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Report No. 173

Part II of The Criminal Law Amendment Bill

Part two of the Bill contains clauses 3 to 7. Clauses 3 defines the expression "terrorist act" and also provides for punishment therefor and other allied provisions. It contains six sub-clauses. While sub-clause (1) defines terrorism, sub-clause (2) prescribes the punishment for terrorist activities. Sub-clause (3) punishes those conspiring, attempting, advocating, abetting, advising, inciting or knowingly facilitating the commission of a terrorist act. Sub-clause (4) deals with those who knowingly harbour terrorists while sub-clause (5) punishes the members of terrorist gangs and organisations. Sub-clause (6) declares the holding of proceeds of terrorism illegal.

Clauses 3: The Official Amendments propose to substitute the opening words in sub-clause (1) of clause 3. In place of the words "whoever with intent to overawe the government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people, does", the following words "whoever with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people, does" are proposed to be substituted.

A criticism levelled against the substituted definition was that any person questioning the unity and integrity of the country was sought to be branded as a terrorist. It was pointed out that if a person honestly believed and said that a particular part of the country should be made independent, he would come within the mischief of sub-clause (1) of clause 3. We do not think that this criticism or apprehension is well founded. A reading of sub-clause (1) makes it clear that merely threatening the unity or integrity of India is not by itself sufficient to attract the offence in that sub-clause.

What is necessary is that the person who threatens the unity, integrity, security or sovereignty of India also does an act or thing by using bombs, dynamite, etc. in a manner which causes or is likely to cause death of or injuries to any person or persons or loss of or damage to or destruction of property or disruption of any supplies or services essential to the life of the community or detains any person and threatens to kill and injure such person in order to compel the government or any other person to do or abstain from doing any act. These are serious matters and the apprehension of those opposed to this provision is unfounded.

In paras 5.3 and 5.4 of the Working Paper, the Law Commission had suggested the retention of the words "to overawe the government as by law established". The said suggestion was made in view of the fact that no good reason can be found for deleting the said words as proposed in the official amendments. These words were there in the original draft of the Bill and also in the TADA. On a consideration of the entire material placed before us, we are inclined to drop this proposal since the element of "overawing the government" can be said to be implicit in the sub-clause as modified/amended by the official amendments.

So far as the Law Commission's proposal to retain the words "or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people" in sub-clause (1) of clause 3 is concerned, we are dropping it also for the reason that the said words do not appear to fit into the sub-section once its direction is oriented towards threatening the unity, integrity, security or sovereignty of India.

The Law Commission has observed in para 5.6 that crimes in the field of electronics/computers are increasingly being used for international terrorism. Reference was made to section 805 of the U.S. Anti-terrorism and Effective Death Penalty Act of 1996, which provides deterrent sentence for any terrorist activity damaging a federal interest computer. In chapter three, the Commission had also referred to section 701 of the U.S. Act which defines the federal crime of terrorism, which is of very wide application taking in all violations of enactments dealing with aircraft, airports, biological weapons, nuclear material, destruction of government properties including communication lines, stations and systems and so on and so forth.

The Law Commission is of the opinion that any damage to equipment installed or utilised for or in connection with defence or for any other purposes of the government is equally an act of terrorism if it is done with intent to threaten the unity, integrity, security, sovereignty of India. We are, therefore, of the opinion that after the words "supplies or services essential to the life of the community", the following words may be added "or causes damage to or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of Government of India or any of its agencies". Sub-clause (1), may therefore be recast incorporating the above additions.

It would be seen that the definition of terrorist act in our Bill is put into one sub-clause viz., sub-clause (1) of clause 3, whereas the U.K. legislation defines "terrorism" in section 1 and "terrorist" in section 38 in more extensive terms. The definition of "terrorist" in the U.K. Act speaks of a person who has committed an offence under any of the sections 10, 11, 14 to 17, 52 and 54 to 56 of that Act. Sections 10 to 17 of U.K. Act deal with helping, raising funds or otherwise having connections with proscribed organisations, while section 52 and 54 to 56 speak of weapons training, directing terrorist organisations and possession of an article for the purpose connected with terrorist activities.

It would be appropriate that our Act too contains provisions which make the membership of a banned organisation and/or raising funds for or otherwise furthering the activities of banned organisation, a terrorist act. Similarly, possession of unlicensed firearms and explosives and other weapons of mass destruction (in the notified areas) may also be treated as an act of terrorism. Indeed, section 5 of TADA did make possession of arms and ammunition in the notified areas punishable offence. We, therefore, recommend that existing sub-clause (1) may be numbered as paragraph (a) of sub-clause (1) and a new paragraph (b) be inserted therein. Sub-clause (1) will read as follows:-

"3. (1) Whoever,

(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage to or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act,

(b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 or voluntarily does an act aiding or promoting in any manner the objects of such an association and is either in possession of any unlicenced firearm, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act."

Sub-clause (2) of clause 3 which speaks of punishment, in its present language, is comprehensive enough to cover both the paragraphs of sub-clause (1) and needs no change consequent upon the change in sub-clause (1). The Government may also consider the desirability of introducing a new clause - which may be numbered as Clauses 4 - in terms of section 5 of TADA. The expression "notified area" may also be defined in the very clause.

We may also mention at this stage that we have examined the Maharashtra Control of Organised Crime Act, 1999 but find that its focus and objective is different from the present Act. It is meant to fight organised crime which may not necessarily amount to `terrorist activity' as defined in sub-clause (1) of clause 3 of this Bill, though in some cases they may overlap. We do not, therefore, think it necessary to deal with the definitions of "continuing unlawful activity", "organised crime" and "organised crime syndicate" occurring in the Maharashtra Act. So far as certain procedural provisions contained in the Maharashtra Act are concerned, they are referred to hereinafter at relevant places. Sub-clauses (2) and (3) do not require any change.

Sub-clause (4) seeks to punish a person who "harbours or conceals or attempts to harbour or conceal any person knowingly that such person is a terrorist" (as proposed to be amended by "official" amendments). It was pointed out by certain participants at the seminar that this sub-section, as it stood now, would also take in the mother, father, sister or brother of a terrorist who came home to hide himself and that it would be wholly unjust to punish such relative of the terrorist merely because he was allowed to stay in the house by such a relative.

It was also pointed out by some other participants that such harbouring or concealing might be out of fear or under the threat of violence by the terrorists. It was pointed out that in such a situation, the person supposed to be harbouring or concealing a terrorist was himself a victim. On the other hand, certain other participants pointed out that the terrorists should not be provided any sanctuary and that any person who harboured or concealed a terrorist knowing that he was a terrorist, should be held guilty of the offence under sub-section (4).

On a consideration of the rival submissions, we are of the opinion that it would be appropriate to add the word "voluntarily" after the word "whoever" and before the words "harbours or conceals". This would exclude a situation where a person harbours a terrorist under threat or coercion even though he may be knowing that that person is a terrorist. So far as the wife/husband harbouring the terrorist is concerned, we recommend addition of an Exception in terms of Exception to section 212 of I.P.C. to read:

"Exception.- This sub-section shall not apply to any case in which the harbour or concealment is by the husband or wife of the offender".

We are also of the opinion that there should be a slight change in the minimum punishment provided by the sub-clause. Keeping in view of the provisions of sub-clause (2) as well as sub-clause (3) of clause 3, it would be appropriate to reduce the minimum punishment to three years from five years. Sub-clause (5) requires no change. So far as sub-clause (6) is concerned, it is dealt with at a later stage. In para 5.9 of its Working Paper, the Law Commission had recommended addition of sub-clause (7) in Clauses 3 in the following terms:

"(7) Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine."

During the seminars or in the responses received by us pursuant to the Working Paper, no objection was taken to this proposal except in the written representation from the South Asia Human Right Documentation Centre (SAHRDC). We however see no reason to drop this proposal which is considered to be in the interest of a free and fair trial. Sub-clause (7) as recommended above, should therefore be incorporated in Clauses 3.

In para 5.10 of the Working Paper, the Law Commission had also proposed addition of sub-clause (8) placing an obligation upon the persons receiving or in possession of information as to any terrorist activity to inform the Police as soon as practicable. It may be that when terror prevails, people may be afraid of speaking out. As a matter of fact, one of the prime objects of creating terror is to silence the people by instilling a psychosis of fear in them. At the same time it cannot also be forgotten that such an obligation has to be placed upon the citizens of this country for effectively fighting the terrorism.

The incorporation of such a sub-clause does not mean that any or every person not giving information would necessarily be punished. If and when a person is prosecuted under the proposed sub-clause (8), the court will take into consideration all the relevant facts and circumstances and even where he is punished, the quantum of punishment to be awarded would be within the discretion of the court. It may even be a mere fine and that too of a small amount.

(At the two seminars and in the responses received, an objection was raised that this would take in even a journalist/media person who interviews a terrorist and he would be obliged to disclose the information relating to the terrorist interviewed by him and that therefore this provision is not consistent with the freedom of Press and media.

It may, however, be noted that in India, freedom of Press flows from sub-clause (a) of clause (1) of Article 19 of the Constitution of India and it has been repeatedly held by our Supreme Court that rights and privileges of the Press are no greater than that of any of the citizens of India. Even in UK and USA, no immunity in favour of journalists/Press is recognised which would be evident from the following statement of Law at page 203 of D.D. Basu's commentary "Law of the Press" (Third Edition).

"The same view, as in UK, has been arrived at by the American Supreme Court, recently, holding that the guarantee of freedom of the Press does not immunise the Press to render assistance to the investigation of crimes which obligation lies on every citizen. They are, accordingly, bound to disclose the information gathered by journalists, with their sources, even though such information may have been obtained under an agreement not to disclose, provided such information is relevant to the investigation, in a particular case, and they are not compelled to disclose more than is necessary for such purpose."



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