1.1 INTRODUCTION
“No man can be grateful at the cost of his honour; no
woman can be grateful at the cost of her chastity and no nation can be grateful
at the cost of its liberty.” -Daniel O’Connell
The dictatorial rule of the British for almost 200 years was identified as wretch oppression as well as the exploitation of the people of India and after such oppression; if the people think that democracy was given to them as a gift by the English then they have a very wrong concept of it. The reality is somehow different and freedom was snatched from the British. The people of India were kept destitute for their basic rights such as the right to speech and expression, right to self-determination, etc which were later considered as the fundamental rights of people in a democratic country. The forefathers of India fought for such rights and held them as the foundation of democracy.
Globally, there are four categories of government formation such as democracy, oligarchy, dictatorship, and monarchy. The difference between democracy and the other three is that it prioritizes civil liberties as it is for the people, of the people, and by the people. Precedence to fundamental rights, the existence of rule of law, the absence of arbitrary laws, and the protection of life and liberty, lie only in the heart of a democracy. However, this foundation of rule of law and democracy topples when the government authorizes unaccountable laws that confer despotic and unfathomable powers to the state, which jeopardize the rights and liberty of the citizens and one such act is UAPA (Unlawful Activities Prevention Act, 1961).
The Act was there since 1967, and then in 2004, it was amended as the Terrorist and Activity Prevention Act. Subsequently, The Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) and Prevention of Terrorism Act, 2002 (POTA) were revoked in 1995 and 2004. With time a need was felt for some stringent terrorism laws and thus a separate chapter was introduced as ‘Terrorist Activities’ and was kept under chapter IV in the 2004 amendment. Therefore, in 2008, 2013 and 2019, three amendments has been done to the act.
1.2 WHICH IS WORSE FOR CITIZENS’ FUNDAMENTAL RIGHTS
AND LIBERTY: TERROR OR ANTI-TERROR LEGISLATION?
All the time we have seen Government disseminating this myth that strict law can only conquer terrorism which might not be true according to the trends in India. Past experience has shown that whenever the Indian Government has introduced any rigorous laws against terrorism it has resulted in the violation of fundamental rights which were intended to be protected by such laws. Thus, laws like UAPA have proved to be more worrisome for the common Indian citizens than for those people for which these laws were made.
The amendments made to TADA and POTA were considered to be crucial laws for countering terrorism but the result had shown different outcomes. For example under POTA, 4,349 cases were registered out of which only 1,031 were arrested and only 13 convictions were made. On 14th May 2005, this information was provided by the then Home Minster in the Rajya Sabha. Talking about TADA, by June 30 1994, 76,166 people were arrested out of which only 843 were convicted. Therefore, 1.11% was the conviction rate of TADA and eventually, these laws were blue-penciled for being only mere pieces of legislation and persecuting only those sections of people who were vulnerable and victims of gross injustices.
1.3 THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT
BILL, 2019
On 2nd
August, 2019 the Indian Parliament passed the Unlawful Activities (Prevention)
Amendment Bill, 2019. Three provisions were kept in the amending bill by which
the government could attain unbounded powers.
The status
quo was altered on August 2nd, 2019, when the parliament passed the Unlawful
Activities (Prevention) Amendment Bill, 2019. There are three primal provisions
in the amending bill through which the government has aspired to attain
unlimited powers.
1.3.1 DISCRETION TO NAME INDIVIDUALS AS TERRORISTS —
Section 35 of
the UAPA Act was amended by which the government can declare through the notification
any ‘individual’ as a terrorist as well as can add the name of such person in
schedule 4 of the Act. As a result of this, the alteration seems to be
harmless, but the act might be full of irregularities.
Before
granting such extensive powers to it, the government’s main job was to justify
bringing these provisions. The public was to be informed of the need to label
any individual as a “terrorist.” However, the government gave it a
beautiful shot by claiming that the authority of identifying any ‘group’ as a
terrorist organisation was insufficient to punish lone terrorists, which is why
declaring individual persons as terrorists, was necessary. Despite the fact
that the UAPA Act of 1967 already included ten provisions (16-24A) reserved
expressly for prosecuting “lone terrorists” and “members of a
terrorist organization.”
Furthermore,
one of the critical points that arose was how many lone-wolf assaults had
occurred in the past that prompted this administration to label someone as a
“terrorist.” Also, how many similar terrorist acts have occurred in
which the logistics, planning, and execution of the activity were not carried
out under the auspices of an organisation? So, if the government already had
the right to prohibit any organisation and punish its members individually, why
did it wish to buy a plethora of antidotes for the same disease? Isn’t there a
risk of overdose?
1.3.2 CHALLENGE TO CONSTITUTIONALITY
The mere existence of an enabling law is not enough to restrain the personal liberty of a person. Such a law must also be “just, fair, and reasonable.” The court established the golden triangle of the constitution and held that a law depriving a person of ‘personal liberty’ has not only to stand the test of Article 21 but also Article 14 and Article 19.
The bill of UAPA modifies section 35(2) which provides that the government can declare any person as a terrorist even on the mere belief that such an individual is associated with terrorism. The bill allows that there will be no FIR, no charge sheet filed, and no trial in the court of law. It is one of the most illogical provisions of the bill.
Another question is when the government will declare someone to be a “terrorist.” If the answer is before the trial, the government is committing a huge mistake because our criminal justice system has a rule that a person is “innocent until proven guilty.” As a result, labelling someone as a terrorist before they are proven guilty of terrorism by a judicial court would be contrary to the principles of the justice system and hence unconstitutional. In S. Nambi Narayanan v. Siby Mathews, the courts consistently upheld the right to reputation as an integral aspect of the right to life under Article 21. The government violates a person’s right to reputation by labelling them as terrorists through an open notification in the official gazette.
1.3.3 Adds Fuel To The Fire Of Misuse
True,
anti-terror laws have a history of oppression, but what allows for this
oppression is a subject that is rarely discussed. The clauses of such amending
bills that lay forth, for example, ‘if the government believes,’ ‘urgency,’ and
‘security danger’ have plainly given the government endless powers, they blur
the boundaries of the state, allowing for more flexible application of certain
laws. Finally, it leads to the government deploying anti-terror laws in
everyday occurrences that ‘it deems’ are against the country’s public order and
integrity.
Indian courts that have taken attention to such flagrant misapplication have also objected to the deployment of special anti-terror laws in regular cases where conventional penal laws can be effective. In Kartar Singh v. State of Punjab, the Supreme Court ruled that unless an accused’s alleged actions could be characterized as a “terrorist act” in “letter and spirit,” he should not be punished under anti-terror laws and should instead be tried in regular courts under conventional penal laws.
In Hitendra
Vishnu Thakur v. State of Maharashtra, the court further stated that
“terrorist activity does not simply arise by causing disruption of law and
order or public order.” The consequences of the proposed action must be
such that they extend beyond the capacity of ordinary law enforcement agencies
to deal with them under ordinary penal legislation.”
1.3.4 REPERCUSSIONS OF NAMING A PERSON AS A TERRORIST
Citizens of a democratic state do not expect their governments to create legislation that reduces them to mere “scarecrows” for “birds of prey” to use as “perch.”When a person is labeled a terrorist by the government, he is deemed such in society even before a court condemns him; a permanent stain on the person’s reputation is cemented. “According to Article 21 of the Constitution, the right to reputation is a subset of the right to life of a citizen.”
However, for the victim of the government’s naming and shaming ploy, this right would become meaningless. Also, how would the government refund or compensation if this individual is later proven to be innocent? His family has already been shunned by society. What are the options for dealing with the lifetime stigma that comes with being labelled a terrorist?
1.3.5 Seizure Authority without State Police
Permission—
Section 25 of the UAPA Act has been amended to state that if the inquiry is performed by an official of the National Investigation Agency (NIA), the Director-General of the NIA must approve the seizure of such property. This is antithetical to our country’s democratic roots since it directly violates the notion of cooperative federalism. It concentrates policing power. For example, if an NIA investigator wishes to confiscate any property in the state of Assam, he or she can do so without even consulting the state police.
1.4 CONCLUSION AND SUGGESTIONS
It is a
well-known fact that when it comes to combating terrorism, there are no
opposing voices. This country’s 1.38 billion people are united in their
opposition to terrorism. Thus, the goal of these emphasising arguments is not
to impede terrorist investigations or convictions, but to ensure that the
investigations are fair and impartial, and that the rudiments of democracy be
preserved.
Certain
amendments to the bill should be made-
• To repeal
the modification to the UAPA Act that gives the government authority to label
someone a terrorist, given that there are already numerous procedures for
punishing individual members of an illegal organisation.
• Avoid
statements like ‘if the government believes’ since they lack a clear focus and
end up handing the government boundless powers. The government can punish even
silent protests or dissent if it “believes” it is against India’s
“interests.”
• Form a committee to monitor human rights violations during the prosecution of an accused in a terror case, etc.
Bisma Bashir is currently pursuing LLM in Constitutional Law from Lovely Professional University, Phagwara, Punjab
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal
Readers may submit his/her blog for publication. Click Here to submit your Manuscript
References
- Albert Venn Dicey, The
Introduction to the study of Law of the Constitution (8th ed., 1915).
- Democracy and human rights, UN UNDP & UNHCR
(2013).
- Prajjwal Tyagi and Ishita Yadav – Secord Year, B.A.
LL.B. University of Petroleum and Energy Studies, Dehradun.
- Pranav Kaushal,
Rule of Law under Indian Constitution (March 11, 2023), https://lawcorner.in/rule-of-law-indian-constitution/.
- S. Nambi
Narayanan v. Siby Mathews, (2018) 10 SCC 804.
- Kartar Singh
v. State of Punjab, (1994) 3 SCC 569.
- Hitendra
Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602.
- Judicial Response towards Terrorism (March 11, 2023), https://shodhganga.inflibnet.ac.in/bitstream/10603/93639/6/chapter%205.pdf.
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1.1 INTRODUCTION
“No man can be grateful at the cost of his honour; no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty.” -Daniel O’Connell
The dictatorial rule of the British for almost 200 years was identified as wretch oppression as well as the exploitation of the people of India and after such oppression; if the people think that democracy was given to them as a gift by the English then they have a very wrong concept of it. The reality is somehow different and freedom was snatched from the British. The people of India were kept destitute for their basic rights such as the right to speech and expression, right to self-determination, etc which were later considered as the fundamental rights of people in a democratic country. The forefathers of India fought for such rights and held them as the foundation of democracy.
Globally, there are four categories of government formation such as democracy, oligarchy, dictatorship, and monarchy. The difference between democracy and the other three is that it prioritizes civil liberties as it is for the people, of the people, and by the people. Precedence to fundamental rights, the existence of rule of law, the absence of arbitrary laws, and the protection of life and liberty, lie only in the heart of a democracy. However, this foundation of rule of law and democracy topples when the government authorizes unaccountable laws that confer despotic and unfathomable powers to the state, which jeopardize the rights and liberty of the citizens and one such act is UAPA (Unlawful Activities Prevention Act, 1961).
The Act was there since 1967, and then in 2004, it was amended as the Terrorist and Activity Prevention Act. Subsequently, The Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) and Prevention of Terrorism Act, 2002 (POTA) were revoked in 1995 and 2004. With time a need was felt for some stringent terrorism laws and thus a separate chapter was introduced as ‘Terrorist Activities’ and was kept under chapter IV in the 2004 amendment. Therefore, in 2008, 2013 and 2019, three amendments has been done to the act.
1.2 WHICH IS WORSE FOR CITIZENS’ FUNDAMENTAL RIGHTS AND LIBERTY: TERROR OR ANTI-TERROR LEGISLATION?
All the time we have seen Government disseminating this myth that strict law can only conquer terrorism which might not be true according to the trends in India. Past experience has shown that whenever the Indian Government has introduced any rigorous laws against terrorism it has resulted in the violation of fundamental rights which were intended to be protected by such laws. Thus, laws like UAPA have proved to be more worrisome for the common Indian citizens than for those people for which these laws were made.
The amendments made to TADA and POTA were considered to be crucial laws for countering terrorism but the result had shown different outcomes. For example under POTA, 4,349 cases were registered out of which only 1,031 were arrested and only 13 convictions were made. On 14th May 2005, this information was provided by the then Home Minster in the Rajya Sabha. Talking about TADA, by June 30 1994, 76,166 people were arrested out of which only 843 were convicted. Therefore, 1.11% was the conviction rate of TADA and eventually, these laws were blue-penciled for being only mere pieces of legislation and persecuting only those sections of people who were vulnerable and victims of gross injustices.
1.3 THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT BILL, 2019
On 2nd August, 2019 the Indian Parliament passed the Unlawful Activities (Prevention) Amendment Bill, 2019. Three provisions were kept in the amending bill by which the government could attain unbounded powers.
The status quo was altered on August 2nd, 2019, when the parliament passed the Unlawful Activities (Prevention) Amendment Bill, 2019. There are three primal provisions in the amending bill through which the government has aspired to attain unlimited powers.
1.3.1 DISCRETION TO NAME INDIVIDUALS AS TERRORISTS —
Section 35 of the UAPA Act was amended by which the government can declare through the notification any ‘individual’ as a terrorist as well as can add the name of such person in schedule 4 of the Act. As a result of this, the alteration seems to be harmless, but the act might be full of irregularities.
Before granting such extensive powers to it, the government’s main job was to justify bringing these provisions. The public was to be informed of the need to label any individual as a “terrorist.” However, the government gave it a beautiful shot by claiming that the authority of identifying any ‘group’ as a terrorist organisation was insufficient to punish lone terrorists, which is why declaring individual persons as terrorists, was necessary. Despite the fact that the UAPA Act of 1967 already included ten provisions (16-24A) reserved expressly for prosecuting “lone terrorists” and “members of a terrorist organization.”
Furthermore, one of the critical points that arose was how many lone-wolf assaults had occurred in the past that prompted this administration to label someone as a “terrorist.” Also, how many similar terrorist acts have occurred in which the logistics, planning, and execution of the activity were not carried out under the auspices of an organisation? So, if the government already had the right to prohibit any organisation and punish its members individually, why did it wish to buy a plethora of antidotes for the same disease? Isn’t there a risk of overdose?
1.3.2 CHALLENGE TO CONSTITUTIONALITY
The mere existence of an enabling law is not enough to restrain the personal liberty of a person. Such a law must also be “just, fair, and reasonable.” The court established the golden triangle of the constitution and held that a law depriving a person of ‘personal liberty’ has not only to stand the test of Article 21 but also Article 14 and Article 19.
The bill of UAPA modifies section 35(2) which provides that the government can declare any person as a terrorist even on the mere belief that such an individual is associated with terrorism. The bill allows that there will be no FIR, no charge sheet filed, and no trial in the court of law. It is one of the most illogical provisions of the bill.
Another question is when the government will declare someone to be a “terrorist.” If the answer is before the trial, the government is committing a huge mistake because our criminal justice system has a rule that a person is “innocent until proven guilty.” As a result, labelling someone as a terrorist before they are proven guilty of terrorism by a judicial court would be contrary to the principles of the justice system and hence unconstitutional. In S. Nambi Narayanan v. Siby Mathews, the courts consistently upheld the right to reputation as an integral aspect of the right to life under Article 21. The government violates a person’s right to reputation by labelling them as terrorists through an open notification in the official gazette.
1.3.3 Adds Fuel To The Fire Of Misuse
True, anti-terror laws have a history of oppression, but what allows for this oppression is a subject that is rarely discussed. The clauses of such amending bills that lay forth, for example, ‘if the government believes,’ ‘urgency,’ and ‘security danger’ have plainly given the government endless powers, they blur the boundaries of the state, allowing for more flexible application of certain laws. Finally, it leads to the government deploying anti-terror laws in everyday occurrences that ‘it deems’ are against the country’s public order and integrity.
Indian courts that have taken attention to such flagrant misapplication have also objected to the deployment of special anti-terror laws in regular cases where conventional penal laws can be effective. In Kartar Singh v. State of Punjab, the Supreme Court ruled that unless an accused’s alleged actions could be characterized as a “terrorist act” in “letter and spirit,” he should not be punished under anti-terror laws and should instead be tried in regular courts under conventional penal laws.
In Hitendra Vishnu Thakur v. State of Maharashtra, the court further stated that “terrorist activity does not simply arise by causing disruption of law and order or public order.” The consequences of the proposed action must be such that they extend beyond the capacity of ordinary law enforcement agencies to deal with them under ordinary penal legislation.”
1.3.4 REPERCUSSIONS OF NAMING A PERSON AS A TERRORIST
Citizens of a democratic state do not expect their governments to create legislation that reduces them to mere “scarecrows” for “birds of prey” to use as “perch.”When a person is labeled a terrorist by the government, he is deemed such in society even before a court condemns him; a permanent stain on the person’s reputation is cemented. “According to Article 21 of the Constitution, the right to reputation is a subset of the right to life of a citizen.”
However, for the victim of the government’s naming and shaming ploy, this right would become meaningless. Also, how would the government refund or compensation if this individual is later proven to be innocent? His family has already been shunned by society. What are the options for dealing with the lifetime stigma that comes with being labelled a terrorist?
1.3.5 Seizure Authority without State Police Permission—
Section 25 of the UAPA Act has been amended to state that if the inquiry is performed by an official of the National Investigation Agency (NIA), the Director-General of the NIA must approve the seizure of such property. This is antithetical to our country’s democratic roots since it directly violates the notion of cooperative federalism. It concentrates policing power. For example, if an NIA investigator wishes to confiscate any property in the state of Assam, he or she can do so without even consulting the state police.
1.4 CONCLUSION AND SUGGESTIONS
It is a well-known fact that when it comes to combating terrorism, there are no opposing voices. This country’s 1.38 billion people are united in their opposition to terrorism. Thus, the goal of these emphasising arguments is not to impede terrorist investigations or convictions, but to ensure that the investigations are fair and impartial, and that the rudiments of democracy be preserved.
Certain amendments to the bill should be made-
• To repeal the modification to the UAPA Act that gives the government authority to label someone a terrorist, given that there are already numerous procedures for punishing individual members of an illegal organisation.
• Avoid statements like ‘if the government believes’ since they lack a clear focus and end up handing the government boundless powers. The government can punish even silent protests or dissent if it “believes” it is against India’s “interests.”
• Form a committee to monitor human rights violations during the prosecution of an accused in a terror case, etc.
Bisma Bashir is currently pursuing LLM in Constitutional Law from Lovely Professional University, Phagwara, Punjab
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal
Readers may submit his/her blog for publication. Click Here to submit your Manuscript
References
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