‘Unlawful’ Amendment to UAPA 2019: A Brief Analysis

New Delhi: Former Supreme Court Judge Markandey Katju has written in his book titled Whither Indian Judiciary, “In view of the incidents of terrorism in some places in India, some people have started saying that to combat terror, it is necessary to curtail civil liberties and introduce ‘draconian laws’. To my mind, this is a dangerous thing, by passing some draconian laws, terrorism and crime will not be reduced; instead, our country’s progress will be obstructed. What is our national aim? To my mind, our national aim must be to make India a highly prosperous country for all its citizens (and not just a handful of people in our country) and for that it is necessary to have widespread industrialisation in India.”

“Hence, democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom and the free flow of ideas.”

THE EVOLUTION OF ANTI-TERRORISM LAWS IN INDIA

Preventive Detention Act (PDA) 1950-1969: It was passed as a temporary measure to deal with the challenges posed by violence and displacement during the partition of India.

The law authorised the government to detain individuals without charge for up to a year. It being a temporary law, the Act was annually reviewed by Parliament and renewed repeatedly before finally expiring in 1969.

Also read: UAPA Amendment: Gateway to Misuse Anti-Terror Law, Say Critics

The Act was in direct conflict with the principles of natural justice and due process.

Armed Forces (Special Powers) Act (AFSPA) 1958: The highly controversial AFSPA empowered the military to act alongside the police in designated “disturbed areas”. It vested the soldiers with greater power to use force against civilians than the police are allowed.

The Act has proven to provide institutional impunity against human rights violations. It has brought havoc to the citizens of these designated “disturbed areas” to the point that Irom Sharmila sat on an indefinite hunger strike for 16 years to get the Act repealed, but had no effect on the authorities.

National Security Act 1980: The NSA gives power to the central and state governments to detain individuals for a maximum period of 12 months. Under the Act, a person can be detained for up to 10 days without even being informed about the reasons for detention.

The government is allowed to withhold information supporting the detention in “public interest” and a detained person is not allowed a lawyer during this period.

It is quite obvious how this draconian law and can be prone to misuse.

Terrorist and Disruptive Activities (Prevention) Act 1985: The TADA was another attempt of the government to counter terrorism with “vague” definitions and “loose” provisions. ‘Disruptive activities’, whether by act or by speech, or through any other media’ was a “vague” definition under TADA – say experts – that encompassed a wide variety of activities, including any form of protest.

Under the law, special TADA courts were set up to prosecute those accused of terrorist activities in areas designated by the national government as “terrorist affected areas”.

TADA created new criminal offences, enhanced procedural powers for the police and reduced protections for defendants. Under TADA, confessions made before police officers was admissible as evidence, which facilitated custodial abuse and torture. In the guise of fighting terrorism, the law was used to detain marginalised communities as well as against trade unions.

Over 76,000 people were arrested while TADA was in force from 1985 to 1995. The conviction rate for these arrests was less than 1%, which meant thousands were wrongfully incarcerated.

Prevention of Terrorism Act 2001: POTA was introduced in the wake of 9/11 in the United States, which reinstated many provisions of TADA like enhancement in police powers, limit on the rights of defence and making police confessions admissible as evidence.

The vague definitions of “terrorism” and “terrorist activities” allowed for discriminatory applications. POTA has never been used against Hindu nationalist groups suspected in terror attacks against minority communities.

National Investigation Agency Act 2008 -2019 (Amendment): The NIA Act was brought within a month of the Mumbai terror attack in 2008. It sanctioned the formation of a central agency to probe terror cases. Under NIA proceedings, the identities of witness can be kept secret, which forecloses cross-examination on behalf of defendants, making the trial patently unfair.

VIOLATION OF BASIC HUMAN RIGHTS BY POLICE PERSONNEL

According to the data released by the NCRB in 2016, there have been 209 cases which were registered against police personnel for violating basic human rights which included fake encounters, illegal detention and custodial torture.

Out of 209 cases, 73 cases were found to be false but only 50 police personnel were chargesheeted.

Interestingly, out of 209 cases, the number of police personnel convicted is zero.

THE ‘UNLAWFUL’ AMENDMENT TO THE UAPA ACT, 2019 – A BRIEF ANALYSIS

The definition of ‘unlawful’ activity, as per the Act, refers to an action that supports or is intended to support secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India. The punishment for unlawful activity may extend upto seven years.

Also read: Parliament Clears UAPA Bill That Gives Power to Govt to Declare Individual as ‘Terrorist’

Section 15 of the Act defines a terrorist act which refers to an act or intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or to strike terror on people in India and abroad. The punishment for this is death sentence or life imprisonment if the act has resulted in human loss.

Experts are of the opinion that the definition of terrorism, brought by the 2008 Amendment following the Mumbai terror attacks, differs widely from the one provided by a United Nations Special Rapporteur on protection of human rights and fundamental freedoms while countering terrorism.

“The specificity of terrorist crimes is defined by the presence of three cumulative conditions: (i) the mean used, (ii) the intent, and (iii) the aim, which is to further underlying political or ideological goal.” The Rapporteur observed that without all three elements, a prohibited act could not be considered a terrorist act because it fails to distinguish itself from an ordinary crime.

The amended UAPA gives power to the government to declare certain organisations as “unlawful associations” or “terrorist organisations”. Even being a member of such organisation is a criminal offence. However, there is no definition of membership in the UAPA, which allows investigating authorities to use even the flimsiest of excuse to book people as member of these terrorist organisations, according to experts.

‘Unlawful’ detention: Provisions in the UAPA are stricter than the domestic criminal law. Under the law, the police are allowed a time period of 180 days for investigation as opposed to 60 to 90 days under criminal law. It allows the police to detain an accused for six months at a stretch without producing any evidence against the accused. It also allows the accused to be remanded to police custody for 30 days which is double the amount under criminal law.

No provision for anticipatory bail: There is no provision for anticipatory bail. Generally, getting bail in UAPA cases is difficult, which is “problematic as it allows for nearly indefinite imprisonment even without conviction, without any concrete proof, only on an indication of a criminal offence on face of it”.

All these provisions allow for “custodial torture” and other “ill-treatment”, which in India is not an unknown fact. But India still has to ratify the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment.

Liberty and privacy under threat: Another amendment with regard to investigation that has been brought is allowing searches, seizures and arrests based on “personal knowledge” of the police officers with prior approval of only Director General of Police, which means without a written validation from a superior judicial authority. “This interferes with the privacy and liberty of individuals which is not only by a fundamental right but also contravenes the provisions of the International Convention on Civil and Political Rights (ICCPR)”, which protects against arbitrary or unlawful interference with a person’s privacy and home.

The latest national crime data shows that on an average, 75% cases under UAPA have ended in acquittal/discharge over three years ending in 2016.

The game of burden: The ICCPR to which India is a party stipulates that presumptions of innocence is a universal human rights principle. But the UAPA shifts the burden of proof on the accused as opposed to the prosecution. This is not only inconsistent with the fundamental norm but also impels the deliberate planting of evidence.

Treating individuals as terrorist: As per the amended law, the power of government to proscribe terrorist organisation is now extended to individuals, i.e. the government can name individuals and label them as terrorist on the basis of suspicion, without following any due process.

The designated “terrorist” will face consequences as any such person suspected of terrorism, but such branding is “designed to expose the individual to political and social consequences”.

Also watch: Rowlatt Act to UAPA: Change and Continuity

The new law has also empowered lower ranking official of the NIA to investigate such cases. The previous legislation had already allowed police officers a lot of room for discretion for who they want to prosecute, when and for what reason, such delegation of authority gives unfettered power to investigating authority.

As justified by the by Union Home Minister Amit Shah that the amendments are to bring the law in consonance with international law against terrorism, it completely “misses out on incorporating any clause that would ensure free and fair trial which is also required under Universal Declaration of Human Rights.”

United Nations Security Council Resolution 1456 states that State must ensure that any measure taken to combat terrorism must comply with all their obligation under international law, in particular International Human Rights Refugee and Humanitarian Law. However, as per the law experts, UAPA does not provide for any such measure or safeguard against potential abuse, which given the history of this legislation is necessary.

An attempt to curb the voices of dissent: The vague and unfettered discretionary power will only act as a tool to carry out potential witch hunt and target dissenting voices. Not to mention, it is a direct threat to the basic fundamental rights to freedom of life, speech and expression, making lives of minorities even more vulnerable.