Counterinsurgency and the law in India

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This article is written  by Raghav Nagar,  a student of Campus Law Student, Delhi University.

INTRODUCTION

In this age of conflicting development, terrorism has emerged as the main tool of disruptive power in the hands of zealots, fanatics and also the people who have been trampled upon for what the governments of different states and in turn the society deem to be “The greater good”. The word terrorism comes from the French word terrorisme, the Jacobins used this term when they imposed a reign of terror during the French revolution, and after they lost power, the word came to denote an act of violence or causing bloodshed. Over the years, states encountering this problem and international organisations at many instances have come together to fight this problem, but there has been no resolute solution propounded to tackle it. As the years, terrorism has evolved into different forms over the years and one such form is insurgency. It means insurrection against an existing government, usually one’s own, by a group not recognized as having the status of a belligerent. But more often than not instances have shown that insurgents more likely belong to a different state i.e. an enemy state, for example in the South East Asian region problems of insurgency have grown manifold in the past decade, especially in India . To tackle this adverse problem and to safeguard its citizens, “counter-terrorism” has been adopted as a tool. Counter-terrorism is a mix of public and foreign policies designed to limit and eliminate the actions of terrorist groups and their support network – both men and material – in an attempt to protect the general public from terrorist violence. Such policies are usually in the form of laws, thus to understand the concept of counter-terrorism it is essential to holistically analyse the ambit and purpose of these laws.

COUNTERINSURGENCY IN INDIA

Since security is perceived as “an integral component of its [India’s] development process,” it has become part of the very “essence of India’s being.” The main sources of insecurity to India are terrorism, organised crime, violence based on communal and caste divides, criminalisation of politics, inequality, etc. Of these, terrorism figures prominently. In fact, India is one of the worst affected countries by terrorism. In the recent period, India has witnessed more terrorist incidents than any other country in the world.[1]The focal points of India’s anti terror initiative have been militancy in Jammu and Kashmir, insurgency in the northeast of the country, and left-wing extremism in east and central India. Most of the insurgency activity has been directed from the neighbouring states have made it indispensable to make a comprehensive anti terror law

To this effect the government has drafted special anti-terror laws which have been implemented over the years. The basic argument placed during the enactment of such special laws is that the existing criminal laws are incapable of meeting emerging threats, that the conventional criminal laws approaches crimes as “as an individual infraction violating individual rights” missing out “movements that collectively subvert and disrupt the structures of governance and enforcement themselves.”[2] Such views reverberated with that of the international community wherein in the aftermath of the 9/11 terrorist attacks, arguments on terror laws got bolstered by the anti-terrorism initiatives of developed countries like the United States and the United Kingdom and stipulations from the United Nations Security Council (UNSC). In response to terrorism and other threats to security, many special laws have been enacted/repealed in India from time to time since independence.

COUNTERINSURGENCY LAWS IN INDIA

The National Security Act, 1980 This legislation was one of the starting point for development of the Anti-terror legal framework, propounding the basic restrictions for disruptive and debilitative elements. It empowered 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, or with respect to any foreigner with a view to regulating his continued presence in India. Such preventive detention can also be made with a view to preventing a person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

The Unlawful Activities (Prevention) Act, 1967 this law was enacted to provide a more effective prevention of certain unlawful activities. It empowered the authorities to declare any activity or association as unlawful, if it was averse to the interest of an individual or society at large. This law was comprehensively amended by the Unlawful Activities (Prevention) Amendment Act, 2004 in order to capacitate it to deal with terrorist activities. This amendment contains most of the substantive provisions from the Prevention of Terrorist Activities act,2002.It does not define a terrorist but , it defines a ‘terrorist act’ and also defines a “terrorist organisation” as an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed in the act. It further provided that the special courts so established under POTA to try such cases should be done away with and should be tried under the general criminal courts .

The main objective of this act was to amend the extreme provisions of  POTA which were eclipsing the basic rights of the people act that is why this act was implemented. Thus specific safeguards were built into in,namely:

1. For taking cognizance of any offence under this Act prior sanction of the Central or the State government, as the case may be, is necessary. Within the Criminal Procedure Code, 1973, it is made applicable in matters of arrest, bail, confessions and burden of proof. Those arrested are to be brought before a magistrate within 24 hours.
2. No officer lower lower in rank than the deputy superintendent of police can investigate offences under this act .
3. Confessions made by a person before to a police officer were made inadmissible except in certain exceptional cases.
4. The courts power to try the defendant in absentia was also done away with.

Armed Forces (Special Powers) Act, 1958 was passed on 11 September 1958 to confer certain special powers to the members of the armed forces in disturbed areas in the states of Assam and Manipur, and after an amendment in 1972, it was extended to the whole north-eastern region. Under the Act, armed forces personnel were given broad powers. The same Act was invoked in the state of Jammu and Kashmir in 1990 under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The main objective of this act was to reign in the increasing insurgent activities across the national borders. According to the Armed Forces Special Powers Act (AFSPA), in an area that has been designated as “disturbed”, an officer of the armed forces has been given powers to:

1. Use any kinds of force deemed necessary even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order, after giving him prior warning to surrender.
2. Destroy, hide-outs prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
3. To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having committed one and may use force if need be for the arrest.
4. To enter and search any premise in order to make such arrests, or to recover any arms, ammunition or explosive substances and seize it from such premises.
5. Any person arrested and taken into custody under this Act shall be handed over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances leading to that persons arrest.
6. Have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.

COUNTERINSURGENCY LAWS IN INDIA: AN ANALYSIS

The provisions of the said counterinsurgency laws have proved to be more of a bane than a boon as it has been seen that such plenary powers given in the hands of the authorities have not been judiciously exercised since such powers have a very wide scope which has led to an overarching effect on the rights of the people as can be seen in the POTA act .Firstly, POTA favourites  pre-trial imprisonment till 180 days, 30 days police custody and there’s denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis) has also been corporate (Sections 43A to 43F).  Secondly, the definition of ‘terrorist act’ includes not just radioactive and nuclear material, but anything that may threaten India or overawe or kidnap constitutional and other functionaries listed by the government (Section 53), In the mehndi masroor biswas case it could be seen the awful derogation suffers if there is even a spec of anything relating one to a terrorist activity. In this case the supreme court adjudged that the powers of the investigating authorities are too wide to ensure the basic rights of the citizens and especially the minorities.

Whereas under the AFSPA there have been grave violations of the law by the army, which has led to a series of debate to discuss the absolute powers given to the army. In Manorama Vs AFSPA [3], Thangjam Manorama was allegedly killed in 2004 by Assam Rifles, the Government of India was directed to award compensation to Manorama’s mother. But the serious concern was that in spite of such direction, the court could not spell any judgment against the culprits. There have been many instances in the Maoist affected states that where the innocent tribals have been castigated due to the abhorrent activities of the fringe elements, use as most of the times the security forces use the villagers as tools for apprehending such elements.

The enactment of powerful, nation-wide anti terrorism laws without sufficient safeguards to constrain their misuse and ensure national uniformity in their application  has led to human rights abuses and disparate patterns of enforcement throughout the country. Such laws have also been misused for political purposes. In the Vaiko case, a leader of a political outfit was apprehended based on his opinion of support to the LTTE, ironically his party had supported the bill in the parliament which legislated UAPA. This shows that the laws can be subverted for unlawful means and purposes

CONCLUSION

We can see a constant trend of violations, of the rights of the people in all parts of India which indicates that such laws since their inception were made to give absolute authority to the state under the garb of protecting its security interests and in that process to limit the rights of the people and most of the time to use it as a political tool or to carry out illegal activities which the government itself cannot authorise. Thus absolute powers corrupts absolutely.

[1]In 2004, 45 percent of the total terrorist incidents took place in India.

[2] Gill, n. 12

[3] Special Leave Petition 14726-14730 0F 2011 [UNION OF INDIA &ANR Vs.  STATE OF MANIPUR & ANR.

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