Anti-terrorism laws in India | Law Optional Notes for UPSC PDF Download

Anti-terrorism laws in India and the need of POTA

• In the new millennium, we are confronted with the growing threat of various entities, including regional aggressors, third-rate armies, terrorist organizations, and religious cults, seeking to gain disproportionate power through the acquisition and use of weapons of mass destruction. This concern was expressed by U.S. Secretary of Defense William Cohen.
• Starting with incidents in Varanasi, Delhi, and Mumbai, not to mention ongoing terrorist activities in Kashmir, bomb blasts have deeply shocked patriotic Indians. Such barbaric acts cannot be tolerated, and they should not receive any support or sponsorship from neighboring countries or domestic insurgents. The best way to address this issue is through prevention, and laws like the Prevention of Terrorism Act (POTA) were seen as a means to prevent such occurrences. Acquittals in cases like the Parliament attack were attributed more to poor prosecution than to flaws in POTA.
• After the 9/11 attacks on the World Trade Center, the global perspective on terrorism and terrorist organizations underwent a significant shift. Laws became stricter worldwide to combat such activities. In India, a similar change in outlook occurred, particularly following the December 13 attack on the Indian Parliament, a symbol of democracy. This led to the need for a more stringent law to ensure that terrorists could not evade justice. After the expiration of the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1995, which was widely criticized for its abuse, there was no effective law to counter the rising terrorist activities in India.
• India is currently facing a multitude of challenges in managing its internal security. There has been a surge in terrorist activities, an escalation in cross-border terrorism, and the presence of insurgent groups in various parts of the country. Terrorism has taken on a global dimension and has become a challenge for the entire world. Terrorist groups now leverage modern communication and technology, utilizing advanced communication systems, transportation, sophisticated weapons, and other means to strike and instill terror at will. The existing criminal justice system was not designed to handle such heinous crimes. Given this situation, there was a need to enact legislation for the prevention and handling of terrorist activities.
• In March 2002, during a session of the Indian Parliament, the Prevention of Terrorism Act (POTA) was introduced. It faced widespread opposition not only in Parliament but also throughout India, especially from human rights organizations. Critics argued that the act violated many fundamental rights provided in the Indian constitution. However, supporters of the act praised it for its effectiveness in ensuring the swift trial of those accused of terrorism. POTA was considered a useful tool in countering "state-sponsored cross-border terrorism," as envisioned by then-Home Minister L.K. Advani. The Prevention of Terrorism Act, 2002, was a contentious piece of legislation from its inception, intended to combat terrorism.

What is terrorism?

• The term "terrorism" has its origins in the French word "terrorisme," which is derived from the Latin verb "terrere," meaning "to cause to tremble." It was first used in 1795 to describe the actions of the Jacobin Club during the post-Revolutionary period in France, known as the "Reign of Terror." Interestingly, it is believed that the Jacobins may have coined the term "terrorists" to refer to themselves. Terrorism is a strategy that involves the use of violence, threats, or coordinated attacks to instill fear, disrupt society, and ultimately compel compliance with specific political, religious, or ideological demands.
• The European Union's 2002 definition of "terrorism" includes the objective of "destabilizing or destroying the fundamental political, constitutional, economic, or social structures of a country." In the United States, the Federal Bureau of Investigation (FBI) defines terrorism as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." The FBI categorizes terrorism as either domestic or international, depending on the origin, base, and goals of the terrorists.

Anti-Terrorism Laws in the USA and Pakistan

In Pakistan:

In 2002, an ordinance was issued in Pakistan allowing military officers to sit on the panel of judges for terrorist offense trials. This move not only undermines the independence of the judiciary but also makes the country's anti-terrorism laws even more oppressive. While these laws were deemed necessary to combat a surge in terrorist activities and serious offenses in Pakistan, they have resulted in severe human rights violations, including violations of the right to life, the prohibition of torture, the right to liberty and security, and the right to a fair trial.
These laws established anti-terrorism courts and granted extensive powers of arrest and interrogation to the police and the military. Amnesty International has criticized these legislative measures in its report titled "Legalizing the Impermissible: The New Anti-Terrorism Law." It's important to note that the existing legal and judicial system in Pakistan is already equipped to handle the offenses covered by these laws. The problem appears to be a lack of implementation rather than a lack of laws. However, in an attempt to conceal this inefficiency, Pakistan adopted anti-terrorism acts that provide for speedy trials without essential safeguards for the accused, unfair trial procedures, and even the authorization of lethal force.

The right to shoot to kill 1997 Anti-Terrorism Act Under Section 5(2)(1)

• The 1997 Anti-Terrorism Act includes Section 5(2)(1), which grants officers from the police, armed forces, and civil armed forces the authority to use force, including lethal force, against individuals who are committing or likely to commit a terrorist act or a scheduled offense, after providing a prior warning. This provision has been criticized for giving overly broad powers that could lead to summary executions. Critics argue that a modern civilized state should set strict limits on the circumstances under which firearms can be used to prevent arbitrary killings by security forces.
• Furthermore, these broad powers provided to the police, military, and civil armed forces are seen as a violation of major international human rights standards. Section 39 of the act grants indemnity for acts done in good faith, effectively providing immunity to security forces for their actions, including extrajudicial killings. This immunity may encourage law enforcement personnel to believe they can commit such acts without consequences as long as they claim they were acting in good faith, which undermines the principle of equal application of the rule of law.
• The act also allows confessions made to the police to be admissible in court, potentially putting pressure on law enforcement officials to resolve cases quickly and leading to an increased use of torture to extract confessions.
• Section 15 of the act allows the government to direct that the trial of a particular case be held at a specified place, including the scene of the crime. This provision is criticized for exposing the defendant to public outrage and potential violence, with the intention to humiliate and deter others, rather than ensuring a fair and detached trial.
• Additionally, the act restricts the right to bail, as only special courts can grant bail to individuals tried under the act. These special courts may deny bail if there are reasonable grounds to believe the defendant is guilty, giving the prosecution the power to veto the release of the accused.

Right to Appeal

Section 31 of the Anti-Terrorism Act states that judgments, orders, and sentences issued by special courts are final and cannot be challenged in any other court. This provision excludes the possibility of defendants appealing to regular judicial bodies like provincial high courts or the Supreme Court of Pakistan. This restriction means that individuals convicted and sentenced by special courts have fewer legal remedies compared to those convicted by regular courts, violating the principle of equality before the law and international human rights standards. Additionally, the right to appeal is further constrained by strict time limitations, with defendants having only seven days to file an appeal, while the prosecution has 15 days.

Furthermore, the Act appears to severely limit the right to appeal for individuals facing the death penalty. Section 7(1) of the 1999 Amended Anti-Terrorism Act mandates the imposition of the death penalty for terrorist acts resulting in death, leaving no discretion to the judiciary. Section 22 of the 1997 Anti-Terrorism Act allows the government to specify the manner, mode, and place of execution of sentences under this act, potentially opening the door to public executions.

In the USA:

The USA PATRIOT Act, enacted in response to the September 11, 2001 terrorist attacks, provides federal officials with expanded authority to track and intercept communications for law enforcement and foreign intelligence purposes. It also grants regulatory powers to combat financial corruption in U.S. financial institutions for foreign money laundering. The Act aims to enhance border security, detain and remove individuals within U.S. borders, create new crimes and penalties for domestic and international terrorists, and establish procedural efficiencies for law enforcement. While it includes safeguards, critics argue that some provisions go too far.

Criminal Investigations:

The Act modifies federal communications privacy law to balance the protection of private communications with the need to identify and intercept criminal communications. It allows law enforcement to seek court orders for electronic surveillance in serious criminal cases, subject to approval by senior Justice Department officials.

Foreign Intelligence Investigations:

The Act eases restrictions on foreign intelligence gathering within the U.S. and grants the U.S. intelligence community greater access to information uncovered during criminal investigations while establishing safeguards against abuse. It permits roving surveillance and enhances surveillance capabilities.

Alien Terrorists and Victims:

The Act contains provisions to prevent alien terrorists from entering the U.S., detain and deport alien terrorists and their supporters, and provide immigration relief to foreign victims of the September 11 attacks.

New Crimes and Penalties:

The Act creates new federal crimes for terrorist attacks, biological weapons offenses, harboring terrorists, providing material support to terrorists, money laundering, conducting enterprise affairs related to terrorism, and fraudulent charitable solicitation. It supplements existing law and increases penalties for various offenses.

Other Procedural Adjustments:

The Act increases rewards for information in terrorism cases, authorizes "sneak and peek" search warrants, allows nationwide execution of warrants in terrorism cases, facilitates government access to confidential information, permits DNA sample collection from prisoners convicted of federal violent or terrorism-related crimes, extends the statute of limitations for terrorism crimes, clarifies the application of federal criminal law on U.S. government installations and overseas residences, and adjusts federal victims' compensation and assistance programs.

History of anti-terrorism laws in India

• Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly from religious to geographical to caste to history. The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab [1994] 3 SCC 569, where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.
• Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature and upheld by the judiciary though not without reluctance. The intention was to enact these statutes and bring them in force till the situation improves. The intention was not to make these drastic measures a permanent feature of law of the land. But because of continuing terrorist activities, the statutes have been reintroduced with requisite modifications.
• At present, the legislations in force to check terrorism in India are the National Security Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-terrorism laws in force in this country a different points in time. Earlier, the following laws had been in force to counter and curb terrorism. The first law made in independent India to deal with terrorism and terrorist activities that came into force on 30 Dec 1967 was

The Unlawful Activities (Prevention) Act 1967

The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. When the Bill was debated in Parliament, leaders, and cutting across party affiliation, insisted that its ambit be so limited that the right to association remained unaffected and that the executive did not expose political parties to intrusion. So, the ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

• The second major act came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Kartar Singh vs State of Punjab (1994) 3 SCC 569.
• However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995. Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act, 1999 which was enforced on 24th April 1999. This law was specifically made to deal with rising organized crime in Maharashtra and specially in Mumbai due to the underworld. For instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA. For, POTA did not take note of organised crime as such while MCOCA not only mentions that but, what is more, includes `promotion of insurgency' as a terrorist act. Again, the onus to prove a person guilty under POTA lies on the prosecution while under the Maharashtra law a person is presumed guilty unless he is able to prove his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its misuse. But POTA did.

The need of POTA

• The need for the Prevention of Terrorism Act (POTA) is evident due to the severe impact of terrorism in India, which has been described as a low-intensity war. Over the past two decades, the country has suffered immense losses, surpassing even the casualties and economic costs of high-intensity wars. India has lost over 6,000 lives in four major wars, but terrorism has claimed the lives of more than 70,000 civilians and over 9,000 security personnel. Additionally, nearly 600,000 people have been displaced from their homes as a result of terrorism.
• The economic cost of combating insurgency and cross-border terrorism alone has reached Rs 45,000 crore. The budget allocated for anti-terrorism and anti-insurgency activities has increased 26-fold in the last 15 years. Furthermore, explosives weighing 48,000 kilograms have been confiscated by security agencies, indicating the extent of the threat.
• Terrorism has affected various regions of India, including Kashmir, Punjab, Mumbai, Delhi, the North East, and areas in Andhra Pradesh, Orissa, Madhya Pradesh, Chattisgarh, Jharkhand, and up to the Nepal border. Even Tamil Nadu has experienced insurgency and terrorism, and the country lost two former prime ministers to such acts.
• Terrorism poses a significant threat to India's sovereignty, unity, integrity, and nationalistic values. However, it is also acknowledged that the country's criminal justice system is struggling. The conviction rate under ordinary laws is often misrepresented, with even minor fines being counted as convictions. For example, in cases of heinous crimes like murder, the conviction rate under regular legal processes has dropped to just 6.5%.
• The reality is that crime in India has become a low-risk, high-profit business, with a 93% probability of criminals escaping justice. Therefore, it is crucial to have stringent anti-terrorism laws like POTA in place to ensure that perpetrators are held accountable and do not escape punishment due to the loopholes and shortcomings in ordinary laws. Neighboring countries like Pakistan, which are responsible for perpetrating terrorism in India, have stringent laws to address this issue, making it essential for India to have similar legislation.

Analysis of some important sections of Pota

In the case of People's Union for Civil Liberties Vs. Union of India (UOI) in 2004, the constitutional validity of the Prevention of Terrorism Act (POTA) of 2002 was discussed. The court ruled that the Parliament had the power to legislate the Act under Article 248 and entry 97 of List I of the Seventh Schedule of the Indian Constitution. The need for the Act was considered a matter of policy, and the court could not question it. Once legislation is enacted, the government has a duty to use all available options to prevent terrorism within the framework of the constitution. The mere possibility of abuse cannot be a reason to declare a statute unconstitutional. The court upheld the constitutional validity of various provisions of POTA.

Section 3(a) - Definition of a Terrorist Act

This section defines a terrorist act as any action taken with the intent of threatening India's unity, integrity, security, and sovereignty or causing terror among the people. It involves using explosive substances, firearms, lethal weapons, poisonous gases, or hazardous chemicals in a manner that results in death, injuries, property damage, or disruption of essential supplies or services.

• Case Law: In the case of Devender Pal Singh Vs. State of N.C.T. of Delhi 2002, where nine people died and several others were injured due to terrorist acts, the court ruled that terrorists who show no regard for human life and engage in mindless killing should be sentenced to death. Any compassion toward such individuals would defeat the purpose of enacting POTA and would be misplaced and unwarranted sympathy.
• Argument Against: Some argue that trade union activities could be affected because anyone disrupting essential supplies could be covered under POTA.
• Argument in Favor: Supporters argue that trade union leaders are usually nationalist leaders, and nobody has suggested that their strikes threaten India's unity, integrity, security, or sovereignty.

Section 4 - Possession of Unauthorized Arms

This section deals with the unauthorized possession of arms, including bombs, dynamite, hazardous explosive substances, lethal weapons capable of mass destruction, or biological or chemical substances of warfare in any area, whether notified or not.

• Case Law: In the case of Sanjay Duttt Vs. State through C.B.I 1994, the term "possession" was discussed, and it was clarified that possession in this context means conscious possession, involving a mental element where the person is aware of the nature of their possession.
• Argument Against: Critics argue that this section brings offenses under the Arms Act under POTA, regardless of whether a person carrying such arms has any connection to terrorism.
• Argument in Favor: Advocates argue that the section only applies to those who are in unauthorized possession of arms, meaning they lack the proper licenses for such arms. It also specifies that the weapons should be capable of mass destruction or biological or chemical warfare, which raises questions about why someone would possess such weapons without authorization.

Section 7 Powers of investigating officers

If any officer (not below the rank of SP) investigating an offence committed under this act, has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism he shall with prior approval in writing from Director General of Police of which the property is situated can make an order to seize or attach such property.

• Argument against: The petition articulates the fear that permitting a police officer to act on the basis of his belief will be "draconian and unguided.
• Argument in favour: Case Law - T.T. Anthony Vs. State of Kerala 2001 Cri LJ 3329 This plenary power of police to investigate a cognizable offence is not unlimited. It is subject to certain limitations such as if no cognizable offence is disclosed & still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation.
• Section 21 Offence relating to support given to a terrorist organisation:
  • A person commits an offence if:
  • He invites support for a terrorist organization, and
  • The support is not , or is not restricted to, the provisions of money or other property
•  A person commits an offence if he arranges, manages or assists in managing or arranging a meeting which he knows is:
  • to support a terrorist organization, or
  • to further the activities of a terrorist organization, or
  • to be addressed by a person who belongs or professes to belong to a terrorist organization.

A person commits an offense if they organize a meeting with the intention of garnering support for a terrorist organization or furthering its activities.

Case Law: Vaiko's Case

• One of the cases related to this matter was brought before the Supreme Court by Vaiko, the general secretary of the MDMK, which is a part of the ruling National Democratic Alliance in India. Vaiko had previously supported the Prevention of Terrorism Act (POTA) in Parliament during a debate on the act's validity. He challenged the legitimacy of Section 21 of the Act, which is of particular importance. This section makes it an offense for a person to solicit support for a terrorist organization, even if the support does not solely involve providing money or property. It deems someone guilty if they arrange or speak at a meeting with the knowledge that it is meant to support a terrorist organization or advance its activities.
• Vaiko was arrested under this Section based on certain statements he made, such as, "I was a supporter of LTTE once. I was a supporter of LTTE yesterday; I am a supporter of LTTE today and I will be a supporter of LTTE tomorrow." He then questioned whether the LTTE had engaged in terrorism merely for the sake of violence or if it had taken up arms to suppress a culture. Vaiko remained in detention for 17 months and did not seek bail on a matter of principle.
• Internationally, when examining various chapters related to terrorism, it was found that British law has a dedicated section for banning terrorist organizations. After a terrorist organization is banned, being a member of that organization becomes a punishable offense.
• Section 22 - Fundraising for a Terrorist Organization as an Offense: This section defines an offense if a person:
  • Invites, receives, or provides money or other property
  • Intends that such funds should be used for terrorism or has reasonable cause to suspect that they may be used for such purposes.
• A crucial addition that was absent in the Terrorist and Disruptive Activities (Prevention) Act (TADA) is the inclusion of fundraising for terrorism as an offense. If you earn money through criminal activities, such as terrorism, two offenses arise from that act. Anyone who funds terrorism is considered guilty, as funding terrorism amounts to aiding and abetting it and providing resources to terrorists. Previous terrorist laws worldwide did not include a section on funding terrorists, but the aim now is to instill fear and deter those who provide financial support to terrorists.
• The concept is that profits obtained from criminal activities must be confiscated because they cannot belong to an individual. It's argued that India's provision for confiscating profits from terrorism should not be seen as draconian but as a necessary step to combat terrorism effectively.

Section 27 - Powers to Obtain Samples 

This section empowers a police officer conducting an investigation to request a Chief Metropolitan Magistrate to obtain samples (such as handwriting, footprints, photographs, blood, saliva, semen, hair, or voice) from an accused person reasonably suspected of involvement in an offense under this act. The Chief Metropolitan Magistrate is authorized to issue orders for obtaining such samples. If an accused person refuses to provide these samples, the court may draw adverse inferences against the accused.

Case Law - S. Srinivasa Vs. M/s Deccan Petroleum Ltd. 2001 Cri LJ 659 

In this case, the court held that if the refusal to issue a summons for the production of documents is prejudicial to the accused, such an order is not sustainable.
It's essential to note that the power to collect samples is not granted directly to the police authorities. Instead, it requires a police officer to make a request to the Chief Metropolitan Magistrate, who can then issue orders to obtain the samples. Only if the Chief Metropolitan Magistrate orders the collection of samples can the accused be compelled to provide them. If the accused person declines to provide samples, adverse inferences may be drawn by the court.

Section 32 - Consideration of Confessions Made to Police Officers 

This section allows for the admissibility of confessions made by a person before a police officer not lower in rank than a Superintendent of Police (S.P.), provided that the confession can be reproduced in sound or images. Such confessions are admissible as evidence in the trial of the person for offenses under this act.

Case Law - Devender Pal Singh Vs. State of N.C.T. of Delhi 2002 (1) SC (Cr.) 209 

The court stated that the court trying the offense has the authority to determine the admissibility and reliability of a confession. It must do so while adhering strictly to the law and ensuring that no trap or coercion was involved. The court must be satisfied that the confessional statement was made voluntarily and without undue pressure during custodial interrogations. If the court is satisfied, the confessional statement will be considered as evidence.
Confessions are made admissible evidence, and provisions for video recording have been introduced. Within 48 hours, the accused must be brought before a magistrate who will inquire into the voluntariness of the confession. If the accused claims the confession was not voluntary, that they were coerced or assaulted, a medical examination will be conducted as a safeguard.

Section 45 - Admissibility of Intercepted Communication Evidence 

This section establishes that evidence collected through the interception of wire, electronic, or oral communication is admissible in court during the trial of a case, regardless of the provisions of the Code of Criminal Procedure or any other existing law.
In summary, these provisions aim to strengthen the legal framework for dealing with terrorism by allowing for the admissibility of samples, confessions, and intercepted communication evidence, with safeguards in place to ensure fairness in proceedings.

Bail Provision 

The bail provision in the Prevention of Terrorism Act (POTA) differs from the standard bail provisions found in the Criminal Procedure Code (CrPC). Under POTA, a person cannot be granted bail unless there is a reasonable belief, often determined by the public prosecutor's opposition to the bail application, that the person is innocent and will not commit an offense. This language was more stringent than that in the CrPC.
However, this language was relaxed under POTA, making it somewhat easier for individuals to secure bail.

Action Against Police Officers 

POTA includes a provision that allows for the prosecution of police officers who misuse the law for personal gain or other improper reasons. This provision serves as a safeguard against potential abuse of the law.

Some key safeguards in POTA include:

• Investigation of offenses under the Act must be conducted by an officer of at least the rank of Deputy Superintendent of Police.
• No court can take cognizance of an offense under the Act without the sanction of the State.
• Safeguards are provided to prevent the abuse of provisions related to the admissibility of confessions made before a police officer.
• Immediate notification of an accused person's arrest to a family member is mandatory, and this information must be recorded by the arresting police officer.
• The Act includes provisions for the prosecution of police officers for malicious actions under the Act and offers compensation to affected individuals in such cases.

State Governments and Union Territory Administrations were advised to ensure that POTA was used only against terrorists and not against innocent individuals. They were also encouraged to educate police officers and other relevant authorities about the fair and transparent application of POTA and to establish mechanisms for overseeing its implementation.
It's worth noting that unlike POTA, the Maharashtra Control of Organized Crime Act (MCOCA) does not specify prosecution of police officers found guilty of misuse. Additionally, POTA was applicable in the state of Jammu and Kashmir, whereas other laws may not have extended to that region.

Consequences of repeal of POTA

On September 17, 2004, in line with the UPA government's Common Minimum Programme, the Union Cabinet approved ordinances to repeal the controversial Prevention of Terrorism Act (POTA) of 2002 and amend the milder Unlawful Activities (Prevention) Act (UAPA) of 1967.
This had several consequences:

• Repeal of POTA: POTA, a law designed to combat terrorism, was repealed, which weakened the state's ability to deal with terrorism.
• Transfer of Provisions: Most of the penal provisions related to terrorist organizations and activities in POTA were transferred to the existing Unlawful Activities (Prevention) Act. The definition of unlawful association was broadened to include activities punishable under Section 153A of the Indian Penal Code, which deals with promoting enmity between different groups.
• Arrests: After the promulgation of these ordinances, no new arrests were made under POTA.
• Bail and Police Remand: Special provisions in POTA that restricted release on bail and allowed longer police remands for accused individuals were dropped. This meant that suspected terrorists could secure bail more easily, making it challenging for the police to conduct complex investigations.
• Burden of Proof: Unlike POTA, where the burden of proof rested with the accused, the burden shifted to the police under UAPA. There was no presumption of guilt, and the police had to establish the accused person's criminal intent for the offense in question.
• Evidence: While UAPA was less strict in some aspects, it was more stringent in the admissibility of telephone and email intercepts as evidence. Police could introduce intercepts in court without adhering to the safeguards provided by the repealed POTA, potentially allowing for evidence tampering.
• Banning Organizations: UAPA originally dealt with banning unlawful organizations, but it was amended to include a separate chapter for banning terrorist organizations. However, the procedure for banning a group on terrorism charges was easier than for unlawful activities. Banning for unlawful activities required ratification by a judicial tribunal, while terrorism charges did not have this requirement.
• Territorial Integrity: UAPA was initially designed to address associations and activities that challenged India's territorial integrity. It had a limited scope to protect the right to association and avoid intrusion by the executive into political parties.

In summary, the repeal of POTA and the amendments to UAPA led to changes in legal procedures, evidentiary rules, and the ease of banning organizations, raising concerns about the effectiveness and fairness of the legal framework for dealing with terrorism in India.

Unlawful Activities (Prevention) Amendment Act, 2004

The Unlawful Activities (Prevention) Amendment Act of 2004 represents a significant departure from the earlier Prevention of Terrorism Act (POTA). While some provisions are shared between the two, it is overly simplistic to claim that the new law merely retains POTA's operational effectiveness with cosmetic changes.
Here is an overview of the amended act:

• Definition of Terrorism: Unlike the 1967 Act, the amended Act does not explicitly define the term "terrorist." Instead, it defines a "terrorist act" as any act carried out with the intent to threaten India's unity, integrity, security, or sovereignty, or to instill terror in the people. This act includes various methods such as using explosives, firearms, poisons, or hazardous substances in a manner likely to cause death, injuries, damage to property, or disruption of essential services.
• Unlawful Activity: The previous Act focused on unlawful activities, which encompassed actions aiming at the secession of a part of India's territory, incitement of such actions, disclaiming India's sovereignty, or causing disaffection against India.
• Declaration of Unlawful Associations: The Central government is responsible for declaring an association unlawful, with reasons provided for such a declaration. This declaration is then referred to a Tribunal, which issues a notice to the concerned association to show cause why it should not be declared unlawful.
• Sanction for Offences: Prior sanction from the Central or State government is required to take cognizance of any offense under this Act. The Criminal Procedure Code, 1973, applies to matters related to arrest, bail, confessions, and burden of proof. Arrested individuals must be presented before a magistrate within 24 hours, confessions are not admissible before police officers, and bail cannot be denied for the first three months. The presumption of innocence, with the burden of proof on the prosecution, has been reinstated.
• Admissibility of Intercepted Evidence: The Act allows evidence collected through the interception of wireless, electronic, or oral communications, in accordance with the Indian Telegraph Act, Information Technology Act, or any applicable law, to be admissible in court.
• Penalties: The amended Act prescribes penalties for various offenses, including being a member of an unlawful association. Penalties may include imprisonment for up to two years and fines. For more severe cases involving unlicensed firearms, explosives, or acts resulting in loss of life or significant damage, harsher penalties are imposed.

In summary, the Unlawful Activities (Prevention) Amendment Act of 2004 introduces significant changes compared to POTA, particularly in the definition of terrorist acts, declaration of unlawful associations, and the legal procedures governing offenses and evidence. It restores certain legal safeguards related to arrest, bail, and confessions, and clarifies the admissibility of intercepted evidence.

Death or imprisonment for life

• Imprisonment for not less than five years. Dealing with funds of an unlawful association Includes an association declared unlawful by the central government. Such association is prohibited from dealing in any manner with moneys, securities or credits pays. Imprisonment upto three years, or fine, or both. Contravention of an order made in respect of a notified place Includes use of articles for unlawful activities found in a notified place (i.e. a place used for unlawful association and so notified by the central government). Imprisonment upto one year. Unlawful activities Includes taking part in or committing an unlawful act, advocating, abetting, advising or inciting the commission of any unlawful activity. Assisting an unlawful organization in its activities. A term of seven years and fine.
• Imprisonment upto five years or fine, or both. The amended law now contains new provisions dealing with terrorist acts,
• the offences and their punishments. Chapter IV, sections 15-22. The following table summarises these provisions:
  • Offence Punishment Terrorist act Resulting in death of any person In any other case Death or imprisonment for life.
  • A term for not less than five years Raising funds for a terrorist act Term not less than five years.
• Conspiracy Term not less than five years. Harbouring Imprisonment for not less than three years. Being a member of a terrorist organization The term may extend upto imprisonment for life.
• Holding proceeds of terrorism May extend to imprisonment for life. Threatening witnesses Imprisonment upto three years.
• There is a provision in the Act which provides for enhanced penalties. Any person aiding a terrorist or acting in contravention to Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 or the Arms Act, 1959, or has unauthorized possession of bombs, explosives, etc, will be punished with a term not less than three years and may extend for life (Section 23). The Act also gives power to the Central and the State Governments, as the case may be, to forfeiture the proceeds of terrorism. The investigating officer is empowered to seize the concerned property with the prior approval of the Director General of the police of the State (Section 24 and 25). Cash (including monetary instruments) can also be seized if it is intended to be used for purposes of terrorism. The Court confirms the seized property and orders its forfeiture Section 26. An appeal to the High Court against the forfeiture is allowed within one month from the date of receipt of such order.
• Chapter VI of the amended Act gives power to the Central government under section 35 to add or remove an organization in the schedule as a terrorist organization. Under section 36, an application can also be made to remove an organization from the schedule. Such an application can be made by an organization or any affected person. 

The offences and penalties under this chapter as given below:

Offences Punishment

• Membership of a terrorist organization (S. 38) Imprisonment not exceeding ten years. Supporting a terrorist organization (S. 39) Imprisonment not exceeding ten years. Raising funds for terrorist organization (S. 40) A term not exceeding fourteen years.
• The Act also provides for protection of witnesses under section 44 such as keeping the their identities secret even in orders, judgments and records of the Court, issuing directions to secure the identity of the witnesses and by imposing punishment for contravention of any such directions.

Conclusion

In conclusion, there have been concerns and objections raised by various individuals and NGOs who cite constitutional provisions, civil rights, and equality before the law as reasons for opposing stringent anti-terrorism legislation like the Prevention of Terrorism Act (POTA). These critics argue that such laws can infringe on civil liberties and human rights.
However, it's important to note that the Constitution allows for reasonable restrictions on individual liberties, particularly in the face of increasing terrorist activities. Events like the 9/11 attacks in the United States and the December 13 attack on the Indian Parliament highlight the urgent need for legislation like POTA to combat terrorism.
While there are safeguards in place to prevent the abuse of such legislation by unscrupulous law enforcement officers, these safeguards have been overlooked by those advocating for its repeal. The repeal of POTA is often seen as a political move to gain votes rather than a thoughtful consideration of national security.
In extraordinary situations, like the growing threat of terrorism, extraordinary remedies are required. Critics who emphasize human rights and restraint must understand the grave consequences of unchecked terrorism, including the loss of innocent lives and damage to national security.
It's crucial to remember that India is facing a severe terrorism threat, and the nation's security forces and law enforcement agencies need the legal tools to effectively combat it. While maintaining respect for human rights, it's essential to provide these agencies with legitimate powers to protect the country's integrity, sovereignty, and unity.
In light of these considerations, there is a strong argument for reintroducing legislation like the Prevention of Terrorist Activities Act, which can help prevent and deter acts of terrorism by providing law enforcement agencies with the necessary tools to bring terrorists to justice.