In his essay “Political Theology: Four Chapters on the Concept of Sovereignty,” the German political theorist Carl Schmitt elaborates on the concept of a ‘sovereign’ as the supreme authority that decides on exceptions. Schmitt’s philosophy explains that the state possesses the ultimate monopoly to take extreme actions in extraordinary situations. The state’s authority is unquestionable due to legitimate sovereign powers derived from the law. As a result, emergency powers and exceptional laws are tools used by the sovereign to maintain law and order in society. Schmitt’s definition of sovereignty blurs the distinction between normal and exceptional situations, granting extensive powers to the state to treat individuals according to its discretion in order to protect the state’s existence.
India follows the principles of liberal parliamentary democracy, yet some laws and enactments in its legal system deviate from these liberal values, aligning more closely with Schmitt’s concept of sovereignty. The UAPA serves as an example of how state institutions diverge from democratic norms through legalistic legislation, exacerbating the infringement of basic rights in India.
The UAPA, a detention law, aims to prevent unlawful activities of specific individuals and associations that pose a threat to India’s integrity and sovereignty. It grants extraordinary powers to government agencies to address cases where ordinary criminal laws are insufficient.
How UAPA was systematised?
In India, dating back to the British colonial era, a multitude of black laws have been used as tools to suppress dissent. Various reasons, such as terrorism, national security, and state integrity, have been cited as justifications for amending terror laws by successive governments. While there is a significant rise in UAPA cases under the BJP government, historical records indicate that previous regimes also contributed to shaping the UAPA into a legal instrument for dealing with territorial security. To comprehend this upward trend, it is essential to grasp the complete trajectory of the UAPA.
The timeline of the UAPA reveals that the act has undergone around five amendments: in 1967, 2004, 2008, 2012, and 2019, respectively. The majority of changes in the UAPA occurred during the Congress’s term, with the most recent amendment taking place under the BJP government.
According to the Coordination of Democratic Rights Organisation (CDRO), an association comprising 20 civil rights organisations, the term ‘unlawful association’ was initially used by the British Raj in the Criminal Law Amendment Act (CLAA) of 1908. The British administration enforced bans on several organisations to suppress the Indian independence movement. Post-1947, the government continued to employ these powers by enacting various terror laws to quell dissent.
The Sixteenth Amendment Act of 1963 was a pivotal moment for independent India, as it curtailed freedom of speech, assembly, and association. This amendment aimed to insert the term ‘reasonable restrictions’ into Article 19 to safeguard the ‘sovereignty’ and ‘integrity’ of the Indian nation-state.
In the aftermath of the India-China war and concerns over the regional party of Tamil Nadu (TN), Davida Munnetra Kazakam (DMK), the central government justified the sixteenth amendment in parliament to curb secessionism. This legislation empowered the union government to curtail fundamental rights. This paved the way for the enactment of the Unlawful Activities [Prevention] Bill (UAP Bill) in 1967 during the fifth Lok Sabha. The UAP Bill empowered the union government to ban organisations on mere suspicion, considering a range of activities as threats to the internal security of the state.
Despite debates opposing the passage of the UAP Bill, notable parliamentarians such as C.C. Desai and Surendranath Dwivedi criticised the bill. Nevertheless, it was approved in the assembly, granting the union government authority to impose reasonable restrictions on the right to association for any organisation deemed problematic.
In 2004, the Congress-led United Progressive Alliance (UPA) government introduced various provisions from the lapsed anti-terror laws Terrorist and Disruptive Activities Act (TADA) and the Prevention of Terrorism Act (POTA) in the amended UAPA. The 2004 UAPA amendment included the term ‘terrorist act’ from the expired POTA and introduced the concept of a ‘terrorist gang.’ Following the 26/11 terrorist attacks in Mumbai, the government further amended the UAPA in 2008. This amendment added two provisions to ban ‘unlawful associations’ (Section 2 of the UAPA amendment) and ‘terrorist organisations’ (Section 35 of UAPA amendment). These substantial changes endangered individual liberty.
As reported by The Hindu on 21 December 2012, the government amended the UAPA bill to include a clause on ‘economic offence’ that poses a threat to the economic security of the Indian state, defining it as a terrorist act.
The typography of India’s draconian laws
According to the legal historian A.G. Noorani, after India gained independence in the 1950s, the country experienced a continuous imposition of various national-level preventive detention laws, most of which have been recognized as tools used for state oppression. Laws like the Preventive Detention Act, 1950 (PDA), Defence of India Act, 1962 (DIA), Maintenance of National Security Act, 1971 (MISA), National Security Act, 1980 (NSA), TADA, 1980, and POTA, 2002, are among the acts enacted by successive governments to address perceived threats. While some of these draconian anti-terror laws have been repealed by past governments, certain provisions from these laws have been incorporated into the UAPA.
Time and again, the Indian government has formulated extraordinary laws on numerous occasions since the post-1947 period to combat immediate threats. Unfortunately, this persistent tendency to create extraordinary laws has now entrenched itself as a permanent feature of the Indian state. Schmitt’s frequently cited assertion, “Sovereign is he who decides on the exception,” is a reality of the successive governments that have subconsciously upheld as a way forward to deal with any ‘political circumstance’ that they label extraordinary in nature. Consequently, such extraordinary laws typically arise from an inability to navigate negotiations effectively with the public, which in turn creates a pathway for ‘democratic despotism’ in society.
The Harsh UAPA sections
Anushka Singh, a political scientist, elucidates in an article written in Economic and Political Weekly (EPW) that the UAPA is a strategically designed mechanism that grants the government “unremitting powers,” as stipulated in sections 43A and 43B, allowing police organisations to conduct searches and seizures of individuals they consider suspicious. Various sections in the UAPA contribute to its severity. For instance, sections 14 and 43D(1) generalize offences as cognizable, section 43D(2) extends the detention period significantly, section 43D(4) denies anticipatory bail to the accused, section 43E empowers the executive to presume guilt in the accused, and section 44 sanctions in-camera trials for the accused. These provisions of the UAPA bestow extensive authority upon the executive branch to determine the fate of the accused.
Singh also contends that although many provisions of the POTA were incorporated into the UAPA, the central government made a strategic omission with one particular section. Section 58 of the POTA contained a provision that could hold the police accountable for misusing the act. However, this provision was deliberately excluded from the UAPA amendment. This omission, seemingly insignificant, actually made the UAPA even more stringent than its predecessor, the POTA law.
Comprehending NIA and NCTC
In a contentious move, the government introduced the National Investigation Agency Act (NIA Act) on 31 December 2008, establishing the National Investigation Agency (NIA) to address significant national-level security threats. Subsequently, on 3 February 2012, the government issued another notification to create the National Counter Terrorism Centre (NCTC), a union-led entity tasked with investigation and intelligence input. The NCTC draws its authority primarily from the UAPA. This move enabled the agency to breach the jurisdictional boundaries of state governments, thereby granting the NCTC’s director the specific authority to ‘control and coordinate’ anti-terrorism measures across states. Consequently, the union government conferred exceptional powers to address UAPA-related issues that could potentially undermine the federal character of the Indian constitution.
Congress and BJP: Similarity of Positions
During a heated debate in the Rajya Sabha on 2 August 2020, the leader of the opposing party, Congress, P Chidambaram, voiced his opposition to the bill amending the UAPA 2019 amendment. He said, “Do not compare Hafiz Saeed with Gautam Navlakha, Varvara Rao, they are all activists.” Chidambaram argued that these activists do not promote violence and criticised the bill as “unconstitutional,” posing a threat to individual liberty. Navlakha and Rao are just a couple of the numerous human rights activists, educators, and students who have been detained under the UAPA, a draconian anti-terror law. The debate arose after the government included ‘individuals’ in the terror law, enabling central agencies to label any individual as guilty under the UAPA. In support of the bill, Amit Shah, the Union Home Minister from the ruling Bharatiya Janata Party (BJP), contended that terrorist acts are perpetrated by individuals rather than organisations. Consequently, the bill was passed in the parliament, enhancing the government’s authority to categorize individuals as terrorists.
Similarly, in 2008, when Chidambaram served as the Home Minister under the Congress government, he spearheaded the passage of an amendment to the UAPA following the 26/11 Mumbai terror attacks. He stated, “Broadly, what we are doing is imposing restrictions on the path of granting bail.” His argument centred on making imprisonment the norm over granting bail if the state deems it necessary.
In 2011, The Hindu reported through accessed files of the WikiLeaks US Cables, detailing a meeting held in New Delhi on 3 March 2009. In this meeting, Chidambaram expressed uncertainty about the constitutionality of the NIA to Robert Muller, the then-director of the Federal Bureau of Investigation (FBI). Despite viewing it as a new tool to combat terrorism in India, he acknowledged that the NIA’s powers could conflict with the authority of state governments and could potentially face legal challenges in Indian courts. He said in terms of empowering the NIA, he came “very close to crossing the constitutional limits.” This demonstrates that the amalgamation of the UAPA and NIA possesses the potential to exceed judicial boundaries due to its ‘extraordinariness.’
Repeatedly, the UAPA has undergone multiple amendments by different regimes, including the current BJP government. However, the overarching theme throughout the history of draconian laws in India is that successive governments have not learned from their previous actions. In Schmitt’s terms, the UAPA’s history is characterized by the increased powers vested in the executive branch to address situations where the sovereign becomes the ultimate authority in UAPA cases, all in the name of countering terrorism.
Jayant Pankaj is a Delhi-based freelance journalist. He writes on data analysis, privacy, political economy, communalism, and so on. @Pankajwaa
