fundamental rights.
The evolution of Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of this gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association.
Unlawful Activities (Prevention) Act, 1967
- This law was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations, and for matters connected with it.
- It empowered appropriate authorities to declare any association as ‘unlawful’ if it is carrying out ‘unlawful activities’. This law was comprehensively amended to deal with terrorist activities.
- It was amended in the years 2004, 2008, 2013, and 2019 to add certain provisions relating to various facets of terrorism.
- Both Indian and foreign nationals can be charged.
- It is applicable even if the offence is committed outside India.
- A charge sheet can be filed in maximum 180 days after the arrests.
- The investigation has to be completed within 90 days and if not, the accused is eligible for default bail.
- A Special Court under the UAPA conducts trials.
UAPA (Amendment), 2019
- Union government may designate an individual or an organisation as a terrorist organisation if it:
- commits or participates in acts of terrorism,
- prepares for terrorism,
- promotes terrorism, or
- is otherwise involved in terrorism.
- The investigation by the National Investigation Agency (NIA): Under the provisions of the Act, investigation of cases can be conducted by officers of the rank of DSP or ACP or above.
- It additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
- Approval of Director- General for seizure of property if the investigation is conducted by an officer of the National Investigation Agency (NIA)
- Insertion to the schedule of treaties:
- The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.
- The Schedule lists nine treaties, comprising of the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).
- Amendment adds another treaty to this list namely, the International Convention for Suppression of Acts of Nuclear Terrorism (2005).
National Security Act, 1980
- The National Security Act, 1980 is India’s preventive detention law.
- Preventive detention is basically the detention of a person without a trial to prevent him/her from committing a crime.
- It empowers the Union Government or the State Governments to detain a person to prevent him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
- It had been introduced by the Indira Gandhi government through the ordinance route. The NSA is a preventive detention law which means it is used by the authorities to detain a person so that he/she may be prevented from committing a crime and/or escape future prosecution.
National Security Act Provisions
- The Act empowers the central and state governments to detain a person as a preventive measure for reasons of security of the state and/or public order.
- The person can be detained so as to prevent him/her from acting in any manner prejudicial to national security. The person needn’t be charged during the period of detention.
- The government can also keep a person in preventive detention to prevent him from disrupting public order or for the maintenance of supplies and services essential to the community.
- The detainee can be kept for up to a period of 12 months. The period of detention can be extended if the authorities find adequate evidence.
- The detainee need not be informed of the reason for his/her detention for up to five days and in exceptional circumstances, for up to ten days also.
- No suit or legal action shall be filed against the central or state government for anything done in good faith done in pursuance of the NSA.
Terrorist and Disruptive Activities (Prevention) Act or TADA, 1985 and 1987
- The Terrorist and Disruptive Activities (Prevention) Act, 1985, was enacted in the background of escalation of terrorist activities in some parts of the country. The life of the said Act was restricted to a period of two years. However, it was again enacted in 1987 since terrorist activities could not be controlled in 2 years.
- The constitutional validity of TADA , 1987 was challenged before the Supreme Court in Kartar Singh vs State of Punjab 1994. The Supreme Court upheld the law but asked the Government to provide certain safeguards with a view to prevent any possible misuse of the stringent provisions of TADA. However, after a series of complaints about its abuse, TADA, 1987, was allowed to lapse in 1995.
The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)
- It was enforced on 24th April 1999.
- This law was specifically made to deal with rising organized crime in Maharashtra and especially in Mumbai due to the underworld.
- For instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA. MCOCA mentions organized crime and what is more, includes `promotion of insurgency’ as a terrorist act.
- Under the Maharashtra law a person is presumed guilty unless he is able to prove his innocence.
- MCOCA does not stipulate prosecution of police officers found guilty of its misuse.
Prevention of Terrorism Act, 2002 (POTA)
- Since the lapse of TADA, the country witnessed several terrorist incidents-including hijacking of the Indian Airlines flight IC-814 to Kandahar in 1999 and the assault on Parliament on December, 2001. As a consequence, the Prevention of Terrorism Act, 2002 came into force.
- However, it was controversial on various aspects and was challenged in supreme court in the People’s Union for Civil Liberties vs Union of India, on the ground that it violated basic human rights. The Supreme Court upheld the Constitutional validity of the law while stipulating some restrictions on the arbitrary use of certain powers.
- POTA was envisaged as useful in stemming “state-sponsored cross-border terrorism”. The act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (1985-95).
- The act provided the legal framework to strengthen administrative rights to fight terrorism within the country of India and was to be applied against any person. The act defined what a terrorist act and a terrorist is and grants special powers to the investigating authorities described under the act.
- To ensure certain powers were not misused and human rights violations would not take place, specific safeguards were built into the act.
- Under the law detention of a suspect for up to 180 days without the filing of charges in court was permitted. It also allowed law enforcement agencies to withhold the identities of witnesses and treat a confession made to the police as an admission of guilt.
- Under regular Indian law, a person can deny such confessions in court, but not under POTA. Once the Act became law there surfaced many reports of the law being grossly abused. Claims emerged that POTA legislation contributed to corruption within the Indian police and judicial system.
- Human rights and civil liberty groups fought against it. The use of the Act became one of the issues during the 2004 election. The United Progressive Alliance government of India committed to repealing the act as part of their campaigning and finally it was repealed in 2004 after UPA came in Power and its features were incorporated in UAPA.
Changes After 26/11
Despite the frequency of terror attacks that had struck India in the years leading up to 26 November, 2008, the 26/11 Mumbai attacks marked a watershed moment in how the country witnessed and responded to terrorist attacks.
India emerged more resolute and less accepting of incidents of senseless violence that had one aim: to strike fear. Here is look at the changes that took place after 26/11. The terror preparedness of India has improved with following steps.
National Investigating Agency Act, 2008
- National Investigating Agency (NIA) was created after the 2008 Mumbai terror attacks as need for a central agency to combat terrorism was realised.
- The National Investigation Agency aims to be a thoroughly professional investigative agency matching the best international standards.
- The NIA aims to set the standards of excellence in counter terrorism and other national security related investigations at the national level by developing into a highly trained, partnership oriented workforce.
- NIA aims at creating deterrence for existing and potential terrorist groups/individuals. It aims to develop a storehouse of all terrorist related information.
National Intelligence Grid (NATGRID)
- NATGRID is an ambitious counterterrorism mechanism, which will utilise technologies like Big Data and analytics to study and analyse the huge amounts of data from various intelligence and enforcement agencies to help track suspected terrorists and prevent terrorist attacks.
- A post 26/11 Mumbai attack measure, NATGRID aims to mitigate a vital deficiency — lack of real time information, which was considered to be one of the major hurdles in detecting US terror suspect David Fleadley’s movement across the country during his multiple visits between 2006 and 2009.
- It is a counter terrorism measure that collects and collates a host of information from government databases including tax and bank account details, credit/debit card transactions, visa and immigration records and itineraries of rail and air travel. It also has access to the Crime and Criminal Tracking Network and Systems, a database that links crime information, including First Information Reports, across 14,000 police stations in India.
- This combined data will be made available to 11 central agencies, which are: Research and Analysis Wing (R&AW), Intelligence Bureau (IB), National Investigation Agency (NIA), Central Bureau of Investigation (CBI), Narcotics Control Bureau (NCB), Financial Intelligence Unit (FIU), Enforcement Directorate (ED), Central Board of Direct Taxes (CBDT), Central Board of Indirect Taxes and Customs (CBIC), Directorate of Revenue Intelligence (DRI) and Directorate General of GST Intelligence.
- According to the Union Home Ministry proposal, the NATGRID, which is still in a nascent stage, will connect, in different phases, data providing organisations and users besides developing a legal structure through which information can be accessed by the law enforcement agencies.
Four New National Security Guard Hubs
- The National Security Guard (NSG) was set up in 1984 as a Federal Contingency Deployment Force to tackle all facets of terrorism in the country. As a specialized counter terrorism force, it is intended for use “only in exceptional situations”.
- The Government has established four Regional Flubs of National Security Guard (NSG) at Chennai in Tamil Nadu, Hyderabad in Andhra Pradesh/Telangana, Kolkata in West Bengal, Mumbai in Maharashtra and Gandhinagar in Gujarat.
Counter-Insurgency and Anti-Terrorism Schools
- It has been decided to set up 20 counter Insurgency and Anti terrorist Schools (ClATs) in the states of Assam, Bihar, Chhattisgarh, Jharkhand, Orissa, Manipur, Nagaland, West Bengal and Tripura. Out of these, 13 Schools have already been set up and are functional. Police personnel will be trained for combating terrorism/ naxalism.
Amendments to Unlawful Activities (Prevention) Act (UAPA)
- The UAPA act was amended in 2008 and 2012 to deal with terrorist crimes. Its scope was expanded to tackle terror financing and to make it more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force (an intergovernmental organization to combat money laundering and terrorism financing).
- It also expanded the definition of terrorism .It enlarged the scope of punishment for raising funds. It inserted new sections to include offences by companies, societies or trusts.
Multi Agency Centre: Galvanised and Reorganised
- The Multi Agency Centre (MAC) was revamped in 2009, after the 26/11 attack, to streamline intelligence gathering and sharing. MAC, which functions under the Intelligence Bureau, is the nodal body at the Centre for sharing intelligence inputs.
- All agencies are expected to share information with MAC. The intelligence thus gathered by MAC is then shared with the agencies concerned in states.
Stronger Coastal and Maritime Security
- After the 26/11 attacks in Mumbai in 2008, several measures were announced by the government to strengthen coastal and maritime security along the entire coast. Due to the coordinated efforts of all concerned, all these measures are now in place and overall maritime security is much stronger than before.
- The Indian Navy has been the lead agency in this regard and is assisted in this task by the Indian Coast Guard, Marine Police and other Central and state agencies. At the apex level the National Committee for Strengthening Maritime and Coastal Security (NCSMCS), headed by the Cabinet Secretary, coordinates all matters related to Maritime and Coastal Security. Coastal patrolling by Navy, Coast Guard and marine police has increased sharply over the last few years.
- Modern technical measures have also been implemented for coastal surveillance, by way of a chain of 74 Automatic Identification System (AIS) receivers, for gapless cover along the entire coast.
National Police Mission
- NPM is working to transform the Police Forces in the country into effective instrument for maintenance of Internal Security and meeting challenges of the next century, by equipping them with the necessary material, intellectual and organisational resources and to create a “New Vision” for the police.
- Since its inception, NPM has been working for empowering the Police Forces by enhancing the skills and competence at grassroot level, promoting a culture of excellence and accountability of police, meeting challenges such as asymmetric warfare, new trends in urban and social unrest, bring out specialisation in areas like counter-terrorism and insurgency, focussing on the strengthening of metropolitan and rural policing, bring in attitudinal changes in police, gender sensitisation, harnessing technology in aid of policing, adopting community policing etc .
Better Equipment for Security Forces
- Following 26/11, coastal security was also reviewed at various levels. Under the Coastal Security Scheme (Phase-ll), coastal States/UTs are being provided with 131 CPS, 60 jetties, 10 Marine Operational Centres, 150 boats, 75 special category of boats, 131 four wheelers and 242 motorcycles.
ATS Team to Deradicalise Youth
- Anti-terrorism squads have been formed in several states which act as a special police force with dedicated focus at stopping terrorist attacks. Recently, Maharashtra ATS deradicalised 114 youth from joining ISIS.