Contemporary criminal law no longer confronts wrongdoing as merely individual or episodic. One of the defining challenges before the Indian State today is criminality that is collective, organised, and often ideological. Terrorism and organised crime do not merely harm individual victims; they strike at public order, institutional legitimacy, and the constitutional framework of governance itself.
The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaces the Indian Penal Code, 1860, reflects this transformation in the nature of crime. While special legislations such as the Unlawful Activities (Prevention) Act and State-specific organised crime laws continue to operate, the BNS provides the general criminal law foundation through which culpability, intent, conspiracy, and punishment for such offences are understood. It situates extraordinary crimes within the ordinary framework of criminal responsibility, subject to constitutional discipline.
Why Terrorism Is Treated as a Distinct Criminal Offence
Terrorism occupies a distinct position in criminal law because of its objective and societal impact. Ordinary violent crime is directed at an immediate victim. Terrorism, by contrast, employs violence as a means to intimidate a population, destabilise social order, or coerce the State.
Section 113 of the BNS defines terrorist acts by focusing on the use of violence, explosives, firearms, or other lethal means when committed with the intent to threaten the unity, integrity, security, or sovereignty of India, or to strike terror among the people. The emphasis is on conduct coupled with intention, rather than ideology, belief, or political opinion.
This approach is constitutionally significant. Indian criminal jurisprudence has consistently recognised that the law punishes acts, not thoughts. In People’s Union for Civil Liberties v. Union of India, the Supreme Court observed that terrorism differs from conventional crime because it seeks to undermine the rule of law itself. The BNS reflects this understanding without criminalising dissent, belief, or political expression.
Mental Element: Intention and Knowledge
The mental element lies at the heart of terrorism-related offences. Section 113 requires proof that the accused acted with intention or knowledge that the act would threaten national security or terrorise the public.
This requirement aligns with the general principles governing culpable mental states under Chapter III of the BNS, particularly Sections 24 and 25, which codify the concepts of intention and knowledge. The seriousness of the offence does not relax the prosecution’s burden; rather, it heightens the need for careful judicial scrutiny.
In Kartar Singh v. State of Punjab, the Supreme Court cautioned that terrorism-related laws must be applied with procedural rigour because of their profound impact on personal liberty. Severity of punishment cannot substitute proof of mens rea, nor can public anxiety justify dilution of criminal law principles.
Criminal Conspiracy and Terrorist Planning
Terrorist acts are rarely spontaneous. They are typically the culmination of planning, coordination, financing, recruitment, and logistical preparation. Recognising this reality, the BNS treats criminal conspiracy as a substantive offence under Section 61.
Even where a contemplated terrorist act does not ultimately materialise, an agreement to commit such an offence attracts criminal liability. In State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court held that conspiracy is seldom proved by direct evidence and may instead be inferred from surrounding circumstances, including coordinated conduct, communication records, and financial trails. This evidentiary principle remains central to terrorism prosecutions under the BNS framework.
Abetment and Support Networks
Modern terrorism functions through extensive support systems. Financing, recruitment, shelter, training, and logistical assistance are often as critical as the final act of violence.
Sections 45 to 49 of the BNS define abetment to include instigation, conspiracy, and intentional aid. In the context of terrorism, providing funds, weapons, training, or safe haven constitutes abetment when done with knowledge of the unlawful objective. Actual participation in the violent act is not required.
At the same time, courts insist on strict proof of intent and knowledge, conscious of the severe penal consequences that follow from such liability. This balance seeks to prevent both under-inclusion and over-criminalisation.
Punishment and the Question of Proportionality
Punishments for terrorist offences under the BNS rank among the severest in criminal law, extending in appropriate cases to life imprisonment or the death penalty. The rationale lies in deterrence, incapacitation, and the protection of society from existential threats.
Yet sentencing remains governed by constitutional principle. In Bachan Singh v. State of Punjab, the Supreme Court limited the imposition of the death penalty to the “rarest of rare” cases. This doctrine continues to inform sentencing even for terrorism-related convictions, ensuring that punishment remains individualised, reasoned, and proportionate.
Understanding Organised Crime under the BNS
Organised crime differs from terrorism primarily in motive. While terrorism is often ideologically driven, organised crime is typically motivated by economic gain, territorial dominance, or power. Structurally, however, both involve continuity, coordination, and hierarchy.
The BNS addresses organised crime through provisions relating to criminal conspiracy, abetment, and enhanced liability for continuing unlawful activity. The defining feature is not the nature of the offence alone, but the organised structure and continuity behind it.
In Zahira Habibulla H. Sheikh v. State of Gujarat, the Supreme Court highlighted how organised criminal activity corrodes the justice system itself through witness intimidation and manipulation of investigations. The BNS framework responds by imposing greater liability on those who lead, manage, or finance criminal organisations.
Continuing Unlawful Activity and Leadership Liability
A key safeguard in organised crime prosecutions is the requirement of proving continuing unlawful activity. Isolated or sporadic offences do not, by themselves, amount to organised crime. The prosecution must establish a pattern of criminal conduct and conscious participation.
Leadership roles attract enhanced culpability. Those who plan, finance, or direct criminal operations are treated as principal offenders, reflecting the settled principle that criminal liability must correspond to control, responsibility, and decision-making power.
Electronic Evidence and Financial Trails
Both terrorism and organised crime increasingly rely on digital communication and financial networks. Encrypted messaging platforms, electronic fund transfers, and online coordination are now routine.
While admissibility is governed by the Bharatiya Sakshya Adhiniyam, courts have consistently observed that electronic and financial records often provide more reliable evidence than oral testimony, particularly in cases involving witness intimidation. Such material frequently becomes decisive in establishing conspiracy and abetment.
Membership, Association, and Constitutional Safeguards
One of the most sensitive aspects of terrorism and organised crime law is the criminalisation of membership. Indian constitutional jurisprudence draws a clear distinction between passive association and active participation.
In Arup Bhuyan v. State of Assam, the Supreme Court held that mere membership of an organisation, without incitement to violence or involvement in unlawful acts, cannot by itself attract criminal liability. Read harmoniously with this jurisprudence, the BNS requires proof of intent and participation, preventing guilt by association.
Fair Trial, Witness Protection, and Judicial Oversight
Cases involving terrorism and organised crime present exceptional challenges, including witness intimidation, evidentiary complexity, and intense public scrutiny. Yet the legitimacy of the State’s response ultimately depends on adherence to due process.
The accused retains the right to a fair trial, legal representation, and meaningful judicial review. Courts have repeatedly emphasised that even the gravest crimes must be proved according to law. The seriousness of an allegation cannot justify dilution of procedural safeguards.
Conclusion: Law as the State’s Answer to Extraordinary Crime
The Bharatiya Nyaya Sanhita treats terrorism and organised crime as offences not merely against individuals, but against society and the constitutional order itself. Yet it does so through precise statutory definitions, established principles of culpability, and sustained judicial oversight, rather than fear-driven or expansive criminalisation.
In a constitutional democracy, extraordinary crimes are answered not by arbitrariness, but by law, evidence, and reason. Privilege may exist; impunity does not. The effectiveness of the BNS will ultimately depend not on the severity of its provisions, but on disciplined investigation, responsible prosecution, and vigilant judicial review.
