Defining an action as ‘terrorism’ is challenging for political nature of such action. Therefore, Governments and UN agencies are reluctant to formulate an all-encompassing definition as the term ‘terrorism’ is emotive and politically charged. Terrorist activities have been criminalised under sector-specific conventions.
The sectoral approach focuses on the ‘nature of activities’ rather than its ‘intent’. The sectoral treaties include the 1997 International Convention for the Suppression of Terrorist Bombings, the 1999 International Convention for the Suppression of the Financing of Terrorism, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. The UN, however, describes criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes as terrorism. Instead, the political, ideological, moral, social, and emotional connotation of terrorism makes its definition challenging.
Faced with such challenges of defining terrorism, our legislature provided different definitions of terrorism under different laws. The Suppression of Terrorist Activities (Special Courts) Act, 1974, the Suppression of Terrorist Activities (Special Courts) Act, 1975, Special Courts for Speedy Trials Ordinance, 1987, Terrorist Affected Areas (Special Courts) Ordinance, 1990, Special Courts for Speedy Trials Ordinance, 1991, Special Courts for Speedy Trials Act, 1992, the Anti-Terrorism Act, 1997, Anti-Terrorism (Second Amendment) Ordinance, 1999, and the Anti-Terrorism (Amendment) Ordinance, 2001, focused either on the magnitude and nature of an offence or its terrorising effect on the society. The terrorism-related cases kept on moving from one court to another due to fluctuating definition of terrorism.
The SC, therefore, constituted a larger bench to define terrorism. The SC noted that, in some cases, only those actions constitute the offence of terrorism which are accompanied by the ‘design’ or ‘purpose’ specified in Section 6(1) (b) (c) of the Anti-Terrorism Act, 1997 (Act). In other cases, the “fallout, consequences or effect” of an action weighed upon the courts to decide the exact nature of the offence.
The SC concluded (Ghulam Hussain v. The State) that when the ‘use or threat’ of action is designed to achieve the objectives specified in Section 6 (1) (b) (c) of the Act, that action falls in the definition of terrorism. It may be noted that Clause 6(1) (b) envisages actions which are designed to “coerce and intimidate or overawe the government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society”. Clause 6 (1) (c) describes the purpose advancing “a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies”.
The SC held that effect of an action howsoever “grave, shocking, brutal, gruesome or horrifying” maybe, cannot be made the basis to label an action as terrorism if such action is not carried out to achieve the objectives mentioned in Section 6(1)(b) (c) of the Act. Thus, the crimes committed in the background of personal enmity do not fall in the definition of terrorism. The finding of the SC appear contrary to the sectoral approach adopted by the international community, which in fact focuses on the nature of action, not its intent. So, one may still argue that brutal nature and shocking effect of an action should bring such action under the definition of terrorism. Perhaps, considering this difficulty in the existing law and academic literature, the SC has recommended that a clear definition of terrorism should be provided by the legislature. The jurisprudential contribution of the SC in clarifying the definition of terrorism and the recommendations to the parliament for making further clarity in the definition should be appreciated.
It may also be argued that a precise definition of terrorism would help the prosecution and the courts to focus on actual cases of terrorism. On the contrary, one may contend that an act of terrorism cannot be defined in universal terms due to its emotive nature nor such definition alone can help to reduce the burden of court cases. Terrorism and the burden of such cases could be reduced by minimising poverty and discrimination and providing justice in the society.