In the normal course

The conviction by the trial court of the accused in the Red Fort attack case shows it is possible to ensure effective trial in cases of terrorism without taking recourse to draconian laws such as the Prevention of Terrorism Act.

V. VENKATESAN in New Delhi

IN 2001, the National Democratic Alliance (NDA) government justified the promulgation of the Prevention of Terrorism Ordinance (POTO) and later its enactment in a joint session of Parliament on the grounds that the existing laws were insufficient to tackle the growing menace of terrorism. Following widespread complaints against the abuse of the Prevention of Terrorism Act (POTA) by the law-enforcing authorities in various States, the United Progressive Alliance (UPA) government repealed the law, as it had promised in the National Common Minimum Programme, and incorporated some of its provisions in the Unlawful Activities (Prevention) Act.

The October 29 serial blasts in New Delhi have once again raised fears of a soft state, without harsh laws such as POTA to deal with terrorism. How effective POTA was in tackling the threat of terrorism and in bringing justice to its victims could be the subject of a serious study. But the outcome of at least two recent cases shows that the existing laws are enough to investigate and try terrorist offences.

In the Parliament House attack case (Frontline, September 9, 2005), the Supreme Court dismissed the confession to the police of the main accused, Afzal, under Section 32(1) of POTA as unreliable. It found that the prosecution had not complied with the mandatory procedural safeguards to ensure that the confession was true and voluntary. Finding him guilty of abetting the waging of war against the Government of India, as demonstrated by the terrorists' attack on Parliament House on December 13, 2001, the court confirmed Afzal's death penalty under ordinary laws and not under POTA.

The Supreme Court found Afzal guilty of conspiracy to commit the terrorist act, under Section 3(3) of POTA (the maximum punishment for the offence is life imprisonment), but found little circumstantial evidence to establish his membership of a terrorist gang or organisation, even though the prosecution had alleged the involvement of the Jaish-e-Mohammad (JeM), a banned terrorist organisation.

The recent explosions in New Delhi came close on the heels of the conviction on October 24 by a Delhi trial court of the seven accused in the Red Fort attack case. The explosions were widely believed to have been caused by the Pakistan-based terrorist outfit Lashkar-e-Taiba (LeT) in retaliation for the conviction, because they occurred on the day initially chosen by the court of the Additional Sessions Judge, Delhi, O.P. Saini - who later deferred it until October 31 - for the imposition of sentences on the convicts.

Although such inference is plausible, the outfit did not claim responsibility for the blasts, as it had done after the attack on the Red Fort in 2000. Instead, a little-known Kashmiri group called Islami Inquilabi Mahaz has reportedly owned responsibility for them. Whatever the truth, the LeT's reason for not claiming a direct role may be tactical, considering the legal implications of doing so in the investigation and trial of the case.

On December 22, 2000, the LeT claimed responsibility for the Red Fort attack in which three Army personnel lost their lives. The main accused in the case, Mohammed Arif alias Ashfaq, a Pakistani national and a member of the LeT, used his mobile phone to convey to BBC correspondents in New Delhi and Srinagar his organisation's responsibility immediately after the shootout. This, apart from the other pieces of evidence pointing to the LeT's involvement in the attack, was the basis of the trial court's conclusion that the LeT planned and carried out the assault.

The judgment cites the prosecution's allegation that the LeT aims at spreading terror in order to separate Jammu and Kashmir from India forcibly. The LeT was not a banned organisation in 2000, as POTO, notifying the banned outfits, including the LeT, was promulgated only in 2001. Therefore, establishing the association of the accused with the outfit suspected to have been behind the attack was necessary to sustain the charge that the accused intended to "wage a war against India", which is an offence under Section 121 of the Indian Penal Code. This section provides that "whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine".

The court found Arif guilty under this section and awarded him the death sentence. It found that foreign nationals including Arif, Abu Shamal (Arif's associate, who was killed in an encounter within a few days following the incident at the Red Fort) and others entered India illegally, armed with AK-56 rifles, large amounts of ammunition and hand-grenades, set up bases in Delhi and killed three Army personnel inside the Red Fort by attacking them with the rifles.

The court said: "The scale of weapons brought by the accused, the preparation made prior to commission of the act, the target selected by them and the casualties inflicted by them make it abundantly clear that the intention of the offenders was to wage war against the Government of India by targeting its armed forces stationed at Red Fort, a place of national importance and pride."

In equating the terrorist attack on the Red Fort with the offence of waging war under the IPC, the trial court was consistent with the logic and reasoning employed by the Supreme Court in confirming the conviction of Afzal in the Parliament House attack case. The Supreme Court approved the Delhi High Court's finding that Afzal was guilty under Section 121 of the IPC.

Explaining the concept of waging war under Section 121 of the IPC, the Supreme Court said: "War contemplated by Section 121 is not conventional warfare between two nations. Organising or joining an insurrection against the Government of India is also a form of war... To this list has to be added `terrorist acts' which are so conspicuous nowadays. Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war... ."

The court added: "Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the government by means of criminal force. Conspiracy to commit the latter offence is covered by Section 121A [of the IPC]. The court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 all acts of lawlessness and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political objectives."

The court saw no good reason why the foreign nationals stealthily entering Indian territory with the intention to subvert the functioning of the government and destabilise society should not be held guilty of waging war under Section 121. The trial court in the Red Fort case has relied on these observations of the Supreme Court in awarding death sentence to Arif under Section 121, apart from Section 302 (dealing with murder), of the IPC.

The trial court sentenced Arif's wife, Rehmana Yusuf Farooqui, an Indian citizen, to seven years' rigorous imprisonment and imposed on her a fine of Rs.10,000 for sheltering Arif before and after the incident and for concealing Arif's designs to wage war against India. The court found Nazir Ahmad Quasid and his son Farukh Ahmed Quasid, residents of Jammu, guilty of sheltering Arif, of concealing weapons meant for use in the attack, and for distributing hawala money.

They were sentenced under Section 121 to imprisonment for life. The court convicted and sentenced Babar Mohsin Bhagwala to rigorous imprisonment for seven years for sheltering Arif and concealing his designs. Matloob Alam, a fair price shop owner in Delhi, who helped Arif to forge his ration card, and Sadaqat Ali, a landlord friend of Arif who not only gave him shelter but took him around Delhi, were awarded seven years' rigorous imprisonment each.

In almost equating terrorism with waging war against India, the judgments in the Parliament House attack and the Red Fort attack cases have contributed to the evolution of a significant aspect of contemporary criminal jurisprudence.