UAPA Amendment Act: Potential Threat to Individual Freedom
In 73 years of its independence, India enacted many draconian anti-terror laws such as the Prevention of Terrorism Act (POTA), 2002 and the Terrorist and Disruptive Activities (Prevention) (TADA), 1987, and the Unlawful Activities Prevention Amendment Act (UAPA), 2019 is the latest addition to this regime. UAPA repealed the Unlawful Activities Prevention Act, 1967 which was originally an anti-secession act that was enacted to safeguard the integrity and sovereignty of India. Later in 2004, UAPA was amended and the word ‘terrorist act’ was inserted making it an anti-terror law. After the terrorist attack on 26th November 2008 in Mumbai, the central government pushed for a more stringent anti-terror law and brought most of the provisions of the repealed Prevention of Terrorism Act (POTA) in the form of an amendment in UAPA in 2008.
The saga of cruel anti-terror law furthered through an amendment act, recently passed by parliament, which empowered the National Investigation Agency to designate any individual as a terrorist and seize his property. India faces internal security threats in the form of Naxalites and external threats from terrorist organizations. The need for stringent anti-terror laws is advocated after every terrorist attack on the country and as a result, amendments were introduced in these anti-terror laws. But the Indian investigation agencies face severe criticism over their prejudice towards religious minorities and misuse of such laws for political gains and exploitation of cultural, religious, and ethnic minorities.
CONTROVERSY AROUND AMENDMENT
Section 35(1) of UAPA empowers the central government to designate any individual under Schedule 4 of the Act i.e. declare them a terrorist if the central government believes that such an individual or organization is involved in terrorism.[i] Section 36 provides a process to undo the declaration made under Section 35(1).
According to Section 36(4), an application shall be filed within a month of rejection of application made under Section 36(1) to the Central Government for removal of name, which shall be reviewed by a three-member committee under the chairmanship of a retired or acting judge of the high court to review the order issued under section 35(1). Section 15 defines a terrorist act to include any act which threatens or likely to threaten the integrity, unity, security, and sovereignty of India. The words used in the definition are: ‘likely to threat’, ‘use of any mean of whatever nature’ which is likely to cause damage or destruction of property, injury or loss of life, or likely to ‘disrupt supply or essential services’ to life provide a scope of arbitrary action by investigation agencies.
WHAT IS WRONG WITH THE AMENDMENT?
The Constitution provides the right to form associations and freedom of expression under Article 19. The right to a dignified and meaningful life is provided under Article 21. Reputation is an inseparable part of life and it cannot be allowed to be tarnished. In the case of Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendra Nath Nadkarni & Ors. [ii], the Supreme Court held that individuals have and are entitled to the right to protect their reputation and in any case state endeavors to affect such right, it shall provide a chance to have his say in such realm. Designating someone as a terrorist without any judicial inquiry without any system of checks and balances causes serious injuries to fundamental rights of a citizen.
The Constitution of India equipped citizens with a system of checks and balances. Exercise of unrestricted and unfettered power is prohibited by the Constitution especially when such power tends to infringe rights enshrined under Part III of the Constitution, the basic structure of the constitution. Apex court in the case of Shayara Bano & Ors. v. Union of India & Ors. [iii] opined that manifested arbitrariness violates the principles of reasonableness. Section 35 read with Section 15 of the Act and the presence of vague and ambiguous terms suggests arbitrariness and unfettered freedom to the executive, which in turn violates Article 14 of the Constitution. Dissent is essential to keep democracy alive and the state should not be allowed to frame laws that tend to violate the basic human rights of its citizens. Supreme Court in District Registrar and Collector v. Canara Bank [iv] observed that “Where power is open to use disproportionate to purpose be achieved in invalid in the absence of guidelines or principles or norms which are ‘essential’ for the exercise of such power.”
The UAPA equips government and investigation agencies to fight the evil of terrorism but without any clear guidelines which are to be followed by agencies, although UAPA provides a mechanism to remove a name from Schedule 4. This process is lengthy, and place the accused under an unreasonable burden to prove his innocence. Even the review committee is dominated by the executive of the secretary level. The government argued the object of the amendment is to deal with those individuals who continue their terrorist acts by frequently shifting to new organizations, but IPC (Indian Penal Code of 1860) contains provisions against those who are involved in acts against the state.
Section 124A of IPC deals with sedition also deals similar to the provisions of UAPA. Supreme court dealt with the question of membership of any terrorist organization in the case of Arup Bhuyan vs State Of Assam [v] held that mere membership of any organization does not make an individual a criminal unless he/she resorts or incites violence. Thus, the present amendment does not require violence in the first instance as it can designate someone terrorist even if he is likely to damage property.
HOW GOVERNMENT MISUSED ANTI-TERROR LAWS?
Although the Minister for Home Affairs assured the parliament that law will not be misused but the actions of the government fail to corroborate his speech in parliament. Despite provisions in CRPC and IPC, the government arrested activists such as Akhil Gogoi and booked two journalists of Jammu and Kashmir under UAPA which are not the only incidents. When the history of anti-terror laws and recent actions of the present regime are seen together, the danger of activists, NGOs, political workers, and influential figures of disturbed areas being targeted and intimidated through this law is imminent.
TADA was misused on a large scale, resulting in the exploitation of Muslims. Many innocent youngsters were thrown into jail on bleak suspicion or even without any evidence. The misuse was of such scale that political parties made an election promise to repeal such anti-democratic law, and as a result, TADA was repealed. Even if we look in our dark past of anti-terror laws, it is filled with human right violation and atrocities over minorities. MISA was widely misused to silence the pen of brave reporters and political counterparts. AFSPA is criticized for the same reason. India witnessed the dissatisfaction of State Governments and protest from civil society over excessive and exploitative use of AFSPA especially in northeast India and Jammu and Kashmir. Even State Governments expressed their concerns over their misuse and advocated policy reforms during the consultation stage of NIA and UAPA in 2008.
The history of an independent India is crammed with police atrocities over innocent minorities. The need for laws against terrorism is justified as well as inevitable in the present paradigm, but there should be a mechanism to protect those who will be subjected to such atrocities of investigation agencies. People who suffered in jails and came out clean have lost precious time of their life and faced societal stigma after their release. All this happens to ordinary youth of this country due to the absence of any safety net from unscientific investigation methods and prejudice towards a particular community.
Citizens of this country elect a government that forms laws for their welfare and safety, but such laws must safeguard the constitutional rights of citizens and in case of any infringement, the safety net of regress judicial scrutiny must be available to them. Our past experiences with democratically elected governments in this country signal towards exploitative and targeted use of unfettered power given to governments in the name of securing sovereignty, integrity, and security of India. Hence, present law needs reforms and amendments providing judicial intervention at an early stage, a clear and unambiguous definition of a terrorist act, and precise criteria to put someone under Schedule 4 of UAPA.
[i] Section 35(2), Unlawful Activities Act, 1967.
[ii] 1983 AIR 109.
[iii] Writ petition (C) No. 118 of 2016.
[iv] Appeal (civil) 6350-6374 of 1997
[v] (2011) 3 SCC 377.
ABOUT THE AUTHOR
This blog has been authored by Ankit Yadav who is a 3rd Year B.B.A., LL.B. (Hons.) student at Chanakya National Law University, Patna.
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