“You cannot avoid war in life; you cannot avoid the fear of terrorism; you cannot avoid those things now; they are a part of everyday demeanour.” – John Mayer
Terrorist and Disruptive Activities (Prevention) Act, 1985 was the first counter terrorism enactment in India. However, this act was a temporary solution to the upsurge of insurgency and disruptive activities prevalent within the country. This act was misused widely throughout the country which led to the violation of human rights on a large scale. The Terrorist and Disruptive Activities (Prevention) Act, 1985 was repealed because of the pressure of the National Human Rights Commission although the Supreme Court had upheld the constitutional validity of the said Act. The Supreme Court considered that the country was in a strong trap of spiralling terrorist violence and that the youth were attracted by the ideologies professed by these terrorist organisations for committing serious and heinous crimes against humanity. The Law Commission realised the need of a stronger Act which would protect the country against fatal terrorist attacks. As a result, The Prevention of Terrorism Bill was passed. The Prevention of Terrorism Act was passed on 26th March, 2002 and its constitutional validity was upheld. In 2004, the Government again repealed this Act and reintroduced the Unlawful Activities (Prevention) Act, 1967 with the main objective to fight terrorism. The Unlawful Activities (Prevention) Act has been further amended in 2008 and 2012 to strengthen the measures that need to be taken in order to deal with terrorism.
At present, terrorism is a major problem all over the world. Terrorist activities result in declining a country’s economy and also harm relations between various countries. Terrorists are not born but they are made in the name of religion and customs. No religion in this world preaches terrorism. It is preached by anti-religious people who attract and force the innocent people to fall as prey and boost the destruction activity that leads to terrorism. Terrorism does not take the same form in all countries. These activities usually differ from one country to another. In Somalia, terrorist activities are usually carried out by pirates, wherein they hijack ships every now and then and release these ships only when they get a hefty ransom for the same. This has resulted in tension in Somalia which has led to the United Nation Organisation to ask the member countries to counter attack by sending their respective forces. In this case, India has been following the United Nation Organisation order to the letter. Indian Navy has been constantly doing a great job by preventing a lot of ships being hijacked. In Afghanistan, terrorist organisations work under the grab of Taliban and this organisation has trashed the country n number of times. In Iraq, the dictator Sadam Hussein, who was sentenced to death by hanging after being found guilty by Iraq Special Tribunal for murder of 148 Iraq citizens specifically the Shia’s of Iraq in the year 1982 but the effect created in his own country, will take a decade at least for that country to recover from its present status. The brutal attack on Twin Tower on September 11, 2001 in USA has shaken the world to a great extent. The attack on our own Indian Parliament on December 13, 2001 was also a terrorist attack by Lashkar-e-Taiba. It was also a test to check the patience of Indians. Indians have fought against these destructive elements bravely. The main convict in this attack was Mohammed Afzal Guru who was sentenced to death following the attack.
Indians after this parliament attack recovered and once again lived a happy life until 2008. Grief and sorrow emerged on the night of November 26, 2008, with heavy bombings and hostages taken by terrorist groups in the Taj Hotel, Oberoi’s Hotel Trident and Nariman House in Mumbai. Financially, India suffered a great setback and the foreign inflow of funds was also reduced drastically, which included tourism, which was affected to a great extent because of this attack and the Taj Hotel, on which the attack was perpetrated, had to shell out Rs.500 crores to bring back the lost beauty of its heritage property. On top of this the most important element, that is, a great number of human lives were lost. The Government officials, the police, the NSG Commandos, the army and all other security officials were on duty to protect every person who was caught in this attack and as a result, a number personnel belonging to these higher authorities, lost their lives in this attack which includes, Vijay Salaskar, Ashok Kamte, Hemant Karkare, Major Unni Krishnan, NSG Chief. Needless to say, many other innocent lives were lost in this attack.
The Supreme Court has held in a plethora of cases that death sentence can be awarded only in the rarest of rare cases. The Mumbai attack was one such case wherein death sentence was awarded to Ajmal Kasab, one of the terrorists who was involved in the fracas and was caught alive. The attack on Mumbai was an attack was not only on India as a nation, but on every individual constituting this nation. Ajmal Kasab and his comrades; entered India illegally, brought arms and ammunitions illegally, lobbed grenades, fired indiscriminately and killed brutally. Pakistan based terrorist organization –Laskhar-e-Taiba not only master minded the attack but also handled the terrorists- instructed, informed and guided them, using voice over Internet Protocol. This was a conspiracy to wage war against the Government of India, to liberate Kashmir. 166 were killed and 238 injured in this attack. Kasab was tried with 2 other accused persons, 9 dead accused and 35 wanted accused for various offences under the following legislations: Indian Arms Act, 1959; Explosives Act, 1884; Explosive Substances Act, 1908; Passport (Entry Into India) Act, 1920; Prevention of Damage to Public Property Act, 1984; Railways Act, 1989; Customs Act, 1962; Foreigners Act, 1946, and The Indian Penal Code, 1860.
Ajmal Kasab was awarded 5 death sentences, 5 sentences of life imprisonment and a total of 66 years and one month of rigorous imprisonment. The total fine amount imposed was Rs.1, 36,900/-. There was no separate sentence imposed for conspiracy in respect of certain other minor offences and abetments, as death sentence had already been awarded. All the sentences were confirmed by the High Courts and the Supreme Court of India. Ajmal Kasab’s petition for Presidential clemency was turned down and he was executed. A senior lawyer was appointed for Ajmal Kasab at the expense of the state for the trial and appeals. Among other things, the senior lawyer argued for him that the confession given to magistrate was not voluntary and that he was not afforded a lawyer during the pre-trial proceedings and therefore the trial was vitiated. The Supreme Court of India had laid down that it was the state’s duty to provide a lawyer even during pre-trial proceedings. However, Ajmal Kasab wanted a lawyer from Pakistan to defend his case and he also requested the Pakistan Government for the said appointment of a lawyer but his request was rejected outrightly by the Pakistan Government. There was no prejudice caused in this case because of strong evidences and his confession before the trial court.
Terrorists fail to understand that by acting in the name of terrorism, they are bringing disgrace and tension to their own religion and at the same time ruining and weakening their own country and people. India should have a dedicated legislation with extra integrated and practical approach. Every person residing in India should boldly exhibit its firm determination to eradicate terrorism. Prevention of and protection against terrorist activities should be the main objective of every provision established under the Unlawful Activities (Prevention) Amendment Act, 2004 and it should include provision for aid to victims and public officers who are involved in the prevention, investigation etc. of terrorism. Surveillance and vigilance should be strengthened; human rights should not be refused. People should be united and at the same time alert. The Juvenile Justice Act, 2000 should deal with juveniles indulging in terrorism in the strict sense; necessary amendments should be made. Mercy powers of the President and Governors should be regulated through law to eliminate misuse and delay; clemency should be strictly denied for terrorist acts. The Supreme Court has recently held that long delay in deciding the mercy petition as a ground for commuting the death sentence into life imprisonment cannot be invoked in cases where a person is convicted under Terrorist and Disruptive Activities (Prevention) Act, 1985. The national security is our collective security and it is our fundamental duty to uphold and protect the integrity, sovereignty, and unity of India. The country’s counter-terrorism establishment needs to stop focussing on appearing impressive on television and other media sources, and to actually work in a practical and real sense to bring about serious reforms, nationwide. The convicts of 26/11 Mumbai attack leave us with a question as to whether the death sentence provided to Ajmal Kasab was pardonable? Did sentencing Kasab to death bring about any effective changes in the country? And whether the level of terrorism has been reduced ever since the sentence has been passed?
About the Author
Deepali is currently pursuing her 2nd year of Law at SVKM’s Pravin Gandhi College of Law, Mumbai. Her core areas of interest are Company law, Cyber law and Property law and she wishes to pursue the same in the future. She likes debating and mooting. Her hobbies include listening to music, travelling and meeting new people. Besides that, she loves to be a part of social causes and is also an active member of an NGO in Mumbai. Currently she is interning with Model Governance Foundation.