Clause 111 of BNS: The terrorism of vaguely worded laws

The three new criminal law bills recently tabled in Parliament aim to take on the monumental task of decolonising and contemporarising India’s criminal justice system. In this endeavour, the Bharatiya Nyaya Sanhita Bill (BNS) has introduced new provisions aimed at protecting the integrity of the State, including Clause 111, which criminalises Terrorist Acts. Alarmingly, however, they carry out this task without any consideration for the existing legislative framework, resulting in numerous discrepancies in the definition and procedural aspects of the crime.

The term ‘terrorism’ is generally used loosely, making it challenging to establish a clear understanding of what constitutes the crime. Its inherent complexity, often involving the commission or attempted commission of various offences, further complicates the task of identifying universal factors and a standard definition. This lack of clarity often leads to an undue focus on identifying potential terrorists rather than scrutinising the acts committed. The BNS’s provision on the ‘Terrorist Act’ succumbs to the same limitations, lacking clarity and perpetuating the focus on identifying potential terrorists rather than scrutinising the acts committed.

Clause 111 of the BNS criminalises a wide range of acts committed with the intention of threatening the unity, integrity, and security of India. Worded vaguely and ambiguously, the provision criminalises acts committed with the intention of ‘intimidating the general public’ or ‘disturbing public order’. While this provision partially mirrors the intent requirement provided under Section 15 of the Unlawful Activities Prevention Act, 1967 (‘UAPA’), the additional inclusion of ‘disturbing public order’ lowers the threshold necessary for an act to qualify as a terrorist act.

Moreover, the provision classifies the act of causing extensive interference with critical infrastructure as a terrorist act. However, the provision fails to define what ‘extensive interference’ or ‘critical infrastructure’ means, leaving room for broad interpretation. Consequently, even a simple act of resistance, such as a protest blocking a road or a boycott of a polluting factory, can potentially be labelled as a terrorist act. The blurred line between resistance and terrorism poses a serious threat to the fundamental rights of freedom of speech, expression, and assembly. A knee-jerk reaction to trivial acts is a loose canon.

Special legislation not addressed

Critical offences such as terrorism and organised crimes have always been dealt with by special legislation. This need arises due to the requirement of tailored procedures to effectively tackle such offences. However, such legislation is often subjected to criticism for granting extraordinary powers to the police and judiciary, which can infringe upon personal liberty and due process.

For instance, the special procedure under UAPA gives the police wide-sweeping authority, including preventive detention, increased power of arrest, search and seizure, and extended periods of custody. These techniques are supposed to facilitate effective intelligence gathering, but their utility in promoting a speedy trial has never been assessed. Rather, their reproduction in the UAPA can be traced back to the Rowlatt Act, 1919, as tools to stifle any opposition against the hegemony of the colonial State.

The redrafting of the provision on terrorism in the BNS presented an opportunity to address concerns about these excessive powers and their potential for abuse. However, the BNS failed to do so, either by developing the necessary oversight mechanisms to mitigate their excesses or by reforming the powers themselves.

Safeguards in Anti-Terror Laws

Instituting safeguards against custodial and judicial abuse is essential to placing checks on the draconian procedures of anti-terror laws and aligning them with democratic principles. Limits on the broad immunity of enforcement agencies, repatriation of the accused persons entangled in delayed trials, and compensation for civilian casualties are some ways to provide relief to all stakeholders.

A new rule to govern the same crime does not tackle the problems of implementation and investigation; instead, we need to build on the existing capacities of the criminal justice system to create a holistic anti-terrorism policy.

While creating the current framework on terrorist acts gave ample room to build effective combative measures, its analogous procedural and evidentiary provisions are missing in the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, and the Bharatiya Sakshya Bill, 2023. This places the law in a vacuum, rendering it practically ornamental. The two parallel procedures formulated through the inconsistencies in UAPA and the new bills can lead to arbitrary, discriminatory, and disuniform application of the law. Therefore, the future of anti-terrorism law remains uncertain.

(The writer is a research fellow in criminal justice at the Vidhi Centre for Legal Policy.)

(This is the thirteenth article in a DH- Vidhi Centre for Legal Policy series on the proposed new criminal law codes)