The lack of compulsion to prove wrongdoing beyond a reasonable doubt is at the heart of the security laws’ enduring appeal

The Indian State has conceived itself as a 'security State', and as the police apparatus is heavily overburdened, the fabricated arrests of members of minority communities are sacrifices made to create the appearance of relative safety and a protective State.

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THE Counter Terrorism Committee ('CTC') of the United Nations ('UN') Security Council met in New Delhi in the last week of last month. It adopted the Delhi Declaration which is State-centric, and had little concrete suggestions to protect and enhance citizens' rights. The UN, as one wag underlined, was "nations united" against "people's rights".

India's debate on counterterrorism laws has been strongly shaped by the UN Security Council's efforts to implement and enforce Resolution 1373, the mandatory resolution adopted after the September 11, 2001 terrorist attacks under Chapter VII of the UN Charter. As human rights advocates have noted, the Security Council and its CTC have not been sufficiently attentive to human rights concerns in their efforts to monitor States' compliance with Resolution 1373.

In some instances, the Security Council and present committee appear to have directly enabled human rights violations by "pushing" States to demonstrate compliance with the resolution's antiterrorism mandate without simultaneously making sufficient efforts to ensure adherence with applicable human rights standards. For example, the 2008 amendment to the Unlawful Activities (Prevention) Act ('UAPA') explicitly references Resolution 1373 in its preamble. Even if the term "pushing" may be too sharp, it cannot be overlooked that the CTC is providing states with a legitimisation of oppressive laws.

The prevention and eventual eradication of terrorism is undoubtedly a complex task, and even well-intentioned efforts can backfire – and have backfired – along the way. However, the abuse of the UAPA as well as that of other counterterrorism legislation goes beyond being a mere side-effect.

Charges related to alleged "terrorism" are not solely made under the UAPA. Instead, chargesheets also invoke other laws that touch upon terrorism, such as the National Security Act, 1980, the Arms Act, 1959, the Armed Forces (Special) Powers Act, 1958, the Explosives Act, 1884, the Explosive Substances Act, 1908, the Criminal Procedure Code, 1973, the Indian Penal Code, 1860, the Prevention of Seditious Meetings Act, 1911, among others. In fact, many of these Acts cover the same crimes.

Abuse of anti-terror laws in India

For instance, the Indian Penal Code includes "security and public order crimes" such as sedition, and the offence of "promoting enmity between different groups" based upon identity and "doing acts prejudicial to the maintenance of harmony." The fact that the UAPA has been expanded in recent years therefore reflects a trend in which terrorism is painted as "a new form of danger that cannot be contained by ordinary law and order policing". That most of those arrested are either Muslims or advocates of Muslim's rights, if considered in the light of the disproportionate targeting of Muslim groups, shows that Islamic terror is being demonstrated as de-individualised and diffuse, working on the assumption that the enemy "could be everywhere and everyone".

Also read: 'An increasing tendency to use UAPA as the chosen legal weapon', finds PUCL's data-based study

The UAPA and other laws with counterterrorism provisions will continue to be invoked and abused. This is confirmed, for instance, in the research study titled 'Colonial Continuities: Human Rights, Terrorism, and Security Laws in India' published in the Columbia Journal of Asian Law (2006, Vol. 20, 1). It points to structural weaknesses in India's criminal justice system to explain this phenomenon. It argues that poorly trained police personnel and strained, inefficient courts cannot meet the actual demands of investigating and prosecuting serious crime; security laws help governments to paper over these weaknesses. As per the study, security laws have enduring appeal not because they make it easier to investigate and punish terrorist and separatist violence, but because they allow the state to pull individuals and groups out of circulation without having to prove wrongdoing beyond reasonable doubt.

Horrifying testimonies and reports exist about the incentive structures in place that promote arbitrary arrests, extrajudicial killings and staged convictions – in line with the findings of the study above, such structures ensure that police officers perform the story the state narrates. Therefore, the study notes:

"Internal oversight and accountability mechanisms tend not to be effective. Under state and central police laws, senior officers may dismiss, suspend, or reduce the rank of lower-ranked police officers who are negligent or unfit in the exercise of their duties or have committed one of several enumerated offenses. However, the offenses that subject officers to discipline tend to involve violations of superior officers' command authority, rather than violations of human rights standards."

In fact, law enforcement has been resorting to "extralegal" – or illegal – means since the inception of independent India. While efforts are being made to alter this incentive structure within the police, laws such as the UAPA hamper any such effort, and in fact aggravate the situation by providing a basis for police abuse. The study adds:

"[T]he use of special laws may itself reduce the political will to engage in the arduous, long-term effort to realize broader reforms, which are necessary to increase both the effectiveness of the criminal justice system and the overall level of human rights protection."

Notably, most of those arrested under the UAPA and the counterterrorism provisions of other laws belong either to religious minorities or are peace activists. In this regard, human rights lawyer and academic Surabhi Chopra, in her article 'National Security Laws in India: The Unraveling of Constitutional Constraints' published in the Oregon Review of International Law. (2015, Vol. 17) laments that:

"[H]armful consequences of security laws can easily be perceived as a minority issue. Human rights abuses by state functionaries using security powers might affect a large number of individuals, but in the Indian context they will only ever affect a tiny proportion of people."

Also read: Supreme Court must stop wanton abuse of UAPA

The Indian State has conceived itself as a 'security State', and as the police apparatus is heavily overburdened, the fabricated arrests of members of minority communities are sacrifices made to create the appearance of relative safety and a protective State.

It needs to be emphasised that it is the "appearance" of relative safety that is created. While it is a fact that India suffers from terrorism, including cross-border terrorism from Pakistan and other neighbouring countries, the arrests of minority groups and peace activists does nothing to counter this threat.

In fact, actual terrorism often takes a different form than what the government alleges and bases its counterterrorism laws on. For example, a 2008 report by India's Administrative Reforms Commission placed the need for "effective measures against the financing of terrorism and money laundering" as its second-highest priority.

While such crimes do exist, the amount used for such purposes is small both relatively and absolutely – in fact, as academic Kamala Kanta Dash calculates in her 2008 paper titled 'Counter-Terrorism and Police Community Engagement in India', "so small, proportionate to the size of India's black economy [and money-laundering by India's rich], that is [sic.] really does not merit special consideration."

India deems terrorism a threat to economic growth – the raison d'être of the modern Indian State. However, the existence of counterterrorism laws does nothing to prevent the threat of terrorism and protect the population from such.

Also read: UAPA: Descent from Rule of Law to Barbarism

Recommendations

Specify a universal definition of "terrorism"

In light of the absence of any banned Hindutva organisations versus the abundance of banned non-violent Muslim and leftist organisations, the plea is that the same approach be adopted for everyone and that the criteria for "terrorism" be transparent is falling on deaf ears. The term 'terrorism', if given an over-broad interpretative freedom, is easily used to construct threats to the imagined Indian nation as a whole without consideration to the legitimate and non-violent worries of marginalised sections of the society.

Mainstream human rights within counterterrorism efforts

As recognised repeatedly by, for instance, the Supreme Court and the UN Secretary General, terrorism flourishes as a response to government human rights abuses, and "[u]pholding human rights is not merely compatible with a successful counterterrorism strategy," but rather is an "essential element" in any successful effort to combat terrorism .

As written by the Coordination of Democratic Rights Organisations, a union of twenty civil liberties and democratic rights associations in India, in 2012: "Any serious attempt to solve peoples' anger and resentment against the government needs to grapple with the consistent failure of elected governments to address development issues. Simply banning organizations that raise issues of poverty or marginalization, however opposed to the existing government they might be, is nothing but short-term policy based in the curbing of Fundamental Rights."

Resolution 1373 does not affirmatively require States to heed human rights obligations, although subsequent resolutions have explicitly "call[ed] upon" and "reminded" States to ensure that antiterrorism measures comply with international human rights, refugee, and humanitarian law. The CTC's own legal expert has acknowledged that aspects of the antiterrorism laws enacted by states to comply with Resolution 1373 would inevitably "not be fully compatible with human rights concerns." In fact, the CTC initially took the position that its mandate did not encompass any human rights concerns at all.

In assessing compliance with Resolution 1373, each provision of a law must be evaluated, rather than the existence of legislation as a whole. India has referred to Resolution 1373 as a justification and has argued that it would be violating its international obligations if it did not pass counterterrorism legislation. However, this is used as a justification to pass a proposed Bill as a whole as is, rather than weighing whether each provision is required as per Resolution 1373.

Also read: The Unlawful Activities (Prevention) Act and a long way to justice

Inquire into the specifics of training programs of law enforcement and lawyers to ensure that these are in accordance with the spirit of the CTC.

The 2006 study referred to above cites an Indian lawyer, who explained, based on his experiences representing individuals accused under the erstwhile counterterrorism law, the Prevention of Terrorism Act, 2002: "[a] Judge of the Special Court firmly believes that he is a one-man army against terrorism…. [T]he Special Judge convinces himself so much that he is on an anti-terrorist mission that he refuses to see anything else." Police officers, on the other hand, operate within a system that clearly incentivises the fabrication of cases, for instance through arrest quotas and promotion based thereupon, as well as impunity for "mistakes" in the course of duty.

It is evident that more attention needs to be paid to the people who act upon laws. After all, a legal system is made up of more than only laws.