Anti-terror laws lend themselves to a peculiar kind of jurisprudence. Legislatures, presumably in a bid to show commitment to the rule of law (or, compliance with some international obligation), draft laws that have a variety of offences designed to curb a variety of evils. All these offences are drafted in a similarly broad fashion covering all kinds of physical acts. The difference between them is only in the nature of the alleged 'mental element' which is supposedly accompanying the physical act.
These boundaries between offences within an anti-terror law are what one is forced to reckon with after reading the Delhi High Court's recent decision in Mohd. Abdul Rehman v. State [2024 DHC 9945 DB]. The High Court rejected the appeal against conviction for offences under Sections 18 and 18-B of the Unlawful Activities Prevention Act 1967 ['UAPA']. Section 18 punishes conspiring to commit a terrorist act or acts preparatory to commission of a terrorist act, and Section 18B punishes recruiting others for the commission of a terrorist act.
An Object-Less Conspiracy
Dismissing an appeal is hardly novel. What makes Mohd. Abdul Rehman a decision warranting comment and discussion are its facts. Here, there were a series of circumstances implicating the appellant [see Paragraph 46 of the judgment]. They consisted of travelling to Pakistan without reason, consorting with members of terrorist organisations, giving radical speeches, and recruiting young persons for the cause of terrorism. But the prosecution was unable to point to any conspiratorial object that was being pursued by the appellant and his co-accused persons.
Instead, the object of this alleged conspiracy was to pursue objectives antithetical to national interests. The set of circumstances gave a "cumulative effect of existence of some common design or object to achieve something which is not in the interest of the country" [Paragraph 25]. At another place in the judgment, the case is described thus: "Although, there is nothing on record to show that any particular act or object was in contemplation, however, it is the case of the prosecution that these circumstances if taken cumulatively would demonstrate that the Appellant was preparing to commit an act, which would otherwise disturb the unity, integrity, peace and tranquility of India."
The High Court's Reasoning
The reasoning of the High Court in upholding the conviction, which begins its analysis from Paragraph 47, is fairly straightforward. Essentially, it does not matter if there is no clear object being alleged to the conspiracy. The definition of 'terrorist act' is not merely limited to acts which threaten the unity etc. of the country, but also to acts which are likely to cause such an outcome. By extension, criminal conspiracies are not only those where the object is to engage in acts threatening the unity of the country, but acts likely to do so. Add to this mix the UAPA's conspiracy clause, which punishes persons for acts preparatory to the commission of terrorist acts, and you reach a place where there is no need for the prosecution to prove any clear object of a conspiracy, as long as it can show that persons are acting in concert and doing acts preparatory to acts which can threaten the country's unity — whatever that means. Thus, "indulging in conspiracy with terrorist organisations and associated with persons who are rendering support to terrorist organisations (sic)" comes within its grasp. The conclusion is elsewhere stated as "in conspiracies of this nature specific cover acts would not be required but secretive and clandestine support to declared terrorist organisations would also be sufficient." [See paragraphs 57 to 52].
Mohd. Abdul Rehman demonstrates the snowballing effect of the anti-terror law's multiple crimes into one broad crime. The concluding paragraphs of the High Court judgment show that the main allegation against the appellant was his consorting with a terrorist organisation. Now, the UAPA does carry a very broad conspiracy clause, Section 18, but it also carries a different set of crimes which punish supporting terrorist organisations under Section 39. For punishing a person under Section 39, you need not show that there is any concern with committing terrorist acts, but only show that a person knew that he was dealing with a terrorist organisation, and did something which he knew would offer encouragement or support to the said organisation.
A much better fit, right? So why did Section 39 not figure at all? This is because of the sheer overbreadth of the conspiracy clause, which has the potential to easily subsume the kinds of acts which may more appropriately be criminalised through Section 39. Prosecutors thus have a choice in how to frame the case, and since Section 18 carries far more stringent punishments compared to Section 39, it is natural for them to invoke the conspiracy offence. Section 18 carries a life sentence, while Section 39 a maximum sentence of up to ten years in prison.
Conclusion
Many hope, and some even dare to expect, courts to perform some anti-majoritarian dance of democracy. The peculiar setting of anti-terror laws reminds us just how forlorn that hope and expectation is. Faced with an existential threat to the sovereign, even object-less associations of persons assume the nature of a conspiracy, on a reductionist logic that it is only a matter of time that these associations find an object, and the law can't afford to wait. We can decry the lack of analysis on display in Mohd. Abdul Rehman, and there is certainly something to be said about how scanty the reasoning is. But when the offence itself is so broad — "whoever conspires or attempts to commit or advocates or abets or incites directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act" — then do you really need any reasoning? Law reduces itself to punishing suspicious conduct, fermented with some vague allegations of criminal intent which nobody can disprove.
No comments:
Post a Comment