Reform Of Illusion: An Analysis On Utility Of Offence Of 'Terrorism' In BNS

Fig. 1: Similarity of provisions of BNS with UAPA

Is UAPA a special law or general law on terrorism?

This question holds relevance from the fact that prior to the enactment of the BNS, in absence of any general law or provision specifically dealing with terrorism, the UAPA stands as a primary legislation tackling such activities. This raises a critical issue: does UAPA's exclusive role in combating terrorism transform it into a general law on the subject, or does it retain its status as a special law?

The subject of terrorism was incorporated into the UAPA through a series of amendments, particularly those introduced post-2004. Prior to these amendments, the legislative framework for addressing terrorism in India was primarily governed by the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA), and the Prevention of Terrorism Act, 2002 (POTA). In Kartar Singh v. State of Punjab[i], the Supreme Court examined the constitutional validity of such legislation considering distribution of powers. The Court while deciding that whether the parliament had power to enact a law relating to terrorism, given that the subject of 'public order' falls under the State list as per VII Schedule of the Indian Constitution held that even through 'public order' is a state subject, acts of terrorism represent a threat of much higher magnitude and fall within the scope of 'national defense', which comes under the exclusive domain of the Union. Significantly, the Court recognized that terrorism-related offences are of grave nature than those impacting the public order. This distinction underscores legislation like TADA, and subsequently, UAPA which were enacted to address matters of exceptional concern that transcend ordinary law and order issues. Consequently, these enactments pertain to special subjects warranting distinct and focused legislative attention.

The Supreme Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (2019)[ii] held that Unlawful Activities Prevention Act, 1967 is a special enactment. This argument is further strengthened by reading down Section 48 of the UAPA as it states that the provisions of UAPA will have an overriding effect if they are inconsistent with any enactment or instrument other than this act. Additionally, para 5 of the preamble of the act which was added in the year 2008 and it states that,

“AND WHEREAS it is considered necessary to give effect to the said Resolutions and the Order and to make special provisions for the prevention of, and for coping with, terrorist activities and for matters connected therewith or incidental thereto.”[iii]

India's legal framework has undergone a significant change with the introduction of BNS, which takes the baton from the Indian Penal Code, 1860 (IPC). The IPC, in its preamble, stated that it is a general penal code of India[iv], setting out the foundational rules for substantive criminal laws in the country. On the contrary, the BNS adopts a different tone in its preamble, presenting itself as a consolidated act that addresses offences and related matters. Now the implication of these words might lead to an assumption that for crimes like terrorism, the BNS alone will be the governing law. However, Section 1(6) of the BNS clarifies this potential misunderstanding as it states that the BNS does not override any special or local law. Hence, it is safe to carve out an assumption from the above cited section that the BNS is a general law.

Based on arguments laid in the above paragraph, it is now relevant to examine the application of Latin maxim generalia specialibus non derogant, which means special laws prevail over general laws. This principle is also enshrined in Section 1(6) of the BNS as discussed above. The Supreme Court in the case of R.S. Raghunath v. State of Karnataka and Anr. (1991)[v], ruled that although special laws typically take precedence over general laws, a general law enacted later in time can override a special law if it explicitly and directly states its intent to supersede the special law.

Is it explicitly stated in the BNS that it overrides the UAPA?

The answer to this question is two-fold. Firstly, the explanation to Section 113 of the BNS clarifies that, to remove any doubts, an officer not below the rank of Superintendent of Police (SP) shall decide whether to register a case under Section 113 of the BNS or under the UAPA. Does this explanation clearly suggest an intent to override the UAPA, which is the special law in this context? A plain reading of the explanation does not mean that there is explicit contradiction rather it indicates that it empowers the Superintendent of Police to choose between proceeding under the BNS or the UAPA. Considering that the UAPA offers more robust procedural powers, particularly in cases involving terrorism, where strictness is often prioritized over leniency, it is plausible that the officer might always choose for UAPA. Secondly, by applying the test laid down in Raghunath's case, Section 1(6) of the BNS explicitly states that special laws take precedence over general laws.[vi] Consequently, the UAPA should prevail over the BNS. Following this line of argument would mean that the state action to include terrorism as an offence in BNS is practically of no use as in every situation it would be UAPA which would be applied on the terrorist.

The insertion of Section 113 in the BNS raises questions about legislative intent, especially when the same or similar offences continue to be covered under the UAPA, which remains a special law. So, even if the SP chooses to proceed under BNS it would make no difference in the outcome with regards to the substantive portion. The provisions of Chapter IV of UAPA are more extensive and hence if any of the act falls under those sections then also UAPA will be attracted, maybe in addition to the sections of BNS. It is also crucial to recognize that BNS is a substantive criminal law, and the procedural framework for prosecuting offences under it is governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS), courtesy of Section 5 (1) of the BNSS.[vii] Section 5(2) of the BNSS states that Sanhita shall not affect the operation of any special law, nor any special form of procedure prescribed by any other prevailing law.[viii] The UAPA is a composite legislation encompassing both substantive and procedural laws. It lays down special procedures for arrest, search, seizure, and includes evidentiary presumptions that significantly diverge from the principles of investigation and trial embedded in BNSS. Therefore, even if the substantive provisions of the BNS are applied by the investigating agency, the procedural safeguards and mechanisms under the UAPA may continue to govern the investigation and trial in such cases.

By enacting provisions in the BNS that are like those in the UAPA, the government appears to have introduced a duplicative legal framework. One may inquire whether the inclusion of provisions akin to those in the UAPA within the BNS is intended to anticipate a future scenario in which the UAPA is either repealed or is declared unconstitutional by the judiciary. However, there have been claims that special legislation such as UAPA, MCOCA, etc. will operate concurrently with the BNS.[ix] This clarification sufficiently addresses the concern regarding potential repeal. As for the possibility of judicial invalidation, if such apprehension genuinely existed, it would have been reasonable to expect that the procedural safeguards and mechanisms of the UAPA would be assimilated into the Bharatiya Nagarik Suraksha Sanhita (BNSS). The absence of such procedural incorporation suggests that the government does not foresee an imminent threat to the constitutional validity of the UAPA. Hence, the initiative of the government to include terrorism as an offence under BNS is nothing but a mere reform of illusion which have no utility after its addition.

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