On 8 July 2019, Home Minister Amit Shah proposed the Unlawful Activities (Prevention) Amendment Act in parliament and on 24 July it was passed in the Lok Sabha.
It is now in the Rajya Sabha where Opposition MPs are demanding that it must be sent to a select committee for review. The bill seeks to amend the Unlawful Activities Prevention Act (UAPA), which is India’s primary anti-terror legislation.
The proposed amendment makes three key changes in the law. Two of these are largely technical, having to do with additional powers granted under the act to officers of the National Investigation Agency.
While these changes have raised many questions of their own, mainly having to do with their impact on the federal structure, the major amendment to the law has been made in Section 35, under which the central government has been empowered to designate individuals as terrorists.
Ambiguity Behind the ‘Terrorist’ Tag
Section 35 of the UAPA currently empowers the central government to designate any organisation or group as a terrorist organisation if it believes that they are “involved in terrorism.”
This effectively means that the organisation is then banned and all its activities become unlawful. Anyone who is a member of such an organisation, or is found to ‘provide support’ to them, can be punished with upto ten years in prison.
The proposed amendment seeks to allow the government to designate even individuals as terrorists. The procedure for declaring an individual as terrorist shall be the same as that which exists for banning organisations.
Under Section 35, an individual shall be deemed to be involved in terrorism if he/she:
- Commits or participates in acts of terrorism
- Prepares for terrorism
- Promotes or encourages terrorism
- Is otherwise involved in terrorism.
The provision has been deliberately worded to have a broad meaning, and it is further complicated by the lack of any clear definition of the word ‘terrorism.’
Section 15 of the UAPA lays down many offences that may be construed as ‘terrorist acts,’ but the term ‘terrorism’ has nowhere been defined specifically and investigating agencies have been given a wide discretion in deciding what can be tried as a terrorist offence.
The same wide discretion is given under Section 35 to the central government in deciding which individuals can be deemed to be “involved in terrorism.”
Inadequate Insights on the Due Process
This discretion is not checked by any kind of judicial review; the central government is the only entity that is empowered to notify or de-notify an individual as terrorist.
The only avenue for appeal is a three-member Review Committee which is headed by a sitting or retired judge of a high court, and consists of two other members whose qualifications are not defined.
Even though it is headed by a judicial member, there is no legal guarantee of a due process — let alone a judicial review — and all members of the committee are appointed by the central government.
In the ten years of its existence the Review Committee has never given any decision against the central government.
What is even more troubling is the lack of clarity over what happens to an individual who is declared to be a terrorist.
News reports have said that this provision will lead to the ‘banning’ of such an individual, with restrictions on travel and seizure of their property as possible implications, but the amendment bill itself lays down no specific punishment. It is reasonable to assume that if a person is declared as a terrorist, there must be specific charges of terrorism against them.
But what happens if they are acquitted of specific charges? Will they be automatically de-notified or will they continue to be treated as virtual persona non grata, with no legal standing or right to liberty?
In fact, the proposed amendment hasn’t created any new offence for which a person may be tried in a court of law. It is actually creating a bureaucratic process for stripping an individual of their fundamental rights and liberties, with little oversight.
Rampant Misuse of Anti-Terror Laws
Anti-terror laws are well-known for their potential of misuse. Mirza Nisar, Lateef Ahmed Waja and Mehmood Ali Bhat were released from prison in Jaipur last week after being acquitted by the Rajasthan High Court.
All three had been arrested in 1996 and spent 23 years in different prisons around the country in connection with various terror charges which were ultimately found to be fake.
Nisar and Waja were merely 17 when they were arrested; they have spent more years of their life in prison than outside. For 23 years the three men and their families have not only suffered the hardships of person, but also lived with the stigma of being labelled a ‘terrorist.’ Theirs is not the first case of a gross miscarriage of justice caused by anti-terror laws, nor does it appear to be the last.
Anti-terror laws – whether it is the erstwhile TADA and POTA or the current UAPA – typically make it extremely difficult for a person accused of terrorism to obtain bail, regardless of the strength (or lack) of evidence against them.
They also give investigating agencies substantive greater powers and tweak the rules of evidence in favour of the prosecution.
The overall effect is a weakening of procedural guarantees and institutional safeguards meant to protect ordinary citizens from being wrongly accused or maliciously prosecuted.
The misuse of anti-terror laws is so rampant and well-documented that the Law Commission of India in its 277th report has recommended that those who are wrongfully prosecuted in terrorism cases must be given compensation by the State.
In this context, where anti-terror laws have been known to be destroy lives and stigmatise entire communities, the proposed amendment becomes even more problematic.
The wide discretion given to the central government under the amendment, along with the complete absence of due process and lack of clarity over its implications, has only fuelled speculation that it will be used to target political opponents, dissident voices and specific identities.
(Fawaz Shaheen is a lawyer with Quill Foundation: Centre For Research And Advocacy — which mainly deals with human rights. You can reach out to him at fawazshaheen@gmail.com. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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