An Apocryphally Articulated Interpretation of the Law of Terrorism

Misuse of criminal laws by the investigating agencies is an anathema in the criminal justice system in India. And the sorrowing fact is that, sometimes, such misuse gets judicially authorized at some level. Correction takes time.  In one of such affairs [Abdul Salam vs. National Investigating Agency (2018 (3) KHC 1 (FB) = MANU/KE/1003/2018)], the Full Bench of the High Court of Kerala, per majority (2:1), rightly held that the offence of circulation of counterfeit Indian currency notes (fake Indian currency notes or the FICN), committed before the amendment of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in 2013, does not constitute ‘terrorist act’. The dissenting view is that it does. A dissent in the court of last resort, as the eminent Justice H R Khanna, quoting the famous American Chief Justice Charles Evan Hughes, said, is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.[1] Notwithstanding the fact that the High Court is not the Court of last resort, the dissent in any judgment is an appeal to the brooding spirit of the law. Whether or not the dissenting opinion declares the correct law, presumably, it poses sustainable arguments against the majority view rather than merely plausible ones. Indian legal history has many of such anecdotes. With this perspective, an analysis of the dissenting view in Abdul Salam’s case (supra) is made herewith.

 The UAPA has been enacted in 1967 to rule the associations, which are or turn out to be unlawful on account of their activities prejudicial to the interest of the nation. In the year 2004, when the draconian law, the Prevention of Terrorism Act (POTA) was repealed, the provisions relating to the terrorism law were incorporated into the UAPA. Thereafter, in the year 2008, it underwent another change whereby drastic provisions were incorporated in matters, inter alia, related to bail. Again, by Act 3 of 2013 the UAPA was amended to make the production, smuggling and circulation of the FICN within the sweep of the terrorist act. As we are concerned only with the 2013 amendment, hereinafter it is referred to as ‘the amendment’. Section 15 of the UAPA defines the act of terrorism.

Section 15, Before and After the Amendment.

The definition of the terrorist act as per section 15 is as follows:-

"15. Terrorist Act: - Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, [economic security][2], or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-

• (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or like 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 in India, or in any foreign country; or
  
  
  
  

[(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material]2

• damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

• (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or


• (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act,

commits a terrorist act.

Explanation -- For the purpose of this sub-section,--

• (a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;


• (b) [“high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.][3]

    (Underline added to indicate the amendment)

The amendment also brought section ‘2 (ea)’ to define ‘economic security’ an inclusive definition whereby the terms ‘financial’, ‘monetary and fiscal stability’, ‘security of means of production and distribution’, ‘food security’, ‘livelihood security’, ‘energy security’, and ‘ecological and environmental security’ were included. Let’s, for the time being, forget about the over breadth of the definition. The over breadth enables the law enforcing agency to include any activity into the realm of ‘economic security’ as none of the terms mentioned therein is specifically defined anywhere so that the sky could be the limit.

The Amendment.

Before and after the amendment, as everybody knows, the provisions in Indian Penal Code (sections 489A to 498E) are there to govern the menace of counterfeiting FICN. When it is surfaced that the ramifications of counterfeiting currency notes are strewn over the hazard of terrorism, the Legislature decided to amend the law to include the dealings of FICN within the range of UAPA. When the amendment has been taken place the activities respecting some kinds of FICN, in certain circumstances, became terrorist activity within the meaning of UAPA. Supposedly, to invoke the law of terrorism, there must be something beyond the scope of invoking the sections 489A to 489E of IPC.

Invocation of UAPA Prior To the Amendment.

The instances of invoking the provisions of UAPA into the incidents of smuggling/circulation of FICN even before the amendment have been started by the National Investigation Agency (NIA) since its inception. The stand of the NIA is that (before the amendment in 2013) using FICN is damage to the original currency circulated in the economy, which is a threat to the security of the country. The original currency being the property of the government, such an act is a terrorist act. The use of bombs or other weapons mentioned in clause (a) of section 15 of the Act is not necessary since, it is enough if the act is done ‘by any other means of whatever nature’. This interpretation had been subscribed by the Division Bench of the High Court of Kerala in Shareef v. State [2013 (4) KHC 35] and the same is overruled in Abdul Salam’s case (supra).

The Decision in Abdul Salam’s Case.

The Full Bench, per majority, overruled the decision in Shareef’s case (supra). The majority reposed its confidence on the primary principle of criminal law, enshrined and guaranteed as a fundamental right under Article 20(1) of the Constitution of India that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, and that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The Bench also observed that the constitutional provision under Article 20(1) of the Constitution of India was not considered by the Division Bench in Shareef's case. Analysis of the majority view is not intended here since their Lordships’ judgment stands to reason.

The Dissenting View.

The learned dissenting judge completely adhered to the view propounded by the NIA and held that the offence of terrorism can be attributed also to the act of circulation of FICN done by the accused prior to the amendment. The learned dissenting judge sought support from several judgments of the Apex Court for his ratiocination. It is disappointing that many of those precedents are not legally supportive of the conclusion of his view. One of the judgments is State of Rajasthan vs. Bhanwar Lal Pawan Kumar (2005 Cri LJ 2208). This judgment is to say that one of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words and if that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The applicable portion from this judgment was quoted after having said that the language in the unlamented UAPA is clear as not to restrict the meaning of the word security to the acts of explosion of bombs, user of explosive substances, user of lethal weapons, hazardous substances or armed attack and such other physical activities. The question in Bhanwar Lal Pawan Kumar’s case was whether the word person in section 50 of the NDPS Act would include the article possessed by the person at the time of search, such as bags or books. The Apex Court held that the language is clear and hence there was no extension to the word ‘person’. In UAPA the language in section 15 (prior to the amendment) was not clear as to include circulation of FICN into its realm and the available language was never inconsistent to the express intention of the law, for which the same was enacted; needless to say that there was no express intention in the Act to combat terrorism by curbing the menace of FICN.

Nextly, the learned dissenting judge opined that while interpreting a penal provision, the principle of strict interpretation has to be applied and observed that if the language used is plain and clear regarding the legislative intention, there cannot be any application of either internal or external aid. To substantiate this proposition he also quoted extensively from R. Kalyani v. Janak C. Mehta and others [(2009) 1 SCC 516)]. This judgment clarifies how a penal provision is to be interpreted. In that judgment the Honourable Apex Court quoted from an English decision, (eventually the learned dissenting judge’s quote also contains this portion) which runs as follows:

We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive.

It is also a well-settled principle of law that the more is the stringent law, more strict construction thereof would be necessary {See T. Ashok Pai vs. Commissioner of Income Tax, Bangalore ((2007)7 SCC 162}. UAPA, being a stringent law, its provisions are to be interpreted with more strictly. It appears that, though the learned judge ingenuously observed that a penal provision is to be interpreted strictly, such a course is not taken in this case by His Lordship.

Another passage quoted by the learned dissenting judge is the one respecting the constitutionality of the statute and observed that it is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State legislature {Sameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra (2010) 5 SCC 246]}. In Abdul Salam’s case (supra), there was no question as to the constitutional validity of the provisions in the UAPA. The question of constitutionality of a Statute and the application of the Statute into a given situation are different matters requiring treatment differently.

Finally, the learned dissenting judge opined that the amendment is only a clarification in view of the production, smuggling and circulation of high quality counterfeit Indian paper currency. It really amounts to giving more emphasis to the commission of "terrorist act" by causing damages to the monetary stability of India by way of production, smuggling or circulation of high-quality counterfeit Indian paper currency, it was observed.

Is the Amendment A Clarification To the Law in UAPA Covering the FICN?   

The law relating to terrorism has been enacted omnifariously in India. In the beginning it was Terrorists and Disruptive Activities (Prevention) Act, 1985 (TADA). Later it underwent many modifications. Thereafter the Prevention of Terrorism Act, 2002 (POTA) came. After repealing POTA, subject of terrorism was included in UAPA in 2004. During all these stages the offence of counterfeiting of currency notes has been prevailing in India. Only in 2013, the Legislature decided to include the act of counterfeiting of high quality FICN within the limits of the UAPA. It is done by way of insertion of the required clause, with a meaningful sentence capable to make the reader understand the issue, in section 15 of the UAPA. If the Legislature was of the opinion that the UAPA as it stood before the amendment was sufficient to govern the menace of circulation of FICN also, insertion of a clause was not necessary. Giving an explanation to the section saying that the production/smuggling/circulation of FICN also is an offence within the meaning of section 15 would be enough. Had not there been the amendment, it would have been at least a debatable topic (would the dealings with FICN be a terrorist activity?), but when the amendment came into being the intention of the Legislature is accentuated. Moreover, after the amendment, the government has framed Rules, The Investigation of High-Quality Counterfeit Indian Currency Offences Rules, 2013. These Rules fix several yardsticks to identify the high quality FICN and impose conditions to invoke the law of terrorism. If all these circumstances are considered, I think, it is not a realistic conclusion that the amendment is only a clarification of the position.

Application of the Rule of Ejusdem Generis.

It is clear that before the amendment user of certain kinds of weapons was necessary to constitute the offence of terrorism. But, after the amendment, it has no application to offence using FICN. As per clause (a) to section 15 of the UAPA using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or any other substances (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or any other means of whatever nature to cause or like to cause is required. The words ‘by any other means of whatever nature to cause or like to cause’ has to be construed in consonance with the other words (denoting the classes of weapons) used there, unless these words connote a different meaning. This rule is called ejusdem generis. It must be a weapon similar to the other weapons mentioned therein. The Supreme Court explained the application of this rule in Maharashtra University of Health Sciences vs. Satchikitsa Prasarak Mandal (AIR 2010 SC 1325) thus:-

The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context." It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication.

Regarding the construction of words ‘any other process’ attached to some specific processes of fabric making, the Supreme Court in CCE, Bombay vs. Maharashtra Fur Fabrics Ltd. (2002(7) SCALE 70) observed that:-

It is a well established principle that general terms following particular expressions take their colour and meaning as that of the preceding expressions, applying the principle of ejusdem generis rule, therefore, in construing the words "or any other process", the import of the specific expressions will have to be kept in mind. It follows that the words "or any other process" would have to be understood in the same sense in which the process, including tentering, would be understood.

Coming to the UAPA, the words used in section 15 (a) ‘by any other means of whatever nature to cause or like to cause’ must be a type or class of weapon similar to the other weapons mentioned therein. It can never be an FICN. Hence, in the absence of the amended portion of the Act, and the Rules, the proposition made by the NIA and accepted by the learned dissenting judge that the deal of FICN would constitute the offence of terrorism is not palatable.

Conclusion.

The UAPA is part of our criminal law, which is susceptible to misuse to a great extent. The Courts are always expected to interpret the criminal law in a most appropriate way, to do justice to the legislative intention and to avoid its misuse. The expectation from the Constitutional Courts is more. The copious misuse of the erstwhile laws on terrorism (TADA and POTA) was noted by the Constitutional Courts many a time. Giving chance to the police to misuse also the UAPA would make the law meaningless. Section 43D of the UAPA stipulates that if the accusation against the accused is prima facie true, such person shall not be released on bail. In a genuine terrorism case it is reasonable to deny bail, but a case in which, there is no legal justification for applying the UAPA, a made-up interpretation of this kind and invoking UAPA can only help the denial of bail. After the amendment, what the NIA had to do is that, if at all, by mistake or otherwise, some cases were registered before the amendment under the UAPA for the smuggling/circulation etc. of FICN, to appraise the court to delete those provisions from the case.

[1] Neither roses nor thorns, page 84

[2] Inserted by Act 3 of 2013

[3] Inserted by Act 3 of 2013

Abdul Khader Kunju S is an Asst. Public Prosecutor, Alappuzha.(Former Public Prosecutor to NIA)

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]