In a notable advancement, the term 'terrorist act' has been formally criminalized within the general criminal statute Bharatiya Nyaya Sanhita, 2023, thereby broadening the legal framework addressing terrorism. This marks a shift from earlier practices where 'terrorist acts' were mainly prosecuted under specific laws such as the Unlawful Activities (Prevention) Act of 1967.

The definition of a terrorist act in Section 113 BNS has been formulated similarly to the UAPA. Additionally, it has been stipulated that in cases involving a terrorist act, an officer not lower in rank than a Superintendent of Police will determine whether to file charges under the provisions of the BNS, 2023 or the UAPA, 1967.

Section 113 of the BNS, which is a new provision in the BNS modelled after the Unlawful Activities (Prevention) Act of 1967 (UAPA), specifically focuses on acts of terrorism. In contrast to the UAPA, Section 113 BNS specifies particular punishments for various offences, which are elaborated upon in its sub-sections.

The BNS has broadened the definition of terrorism to encompass any act aimed at compromising the unity, integrity, sovereignty, security, or economic stability of India, with the intention of instilling fear in the population, whether within India or in other countries.

The BNS has updated its definition by eliminating the focus on the intention to intimidate the public or disrupt public order. Instead, it now emphasizes the goal of instilling terror in the general population and includes threats to economic sovereignty as part of its criteria for identifying terrorism. Additionally, the BNS added causing harm to India's monetary stability through counterfeit currency to the terrorism provisions. The newly revised definition of terrorism in the BNS closely resembles the one outlined in the Unlawful Activities (Prevention) Act of 1967.

According to Section 113(1) of the BNS, a person is considered to have engaged in a terrorist act if they undertake any action in India or abroad with the intent to threaten the unity, integrity, and security of India, to intimidate the general public or any part thereof, or to disrupt public order by engaging in the following activities:

1. Utilizing bombs, dynamite, or any explosive materials, flammable substances, firearms, lethal weapons, poison, noxious gases, or other hazardous chemicals (whether biological or not) in a manner that creates a climate of fear, inflicts death or serious bodily harm on any individual, or jeopardizes someone's life;
2. Causing damage or loss through the destruction of property, disrupting essential supplies or services critical to community life, or damaging government or public facilities, public spaces, or private property;
3. Inflicting extensive interference, damage, or destruction to critical infrastructure;
4. Provoking or influencing government organizations through intimidation in a way that may lead to death or injury to any public official or individual, detaining someone and threatening to harm them to compel the government to take or refrain from specific actions, destabilizing or dismantling the country's political, economic, or social structures, creating a public emergency, or undermining public safety;
5. Falling within the categories outlined in any of the treaties listed in the Second Schedule of the Unlawful Activities (Prevention) Act, 1967.

Section 113(2) of the BNS: Any individual who attempts to commit or actually commits an act of terrorism shall be subject to the following penalties:

1. If the act results in the death of any individual, the offender shall face the death penalty or life imprisonment without the possibility of parole, in addition to a fine of no less than ten lakh rupees;
2. In all other circumstances, the offender shall face imprisonment for a minimum of five years, which may extend to life imprisonment, alongside a fine of no less than five lakh rupees.

 

• Section 113(3) of the BNS: Any person who conspires, organizes, or facilitates the formation of any association, group, or organization for the purpose of carrying out terrorist acts, or who assists, enables, or conspires to prepare for any terrorist act, shall face imprisonment for a minimum of five years, extendable to life imprisonment, and shall also incur a fine of no less than five lakh rupees.
• Section 113(4): Individuals who are members of a terrorist organization involved in terrorist activities shall be punishable by imprisonment that may extend to life, along with a fine of no less than five lakh rupees.
• Section 113(5): Anyone who knowingly harbours or conceals an individual who has committed a terrorist act, or attempts to do so, shall face imprisonment for a minimum of three years, which may extend to life imprisonment, and shall incur a fine of no less than five lakh rupees. However, this provision does not apply if the harbouring or concealment is done by the spouse of the offender.
• Section 113(6) of the BNS: Anyone who directly or indirectly holds property or assets derived from the commission of a terrorist act, proceeds of terrorism, or funds acquired through terrorist activities, or who possesses, provides, collects, or utilizes property or funds for the purpose of facilitating any terrorist act, shall face imprisonment that may extend to life, in addition to a fine of no less than five lakh rupees. Such property shall also be subject to attachment and forfeiture.

Was there any Need for Including the Terrorist Act in the BNS:
Section 113 of the BNS penalizes any actions taken with the intention to threaten, or that are likely to threaten, the unity, integrity, sovereignty, security, or economic stability of India, as well as those intended to instil terror or likely to instil fear among the populace or certain groups within India or in any foreign nation.

The offences outlined in this section are comparable to those in the Unlawful Activities (Prevention) Act of 1967 (UAPA). Specifically, Section 113(3) of the Bharatiya Nyaya Sanhita corresponds to Section 18 of the UAPA, while Section 113(5) aligns with Section 20 of the UAPA. Similarly, Section 113(6) relates to Section 19 of the UAPA, and Section 113(7) is akin to Section 21 of the UAPA. The explanation provided for the Section acknowledges the overlapping authority of the UAPA and the Bharatiya Nyaya Sanhita, thereby granting an officer of at least Superintendent of Police rank the discretion to determine whether to proceed with a case under the Bharatiya Nyaya Sanhita or the UAPA.

The reason for including the offence of terrorist acts within the Bharatiya Nyaya Sanhita, 2023 remains unclear, especially since there is already a specific statute, the UAPA, governing such offences. Furthermore, it is also ambiguous why an officer has been granted the authority under this section to determine which Act should govern the case registration, despite the established legal principle that special laws take precedence over general laws.

Section 113 of the BNS enforces strict anti-terrorism measures that aim to protect national security and public safety. However, its broad definitions and harsh penalties raise concerns about potential misuse by security and political forces, risking civil liberties. Security agencies must carefully define terrorist acts and follow legal standards to prevent targeting dissenters. The judiciary should actively review cases to uphold due process and transparency. Although Section 113 BNS strives to combat terrorism, prioritizing individual rights is essential to avoid abuse of power.

The BNS acknowledges that there is an overlap between its provisions and those of the UAPA, and therefore stipulates that an officer of at least the rank of Superintendent of Police must determine whether to file a case under the BNS or the UAPA.

Several provisions of the BNS overlap with specialized legislation, such as the Unlawful Activities (Prevention) Act of 1967 and state laws addressing organized crime, including the Maharashtra Control of Organised Crime Act of 1999 and the Gujarat Control of Terrorism and Organised Crime Act of 2015. This results in overlapping procedures and mechanisms to prosecute these offences, increasing compliance burdens and associated costs. Additionally, it creates uncertainty in the proceedings when addressing such offences.

An investigative authority should not be granted unrestricted discretion in choosing which offence to prosecute when a legal offence is evident. The Supreme Court addressed a comparable scenario in the case of State of West Bengal v. Anwar Ali Sarkar, (1952) 1 SCC 1. In that case, Section 5(1) of the West Bengal Special Courts Act, 1950, empowered the State Government to determine which types of offences could be addressed by Special Courts. The Supreme Court ruled that such a provision violated Article 14 as it conferred unrestricted authority to the State Government without any guiding principles.

This is inconsistent with the general principle that if an act qualifies as a terrorist act under both the BNS and the UAPA, the UAPA - a special statute - takes precedence, thereby making the BNS provisions unnecessary.

The introduction of overlapping offences under the BNS appears designed to circumvent the safeguards that the UAPA offers. The UAPA emphasizes that, due to its extensive powers, appropriate safeguards must accompany its enforcement.

Specifically, Section 45 of the UAPA requires prior approval from the relevant government before a jurisdictional court can take cognizance under the Act. In contrast, proceedings related to terrorist acts under the BNS do not necessitate such governmental sanction. Furthermore, the UAPA allows for contesting the designation of an organization as a terrorist group, as indicated in Sections 36 and 37 of the Act. The BNS, however, lacks these protective measures. The absence of these safeguards could lead to serious consequences, including the possible misuse of its provisions.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565