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Jurisprudence of Anti-Terrorism Laws- an Indian Perspective Monograph June 2019 Jurisprudence of Anti-Terrorism Laws An Indian Perspective Ramanand Garge Vivekananda International Foundation Jurisprudence of Anti-Terrorism Laws - An Indian Perspective N/;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ Ramanand Garge Associate Fellow /;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ ,3@&3DF;@&3D9 :3@3=K3BGD; '7I7>:; -7> 3J ?3;>;@8AH;8;@6;3 AD9 074E;F7III H;8;@6;3 AD9 >>+;9:FE+7E7DH76 'AB3DFA8F:;EBG4>;53F;A@?3K47D7BDA6G576 EFAD76;@3D7FD;7H3> EKEF7? AD FD3@E?;FF76 ;@ 3@K 8AD? AD 4K 3@K ?73@E 7>75FDA@;5 ?75:3@;53> B:AFA5ABK;@9 D75AD6;@9ADAF:7DI;E7I;F:AGFF:7BD;AD B7D?;EE;A@A8F:7BG4>;E:7D )G4>;E:764K/;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ N/;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ /;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ ,3@&3DF;@&3D9 :3@3=K3BGD; '7I7>:; ©-7> Vivekananda 3J International Foundation, 2019 ?3;>;@8AH;8;@6;3 AD9 074E;F7III H;8;@6;3 AD9 Vivekananda International Foundation 3,>>+;9:FE+7E7DH76 San Martin Marg, Chanakyapuri, New Delhi - 110021 Tel: 011-24121764, Fax: 011-66173415 E-mail: [email protected], Website: www.vifindia.org 'AB3DFA8F:;EBG4>;53F;A@?3K47D7BDA6G576 EFAD76;@3D7FD;7H3> AllEKEF7? Rights Reserved. AD FD3@E?;FF76 ;@ 3@K 8AD? AD 4K 3@K ?73@E 7>75FDA@;5 ?75:3@;53> B:AFA5ABK;@9 D75AD6;@9ADAF:7DI;E7I;F:AGFF:7BD;AD NoB7D? part ;EE;A@A8F:7BG4>;E:7D of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. )G4>;E:764K/;H7=3@3@63"@F7D@3F;A@3>AG@63F;A@ Published by Vivekananda International Foundation. Acknowledgement I would like to express my sincere gratitude to the Vivekananda International Foundation for providing budding research student like me an opportunity to undertake research on the untouched subject of ‘Jurisprudence of anti- terror legislation’. Conducting research in this rarely touched upon subject is challenging, but when your mentor trust your abilities and strengthens them with his unparallel experience and professional understanding, it gives courage to effectively study the subject in greater detail. I am indebted to Shri CD Sahay, former Secretary (R), Cabinet Secretariat and Distinguished Fellow, VIF for mentoring this monograph from its conceptual phase till its present form. His patient review and insights have not only added depth to the analysis of the subject, but also helped me in person to explore various new conceptual policy frameworks within the realm of the Constitution of India. These potential policy inputs are deliberated in this monograph in greater detail. I am grateful to Dr Arvind Gupta, Director VIF who not only extended his unending support, but also provided comprehensive remarks at various stages of development of this monograph. I am obliged to General N C Vij [PVSM, UYSM, AVSM] former CoAS for approving this research project and for his profound encouragement. I am thankful to Lt Gen Ravi Sawhney [PVSM, AVSM] for his valuable suggestions. The monograph would not have been possible without the valuable and timely reviews by Shri Rajiv Mathur, former DIB and former Chief Information Commissioner, GoI. His timely guidance and interactions have helped to structure the monograph and provide strength to explore new possibilities in India’s counter-terrorism mechanism in comparison with the leading developed entities of the world. I would like to thank Adv DP Singh for his valuable legal insights and review of the monograph. I would also like to express my sincere gratitude towards Shri Satish Chandra Jha, Chairman NTRO, for his valued contribution as a discussant of this monograph. His eminent analysis and review has helped me 4 Jurisprudence of Anti-Terrorism Laws- An Indian Perspective understand the operational challenges faced by investigating agencies while investigating terrorism-related cases. I would like to convey my gratitude to the members of Editorial Committee of the VIF for their patient review and timely interventions. June 2019 Ramanand Garge New Delhi Contents Acknowledgement 3 Acronyms 7 Foreword 9 Introduction 11 Chapter-I: Evolution of Anti-Terror Legislations 15 Chapter–II: Dealing with Terrorism: Complexities of 46 Federal Structure Chapter–III: Judicial Interpretation of Substantive Provisions of 74 Anti-Terror Legislations Chapter–IV: Procedural Issues in Investigation and 111 Prosecution of Terror Cases Conclusion 149 Acronyms Al-Qaeda AQ Anti-Terror Squad ATS Armed Forces Special Power Act AFSPA Arunachal Pradesh Control of Organised Crime Act APCOCA Central Bureau of Investigation CBI Chhattisgarh Jan SurakshaAdhiniyam CVJSA Civil Procedure Code CPC Code of Criminal Procedure CrPC Counter Terrorism Coordination Centre CTCC DimaHalamDaogah (Jewel) DHD (J) Director General (Police) DGP Gujarat Control of Terrorism and Organised Crime GCTOC Hizb – ul – Mujahedeen HM Intelligence Bureau IB Inspector General IG Indian Penal Code IPC Indian Mujahedeen IM Jaish-e-Mohammad JeM Karnataka Control of Organised Crime Act KCOCA Maharashtra Control of Organised Crime Act MCOCA Madhya Pradesh Terrorist and Disruptive Activities MPTDACOCB and Control of Organised Crimes Bill - Member of Parliament MP Ministry of Home Affairs MHA 8 Jurisprudence of Anti-Terrorism Laws- An Indian Perspective National Counter Terrorism Centre NCTC National Investigation Agency Act NIA Act National Investigation Agency NIA Non-Governmental Organisation NGO Prevention of Terrorism Act POTA Lashkar-e-Taiba LeT Press Trust of India PTI Popular Front of India PFI Students Islamic Movement of India SIMI South Asian Association for Regional Cooperation SAARC Terrorist and Disruptive Activities (Prevention) Act TADA United Nations UN United States US Unlawful Activities (Prevention) Act UAPA Foreword Counter-terrorism practices cannot be effective in the absence of firm and clear anti-terrorism law. In the last several decades, India has developed wide- ranging counter-terrorism practices and mechanism. Yet, it has neither a comprehensive anti-terrorism law nor a definition of terrorism. Plethora of separate legislations are being used in counter-terrorism practices. The concept of federal crime is also missing. The National Investigation Agency (NIA) set- up in 2008 to investigate into terrorism cases. Increasingly its remit is being diluted as it is being burdened with investigation of other crimes. The efforts to set-up a National Counter-Terrorism Coordination Centre (NCTC) has also not succeeded due to apprehensions of the Indian states. Mr. Ramanand Garge, in his monograph, titled Jurisprudence of Anti-terror Laws: An Indian Perspective, explores the legal aspects of counter-terrorism practices in India. He traces the evolution of anti-terror legislations in the country and delves into the provisions of various legislations that have used for investigation and prosecution of terrorism cases. Identifying the gaps, the author makes several recommendations for improving counter-terrorism practices in the country. The monograph provides useful insights into the complexities of India federal structure and how they impact the efficacy of counter-terrorism practices. It is hoped that the monograph would stimulate discussions on counter-terrorism issues relevant to India. June 2019 Dr. Arvind Gupta Director, Vivekananda International Foundation New Delhi Introduction Terrorism in India: A Brief Background Terrorism is undoubtedly an extremely complex issue due to its diverse origin and expanse, ideologies and motivations. It gets further complicated by some organisations and states using terror as a policy-tool for achieving their political and strategic objectives. The impact and reach of terror has increased multi-fold in the contemporary era of globalisation where the speed of communication is enormously wide and fast. The short travel span and rising interdependence within environments have led global affairs towards convergence. In some regions of the world, it has turned into a rationale for the flash point which amplifies as an international conflict to overwhelm the conventional mechanism of governance. Dealing with terrorism in all its facets, has also thus become an extremely complex subject, engaging the attention of experts around the world. In South Asia, India has been facing and combating terrorism in one form or another, since independence and continues to be a significant target of terrorist groups even today. It has been aptly stated that India lives in a region which is the ‘epicentre of global terrorism’. Unfortunately, it also carries the rather dubious distinction, not of its own making, of having been victim of terror for the longest period of time. This situation is quite unlikely to abate in the foreseeable future. It is difficult to get official data or compilation of information cataloguing all the terrorist groups operating in the country. However, some analysts and research-oriented think tanks in the field of tracking terror, list out around 39 terror outfits currently operating in different parts of the country including groups operating from Pakistan and Bangladesh (Sharma and Anshuman 2014). Besides, there are other emerging threat from Daesh and Al Qaeda which claim to have set up separate cells for the Indian sub-continent, taking advantage of the obtaining socio-political situation in the region. 12 Jurisprudence of Anti-Terrorism Laws- An Indian Perspective Resultantly, the Indian state has, over the years, acquired vast experience in dealing with various conflict situations, their linkages with terror models and their unique and diverse characteristics. This is reflected in its policies and responses to the most potent threat it faces in the form of externally sponsored terrorism creeping in through its porous borders as well as internal terror modules largely on account of governance deficiency. In the complex pattern of governance, India’s federal political system leaves most of the policing responsibilities with the states, which usually possess their own counter-terrorism and intelligence units.
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