Terrorism and the law — II
25 January 2002
Chennai: Even if a crime is perpetrated with extreme brutality, it may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For this, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in Section 3(1). It is the impact of the crime and its fallout on society and the potentiality of such crime in producing fear in the minds of the people or a section of the people that makes a crime a terrorist activity under Section 3(1) of TADA. The question that arises is whether the Prevention of Terrorism Ordinance (POTO) is the ultimate weapon against terrorism as well as cross-border terrorism. POTO seeks to arms the agencies with powers to detect and prevent terrorist activities; detain suspects and freeze properties and funds held by terrorists. TADA was allowed to lapse because the conviction rate was less than 2 per cent and also because a National Human Rights Commission survey found that it was being abused for which one has to blame the enforcement agencies. Hence, POTO is imperative for national security. Experience shows that because of the failure of the prosecuting/enforcement agencies to collect material evidence and prove the intention of the conspirators to strike terror in the people of India, courts have refused to convict offenders for the offence under Section 3 of TADA. While the conviction rate under TADA was 2 per cent, under the Maharashtra Control of Organised Crime Act (MCOCA), the conviction rate is 78 per cent which only shows that the success or failure of any such special enactment ultimately rests with the investigation/enforcement agencies and the failure of the agencies cannot be attributed to the law itself. The success or failure of any stringent law ultimately rests with the enforcement agencies. The former Prime Minister, Rajiv Gandhi, was assassinated in a gruesome blast at the venue of a public meeting at Sriperumbudur, Tamil Nadu, on May 21, 1991. Eighteen persons, including 9 police personnel, were killed and 45 injured, including 16 police personnel. When the matter finally reached the Supreme Court, it acquitted the appellants of the offence under Sections 3 and 4 of TADA and held as hereunder (in the case reported in State vs. Nalini (1999) 5 SCC 253: "The mere fact that their action resulted in the killing of 18 persons which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in the people. It is true that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that anyone of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and it is not possible to attribute an intention to the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also." In view of the paucity of materials to prove that the conspirators intended to overawe the Government of India or to strike terror in the people of India, it is not possible to sustain the conviction of offences under Section 3 of TADA. However, when Banarsidas Gupta, a former Haryana Chief Minister, was shot at in broad daylight at a public function on September 23, 1990, on the occasion of celebration of Maharaja Aggrasain Jayanthi at Bhiwani, the designated court convicted the accused in the said case under Section 307 of the IPC and Section 6 of TADA. The Supreme Court confirmed the verdict of the designated court convicting the accused under Section 6 of TADA by holding that the action of the accused in shooting a former Chief Minister at a public function was aimed at creating terror among the people and the offence committed by the appellant would therefore fall within the definition of "terrorist activity" within the definition of Section 2(h) of TADA punishable under Section 3 of the TADA. The said case is reported in (1996) 7 SCC 86 Rajbir vs State of Haryana. In the case reported in (1990) 4 SCC page 76 Niranjan Singh Karam Singh Punjabi, Advocate (Applt) vs. Jitendra Bhiwraj Bijjaya & ors (Respts), the Supreme Court confirmed the order of acquittal passed by the designated court discharging the persons accused of eliminating the rival group in the underworld. Admittedly, the accused desired to gain supremacy in the underworld by eliminating the other group and committed the offence using lethal weapons such as knives and iron rods. In the said case also, the Supreme Court upheld the view taken by the designated court that there was no material or documents placed before it to come to the conclusion that the accused intended to strike terror in the people or a section of the people and thereby committed an act of terrorism. Such cases show that the investigating agencies have miserably failed to collect material to prove that the intention of the accused was to terrorise the public, one of the essential ingredients of the definition of "terrorist act". In 1996, the Criminal Law Amendment Bill was brought to replace TADA but since the said Bill did not have sufficient provision to meet the situation, the matter was referred to the Law Commission and the draft of the present Prevention of Terrorism Ordinance, 2001, was sent to the Government by the Law Commission. After its approval by the Consultative Committee of Parliament, POTO was promulgated by the President on October 24, 2001. One of the salient features of the POTO was broadening of the definition of "terrorist act". While TADA was mainly concerned with punitive measures, POTO has been designed primarily as a preventive measure. After the December 13 terrorist strike against Parliament, there is an urgent need for combating cross-border terrorism. We have a 740 km Line of Control dividing Jammu and Kashmir between India and Pakistan. Some of the Indian posts along the LoC are located at heights up to 15,000 to 17,000 feet. It being a Herculean task to maintain constant vigil at all points of the long border, fear of punishment under special laws is an effective deterrent to the commission of a terrorist crime. However, this is not true in the case of organised international terrorists who infiltrate as suicide squads. Hence, however deterrent the law is, it cannot by itself address the complex problem of cross-border terrorism. The ultimate solution lies in strengthening the intelligence capabilities and security measures along the LoC and other sensitive areas. Covert operations against terrorists and their camps appear to be one of the ways to crush them. India has to fight its own war with terrorist groups. The Israelis have successfully guarded their borders with Lebanon using sophisticated vibration sensors, electronic devices and thermal imaging devices. We may also have to adopt some of these tactics. Apart from legal measures such as promulgating POTO, the Government may have to seriously consider implementing some of the specific recommendations of the Justice J. S. Verma Commission of Inquiry which enquired into the assassination of Rajiv Gandhi.