Analysis | UAPA: Updated anti-terror law is likely to weaken Indian democracy

[dropcap]T[/dropcap]HE Unlawful Activities (Prevention) Amendment Bill, 2019 has been passed by the Parliament despite searing opposition to the inclusion of new provisions in the existing law. The Bill drew flak on two accounts. One, the new changes undermine human rights. Secondly, the amendments undermine the structure of Indian federalism.

Now the central government can designate individuals as terrorists by bringing them within the fourth schedule of the Unlawful Activities (Prevention) Act, 1967. Any person, who supports terrorism, participates or gets involved in terrorism shall be designated as a terrorist through the amendment.

Additionally, the National Investigation Agency (NIA) has been given the power to investigate offences under the Act. Therefore, NIA will exercise concurrent investigatory powers along with the state police, and the NIA has an incidental power to authorise the seizure of the property attained out of the proceeds of terrorism.

Prior to the amendments, only organisations that were involved in terrorist activities attained the designation of a ‘terrorist organisation’. Any person involved in the designated terrorist organisation faced punishment. The rationale, according to the government, for introducing individual designation is that an individual could be a terrorist without being a part of an organisation. What then is the legal effect on designating an individual as a terrorist under the UAPA? Nothing.

For instance, if the UN designates a person as a global terrorist, the effect that follows is that his assets could be frozen, travel ban and arms embargo could be imposed. Similarly, if the US designates a foreign individual as a terrorist, his property could be blocked, his transactions in the US could be prohibited and civil or criminal penalties could be imposed. There are no such additional penalties or provisions that the designated individual terrorist in India will attract on such designation.

Individuals who undertake terrorist activities, irrespective of whether a part of a terrorist organization was punished on judicial adjudication prior to the amendment for committing terrorist acts, conspiring for conducting a terrorist act, organising a terrorist camp and so on. Therefore, this amendment providing for individual designation has no effect under the statutory provisions, since the person will have to be tried by the judiciary before he could be punished. However, a wrongful designation could amount to social exclusion and deprivation of livelihood of the designated individual, which falls within the ambit of right to life and liberty under Art 21 of the Constitution. Therefore, the central government gets to brand a person a terrorist without an adjudication by the judiciary. Such sweeping power in the hands of the central government is troublesome.

Section 2(k) read with section 15 of the UAPA states that terrorism must involve violence, which causes death, damage of property, disruption of the countries essential supplies, kidnapping or abduction of public functionary with an intention to disrupt the unity and sovereignty of India. The definition of terrorism adopted by the UN (Security Council resolution 1566(2004)) also requires an overt act of violence that causes death or injury. However, the Home Minister while answering to the objections against the Bill in the house, observed that radicals using literature to propagate hate against the government and ‘Urban Naxalites’ will also have to be considered terrorists. This definition of terrorism that the government has provided is not in consonance with the definition of terrorism under the UAPA. This is an indication that though the amendment to the UAPA does not overtly violate the freedom of speech under Art 19(1) (a) of the Indian Constitution, its’ implementation could affect in its violation.

Though the governments’ definition is not in compliance with the statutory definition of terrorism, the central government could still go on to designate individuals as terrorists without judicial intervention on what they perceive to mean terrorism. The only check that is placed through law on the central government’s power to designate, is an application for de-notification of the designation that could be brought up. This application will be passed on to a review committee, which will also be appointed by the central government itself. Even if the review committee denotifies the individual, the repercussions of a wrongful notification are going to be catastrophic, however, brief the period might be.

Even if the ‘radical’ speech does effect at bringing hatred against the government, it is an offence that is already covered under section 124A of the Indian Penal Code, 1860 as the offence of sedition. Therefore, the designation amendment would lead to interference with judicial functioning, and violation of the freedom of speech, right to livelihood.

The second objection with regard to the NIA amendment is that it is anti-federal. The argument of the proponents of the anti-federalism objection is that the NIA (a central agency) has the power to conduct investigation concurrent to the state police and the NIA can seize properties in the state. Firstly, it is to be understood that in India’s federal structure, the state and the Union are not separate compartments. They are rather interdependent on each other, with the Centre overpowering the state in certain contingent situations. The Union under the constitutional scheme has greater power over the states, be it through the number of items that the Centre can legislate upon, or the superintendence of the Union on items that both the state and the Union can legislate upon, or through the emergency provisions.

Further, all the important security-related heads such as defence and the armed forces are placed under the union list for the Centre to legislate upon. Though India’s constitutional structure, it is evident that the Constituent Assembly members aimed at giving the Centre more power on the subject of security of the country. Since terrorism is directly linked to the security of the country, NIA’s power to investigate and seize property located in different states (which are not state properties, but are properties located in states) will definitely fall within the constitutional scheme of Indian federalism.

The updated law though is not anti-federal but has enough teeth to violate the basic human rights of the citizens. It is likely to weaken India’s democracy.


(The author is a researcher in the field of constitutional law and human rights. Views expressed are personal)

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