PUDR notes with concern the redrafted section on Terrorist Activities in the revised Bharatiya Nyaya (Second) Sanhita, 2023. While in the earlier draft of the BNS, the offence of a Terrorist Act largely mirrored the Unlawful Activities (Prevention) Act (UAPA), the changes made in the revised BNS amount to the most glaring, clause wise reproduction of the most frequently used sections of UAPA. Undoubtedly, some ambiguous clauses within the definition of a Terrorist Act in the earlier draft such as, “intimidate the general public or a segment thereof, or to disturb public order”, which had been alluded to in PUDR’s observations in the context of death penalty punishments, and “damage and destruction to critical infrastructure” have been removed. However, the reproduction of the provisions of the UAPA in Clause 113 of the revised BNS has expanded the scope of Terrorist Act and has reintroduced the characteristic ambiguity of the UAPA.
Most significantly, the redrafted clause on ‘Terrorist Act’ ends with an Explanation which states that it is up to the police, not below the rank of a superintendent of police, to decide whether a case will be registered under the purported section of the BNS or the UAPA. In verbatim, the Subclause 1 of the BNS reproduces S.15 of the UAPA (Terrorist Act), Subclause 2 reproduces S.16 (Punishment for Terrorist Act), Subclause 3 reproduces S.18 (Punishment for Conspiracy), Subclause 4 reproduces S.18A (Punishment for organising of terrorist camps), Subclause 5 reproduces S. 20 (Punishment for being member of terrorist gang or organisation), Subclause 6 reproduces S.19 (Punishment for harbouring), and Subclause 7 reproduces S.21 (Punishment for holding proceeds of terrorism). The duplication of the offence leaves the following questions answered.
- What is the purpose of having two laws which have the same ambit of criminality?
- UAPA is a special anti-terror legislation which creates its parallel regime of investigation, arrest and trial. Since its provisions have been reproduced in BNS which is an ordinary code, how can the same offence be tried under a special law in one instance and under an ordinary law, in another? Does this mean that certain acts alleged to be terrorist will be ordinary in one instance and extraordinary in another?
- What is the rationale of entrusting a police officer to decide when to use the UAPA or the BNS against acts which are similarly defined in both?
Each of the provisions of UAPA which have been reproduced in the BNS have come under scrutiny for their vague language and overbroad application. An example of such a provision is S.15(1’c’) of UAPA which now appears as BNS Clause 113(1’c’). It reads: “whoever…..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….commits a terrorist act”. (emphasis added). If the ambit of terrorist activity willingly includes ‘any other act’, and if the list of targeted individuals/groups includes ‘any other person’, who are compelled to do or abstain from doing ‘any act’, then the crime of terrorism is reduced to just about anything which the executive is at liberty to decide. Such vagueness in language deliberately widens the interpretative scope as it broadens the definition of terrorist activity beyond detention, kidnap, abduction (which is the same as kidnapping) or threat to kill. In short, the use of vague clauses strengthens the executive grip over an alleged accused.
PUDR believes that the duplication of laws without justification, and the reproduction of ambiguous provisions, merit a public debate in which questions of treating terrorism as a routine and as an extraordinary offence are tied together. Given this reproduction, a public debate is needed to democratize the current overhaul of the criminal justice system.
Joseph Mathai
Paramjeet Singh
Secretaries
pudr@pudr.org
