Abstract
Today, one of the most potent threats that disrupts the global peace and security of any country is the emergence of “terrorism”. India is one such country where terrorism has its grave impact and dangerous repercussions. With all the advances in technology, especially the cyber world, terrorism has now become the most preferred means of waging war. Since independence, different strategies have been executed in the form of anti-stringent laws in order to eradicate this threat. This article attempts to give a brief about all the enactments in the form of legislations that have been implemented and how they got repealed. It explains the longstanding dispute as well as disagreements about the most befitting methods of dealing with the threat of terrorist attacks. The main objective of this article is to elucidate the constitutional validity of the Unlawful Activities (Prevention) Amendment Act, 2019.It gives a detailed description of the new act and all the key amendments made and also, attemptstoexplain as to how there lies a significant gap between counter-terrorism theory and practice and so, although there was a need for the amendment in the Unlawful Activities (Prevention) Act, 1967, these laws when applied to practice, sometimes, cannot reach its fullest potential and can also violate various rights if the government misuses these powers.
Introduction
Terrorism, in India, since its independence has been an unending vexed and a sensitive issue causing menace and severance in the minds of all the people. Today, almost all the regions have become very vulnerable to this threat making it a global concern. Terrorism has been an evolving phenomenon and no country is immune to this threat as these terrorist organisations change their mode of operation continuously making it more complex and challenging.
India has come up with many counter-terrorism operations, anti-terrorism legislations, peace agreements, etc. in these years to cure this issue. It is evident that some of these strategies have yielded positive results yet in recent times the incidents of terrorist attacks in the militancy and insurgency affected areas have been observed. Thus, there is a dire need of understanding this cause from its roots and also of strict laws in order to curb this growing threat of terrorism.
Background
In recent years, many countries have adopted and executed different strategies in the form of stringent anti-terrorism laws in order to eradicate this drawn-out problem of terrorism in all its forms. India too has had many enactments for dealing with terrorism and some of them were repealed as the law enforcement agencies were misusing these powers:
- The Terrorist and Disruptive Activities (Prevention) Act, 1985, 1987 (allowed to lapse in 1995);
- The Prevention of Terrorism Act, 2002 (repealed in 2004); and
- Unlawful Activities (Prevention) Act, 1967.
The Terrorist and Disruptive Activities (Prevention) Act, 1985 was the first ever anti-terrorism law that aimed at curbing terrorism. It introduced two new offences, namely, “terrorist act” and “disruptive activities” and also gave a very thorough definition of “terrorism”. Further, The Terrorist and Disruptive Activities (Prevention) Act, 1987 re-defined certain offences and even added one, “possession of unauthorized arms in notified areas”. However, due to increasing unpopularity after widespread allegations of abuse, the act was allowed to lapse in 1995.
As a consequence of several terrorist attacks especially in response with the attack on the parliament in 2001, the Prevention of Terrorism Act, 2002 came into force. Under this act, the investigating agency got power to detain as well as prosecute for terrorist related offenses. The constitutional validity of this act was also challenged due to frequent abuse of powers and questionable detentions without any formal charges filed.
Therefore, despite the repeated attempts of parliament to come up with anti-terrorism legislations, various criticism raised that led to the annulment of Tada and POTA because of the arbitrary use of certain powers which led to the violation of human rights.
Unlawful Activities (Prevention) Act, 1967
In order to prevent certain unlawful activities of associations and individuals and for all the matters connected with it more effectively, the Unlawful Activities (Prevention) Act, 1967 was enacted. The authorities have the power to declare any association unlawful which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India by doing some unlawful activity or aiding or encouraging any person to undertake any such activity.[1]
After Prevention of Terrorism Act, 2002 got repealed in 2004, the Unlawful Activities (Prevention) Act, 1967 got comprehensively amended by the Unlawful Activities (Prevention) Amendment Act, 2004 and then by the Unlawful Activities (Prevention) Amendment Act, 2008 to deal with terrorist activities. It bought provisions from previous anti-terrorism laws and defined ‘terrorist act’ in very broad terms.
Further, recently, this act is amended by the Unlawful Activities (Prevention) Amendment Act, 2019, thus making it India’s main anti-terror legislation.
Unlawful Activities (Prevention) Amendment Act, 2019
The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha on July 08, 2019. It was passed in Lok Sabha on July 24, 2019. Later, the bill received the assent of Rajya Sabha on August 02, 2019.
This amendment was introduced to make the counter-terrorism mechanism more stringent by providing special procedures to deal with terrorist activities, among other things.
Key Amendments
The Unlawful Activities (Prevention) Amendment Bill, 2019 bought amendments to various sections that includes section 2, section 25,section 35, section 36, section 38, section 43 and section 45. Amendment of first and second schedule also took place along with the addition of a new fourth schedule.
Some of the key amendments of the act are given below:
- This act bought amendments to section 35 and 36 of the principal act that empowers the government to designate an individual as a terrorist on the same grounds which gave central government the power to designate an organisation as a terrorist organisation. So, now, an organisation or an individual may be deemed to be involved in terrorism if it:
- Commits or participates in acts of terrorism; or
- Prepares for terrorism; or
- Promotes terrorism in any way; or
- Is otherwise involved in terrorism
The names of ‘terrorists’ are now to be included in the Fourth Schedule of the principal act.
- The new act gave the Director General of National Investigating Agency (NIA) power to give approval to the officer of the National Investigating Agency (NIA) who is conducting investigation for seizure of properties that are suspected to be connected with terrorism. Under the previous act, this power was only in the hands of the Director General of police.
- Section 43 of the principal act provides for the category of officers who are competent to investigate offences. It includes officers of the rank of a Deputy Superintendent of Police or a police officer of equivalent rank, Assistant Commissioner of Police or above. The new amendment inserted a new clause in this act which additionally empowers the officers of the National Investigating Agency (NIA), of the rank of inspector or above to carry investigation of these offences.
- Section 15 of the principal act provides for the meaning of the terrorist act. Sub section 2 of this section says, the terrorist act includes an act which falls within the scope of any of the treaties that are listed in the second schedule. With the coming of new amendment act, one more treaty has been added to this schedule making it a list of ten treaties. This is the “International Convention for Suppression of Acts of Nuclear Terrorism (2005)”.[2]
Need for the amendment
Today, when the world is growing at such a faster rate, with the invention of new technologies comes a higher threat of terrorism and India is one such country which faces this threat. To curb this threat, there is a need of more stringent counter terrorism mechanisms.
In order to make new enactments or amendments, a basis question should be kept in mind, that is, how these terrorist activities take place? For an act to be committed, the most important ingredient required is mens rea. Mens rea in criminal jurisprudence refers to criminal intent. The principal act recognized “terrorism” to be associated with an organisation. But, when we talk about criminal intent, it begins with an individual. The intention to commit an offence of terrorism is usually the criminal mind-set in an individual and later an organisation. Once a conspiracy is established, organisations are only a matter of contention. So, when under UAPA, these organisations are targeted and not individuals, observations have been made which points out that the leaders of these organisations continue to involve in these activities by creating any other name for the organisation. In fact, there are certain cases like that of Hafiz Saeed, Masood Azhar and Yasin Bhatkal which highlight this issue. Hence, in order to curb terrorism from its roots, there is a dire need to target individuals along with the organisations to which they belong. [3]
Even the federal bureau of investigation an organisation like United Nations Security Council Counter Terrorism Committee encourage the listing of “individuals” in the very definition of terrorism. This is so because violent criminal acts committed by person/persons could be inspired by/associated with ideologies from mastermind behind such attacks.
This amendment now encompasses “Lone wolf terrorism”. These terrorists are those offenders who do not belong to any terrorist organisation and whose acts are directed and conceived without any external direction. Of late there are many incidents of “Lone wolf terrorism” in India where Indian youth are becoming radicalized. Under the principal act, only organisations can be designated as a terrorist organisation and these “Lone wolfs” do not come under any organisation. So, there is a need for a provision to declare these individuals as terrorists.
With all the powers given to the National Investigating Agency (NIA), process of investigation can be quicken and procedural delays can be prevented which will improve the delivery of justice in UAPA related cases. Also, powers are now given to both NIA and states as well. Thus, strengthening the functioning of NIA without reducing the power of states.
Constitutional validity
There lies a significant gap between counter-terrorism theory and practice. Although there is dire need for stringent laws in order to curb terrorism, the fact that these laws when applied to practice, sometimes, cannot reach its fullest potential and can also violate certain fundamental rights if the government misuses these powers, can’t be ignored. Therefore, in spite of the above reasonable reasons to the amendment there lies a prominent problem that terrorism is difficult to distinguish from other forms of political violence and acts of internal conflicts and further its consequences often like social activism and protests. Now because of which this insertion of amendment may prove to be highly worrisome to the civilians.
Some major concerns:
- The new amendment does not provide a concrete definition or detailed grounds based on which an individual can be termed as a terrorist. Also, there is no such proper definition for terrorism mentioned in the new amendment or the principal act, therefore, opening it for various interpretations. Now, article 14 of the Indian constitution provides for equality before law and states that the State shall not deny to any person equality before the law or the equal protection of the laws.[4]The amendment gives powers that are arbitrary and unfettered and may be used without any limits or bounds when categorizing a person as a ‘terrorist’. This amounts to the violation of Article 14
- There cannot be an unreasonable restraint on individual’s right. The amendment provides certain powers to the government which affects the right to freedom of expression which is enshrined as a fundamental right in Article 19 (1). It imposes an indirect restriction on the right of dissent, that is, if any person expresses his/her dissent, he/she might be suspected for the same. This is a violation of our freedom of expression under Article 19(1).
- Article 21 of the Indian constitution provides for protection of life and personal liberty.[5] As per section 35 (2) of the UAPA, 2019, central government may declare an organisation/individual as a terrorist and add to the schedule only if it believes that it is involved in terrorism. The “belief” of central government to accuse a person of being a terrorist is enough. This appears to be vague, absurd and hence, objectionable. Also, labelling an individual as a terrorist even before the commencement of trial may bear serious consequences, such as social boycott, loss of employment, hence, violating the right to reputation which is a part of right to life. Therefore, it violates article 21 as it infringes upon the personal autonomy of an individual.
- The new amendment has added various stringent laws keeping counter terrorism as a noble goal but at the cost of violating human rights. It violates the mandate of International Covenant on Civil and Political Rights (ICCPR) to which India is a party. It violates the right to fair trial and presumption of innocence that are mentioned under ICCPR.
- The convention states that pre-trial detention is to be used as a last resort only when it is necessary, reasonable and proportionate to the objective sought by the prosecution. But under UAPA, the police is allowed to use pre-trial detention and they can detain a person for up to 180 days at a stretch without producing any evidence against the accused. Also, accused can be held in police custody for 30 days instead of 15 days.
- Presumption of innocence is a universal human rights principle under ICCPR. UAPA violates this principle as well. The burden of proof can be reversed under this act, if the government proves recovery of arms or fingerprints of the accused on materials associated with a terrorist act. This impels the deliberate planting of evidence and is inconsistent with the fundamental norms and hence, violates the mandate of International Covenant on Civil and Political Rights (ICCPR).[6]
Although with the coming of new act, Lone wolf actors can now be designated as “terrorists”, India currently lacks legally defined mechanisms by which lone wolf actors can be properly identified. The phenomenon of “Lone wolf terrorism”seems to be brewing through the digital space. And when it comes to the use of social media, it is very difficult to differentiate between a potential lone wolf and a civilian venting out his/her thoughts that they do not consider it to act upon. Every citizen has the right to lawfully exercise their rights to free speech and expression which also includes right to dissent, so it becomes problematic when engaging in online surveillance of individuals. Threats occurs when a person has the intention as well as capability to do an act. Therefore, an individual cannot be designated as a terrorist just because he has the desire to perform a destructive act but has no means to do so. There are cases where many Indian citizens have been arrested on suspicion of antinational activities on social media that mainly reflect dissenting ideas. This can be considered as infringement of the individual’s right to expression.
Section 15 of the UAPA defines “terrorist act”. The definition does not profile any organisation or individual on the basis of ideology or ethnicity or religion. There is no such theory of profiling organisations or individuals on this basis, yet in practice, these categories are being followed.
Conclusion
The threat to terrorism must be tackled with stringent counter terrorism laws. The following amendment can be proved useful, if followed in letter and spirit. So it is very important that a set criteria should be followed when designating individuals or even organisations as terrorists. Since the scope of this amendment or the act itself actually is so wide, restricting or defining such criteria seems to be the biggest concern. The question here is can the government be authorised to arrest any person and declare him/her as terrorists and not being answerable or responsible enough to investigate the same? And, not to forget, how the onus would then be on the individual declared as a terrorist to prove how he or she is not one?
For example, in the case of Akhil Gogoi (Indian Peasant leader) and RTI Activist from Assam was arrested by Delhi Police in 2019 under section 18 and 39 of UAPA (Conspiracy and offence relating to support given to terrorist organisation) amid protest over Citizenship Amendment Act(CAA). He was tried before the special court of NIA in Guwahati. It’s been also said/alleged that the NIA conducted search operation in Gogoi’s house as well as at his office at Krishak Mukti Sanghram Samiti (KMSS). They seized several items including several documents along with a laptop.[7]
It is important to limit the government’s wide powers as to who can be simply called a terrorist. Can the intensity of different acts of violence, hate crimes, conflicts and attacks like 26/11 be analysed under one umbrella law? Can the new amendment guarantee that political dissent, activism and non-violent resistance would not amount to terrorism under this law? Could clash of ideologies, opinions, conflicting stands also cause threat to integrity and sovereignty of our country? Or the reason we need such stringent laws goes way beyond that.
[1]The Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1992 (India).
[2]The Unlawful Activities (Prevention) Amendment Act, 2019, No. 28, Acts of Parliament, 2019 (India).
[3] Hana Mansood, Lone Actor Terrorism and the UAPA Amendment Bill 2019, YOUNG BHARTIYA (Feb 10, 2020, 22:33 PM), https://www.youngbhartiya.com/article/lone-actor-terrorism-and-the-uapa-amendment-bill-2019.
[4]INDIA CONST. art. 14.
[5] INDIA CONST. art. 21.
[6]SmitaGaikwad, Becauseindividuals can be terrorists too: Why India needs UAPA Amendment Bill 2019, DAILY O (Feb 10, 2020, 22:15 PM), https://www.dailyo.in/politics/uapa-amendment-bill-2019-terrorism-in-india-amit-shah-narendra-modi/story/1/31758.html.
[7]Hemant Kumar Nath, Court sends Assam peasant leader AkhilGogoi to 14-day judicial custody, INDIA TODAY (Feb 10, 2020, 22:59 PM), https://www.indiatoday.in/india/story/court-sends-akhil-gogoi-to-judicial-custody-peasant-leader-rti-leader-assam-nrc-caa-1631776-2019-12-26.
