Terrorism: An illusion of war?

Terrorism today is not just confined to a state’s borders but cheers to globalization, it has now expanded to unfathomable horizons.

According to The United States 2007 National Intelligence Estimate:

Globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify their beliefs, intensify their anger, and mobilize resources to attack—all without requiring a centralized terrorist organization, training camp, or leader (Anomic outsiders).”

The Internationalization of terrorism has raised several issues on enforcement and jurisdiction. Regardless, even today no globally accepted definition of the term exists, largely because of political differences (One man’s terrorist is another’s freedom fighter).

But a fundamental question that needs to be answered is whether terrorism is a criminal offence or an act of war.

The use of the term WAR by the media and our learned politicians has created an illusion of a constant state of war surrounding our day to day affairs;, “war on drugs, war on poverty, war on organized crime”.[1]

State of war equips the government with the power to circumvent the rights and procedural protections ordinarily accorded to an accused.

It is argued (constructionist approach to defining terrorism) that terrorism is just a way of identifying someone with lesser rights that validates a concept which is purely a self-serving one i.e. justification for state power, withdrawal of Human Rights and expenditure on military hardware.

The reason why this view is popular is because two people having caused the same magnitude of damage to the society would be treated in completely different ways, the one charged with a criminal offence would have rights to a formal charge notifying exactly what he/she is being charged with, competent and relevant proof beyond a reasonable doubt, the right to cross-examine witnesses, to right to remain silent etc., while on the other hand in war its considered legal to kill the enemy to say the least.

A war takes place between two nation states. It does not connote situations of struggle between state and non-state actors such as criminal gangs, drug cartels, mafia etc. A mere involvement of the military does not make the struggle a war; it simply means that the military is being used in a police capacity. It moves us towards the second question, that shouldn’t the suspects of the war on drugs in Mexico or in other “wars” be entitled to the same rights under the criminal jurisdiction? Are they?

It is generally accepted that terrorists cannot be tried under the traditional criminal law as it is reactive and not proactive. Also, that charging it as a criminal offence and subsequent adherence to due process would take up a longer time before conviction.

In the absence of a definition as to who falls under the same and the excessive bargaining power of the state actors it’s not difficult to deduce whose interests would be furthered.

In the event of occurrence of a criminal activity in our locality, we take mitigating steps. However, the reaction of a rational individual to an act of terrorism is not the same. The constant bombardment of the idea of the existence of war has changed the national psyche.[2] We agree to give up more rights, freedom, and privacy in the name of National security policies that are implemented without any cost-benefit or rationality analysis.

Terrorism or War, and politics are very intricately related: it’s not surprising that Non-state terrorism is much smaller in comparison to state terrorism and that funding to terrorist organizations are often state funding. The illusion creates opportunities for politicians, and it sure will take a long time before the white flag is raised.

[1] Essig. Terrorism: Criminal Act of Act of War? Implications for National Security in the 21st Century,18.

[2]  Mike Masnick (9th Jan 2015) When We Call Criminal Acts ‘Terrorism’ We Destroy Our Rights And Sacrifice Our Principles. Retrieved form https://www.techdirt.com/articles/20150108/18213829642/when-we-call-criminal-acts-terrorism-we-destroy-our-rights-sacrifice-our-principles.shtml.


ABOUT THE AUTHOR

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TANVI SINGH

Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.

 

Drug laws in India

“Life is a precious gift, don’t waste it on drugs[1]“; “Say ‘no’ to drugs and ‘yes’ to life”; “drug abuse is life abuse”; “born free, live free”. These are some of the messages which are delivered by the by the Ministry of Welfare, Narcotics Control Bureau,[2] and every man of importance to the deluded youth of India.

As we live in the 21st century, nobody is oblivious to the term “drug”. So, what a drug is? A drug is a chemical substance associated with distinct physical and psychological effects. It alters a person’s normal bodily processes or functions. Well, in medical parlance, a drug is a substance prescribed by a physician for curing and preventing disease and ailment by its chemical nature.

But here, we are concerned about the definition of drug from the psychological and sociological contexts. In this context, a drug is a term for a habit-forming substance which directly affects the brain or nervous system. It is a chemical substance which affects bodily function, perception or consciousness which has the potential for misuse, and which may be harmful to the individual or the society.” The frequent use of drugs is considered so dangerous that at worse it can cause death. Most importantly it is also considered as immoral, anti-social and against laws of any country.

Drug abuse is the use of an illicit drug or misuse of legitimate drug resulting into physical or psychological harm. It includes smoking ganja or hashish, taking heroin or cocaine or LSD[3], injecting morphine. These are sometimes referred to as being ‘high on speed’ or ‘trip’ or ‘getting kicks.’ According to UN reports, one million heroin addicts are registered in India and unofficially there are five million. Punjab, Mizoram and Manipur are the three most top states in India to use drugs. Punjab accounted for almost half of the registered cases under the Narcotic Drugs and Psychotropic Substances Act in 2013. Cannabis, heroin and opium are the most frequently abused drugs in India.

India might suffer from critical issues like rape, corruption or bribery to deal with more than drug abuse. Still, in this height of globalization and urbanization, there are many states who have succumbed to drugs in order to live a “high life.” It’s just a matter of time that drug abuse might turn out to be one of the sensitive and concerned matters in our country.

The two major drug laws which can prevent the use of drugs are the Narcotic Drugs and Psychotropic Substances Act (1985) and the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act (1985). The Narcotic Drugs and Psychotropic Substances Act (NDPS) came into force on 14th November 1985 and amended in 1987 to tighten the noose around the traffickers. This Act was formulated[4] with the purpose of making drugs illegal and any person mishandling such substances would be given rigorous punishment as per the NDPS Act. One of the reasons behind NDPS Act coming into force is the international treaty the Single Convention on Narcotic Drugs which was drafted in 1961.

The NDPS Act 1985 mentioned the various narcotic drugs and psychotropic substances, the guidelines for using such substances judiciously, the Prevention, Regulation and Control of such substances and the powers of the Central and State Governments.  This Act also states the punishment which is the rigorous punishment of ten years and a fine of Rs. 1 lakh which may be extended to twenty years of rigorous punishment of Rs. 2 lakhs. In respect of repeat offences, the Act provides for a minimum punishment of 15 years imprisonment extendible up to 30 years and also a minimum fine of Rs. 1.5 lakh. The Act relates to drug addicts also. It lays down imprisonment of one year or fine or both for illegal possession for personal consumption of any narcotic drug or psychotropic substance.

It also empowers the court to release an addict for undergoing medical treatment from a hospital recognized by the government. This Act has been amended three times – in 1988, 2001 and 2014. Moreover, the 2014 amendment [5] mentioned a number of “essential narcotic drugs.” Another Act for the prevention of narcotic drugs is “The Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act” which was passed in the year 1966 by the Parliament of India. It was enabled for the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Drug abuse has become a growing threat to humanity. Drugs pose complex problems for law enforcement agencies, while drug traffickers and mafias play havoc with the social structure of our country by wielding enormous power with illegal wealth. Since 1991, June 26 is observed every year as International Day against Drug Abuse and Illicit Trafficking to create awareness among drug abusers as well as those who are engaged in waging war[6] against drugs.

[1] it is an illicit use of a chemical substance which is injurious to health.

[2] NCB is the nodal drug law enforcement and intelligence agency of India responsible for fighting drug trafficking and the abuse of illegal substances.

[3] A drug named lysergic acid diethylamide

[4] prepared in a concise or systematic way

[5] an addition to improve a piece of legislation

[6] Refer to section 121 of the Indian Penal Code, 1860


ABOUT THE AUTHOR

07

SOMANKA GHOSH

Somanka is a fifth-year law student pursuing BA LLB in Calcutta University. She’s also pursuing a diploma course in Entrepreneurship and Business Laws. After interning in various law firms in Calcutta High Court and gaining experiences about the practicalities of legal practice, she’s now keen to test her theories. An enthusiast and diligent worker, she’s also a good researcher and writer.

 

The Unconstitutionality of Evil

The Bihar government, with a view to completely ban sale and consumption of alcohol in the state, passed the Bihar Prohibition and Excise Act, 2016. The new law was put in force from 2nd October 2016 with intent “to enforce, implement and promote complete Prohibition of liquor and intoxicants in the territory of the State of Bihar.”

There was a lot of outrage when the Bihar government first came out with a notification in the month of April of the last year which sought to ban the sale of alcohol in the state. However, the Patna High Court struck down this notification by terming it as “draconian and unreasonable.” Thereafter, the state government came out with the present law. However, this new act attracted a lot of controversies, not due to its alcohol ban, but due to some stringent penalty sections enshrined in it. One such section is section 32(3) of the Act which presumes guilt against all the members of the family.

It goes as follows: “An offence is said to have been committed inside any house occupied by a family where any intoxicant or liquor is found or consumed, it shall be presumed that all the adults above the age of eighteen occupying or working at the place or in the premises or the members of the family above eighteen years of age occupying the house are having the knowledge of commission of such an offence, unless proved otherwise.”

This section presumes guilt against all the adult members of a family and shifts the burden on them to prove that they weren’t aware of the alleged fact. The act presumes that adult family members know or ought to know what the other members of a family are doing. This act does not limit itself just to a family but also extends to landlords who must make sure that their tenants don’t possess and consume alcohol within the building or land. In all such circumstances, as per section 30 of the act, a punishment of at least 10 years of imprisonment and a fine of at least one lakh rupees has been prescribed. This Act falls foul of many provisions of constitution and principles of natural justice.

Presumption of innocence means that a person is considered innocent until proven guilty by the court of law. This principle has been the cornerstone of the legal world, especially in criminal law. This principle puts the onus on the prosecution to prove the guilt of an accused. But in section 32(3) it has been specifically stated that the accused must prove that he was not liable for the crime he committed. This goes against the basic principles of criminal jurisprudence as it makes every adult member of a family seem guilty, even though they may be in fact innocent.

Section 32(3) of the Bihar prohibition act reflects gross unreasonableness and arbitrariness on the part of the government. Putting the burden of proof on the family members is unreasonable as they don’t have enough resources and apparatus which the state has at its disposable. This provision may also lead to filling of false and malicious complaints due to family feuds. As per section 76 of the said act, all the offences are cognizable and non-bailable. Such harsh provisions in the law will lead to some powerful taking its advantage at the cost of poor and uneducated. For example, if a person X, out of his feud with Y, places alcohol bottles into Y’s house without Y’s and his family members knowledge, and then X informs police that Y has alcohol in his possession, the police will prima facie assume that Y and his family members concealed the alcohol in the house, and subsequently arrest them. The critical points here will be: whether Y and his family would be able to prove that they had no knowledge that alcohol was kept in their house. Will the judges believe on their oral testimonies? How will they be able to prove, being incarcerated and without any apparatus, that it was X who kept the bottles in their house? This Act will further impair a person’s dignity and reputation in the society.

The apex court in the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi has expanded the realm of Article 21 to include human dignity, and all that is associated with it. It held that every act which impairs human dignity will constitute “deprivation pro tanto” of Article 21. Detaining people for no fault of theirs is an impairment to their right to live with dignity and would constitute an inroad into Article 21. And, the law which authorises such a procedure leading to degrading treatment should be forthrightly characterised as unconstitutional.

Thus section 32(3) of the Bihar Prohibition and Excise Act, 2016 doesn’t pass the muster against the bulwarks of Article 14 and Article 21 of the constitution and hence are illegal. We have already seen some perverse outcomes due to this law. This law has put forth the concept of “collective guilt” which could, if set as a precedent, be used to justify violence against groups and minority communities.


ABOUT THE AUTHOR

Pratik Dixit

PRATIK PRAKASH DIXIT

Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

 

 

Pride and Dignity: Women at workplace

In the era of globalization, modernization, and rationalization, one thing which is most applauded about is women empowerment. International leaders, celebrities, politicians, youth, and even the laymen talk about the blurring gap between men and women and uplifting women, not only socially but politically as well as economically.  But the irony is, it is all loose talk in the air, because when the time comes to execute it practically, women are always portrayed as weaklings, needing male support at all times.

The esteemed workplace where she can prove herself itself becomes the place where her wings get clipped. The question which arises is, what stops her in her workplace to work efficiently? What stops her to work freely without fear? The answer is, unfortunately, SEXUAL HARASSMENT AT WORKPLACE. Statistics show seven out of ten women are sexually harassed at the workplace. Around ninety percent women are not aware how to deal with the situation or what can be done to stop it or is there any way out? Fortunately, the answer to all these questions is, YES! And the credit for such steps goes to the judiciary as well as the government of India. Now, what is needed is generating awareness among women as well as people regarding prevention of sexual harassment at workplace.

The Supreme court in Vishaka & others versus State of Rajasthan and others laid down guidelines directing that these guidelines would be strictly observed in all workplaces for enforcement of gender equality of women at the workplace.

The facts of the case were, there was a writ petition filed by some social activists with the aim of bringing the attention towards growing incidents of sexual harassment at workplace. It was aimed at preventing sexual harassment at workplace by laying down certain guidelines.

But the immediate cause for filing such petition was the gangrape of a social worker in a village in Rajasthan. It was contended that sexual harassment leads to violation of fundamental rights under Art. 14 (equality before law), Art. 15 (Prohibition of discrimination), and Art 21 (right to life and personal liberty) of a woman. But by laying down necessary directions court had endeavoured to ensure “A safe working environment to women”. The court even directed central as well as state governments to consider the appropriate legislation for the same.

The second step was the Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013 [SHW ACT]. The act defines sexual harassment as ANY Unwelcome sexually determined behaviour, and demands, from male employees at the workplace, which includes:

    • any physical contacts and advances
    • sexually coloured remarks
    • showing pornography
    • passing lewd comments or gestures
    • sexual demands.

It mandates all the employers to constitute an INTERNAL COMPLAINTS COMMITTEE [ICC] at each office or branch with ten or more employees and requires fifty percent should be women.  It requires time-bound redressal of complaints which should be confidential. It requires employers to conduct education and sensitization programs and provide a safe working environment.

The other initiative was Justice Verma committee; it recommended Employment Tribunal comprising two retired judges, two sociologists and a social activist to obviate the need of ICC which was not functioning as it was intended.

The latest and the most technically efficient initiative the government has launched is the SHE BOX (sexual harassment electronic box). Recently government launched an online platform, which will enable women employees to file complaints related to sexual harassment at workplace.

This online initiative seeks to ensure effective implementation of SHW act 2013. Once a complaint is submitted to the portal, it will be directly sent to the ICC of the concerned ministry or department.

The SHE BOX will cater effective and immediate and speedier remedy to women facing sexual harassment as well it will help the complainant to monitor the progress of the inquiry.

Currently, the complaint can be filed by central government employees only, which will later be extended to all. Under the vision of digital India program, it will help in achieving the goal of gender equality and women empowerment.

Barack Obama once quoted, “A country’s progress and future depend upon how we treat our women and girls”. Let us ensure that women can live their dreams, by ensuring a safe work environment at the workplace where they can work in par with their male counterparts with no obstacles coming in their way, and appreciation coming their way for achievements.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Section 498A IPC – The Illusion of Misuse

In the matter of “Rajesh Sharma and Ors Vs. the State of Uttar Pradesh”, the Supreme Court on 27th July, said that there will not be a “normal arrest” of the accused without probing the veracity of the complaint. Previously, in a similar case of Arnesh Kumar Vs the State of Bihar in 2014, the Supreme Court, to protect the human rights of the “innocents”, had restrained the police to directly arrest the accused without proper investigation. Taking the purview of the misuse of the section 498-A of the Indian Penal Code, Supreme Court held that a “Family Welfare Committee” will be constituted by District Legal Services Authorities (DLSA) in every district and the complaints received by the police or magistrate will be referred to this committee. The members of this committee will be social workers, the wives of working officials, paralegal volunteers, social workers, and anyone who is willing and competent. The committee is supposed to submit a report of the case to an investigating officer within one month from the date of receipt of the complaint.

According to the data from National Crime Record Bureau (2015), out of all cases registered under section 498A of domestic and sexual violence, only fifteen percent have been reported in which the accused is convicted. This data to some extent shows the misuse of section 498-A by women. But the data does not provide a holistic picture because there may be different reasons for the acquittal of the accused like improper investigation by the investigating officer, some mid-way settlement, threatening the complainant or the witnesses, etc. So, the data itself is neither comprehensive nor conspicuous.

This move by the Supreme Court has been criticised by the women activists groups as containing an ingrained bias that women misuse the law. While according to the data by National Family Health Survey-3 fifty-three percent of the victims of some sort of sexual or physical violence have never gone to the police and out the forty-seven percent who have sought help of the police, only two percent have filed a First Information Report (FIR) while the remaining have just registered it as a Non-cognizable offence.

In this case, the Supreme Court has seen just one side of the coin while the other remains hidden beneath. This judgement also curtails the powers of the police and only after the review by the “Family Welfare Committee”, can police take any action. Thus, this also creates a virtual justice dispensation system.

The fact the entire process of a full one-month review of the case by the committee is also a problem for the victims of serious sexual or domestic violence. This will delay the justice delivery process and can even cause more sabotage. The victim could be pressurised to withdraw or threatened which again questions the very purpose for which section 498-A was added to the Indian Penal Code.

Also, the rate of conviction is low in nearly all the cases so Supreme Court must rethink considering the damage it would cause to the real victim. This judgement opens the scope of further misuse of the law if not by women, then men. As many are already sceptical of the effectiveness of the judgement, it may delve a victim into the labyrinth of a breakdown if justice is not provided at the appropriate time.


ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.