On 8th August last year, the government of the day, known for its unpredictability, introduced the Unlawful Activities Prevention Amendment Bill. Curiously, this Bill was introduced just days after the NIA (Amendment) Bill which grants the National Investigation Agency the power to “investigate terror crimes relating to Indians and interests of India”, et al. Scores of people took to the streets, while many others heralded the decision of the ruling government. What makes this bill so contentious? Does the good outweigh the bad or does the ruling government hold no water this time? Let us decipher the hinges on this debate.
The MHA deems the Unlawful Activities (Prevention) Act as “An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations [, and for dealing with terrorist activities,] and for matters connected therewith.”1
THE OVERVIEW
The history of the UAPA can be traced back to British India, which was hell-bent on curbing dissent and criminalizing the national movement. The UAPA was first passed in 1967 on the recommendation of the National Integration Council (NIC), in the backdrop of the 1962 China and 1965 Pakistan wars, in response to secessionist demands made by regional groups such as the DMK, to prevent activities considered unlawful and detrimental to the unity, integrity, and sovereignty of the country. UAPA enabled the government to impose ‘reasonable restrictions’ on the fundamental right to association [Article 19(1)(b)]. Its objective was to curb violence against SC/ST and women. However, terrorism found no mention in the 1967 law.
The UAPA was amended in 2004 and 2008 under the UPA regime. In 2004, the POTA was repealed following the widespread protest against its misuse. At the same time, the UAPA was amended to define terrorism act as a crime and granted powers to the central government to declare organizations as “terrorists” and impose a ban against them. The Act further allowed detention without a charge sheet for 180 days which created an adverse presumption against bail. After the 26/11 attack in 2008, the UAPA was amended to incorporate the Prevention Of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) and became the sole anti-terrorism act in the country.
The law saw further amendments in 2012 and more recently, in August 2019.
ADDRESSING THE BONE OF CONTENTION
The Parliament passed the Unlawful Action Prevention Amendment Bill on August 2nd, 2019. The The government poses that the investigation of terror has become a daunting task for the NIA under the present legal regime. Therefore, the amendment to proscribe individuals as terrorists is of paramount importance. It empowers officials of Union Ministry to brand any person as a terrorist without following due process. The name of such person will be listed in the ‘Fourth Schedule’ proposed to be added in the parent Act. The only remedy available to the person is to make an application to the Central Government, which will again be reviewed by a committee formed by the Government itself.
VIOLATION OF HUMAN RIGHTS
The pan India anti-terrorism bill which was passed by the Rajya Sabha has been termed by liberal-minded legal luminaries as draconian and an instrument in the hands of the government to terrorize its people. The ambiguity in the law is fueled by the fact that “terrorist” and “interests of India” hasn’t been satisfactorily spelled out. The definition of terrorism under the act deems an act as an act of terror if it causes or is likely to cause death or injuries to any person, loss, damage or destruction of property, detains or kidnaps any person, etc. The definition is so broad and vague and provides unbridled power to the police officials and the center. It also leads to an additional burden on the judiciary to interpret these vague terms on the principles of legality. The amendment poses the threat of misuse and infringement of human rights. A jurisprudential squabble between legal rights and constitutional safeguards will create an atmosphere of distrust and disharmony.
DEMOCRACY AND DISSENT
The arrests of journalists like Meeran Haider, Safoora Zargar, Masrat Zehra and Peerzada Ashiq and the Bhima Koregaon incident which led to the arrests of Surendra Gadling, Sudhir Dhawale, Rona Wilson, Shoma Sen, Mahesh Raut, Varavara Rao, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj and more recently, the arrest of Gautam Navlakha and academician Anand Teltumbde under UAPA act has been met with greater dissent and dissidence from the people.
Rajeev Dhavan, senior advocate and a commissioner of the International Commission of Jurists commented, “There was no need for amending the UAPA. What exactly is an individual “terrorist” apart from one who is part of a group, conspiracy or who aids and abets others who form the group, who were already covered by the statute before its amendment? True, the amendment enabled symbolically targeting Pakistani terrorists globally. But, in this misdirected legal imagination, it is India's citizenry that is put at risk.” The act enables the Indian government to target its citizens. [under the new provisions] investigation before an arrest is not really required and bail is impossible. this is a new species of defamation by statute which can never be lived down,”2. Lawyer Gautam Bhatia commented, “The case diary and the charge sheet is the version of the state. Therefore, under the UAPA, as long as the state’s version appears to make out an offense, a court cannot, under law, grant bail.”3
THE NEED OF THE HOUR
The UAPA was amended in 2004 and 2008 under the UPA regime. In 2004, the POTA was repealed following the widespread protest against its misuse. At the same time, the UAPA was amended to define terrorism act a a crime and granted powers to the central government to declare organizations as “terrorists” and impose a ban against them. The Act further allowed detention without a charge sheet for 180 days which created an adverse presumption against bail. After the 26/11 attack in 2008, the UAPA was amended to incorporate the Prevention Of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) and became the sole anti-terrorism act in the country.the “terrorist organizations are formed by individuals, so there is no need to declare individuals as a terrorist because there is a provision of declaring organizations terrorist”, in fact, reiterates the need for the amendment. The only purpose of this law is to root out terrorism” and “it is necessary to keep law enforcement agencies a step ahead of terrorists” commented Amit Shah, the Union Minister of Home Affairs. He also claimed that the Indian Mujahideen founder Yasin Bhatkal would have been arrested sooner had he been designated a terrorist. Additionally, the law would not be misused as there was an elaborate procedure before anyone could be declared a terrorist. “Urban Maoism” finds no sympathy in this country.
BJP MP Satya Pal Singh reiterated that the law is as essential as the POCSO [Protection Of Children From Sexual Offences] or laws on traffic violation. He claimed that when anti-terror laws are diluted, terror attacks increase.4
The Indian government does not recognize anti-terrorism measures and the quintessential protection of human rights as conflicting goals. Desperate times call for desperate measures.
THE BOTTOM LINE
Terrorism is antithetic to good governance and the very concept of democracy. Hence there is an exigency of stringent anti-terrorism laws. The law echoes the collective voice of the people. However, this does not give the ruling government a legislative carte blanche to manslaughter the basic human rights enshrined in our Constitution, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Under the garb of curbing terrorism, indirect restriction on the right of dissent should not be imposed as it is detrimental for our developing democratic society. India is a democracy and every citizen of India has a fundamental right to dissent. Audi Alteram Partem must be adhered to, at all costs. Better coordination among the security agencies and police reform is necessary to prevent its misuse, which would lead to gross violation of basic human rights, more so of the minorities who might bear the brutal brunt of the bill. The exercise of power must be on sound principles subject to the scrutiny of the Apex Court of the country. Reliable safeguards against the discretionary power of the government is the need of the hour.
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