Causing floods is a terrorist offence in proposed Bharatiya Nyaya Sanhita Bill to replace Indian Penal Code

No procedural safeguards against false implication available, says lawyer specialising in terrorism cases

August 23, 2023 01:07 am | Updated 12:10 pm IST - New Delhi

A swollen stream of Beas river in Mandi district. File

A swollen stream of Beas river in Mandi district. File | Photo Credit: The Hindu

The proposed Bharatiya Nyaya Sanhita Bill (BNS) says that causing “floods” is a terrorist offence.

The Bill that seeks to replace the British-era Indian Penal Code defines terrorism as a separate offence for the first time as part of a general law. The Unlawful Activities (Prevention) Act, 1967 is a special law focused on terrorist activities.

Section 111 (6) (a) of the Bill says that a “terrorist” refers to any person who “develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives, or releases nuclear, radiological or other dangerous substance, or cause fire, floods or explosions.”

The Bill that was introduced on the last day of the Monsoon Session of Parliament on August 11 has been referred to a Parliamentary Committee on Home Affairs for examination.

According to M.S. Khan, a lawyer specialising in terror cases, the section on terrorism and organised crimes in the proposed law lacks procedural safeguards against false implication as available under the UAPA and the Maharashtra Control of Organised Crime Act (MCOCA).

The UAPA has often been criticised for draconian provisions. Under the anti-terror law, 4,690 persons were arrested between 2018 and 2020, but only 3% were convicted. Its constitutional validity has been challenged in the Supreme Court.

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“All safeguards have been bypassed in the new law. Now any police officer can register an FIR against anyone saying the person is a terrorist. These kinds of offences are not general offences, otherwise they would have been incorporated in the general law earlier,” Mr. Khan said.

In 2022, Silchar in Assam was affected by a massive flood claiming more than 120 lives. Assam Chief Minister Himanta Biswa Sarma had said the floods were “man-made”, adding that the embankment along the Barak river was breached by some people. A criminal case was registered and four Muslim residents were arrested. This led to a barrage of social media posts accusing the members of the community of waging “flood jihad”.

Section 111 proposes a minimum five-year imprisonment and the death sentence as maximum punishment for a terrorist offence.

Mr. Khan said the language, ingredients and interpretation of the new laws are almost similar to UAPA.

“Under the MCOCA and the UAPA, there is a provision that before filing of FIR there has to be an approval by a senior police officer. Secondly, the investigation can only be carried out by an officer of a particular rank and there is a bar on the court to take cognisance of the case without government sanctions. If these safeguards are not there, the trial cannot proceed. Such safeguards are missing in the proposed law,” he added.

Earlier, a senior government official had said that the Bharatiya Nyaya Sanhita (BNS) Bill, 2023 will have no bearing on other special laws such as the UAPA and the MCOCA but it will have to follow the procedure of arrests and custody as prescribed by the Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 that will replace the Code of Criminal Procedure (CrPC).

Another first is defining mob lynching as a crime specifying that the mob has to be a “group of five or more persons.”

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