New Act UAPA: Absolute power to state

The UAPA Amendment Act widens the power of the state by enabling it to designate individuals as “terrorists” without following any new procedure and by providing the accused no effective means of redress.

Masood Azhar, founder of the Jaish-e-Mohammad.

ON August 14, the Government of India notified amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967, empowering itself to designate individuals as “terrorists” without providing them any effective redress. The sheer brazenness of these changes attracted considerable attention. Two constitutional challenges were filed before the Supreme Court within a few weeks. The constitutional issues raised are not entirely new since the amendments extend the existing provisions for organisations to individuals. In doing so, the amendments in fact prescribe no new procedure or consequence for individuals designated as “terrorists”, throwing up troubling questions about their purpose.

Under provisions imported from the Prevention of Terrorism Act (POTA) on its repeal in 2004, the UAPA empowered the government to ban organisations branded as “terrorist”. The government merely has to “believe” that the organisation is “involved in terrorism”, which is circularly defined as participating in terrorist acts, promoting terrorism, or being “otherwise involved in terrorism”. Once such a notification is issued, the organisation’s first remedy is to appeal to the Central government, the very entity that banned it. If its application is rejected, its only recourse under the UAPA is to appeal to a review committee, which neither has to disclose its reasoning nor decide on the application within any time limit.

With the 2019 amendment, the same provisions now apply directly to individuals. But while declaring an organisation as “terrorist” creates an array of criminal offences—from membership of an organisation to helping arrange meetings where a member of an organisation is speaking—declaring an individual a “terrorist” creates no new offence or punishment. What difference the designation makes to that person’s life or the government’s ability to prosecute him/her is left completely unsaid.

This is no doubt a disturbing lacuna, and potential explanations are equally worrisome. The amendment Bill, like several other Bills passed in the same session, was introduced and passed soon after without wide public consultation and scrutiny by a select committee. The Bill’s silence about its consequences could thus be a result of hasty drafting, which would, of course, be a gross dereliction of parliamentary duty in a matter impacting fundamental procedural rights. Or the silence could be intended, raising concerns that the amendment may enable courts to further read down rights while interpreting the other provisions of the UAPA.

For instance, the UAPA criminalises voluntarily harbouring a person after knowing that that person is a terrorist. If a person is designated as “terrorist”, would this allow courts to presume that others now “know” that he/she is a terrorist, and maintain charges against persons close to him/her, irrespective of how legitimate the designation is? Further, under the Act, “proceeds of terrorism” include property intended to be used “for the purpose of an individual terrorist”. Such property can be forfeited to the government regardless of who owns it and whether the “terrorist” has been prosecuted. Would the designation as terrorist thus allow the property of an individual, and those in her proximity, to be taken away merely on that ground?

Cause for concern

The true cause for concern about the amendment, hence, may lie in how it interacts with older provisions, which anyway grant the government extensive powers to prosecute a wide spectrum of individuals. To begin with, the definition of “terrorist act” encompasses far more than what is suggested in international instruments. An act that is committed using “means of whatever nature” and is likely to threaten India’s integrity or security—which could mean fiscal stability or even something as vague as “livelihood security”—would fall within the definition of a terrorist act. This allows the government ample room to prosecute even constitutionally protected activity: criticism of the state can be termed an act “likely to threaten” India’s sovereignty, and “means of whatever nature” has included pamphlets.

Further, persons barely linked to terrorist acts or organisations can still be brought within the UAPA’s ambit: by alleging that they work in nebulously defined “terrorist gangs” or “front organisations” and by charging them under expansively worded offences such as “supporting” a banned organisation and holding property that could be used by it. All these accused are then subject to longer periods of detention than in regular criminal trials, harsher restrictions on bail and even clauses that reverse the burden of proof if certain conditions are met, deeming them guilty unless they can prove themselves to be innocent. To add to this, the state does not even have to formally accuse individuals of being terrorists to attach their assets, prevent them from entering the country and prohibit funds and services being made available to them; the state’s “suspicion” that they are engaged in terrorism is enough.

Given the sweeping powers that the Indian state had before the 2019 amendments were enacted, it is hard to construe the changes as doing anything other than widening the Act’s sprawling net. The government’s claims in Parliament about the purpose of the amendments inspire little confidence. It asserted that it needed to ban individuals and not just organisations since terrorists keep starting new groups, a contention belied by the fact that the amendments do not confer on it any new powers to prosecute individuals.

The government justified the egregiousness of the changes on the grounds that a High Court judge sits on the review committee, for a “judicial review”. The actual process, of course, does not resemble anything judicial, with no requirement to follow any statutory procedures or even call the organisation to hear its case. The government went on to claim that an aggrieved individual could always approach regular courts, but what it does not mention is that doing so would likely render the individual liable to prosecution or arrest under some UAPA provision.

Outside Parliament, as reported by News18, Home Ministry officials gave further assurances, stating that if their “systems were robust for banning organisations, there is no reason to believe that they won’t be robust for banning individuals”. The robustness is evident from the fact that of the 42 organisations banned in the past 15 years, they could name only one that had gone before the review committee. Since these committees need not publicly disclose anything about their functioning, there is no way to verify who else has approached them and what processes they have followed.

In the absence of any such accountability, the government’s promises to Parliament that the amendments will not be misused fall flat. The Act specifies no procedures that the government must follow before arriving at its belief. The government even admitted in Parliament that it could and would sometimes have to announce designations based on circumstantial evidence alone.

A consistent refrain since the parliamentary debates in 1967, when the UAPA was first enacted, has been that extraordinary threats justify extraordinary procedures. Government representatives reasoned that when it came to tackling persons committing terrorist activities, how could anyone have a problem with designating them terrorists? This tautology, of course, overlooks the fact that what should be the conclusion of a fair process—the determination that someone is a terrorist—is taken as a starting point. As soon as this determination is made, an individual’s ability to contest this is extinguished effectively.

The first set of individuals designated by the government as terrorists include Jaish-e-Mohammed chief Maulana Masood Azhar, Lashkar-e-Taiba founder Hafiz Saeed, Lashkar-e-Taiba leader Zakiur Rehman Lakhvi and underworld don Dawood Ibrahim. It remains to be seen whether such declarations will enable the government to prosecute terrorists better and against which individuals it will use this power in the future.

Nitika Khaitan is a lawyer based in Delhi.