INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433) VOLUME 2 ISSUE 2 (June 2021) Email – [email protected] Website – www.ijlra.com 56565656565651 1 www.ijlra.com Volume 2 Issue 2| June 2021 ISSN: 2582-6433 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA. Though every effort has been made to ensure that the information in Volume I Issue X is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal. Copyright © International Journal for Legal Research & Analysis 1 www.ijlra.com Volume 2 Issue 2| June 2021 ISSN: 2582-6433 EDITORIAL TEAM EDITORS Ms. Ezhiloviya S.P. Nalsar Passout Ms. Priya Singh West Bengal National University of Juridical Science Mr. Ritesh Kumar Nalsar Passout Mrs. Pooja Kothari Practicing Advocate Dr. Shweta Dhand Assistant Professor 2 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 ABOUT US INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISSN 2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines. 3 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 Constitutionality of Anti-Terror Laws in India By : Pulkit Taneja Introduction: Terrorist attacks in the United States on September 11, 2001, is remembered as the deadliest terrorist attack. Apart from many repercussions, the United States conducted thorough investigations and contacted the international community for support in their fight against terrorism. On September 28, 2001, the United Nations Security Council passed a unanimous resolution to agree on a collective fight against terrorism and draft and implement anti-terror laws.1 With the United States strengthening the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (PATRIOT Act),2 India faces many challenges in their fight against terrorism itself drafted the Prevention of Terrorism Ordinance (POTO),3 in October 2001. This ordinance was objectified to provide deterrence against cross border terrorism and other terrorist activities. This legislation included many provision of the Terrorists and Disruptive Activities (Prevention) Act, 1987,4 which was repealed in 1995. POTO was legislated into an act in March 2002. Despite a lot of criticism faced by human rights activists, India's government-enforced Prevention of Terrorism Act (POTA) to its full extent until it was repealed in 2004. Anti-terror laws are complicated to legislate. Neither can you treat terrorists like normal criminals, nor can the laws be the same for both. Many legal jurists believe that anti-terror laws all around the world are not only harsh but unreasonable. India is a party to various human rights convention which advocate the promotion of basic human rights and fundamental rights. India is a signatory to the Geneva Convention, the International covenant of civil and political rights, which provides citizen protection against cruelty, torture, freedom of expression and right to life. India's anti-terror laws if not directly, but do violate these provisions in principle. Although India is also a signatory to the UN Convention Against Torture, it is still yet to ratify it. This paper would be analysing the constitutionality of TADA and POTA with various case laws and provisions of the constitution. Terrorist and Disruptive Activities (Prevention) Act, 1985 TADA was enacted amidst the assassination of Prime Minister Indira Gandhi. The provisions of TADA are straightforward in defining its violations. Section 3 of TADA defines a terrorist as (i) "a person who either commits a terrorist act (ii) attempt or conspires to commit, abet or incite or knowingly facilitate the 1 United Nations Security Council, Threats to International Peace and Security Caused by Terrorist Acts, U.N. Doc. S/RES/1373 (September 28, 2001). 2 Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act, 2001 (USA). 3 Prevention of Terrorism Ordinance, 2001. 4 Terrorists and Disruptive Activities (Prevention) Act, 1987. 4 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 commission of a terrorist act or any act preparatory to a terrorist act (iii) harbour or conceal, or attempt to harbour or conceal any person knowing that such person is a terrorist (iv) hold property that has been derived or obtained from commission of any terrorist act or that has been acquired through the terrorist funds".5 This act is based upon the Terrorist Affected Areas (Special Courts) Act, 1984 (TAAA), which administered setting up of special courts to adjudicate upon only scheduled offences in 'terrorist affected areas'.6 This act was substantially stern in regards to bail and detention. Section 15(5) of the TAAA lays down the bail procedure. According to this section, any suspect under this act would be denied bail if the prosecution opposes the motion or there is no substantial proof for the accused innocence.7 However, unlike the TAAA, when TADA was enacted in 1985, it did not only affect 'terrorist affected areas' but the entire country, which made it possible for law enforcement agencies to pick up anyone who they can prove to have a reasonable suspicion on and book them under this act. Many human rights advocates criticised this legislation as many reports were cited about the misuse of TADA to oppress political enemies of the government, human rights activist, minorities etc. Many provisions of this act triggered questions on this act's constitutional validity. Denial of Bail As mentioned above, TADA had its bail provision based on the TAAA. Incarceration of any suspected person without a formal charge sheet could last a year under TADA. This period is strictly restricted to a maximum of three months post which the accused is entitled to automatic bail. Although not explicitly mentioned as a right in the constitution, a person's right to bail is a part of his right to life and personal liberty under article 21 of the Constitution of India.8 There have been many cases in this country where judges of the supreme court have strongly emphasised on a person's right to bail. Justice Krishna Iyer in his judgement of the case the State Of Rajasthan, Jaipur vs Balchand focused upon a persons' right to bail in an investigation. He first pointed out the perspective behind the practice of detention of suspects. Custody of the suspect helps the court and law enforcement ensure that the suspect does not abscond, tamper with the witnesses or any evidence. Justice Iyer displayed the court's confidence on the suspect of not absconding or possibly tamper with the investigation and granted him bail.9 Confessions Section 15 of TADA,10 allowed a confession by the accused made to the police officer during an 5 Terrorists and Disruptive Activities (Prevention) Act, 1987 §3. 6 Terrorist Affected Areas (Special Courts) Act, 1984. 7 Terrorist Affected Areas (Special Courts) Act, 1984 §15(5). 8 The Constitution of India, 1950 Art. 21. 9 State of Rajasthan, Jaipur vs Balchand, 1977 AIR 2447. 10 Terrorists and Disruptive Activities (Prevention) Act, 1987 §3. 5 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 interrogation admissible during court proceedings. Sections 25 and 26 of the Indian Evidence Act, 11 deals with the nature of any confession made to a police officer. Any confession made to a police officer is considered neither relevant nor subject to any case proceedings. The rationale behind this provision is to protect the suspects from torture and physical hurt. Article 20(3) of India's Constitution 12 covers an accused against self-incrimination. In many of its judgements, the supreme court has emphasised the right against self-incrimination. In the case of Dagdu v. the State of Maharashtra, Justice Goswami explained the importance of this right, "The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to the solution. Instead of trying to "start" from a confession, they should strive to "arrive" at it. Else, when they are busy on their short route to success, good evidence may disappear due to in attention."13 On various accounts of criticism against this provision in TADA which is violative of articles 14, 20(3) and 21 of the Indian Constitution, the government replied that an extreme act like TADA must include extreme provisions to fulfil its purpose. Moreover, they also argued that TADA only makes these confessions admissible in court, the power of allowing it or any decision upon would still be in the hands of the court. This issue was later taken up in the Supreme Court where the Supreme Court accepted TADA and declared it to be well within the Consitution of India's bounds, including in their judgment a few suggestions to amend TADA.