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LAW COMMISSION HOME PAGELAW COMMISSION OF INDIA173RD REPORT ONPREVENTION OF TERRORISM BILL, 2000APRIL, 2000
D.O. No.6(3)(53)/98-LC(LS)
Dear Shri Jethmalaniji,
I am forwarding herewith the 173rd Report on “Prevention of Terrorism Bill, 2000”.
2. The Ministry of Home Affairs, Government of India requested the Commission to undertake a fresh examination of the issue of a suitable legislation for combating terrorism and other anti-national activities in view of the fact that security environment has changed drastically since 1972 when the Law Commission had sent its 43rd Report on offences against the national security. The Government emphasised that the subject was of utmost urgency because the erstwhile Terrorist and Disruptive Activities (Prevention)
Act, 1987 had lapsed and no other law had been enacted to fill the vaccum arising therefrom. The Commission was asked to take a holistic view on the need for a comprehensive anti-terrorism law in the country. The Commission circulated a working paper to all the concerned authorities, organisations and individuals for eliciting their views with respect to the proposals contained therein. Two seminars were also held for this purpose.
3. The Commission took note of several points addressed by the speakers and after taking into consideration the several opinions expressed in these two seminars and the responses received, the present Report has been prepared.
4. The Commission has taken into consideration the original Criminal Law Amendment Bill, 1995 introduced in Rajya Sabha, as also the Official Amendments proposed by the Ministry of Home Affairs which are set out in the working paper (Annexure –I) annexed with this Report. The Report brings out that a legislation to fight terrorism is today a necessity in India. It is not as if the enactment of such a legislation would by itself subdue terrorism. It may, however, arm the State to fight terrorism more effectively. Besides recommending for various measures to combat terrorism, the Commission has at the same time provided adequate safeguards designed to advance the human rights aspects and to prevent abuse of power. We have thoroughly revised the Criminal Law Amendment Bill and have suggested a new Bill “Prevention of Terrorism Bill” for it.
5. For the sake of convenience, the Bill entitled “Prevention of Terrorism Bill, 2000” as modified by the Law Commission is annexed with the Report.
With warm regards,
Yours sincerely,
(B.P. Jeevan Reddy)
Shri Ram Jethmalani,
Minister for Law, Justice & Co. Affairs,
Shastri Bhavan,
TABLE OF CONTENTS
Sl.No. Contents
1. CHAPTER I
INTRODUCTORY
2. CHAPTER II
SECURITY SITUATION IN THE COUNTRY3. CHAPTER III
WHETHER THE PRESENT LEGISLATION IS AT ALL NECESSARY?
4. CHAPTER IV
PARTs I-III OF THE CRIMINAL LAW AMENDMENT BILL
5. CHAPTER V
PART IV OF THE CRIMINAL LAW AMENDMENT BILL6. CHAPTER VI
SUGGESTIONS FOR INCLUSION OF CERTAIN ADDITIONAL PROVISIONS IN THE BILL 7. ANNEXURE I WORKING PAPER ON LEGISLATIONTO COMBAT TERRORISM
8. ANNEXURE II –
THE PREVENTION OF TERRORISM BILL, 2000 CHAPTER I
INTRODUCTORY The Government of India in the Ministry of Home
Affairs requested the Law Commission to undertake a freshexamination of the issue of a suitable legislation for
combating terrorism and other anti-national activities inview of the fact that security environment has changed
drastically since 1972 when the Law Commission had sent
its 43rd Report on Offences against the National
Security. The government emphasised that the subject was
of utmost urgency in view of the fact that while the
erstwhile Terrorists and Disruptive Activities
(Prevention) Act, 1987 had lapsed, no other law had been
enacted to fill the vacuum arising therefrom. The result
is that today there is no law to combat terrorism in
India. The Commission was asked to take a holistic view
on the need for a comprehensive anti-terrorism law in
India after taking into consideration similar
legislations enacted in other countries faced with the
problem of terrorism. Accordingly, the Commission had
taken up the study of the subject and prepared a Working
Paper (Annexure I) which was circulated to all the
concerned authorities, organisations and individuals for
eliciting their views with respect to the proposals
contained therein. Two seminars were also held for this
purpose. The first seminar was held on December 20, 1999
at the India International Centre, New Delhi. It was
inaugurated by Shri Justice J.S. Verma, former Chief
Justice of India and presently the Chairperson of the
National Human Rights Commission. The following persons
spoke at the said seminar: Shri P.P. Rao, Senior
Advocate, Supreme Court and former President of the
Supreme Court Bar Association, Brig. Satbir Singh,
Senior Fellow and OSD in Institute for Defence Studies
and Analysis, Prof. V.S. Mani, Jawarharlal Nehru
University and Secretary-General, the Indian Society of
International Law, Shri K.T.S. Tulsi, Senior Advocate,
Supreme Court and former Additional Solicitor General,
Shri D.R. Karthikeyan, former Director, CBI and
presently holding the post of DG(Investigations),
National Human Rights Commission, Shri Prashant Bhushan,
Advocate, Supreme Court and an activist in human rights
field, Prof. B.B. Pandey of Delhi University, Shri P.S.
Rao, Legal Adviser, Legal and Treaties Division, Ministryof External Affairs, Shri K.P.S. Gill, former DGP,
Punjab, Shri Ravi Nair from South Asia Human Rights
Documentation Centre, Ms. Kamini Jaiswal, Senior
Advocate, Supreme Court and an activist in the human
rights field, Shri Shiv Basant and Dr. P.K. Agarwal,
Joint Secretaries in the Ministry of Home Affairs, Shri
B.A. Agrawal, Joint Secretary and Legal Adviser,
Ministry of Law, Justice & Co. Affairs, Shri S.V.
Singh, Additional DGP Crime, Punjab, Shri S.S. Puri,
Additional DGP(L&O), Maharashtra, Shri M.L. Sharma,
Joint Director, CBI, Shri N. Kumar, Senior Advocate,
Supreme Court, Shri Justice Rajinder Sachhar, Senior
Advocate and former Chief Justice, Delhi High Court. The Commission made a note of the points made by
all the above speakers. Shri Tulsi has also sent his
comments in writing. The Addl. DGP, CID, Assam has sent
his comments in writing. Amnesty International has also
sent a communication in this behalf dated December 18,
1999. Though the said organisation said in this letter
that they would be sending a detailed response later, theCommission has not so far received any such detailed
comments. A second seminar was held on January 29, 2000 in
association with the India International Centre in the
auditorium of India International Centre. The following
persons spoke at this seminar: Shri N.N. Vohra, former
Home Secretary and Director of the India International
Centre (who co-chaired the seminar), Shri R.K.
Khandelwal, former Chairman, Joint Intelligence
Committee, Shri Prashant Bhushan, Advocate, Supreme
Court, Shri P.K. Dave, former Lt. Governor of Delhi,
Shri S.K. Singh, former Foreign Secretary, Ms. Maja
Daruwalla, Director, Commonwealth Human Rights
Initiative, Air Chief Marshal N.C. Suri, Lt.Gen.
Raghavan, Shri P.N. Lekhi, Senior Advocate, Delhi High
Court, Shri D.R. Karthikeyan, DG(Investigations), NHRC,
Shri U.R. Lalit, Senior Advocate, Supreme Court, Shri
Ashok Bhan, Advocate (Kashmiri Pandit - migrant), Shri
K.P.S. Gill, former DGP, Punjab, Shri P.P. Rao, Senior
Advocate, Supreme Court, Dr. Ajit Muzoomdar, IAS(Retd.),
Shri Sushil Kumar, Senior Advocate, Supreme Court, Shri
P.S. Rao, Joint Secretary, Legal and Treaties Division,
Ministry of External Affairs, Brig. Satbir Singh, Senior
Fellow and OSD in the Institute for Defence Studies and
Analysis and Shri Ravi Nair from the South Asia Human
Rights Documentation Centre. (On account of paucity of
time, several other participants could not speak on this
occasion.) Shri H.D. Shourie, Director, "Common Cause",
sent his written comments since he could not attend the
seminar personally. Other persons who sent written
comments include the following: Dr. M.L. Chibber,
General(Retd.), Shri L. David, IPS, Assam, Shri K.T.S.
Tulsi, Senior Advocate, Shri Rakesh Shukla, Secretary,
Peoples' Union for Democratic Rights, Shri K.G.
Kannibaran, President, PUCL, Shri Tapan Bose, Secretary
General, South-East Forum for Human Rights, Shri D.R.
Karthikeyan, Director General, NHRC and Shri A.K.
Srivastava, Judge Advocate General's Branch. Later,
South Asia Human Rights Documentation Centre also sent a
written representation. The Commission has taken note of several points
made by the above speakers. After taking into
consideration the several opinions expressed in these two
seminars and the responses received, the present report
has been prepared. CHAPTER II
SECURITY SITUATION IN THE COUNTRY In its Working Paper the Law Commission had set
out the following facts and figures in paragraphs 1.2 to
1.15 in chapter I. They read as follows:
"1.2 The law and order situation for some
years has continued to remain disturbed in
several parts of India. Militant and
secessionist activities in Jammu and Kashmir and
the insurgency-related terrorism in the
North-East have been major areas of concern.
Bomb blasts in different parts of the country,
including those in Tamil Nadu, constituted
another disquieting feature. There has been
extensive smuggling in of arms and explosives by
various terrorists groups. The seizures of these
items, which represent but a small percentage of
the total quantities brought in indicate the kindof sophisticated arms and explosives being
brought into the country illegally.The security situation in some
states/regions of the country is indicated below. 1.3 Jammu and Kashmir
There have been 45,182 incidents of
terrorist violence in J&K since 1988 and upto
March 1999. In this violence, 20,506 persons
have lost their lives. 3421 incidents of
violence took place in Jammu and Kashmir which
included 2198 cases of killing in 1997 alone.
5523 incidents and 2858 killings took place in
1996. In 1998, there were 2213 killings. There
were numerous cases of abductions, robberies,
extortions, explosions, incidents of arson and
killings. Civilians remained the major victims
of violence (1333 killed in 1996, 864 in 1997 and416 in the year 1998 upto June). Security forces
personnel, `friendly militants' and political
activists were the priority targets of the
militants. There has been an increase in the
number of casualties among security forces. 1.3.1 The militants are found to be well
trained. Most of them are of foreign origin.
Mercenaries and fanatic fundamentalist terroristsfrom Afghanistan, Sudan, Pakistan and other
countries are being inducted increasingly into
this movement. According to several reports, one
of the prime targets of international terrorist
leaders, like Osama Bin Laden, is Kashmir. The
terrorism in India has thus become a part of
international terrorism and India one of its
prime targets. Their targets are security forces
personnel, political activists, `friendly
militants', suspected informers and their
families, as also Hindus residing in isolated
pockets. They indulge in acts of demonstrative
violence, mainly with the help of explosives;
induction of more and more sophisticated
weaponry, including anti-aircraft guns and RDX.
They have extended the arc of terrorism to the
Jammu region, particularly Rajouri, Poonch and
Doda districts. 1.3.2 The militancy in Jammu and Kashmir has
left a large number of Hindu families homeless
and they had to migrate to other places outside
the State.
1.4 Punjab
The State remains vulnerable to sporadic
terrorist actions by the remnants of the
militants, numbering about 300, who appear to be
under pressure to revive the separatist movement.The militant bodies are funded and equipped
mainly by overseas activists. 1.4.1 The need for high level of vigil in order
to checkmate any attempts at revival of terrorism in the State, hardly need be overemphasised. 1.5 North-Eastern Region
Militant activities of various insurgent
and extremist groups and ethnic tensions have
kept the conditions disturbed in large areas of
the North East. 1.5.1 In Assam, ULFA, Bodo and Naga militancy
shows an upward trend in 1998, accounting for 735 incidents (603 killings) as against 427 incidents(370 killings) in 1997. This trend has continued
in the first eight months of 1999, which has
witnessed 298 incidents (208 killings). Nalbari,
Nagaon and Kamrup districts remain the worst
affected and Lakhimpur, Dibrugarh, Goalpara and
Jorhat districts moderately affected by ULFA
violence. 1.5.2 The Bodo militants were responsible for
178 incidents (215 killings) in 1997, as against
213 incidents (260 killings) in 1996. Bodo
militants were also responsible for 10 explosions(22 deaths) in 1997. During 1998, an upward
trend has been evident. 1.5.3 The NSCN(I) and its satellite, the Dima
Halam Deogah (DHD) in NC Hills and Karbi Anglong
districts and the NSCN(K) in Golaghat, Jorhat andSibsagar districts also indulged in violent
activities. There was a `ceasefire' agreement
(July 25, 1997) between the NSCN(I) and the
Government of India. 1.5.4 Overall militancy in Assam showed an
upswing in 1998, accounting for 735 incidents as
against 427 in 1997. The upward trend has
continued in the first eight months of 1999.
Police, security forces personnel and
uncooperative businessmen have been the main
targets of the outfits. 1.6 In Manipur, despite large scale security
forces operations, there has been a sharp rise inthe overall violence, involving Naga, Kuki and
Valley extremists, as also ethnic groups
resulting in several deaths. 1.6.1 The State witnessed a particularly high
rate of security forces casualties - 111
personnel lost their lives in 92 ambushes in 1997as against 65 killed in 105 ambushes in 1996. As
against total 417 incidents and 241 killings in
1996, these groups were responsible for 742
incidents in which 575 persons were killed in
1997. In 1998, 250 persons were killed in 345
incidents. During 1999 (upto August), there have
been 153 incidents claiming 100 lives. 1.7 In Nagaland, there was no let up by NSCN
and its factions in its violent activities such
as extortions, abductions and attacks on
civilians, etc. In 1998, there were 202
incidents which claimed 40 lives. Upto August
1999, 10 persons have been killed in 126 violent
incidents.
1.8 In Tripura, violent activities of the
various tribal organisations like the ATTF and
the NLFT, and assorted groups of lawless
elements, continued. During 1997, there were 303
violent incidents, involving 270 deaths, as
against 391 incidents (178 deaths) in 1996. In
1998, 251 persons were killed in 568 violent
incidents. During 1999 (till August), 417
incidents of violence have been reported,
resulting in 152 deaths. 1.8.1 The violence in all above cases mostly
took the form of ambushes, looting, extortion,
kidnapping for ransom, highway robberies and
attacks on trucks/vehicles as well as attacks on
the security forces personnel, government
officials and suspected informers. 1.9 In Meghalaya, on the militancy front, the
level of violence and killings by the HNLC and
Achik National Volunteer Council remained almost
unchanged. It is feared that in the North-East,
certain development funds allocated by the
Central Government have been siphoned off to fundinsurgent groups. The insurgent groups in the
North-East are also being helped across the
country's borders with illegal arms. They were
responsible for three deaths in 14 incidents in
1997 and 14 killings in 16 incidents in 1998 and
22 killings in 28 incidents in 1999 (till August
1999). 1.10 Religious Fundamentalist Militancy
Religious militancy, which had first
raised its head in 1993 with bomb explosions in
Mumbai, continue to make its presence felt. In
1997, there were 23 blasts in Delhi and three
each in Haryana and Uttar Pradesh. In the year
1998, Mumbai witnessed three explosions just
before the Parliamentary elections. Al-Ummah,
the Principal fundamentalist militant outfit of
Southern India, was responsible for 17 blasts in
different areas of Coimbatore (Tamil Nadu
February 1998). 1.10.1 A number of miscreants, including a few
Pakistan nationals and Bangladeshis, who were
responsible for the blasts in North India in
1997, were arrested. Investigations have
provided ample evidence of a sinister game plan
to undermine the internal security and integrity
of the country. Efforts are being made to forge
an alliance between Muslim militants and
terrorists of Punjab and J&K. Bases in Nepal and
Bangladesh, in addition to those in Pakistan, arebeing utilised for launching disruptive
operations in India. Recruits are being picked
up from amongst fundamentalist youth for
undergoing training in Pakistan as a prelude to
being inducted into Pakistan's proxy war against
India. Weapons and explosives are being pumped
into the country in large quantities, in
pursuance of the above game plan." Indeed, over the last few months since the
Working Paper was released, the security situation has
worsened. The hijacking of Indian Airlines flight,
IC-814, the release of three notorious terrorists by the
Government of India to save the lives of the innocent
civilians and the crew of the said flight, the subsequentdeclarations of the released terrorists and their
activities both in Pakistan and the Pakistan-occupied
Kashmir, have raised the level of terrorism both in
quality and extent. The repeated attacks upon security
forces and their camps by terrorists including suicide
squads is a new phenomenon adding a dangerous dimension
to the terrorist activity in India. Even in the last two
months, substantial quantities of RDX and arms and
ammunition have been recovered from various parts of the
country. Indeed, it is now believed that the plan for
hijacking of the Indian Airlines flight was hatched and
directed from within the country. After setting out the facts in paragraphs 1.2 to
1.15 in chapter I of the Working Paper, the Commission
summed up the position in the following words: "Some time back, the Union Home Minister
declared his intention to release a white paper
dealing with subversive activities of the ISI.
The ISI-sponsored terrorism and proxy war has
resulted in deaths of 29,151 civilians, 5,101
security personnel and 2,730 explosions.
Property worth Rs.2,000 crores is reported to
have been damaged. Almost 43,700 kg. of
explosives, mostly RDX, had been inducted and
61,900 sophisticated weapons had been smuggled
into India. It is estimated that security
related costs in countering ISI's activities havetotalled an amount of Rs.64,000 crores (Vide
Economic Times, New Delhi, 21 December, 1998,
p.2) - which could alternatively have been spent
on better purposes like education, health and
housing. 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 toaction 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 propertyof 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