A New Regime on Terror, A New Regime of Terror
- agnidas
- Jun 7
- 6 min read
In traditional parlance, notions of war and armed conflict have always carried an element of ‘collateral damage’. Such collateral damage, often seen as necessary, or an unfortunate side effect, is largely tolerated so long as the greater mission, for which the war was waged, is achieved. Within this context, several conflicts and wars waged between nation states would come to mind. However, there is another ‘war’, waged in the early 2000s, in which the entire world has been engaged consistently. This war was declared not against a nation state, nor a belligerent group, but rather an abstract concept – Terror.
There has been a lot that has transpired in terms of domestic legal frameworks since the reckless decision made by the UN Security council to pass Resolution 1373, calling upon nations to ‘take all necessary steps to prevent to commission of terrorist acts.’[1] Consequently, nations had been effectively granted a carte blanche to draft their own domestic counterterrorism laws and supplement them with specialised counterterrorism mechanisms such as task forces and special investigation teams. Much has been discussed relating to the evident risks of allowing such legislation to grow in civilised nations, and most of such discussions have been ignored. Counterterrorism measures remain one of the most common tools that all nations have at their disposal. Such tools are frequently mobilised to suppress political dissent. Nevertheless, the international society seems to be tolerant to such instances, as is demonstrably evident from the fact that such scenarios continue to take place throughout the world. Counterterrorism is and has been the favourite bogeyman which the State deploys to circumvent the rule of law. Such tolerance may be attributed to the very nature of this ‘fight’ that the international community has been engaged in. After all, it has been termed as the ‘WAR’ on terror, and as discussed above, in times of war, collateral damage is part of the equation, and justifiable to an extent. Therefore, if it is to be assumed that the ‘war’ against terror requires that freedom of speech and expression and other civil liberties be curtailed, the international community has largely accepted such a trade-off.
Nevertheless, a single thread of oversight and regulation remains in an otherwise unchecked legal landscape, which is that in most cases, counterterrorism legislations, provisions and mechanisms are considered to be specialised tools. The implication of this, is that as draconian as such legislations may be considered, they remain part of a specialised arsenal at the disposal of the State and generally kept away from the general legal framework of the country. It could be said that there exists an implicit line of division between counterterrorism measures and general law enforcement measures. States are generally required to provide some amount of reasoning, as fallible as that may be, to justify the deployment of special tools such as counterterrorism provisions against its own citizens. Such justifications are generally not required, or are governed by criminal justice norms and due process provisions, attached to the criminal process in general. In other words, in most nations, a parallel legal system exists, often with reduced protections and safeguards (such as right to an attorney, presumption of innocence) for dealing with terrorism related issues, alongside the general criminal framework of the country.
The case of the Indian State had been a vivid example, until recently, of such parallel legal systems which have accompanied the nation since its very inception. In recent developments, India witnessed a complete ‘overhaul’ of its criminal framework, as existing criminal laws were repealed and replaced with updated ones. Amongst several such updates, one stands out as distressing. The newly formed “Bharatiya Nyaya Sanhita, 2023” (BNS), which now acts as the current substantive criminal law of the country, incorporates a new offence, previously absent from the preceding Indian Penal Code, 1860 – that of Terrorism. Although India boasts one of the most stringent specialised counterterrorism laws in the world, which is the Unlawful Activities (Prevention) Act, 2019, (UAPA) the offence of a ‘Terrorist act’ was imported word for word from the UAPA[2] under Section 113 of the BNS.[3] What is significant to note here, is that the UAPA has not been repealed and still remains in force. The result is a duplication of the provision of terrorist act, under both the special legal regime, and the general criminal framework of India. The definition of terrorist act carries with it substantive issues revolving around vague provisions, broad powers of detention and lack of due process safeguards for those charged. What was significant under the previous regime, over which the UAPA had sole jurisdiction, was the requirement of prior government sanction before an arrest could be made.
The powers of arrest granted to the designated authority required a general or special order from the government prior to such an arrest.[4] Although criticised to be amounting to lip service in terms of safeguards, owing to the apparent conflict of interest, the requirement of some institutional sanction was attached to the charges brought against an individual under the UAPA. Such a requirement of sanction, essentially paperwork from the government, is not present in the primary criminal procedural code of India, The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which was previously the Code of Criminal Procedure. The implication of this from a jurisdictional perspective is grave, is it would imply that an offence which was initially crafted for a specialised legislation, has now been entrenched into the general legal framework of India. The ramifications of such a move paint a grim picture for the ordinary citizen, as where the previously the charge of terrorism required some form of government sanction, and consequently even a minimal form of documentation of reasoning behind such charge; the new criminal framework does away with any such requirements, casting the net wide enough to cover every individual of the country.
An additional peculiarity which is embedded within Section 113 of the BNS, can be found in the form of an explanation at the tail end of the provision. The provision explains that that the Police shall decide whether to register the case under this section of the BNS, or under the UAPA.[5] While on the face of it, this provision may seem like a benign duplication, the implications of the same are much more malignant. From a substantive perspective, the same offence being duplicated in two parallel regimes should not make much of a difference in terms of what constitutes the offence.
However, it is at this juncture at particular attention must be paid to the procedural dimension such scenarios. Normal criminal proceedings, for offences under the BNS, are governed and regulated by the BNSS. As such, those charged under the BNS are afforded certain procedural safeguards, such as the presumption of innocence, the right to a lawyer and the right to adversarial proceedings, amongst others. However, the UAPA marks an exception in this regard, as it rewrites certain provisions the criminal code[6], eroding the procedural safeguards present.[7] The resulting scenario is one where those charged under the UAPA are subject to a different criminal procedure, with little to no safeguards present to protect them against arbitrary State action.
Such an extreme measure was previously limited to the UAPA, a special legislation with minimal procedural safeguards. By providing the police the discretion to choose between the two statutes while charging an individual, what effectively happens is that the reach of the UAPA becomes significantly increased, as arrest and charge under the BNS does not require any prior State sanction as the UAPA does. Every arresting officer in India has the discretion to first use Section 113 to arrest and charge an individual. The provision then allows the police itself, with no judicial oversight to choose whether or not to continue under the BNS, and afford the individual the route with procedural safeguards, or to pursue the case under the UAPA, which would afford the individual practically no rights throughout the criminal process.
In terms of criminal justice, this finding should be alarming, as the rot which was previously contained within a specialised form of legislation has now contaminated the entire criminal framework of India. The phenomenon of what is known as contagion[8] in legal parlance has fully manifested within the legal system, where the initial contamination resulting in the erosion of basic criminal justice rights, previously contained within a specialised legal framework, has now metastasised into the general legal framework of the country. The new normal therefore, is one where every single person in the country, is now subject to be branded, treated and tried as a terrorist. While these observations are localised to India, the fact should not be discounted that India touts itself as the world’s largest democracy and plays a pivotal role in moulding the attitude of other democratic nations around the world on similar issues. No nation may be considered immune to contagion such as this, as it is evident that such contamination can happen even in the presence of democratic safeguards as the case is in India. In such a situation, one must beg the question, with collateral damage reaching to such an extent, as to whether the War on Terror has really become a Reign of Terror?
[1] United Nations Security Council Resolution 1373, S/RES/1373 (2001), ¶ 2(b)
[2] Unlawful Activities (Prevention) Act, 2019 [UAPA], Section 15
[3] Bharatiya Nyaya Sanhita, 2023 [BNS], Section 113
[4] UAPA, Section 43A
[5] BNS, Section 113
[6] UAPA, Section 43C
[7] UAPA, Section 43D
[8] Claire Hamilton, Contagion, Counter-Terrorism and Criminology: Justice in the Shadow of Terror (1st edn., Springer International Publishing 2019).
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