Abstract:
The amendment in Unlawful Activities Prevention (Amendment) Act, 2019 provides for the designation of individuals as terrorist. Earlier only organization could be classified as terrorist organization and the members associated with this could be prosecuted. So this amendment will affect the rights of individual. So this article deals with the objective and history of UAPA, about the recent amendment i.e. notifying individual as terrorist. It mentions how this amendment leads to violation of some of the fundamental rights and also the unremitting powers provided to the executive under the Act. Then the article also discusses the international position regarding the designation of individual as terrorist, what can be the procedure for designation and mentions the relatively better provisions, regarding the procedure, in different jurisdiction.
Introduction:
Laws giving more powers to security agencies and restricting individual liberty should be made after a well considered thought and debate. National security legislation takes away our democratic rights i.e. right to associate and assemble, right to form organization, right to speech and expression through protests and demonstrations.
UAPA, 1967 came with the objective to ban those organization which are deemed to be dealing with illegal activities mainly focusing at terrorism prevention. It empowers parliament to restrict right and freedom in order to protect the sovereignty and integrity of India. UAPA also criminalizes the attempt to commit any unlawful or terrorist act. It allows the government to seize, freeze and attach the financial assets of the accused.
History:
UAPA was not a concept that was introduced by Indian parliament but was made on the same lines of colonial government i.e. Britishers. They used such law for banning and criminalizing the dissent shown by individuals to their government. ‘Unlawful Association’ was used for first time in Criminal Amendment Act, 1908 to criminalize Indian National Movement. But post independence it is being used to suppress political dissent. ‘Public Order’ and ‘friendly relation with other states’ were added as reasonable restriction in Art. 19 by 1st Amendment of the Constitution.[1] This was indirectly incorporating the sedition as reasonable restriction which was done away with. During 1962 war there were many secessionist tendencies that were arising in India like threats from Tamil Nadu groups etc. So a committee on National Integration and Regionalism was appointed by the National Integration Council. This committee recommended for further restricting the Fundamental Rights. So in 1963 a new reasonable restriction was added that is-‘the Sovereignty and Integrity of India’, which was to restrict these secessionist movements. This 16th amendment paved the way for UAPA. UAPA bill was passed by parliament in 1967 giving the central executive power to ban organization which it think to be unlawful. It was amended in 2004 and 2008 just to incorporate the provisions from TADA and POTA. Now it is not only restricted to cases of secessionist organization but extends to cases of terrorism also. Now UAPA allows the centre to ban any organization on two grounds: i) unlawful activity ii) terrorist act. Recently, in 2019 it is amended which allows the central government to declare any individual as terrorist.
Notifying individual as terrorist:
Recently on 2nd August, 2019 Rajya Sabha passed an Unlawful Activities Prevention (Amendment) Bill which received President’s assent, so making it an Act. The Bill was not referred to any select committee and was not much debated.
Earlier only organization could be notified as terrorist organization and could be banned if it :(i) commits or participates in acts of terrorism, (ii) prepares for terrorism, (iii) promotes terrorism, or (iv) is otherwise involved in terrorism. But the individual members and active supporters of these organization are not arrested solely on the ground of being a member of such an organization. This would led the members only vulnerable to prosecution. Consequences of this could be imprisonment and loss of property. The new Act additionally empowers central government to designate individuals as terrorists on the same grounds if it believes him or her to be so and add their name in schedule 4 of the Act.
a) Government’s contention: Union government said that the said amendment was needed because the present Act gives power only to designate organization as terrorist organization. It said that the terrorist acts are not committed by the organizations but by individuals. So present Act provides the individuals with an opportunity to circumvent the law and continue their terror activities under a different name.
Another reason cited by the government for the amendment is that the United Nations Security Council (UNSC) designates individual as terrorists and India being a signatory to the United Nations Charter is obligated to treat the individual as terrorists.[2]
b) Procedure or redressal mechanism followed under the Act: No rationality and only government’s opinion is considered for banning any organization. There is no hearing or procedure followed before designating any organization as terrorist organization, only post-decisional hearing is done by a review committee which is headed by sitting or retired high court judge to determine the continuation of designation as such.[3]
The banned organization can make an appeal to government and if it is rejected then an appeal can be made to a review committee, an extended body of government. So same authority is categorizing the organization and same is imposing ban, then hearing appeal and also the second appeal.[4] This safeguard does not have any separation of power.
The 2019 amendment designating individuals as terrorist does not provide for any change in the procedure for such designation. So same procedure is to be followed. Individuals being classified as terrorist should have different mechanism and faster mechanism of redressal for the reason that an individual has fundamental rights protected under constitution, unlike an organization. They may be arrested, detained and their movement may be restricted which leads to their violation of fundamental rights guaranteed under constitution. But there is no change in the process of removing an entity listed as terrorist.
c) Violation of Fundamental Rights:
- Section 35 does not provide the detailed grounds and reasons on the basis of which an individual can be notified as terrorist so giving the government arbitrary, unfettered and unbound power which violates directly Article 14.[5]
- The government can not impose restriction on right of dissent in the garb of terrorism. Right of dissent is an integral part of right to freedom of speech and expression which can be restricted only on the grounds mentioned under Article 19(2) of the constitution.
- By terming the individual as terrorist before the commencement of trial causes an irreparable damage to one’s reputation which is an integral part of right to life under Article 21.[6]
d) Unremitting powers under the Act: Police power to arrest, search and seizure, making all offences cognizable, enhancing the period of detention, undermines the power of court to demand the attendance of accused in their trials, disallows anticipatory bail, presumes the guilt of the accused, in-camera trials and withholding the identity of witness and allowing intercepted communication to be used as evidence, this all gives overwhelming power to executive. So it does not follow a fair trial. These unremitting powers are now applicable to individual from the time he/she is designated as terrorist. Preventive detention is prohibited under Art. 22 of Constitution and Cr.P.C. allows for 90 days in case of offences having punishment of 10years or more and 60 days in other cases. The principle of presuming one innocent until proven guilty is disregarded under UAPA [7].
INTERNATIONAL POSITION:
Many countries and international organisations (UN, USA and EU) designates individual as terrorist and see this designation as necessary because the banned groups assemble under different names and continue to operate with terror activities. However there should be a set procedure for designating an individual a terrorist. Parliament should consider that whether an individual can be classified as terrorist before his conviction by a court of law. The process of designating an individual a terrorist and an organization a terrorist should be different as former enjoys right to life and liberty. The tag of a terrorist can have far worse consequences for an individual than an organization.
Under this Act the pre-charge detention is allowed for the maximum period of 180 days which is much longer than allowed in other democratic states. The UK Terrorism Act provides for 28 days of judicially authorized detention. In US it is allowed for 48 hours except for aliens suspected of committing terrorist act can be detained for 7 days under the PATRIOT Act. In Australia it is 24 hours which exclude dead time, when the suspect is not questioned. Council of Europe Parliamentary Assembly noted that lengthy pre-charge detention acts as a sentence on a person who may never be charged with any crime. Fair Trials International argued that holding people for lengthy period without charge is violation of right to liberty and presumption of violence. At the minimum judge while extending the period grounds and reason must be noted on the basis of which the extension is provided.[8]
UK Terrorism Act 2000 provides for review of the legislation at least once in every one year. This annual review report is to be laid before parliament. It helps in monitoring the terrorist legislation and their impact on individual rights.[9] UN provides for the need to have annual reviews of the listed individuals through Security Council Resolution. EU also provides for reviewing of the list at regular intervals and at least once every six months.[10]
There is no sunset clause mentioned under Unlawful Activities Prevention (UAPA) Act. The UK’s joint committee on Human Rights recommended that all terrorism legislation must have sunset clause of maximum five years and should be renewed by primary legislation and not ministerial order.[11]
In Australia, the high court, the federal court and the federal magistrates court all have power to review the executive action. If any executive action is taken under anti-terror legislation then review mechanism is provided by Australian common ombudsman also. India’s anti-terror laws must empower independent judiciary to supervise the application of the law.[12]
Conclusion:
The members of these terrorist organization or who aided or abetted the acts of terrorism could have been prosecuted under the Unlawful Activities Prevention UAPA Act prior to the amendment, so what was the need of this amendment. These unbridled power given by UAPA to central government make fun of democracy in the name of democratic nation. Tough laws are needed to fight and combat terror, but these amendments can be misused. It does not carry any safeguard against its misuse at individual level. The government should preserve fundamental rights while enacting legislation on the issue of terrorism. A balance needs to be made between individual liberty and national security.
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[1] Anushka Singh, Criminalising Dissent: Consequences of UAPA, Published by: Economic and Political Weekly, Vol. 47, No. 38 (SEPTEMBER 22, 2012), pp. 14-18, available at https://www.jstor.org/stable/41720156?Search=yes&resultItemClick=true&searchText=UAPA&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DUAPA%26amp%3Bacc%3Don%26amp%3Bwc%3Don%26amp%3Bfc%3Doff%26amp%3Bgroup%3Dnone&ab_segments=0%2Fbasic_SYC4631%2Ftest&refreqid=search%3A98b0815cdc0c257b8edb259ddda0f5ee&seq=1#metadata_info_tab_contents, last visited on 09-10-2019 at 15:34 UTC.
[2] Designating Individuals as Terrorists, Published by: Economic and Political Weekly, Vol. LIV No. 32, August 10, 2019.
[3] Id.
[4] Supra note 1.
[5] Plea in Supreme Court against UAPA provision to notify private individuals as terrorists (17/08/2019), available at https://login.westlawindia.com/maf/wlin/app/document&srguid=i0ad8289e0000016ded3e390e982792a8&docguid=I53E30290C35A11E984F3F5288A1F19C6&rank=78&spos=78&epos=78&td=486&crumbaction=append&context=49&resolvein=true, last visited on 11 October,2019 at 20:30.
[6] Second Plea in SC challenging amendments to UAPA Act, available at https://economictimes.indiatimes.com/news/politics-and-nation/second-plea-in-sc-challenging-amendments-to-uapa-act/articleshow/70817752.cms?from=mdr, last visited on 12 October, 2019 at 20:00.
[7] Supra note 1.
[8] South Asia Human Rights Documentation Centre and Ravi Nair, The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes, (Jan. 24-30, 2009) ,published by: Economic and Political Weekly, available at https://www.jstor.org/stable/40278825 Search=yes&resultItemClick=true&searchText=UAPA&searchUri=%2Faction 2FdoBasicSearch%3FQuery%3DUAPA%26amp%3Bacc%3Don%26amp%3Bwc%3Don%26amp%3Bfc%3Doff%26amp%3Bgroup%3Dnone&ab_segments= %2Fbasic_SYC4631%2Ftest&refreqid=search%3A3a5e0851fda604c253772aa37c44c8a6&seq=1#metadata_info_tab_contents, last visited on 12-10-2019, 10:35 UTC.
[9] Supra note 12
[10] Statewatch comparative analysis of the US, UK, UN and EU “terrorist lists”, available at file:///C:/Users/ROHIT%20RAWAL/Desktop/shwetarawal/llm/New%20folder/Statewatch%20comparative%20analysis%20of%20the%20US,%20UK,%20UN%20and%20EU%20_terrorist%20lists.html, last visited at 13-10-2019,at 6:28 pm
[11]Id.
[12] Supra note 12.
This article is authored by Shweta Rawal, student of LL.M at Mumbai National Law University, Mumbai.
