FUNDAMENTALISM AND CRIME
SUBMITTED TO- Dr P.K. Shukla
SUBMITTED BY- GARIMA GUPTA
2011 BA.LLB 69
Statement of Problem
Method of Study
Fundamentalism is the demand for a strict adherence to specific theological doctrines usually understood as a reaction against Modernist theology, primarily to promote continuity and accuracy. The term "fundamentalism" was originally coined by its supporters to describe a specific package of theological beliefs that developed into a movement within the Protestant community of the United States in the early part of the 20th century, and that had its roots in the Fundamentalist–Modernist Controversy of that time. The term usually has a religious connotation indicating unwavering attachment to a set of irreducible beliefs. "Fundamentalism" is sometimes used as a pejorative term, particularly when combined with other epithets (as in the phrase "right-wing fundamentalists"). The term Fundamentalism is usually used with terrorist activities because both the concepts are interlinked with each other. The terrorist activities lead to various types of crimes across the globe. STATEMENT OF PROBLEM
The project deals with the fundamentalism and crime in respect to terrorism. OBJECTIVE
1. To study the theories on the topic.
2. To analyze the case laws and legal provision of this topic. HYPOTHESIS
This project is based on the assumption that Terrorists are born criminals and they live in anomie. METHOD OF STUDY
In this project the secondary sources like newspapers, internet, and books are referred. ANALYSIS
THE CRIMINOLOGY OF TERRORISM: THEORIES AND MODELS
"The point of theory isn't to think safe thoughts, but dangerous thoughts." (Ronald Beiner) Most of the major theories of terrorism are derived from theories of collective violence in the field of political science, and indeed, prior to the emergence of criminal justice as a separate discipline in the early 1970s, it can be said that political science had a monopoly over theories of terrorism, followed perhaps by the disciplines of religion and economics.
However, there are modern sociological, psychological, and criminological theories that certainly have a role to play with some relevance. We will begin, first, with the theories of political violence, and it is customary to say at this point that none of the following ideologies, or any ideology for that matter, are being advocated. The purpose is to provide an objective overview of theories, concepts, causal factors, and models.
The underlying concern should be to answer the questions "Why Does Terrorism Occur?" or "What Causes It?" rather than pass judgment or assess any of the theories at this point. With the political theories, we shall see that it is often the form of governance which is the main cause of terrorism, and with the other theories, we will find a number of subculture and personality factors at work. THE POLITICAL THEORY OF ANARCHISM AS A THEORY OF TERRORISM
Terrorism is most definitely not a form of governance, but anarchism is. Most anarchists reject terrorism in its vanguard varieties (for nationalist or religious purposes), but in a theoretical sense, anarchism justifies terrorism as a form of criminal action that attacks the values of an organized, complacent society.
Anarchism is often referred to as the nineteenth century roots of terrorism, the term first being introduced in 1840 by Pierre-Joseph Proudhon. Anarchism defined is the rejection of the state, of any form of coercive government, of any form of domination and exploitation. It is the notion of free and equal access to all the world's resources to enable positive freedom (freedom to) in place of negative freedom (freedom from, or the basis of most constitutional rights). Twentieth-century terrorist groups which came later and claimed an ancestry with anarchism include: the Japanese Red Army, the British Angry Brigade, the German Baader-Meinhof Gang, the Weatherman in the United States, and the Mexican Zapatista movement (Kushner 2003). During the Spanish revolution of 1936, something called anarcho-syndicalism developed, which is a loose confederation of various protest groups. In the 19th century Cesare Lombroso, founder of modern criminology, believed that criminals were born. Influenced by Darwinian thought, Lombroso applied the concept of atavism to criminological theory. He felt that the principal cause of criminal tendencies was organic in nature. Heredity was the key cause of deviance. Lombroso developed a typology of four basic types of criminals; the born criminal, the criminal by passion, the insane criminal and the occasional criminal. The fundamentalists are categorized under the “CRIMINAL BY PASSION” because their respect and madness for their religion is so strong that they take up crime with passion. Enrico Ferri set forth his theory of ‘criminal causation’ in 1881 in his publication Studies in Criminality in France. The theory recognizes three different sets of factors in crime: a) Those in the physical or geographical environment,
b) Those in the constitution of the individual,
c) Those in the social environment.
Ferri outlined four types of criminal in his first work and added two more in later additions. These are similar to those of Lombroso: born criminal, insane criminal, passion criminal, occasional criminal, habitual criminal and involuntary criminal. However, criminology focusing on the ‘psychiatric aspects of crime’ can be traced to three theorists present during the turn of the 20th century – Ray, Aschaffenburg and Maudsley.
Terrorism can be linked to the Ferri’s theory because a terrorist is made out of all the above mentioned factors. It is difficult to ascertain the origins of terrorist behaviour or the factors that influence the same. Terrorist’s motives differed widely in the past – and they will differ even more so in the future. But there are discernable patterns that can be broadly applied.49 what makes young people join such groups is spiritual emptiness rather than an empty stomach. The stresses and strains of modern life frequently have been adduced as reasons why such people turn to violence. Membership in a terrorist group or organization can also enhance one’s social standing in a broader community – family, ethnic, confessional or national.50 one also cannot rule out the material well being as a contributing factor in cementing individual loyalty to a group. Hence, all the above factors contribute towards the creation of the terrorist personality, which in due course endures the complex transformation of becoming fully fledged terrorists or terrorists-in-the making. It is difficult for criminological theories to point out with precision any one factor responsible for the growth of the terrorist personality, but a study of all the divergent factors, as well as an evaluation of the same, will in all probability place us in a better position to understand the different stages that go into the making of a terrorist.
In India section 15 of the Unlawful Activities (Prevention) Amendment Ordinance, 2004 defines terrorist act as “whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause or likely 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 causes damage or destruction of any property or equipment used or intended to be used for the defense of India, any State government or any of their agencies or detains any person or threatens to kill or injure such person in order to compel the government of India or any other person to do so or abstain from doing any act, commits a Terrorist act”. Indian experience with fundamentalism has been bloody and traumatic. Mahatma Gandhi, before he could fully savor the fresh air of independent India, fell victim to Hindu fundamentalist’s bullets. Prime Minister Indira Gandhi was gunned down by her own Sikh bodyguard in the aftermath of the Sikh fundamentalist movement that swept through the vibrant state of Punjab in the early 1980s. And a female suicide bomber of the Tamil fundamentalist group from Sri Lanka blew up Indira’s son Rajiv Gandhi, who had succeeded her as Prime Minister. The assassinations of the Mahatma, Indira, and Rajiv serve as stark reminders of what happens when contractual bonds holding together the complex social elements composing the body politic are broken and when political affiliations are weakened. But since the late 1980s, there has been increasing popular support for Hindu nationalist parties among the people of India. Tension and distrust between Hindus and Muslims has long been a normal facet of life in India. The 1992 destruction of a disputed Muslim shrine in Ayodhya (in the Northern Indian state of Uttar Pradesh) and the subsequent anti-Muslim riots in Bombay are among the events that have heightened Hindu-Muslim tensions. Selecting the elements of tradition and modernity, fundamentalists seek to remake the world in the service of a dual commitment to the unfolding eschatological drama (by returning all things in submission to the divine) and to self-preservation (by neutralizing the threatening “other”). Boundaries are set, the enemy identified, converts sought, and institutions created and sustained in pursuit of a comprehensive reconstruction of society. It is time we turn our attention to this growing fundamentalism and evolve a common platform for building mechanisms, institutions, and movements to counteract this phenomenon.
Terrorism today poses the gravest threat to India’s sovereignty and integrity. It subverts the fundamental Rule of Law, denies rights to the citizens, endangers the social fabric, and threatens political and economic stability. This should not be allowed to happen. Such a determination can only be effectively expressed through comprehensive counter-terrorism legislation. The new law should enable the state to deny operating space to terrorists and their supporters, deter them from carrying out terrorist acts, ensure the basic rights of the people, and uphold the Fundamental Rights enshrined in the Constitution. In India, there has been no consistency in policies to deal with terrorism. Political consensus is missing even today. Public debates have often turned into slanging matches with political and communal overtones. Coalition politics has only made matters worse. A strong, responsible political leadership, thus, is paramount to the drafting and implementation of an effective, strong and permanent counter-terrorism law.
Terrorism is the use or threatened use of force designed to bring about political change. Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted. Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a Government, individuals or groups, or to modify their behaviour or politics. · Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives. The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set-up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection beings cannot be ascertained with precision. The demarcating line is thin and wavy.
LEGAL REGIME IN INDIA
In keeping with the requirement of dealing with the menace of terrorism, India has put in place a Comprehensive legal infrastructure. There are several pieces of legislation, of which some of them are listed below- (I) the Unlawful Activities (Prevention) Act, 1967
(ii) The Armed Forces (Special) Powers Act, 1967
(iii) The National Security Act, 1980
(IV the Arms Act, 1959
(v) The Explosives Act, 1884
(VI the Explosives Substance Act, 1908
(vii) The Indian Penal Code, 1860
(viii) The Code of Criminal Procedures, 1973
(ix) The Anti-Hijacking Act, 1982
(x) The Prevention of Money Laundering Act, 2002
It would be relevant to highlight some of the penal provisions of one or two pieces of legislation dealing with the acts of terrorism.
A. The Unlawful Activities (Prevention) Act, 1967
This Act was enunciated by the Indian Parliament in 1967 to make powers available to the law enforcement agencies for dealing with unlawful activities directed against the integrity and sovereignty of India. It provides for effective prevention of certain unlawful activities of individuals and associations including terrorist organizations. It extends to the whole of India.
Sec. 3 - Power of the Government of India to declare an association as unlawful. (The list of the terrorist organizations banned under this Act is given under Appendix B) Sec. 16 - Punishment for terrorist acts – death or imprisonment for life as the case may be and liable to a fine. Sec. 17 - Punishment for raising funds for terrorist acts – imprisonment for life and also liable to a fine. Sec. 18 - Punishment for conspiracy – imprisonment from five years to imprisonment for life and Liable to a fine.
Sec. 19 - Punishment for harboring, etc. – imprisonment from 3 years to imprisonment for life And liable to a fine.
Sec. 33 - Forfeiture of property of certain persons during trial and conviction. Sec. 40 - Offence of raising funds for a terrorist organization - imprisonment up to fourteen years Or with a fine or both.
B. The National Security Act, 1980
The Act came into force in 1980 with a view to providing power to the Central Government and State Governments to make orders to detain certain persons including foreigners whose action may be prejudicial to the defense of India, security of India, prejudicial to the maintenance of public order and maintenance of supplies and services essential to the community.
Sec. 3 – (3) Detention period – in the first instance exceed three months but the State Government Many, if satisfied as aforesaid that it is necessary so to do, amend such order to extend Such period from time to time by any period not exceeding three months at any one time. Sec. 9 - Constitution of Advisory Boards.
Sec. 11 - Procedure of Advisory Boards.
Sec. 13 - Maximum period of detention: 12 months.
C. Prevention of Money Laundering Act, 2002
Sec. 2 - Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall he guilty of the offence of money laundering.
Sec. 4 - Punishment for money laundering.
Sec.5&8 - Deals with provisional attachment and confiscation. Sec. 19 - Power of arrest.
Sec. 24 - Puts the burden of proof on the accused.
Sec. 45 - Offences cognizable, non-bailable and limitation on granting bail. Sec. 72 - Provides for continuance of proceedings in the event of death or insolvency.
D. Armed Forces (Special) Powers Act, 1967
(Salient features – without replicating the wording in the Act)
Sec. 3 - The whole or any part of the country/state can be declared as a disturbed area by the central government or the governor of the state Sec 4 - * Special powers can be utilized by any commissioned officers, non-commissioned officers, warrant officers or any other person of the equivalent rank * Authorizes use of force, even causing death against any person who is acting in Contravention of law or carrying weapons
*Authorizes the destruction of any arms dumps, prepared or fortified positions from Which armed attacks are made or likely to be made?
* Authorizes arrest without warrant of any person who is suspected to have committed or likely to commit any cognizable offence. May even use such force as necessary to affect the arrest * Enter and search without warrant any premises suspected to be used for any illegal purposes as defined under the Act * Arrested person to be handed over to the officer in charge of the nearest police station with the least possible delay The above provisions confer sweeping powers on the members of the armed forces and since they are likely to be misused the Supreme Court of India has issued eleven commandments regulating the exercise of powers under this Act.
Kartar Singh vs. State of Punjab
Where it observed that the country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.
People's Union for Civil Liberties vs. Union of India
The constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same. Once legislation is passed, the Govt. has an obligation to exercise all available options to prevent terrorism within the bounds of the constitution. Mere possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutionally. Court upheld the constitutional validity of the various provisions of the Act.
Devender Pal Singh vs. State of N.C.T. of Delhi
In a case where 9 people had died and several others injured on account of perpetrated acts the court said that such terrorist who has no respect for human life and people are killed due to their mindless killing. So any compassion to such person would frustrate the purpose of enactment of Tada and would amount to misplaced and unwarranted sympathy. Thus they should be given death sentence.
State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru
This was an appeal against convictions in view of attacks made on parliament. The matter was relating to admissibility and evidentiary value of evidence that retracted confessions cannot be acted upon by Court unless it is voluntary and can be corroborated by other evidence. Confession of accused can be used against co-accused only if there is sufficient evidence pointing to his guilt confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code. Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.
The prevention of terrorism Act 2002, also known as POTA remains the most controversial anti terror legislation till date. Several draconian clauses of the erstwhile TADA 1987 were retrained in the POTA. The law was hurriedly passed in the wake of the attack on the Indian Parliament. Through legislated amongst pandemonium in the political circles, the parliament attack as well as the International community in a reactionary mode- POTA was the answer in the Indian quarters. The Maharashtra Government announced on 12th February, 2009 that a special court would be set up for the sole surviving accused of the 26/11 Mumbai Terror attack.
Ajmal Kasab Case
Bombay high court has upheld the death sentence on 21 Feb 2011. Kasab has been sentenced to death for attacking Mumbai on November 26, 2008 along with nine other Pakistani terrorists and killing 166 people. He was found guilty of 80 offences, including waging war against the nation, which is punishable with the death penalty. Kasab has been held guilty and given death penalty for five offences, including waging war against India, terrorist activities, murder and conspiracy and life sentence on five other counts. The judge sentenced Kasab on over 25 counts for lesser offences ranging from 7 years to one month and fined him about Rs 1.9 lakh.
Godhra Case: Death for 11 is years away
A special court on Tuesday awarded the death penalty to 11 persons convicted for the 2002 Godhra carnage. Twenty other convicts were sentenced to life in prison. Last week, the court accepted the prosecution’s contention that a conspiracy was hatched to set ablaze coach S-6 of the Sabarmati Express on February 27, 2002, which killed 59 people. The court had held 31 persons guilty for the incident. However, according to section 28 (2) of the Criminal Procedure Code (Cr.P.C), execution of the sentence delivered by a judge of Additional Session Judge (ASJ) cadre is subject to confirmation of a high court-in this case, the Gujarat high court.
Sanjay Dutt Vs. State through C.B.I
1994 SCC 410, Sanjay Dutt arrested u/s 5 of TADA. But he is not punished while according to section 5 of TADA and section 4 of POTA clearly show that possession of certain unauthorized arms is punishable under TADA and POTA. But sanjay dutt is not punished. This gives an example of loophole in laws.
Following is a chronology of major attacks in India since 2001: Oct. 1, 2001 - Militants storm the Jammu and Kashmir state assembly complex, killing about 35 people. Dec. 13 - More than a dozen people, including five gunmen, killed in an attack on parliament in New Delhi. Sept. 24, 2002 - Militants with guns and explosives attack the Akshardham Hindu temple in Gujarat, killing 31 people and wounding more than 80. May 14 - Militants attack an army camp near Kashmir's winter capital, Jammu, killing more than 30, including wives and children of soldiers. March 13, 2003 - A bomb attack on a commuter train in Mumbai kills 11 people. Aug. 25 - Two almost simultaneous car bombs kill about 60 in Mumbai. Aug. 15, 2004 - Bomb explodes in Assam, killing 16 people, mostly schoolchildren, and wounding dozens. Oct. 29, 2005 - Sixty-six people are killed when three blasts rip through markets in New Delhi. March 7, 2006 - At least 15 people are killed and 60 wounded in three explosions in the pilgrimage city of Varanasi. July 11 - More than 180 people are killed in seven bomb explosions at railway stations and on trains in Mumbai, blamed on Islamist militants. Sept. 8 - At least 32 people are killed in a series of explosions, including one near a mosque, in Malegaon town, 260 km northeast of Mumbai. Feb. 19, 2007 - Two bombs explode aboard a train bound from India to Pakistan, burning to death at least 66 passengers, most of them Pakistanis. May 18, 2007 - A bomb explodes during Friday prayers at a historic mosque in Hyderabad, killing 11 worshippers. Police later shoot dead five people in clashes with hundreds of enraged Muslims who protest violently against the attack. 13th May 2008: Jaipur serial blasts killed more than 80 and injured 200. The 2008 Ahmadabad bombings were a series of 21 bomb blasts that hit Ahmadabad, India, on July 26, 2008, within a span of 70 minutes. 56 people were killed and over 200 people were injured. Ahmadabad is the cultural and commercial heart of Gujarat. SIMI suspected. September 8, 2008.Terrorists struck in Maharashtra on Friday, killing 38 people and injuring over 100 in three blasts including one in a mosque in the communally sensitive Muslim-dominated town of Malegaon.
The hypothesis assumed in the beginning of the project is false because the terrorists are not born criminals. They take up such heinous acts because of social scenario and they blindly follow the principles of their religion which sometimes are not in sync with the society.
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