The terror of Terrorism

Delivering a judgment defining the contours of the otherwise "vague" Section 15 of the Unlawful Activities (Prevention) Act, 1967, (UAPA) a division bench of the Delhi High Court laid down some important principles upon the imposition of Section 15, 17 & 18 of the Act.

Introduction

• Delivering a judgment defining the contours of the otherwise "vague" Section 15 of the Unlawful Activities (Prevention) Act, 1967, (UAPA) a division bench of the Delhi High Court laid down some important principles upon the imposition of Section 15, 17 & 18 of the Act.
• A bench comprising Justices Sidharth Mridul and Anup Jairam Bhambhani was granting bail to Delhi-riots accused (Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita), who faced charges for being part of a "larger conspiracy" during the anti-Citizenship (Amendment) Act, 2019 protests which erupted into violence resulting in deaths across North-East Delhi.
• The impact of the judgment is not just restricted to the facts of the present case.
• While reiterating the essence of terrorism as laid down by the Supreme Court in various judgments, the court held that terrorism can’t be conflated with “law and order problems” or “violent protests”.
  • The UAPA is a stringent anti-terror law, and thus, its provisions must be interpreted more strictly and narrowly, as compared to other conventional penal offences.

The trap of Terrorism in India

• The Republic of India is the world's 2nd most populous country and its 7th largest.
• Its sprawling territory contains 1.2 billion people divided into more than 2,000 ethnic groups, speaking 22 different languages, and practicing 9 recognized religions.
• The majority of the population is Hindu at 79.8% with Islam coming in a distant second at 14.2%.
• The most commonly spoken language is Hindi at only 57.1%. The nation is rife with divisions, and conflict naturally follows.
• The most commonly cited rift in the nation is that between its most famous religions. Yet, states mired in poverty, modernity gaps between rural and urban areas, and long-standing tribal feuds account for a significant portion of conflict — terrorism included.

Defining terrorism

In order to differentiate the heinous offence of terrorism from “conventional offences” covered under the Indian Penal Code, the court relied upon various judgments of the Supreme Court where “terrorism” is defined.

• In PUCL v Union of India, the apex court termed terrorism as acts that challenge the whole nation. Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, raze the constitutional principles, and create a psyche of fear.
• In Hitendra Vishnu Thakur case, while calling terrorism an “abnormal phenomenon”, the Supreme Court said that the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order.

Why India is vulnerable to terrorism?

• India has a unique location in one of the world’s most dangerous regions of the globe as far as terrorism is concerned; South Asia is the epicentre of Islamist radicalism.
• Pakistan continues to harbour non state actors and uses them as a strategic tool of state policy with plausible deniability.
• The tribal areas along the Pakistan-Afghanistan border, which have long been outside the realm of effective control, have remained a breeding ground for Islamist radicals.
• India continues to deal with terrorist activities including cross border terrorism on a number of different fronts.
  • These threats include terrorism in Kashmir, and in the North-East, threats in hinterland, as well as the violent Maoist-inspired left-wing insurgency in parts of central India in what has been dubbed the “red corridor”, following the realignment of various Naxalite factions under the Communist Party of India (Maoist).

What leads to terrorism?

• Conflict: Conflict remains the primary driver of terrorism, with over 96 per cent of deaths from terrorism in 2019 occurring in countries already in conflict. The ten countries with the highest impact of terrorism are all engaged in at least one armed conflict.
• Religious extremism: Terrorism can be motivated by religious extremism, as seen in the rise of Islamist terrorism since the attacks on the World Trade Center in New York in 2001.
  • The 2011 terrorist attack in Norway and several attacks on clinics in the US were motivated by religious extremism and by an opposition to women’s rights.
• Politics: Terrorism can also be motivated by political views, which may overlap with religious reasons. For example, the 1995 Oklahoma City bombings were carried out to send a message to the US government about FBI operations.
• Power struggle: Many of these events are rooted in power struggles over borders, perceived or real socio-economic disparities, and the desire to send a political message to state actors.
• Socio-economic factor: Some socio-economic factors associated with terrorism include:
  • High levels of group grievance and a weak rule of law is correlated with terrorism across all countries.
  • In the more economically developed countries, social disenfranchisement and exclusion play an important role in terrorism.
  • In less economically developed countries, religious or ethnic ruptures, and corruption are more strongly associated with high levels of terrorism.

Financing of terrorism

• The FATF Recommendations - International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (2012)defined ‘terrorist financing’ as the financing of terrorist acts, and of terrorists and terrorist organizations.
• Terrorist organizations require significant funding, both for the actual undertaking of terrorist acts, but also to other issues : to maintain the functioning of the organization, to provide for its basic technical necessities, as well as to cover costs related to spreading related ideologies. 

Impact of terrorism

• Threat to democratic structure: Implications of terrorism relate first and foremost to democracy and the separation of powers, and can lead to the unraveling and abuse of existing structures, in ways that work to the government’s advantage. 
• Impact on societies: Terrorism has an impact on the societies that it affects or targets. 
• Threat to security and stability: Terrorism poses a direct threat to the security, international stability and prosperity.
• Heavy financial cost: Terrorism comes with a heavy financial cost. The global economic impact of terrorism was US$26.4 billion in 2019, 25 per cent lower than in 2018. 
  • Impact on tourism: Tourist flows are also affected by terrorist attacks, and new investments are generated, particularly in security.

What adds to the challenges?

• Lack of clarity: The lack of clarity on countering terrorism, specifically within the UN Security Council (UNSC), has cost India tremendously both in economic and human capital. 
• Capability enhancement of terrorist groups: Terrorist groups have however enhanced their capabilities by gaining access to emerging technologies, including drones, virtual currencies and encrypted communications.
• Increased reach of social media: Social media networks have contributed to radicalization and recruitment of youth; further new geopolitical alliances are the new threats.
• Growing terrorist manifestos: Today’s terrorists also often post texts just before their attacks to publicize their grievances and deliberately inspire others to follow in their footsteps. 
• Gamification of terror: Manifestos and livestreams have led to one of the more callous recent terrorism innovations.  In the gamification of terror, terrorism has evolved into a kind of real-world video game, in which extremists encourage one another to top each other’s “high scores.
• Other challenges include:
  • the protection of human rights while countering terrorism
  • challenges regarding the prosecution of (returning) foreign fighters

India’s counter terrorism efforts

• Countering the Financing of Terrorism:  India is a member of the FATF and of two FATF-style regional bodies:  the Eurasian Group on Combating Money Laundering and Financing of Terrorism (EAG) and APG.  India’s FIU is a member of the Egmont Group. 
• Research and Analysis Wing (RAW): The Research and Analysis Wing (RAW) is the external intelligence agency and the Intelligence Bureau (IB), a division of the Home Affairs Ministry, collects intelligence inside India. 

• BECA: The signing of the landmark Basic Exchange and Cooperation Agreement (BECA) by India and US in October 2020 will help India get real time US geospatial intelligence information. There is already a strong foundation built in India-US counter terrorism cooperation.
• Infrastructure:India has made a strong base and a robust infrastructure for harnessing various technologies for gathering intelligence. Both National Technical Research Organisation (NTRO) of India and the National Security Agency (NSA) of the United States will have to work together in augmenting all their bilateral efforts and harnessing technology for gathering intelligence.

What is UAPA act and what were the 2019 amendments?

• The Unlawful Activities (Prevention) Act 1967(UAPA) was developed as an anti-terrorism law to prevent such unlawful activities association and maintain the sovereignty and integrity of India.
• The UAPA has been amended on multiple occasions to incorporate the changing techniques of terrorism, from shifting the burden of proof to making extra-territorial arrests.
• The most recent amendment that came was the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which dealt with expanding the definition of “terrorist” to include individuals under Section 35 and 36 of Chapter VI of the Act.
  • The Bill seeks to empower the Centre to designate an individual a “terrorist” if they are found committing, preparing for, promoting or involved in an act of terror. A provision already exists in Part 4 and 6 of the law for organisations that can be designated as a “terrorist organisation”.
  • The designation of an individual as a global terroristby the United Nations is associated with sanctions including travel bans, freezing of assets and an embargo against procuring arms. The UAPA Bill, however, does not provide any such detail.
  • Under UAPA, investigative agencies get 180 days to probe a case, compared to 60-90 days under ordinary criminal law. This means an accused is eligible to apply for bail only after six months.
  • Until 2019, the police needed to establish that those arrested in UAPA cases were members of banned organisationsto secure a conviction in a court of law. But an amendment made in July that year has enabled the government to designate any individual as a “terrorist”, bypassing the need to establish membership or association with banned groups.
• Charges against Narwal, Kalita and Tanha are pertaining to Sections 15, 17 and 18 of the Act.
  • Section 15 engrafts the offence of 'terrorist act'
  • Section 17 lays down the punishment for raising funds for committing a terrorist act
  • Section 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act'

What needs to be done?

• Understanding psychological aspect: There is need to understand the psychology behind radicalization, and isolation in particular, to give a better insight into why people who have no previous affiliation to a specific culture, religion or socio-political belief find solace in being members of a particular cause.
• Strong response at all levels: The defence against terrorism requires both local and international responses, in full respect for human rights and the principle of the rule of law. 
• Comprehensive analysis: Responding to terrorism, also requires a just and courageous analysis of the motivations and circumstances which foster terrorism. This response also requires political, social and religious leaders to condemn all acts of terrorism as an affront to human dignity.
• International cooperation: The international community must work together, therefore, to ensure that greater efforts are undertaken to provide the financial, educational and technological resources necessary to addressing the underlying circumstances which foster terrorism.

Conclusion

There is a need of cross-regional analysis of terrorism. A concerted and systemic effort at understanding terrorism will aid in understanding of national security, national interest, foreign policy, governance and institutions, and the role and place of these emerging regions within the international system.

Furthermore, it is needed to understand that today violent extremism is perceived by its perpetrators as a way to impose beliefs, values, religions, and culture. If the government

If we fail to understand these underlying causes in the preventative stages, our responses will be ad-hoc, reactive solutions, rather than proactive endeavours. Worse, if we fail to understand the complex elements that make up radical conduct we risk alienating those people who already feel that history, and the global world order, has left them behind.