COMMENTARY LAW


ABHINAV SEKHRI10 September 2019

KEVIN ILANGO FOR THE CARAVAN

On 8 July, the union home minister Amit Shah introduced an amendment to the Unlawful Activities (Prevention) Act in the Lok Sabha. The Act is an anti-terror law which penalises groups by labelling them either as “unlawful associations” or “terrorist organisations.” One of the important changes to the law that the amendment made was that it allowed the central government to label an individual a terrorist if it “believes” that is the case.

The amendment was hastily passed without any scrutiny by a parliamentary committee, and came in to effect on 14 August. As Shah pointed out in parliament, many countries across the world have similar legislations to deal with lone-wolf terrorist acts. But this does not take away from many worrying portents central to the amendment. A closer look at the details of the statute, or the lack thereof, reveals that the Act has procedurally vested unfettered power in the central government to control the process of labelling anyone a terrorist.

This line of critique overshadows three specific characteristics of the amendment, which make it crystal clear that the government has acted with a blatant disregard for the constitutional compact between the state and a citizen. These are, specifically, the ambiguity about which authority in the government decides whom to label a terrorist and on what basis, how this information gets communicated to the labeled individual and the law’s silence about the consequence of being labelled a terrorist. The government has not provided satisfactory details about these elements in the amendment, and instead simply emphasised the amendment’s importance to national security, in line with its larger political narrative. It seems that future conversations around the “terrorist” label will hinge solely upon the information that the government hands out at its convenience—treating Indians not as citizens of a democracy, but as if they are subjects of a police state.

Firstly, the law is amorphous in setting the terms for the central government to confer, or withdraw, the “terrorist” label. It is unknown which human actors of the government will be involved in taking this call. Will the union home minister or the home secretary be the sole authority to make this decision? Or will a committee be formed to take the call? We do not know how many people will be involved in this process. Will the investigating agency—the National Investigating Agency or the state police—first propose branding someone a terrorist before the central government vets the demand? Will the government periodically review any of the labels that it confers?

It is also unknown what standards apply to decide whether a person should be called terrorist. The amendment states that the central government may decide to assign the label “only if it believes” that an individual is a terrorist. The law mentions no parameters to guide this belief. So, what belief system will drive the decision makers? Will it be similar to the standards of proof that apply in a judicial process, in accordance with a 1994 Supreme Court judgment that was passed in context of the process for labelling an unlawful association?

The choice to keep the labelling process faceless and shapeless in the statute erodes the accountability of those wielding power, and underscores the imbalance of power between state and subject. Certainly, the central government can answer all of these questions later through administrative circulars and rules to supplement the working of the Act. But by taking that route, the government will add more layers of complexity to the law—for the citizens, there will be one more set of notifications and rules to check to access information that should ideally be far easier to access.

The second overlooked concern about the amendment is that while it conceals details about the labelling process, it prescribes a public announcement to declare a person as a terrorist. It does not require the government to send a letter to the person that it wants to brand a terrorist. Instead, it directs the government to issue a notification in the Gazette of India—a newspaper that people from few professions ever read. This mechanism was already in place for associations and organisations. But associations and individuals differ in countless ways—for one, individuals do not have the organisational ability, the staff or the money to manage legal cases.

The legislators seem to have proceeded with the amendment as if the new Act will only be used to convict the likes of Masood Azhar, the chief of the Pakistan-based militant group Jaish-e-Mohammed. Indeed, Azhar was among the first four to be designated a terrorist under the amended law, by a Gazette notification issued on 4 September, along with the Lashkar-e-Taiba members Hafiz Saeed and Zaki-ur-Rehman Lakhvi, and the underworld don Dawood Ibrahim. But that will likely not be the case. Historically, the UAPA has not secured many convictions in court. It has instead been used as a means to subject individuals to lengthy pre-trial detentions and, more recently, to persistent media vilification. For over a year now, the media has been vociferously branding those with a different ideology from the ruling party as “urban Maoists” and “urban Naxals.” While introducing the UAPA amendment bill in the Lok Sabha, Shah, too, said, “Those who work for urban Maoists will not be spared.”

The media will now have legal basis to call someone a terrorist even though that person might not be convicted of a single crime. The burden of proof would lie entirely on the person whom the government wants to brand a terrorist because the law does not have a procedure for them to challenge the government’s claim before the announcement is made in the Gazette. The central government’s bully pulpit is now not only the media, but the larger state machinery itself.

The third worrying characteristic about the amendment makes this obvious—nowhere does it describe what follows once an individual is labelled a terrorist. Maybe this is an error resulting from hasty legislative drafting. Or, perhaps, it is exactly what the government wants—by keeping the consequences of employing the terrorist label undefined, the law can allow the imagination of investigative agencies to run riot, and confer legal sanction to their prejudices. If there is an incident of violence, will the police accuse a person the government has branded as a terrorist or any other suspect based on the police’s investigation? The choice for the former seems obvious to me.

Every law in the realm of security and crime holds the potential to be of great value to society. But it can also be an instrument to oppress the civil liberties it was designed to protect—to this end, the manner in which the amended UAPA can be used is equally worrying. By making crucial information about the law opaque and difficult to access, the government’s legislative techniques are not of a democratic state answerable to citizens, but of a colonial sovereign ruling over its subjects.

ABHINAV SEKHRI is a lawyer practising in the courts of Delhi. His primary interests are criminal law and procedure.