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Friday, Aug 16, 2019

The UAPA amendments: What it really means

The changes empower the government to designate individuals as terrorists, merely if it believes so

analysis Updated: Aug 09, 2019 19:24 IST
Nitika Khaitan
Nitika Khaitan
On August 8, 2019, the President assented to amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967
On August 8, 2019, the President assented to amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967(PTI)
         

On August 8, 2019, the President assented to amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967, introducing a set of changes to an already draconian law. The most fundamental of these changes empowers the government to designate individuals as terrorists, merely if it believes so, leaving little to no recourse for them to protest their designation. Strangely, the amendments do not explicitly detail any new consequences of this change, making its purpose and its potential use hard to fathom.

When it was first enacted, the UAPA exclusively dealt with offences related to unlawful activities. It empowered the government to declare certain associations ”unlawful”, and broadly defined “unlawful” to include acts intended to disrupt the country’s sovereignty, cause disaffection against India, among other things. The Act had some safeguards—the government had to specify grounds for its ban, set up a tribunal of a high court judge to determine sufficient cause for the ban, and publish the Tribunal judgment in the gazette.

In 2004, anti-terror provisions were added to the UAPA, mostly drawn from the infamous Prevention of Terrorism Act (POTA) which had just been repealed. The government could now notify organisations as “terrorist” without giving reasons, or implementing any of the nominal safeguards available to “unlawful” associations. Individuals are now vulnerable to the same fate.

This is a new low, even for a law as riddled with constitutional infirmities as the UAPA. Since the Act criminalises membership of “unlawful” and “terrorist” organisations, coming forward to appeal the ban has always meant making oneself available for prosecution. Further, “terrorist act” has always been defined much more broadly than what is suggested in various United Nations instruments, enough to criminalise all kinds of constitutionally protected activity—including, in some cases, the mere possession of pamphlets professing ideologies disliked by the State.

Designating individuals as ‘terrorists’ will channel the full force of the Act on one person. Just as was the case with organisations pre-amendments, the government will not even need to believe that people have participated in a “terrorist act” to designate them terrorists. In a circular logic typical of the Act, an individual can be deemed to be “involved in terrorism” if the government believes she is preparing for, encouraging or “otherwise involved in terrorism.” This gives the government full discretion to designate an individual howsoever tenuous an “involvement” in terrorism as it desires, without needing to disclose reasons. As has been the case with organisations designated as terrorist, an individual’s only recourse will be to appeal to the very body that imposed the ban; and then, to apply to a review committee which has no time-limit for deciding, and does not need to reveal its reasoning.

Despite introducing such a far-reaching change, the amendments don’t spell out any effects of this change. They do not create any new offence, punishment, or procedure for individuals who are designated terrorist. (In contrast, the existing Act specifies a host of offences related to organisations that are designated terrorist). Moreover, they are silent on how designating individuals as terrorists might affect existing offences. For instance, harbouring a person, knowing such person to be a terrorist, is punishable under the Act. Once an individual is designated a terrorist, would this be read as others always “knowing such person to be a terrorist”? Such a reading might allow almost anyone living with the individual to be prosecuted, regardless of whether the individual was legitimately declared to be “terrorist”. Further, holding property intended to be used by, or providing funds to, an “individual terrorist” for any purpose are also punishable under the Act. It is again unclear whether the amendments intend designated terrorist to be read as individual terrorists under these sections. Since the government can forfeit such property without prosecuting the terrorist, the amendment might permit the government to take away all the property of a designated terrorist, even if their guilt is never proven in a trial.

The central government already has wide-ranging powers to attach assets related to any person “suspected to be engaged in terrorism”, prevent their entry into India, and prohibit funds or services being made available to them. The need for additional powers by designating individuals as terrorists is thus hard to discern. In fact, once an organisation is designated “terrorist,” the UAPA already allows a wide range of people to be prosecuted, including non-members—supporting the banned organisation in any way, or even helping organise meetings where the organisation’s members are speakers, is criminalised.

The purpose of these amendments, thus, as well as its potential use, remain dangerously uncertain. Assurances from government that they will not be misused are belied by the UAPA’s history, and the fact that abuse and misuse are inherent in provisions that eliminate accountability.

Since its inception, the UAPA has provided enough grounds for a robust constitutional challenge. Banning associations without full-fledged judicial scrutiny, and criminalising mere membership of banned organisations, have already been held unconstitutional by the Supreme Court in the context of other laws. UAPA accused are subject to longer detention periods, harsher bail restrictions, and clauses that reverse the burden of proof if certain conditions are met--all cumulatively violating constitutional guarantees of due process. It remains to be seen whether the latest amendments to the UAPA might finally provide the much needed impetus for its constitutionality to be examined.

Nitika Khaitan is a law graduate based in Delhi

The views expressed are personal

First Published: Aug 09, 2019 19:24 IST

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