India

The Definition of Terrorism at Domestic Level

The amended Constitution explicitly grants Parliament "exclusive power" to make any law with respect to the 

Prevention of activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people.

The Constitutional amendment defines a terrorist act as 

any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or any other substances (whether biological or otherwise) of a hazardous nature.

Section 15 of UAPA defines a terrorist act as follows:

Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with 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 substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (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 injuries 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 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 threatens 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; or] 

commits a terrorist act.

The broad notion of intent under the Act makes the scope of terrorist offences overly expansive in Indian law, to the potential detriment of the exercise of fundamental human rights.  

Membership of a terrorist organisation 

Sri Indra Das v. State of Assam [2011 4 SCR 289]

The Court in this case read down Section 10 of UAPA which criminalised the mere membership of a banned organisation. The Court held that a literal interpretation of these provisions would make them violative of the Constitution. This was in line with the earlier decision in Arup Bhuyan v. State of Assam (2011) 3 SCC 377 8 where the Court had held that "mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence".

Legislation in Indian-administered Kashmir

The 1990 Armed Forces (Jammu and Kashmir) Special Powers Act gives the federal authorities the power to declare a "disturbed area", in, among other circumstances, when there are:

activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people.S. 3, Armed Forces (Jammu and Kashmir) Special Powers Act. 

But while it is stipulated that “terrorist act” in this provision has the same meaning as in the Explanation to Article 248 of the Constitution of India, that constitutional definition was removed by the 2019 Constitution (Application to Jammu and Kashmir) Order. 

Adherence to Global and Regional Terrorist Treaties

India is a State Party to all of the main United Nations treaties on terrorism.

In adhering to the 1997 Terrorist Bombings Convention, India declared that:

The Government of the Republic of India have examined the Declaration made by the Government of the Islamic Republic of Pakistan at the time of its accession to the International Convention for the Suppression of Terrorist Bombings 1997.

The Government of the Republic of India consider that the Declaration made by Pakistan is, in fact, a reservation that seeks to limit the scope of the Convention on a unilateral basis and it is, therefore, incompatible with the object and purpose of the Convention which is the suppression of terrorist bombings, irrespective of where they take place and who carries them out.

India has also adhered to the SAARC 1987 Regional Convention on the Suppression of Terrorism and its 2004 Additional Protocol.

Laws and Penalties for Terrorist Offences

Section 16 of UAPA imposes capital punishment or life imprisonment for a terrorist act that results in the death of any person. Other cases are subject to imprisonment for a term of at least five years and a maximum of life imprisonment.

Raising funds for a terrorist act is subject to imprisonment for a term of at least five years and a maximum of life imprisonment.S. 17, UAPA.A similar punishment is imposable for organising terrorist camps and for recruiting any person or persons for a terrorist act.S. 18(A) and (B), UAPA.

Membership of a terrorist group or organisation is punishable with a maximum of life imprisonment.S. 20, UAPA.

Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra (2012) 9 SCC 1

This case concerned the imposition of the death penalty on one of the convicted terrorists in relation to the Mumbai terrorist attack on the Taj Mahal hotel on 26 November 2008. This resulted in the murder of 166 people and injury, often serious, of a further 238 people. The victims included policemen, security personnel and foreign nationals. The property damage was assessed at over US$1.5 billion.

At trial, Mr Kasab, a Pakistani national, was sentenced to five death penalties and an equal number of life terms in prison. The sentences were confirmed by the High Court of Bombay. From the judgment of the High Court two appeals were filed in the Supreme Court. Unrepresented during the appeal, the Court appointed Kasab an experienced advocate to represent him.

The Supreme Court stated that since it was a case involving the death penalty it would examine the materials on record at first hand, unbound by the earlier findings of the trial court and the High Court. Mr Kasab's request for a Pakistani legal representative was subsequently granted.

On the facts and given the possibility of reform of the accused being precluded by his absence of remorse for the terrorist crimes committed, the Supreme Court was of the view that the imposition of the death penalty was fully justified.

Counterterrorism Capacities and Policies at Domestic Level

The 2008 National Investigation Agency Act established the National Investigation Agency (NIA), which functions as the Central Counter-Terrorism Law Enforcement Agency in India.

Human Rights Watch has affirmed that the Indian government has been using counterterrorism laws and operations to silence peaceful dissenters, human rights activists, and journalists.

Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016)

An NGO, EEVFAM, filed a case before the Supreme Court of India alleging that 1,528 cases of extrajudicial killings by the armed forces of India had taken place in Manipur state between 1979 and 2012. In a landmark decision, the Court held there was a need to create accountability structures for violations by armed forces under the 1958 Armed Forces (Special Powers) Act (later replaced by the AFSPA). The court ordered the National Human Rights Committee to expedite decisions on complaints filed with them. It also ordered the Central Bureau of Investigation to look into the cases of "fake encounters" (summary executions dressed up as gun battles), as well as the use of excessive or retaliatory force by the armed forces more broadly. 

Justice Santosh Hegde Committee 

After the EEVFAM case, the Supreme Court appointed a commission to conduct an inquiry into six cases of reported extrajudicial killings by armed forces in Manipur under the AFSPA. The commission confirmed in 2005 in what is known as the Reddy Report the cases as instances of fake encounters. It also found that the AFSPA was widely abused by armed forces in Manipur.

Counterterrorism operations in Indian-administered Kashmir

In Kashmir, Section 4 of the AFSPA provides special powers to the armed forces in responding to terrorist acts and terrorists. This do not comply with the use of force in law enforcement under international law:

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area ... if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.

The use of force by the armed forces in Kashmir has been sharply criticised by human rights organisations.