93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 042

TERRORISM:

433) The term “terrorism” is a concept that is commonly and widely used in everyday parlance and is derived from the Latin word “Terror” which means the state of intense fear and submission to it. There is no particular form of terror, hence, anything intended to create terror in the minds of general public in order to endanger the lives of the members and damage to public property may be termed as a terrorist act and a manifestation of terrorism. Black’s law dictionary defines terrorism as “the use of threat or violence to intimidate or cause panic, esp. as a means of affecting political conduct” (8th edition, page 1512).

434) Terrorism is a global phenomenon in today’s world and India is one of the worst victims of terrorist acts. Terrorism has a long history of being used to achieve political, religious and ideological objectives. Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building explosions, mailing of dangerous materials, computer-based attacks and the use of chemical, biological, and nuclear weapons—weapons of mass destruction (WMD).

435) The fight against terrorism requires a concerted and multifaceted strategy at both the domestic and international levels and should involve a legal order which itself needs to be updated and elaborated upon and should hence be turned into a practical tool. There exist several domestic and international legislations to counter terrorism. The Terrorist and Disruptive Activities (Prevention) Act, 1985 (Act 31 of 1985) which received the assent of the President on May 23, 1985 and was published in the Gazette of India, Extra., Part II, Section 1, dated May 23, 1985, came into force on May 24, 1985 in the whole of India for a period of two years. The Statement of Objects and Reasons of the said Act reads as follows:

“Prefatory Note — Statement of Objects and Reasons.— Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh. Since the 10th May, 1985, the terrorists have expanded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern.”

436) The Bill as introduced sought to make provisions for combating the menace of terrorists and disruptionists, inter alia, to—

(a) provide for deterrent punishment for terrorist acts and disruptive activities;

(b) confer on the Central Government adequate powers to make such rules as may be necessary or expedient for the prevention of, and for coping with, terrorist acts and disruptive activities; and

(c) provide for the constitution of Designated Courts for the speedy and expeditious trial of offences under the proposed legislation.

437) The said Act No. 31 of 1985 was due to expire on May 23, 1987 and in order to combat and cope with terrorist and disruptive activities effectively and to strengthen it further, the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987) was enacted. Since both the Houses of Parliament were not in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on May 23, 1987 which came into force w.e.f. May 24, 1987. However, this Act repealing the Ordinance, received the assent of the President of India on September 3, 1987 and was published in the Gazette of India, Extra., Part II, Section 1, dated September 3, 1987. The scheme of the Act 31 of 1985 and Act 28 of 1987 as reflected from their preambles is the same. The scheme of the special provisions of these two Acts were/are “for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto”.

International Conventions

438) There also exist several International Conventions, which aim to suppress terrorism and define terrorist acts. The League of Nations took the initiative to formulate the first Global Convention on Preventing Terrorism and, accordingly, adopted the 1937 Convention for the Prevention and Punishment of Terrorism, which defined “acts of terrorism” as:

“Criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, a group of persons or the general public.”

439) More recently, several International Conventions and Multilateral Agreements have been entered into by States to curb global terrorism. The International Convention for the Suppression of Terrorist Bombings, 1997 defines the offence of “terrorist bombing” as follows:

“Article 2.1 – Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place or public use, a State or government facility, a public transportation system or an infrastructure facility:

a) With the intent to cause death or serious bodily injury; or

b) With the intent to cause extensive destruction of such a place, facility or system, where such a destruction results in or is likely to result in major economic loss.”

440) The United Nations Security Council in its 2004 Resolution denounced “terrorist acts” as follows:

“criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.” India’s Contribution in Combating Terrorism

441) India has played a major part in strengthening international consensus against terrorism in UN, Non-Aligned Movement (NAM) and South Asian Association for Regional Cooperation (SAARC). India is a party to major international conventions against terrorism and has also incorporated them in domestic legislation. These conventions and treaties condemn terrorist acts and expressly state the grave concern posed by terrorism.

Terror Attacks

442) Another trend common to both national and international terrorism is the emergence of terrorist groups motivated by religious fanaticism.

Whenever the perpetrators are motivated by religious fanaticism or had secular goals and beliefs, they become susceptible to the idea of sacrificing their own life for carrying out the will of God, or Allah or in waging a ‘holy war’. It is important to note here that terrorism is abhorred and condemned by all the religions of the world. Terrorists conduct planned and coordinated attacks targeting innocent civilians with a view to infuse terror in the minds of people. India, particularly, has been a victim on several occasions. An indicative list of recent terrorist attacks on India as furnished by learned senior counsel for the CBI is provided below:

|S.No. |Date of |Place of Attack |No. of Bomb |No. of Persons || |Attack | |Blasts |killed |

|1. |12.03.1993 |Bombay |13 |257 |

|2. |14.02.1998 |Coimbatore |13 |46 |

|3. |13.12.2001 |New Delhi |- |9 |

|4. |25.09.2002 |Akshardham |- |29 |

|5. |06.12.2002 |Mumbai (Ghatkopar) |- |2 |

|6. |25.08.2003 |Mumbai (Zaveri |- |50 || | |Bazaar) | | |

|7. |29.10.2005 |Delhi |3 |60 |

|8. |11.07.2006 |Mumbai (Local trains)|- |209 |

|9. |25.08.2007 |Hyderabad |2 |42 |

|10. |23.11.2007 |Lucknow, Varanasi, |- |18 || | |Faizabad | | |

|11. |13.05.2008 |Jaipur |9 |63 |

|12. |25.07.2008 |Bangalore |9 |2 |

|13. |26.07.2008 |Ahmedabad |21 |56 |

|14. |13.09.2008 |Delhi |5 |30 |

|15. |26.11.2008 |Mumbai |- |172 |

|16. |13.02.2010 |Pune |- |17 |

|17. |13.07.2011 |Mumbai |3 |26 |

|18. |07.09.2011 |Delhi ( outside Delhi|1 |12 || | |High Court) | | |

|19. |13.02.2012 |Delhi (Israeli |Injured Persons || | |Embassy Official’s |4 || | |car) ||

443) Terrorist attacks are not only limited to India but several terrorist attacks have also been taken place in countries around the world. Following is a list of select terrorist attacks outside India:

|S.No. |Date of |Place of Attack |No. of Bomb |No. of Persons || |Attack | |Blasts |killed |

|1. |11.09.2001 |NY and Washington DC,|4 |Nearly 3000 || | |USA | | |

|2. |12.10.2002 |Bali, Indonesia |3 |202 |

|3. |11.03.2004 |Madrid, Spain |10 |191 |

|4. |07.07.2005 |London, England |4 |52 |

Supreme Court of India on Terrorism:

444) The Supreme Court of India has also explained the term ‘terrorism’ in a series of cases. Provided below are summaries of key cases on terrorism. In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors., (1994) 4 SCC 602, one of the key questions for consideration of this Court was in relation to the applicability of Section 3(1) of TADA. This Court held that while offences mentioned in Section 3 of TADA may overlap with offences mentioned in other statutes, a charge under Section 3 should be made where the offence was committed with the intention as envisaged in Section 3. This Court further observed:

“7. ‘Terrorism’ is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society.

‘Terrorism’ has not been defined under TADA nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ‘terrorism’ is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon…..” (emphasis supplied)

445) Girdhari Parmanand Vadhava vs. State of Maharashtra, (1996) 11 SCC 179 relates to kidnapping of a boy for ransom and on non-payment of the same, the accused persons tortured and killed the boy. The Designated Court convicted the accused and awarded life sentence. While adjudicating the appeal, it was contended by counsel for the accused persons before this Court that kidnapping is not a terrorist activity within the meaning of the provisions of TADA. This Court, while affirming the conviction and that the offence committed was a terrorist act, held as under:

“39. A crime even if perpetrated with extreme brutality may not constitute “terrorist activity” within the meaning of Section 3(1) of TADA. For constituting “terrorist activity” under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country…..

….. It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B of the IPC.” (emphasis supplied)

446) In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors., (1999) 5 SCC 253, this Court, while adjudicating the convictions of several accused persons in the case for assassination of Mr. Rajiv Gandhi, former Prime Minister of India, spelt out the ingredients of an offence under Section 3(1) of TADA as follows:

“650. …… A perusal of the provision (Section 3(1)), extracted above, shows that it embodies the principle expressed in the maxim “actus non facit reum, nisi mens sit rea”; both “mens rea” and a criminal act are the ingredients of the definition of “terrorist act”. The mens rea required is the intention (i) to overawe the Government as by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people.

The actus reus should comprise of doing 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 by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detaining any person and threatening to kill or injure such persons in order to compel the Government or any other person to do or abstain from doing any act.” (emphasis supplied)

447) In Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334, while affirming the decision in appeal, this Court held that it is difficult to define terrorism in precise terms and acknowledged that terrorism is a threat to global peace and security. This Court further observed as under:

“42. ……..It is not possible to define the expression ‘terrorism’ in precise terms. It is derived from the word ‘terror’. As the Statement of Objects and Reasons leading to enactment of the TADA is concerned, reference to the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the ‘Old Act’) is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the country. It was expected that it would be possible to control the menace within a period of two years, and life of the Act was restricted to the period of two years fro the date of its commencement. But noticing the continuance of menace, that too on a larger scale TADA has been enacted. Menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Center and other places on 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is, TADA is applied as an extreme measure when police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was committed with an intention to strike terror in the people or section of people would depend upon the facts of each case.” (emphasis supplied)

448) Nazir Khan & Ors. vs. State of Delhi, (2003) 8 SCC 461 pertains to prosecution of accused persons involved in kidnapping of foreign nationals and killing of police officers during combat. While the mastermind of this terrorist operation was subsequently released by the government in exchange for passengers held as hostages in the hijacked Indian Airlines Flight IC 814, the other accused persons were tried for offences punishable under the IPC and TADA. This Court, while hearing their appeals, challenging the judgment of Designated TADA Court, which had awarded death and life sentences to certain accused persons, made detailed observations about the nature of terrorist activities and attempted to define terrorism and held as under:

“13…. As noted at the outset, it is not possible to precisely define “terrorism”. Finding a definition of “terrorism” has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State’s “terrorist” is another State’s “freedom fighter”. If terrorism is defined strictly in terms of attacks on non-military targets, a number of attacks on military installations and soldiers’ residences could not be included in the statistics. In order to cut through the Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing consensus on what constitutes a “war crime” as a point of departure. If the core of war crimes — deliberate attacks on civilians, hostage-taking and the killing of prisoners — is extended to peacetime, we could simply define acts of terrorism as “peacetime equivalents of war crimes”. (emphasis added)

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93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

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