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Defining Terrorism under the Bharatiya Nyaya Sanhita, 2023: A Critical Analysis of Section 113 : Author: Ayana Ajayan

ARTICLE

Ayana Ajayan

9/23/202610 min read

ABSTRACT

This article explores the evolving definitions and complexities of terrorism, tracing its origins from the French Revolution to its modern-day manifestations. It highlights terrorism as the "weapon of the weakest," designed to instill fear and achieve political objectives through high-profile acts of violence. The discussion examines India’s persistent struggle against terrorism and the legislative responses, including the Unlawful Activities (Prevention) Act (UAPA), TADA, POTA, and the newly introduced Bharatiya Nyaya Sanhita (BNS). Section 113 of the BNS expands the scope of terrorist acts to include threats to economic security and public functionaries, while prescribing stringent punishments for conspiracies, training camps, and recruitment. However, the article critiques the vagueness of the definitions, the potential for misuse, and the risk of conflating dissent with terrorism, as underscored by judicial observations. Ultimately, it emphasizes the delicate balance between safeguarding national security and protecting civil liberties, concluding that the success of the BNS will depend on its careful and just implementation.

INTRODUCTION

“One man’s terrorist is another man’s freedom fighter.”

Definitions of terrorism are often complex and controversial, and due to its inherent brutality, the term has gained a strong negative stigma in common usage. It was first coined in the 1790s to describe the terror used by revolutionaries during the French Revolution against their opponents. The Jacobin party, led by Maximilien Robespierre, conducted a Reign of Terror with widespread executions by the guillotine. While terrorism originally referred to state-led violence against domestic enemies, since the 20th century, it has most commonly been used to describe violence aimed at governments, either directly or indirectly, to influence policy or overthrow regimes.

Terrorism, in its true form, is the deliberate use of violence to instill fear and achieve political objectives when direct military success is not possible. As a result, some social scientists have described guerrilla warfare as the "weapon of the weak" and terrorism as the "weapon of the weakest."

To gain and sustain the publicity needed to create widespread fear, terrorists often resort to more dramatic, violent, and high-profile attacks. These include hijackings, hostage situations, kidnappings, mass shootings, car bombings, and, frequently, suicide bombings. While the attacks may seem random, the victims and locations are often chosen strategically for their shock value. Places like schools, shopping centers, bus and train stations, and restaurants or nightclubs are targeted because they draw large crowds and are familiar, everyday spaces where civilians feel comfortable. Major targets may also include buildings or locations that serve as key economic or political symbols, such as embassies or military installations. The terrorist’s goal is to create such a sense of fear that it compels the public to pressure political leaders into achieving a specific political objective.

Some definitions categorize all acts of terrorism, regardless of their political motives, as simple criminal activity. For instance, the U.S. Federal Bureau of Investigation (FBI) defines both international and domestic terrorism as involving "violent, criminal acts." However, this focus on criminality is problematic, as it fails to account for differences in political and legal systems, and doesn’t consider situations where violent acts against a government may be seen as legitimate. One often-cited example is the African National Congress (ANC) in South Africa, which used violence against the apartheid government but garnered widespread global support. Another example is the Resistance movement in France against the Nazi occupation during World War II.

CONTENT

"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".

-KG Kannabiran ,The Speaking Constitution: A Sisyphean Life in Law

"Terrorism is a significant threat to peace and security, prosperity, and people," as stated by Ban Ki-Moon. The nation continues to face persistent threats from terrorism, with terrorist groups increasingly recruiting youth and adapting to more advanced methods, leveraging technological advancements to carry out their operations. India has experienced several devastating terrorist attacks, such as the Bombay Blasts, the Parliament attack, and the Delhi Bomb Blasts. In response to these threats, anti-terrorism laws have been continuously amended, becoming more stringent to safeguard citizens. Key legislation, such as the Unlawful Activities (Prevention) Act, 1967 (UAPA), the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, and the Prevention of Terrorist Activities Act, 2002, reflect this growing need for robust legal measures.

India, a country grappling with its own set of terror-related challenges, has rapidly strengthened its anti-terrorism legal framework. The Bhartiya Nyaya Sanhita (BNS), a thorough reform of the criminal justice system, marks a major step forward in this effort. Designed to replace the Unlawful Activities (Prevention) Act (UAPA), the BNS introduces a new legal approach to tackling terrorism.

The updated version of the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), has revised Section 113, which deals with acts of terrorism. The reintroduced BNS Bill’s Section 113 (formerly Section 111 in the original August bill) closely mirrors Sections 15 to 21 of the UAPA. The legislation stipulates that the decision to register a case under Section 111 of the BNS or the UAPA will be made by an officer with a rank no lower than Superintendent of Police.

The amendment brings it in line with the provisions of the Unlawful Activities (Prevention) Act, 1967, by expanding the definition of a ‘terrorist act’ to encompass attacks on the country's economic security and financial stability, while excluding acts of public intimidation or disruptions to public order.

The original bill had defined intimidation of the government such as actions likely to cause death or injury to a public official, or the detention or threat of killing someone to force the government to act or refrain from acting as a “terrorist act.” The revised bill rewords these provisions, categorizing them as using criminal force to intimidate or causing the death of any public functionary, along with the detention, kidnapping, or abduction of any individual and threatening to kill or harm them to compel the government.

The provision in the BNS defining a 'terrorist act' is notably vague, employing ambiguous terms such as 'likely to threaten' and 'overawes by means of criminal force,' where criminal force refers to the intentional use of force. By including 'destruction of public property in India' as a terrorist act, the provision dangerously blurs the line between ordinary criminal behaviour and terrorism. This lack of precision could give the police excessive discretion in labelling various criminal offenses as terrorist acts, paving the way for potential misuse and an overly broad application of anti-terrorism measures.

The original BNS bill proposed a fine of Rs 10 lakh for individuals involved in a terrorist act resulting in death, and a Rs 5 lakh fine for other offenses. These other offenses included activities such as participating in a terror conspiracy, being a member of a terrorist organization, providing shelter to a terrorist, and possessing property obtained through the proceeds of terrorism.

In addition, the new BNS bill removes the provision that previously denied parole to a terrorist involved in an offense resulting in the death of a victim, punishable by death or life imprisonment. While maintaining the maximum and minimum punishments for all forms of terrorist acts, the revised bill specifically outlines the punishment for organizing terrorist training camps and recruiting individuals for terrorist acts. This punishment is set at a minimum of five years’ imprisonment, extendable to life, along with a fine. It is worth noting that such terrorist training camps, associated with the banned PFI, have been raided in several states by the NIA and local police.

The provision in the BNS regarding a 'terrorist act' is broad and lacks the necessary approval from the state or central government before court proceedings, raising concerns about potential misuse of the law. In 2022, a private member Bill was introduced in Parliament to repeal the UAPA. While it is unlikely that the Bill will become law, Parliament has previously taken steps to repeal counter-terrorism laws due to their abuse. If the provision in the BNS remains, it would effectively retain elements of the UAPA without sufficient procedural safeguards.

Despite the well-established legal principle of generalia specialibus non derogant which states that general laws should not override special laws, the BNS’s inclusion of its own definition of terrorism raises concerns about the rationale behind this decision and its potential impact on legal protections. This is particularly troubling in light of statistics showing that under the UAPA, 4,690 individuals were arrested between 2018 and 2020, with only 3 percent being convicted. As a result, many of these individuals were socially stigmatized as terrorists.

In the case of Devangana Kalita vs. State of Delhi NCT, the Delhi High Court, after carefully examining the facts in light of precedents set by the Supreme Court, remarked, "We are compelled to state that it appears that, in its eagerness to suppress dissent and its excessive fear of situations escalating, the state has blurred the lines between the constitutionally guaranteed 'right to protest' and 'terrorist activity.' If this blurring continues, democracy would be at risk."

CHAPTER 6, Sec 113 DEALS WITH TERRORIST ACT

1) Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-

(a) by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause,-

(i) death of, or injury to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iv) damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material; or

(v) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act, commit a terrorist act.

Explanation-For the purpose of this sub-section,-

(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;