Indian Parliament recently passed an amendment to Unlawful Activities (Prevention) Act (Hereinafter UAPA), which allows the executive to designate Individual as ‘Terrorist without any trial or conviction through independent judicial proceedings. It is indeed, one of the most dangerous ‘Security laws’ in India. The proscription and blacklisting of Individuals as Terrorist or ‘enemy of the State’ is not new phenomenon in the history. For many years in the history, the authoritarian States had consistently used the method of legal sanction on individuals with the purpose to assert control over the political narrative and curb dissent that were considered to be threatening to existing political structures. The South African State in the apartheid times, legislated the ‘Suppression of Communism Act, 1950 and Terrorist Act, 1962 to target the political dissidents and disfranchise the anti-apartheid political movements. In India, the parliament had previously enacted the Unlawful Activities (Prevention) Act, which enabled them State to designate any organization as terrorist group or outfit and subsequently take measures to prevent the harm. However, this amendment has paved a larger hole in the existing and remaining constitutional protections available to the Individual. The UAPA amendment broadened more powers in the hands of the government to target any individual on vague grounds of financing, promoting, possessing literature or teaching terrorist literature to the people.
This article is written with the purpose to make the viewers aware about the scope and extent of the UAPA amendment and critically analyze its implications on human rights and constitutional rights of the individual. Before addressing the provisions of the bill and scope of the law, the author firstly attempts to address the phenomenal rise of ‘national security states’ throughout the world and its effect on liberal constitutional values and human rights. In the Part III, the author critically deconstructs the UAPA amendment. In the Part IV, the author endeavor to discuss the problematic nature of allowing the State to designate individual as terrorist and its impact on human rights protected under the constitution and international human rights law.
The Rise of National Security States in the Global Order
For a very long time, the countries governed with strong liberal values and commitments to the rule of law were the ardent defenders of human rights. The dominant global order was in favour of human rights of the individual and continuously preserved the democratic space from the authoritarian dark forces. In the aftermath of grave atrocities and oppression witnessed in the IInd World War, the international institutes supported the strong democratic values, independent judiciary and constitutional protection to human rights. However, the dimensions of the nation states dramatically altered after the 9/11 terrorist attack. The States started to pave a new path for the creation ‘National Security State’ in the midst of terror and chaos created after the 9/11 terrorist. There is no concrete definition of ‘National Security States’ but it is mostly understood by its nature of exercising State power. The ‘National Security States’ justifies more executive powers to the State and at the expense of civil liberties with the purpose of protect the national security. However, the State practice of various countries clearly shows that under the veil of national security doctrine, the National Security State constantly defends the human rights violation of the individuals and targeting the minorities as ‘terrorist suspect groups. Consequently, the State enables the violence against ‘suspected terrorist individuals’.
The forefront countries who campaigned for greater human rights protections started to openly endorse the blatant human rights abuses under the category of ‘counter-terrorism operations’. Despite of well documented human rights abuses in Guantanamo bay and CIA’s secret torture chambers in different parts of the world, nonetheless the emerging structures of ‘National Security States’ refused to condemn the torture and other grave violations of human dignity. On the other hand, these States actively supported the U.S government’s growing rhetoric on ‘National Security’ at the expense of human rights values. The Post 9/11 rhetoric on ‘War Against Terrorism’ was a blessing in order to justify the use exceptional authoritarian measures against any political discourse threatening the existing power structures. This political rhetoric further weaponized to delegitimize the documented widespread and systematic human rights perpetrated by the armed forces in conflict areas of Kashmir. The Indian armed forces still evades any accountability for its human rights abuses by blaming on the ‘cross border terrorism’.
The existing mainstream conversation are often premised on justifying the need for ‘special or extraordinary measures to combat the terrorism’, which started to dominate the security policy in the aftermath of 9/11 terrorist attack. The contemporary security politics and State policies justifies the preemptive intervention in order to prevent any future harm arising from the terrorist attack. The existence of imaginary crisis was an indispensable part in the creation of any national security states, in order to rationalize the broader legal powers to avert any possible attack by the potential terrorist suspects. However in most of counter terrorism policies, the broader state power satisfy the procedural fairness and constitutes blatant violation of human rights.
The Labeling of Terrorist and UAPA Amendment, 2019
The Unlawful Activities (Prevention) Act, 1967 has been already considered as one of the most draconian security laws, which have been criticized for consistently violating due process and fair trial rights to the suspects charged for committing terrorist acts. Yet, even by the standards of draconian ‘national security laws’, the new amendment to the Unlawful Activities (Prevention) Act, 2019 stands out as one of most oppressive laws insofar in India. Prior to the amendment, the UAPA only permits the union government to designate any organization as a ‘terrorist organization’ and limited the criminalization only to the members and active supporters of the unlawful organization, who had committed the acts of terrorism. Now onward, the UAPA amendment, 2019 will allow the executive government can designate any individual as ‘Terrorist’ at the whims and fancy of the ruling government. Since, there is no statutory definition for ‘terrorist’, the UAPA amendment provides legal authority to the State to designate an individual as terrorist without satisfying due process or fair trial rights guaranteed in the constitution.
Although the implication or consequence of designating an individual as terrorist is unclear, there is imminent threat that the proscription of individual as terrorist will have the effect of ‘civil death’. The designation of individual per se does not constitute conviction, preventive detention, fine or disqualification. However, the State clarified that the legal consequence of designating individual as terrorist will be provided in the rules of the UAPA. There is clear uncertainty as to the nature of legal consequences, but the most possible legal consequences will include the powers to freeze the assets, a ground for preventive detention and the curtailment of the freedom of movement, speech and expression. However, in any situations the punishment or legal consequences of being designated individual as a terrorist without trial is inherently problematic and constitute multiple breaches of constitutional rights and international human rights law.
The Problematic Nature of Designating Individual as Terrorist- The Open Gateway to the Land of Human Rights Abuses
The designation or proscription of individuals as terrorist has significant impact on the civil liberties of the Individual. Although, the executive government argues that power of proscription will preemptively reduce terrorist attack (Not substantiated with any empirical research) and is efficient tool in combating terrorism. Nevertheless, the targeted sanction of individual prior to trial violates the individual’s due process right, right to liberty, freedom of speech and expression,etc. Within the Indian context, it is still unclear the effect of designating individual as terrorist, however, the parallel experience in U.K shows that the intended legal consequences might be broad measures such as freezing of assets, financial prohibition, regulating the freedom of movement, curfew periods, preventive detention etc.
Firstly, the designation of individual as terrorist is a breach various principles of right to fair trial. The State cannot impose a punishment without adjudicated by an independent and impartial judiciary. The proscription of individual is a purely an executive action, even if, the government might justifies that the intended legal consequences are not per se criminal punishment, nevertheless the proscription of individual has equal effect as similar of legal punishment and seriously impairs multiple human rights of the designated person. Furthermore, there is no judicial oversight over the exercise of power to designate of individual as terrorist. The only remaining remedy is the affected person can appeal to review committee, which would be headed by a sitting or retired high court judge along with other two retired secretaries.Undoubtedly, this remedy cannot be considered as adequate and effective remedy against the designating of individual as terrorist. The members of review committee do not satisfy the criteria of being ‘independent and impartial tribunal’. Since, the central government has absolute authority in appointing, fixing the salary and terms of the service. Therefore, the review committee cannot be deemed or expected to impartial in performing their judicial function of reviewing whether an individual can be designated as ‘terrorist.’ Their decisions might be subjected to pressure and intimidation from the government. As a result, the aggrieved person is left with no effective judicial remedy against the status of ‘terrorist’.
Secondly, the proscription of individual as terrorist violates due process and right to fair trial. The Indian constitution guarantees due process rights to every person including individuals suspected of terrorist activities. The human rights protection includes the right to presumed innocent until proven guilty, which also guaranteed under Aticle 14 of ICCPR. However, the UAPA amendment proscription of individual places the burden on the accused and compels him to prove innocent. This legal position is extremely problematic in regards to ‘equal arms principle’. The State have resources and efficient machinery to collect and submit the evidence to the court but on the other hand the designated individuals might not always possess such large resources to prove his innocence. More importantly, there are no standard legal measures or evidence procedure given in the process of designating individual as terrorist. Therefore, this UAPA amendment is a complete breach of due process and right to fair trial guaranteed in Indian Constitution and International Human Rights Law.
Thirdly, the most anticipated legal consequences of designating Individual as terrorist would be the possibility the non-warrant search, seizing the assets of the individual and i the government may impose the temporary freeze on the person’s property. The legal consequence of UAPA amendment has far-fetching effect on individual’s right to liberty and right to privacy. Article 21 of the Indian Constitution and Article 17 of International Covenant on Civil and Political Rights (ICCPR) categorically proclaim the protection of a person right fair trial. The asset freezing has been considered as precautionary administrative sanction against an individual with the purpose to prevent the person from financing the terrorist activities. Undoubtedly, the freezing asset has significant impact on an individual’s life, such as the person’s financial measures are absolutely curtailed in the process of freezing assets. The absolute State authority to restrain individuals from accessing disputed property prior to the trial breaches his right to free trial including right to be heard. The State may argue, it is a temporary in nature and such asset freezing is necessary in context of preventing financing of terrorist activities. Nevertheless, the State’s pre-trial asset freezing is serious intrusion to the individual’s right to be heard prior infliction of punishment.
Lastly, It is a no secret that the State policy has dis-proportionally targeted against Muslims and Dalit in India through abusing existing security law. There is systematic targeting of Muslims and application of terrorist or security laws against Muslims in India. The principle of equality and non-discrimination is jus cogens (non-derogable norms) of international human rights law. The designation of individual as terrorist and profiling of individuals on the indicator of religious identity is direct violation of principle of non-discrimination. The counter terrorism measures or laws cannot discriminate individuals on the basis of person on the ground of ethnic, race, nationality, religion and colour. The existence of underlying political rhetoric in the contemporary Indian along with the systematic oppression and human rights abuses against Muslim’s definitely places this law as one of the dangerous legal tool to suppress and disfranchise the religious minorities more in the country.
The severe impact of preemptive security measures to predict the potential suspects in order to combat terrorism was protracted after the 9/11 terrorist attack. However, the idea of pre-crime was coined by Philip K. Dick in 1956 science fiction short story “Minority Report”, in which the author talk about a society which has eradicated the crimes by predicting the crime through use of precogns- human who have precognition ability- and thereby detaining the potential offenders. This is the rationale philosophy behind the increasing counter-terrorism laws introduced throughout the world, even in the countries that is governed strong liberal values. This underlying philosophy of this government will unprecedentedly infringe the fundamental human rights of the individual, who is suspected to commit terrorism or potential suspect. The UAPA, 2019 amendment also relies on the same philosophy of taking security preemptive measure to prevent ‘dangerous’ individuals from committing terrorism acts, through designating them as ‘terrorist’. The cynical purpose behind the amendment is to legally and politically legitimize the increased profiling and surveillance of the Muslim community. The preemptive security laws and counter-terrorism policies based on coercive measures has mobilized and strengthened prejudice against Muslim identity, this political rhetoric was extensively used a powerful weapon tool to disfranchise and oppress the Muslim identity in India.
Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be “dangerous.” Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power.
Adhil Saifudheen is a student in Law in Jamia Millia Islamia, New Delhi. Adhil is an award winning law student who participated in many national and international competitions including the 9th Nelson Mandela World Human Rights Moot Court Competition, Geneva , United Nations. He writes on Law and state policies.