Chandigarh — The Terrorist and Disruptive Activities (Prevention) Act, 1985, is clearly, the most rigorous piece of legislation yet enacted to deal with terrorism and secessionist activity. How effective the Act proves remains to be seen but it has a wave of resentment through Punjab, where it is likely to be rigorously enforced.

The Act gives the unmistakable impression that it has been formulated so as to express the government’s concern over the recent bomb blasts in Delhi and other places. In many respects it only reiterates the provisions of the Indian Penal Code (IPC) the Criminal Procedure Code (CrPC) and provisions of other recent enactments. Passed in a hurry, the Act does not take into account some of the problems being faced at the functional level by law enforcing agencies. The total absence of safeguards to prevent misuse of the Act is another startling feature of this measure.

The Act, which will be in operation for two years, will have an overriding effect on the IPC and CrPC. It goes beyond the Terrorist Affected Areas (Special Courts) Act, 1984, in that it not only extends to the whole of India, “persons in the service of the government wherever they may be” and “persons on ships and aircraft registered in India, wherever they may be.” Thus those Indian citizens who raise the bogey of secessionism and those officials who quit government service when posted abroad under such circumstances will also be liable for action under the Act.

While the Special Courts Acts dealt with crime in terrorist affected areas this Act deals with specific terrorists acts beside conspiracy, advocacy and abetment of the same and defines “disruptive activity” and makes it punishable.

There is no doubt that some of its provisions had been taken care of in the existing laws Section 124 A of the IPC deals with sedition and section 153 A deals with promoting enmity between different groups and committing acts prejudicial to the maintenance of harmony. What necessitated the new enactment was the interpretation of the existing laws by the Supreme Court.

In case of sedition under section 124 A. for example, the Supreme Court in a case in 1962 held that the section could be interpreted in such a way that only acts which constituted incitement to violence or disorder would be punishable under this section and acts not having such a tendency were not punishable. This interpretation was ostensibly to safeguard the freedom of speech and expression guaranteed under the Article 19 of Constitution. Lawyers point out that should the new Act go beyond the interpretation of section 124 A by the Supreme Court, the issue of the freedom of speech and expression will crop up.

The new Act provides for more stringent punishment for crimes. The minimum punishment for those convicted under the Act is three years imprisonment and the punishment for committing a terrorist act resulting in the death of a person, is death.

However, it is felt that enhanced punishment is meaningful only if the punishment prescribed under the existing law is not sufficiently deterrent so as to dissuade people from resorting to such acts again after they are released. Significantly there have been no pointers to the need for enhancing the punishment.

It is evident that one of the objectives of the new Act is to deal with those who lionise the assassins of Indira Gandhi or laud the “sacrifices” of those killed in the Golden Temple during the Army operation.

The government was finding it difficult to book these persons under the IPC and most of them were being detained under preventive measures by. Invoking the National Security Act (NSA).

However, if such acts are to be made punishable under the Terrorist and Disruptive Activities (Prevention) Act, 1985, the law and order machinery will have to be geared to meet the requirements of the Act.

It will require screening of cassettes, keeping a tab on functions in rural areas and at religious places. If intelligence and crime detection agencies are geared up to this. Extent, there would be no need for such laws. Moreover, actions such as lauding those who died in the Golden Temple or keeping photographs of Bhindranwale formed the psychological aspect of the problem, and the lawandorder machinery would be unable to curb such activities, a police official admitted. Many lawyers feel that some of the clauses under section 5 of the Act can be misused. “Acquisition, possession or publication of information. Likely. To assist terrorists or disruptionists” is punishable under the Act. Another section states that “rendering of any assistance, financial, or otherwise, to terrorists or disruptionists,” is punishable. It means that collecting money to defend terrorists in a court of law as permitted under the constitution could invite action.

Under section 5, even publication of such reports as were prepared by independent agencies into Delhi riots in November could be prevented on the plea that it would ‘cause dissatisfaction or alarm or promote feelings of ill will, enmity or hatred between different sections.’ Thus the executive can use the Act and the rules made under it to cover their own failures and mistakes.

Article extracted from this publication >>  June 21, 1985