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“Human Rights And Terrorism: An International And Indian Analysis” (By-Sara Chawla)
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Article Details
“Human Rights And Terrorism: An International And Indian
Analysis”
Authored By - Sara Chawla
Literature Review
The concepts
of human rights and terrorism find their utmost importance in the legal systems
around the world. Every country has its own set of laws and regulations, and
yet there are certain matters which form concerns at the global level, the
aforementioned intersecting to become one of the major problems in the domestic
as well as in the international law.
An in-depth
research has been conducted to formulate certain facts and observations
regarding the issues of human and rights and terrorism. A doctrinal type of
research has helped in developing opinions and recommendations based on
justified reasoning derived from the past circumstances and factual background.
As the title
of the paper suggests, the content written below details the conceptualisation
and intersection of human rights and terrorism from the perspective of the
international community and the Indian legal system. Since the scope of the
study undertaken enfolds domestic as well as international, field research
could not be conducted, therefore finding its foundation entirely based upon
the online sources like research papers, existing literature in research
journals and articles.
Besides the
scholarly studies on the web, the reports published by the United Nations under
its various institutions have also been referred to. The news network of the UN
and the Indian government available online has been screened to inculcate the
most recent developments in the paper. The landmark judgements have also been
taken into account to trace the historical evolution of the present operative
legalities in the international community as well as in India.
The
following content opens with a brief introduction to the legal systems and
their universal interpretation around the world. Human rights and terrorism
have been conceptualised from the perspective of the UN, before a relationship
between the two is detailed from the global and Indian perspectives separately.
further, personalised points of recommendation on the UN global initiatives and
Indian operative legislations are outlined before closing with the concluding analysis.
Research Objectives:
•
To
understand the interpretation of human rights and terrorism from the
perspective of the international community.
•
To
acquire a deeper understanding on the initiatives taken by the UN to fight
against terrorism.
•
To
draw relationship between human rights and terrorism from the perspective of
the UN as well as India.
•
To
judicially understand the operation of the UAPA at present in India.
•
To
trace human rights violations in India to the provisions of UAPA concerning
bail matters.
•
To
formulate recommendations for the UN and India based upon their working against
human rights violations and terrorism till date.
Introduction:
Human rights
are terrorism are two separate concepts that form a huge part of the law at
present. The numerous legal branches domestically and on the international
level are inclusive of the laws and legislations that take into consideration
both the aforementioned concepts.
Laws are the
rules which the society remains bound by, irrespective of the boundaries
separating the nations and states around the world. Laws and legislations form
the security blanket for the people of the global societies.
Law
formulates a regulatory system that establishes the rules by which the leaders
and governments maintain order within the national borders and beyond. Laws of
a country reflect the values of the community that it binds, it is the norms of
a society which are reflected in the laws enacted by the legislature.
Numerous
philosophers around the globe, from time-to-time, have given distinct
interpretations on the concept of law and on the various elements that it
contains. For example, where John Austin defines law in such a way that it is
deemed to be the sanctioning force acquired from the idea of the power that a
sovereign beholds, Jeremy Bentham defines law to be a utilitarian mechanism the
only purpose of which is the greater good of all.
Law has been
given several definitions and implications which make its characteristics
highly flexible in accordance with the environment of the society that it has
to regulate. It is the only ideal on the international and national levels that
defines the scope of every element that has the potential of changing the
characteristics of the society, all the while providing resolution mechanisms
against its negative or destructive connotations. Human rights and terrorism
form one part of the legal systems around the world, and all their implications
have been detailed in the following content.
Concept Of Human Rights:
Human
rights, also known to be liberties that the people around the world are
entitled to form one of the major subject matters of the humanitarian law. Even
though every country habits own laws regulating the rights of the people, the
international community also plays a key role in outlines for the world leaders
to legislate enactments that grant fundamental rights to the citizens.
The United
Nations Declaration on Human Rights[1] of 1948 emphasised on the
importance of human rights post world war II. It categorised rights into civil,
political, social, legal and cultural, and pronounced its encouragement for the
leaders to grant each one of the aforesaid to the people.
The civil
rights are the ones which can be called individual liberties granted for the
enjoyment of a free societal life, political rights are the ones which provide
the people to participate in the government-making mechanisms especially in the
democratic countries, social and cultural rights entitle the people with the
freedom to involve in the cultural life of the society, and the economic rights
give them the freedom to approach the law for the acknowledgement of their
economic status in the country and that of their related rights in various
aspects of the legal systems around the world. The UN Declaration on Human
Rights was not only contribution of the international community once the
countries started supporting the perspective of the humanitarian law.
The United
Nations Covenent on Civil and Political Rights[2] was brought to the surface by
the member countries in the year 1966. It underlined the distinction among the
aforementioned categories of human rights, and strived to define the
significance of every set of liberties that was to be granted to the people.
Likewise, the United Nations Covenant on Economic, Social and Cultural
Rights[3] was brought up by the world
leaders in the General Assembly in the same year, therefore granting support to
all the human rights on the global level.
Concept Of Terrorism:
Terrorism is
an evil that is deemed as such around the world. There is no specific
definition of the term decided upon by the international community. However, it
is a common goal of the countries to eliminate the said evil.
Every
country has its own legislations that deal with the issue of terrorism within
domestic boundaries, but the need to formulate a global plan of action to
eradicate the issue is also common among the nations. The United Nations has
time and again expressed the necessity to appropriately define “Terrorism”, but has failed at it
so far.
Apart from
the domestic enactments, the unions of different countries in different parts
of the world have also made efforts to clearly draw the implications of the
terrorist activities gaining prevalence in the international community. For
example, the Council of European countries[4] has defined terorism to be the
performance of unlawful activities with the purpose or intent to cause harm to
the public or the government, or to threaten the national authorities into
doing or abstain from doing something the outcome of which would be in favour
of the terrorists.
After
numerous failed attempts at setting one clear definition in stone for the
entire international community, the UN shifted its efforts to counter
terrorism. The UN convention for Suppression of Financing of Terrorism[5] was tabled before the Security
Council in the year 1999. The convention aimed at weakening the financial
support of the terrorists, which would eventually lead to a reduction in the
instances of terrorism.
The
aforesaid anti-terrorism UN convention had also been inculcated with provisions
that would highlight the prohibition of certain activities declared to be
unlawful as per the universal understanding of the term terrorism. For example,
article 2(1) of the anti-terrorism convention defines certain activities which
are to be prohibited in countering terrorism. The convention also aims at recognising
the factors that have so far lead to the prevalence of terrorist instances
around the world so as to design an efficient action plan to counter it in the
future.
Human Rights And Terrorism - International Perspective:
Ever since
the UN introduced the significance of the conceptual human rights and
terrorism, the initiatives on the global sphere had started shifting towards
the two factions causing havoc among the countries. Human rights and terrorism
seem to be two distinct issues, yet when the studies across the world began,
the scholars drew a segment in the understanding of the aforesaid that proved
an intersection of the seemingly separate global problems.
The nations
and the leaders soon started catching up to the understanding that human rights
and terrorism are linked and woven together to form the threads of issues being
phased by them. Human rights are violated when the terrorists carry out their
unlawful activities, and yet, it is the violation of such rights that had lead
to the terrorism[6]. A deeper understanding of the
concept has resulted into the realisation among the people and authorities that
lack of rights for the people leads to unlawful conduct, therefore causing
further violations.
As per the
studies undertaken for the purpose of creating the content for this paper, it
is a common belief among the scholars that performing unlawful activities can
become a source of income for the impoverished, in other words, poverty and
unemployment is one factor leading to terrorism. The said factor is a result of
lack of economic rights for the people on a large scale, such inefficient
economic privileges for the needy leads them to indulge in activities which would
let them earn their livelihood. The lack of fundamental economic rights forms
one example that binds human rights and terorism together, since it is the
fundamental right to life that is violated of the people when the terrorists
harm the civilians to get their demands
across to the governments.
The
developing countries like India have made countless efforts to curb terrorism
in their territorial boundaries since a large population unquestionably leads
to poverty and unemployment, which could further result in an intensified
environment for terrorist activities. However, many of the legislations which
are passed in such countries have loopholes that could aggravate the violations
of human rights of the convicts of the terrorists, therefore becoming a double-edged
sword.
Human Rights And Terrorism - Indian Perspective:
In the
historical evolution of the concept of terrorism in India, there have been
numerous legislations that were enacted, amended or repealed in the course of
time till now. On the international level, there have been conventions and
protocol that strive to combat the issue of terrorism with a united front of
the countries around the world.
The UN has
drafted conventions against terrorism, some of them entirely focused on the
suppression of bombing, or on the prevention of financing the terrorist
organisations, but still the issue remains prevalent in the nations across the
globe.
In India,
before the enactment of the Unlawful Activities Prevention Act[7], enacted in 1967 and amended
most recently in 2019, the Terrorist and Disruptive Activities Act[8] or the TADA was in operation up
till 1995 when it was repealed, the Prevention of Terrorist Activities Act[9] or the POTA was enacted in 2002
which revived the TADA with certain modifications. In 1958, the Armed Special
Forces Act[10] was enacted, but it Could not
remain operative due to the unreasonable powers that it granted to the armed
forces in detaining the civilians without justifications. Similarly, there were
other legislations like the Preventive Detention Act right after the partition
of India which too could not remain operative due to the power that it granted
to the authorities in incarcerating the people for terrorism without justified
reasons. In an illustration, 5 men were arrested for committing offences under
sections 120, 120B and 121 of the Indian Penal Code[11]. They were also charged under
certain provisions of the UAPA, and were incarcerated for committing terrorist
activities.
When the
application for bail was filed, the court rejected it, claiming that there is
reasonable belief that the accused were guilty of the commission of terrorist
offences under the UAPA. The court rejected the bail under the restrictions of
section 43(5) of the UAPA. The accused argued that the prosecution has not been
able to prove their charges in the matter, and therefore it formed as reasonable
grounds for their bail.
As per the
scholars around the world, the amendment to the UAPA in 2019 has various
concerns to address where the rights of the accused are questioned. The UAPA
does not define the term terrorist in section 15 in a way that would be
consonant with the definition of the said term by the UN conventions.
The
identification of a terroist has to be done with reasonable justification,
there needs to be transparency in the system. Herein, the grant of bails has
also been a question of concern where UAPA is applied.
The
amendment of 2019 does not mention any provision regarding anticipatory bail,
and has severely restricted the grant of bail under section 43(5). Various
judicial pronouncements have stressed on the need for flexible provisions where
bails are concerned so as to prevent violations of the fundamental human rights
of the accused and the convicts of terrorism.
The UAPA
does not provide a reasonable provision when the accused are to be punished or
tried under the charges framed for violation of the provisions of the said
enactment. Bail is considered to be a right of the accused on the principle of
presumption of innocence until proven guilty. It is an enshrined fundamental
right under article 21 of the Indian constitution.
In the
judgement of Sanjeev Chandra v. Union of India, the Supreme Court held that the
grant of bail is necessary for the accused to legally represent himself in the
case before the court. The Supreme Court emphasised on the idea that release on
bail is an enshrined right of the accused under article 21 for him to acquire
appropriate legal representation against the charges framed.
In the case
of State v. K.A. Najeeb, the Supreme Court stressed on the restrictions of
section 43(5) of the UAPA. It held that when the preceding is taking too long
and the sentence of imprisonment has been surpassed while the accused was
incarcerated waiting for the prosecution to prove him guilty, it is the duty of
the courts to recognise his fundamental right under article 21.
The Supreme
Court in the case of Sanjay Dutt v. Union of India again emphasised on the
importance of releasing the accused on bail when the prosecution is taking way
too much time in proving him guilty. The court has time and again stressed that
the restriction of section 43(5) of the UAPA has constantly violated the rights
of the accused under article 21 of the Indian constitution.
In the case
of B.V. Rao v. State of Maharashtra puts emphasis on the Supreme Court’s opinion regarding the restriction on article 21 of the
constitution due to section 43(5) of the UAPA. In a judgement of Zahoor v.
Union of India, the court had held that the bail grants under the UAPA are
comparatively flexible than those under the enactments pertaining to narcotics
and drug abuse.
However, the
need was felt by the court wherein it has stressed on numerous occasions as to
the importance of making bail provisions more lenient under the UAPA. The court
has sought an easement on the restriction provided under section 43(5), and has
opined that when the trial is not speedy, when it has incarcerated the accused
for longer than a sentence is meant to be, then the accused needs to be
realised on bail.
Proposed Recommendations:
As per the
international perspective, it needs to be the responsibility of the terrorist
prevention branch established in the United Nations Office of Drugs and Crime[12] to indicate to its members and
state the value of conventions and protocols. For example, the branch must
explain that the convention establishes a destination of a particular type
terroist activity and requires a state to criminalise that conduct provided in
the definition of the convention or protocol.
The
convention and protocol needs to contribute in establishing widespread legal
recognition of defined terroist offences. This is essential to deal with the
segment of dual criminality which is the basic foundation of international
criminal justice system and the International humanitarian law.
As for the
Indian perspective, the operative UAPA needs to be conformed in a way that it
ensures the retention of the human rights of the accused as well as those of
the convicts. It needs to make such provisions more lenient so as to prevent
the violation of article 21 of the accused.
The
legislature and the courts are suggested to make their opinions more flexible
where the accused is being incarcerated under the UAPA for a term longer than a
sentence. The courts are advised to give decisions in accordance with the
principles of natural justice and in accordance with the fundamental rights
enshrined under the constitution when the provisions of other enactments seem
to be restrictive of such fundamental rights of the accused.
Concluding Analysis:
As per the
detailed discussion on human rights and terrorism undertaken in the content
above, it is rightfully observed that there exists an intersection between the
humanitarian law and the laws against terrorism. Human rights are evidently
significant to grant so as to avoid unlawful conduct by the people wronged.
Inefficiencies in the legal systems around the world pertaining to lack of
rights to the people can unquestionably lead to an increased terrorist
activity.
To reiterate
the hypothesis drawn from the undertaken research work, the human rights of the
people are violated when terrorism strikes the society of a country, and it is
the violation of human rights of the people that had resulted in their
involvement in terrorism. As a simplified statement, poverty and unemployment
are the major factors that hint at the government’s
inefficiency in granting basic human rights to the suffering people, therefore
forcing them into unlawful conduct for earning livelihood and for demanding the
fulfilment of their needs through terrorist activities.
Article Information
“Human Rights And Terrorism: An International And Indian Analysis” (By-Sara Chawla)
Authors: Sara Chawla
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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