Marking a significant shift in the criminal justice system, the Bhartiya Nyay Samhita (BNS), Section 113, has incorporated provisions and sub-clauses from the Unlawful Activities Prevention Act (UAPA), a special Act, explicitly defining a 'terrorist act' within the penal statute. The incorporation of these provisions bypasses the procedural safeguards established in the UAPA. In 2021, the Special Rapporteur had pointed out the inconsistency in defining a 'terrorist act' as per international laws.
The word terrorism comes from the Latin word 'terrere' meaning 'to frighten'. It entered the English lexicon following the French Revolution when the Jacobin Club adopted a temporary domestic policy 'Que la Terrur soit a L’order' – 'Terror, the Order of the day' marking the onset of the ‘Reign of Terror'. The orchestrated state terror contrasts with the modern perception of terrorism. The latter remains in a definitional limbo lacking an international consensus. Defining terrorism is difficult for several reasons; one being "the term is imprecise, it is ambiguous and above all, it serves no operative legal purpose", as Justice Richard R Baxter, International Court of Justice, has said.
The word terrorism gained traction in the new millennium after the devastating 9/11 attacks which culminated in the 'global war on terrorism'. However, the definition of terrorism eluded international consensus because of the inherent trilemma. To begin with, whether to adopt a deductive approach in defining terrorism rendering it with a generic definition risking the inclusion of ordinary criminal acts; or an inductive approach, crafting a precise formula safeguarding the public functionaries (i.e., the state) which would only render the definition inadequate. Lastly, there is the issue of discriminating between terrorist offences and political offences.
The provision in the BNS relating to a 'terrorist act' is broad and devoid of requisite sanction from the state or central government before court proceedings, threatening potential abuse in the application of the law. In 2022, a private member Bill was introduced in Parliament to repeal the UAPA. Though it is unlikely that the Bill would become an Act, in the past Parliament had stepped up and repealed the counter-terrorism laws on account of its abuse. In that case, if the provision in the BNS survives, it would preserve the relics of UAPA without adequate procedural safeguards.
Despite the well-established legal principle of ‘generalia specialibus non-derogant’ -- general laws should not override special laws -- the BNS’s inclusion of terrorism’s definition raises queries about the rationale and its potential implications for legal protections. This is especially in light of statistics that under the provisions of UAPA, 4,690 persons were arrested between 2018 and 2020, of which only 3 percent were convicted. As a side effect, they were socially stigmatized as terrorists.
The provision in the BNS defining a 'terrorist act' is notably vague, using ambiguous terms like 'likely to threaten' or 'overawes by means of criminal force', with criminal force meaning intentional use of force. By including 'destruction of public property in India' as a terrorist act, the provision dangerously conflates ordinary criminal acts with terrorism. The imprecision in the codification would grant excessive discretion to the police in classifying various criminal offences as terrorist offences, opening the door for potential misuse and expansive application of anti-terror measures.
The Supreme Court has interpreted terrorism as a 'manifestation of increased lawlessness and cult violence'. Distinguishing terrorism from other forms of violence like political offences involves a psychological element where an act should be deliberate with the intent of systematic coercive intimidation and the form of violence aims to acquire or maintain power through fear and helplessness among the masses.
The Delhi High Court in Devangana Kalita vs State of Delhi NCT, after careful consideration of the factual matrix of the case under the light of the precedents set by the apex court, stated, "We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the lines between the constitutionally guaranteed 'right to protest' and 'terrorist activity'. If such blurring gains traction, democracy would be in peril."
To conclude, on codifying terrorism and its propensity of misuse, KG Kannabiran has put it well in his memoir The Speaking Constitution: A Sisyphean Life in Law - "If an attack on a political or cultural organization is construed as a terrorist offence, every political conflict will be labelled as terrorist activity, and all political activity will be labelled terrorism".
Hence, to avoid such an interpretation, a caveat is necessary to overcome the inconvenience of the imperfections of language.
(Rishav Sharma and Kshitij Goel are advocates in Delhi)
