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UAPA Amendment : Why Giving Govt Power To Declare Individuals 'Terrorists' Is Problematic?

Manu Sebastian
28 July 2019 2:54 AM GMT
UAPA Amendment : Why Giving Govt Power To Declare Individuals Terrorists Is Problematic?
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Without following any formal judicial process, a person can be labelled terrorist, and can be thrown to the 'mob' to suffer extra-judicial punishments.
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The Central Government will be having the power to declare an individual as 'terrorist' if the Unlawful Activities (Prevention) Amendment Bill 2019 passed by the Lok Sabha on July 24 becomes law.

This is a potentially dangerous amendment which will empower officials of Union Ministry to brand any person 'a terrorist', without following due process. The name of such a person will be included in the 'Fourth Schedule' proposed to be added in the parent Act. 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.

Since the already stringent Unlawful Activities (Prevention) Act 1967 (UAPA) has ample powers to deal with persons who support terrorist organizations and unlawful activities, one may wonder what is the real purpose behind the amendment.

As per Section 35 of the UAPA, the Government can notify any organization as terrorist organization "if it believes that the organization is involved in terrorism". Such organizations can be included in the 'First Schedule' of the Act, which has so far 33 names. Any person who is associated with an organization included in the First Schedule as a member, supporter or fund raiser can be punished as per the existing provisions of Sections 38, 39 and 40 of the UAPA.

As the parent Act already has sufficient provisions to deal with individuals linked with terrorist organizations, what is additionally sought to be achieved with the power of designating an individual as terrorist?

It is surprising to note that the amendment does not provide any legal consequence in case an individual is designated a terrorist. The inclusion of one's name in the Fourth Schedule as a terrorist per se will not lead to any conviction, imprisonment, fine,  disqualifications or any sort of civil penalties. 

So this is simply a power for the government to brand any one as a terrorist. It is hardly a consolation that such a declaration by itself will lead to any adverse legal consequence. An official designation as a terrorist will be akin to 'civil death' for a person, with social boycott, expulsion from job, hounding by media, and perhaps attack from self-proclaimed vigilante groups following. Like the Biblical character of Cain, such a person will be left to wander with a cursed label on his forehead.

In short, without following any formal judicial process, a person can be unilaterally labelled terrorist by the Government, and can be thrown to the 'mob' to suffer extra-judicial punishments, without any effective legal remedies.

This gets more chilling, when one reads the explanations offered by Union Home Minister Amit Shah for the amendment move.

Speaking during the Lok Sabha discussion, the Union Minister said that those who commit terrorist acts and those who promote terrorism and raise money for terrorists should be punished as terrorists. Of course one cannot have a different opinion regarding this, and the Act already has provisions in Chapter VI to deal with such individuals.

However, what the Home Minster said in addition to this is problematic. The Home Minister said : 

"And then there are those who attempt to plant terrorist literature and terrorist theory in the minds of the young. Guns do not give rise to terrorist. The root of terrorism is the propaganda that is done to spread it, the frenzy that is spread."

'Terrorist literature', 'terrorist propaganda' etc., are undefined, vague terms with a lot of potential for misuse. There have been instances of UAPA charges being slapped against people for merely 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. For example, those who work for tribal rights, those who criticize deeds of military in troubled areas etc., could run the risk of being branded terrorists.

During the Lok Sabha debate, NCP member Supriya Sule cautioned that the amendment could be used to target human rights activists and social workers, and mentioned the UAPA case against famous academician and activist Anand Teltumbde. 

In response to the concerns raised by Sule, the Union Minister said "those who work for Urban Maoists will not be spared".

This loose term 'Urban Maoists', which so far has seen use only in social media and channel debates, has now officially entered the Parliamentary records with the Home Minister invoking it. Terms such as 'anti national' 'urban naxals' etc, are used without nuance and discretion to demonize and vilify ideological opponents and critics of government. It is worrying to see such terms getting used to justify an amendment which can have grave effect on the civil liberties of an individual.

To label a person 'terrorist' merely on the basis of speech and thoughts goes against the basic Constitutional canon that speech can be punished only if it gives rise to direct and imminent violence. This has been settled by the Supreme Court in a catena of decisions, while dealing with anti-terror laws and sedition.

A reading of the line of decisions in Balwant Singh v State of Punjab (sedition), Arup Bhuyan v State of Assam etc., makes this position on free speech law clear.

In Arup Bhuyan, the Supreme Court imported the test of imminence laid down in the US decision Brandenburg vs. State of Ohio, which held that advocacy of violence as a means of accomplishing political or institutional reform will be illegal only if it incites imminent lawless action.

In State of Kerala v Raneef, the SC observed that one cannot be penalized for merely belonging to an unlawful organization if there is no active participation. The prosecution in that case had argued that the accused was in possession of literature of 'Jihad'. Recently, a division bench of the High Court of Kerala upheld the compensation of Rs 10 lakhs ordered by a single bench to a man who was illegally arrested on ground of possessing Maoist literature.

While granting bail to human rights activist Dr Binayak Sen in a UAPA case, the Supreme Court observed that mere possession of Maoist literature will not make one a criminal.

In this context, it is pertinent to recall the words of Justice Chinnappa Reddy in the case State of Madhya Pradesh v Ramashankar Raghuvanshi (1983), which set aside the government's decision to dismiss a teacher on the ground that he was associated with RSS and Jan Sangh in past.

Holding that a person cannot be denied public employment on grounds of his political beliefs, Justice Reddy held :

"India is not a police state. India Is a democratic republic. More than 30 years ago, on January 26, 1950, the people of India resolved to constitute India into a democratic republic and to secure to all its citizens "Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity", and to promote "Fraternity, assuring the dignity of the individual". This determination of the people, let us hope, is not a forgotten chapter of history. The determination has been written into the articles of the Constitution in the shape of Fundamental Rights and they are what makes India a democratic republic and what marks India from authoritarian or police States."

The Constitution places an individual as its basic unit and seeks to expand the horizons of one's liberties, by placing limitations and burdens on the State, as explained by the SC in the Puttaswamy case.

The UAPA amendments with the intentions as stated by the Union Home Minister turn these decisions on their head. 

In Joint Anti-Fascist Refugee Committee vs. McGrath Justice Douglas of the U.S. Supreme Court  had observed :

"In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within."

This amendment is such a 'short cut', which serves the purpose of only feeding mob frenzy.

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