A TERRORIST act resulting in the deaths of many innocent persons usually leads to a cry for adoption of tougher laws by governments, as though weaker laws are the sole reason for the growth of terrorism. Governments utilise such public opinion to quickly enact tougher laws to cover up their own lapses in gathering intelligence and initiating counterterrorism measures.
New laws also help an incumbent government in conveying the impression of doing something to contain terrorism in order to deflect public attention from its omissions and commissions in preventing terrorist incidents earlier. However, despite tougher new laws, incidents of terrorism continue to happen.
Misuse of such laws by those in power in violation of the human rights of minorities and the marginalised sections ultimately breeds discrimination between sections of people, alienation of the affected people and general disaffection in the country, creating a favourable environment for terrorism to thrive. It becomes a vicious cycle.
The National Investigation Agency Act, 2008, was enacted with a view to constituting the NIA to investigate and prosecute people for offences affecting the sovereignty, security and integrity of India, security of state, friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations.
The Act was enacted by the then United Progressive Alliance government at the Centre in the wake of the Mumbai terror attacks on November 26, 2008, in which more than a hundred people lost their lives.
On July 15, the Lok Sabha passed a Bill seeking to amend the Act to facilitate speedy investigation and prosecution of Scheduled Offences, including those committed outside India against Indian citizens or those affecting the interests of India, and to insert certain new offences in the Schedule to the Act “as Scheduled Offences which adversely affect the national security”.
The Bill empowers officers of the NIA to investigate Scheduled Offences committed outside India, subject to international treaties and the domestic laws of other countries. The Centre may direct the NIA to investigate such cases as if they had been committed in India. A Special Court in New Delhi will have jurisdiction over these cases.
The Bill also states that the Centre may designate Sessions Courts as Special Courts for the trial of Scheduled Offences. The Centre is required to consult the Chief Justice of the High Court under which a Sessions Court is functioning before designating it as a Special Court.
State governments may also designate Sessions Courts as Special Courts for the trial of Scheduled Offences under the Act. The idea of an NIA with exclusive staff under the Central government enjoying the powers and privileges of police officers under a State government, in the investigation of certain offences, may be seen as striking at the root of federalism, which recognises that State legislatures have the exclusive competence to legislate on law and order, a State subject under the Constitution.
But then, the courts have taken the view that terrorism and similar crimes have national ramifications and therefore, the backdrop in which the law was enacted cannot be lost sight of.
The offences enumerated in the enactments specified in the schedule of the NIA Act, it was suggested, have nationwide repercussions. Besides, the NIA Act amendment does not envisage displacing State governments during an investigation as the NIA may, if it is expedient to do so, request the State government concerned to associate with it in the investigation or even transfer the case to State government.
As the NIA can step in only in respect of Scheduled Offences, a look at the Schedule of the Act, before the amendment, is necessary.
The Schedule includes offences under the Atomic Energy Act, 1962; the Unlawful Activities (Prevention) Act, 1967; The Anti-Hijacking Act, 2016; The Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982; the SAARC Convention (Suppression of Terrorism) Act, 1993; the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002; the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005; and offences under Chapter VI of the Indian Penal Code (IPC), sections 121 to 130, and sections 489A to 489E of the IPC.
The entire Chapter VI of the IPC, comprising sections 121 to 130, deals with offences against the state.
Section 121 deals with waging or attempting to wage war or abetting waging of war against the government of India. Section 124 deals with assaulting the President, the Governor, and so on with intent to compel or restrain the exercise of any lawful power. Section 124-A deals with sedition. Sections 489A to 489E deal with offences connected with counterfeiting currency notes.
The NIA (Amendment) Bill, 2019, adds the Explosives Substances Act, 1908, Sections 370 and 370A of the IPC, Sub-section (1AA) of Section 25 of Chapter V of the Arms Act, 1959, and Section 66F of Chapter XI of the Information Technology Act, 2000.
Sections 370 and 370A deal with trafficking of persons and minors for sexual exploitation or forced labour.
Sub-section 1AA of Section 25 of Arms Act deals with the offence of the manufacture, sale, and transfer of any prohibited arms or ammunition.
Section 66F of IT Act deals with the punishment for cyber terrorism.
Some of the new offences added to the Schedule of the NIA Act may have nothing to do with countering terrorism; for instance, the offence of trafficking of persons and minors for sexual exploitation or forced labour. The offence obviously has all-India ramifications and timely punishment to perpetrators would meet to an extent India’s obligations under relevant international treaties.
It is not clear why the Centre wants to bring this offence under the NIA Act; the existing investigation machinery has not been totally ineffective in bringing perpetrators to book.
Potential for misuse
The scope of cyber terrorism, as outlined under the Information Technology Act, is so broad that any government with the mandate available under the NIA Act would be tempted to misuse it against political opponents.
Section 66F (A) of the IT Act seeks to punish anyone with intent to threaten the unity, integrity, security and sovereignty of India or to strike terror in the people or any section of the people by denying or cause the denial of access to any person authorised to access a computer resource; or attempting to penetrate or access a computer resource without authorisation or exceeding authorised access; or introducing or causing to introduce any computer contaminant.
The provision can be invoked against any person who, by means of such conduct, causes or is likely to cause death or injuries to persons or damage to or destruction of property. It can also be invoked against anyone who disrupts or knows that such conduct is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure, specified under Section 70.
Under Section 66F (B), anyone who knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the state or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.
The Supreme Court struck down Section 66A of the IT Act dealing with punishment for sending offensive messages through communication service, and so on, as unconstitutional for being overbroad and vague. The same ground may hold good against Section 66F, if challenged in a court of law.
Lok Sabha members’ concerns
During the debate on the Bill in the Lok Sabha, Congress member Manish Tewari said that the real problem with the Bill was that it designated Sessions Courts as Special Courts. The NIA (Amendment Bill), if read with the Unlawful Activities (Prevention) Act Amendment Bill, the Biotechnology Bill, and the Aadhaar (Amendment) Bill, would turn the country into a police state, he said.
A. Raja of the Dravida Munnetra Kazhagam (DMK) was concerned that the NIA Act, after amendment, might be used to target minorities. He urged the government to amend the Act further to curb right-wing terrorism.
Asaduddin Owaisi of the All India Majlis-e-Ittehadul Muslimeen pointed out that the government had refused to sign or ratify the Rome statute on the International Criminal Court on the grounds that it eroded India’s sovereignty while the NIA (Amendment) Bill seeks to erode the sovereignty of other countries by seeking to prosecute persons residing there who may be accused of having committed offences in India.
He sought to know what “affecting the interests of India” would mean under the Bill. “It cannot be so vague. You are creating a device for yourself to even bring in some people who write a blog against your ideology and your party,” he said.
He also criticised the provision that enables the setting up of special courts designated for an area or areas. “It violates Article 14 of the Constitution because the government cannot notify a specific case or area to come under a special court,” he said.
Owaisi questioned the government’s resolve against terrorism, saying that it did not take any action if the victim happened to be a Muslim and the accused a non-Muslim.
In his reply during the debate, Home Minister Amit Shah assured the members that the amended NIA Act would not be misused and that the government would not consider the religion of terrorists while initiaing action.
He also said that the first United Progressive Alliance (UPA) government repealed the Prevention of Terrorism Act (POTA), enacted during the Atal Bihari Vajpayee regime, in 2004 only to protect the Congress’ vote bank rather than stop its alleged misuse.
Without elaborating, he said: “Our people died in Sri Lanka and Bangladesh and the agency has no legal right to carry out investigations there. We have brought this Bill to give our agency [the NIA] that legal right.”
According to him, POTA, if not repealed by the UPA, could have prevented the Mumbai terror attack of 2008. If that were so, one is at a loss to understand why the first Modi government did not enact an equally strong law to prevent attacks such as the one in Pulwama before the just-concluded general election.
The answer, perhaps, is that policymakers have understood the ineffectiveness of such draconian laws in preventing terrorist incidents.
The return of the Narendra Modi government to power with an even bigger mandate than it obtained in 2014 should not blind it to the realities of terrorism and how it can be effectively addressed in this day and age.
In the Rajya Sabha, members were more vociferous in their opposition to the Bill. Vivek K. Tankha of the Congress was concerned whether the Act itself was constitutional, considering the legal challenges to it in various courts, as it was in conflict with the States’ policing power. He gave a few examples of the NIA refusing to take the assistance of State police, which was not envisaged when the Act was enacted.
Derek O’Brien of the Trinamool Congress wondered whether the Bill would result in the usurpation of States’ powers over investigation of offences related to human trafficking and cyber terrorism. Many opposition members sought reference of the Bill to a Select Committee to ensure its scrutiny, which the government refused.
Abhishek Manu Singhvi of the Congress was concerned that the Bill gave discretion to a police officer to file a case against a suspect because he “is against the interest of India”. He asked how, in the absence of treaties with other countries, India hoped to arrest accused persons living in other countries and investigate them for offences against the interest of India.
Since the Bill subjects the investigation of suspects living overseas to international treaties, and the powers of local police, there is not much one can hope to achieve through this amendment, he said.
Civil society, it appears, has no option but to closely monitor the implementation of the NIA Act, as amended, to highlight issues of concern and to safeguard the liberties of innocent persons.