MISUSE UNDER THE GARB OF ANTI-TERROR LEGISLATION- AN ANALYSIS OF THE UAPA (AMENDMENT BILL, 2019)
Ishita Yadav, III year of B.A.,LL.B. from University of Petroleum and Energy Studies, Dehradun.
Anti-terror laws are being used to curb people’s civil liberties are no longer a disputed fact. The Unlawful Activities (Prevention) Act (UAPA) which was primarily meant to combat terror and proscribe known terrorist organizations with its latest amendments in the Parliament(July 2019), chose to proscribe individuals and their activities by paving the way to name individuals as terrorists even though they may have no affiliation with any of the 36 terrorist organizations referred to in the First Schedule of the Act. Initially, (UAPA) was intended to criminalize unlawful acts but unfortunately, its scope was broadened to include the term terrorist activities.
What is UAPA?
The Unlawful Activities (Prevention) Amendment Bill, 2019, is an anti-terrorism law with the main objective to make powers available for dealing with activities directed against the integrity and sovereignty of India. It was introduced in Lok Sabha by the Minister of Home Affairs, Mr. Amit Shah, on July 8, 2019. The Bill is an upgraded version of the Terrorist and Disruptive Activities (Prevention) Act, (lapsed in 1995) and the Prevention of Terrorism Act, (repealed in 2004), which was originally passed in 1967. However, the opposition expressed its grave concern over the nature of the amendment. Opposition apprehended that the Amendment Bill,2019 gives unbridled power in the hands of the Government and the major reason for obtaining such illimitable powers is not to secure the country but is to secure the government’s political narratives. Various civil society groups have also advocated to check on these powers or repeal the Act. Amid such serious concerns, the Bill was passed by both Houses of the Parliament and soon got the assent of the President.
What is the real issue?
According to this act, the government can now designate an individual as a terrorist, under sections 35 and 36 of Chapter VI of the Act, if they participate or commit any crime related to terrorism. Earlier, only an organization could be tagged as a terrorist group and not any individual. The Bill further empowers the National Investigation Agency officers, of the rank of inspector or above to investigate the cases. The Bill also adds that if the investigation is conducted by an officer of the NIA, the approval of the Director-General of NIA would be required for the seizure of such property. The new Amendment is contrary to the principle of ‘innocent until proven guilty’ and also violates the International Covenant on Civil and Political Rights (ICCPR) 1967which recognizes the mentioned principle as a universal human right.
The UAPA also grants authority to the National Counter Terrorism Centre, established in 2012, to arrest, search and seize property without consulting the state government. Among other stipulations, the UAPA enables arrests to be made without a warrant, allows anyone accused under the UAPA to be kept in continued police custody without being granted access to a court, prolongs the maximum time limit of police custody to 180 days, unjustly restricts bail requests, and explicitly reverses the burden of proof in cases under the UAPA as the accused is required to prove his innocence as opposed to the prosecution proving his guilt.
Challenge on constitutionality
The law was repeatedly challenged in court. A Public Interest Litigation (PIL) litigation was filed by Sajal Awasthi with the Supreme Court in 2019 for a declaration of unconstitutionality for violating fundamental rights. He was critical of the fact that he indirectly restricted the right to object and violated Articles 14 (right to equality), 19 (right to freedom of expression), and 21 (right to life) of the Indian constitution. Another petition by the Association for the Protection of Citizens' Rights (APCR) alleged that the new section 35 allows the centre to identify a person as a terrorist and include their identity on Appendix 4 of the law, while previously only organizations reported as terrorist organizations could become. The amendment does not provide the reasons for designating a person as a terrorist and that “the transfer of such discretionary, unlimited and unbound power to central government is the opposite of Article 14.
A tool to stifle dissent
The UAPA is constantly used to suppress dissent through intimidation and harassment, which threatens the existence of public debate and freedom of the press, and criminalizes the exercise of civil liberties. Criminalization is not an incitement to violence that disturbs law and order, but the celebration of an ideology that is right at the forefront of the current political dispensation, as Arun Ferreira and Vernon Gonsalves - both victims of the UAPA - noted. UAPA criminalizes ideology and association. By declaring an organization illegal and/or terrorist and banned it is de facto criminalizing its ideologies and truly creating a regime of thought crimes.
If there is a deviation from the law, i.e. its abuse by an official authority of the state such as the police, becomes routine enough to undermine the rule, it is no longer a question of individual misinterpretation or misapplication, but possibly signals a high time to get one repeal such law altogether. The UAPA from its very inception is ineffective as there is no evidence of a higher conviction rate under tougher terrorism laws or a stronger deterrent about fewer crimes, but there is well-documented evidence of gross abuse. Experience around the world shows that anti-terrorism laws that violate fundamental human rights radicalize and alienate communities, making them a breeding tool for militant groups. They allow extraordinary restrictions on fundamental rights without any extraordinary situation of the terrorist threat and can only be lifted by a mass movement in the absence of a sunset clause.
If these criticisms are avoided, then to that extent the world's largest democracy, despite what its citizen’s claim, would merely be a façade for a non-democratic rule. Therefore, to restrict this country from becoming a moribund society and to enable it to grow holistically, revamping of this law is necessary.