On 23rd May of year 2019, something unprecedented and extraordinary happened, only for second time in history of Indian Politics, first being the case with former Prime Minister Late Smt. Indira Gandhi.
The incumbent government returned to center of power, even more sturdily and robustly than earlier. The mandate of 2019 general election established that the voters have spoken for themselves clearly and firmly and had an unambiguous verdict.(1)
And with this absolute nature of mandate came absolute power and in words of Lord John Dalberg-Acton Power causes corruption and Absolute power causes absolute corruption.
As it was prophesized by many of the political activists and thinkers, soon the NDA-II government started flooding the parliament floor with such bills and legislations, which were draconian in nature and were unjustified, notable of them are RTI Amendment Bill of 2019, Abrogation of Article 370 without consulting local legislation of Jammu & Kashmir and UAPA Amendment Bill of 2019.
Unlawful Activities Prevention Act (Amendment) 2019 or famously, UAPA Amendment Act 0f 2019 was proposed in the Lower House of Parliament on 8th July, 2019 by Home Minister Mr. Amit Shah and was sent for Hon’ble President’s consent after 17th July 2019 when it was passed in Rajya Sabha too.
As soon the bill was proposed into the parliament, it caused fright and mayhem among Human Rights Activists and Opposition political leaders came forward vocally criticizing it. Leaders of opposition parties and lawyers argued that the legislation could be used to target political dissent against the government and would be causing infringement of civil rights of the citizens.
The latest amendment in the law proposes to empower the central government to designate an individual, a ‘terrorist’ if they are found committing, preparing for, promoting, or involved in act of ‘terror’.(2)
Original Legislation through The Years
Originally, the Unlawful Activities Prevention Act was passed by the Parliament in the year 1967, with the aim to provide more effective and actual prevention of certain unlawful activities of individuals and associations, like inciting individuals for secession, disrupting integrity of India or wanton vilification or attacks upon the religion, race, place of birth, residence, language etc of any particular group or class or upon the founders and prophets of a religion.(3)
This act has also been amended throughout the years in 1972, 1986, 2004, 2008, 2012 and the latest came in 2019.
The most crucial amendment came in year 2004 during regime of Manmohan Singh government, and was amended to define ‘Terrorism’ as a crime and to grant the central government the power to declare and ban organizations as terrorists.
The 2004 amendment gave unchecked powers to police and other authorities of interrogation and made it very arduous for an arrested person to get bail by insisting the court that prima facie the accused is innocent of the crime he /she is charged with.
Amendment of 2019
The latest amendment adds two noteworthy elements to the existing law.
First, it will allow the National Investigation Agency or NIA much greater breathing space to take control of cases that would otherwise fall under the domain of the police in individual states, which is then too, tolerable as the Constitution of India suggests an inclination towards vesting more powers in
centre than in state, which had caused constitutional experts like K.C.Wheare to classify the Indian structure as quasi-federal.
But it is the second change which will be really dreadful for Indian democratic structure as the amendments will allow the Central government to declare individuals as terrorists and not just organizations.(4)
In his speech in Lok Sabha after proposing this bill, the Home Minister Mr. Amit Shah argued on following grounds about the need of this amendment and need of designating individuals as terrorists and justified the deed of government using this vague argument that only such person needs to be feared of this act who are indulged in terrorism:
“The Act has a provision for the government to designate an individual as a terrorist if he/she is a terrorist or indulged in terrorist activities. Can there be two thoughts about this? If an individual commits an act of terror or takes part in same, shouldn’t he be designated as a terrorist? Also, an individual who helps to promote or prepare for terrorism should also be designated as a terrorist. I believe an individual who raises money to promote terrorism should also be designated as a terrorist. And then there are those who attempt to plant terrorist literature and terrorist theory in the minds of the young. Sir, guns do not give rise to terrorism, the root of terrorism is the propaganda that is done to spread it, the frenzy that is spread. And if all such individuals are designated as terrorists, I don’t think any member of parliament should have any objection.”
On other hand, section 15 of existing UAPA act defines terrorist act as an act committed with the intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.(5)
The above definition itself includes various things and is very broad in its scope and further amendment which includes propagation of terrorist theory and literature brings a higher degree of vagueness and ambiguity in the law.
Also the law fails to answer the question of why exactly there is a need to designate an individual as a terrorist as a provision existed in chapter II of the existing legislation for organizations which can be termed as terrorist organizations.
The intention behind this bill is also being questioned because in the chapter 4 of the existing law, there is provision to prosecute and punish such individuals who are involved in what this act defines as terrorist activity, in fact recently many activists and dissidents have been charged under same provisions.
Whereas the new amendment doesn’t have any such provision which specifies legal consequences of the person being designated as terrorist which seems as an attempt to keep the provisions ambiguous regarding the penal procedure.
So, the thing to ponder upon is what do exactly the designation of terrorist given to an individual is to serve. Not so well defined provisions would create loopholes in course of future proceedings and could also be used by government to target dissentful citizens which is clear-cut and direct infringement of Right to freedom of speech and expression.
The implications of a person wrongfully designated as terrorist could be severe than our imagination, specially we live in such society where the term terrorist is seen as a social stigma and associated with someone would cause to lose his job, society would outcast him, his landlord will throw him out, authorities would keep harassing him and everyone would look upon him with suspicion and wariness. This ultra-legal form of punishment would make a wrongfully accused person’s life into hell and would cause much trouble in daily course of life.
The second thing which is dilemmatic is what kind of thoughts and literature could be defined as terrorist literature and causes further ambiguity in the provisions.
Prima Facie, this thing reminds me of an episode from much celebrated Hindi novel MAILA AANCHAL by Fanishwar Nath Renu, when the doctor from the novel is imprisoned in post-independence India just for possession of Laal Kitab or Communist Manifesto.(6)
This episode of the novel is more than enough to make us think about the consequences of such ambiguous provisions as people from particular ideologies in name of promoting terrorism and frenzy can be charged under this bill.
Also, the recent happening in state of Jharkhand, the PATTHALGARHI Uprisings and consequential actions taken by government and authorities investigates into the ways in which such hazy and uncertain provisions could be misused.
Thousands of tribals were charged with sedition in an instance where they were exercising their rights the Constitution of India confers upon them.
Thus, in same manner the power to designate an individual as terrorist could be abused frequently by people in power and authority for gagging the dissentful ones.
Much controversial recent arrest of half a dozen activists and social workers is also an example of abuse of uncertain legislations. The arrest of Sudha Bharadwaj, Surendra Gadling and Varavara Rao among others in name of propagating Urban Naxalism is proof of the fact that the parent legislation itself could be misused terribly for silencing political differences and with new amendment it proves to be more lethal.
CONCLUSION
There are no second thought about the question that India does need tough laws and legislations for combating and tackling terrorism but the recent amendment in the Unlawful Activities Prevention Act can easily be exploited and abused for political gains.
This can serve as a weapon for delegitimizing the idea of dissent and do clearly contradict with the rights our Constitution confers upon us.
The Powerful needs to be considerate of the fact that its one of the primary duty is to safeguard the rights of the citizens and needs to be mindful of the same while legislating against terrorism.
The Governments should be reminded in words of Israeli politician and author, Natan Sharansky that, “Free Societies are those societies where right to dissent is protected” and obviously in some or other way Democratic nature and Constitution of India do aim towards a free and egalitarian society.
1.Khare, Harish, The 2019 vote: An intoxicating verdict, (The Hindu, 24th May 2019)
2.Vishwanath, Apurva, Explained: What are the UAPA Amendments, (The Indian Express, 4th Aug 2019)
3.Section 2(o) and Section 2(p) of UAPA 1967
4.Varadarajana, Siddhartha, Allowing the state to designate someone as terrorist is really dangerous, THE WIRE, 2nd August 2019
5.Section 15, Unlawful Activities Prevention Act, 2004
6.Maila Aanchal, Renu, Fanishwar Nath, 1954
Dhruv Vatsyayan
B.A.LL.B.(Hons), 2019-2024
Faculty of Law
Banaras Hindu University, Varanasi
Mobile- (+91)7320863840
Email- dhruv11vats@gmail.com
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