The Indian Parliament is set to ratify legislation that would authorise the federal government to designate individuals as “terrorists”, even without such persons being prosecuted or convicted. In addition, the burden of proving that one is not a terrorist will be on the individual.
By making amendments to the Unlawful Activities Prevention Act (UAPA) of 1967, the Hindu nationalist Bharatiya Janata Party (BJP) government led by Narendra Modi aims to arm itself with power to proscribe not just organisations but also individuals as terrorists, if they are allegedly “found committing, preparing for, promoting or involved in an act of terror”. This would mean the Indian federal government would be authorised to brand any person terrorist merely on the basis of speech or being in possession of literature the establishment deems “promoting” terrorism.
The amended provisions will also allow the authorities to seize properties and to put a travel ban on individuals once they are declared terrorists, and permit the label, which is reserved for convicts, to be extended to individuals accused of or suspected to be involved in terror activities.
Under the existing UAPA, the federal government can proscribe terrorist organisations, but it doesn’t allow individuals to be designated as terrorists. A person could be convicted of a “terrorist act”, ie, be declared a terrorist following conviction under due process of law. It defines and criminalises what it terms “unlawful activities”. The law was amended in 2004 to define terrorism as a crime and to grant government authority to declare organisations “terrorist”.
But now, the federal government will be empowered to declare anybody a terrorist even without conviction. A proscribed individual can challenge the designation before a review tribunal, headed by a sitting high court judge. But the burden of proof is with the individual.
To be denotified from the official gazette as a terrorist, a proscribed person can make an application to the federal government, and if the application is rejected, the person can seek a review by a special committee set up by the government. The law, however, does not prescribe a time limit for the government to set up such a committee or a process for the committee to decide the application.
The contentious Unlawful Activities (Prevention) Amendment Bill of 2019 is likely to receive the nod from the Rajya Sabha – the upper house of India’s bicameral parliament – after it was passed by Lok Sabha, the lower house, on 24 July following a brief debate on proposed changes. The amendment was passed with 284 votes in favour and eight against after the opposition parties led by the Indian National Congress, All India Trinamool Congress (TMC), Nationalist Congress Party and the Biju Janata Dal walked out in protest, terming the provisions “draconian” and demanding they be referred to a parliamentary standing committee for scrutiny.
Need for modification
Defending the amendments to the UAPA, India’s Home Minister Amit Shah asserted that strict laws were required to end terror. “We are bringing in laws that will end terrorism in the country, and we promise that the government will never misuse it,” Shah told Lok Sabha during the debate on the UAPA amendments.
Shah underlined that if a terror organisation was banned, a terrorist could easily set up another, adding: “There’s a need for a provision to declare an individual as a terrorist. The UN has a procedure for it, the US has it, and even Pakistan has it, China, Israel, [the] European Union … Everyone has done it.”
Accusing the ruling dispensation of “taking over the judicial function”, India’s member of parliament Asaduddin Owaisi, who also heads the All India Majlis-e-Ittehadul Muslimeen, emphasised that declaring a person a terrorist should not be done based on mere feelings or suspicion by the government.
The TMC’s Mahua Moitra protested against the changes by highlighting that the law could be misused to target individuals. “If the Centre wants to target someone, they will get them somehow with the help of some law. Opposition leaders, minorities, rights activists and others, if they disagree with the homogenous idea of India that this government is trying to thrust upon us, the opposition runs the risk of being labelled as anti-national.”
Expressing concerns, Congress parliamentarian Shashi Tharoor noted that amendments are “ill-considered” and that the UAPA is supposed to be used “against a collective and not individuals”.
Dismissing these assertions, Shah reaffirmed that there are many social activists who are doing good work, “but we will smash the ‘Urban Maoists’. Let me make it very clear — the government has zero tolerance towards them and we need tough laws to prevent this”. “Urban Maoists” or “Urban Naxals” is a term used by the ruling National Democratic Alliance dispensation for those supporting and spreading the ideology of Naxalism. A Naxal or Naxalite is a member of any political organisation that claims the legacy of the Communist Party of India.
Shah also told parliament there were individuals who attempt to plant terrorist literature and terrorist theory in the minds of the young. “Guns do not give rise to terrorists. The root of terrorism is the propaganda that is done to spread it, the frenzy that is spread,” he emphasised.
Fear of impending abuse
Under the Indian constitution, individuals have fundamental rights and freedoms, and are guaranteed due process and liberty. Those provisions do not apply to organisations, so there are fears that the proposed UAPA amendments appear to be designed to brand a person without a conviction, and thus exposing them to the political, economic and social fallout that follows.
“It is bad enough that organisations are called terror outfits without due process. Now to add individuals to the law is worse. Organisations and individuals are treated differently under the [Indian] Constitution,” advocate Abhinav Sekhri told the Indian Express newspaper.
“This is a potentially dangerous amendment which will empower officials of Union Ministry to brand any person ‘a terrorist’, without following due process …The only statutory remedy available to such a person is to make an application before the Central Government for de-notification, which will be considered by a review committee constituted by the government itself,” writes legal expert and civil law advocate Manu Sebastian in LiveLaw, a legal news portal. Sebastians adds that a person can be unilaterally labelled “terrorist” by the government without any formal judicial process, “and can be thrown to the ‘mob’ to suffer extrajudicial punishments, without any effective legal remedies”.
Under the proposed amendments the supposed “terrorist literature”, “terrorist propaganda” and so on have been left undefined or in vague terms with much potential for misuse. Sebastian underlines that there are instances of charges under the UAPA being slapped on people merely for possessing revolutionary literature. “When a draconian law is based on loose concepts, officials might find it tempting to use it against those who are positioned against the government.”
Defending the amendment, senior BJP leader and Rashtriya Swayamsevak Sangh (RSS) or Hindu nationalist ideologue Seshadri Chari notes that the assertions made by the Home Minister echoes the sentiments of the majority of the people who want a safe and secure environment in society. “The world has witnessed a rise in what is now commonly referred to as ‘lone wolf’ attack – one that is carried out by an individual motivated by radical ideology or extremist views.”
Chari, however, also adds that the Indian government need heed the opposition only on matters concerning the misuse of the amended provisions and speedy judicial decisions. “The amended law does put unrestricted powers in the hands of the police and other law-enforcing agencies. Many times, these agencies not only lack coordination but may even end up working against each other. The dangers of turf rivalry should not be allowed to influence the decisions of the government while it is trying to maintain law and order.”
Adding a new layer to an already stringent law, the Modi-led dispensation seeks to corner and stigmatise political dissenters, human rights activists and political opposition by labelling them terrorists, without any need for evidence to back such assertions. In essence, the law will allow government to pass extrajudicial punishment on those it deems as a threat.
Considering the loose definition of “terrorist literature” under the amended Act, the Hindu right-wing groups close to the government would be emboldened to use the definition against religious and ideological minorities. For instance, possessing The Communist Manifesto or Muslim religious texts will now easily invite trouble. Given the history of how other laws such as the Public Safety Act, the Prevention of Terrorism Act, the Terrorism and Disruptive Activities (Prevention) Act and others have been rampantly misused by authorities to curb human rights and target political dissenters, there are signs that the UAPA will be used to victimise individuals.