93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 043

14. League of Nations Convention (1937):

“All criminal acts directed against a State along with intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.” (GA Res. No. 51/210: Measures to eliminate international terrorism)

1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed.

2. Reiterates that 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 are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.

3. Short legal definition proposed by A.P. Schmid to the United Nations Crime Branch (1992):

Act of Terrorism = Peacetime Equivalent of War Crime

4. Academic Consensus Definition:

“Terrorism is an anxiety-inspiring of repeated violent action, employed by (semi-) clandestine individuals, groups or State actors, for idiosyncratic, criminal or political reasons, whereby — in contrast to assassination — the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat-and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target [audience(s)], turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.” (Schmid, 1988) Definitions

15. Terrorism by nature is difficult to define. Acts of terrorism conjure emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the US Government cannot agree on one single definition of uniform and universal application. The old adage, “One man’s terrorist is another man’s freedom fighter” is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation:

Terrorism is the use or threatened use of force designed to bring about political change. Brian Jenkins Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted.

Walter Laqueur 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.

James M. Poland 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 behavior or politics.

Vice-President’s Task Force, 1986 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.

FBI definition” (emphasis supplied)

449) In Madan Singh vs. State of Bihar, (2004) 4 SCC 622 this Court upheld the conviction and sentence awarded by the Designated Court in respect of accused persons who had killed several police officers in combat. While affirming that the offence committed was rightly charged under Section 3 of TADA, this Court observed in detail in respect of terrorist activities and held as follows:

“19. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society…..

…..It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquillity of the society and create a sense of fear and insecurity.”

450) In People’s Union for Civil Liberties and Anr. vs. Union of India, (2004) 9 SCC 580, the constitutional validity of various provisions of the Prevention of Terrorism Act, 2002 (“POTA”) were challenged. While upholding the constitutional validity of POTA, this Court discussed domestic and international authorities on terrorism and observed that:

“6. In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct targets of violence but also by exposing them to a sense of insecurity……

8. All these terrorist strikes have certain common features. They could be very broadly grouped into three:

1. Attack on the institution of democracy, which is the very basis of our country (by attacking Parliament, Legislative Assembly etc.). And the attack on economic system by targeting economic nerve centres.

2. Attack on symbols of national pride and on security/strategic installations (e.g. Red Fort, military installations and camps, radio stations etc.).

3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the Government by creating a feeling of insecurity.

9. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organised groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilise the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today the Government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within the borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the abovesaid circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomised in POTA.

451) Terrorism is a major problem that is reoccurring over the globe in many different forms. In short, terrorism is a plague for a nation or society that should be eradicated. There is a dire need to best deal with it and to make sure to take preventive actions so that other groups and people are not motivated to make themselves heard through various acts of terrorism. In our considered view, the following procedures/rules must have to be adopted while dealing with it:-

i) Better governance and law enforcement is the real need of the hour.

ii) We must formulate long term as well as short term strategies to combat terrorism.

iii) More advanced technologies must be used for communication among law enforcement agencies.

iv) Fighting terrorism would require a long term planning and sustained multi-dimensional action.

v) There should be proper coordination between all the agencies with high level of motivation and a quick response system must be established to tackle the menace immediately.

vi) Rule of Law must always be upheld and it is the duty of the constitutional authority to defend the life and limb of its subjects.

India being a secular State, such religious fanaticism which resulted in such terrorist acts should not be allowed to destroy the very basic structure of our Constitution. Unless every one of us put our sincere efforts to fight terrorism, we will not be able to curb this menace. Role of Pakistan in the Blasts:

452) It is devastating to state that Pakistan being a member of the United Nations, whose primary object is to maintain international peace and security, has infringed the recognized principles under international law which obligate all states to prevent terrorist attacks emanating from their territory and inflicting injuries to other states. This duty to prevent acts of terrorism stems from the basic principle of sovereignty, which entails both rights and obligations. Under the ‘Universal Neighbouring Principles’, it is well established that the rights of one state end where the territory of another state begins. An obvious source of this obligation lies in Article 2(4) of the UN Charter, which embodies the customary law of “prohibiting states from using or threatening to use force against another state”. A host-state that has the capability to prevent a terrorist attack but fails to do so will inherently fail in fulfilling its duty under Article 2(4) since terrorism amounts to force by definition.

453) In the relevant scenario, the accused arrived in Pakistan for training and they were received by ISI operatives who took them out of the airport without observing any immigration formalities. Meaning thereby, they had a green channel entry and exist in Pakistan. Another confession reveals that they received training from the ISI officials themselves on some occasions. These events unveil the tolerance and encouragement shown by Pakistan towards terrorism.

454) An effective anti-terrorism campaign will require a substantial strengthening of the international regime of state responsibility. Presently, there are several documents adopted under the aegis of the UN and various multilateral treaties emphatically promote all states to work together urgently to bring to justice the perpetrators, organizers or those harbouring the perpetrators, organizers and sponsors will also be held accountable.

455) In the light of the Para 2 of the UNSC Resolution No. 1373 adopted under Chapter VII of the UN Charter, every State has the following obligations to perform:-

(a) Every State should refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists.

(b) Take necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information.

(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe heavens.

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.

(e) Every such person supporting terrorist acts should be brought to justice and it must be ensured that, in addition to any other measures taken against them, the punishment awarded duly reflects the seriousness of such terrorist acts.

(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings including assistance in obtaining evidence in their possession necessary for the proceedings.

(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and thorough measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

456) With regard to the facts available in the case at hand, the role attributed by the neighbouring State can be summarized as under:-

(1) A large number of convicted accused and absconders have received training in making of bombs by using RDX and other explosives, handling of sophisticated automatic weapons like AK-56 Rifles and handling of hand grenades in Pakistan.

(2) A-92, A-95, A-108 and A-115 received weapons training in Pakistan in January, 1993. During the same period, five absconding accused persons also received training in Pakistan. Confessional statements of A-92, A- 95, A-115 and A-134 prove these facts.

(3) The arrangement for their training was made by Dawood Ibrahim (AA), Anees Ibrahim, Mohd. Dossa, A-136 and Salim Bismillah Khan (since deceased).

(4) PW-1 and PW-2 in their depositions before the Court and A-16, A-29, A-

32, A-36, A-39, A-49, A-52, A-64, A-77, A-94, A-98 and A-100 in their confessional statements have stated that during February 1993 the accused persons were sent, in batches, from Bombay to Dubai and Dubai to Islamabad, where they were given training by ISI/Army Personnel in different camps.

(5) The above said persons were taken to Dubai from where they were taken to Islamabad Airport and were received by ISI operatives, who took them out of the Islamabad Airport without observing any immigration formalities after completion of training.

(6) No immigration formalities were observed when they left Islamabad for Dubai.

(7) Some of the passports seized during investigation carry two arrival stamps of Dubai but the details of their journey during the intervening period are not reflected in the passports. (8) Pakistan took precautions not to bring its involvement on record. (9) A-58, A-88, A-109, A-114, A-126, A-127, A-128, A-129, A-130 and A-135 were taken to Dubai for sending them to Pakistan but arrangements could not be made for their training in Pakistan. Hence, they had to return from Dubai.

457) A careful reading of the confessional statements of convicted accused exposes that large number of accused including the absconders received training in making of bombs by using RDX and other explosives, handling of sophisticated automatic weapons like AK-56 Rifles and handling of hand grenades in Pakistan which was organized and methodically carried out by Dawood Ibrahim (AA), Anees Ibrahim, Mohd Dossa and Salim Bismillah Khan (since deceased). The training received in Pakistan materialized in the unfortunate serial blasts in Bombay, India on 12th March 1993. A responsible state owes an obligation not only to another state but also to the international community as a whole. We sincerely hope that every State will strive towards the same.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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