The criminal justice system isan instrument of state and akey index of the state of de-

mocracy. Every punishmentwhich does not arise from abso-lute necessity is tyrannical, saidFrench jurist Montesquieu. In factcriminal law should be used onlyas a ‘last resort’ (ultima ratio) andonly for the ‘most reprehensiblewrongs’. Unfortunately, ‘crimes’originate in government policyand, therefore, criminal law re-fl�ects the idea of ‘power’ ratherthan ‘justice’. Should civil societyactivists, students, intellectualsand protesters be charged for thecrime of terrorism? Is every crimi-nal a terrorist and every violentcrime a terrorist activity? Did Par-liament in enacting the Terroristand Disruptive Activities (Preven-tion) Act, (TADA) and the UnlawfulActivities (Prevention) Act, 1967(UAPA) intend to punish ordinarycriminals under these anti-terrorspecial laws?

Example of misuseIn the period 2015-2019, as manyas 7,840 persons were arrested un-der the draconian UAPA but only155 were convicted by the trialcourts. Most would eventually beacquitted by the higher courts.Even Congress governments mis-used TADA (enacted in 1985 andamended in 1987). Till 1994,though 67,000 people were de-tained, just 725 were convicted inspite of confessions made to policeoffi�cers being made admissible. InKartar Singh (1994), the SupremeCourt of India had observed that inmany cases, the prosecution hadunjustifi�ably invoked provisions ofTADA ‘with an oblique motive ofdepriving the accused personsfrom getting bail’. It added thatsuch an invocation of TADA was

‘nothing but the sheer misuse andabuse of the Act by the police’.

UAPA’s experience has beenworse than TADA. UAPA has alsobeen equally used and abused.The recent 133 page bail order ofthe Delhi High Court in Asif IqbalTanha ( June 15, 2021), that led tothe release of three student acti-vists, has come as a bolt from theblue for the Delhi police. At theheart of the controversy is themeaning of the term ‘terrorism’and when UAPA can justifi�ably beinvoked.

No consensus on defi�nitionThough there are more than 100defi�nitions of terrorism availableglobally, there is no universal defi�-nition of the term ‘terrorism’ eith-er in India or at the internationallevel. The UN General Assemblyhad given this task to a committee,but in almost 50 years or so therehas been no consensus on themeaning of terrorism. The fi�ghtagainst foreign occupation is to bekept out of terrorism as today’sterrorist may be tomorrow’s free-dom fi�ghter. Accordingly, neitherTADA nor UAPA has a defi�nition ofthe crucial terms ‘terror’ and ‘ter-rorism’. Section 15 of UAPA merelydefi�nes a terrorist act in extremelywide and vague words: ‘as any actwith intent to threaten or likely tothreaten the unity, integrity, se-curity, or sovereignty of India orwith intent to strike terror or likelyto strike terror in the people....’

How is such a terrorist act com-mitted? UAPA says ‘by usingbombs, dynamite or other explo-sive substances or infl�ammablesubstances or fi�rearms or otherlethal weapons or poisonous ornoxious gases ... or by any othermeans of whatever nature to causeor likely to cause death or inju-ries...,’ What is the meaning of theexpression ‘by any other means’?When a general word is used inany statute after specifi�c words, itis to be interpreted in the contextof specifi�c words. Thus, the Citi-zenship (Amendment) Act (CAA)protests cannot be covered by thisexpression.

In Yaqoob Abdul Razzak Memon(2013), the Supreme Court saidthat terrorist acts can range fromthreats to actual assassinations,kidnappings, airline hijacking, carbombs, explosions, mailing ofdangerous materials, use of chem-ical, biological, nuclear weaponsetc. Since the three student acti-vists did not do any of thesethings, Justices Anup JairamBhambhani and Siddharth Mridulcould not be convinced of their in-volvement in any terrorist act.Through an authoritative and en-lightened bail order entirely basedon the apex court judgments, Jus-tice Bhambani reminded the Delhipolice of the true meaning of a ter-rorist act.

Other judgmentsIn Hitendra Vishnu Thakur (1994),the Supreme Court had defi�nedterrorism as the ‘use of violencewhen its most important result isnot merely the physical and men-tal damage of the victim but theprolonged psychological eff�ect itproduces ... on the society as awhole’. Its main objective is to ov-erawe the government or disturbthe harmony of society or ‘terror-ise’ people...’. Thus, what ‘distin-guishes ‘terrorism’ from otherforms of violence is the deliberateand systematic use of coercive inti-midation’. In Kartar Singh (1994),the Supreme Court held that amere disturbance of public orderthat disturbs even the tempo ofthe life of community of any par-ticular locality is not a terroristact. By this interpretation, theCAA protests in a few localities of

Delhi cannot be termed as terro-rist activity. Even in the RajivGandhi assassination case, the Su-preme Court, in Nalini and 25 Oth-ers (1999) held that none of the ac-cused had intent to overawe thegovernment or strike terroramong people, and therefore thekilling of Rajiv Gandhi and 15 oth-ers was not held to be a terroristact or disruptive activity underSection 3 of TADA.

In Ram Manohar Lohia (1966),the apex court explained the dis-tinction between ‘law and order’,‘public order’ and ‘security ofstate’. Law and order representsthe largest circle within which isthe next circle representing ‘pu-blic order’, and the smallest circlerepresents the ‘security of state’.Accordingly, an act may aff�ect ‘lawand order’ but not ‘public order’.Similarly, an act may adversely af-fect ‘public order’ but not the ‘se-curity of state.’ In most UAPA cas-es, the police have failed tounderstand these distinctions andunnecessarily clamped UAPAcharges for simple violations oflaw and order.

In the historic PUCL judgment(2003) where the constitutionalityof the Prevention of Terrorism Act(POTA) was under challenge, theSupreme Court had highlightedanother vital dimension of terro-rist act by including within itsmeaning amongst other things the‘razing of constitutional principlesthat we hold dear’, ‘tearing apartof the secular fabric’ and ‘promo-tion of prejudice and bigotry’.

Justice Bhambhani reiteratedthe fi�rst principle of criminal law,i.e., criminal provisions are to begiven the narrowest possiblemeaning. It is a sad commentaryon our criminal justice system thateven the mention of this rule ofthumb is being considered as abreeze of fresh air in an atmosph-ere of curtailment of liberties anddemocracy tilting towardsauthoritarianism.

Relying on A.K. Roy (1982)where the constitutionality of theNational Security Act (NSA) waschallenged, Justice Bhambhani

concluded that to ensure that aperson who was not within theparliamentary intendment doesnot get roped into a penal provi-sion, more stringent a penal provi-sion, it must be more strictly con-strued. The apex court itself hadheld that while construing preven-tive detention laws such as theNSA, care must be taken to restricttheir application to as few situa-tions as possible. In Sanjay Dutt(1994) as well, the Supreme Courthad held that those whom the lawdid not intend to punish are not tobe roped in by stretching the penalprovisions. In recent times, the Al-lahabad High Court had to quash94 of 120 cases in which NSA hasbeen invoked.

Accordingly, the Delhi HighCourt concluded that since the de-fi�nition of a ‘terrorist act’ in UAPAis wide and somewhat vague, itcannot be casually applied to or-dinary conventional crimes, andthe act of the accused must refl�ectthe essential character of terro-rism. Indeed, the CAA protestswere not terrorist acts. Defi�ningterrorism may be diffi�cult but doesnot everyone know when an act ofterror is really committed?

What must be doneOne hopes that, henceforth, ourpolice will be far more cautious incharging people under black lawssuch as UAPA, the NSA, etc. In anycase, no anti-terror law, howsoev-er stringent, can really end theproblem of terrorism. Pushing a ci-vilised state to state terrorism isthe tried and tested strategy of allterrorists. Let us not fall in theirtrap.

Radicalisation generally suc-ceeds only with those who havebeen subjected to real or per-ceived injustices. Let us remove in-justice to combat terrorism. Thecreation of a truly just, egalitarianand non-oppressive society wouldbe far more eff�ective in combatingterrorism.

Faizan Mustafa is Vice-Chancellor,NALSAR University of Law, Hyderabad.The views expressed are personal

Apt judicial reminder in era of over-criminalisationThe criminal justice system needs to take note of the Delhi High Court’s recent judgment on ‘defi�ning terrorism’

Faizan Mustafa

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