By Diksha Singh
“Adherence to the constitutional principle of substantive due process is an integral part of our collective response to terrorism. We must uphold the right of fair trial for all individuals, irrespective of how heinous their crimes may be.”[i]
Terrorism persists as an iniquitous operation in society that has shaken the entire human conscience. It has impaired lives and knocked down economies with its sole purpose of achieving political or religious goals by jeopardizing peace and security. Terrorism’s most distinctive characteristics remain its capacity to instil frustration, anger, fear and threat in the minds of the people. It seeks to undermine the establishments and mar the belief of the people they have in their governments. Terrorism poses a grave threat to the security of a nation. Countries across the globe are struggling to win this battle against these immoral organizations.
To combat this evil, harsh laws and imposition of severe punitive measures are a prerequisite. In recent times, there has been a pressing need for stringent laws against terrorism due to the changing and horrific practices adopted by the terrorists. However, it is imperative to demarcate a line between human rights and coinciding existence of national security laws which, the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) fails to comply.
Amendments to the UAPA, 1967
The UAPA was amended via the Unlawful Activities (Prevention) Amendment Bill, 2019 which was passed by both the Houses of the Parliament. Before the enactment of this Bill, only organizations could be designated as terrorists but with the inclusion of this amendment, the Centre now has the absolute power to designate an individual as a terrorist, following a procedure which is similar to that of an organization. The Centre has also conferred itself with the power to declare the name of these individuals who have been designated as terrorists under the Official Gazette. The Act seeks to put the rights of an individual and an organization on the same pedestal.
The government brought this amendment with the aim to designate individuals as terrorists as an organization is run by individuals after all. Even after notifying them as terrorist organizations, the individuals still carry on with their practices as they move from one organization to another. Moreover, there are even plenty of individuals who do not work under any particular organization(s) and carry these operations single-handedly.
Violation of Basic Human Rights
Arbitrary action is described as one that is irrational and unreasonable and one that solely rests upon the unruly will of the State.[ii] Consequentially, absolute discretion uncontrolled by the guidelines is the antithesis to the rule of law.[iii] Differing from this rule S. 35 and 36 of the impugned Act has conferred absolute discretionary powers upon the Central government. S.35 empowers the government to declare and notify individuals as terrorists under the Official Gazette. S.36, on the other hand, talks about notifying an individual as a terrorist which is in the hands of a review committee which again is constituted by the Central government giving it full power. Such unmitigated powers are destined to be misused by those who stifle dissent. The 2019 Amendment to UAPA poses a direct threat to the fundamental rights guaranteed under Part III of the Constitution of India. S. 25 of the Act uses the words “has reason to believe” that vests unregulated power in the hands of the investigating officer. Mere suspicion of the government is enough to designate an individual as a terrorist without any substantive reason.
This unregulated power fails to uphold the principles of natural justice. The doctrine of natural justice encompasses the right to be heard before an adverse action is taken. The UAPA contains no provisions for providing an opportunity of being heard to the individual before being designated as a terrorist. Right to reputation is a basic fundamental right guaranteed under Art. 21 of the Constitution.[iv] The Amendment Act can tarnish the reputation of an individual without even his guilt being proved. A closer look at the statistics provided by the National Crime Records Bureau substantiates this contention. According to Crime in India 2015 statistics the rate of acquittal under UAPA in 2014 was 73 per cent. Further, in 2015, the conviction rate under UAPA was merely 14.5 per cent. This goes on to demonstrate the truth of how a multitude of innocents has been prosecuted under this harrowing act. The Act which aims to protect the citizens and the security of the nation is itself posing a great threat to humanity.
In Kartar Singh v. State of Punjab, the Supreme Court while determining the constitutionality of particular Sections of TADA, laid down certain guidelines in order to regulate the powers conferred on the authorities and required that the procedure be fair and reasonable. The guidelines laid down the necessity of having a “free atmosphere” or “use of language” of the person being examined, giving him an equal opportunity to be heard. The accused had to be presented before the magistrate “without delay”. One of the most significant guidelines was the formation of a screening committee to review the prosecutions under TADA. Conversely, the UAPA fails to uphold these guidelines by designating an individual as terrorists on mere suspicion.
Moreover, S. 43E of the Act imposes a reverse burden on the accused and states that the Courts shall presume the guilt of the accused unless the contrary is proven, thus violating the basic principle of the criminal law of “innocent until proven guilty”. By the virtue of this Act, the investigating officers and the police have the right to search, seize and arrest the accused based on personal knowledge and suspicion without sufficient judicial authorization. Hence, transgressing the very basic fundamental Right to Privacy of an individual.
Anti-terrors laws like TADA and POTA have already been in controversy for being misused by the authorities. The by-product of these legislations was a large number of prosecution and convictions since these laws provided admission of the confessions made before the police as conclusive evidence. UAPA is taking the same path. The definition of terrorism under the Act deems an act as an act of terror if it causes or is likely to cause death or injuries to any person, loss, damage or destruction of property, detains or kidnaps any person, etc. The definition is so broad and vague that it is almost inevitable to be misused. The incorporation of phrases like “likely to threaten” and “likely to strike terror in people” are highly extensive, giving a free license to the authorities to arrest anyone under the garb of it.
Weakening the federal structure
In State of Rajasthan v. Union of India, SC notes the observation of Granville Austin wherein he is of the view that “the Constitution of India was perhaps the first constituent body to embrace from the start what A.H. Birch and others have called Cooperative Federalism”. The constitution confers greater power on the Centre, yet it does not give the notion that the States are mere appendages to the Centre. States are supreme within the spheres allotted to them and the Centre cannot tamper with their powers which is clearly spelt out through the provision of the Three Lists under Schedule VII of the Constitution of India.
The Act thus seeks to dilute this principle of state autonomy by shifting the power from the State to the National Investigating Agency. The NIA now has the power to investigate and seize property with the mere permission of the DG of NIA, taking away the State’s duty at hand. The State has exclusive power to legislate in matters affecting the public order. UAPA abrogates the State’s power to legislate in the matter of Public Order by conferring those powers on NIA.
Arrests to counter dissent
The recent arrests of four journalists (Meeran Haider, Safoora Zargar, Masrat Zehra and Peerzada Ashiq) under the UAPA is a classic example of how this draconian law can be misused by the authorities to crackdown dissenting voices. The reason for these arrests was “anti-national social media posts”, “publishing fake news”, “posts glorifying terrorism” etc. The Editors Guild has categorized this as “gross misuse of power” and an “indirect way of intimidating journalists”. What was feared is shaping into reality. Anyone who raises a voice can be booked under the UAPA with the mere suspicion and on the full discretion of the government.
Conclusion
Countering terrorism is an upright thing to do but the legislature has got the wrong end of the stick by pursuing this goal at the cost of violation of basic human rights. The act stands in direct violation of international conventions like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Article 14(2) of the ICCPR stipulates that presumption of innocence is a universal Human Rights principle. Furthermore, Article 10 of the UDHR specifies that every person is entitled in full equality to a fair and public hearing by an unbiased tribunal. Even the apex court has time and again relied on these conventions to strengthen our fundamental rights. The UAPA acts as an instrument to crush dissent and the freedom of speech and expression under the garb of public order, hence constricting the rights that are most fundamental to our Constitution. It is not only the accused that gets targeted but more often than not their family, friends, relatives and the community too face fear and ostracization. While the intention of the government to fight this evil with stringent laws is noble, it is imperative that prior research and rumination is conducted on the likelihood of the Act being misused and the steps that can be taken to resolve it.
[The author is a second-year student from National University of Study and Research in Law, Ranchi.]
[i] Justice K.G. Balakrishnan, Former Chief Justice of India, Terrorism, rule of law and human rights, The Hindu, December 16, 2008.
[ii] Om Kumar v. Union Of India , AIR 2000 SC 3689.
[iii] Sharma Transport v. Govt of A.P, AIR 2002 SC 322.
[iv] Id.
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