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Report No. 173

1.16.1 A perception has developed among the terrorist groups that the Indian State is inherently incapable of meeting their challenge that it has become soft and indolent. As a matter of fact, quite a few parties and groups appear to have developed a vested interest in a soft State, a weak government and an ineffective implementation of the laws. Even certain foreign powers are interested in destablising our country. Foreign funds are flowing substantially to various organisations and groups which serve, whether wittingly or unwittingly, the long-term objectives of the foreign powers."

We do not see any reason to depart from the said analysis. In Chapter II of the Working Paper, the Commission had set out the provisions of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the decisions of the Supreme Court thereon. We do not think it necessary to reproduce the same in this report over again since we are enclosing a copy of the Working Paper to this report.

It must, however, be added that it has since been brought to our notice that the State of Maharashtra has enacted a law to deal with organised crime, namely, The Maharashtra Control of Organised Crime Act, 1999. The Commission has taken note of the provisions of the Maharashtra Act and would be referred to at the appropriate stage. In Chapter III of the Working Paper, the Commission had set out in extenso the provisions of the U.S.A. Anti-terrorism and Effective Death Penalty Act of 1996 and the following U.K. Acts as well as a Consultation Paper:

1. The Prevention of Terrorism (Temporary Provisions) Act, 1989.

2. Northern Ireland (Emergency Provisions) Act, 1996 as amended in 1998.

3. The Criminal Justice (Terrorism and Conspiracy) Act, 1998 and

4. The provisions of a Consultation Paper issued by the Government of U.K. in December 1998 on "Legislation Against Terrorism (Cm 4178)".

We do not think it necessary to reproduce the contents of Chapter III of the Working Paper here again, as a copy of the Working Paper is enclosed herewith as Annexure I. It is, however, necessary to point out that the British Parliament has since introduced an anti-terrorism Bill in the House of Commons, on December 2, 1999. The Act is a comprehensive piece of legislation containing as many as 99 sections and 14 Schedules. The Law Commission has perused the said Bill. It would be appropriate to mention briefly the contents of the said Bill. Section 1 defines "terrorism" and the associated expression "action" in the following words:

"Terrorism: interpretation.

1.(1) In this Act "terrorism" means the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which-

(a) involves serious violence against any person or property,

(b) endangers the life of any person, or

(c) creates a serious risk to the health or safety of the public or a section of the public.

(2) In subsection (1)-

(a) "action" includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated, and

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom.

(3) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."

Part two containing sections 3 to 12 deals with proscribed organisations mentioned in Schedule two. This Part provides for notifying the proscribed organisations, appeals against such orders and the effect of declaring an organisation as a proscribed organisation followed by forfeiture of its properties. Any person who belongs to such organisation or supports the activities of such organisation, is liable to be prosecuted and punished. Part three containing sections 13 to 30 deals with `terrorist property' including proceeds of terrorism. The provisions in this Chapter prohibit raising of funds for terrorist activity including money laundering and provide for seizure, detention and forfeiture of property of terrorists as well as cash belonging to them.

The Chapter also places an obligation upon the citizens to disclose information relating to terrorist activity and to cooperate with the police in that behalf. Part four containing sections 31 to 37 include provisions concerning terrorist investigations. These provisions empower the police to cordon areas, to search and to take other actions in the cordoned areas as detailed in Schedule five and other allied provisions. Part five contains sections 38 to 51 dealing with counter-terrorist powers of the police. Section 38 defines the expression "terrorist" in the following words:

"38. (1) In this part "terrorist" means a person who-

(a) has committed an offence under any of sections 10, 11, 14 to 17, 52 and 54 to 56, or

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

(2) The reference in subsection (1)(b) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1."

The provisions in this Part empower the police to arrest without warrant, search premises and persons, stop and search vehicles and the provisions incidental thereto. The police is also empowered to place restrictions on and to regulate parking, to impose ports and border controls and to search, seize and detain terrorists and their properties. Part six containing sections 52 to 61 deals with "miscellaneous" matters. The provisions in this Part deal with terrorist offences including possession of arms and explosives (which is made an offence), with training in weapons including biological, chemical and nuclear weapons and with collecting information, etc. useful to terrorists.

The British Parliament has assumed extra-territorial jurisdiction in this behalf in the sense that preparations for carrying out terrorist offences in any other country (other than the U.K.) are also made punishable in U.K., which is a good development from our country's point of view. Part seven containing sections 62 to 109 deals with Northern Ireland. The provisions in this Chapter are far more stringent in all respects. Part eight containing sections 110 to 124 carries the heading "general". This part specifies the additional powers of the police conferred by the Bill over and above the common law powers and the extent of such powers and certain other matters.

Chapter five of the Working Paper sets out the proposals put forward by the Law Commission for public debate and discussion. As stated hereinbefore, the Law Commission has considered the responses received and the various views expressed at the two seminars. So far as the structure of our report is concerned, we must reiterate that we have taken the Criminal Law Amendment Bill, 1995, as proposed to be amended by the Official Amendments as the basis. The reasons for this approach are not far to seek. The TADA - whose improved version is the present Bill - was in force for more than ten years; indeed it continues to be available for the pending cases.

The constitutionality of the Act and the meaning and scope of its provisions have been the subject-matter of several decisions of the Supreme Court and the High Courts. In this view, we thought that instead of drafting a new law altogether, it would be more appropriate - and convenient - to take the Criminal Law Amendment Bill along with official amendments as the basis and suggest appropriate modifications and additions, wherever found necessary.

In the interest of convenience and clarity, we shall deal with the sections in the Criminal Law Amendment Bill, as introduced in Rajya Sabha on 18th May, 1995 (together with the proposed "official" amendments), chapter-wise, and suggest modifications and additions in the light of the responses received pursuant to the circulation of the Working Paper and the views expressed in the seminars.



Report on Prevention of Terrorism Bill, 2000 Back




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