Counterterrorism paper UAPA final

1. INTRODUCTION

The Global counterterrorism strategy was adopted by the United Nations on September 2006which reaffirmed the General Assembly resolution 60/158. It states that the countries’ counterterrorism measures must be in consonance with international human rights law, international humanitarian law and international refugee law. this paper aims to analyze the whether indian counterterrorism law is in line with its obligation under international human rights law. this is discussed in three folds: firstly, a brief history as to the counter terrorism laws in India is outlined; secondly, with the focus on the Unlawful Activities Prevention Act, 1967 (hereinafter referred to as UAPA) the compliance is analysed and finally, recommendations are suggested by the author in line with India’s obligations

2.BACKGROUND

Anti-Terrorism laws in India have always been enacted in the backdrop of a terrorist act. This part of the paper deals with an overview of such laws and agencies with deals with the terrorism.

• Brief history of counterterrorism laws in India

For a brief time, acts of terrorism were dealt as “law and order” issues and thus fell within the ambit of the Indian Penal Code, Criminal Procedure Code and Unlawful Activities Prevention Act, 1967. With the terrorist activities becoming more geographically pervasive in addition to the role played by external actors, the need for specific or special enactments dealing with such issues was realised. In the aftermath of the assassination of Prime Minister Indira Gandhi, India’s first specialised law on terrorism the Terrorists and Disruptive Activities (Prevention) Act, 2002 (hereinafter referred to as TADA) was enacted. The act enumerated offences which could be construed as “terrorist act” by the regional government. The act assumes admissibility of the confession made to a police officer under the following conditions: recorded in writing or visual evidence could be produced; confession made voluntarily and the police officer is of the rank of a superintendent or above. Furthermore, the draconian bail conditions and detention formed the focal points of the act. The act was critiqued for vesting indiscriminate powers with the police which lead to extrajudicial killings, arbitrary detentions and arrests being made, torture being inflicted on the person among other human rights violations. Although the constitutional validity of TADA was upheld by the Supreme Court in Kartar Singh vs. State of Punjab, the court had commented on the possibility of abuse and had provided certain procedural safeguards. Owing to the mounting pressure on the then national government, the act was repealed in May 1995.With the repeal of the TADA, many of the provisions were transposed into the Criminal Law Amendment Bill,1995. However the bill was not given effect.

The 123^rd report of the Law Commission of India analysed the need for a specialised legislation for combating terrorism and had proposed the Prevention of Terrorism Bill, 2000. The proposed bill was strongly criticised on the grounds that it was a mere modification of the TADA and the subsequent Criminal Law Amendment bill. However, in the wake of the attack on the parliament in December 2001, the Prevention of Terrorism Act (hereinafter referred to as POTA) was enacted in March 2002. Much like its predecessor, the POTA was critiqued on the following grounds: Firstly, the act put forth a broad definition ( in comparison to that of TADA) of terrorist act which if abused, criminalises constitutional guarantees such as freedom of speech and expression; secondly, the burden of proof required the organisation or the individual to prove their innocence which was contrary to the international law; thirdly, the pre-trial detention period was extended till filing of the charge sheet; fourthly, lack of judicial review and finally, the act assumes the admissibility of the confession made to the police officer which lead to extrajudicial killings, torture among many recorded human rights violations.Owing to the rampant abuse of the legislation by targeting political opponents and minorities, the act was repealed on September 2004. At this juncture it becomes imperative to note that the scope of the paper is limited to the Unlawful Activities Prevention Act and thus precludes analysis of the Armed Forces Special Powers Act.

• UAPA overview

Subsequent to the repeal of POTA and in the wake of the 26/11 Mumbai attacks , the Unlawful Activities Prevention Act, 1967 was amended in 2008 to include terrorist acts. Firstly, the act expands the scope of terrorist acts to include the possibility of an attack by any means. Secondly, pre-trial detention was restored. Thirdly, the act confers wider powers to the law enforcement. The act was further amended in 2013 to tackle the transnational aspect of terrorism. Financial and other economic offences regarding planning, conducting and financing the act were also brought within the ambit of the act

The act was finally amended in the year 2019. It was enacted due to the difficulties faced by the National Investigation Agency (hereinafter referred to as NIA) in “investigating and prosecuting terrorism related cases”. Furthermore the amendment was brought in with the view to align the act with international obligations. The amendments made to the act are fourfold: firstly, powers are vested with the central government to designate an organisation or an individual as a terrorist (organisation); secondly, powers are vest with the Director General (DG) of NIA to approve the seizure of property; thirdly, lists out ranks of officers who are competent to investigate offences and finally, the International Convention of Suppression of Nuclear Terrorism has been added to 2^nd schedule in interpreting the definition of terrorist act. 

A Public Interest Litigation (PIL) was recently filed by Sajal Awasthi challenging the amendment on grounds that it is unconstitutional ( freedom of speech and expression, right to equality and right to life) and violative of international conventions ( ICCPR and UDHR).

3.ANALYSIS:

The analysis of the amendment act would be discussed in five folds: firstly, the concept of lone wold terrorism in the light of UAPA is discussed; secondly, the definition of the term ‘terrorist act’ is being critiqued; thirdly, if the government has unfettered powers to designate a person or organization as terrorist is analysed; fourthly, the freedom of speech of expression that this amendment lacks is discussed; and finally, the due process and fair trial procedures are discussed.

• Lone wolf terrorism

The UAPA can be characterized as bringing the concept of lone wolf terrorism within the ambit of counterterrorism laws. In criminal law jurisprudence, the mens rea is often associated with an individual. The rationale for such amendment can be deciphered from Minister of Home Affairs speech in the parliament ( which translates as “the reason for designating an individual as terrorist is to prevent them from changing the organization’s name and continue with such activities). Specific reference was made to Hafeez Saeed, the master mind behind 26/11 Mumbai attacks and Masood Azhar, Jaish-e-Mohammad leader. Although it is a laudable move by the government due consideration must be given to fact that if misused can violate the fundamental rights of an individual. Jeffery.D.Simon when analysing the topic of lone wolf terrorism and methods to tackle them, suggests the use of internet to be looked at. When dealing with or controlling an individual’s use of the internet, often gets tangled with the right of privacy, which is enshrined in the constitution of India and international conventions as well. However, the Supreme court’s judgment in K.S. Puttaswamy (Retd) vs. Union of India(which held that right to privacy is an intrinsic part of right to life under Article 21 of the constitution) and Shreya Singhal vs. Union of India ( which read down section 66A of the information Technology Act as violative of the constitution and held that restricting freedom of speech and expression on an online platform is goes against the provisions of Article 19 of the constitution) seems to be a step in a right direction.

• Definition of “terrorism”/ “terrorist act”

Neither the amendment nor the principal act provides for a concrete definition for the term “terrorist act” and more specifically the usage of the phrase “by using bombs, dynamites….or by any other means of whatever nature likely to cause”has been the primary argument of opposition. However, the concept of ejusdem generis, which is present both in Indian jurisprudence and international law which seeks to give meaning to general words in order to determine the legislative intent, can be applied to this particular case.  This phrase has to be interpreted in context of the words preceding to it. The Maharastra High Court while interpreting the term ‘other unlawful means’ under the Maharastra Control of Organized Crime Act had applied the principle of ejusdem generis and held that the term must be construed in accordance with the objective of the act.

• Designation as terrorist

The UAPA vests the central government the power to list an individual or an organization as terrorist. The UNHCR commenting on the listing and delisting process had highlighted that although listing individuals and organizations for their involvement in terrorist activities might be a reasonable effort against terrorism, such procedures in order To comply with human rights must be fair and transparent. The UNHCR, additionally prescribes certain criteria for it to qualify as fair and transparent: based on clear criteria, uniform standard of evidence, independent review mechanism. The contention against UAPA is hinged upon the powers of the central government to list and delist individuals as terrorists which is held to be violative of article 14 of the Constitution of India (which deals with right to equality) and Article 14 and 7 of the ICCPR and UDHR respectively . The process of listing and delisting in India is dealt by the counterterrorism and counter radicalization division of the Ministry of Home Affairs. Furthermore, a person not satisfied with the decision of the government can appeal to the Home Secretary and a decision on the same is to be reached within 45 days. A further appeal can be lodged with a review committee which would comprise of a retired or current judge of the High court (as the chair person) and two officers of the government.

• Freedom of Speech and Expression

Freedom of speech and expression is ingrained in the constitution of India vide Article 19(1)(a) and in international conventions ( ICCPR and UDHR, both being ratified by the country). Section 35(3) of the UAPA mentions four conditions based on which an organization is deemed to be involved in terrorism which include “promoting or encouraging terrorism or if otherwise involved in terrorism.” This leads us to the analysis of expressing dissent and incitement to terrorism. The UNHCR notes that while incitement to terrorism is a legitimate grounds for limiting freedom of speech and expression, it must satisfy the test of necessity and proportionality. Furthermore, the report notes the growing trend of barring statements which glorify terrorism but does not necessarily incite terrorism and vague terms such as “promoting terrorism” are not to be used.

• Fair trial and Due process

 Even when charged with an offence under the anti-terrorism laws, person charged have the right to be presumed innocent until proven guilty and must be subjected to a fair trial and these will be discussed in two folds. Firstly, following the footsteps of TADA and POTA, the recent 2019 amendment on UAPA makes no changes to the burden of proof placed on the defendant.

Secondly, access to fair trials includes right to hearing before a competent and independent tribunal and prescribing to the principals of natural justice. However, in practice, by taking into consideration the judgments passed by the UAPA Tribunal (headed by a high court judge) often seem to deviate from the principals. Evidence against the individual are often presented to the judge in a sealed cover and is not presented to the defendant. This hampers the right of the defendant to know the evidence against him and violates the principle of Audi alteram partum. 

4 RECOMMENDATIONS

On analysing the various aspects of the UAPA and its amendment in 2019, the following recommendations by the author are made:

• The effort of the government to bring lone wolf terrorism within the ambit of the anti-terrorism laws is laudable. However, as mentioned above the way to tackle lone wolf terrorism is by internet surveillance. This is a double edged sword. A clear distinction is to be made between expressing opinion or dissent and inciting terrorism.
• The act introduces certain vague terms such as “ promoting terrorism”. Although applying the principle of ejusdem generis, a clear criteria as to what constitutes as “promoting terrorism” would leave less room for misuse.
• The act presumes guilt on the accused which is against the ICCPR and the constitution of India. Coupled with this issue is the defendant not being made privy to the documents which are submitted as evidence against them. This hampers the fair trial rights of the accused. Although the author concedes to the fact that national security and terrorism is an issue that needs to be tackled and such must be done by taking into consideration the human rights of the individual. The author suggests in-camera proceedings and the information be made privy to the defendant then as a solution.
  
  5.CONCLUSION

The anti-terrorism laws in India have been enacted as a response to an event. The legislation in consideration was the Unlawful Activities Prevention Act, 1967. The act was recently amended in 2019 which raised questions as to its constitutional validity and its compliance with international human rights law. It was contended that the act violates not only the rights vested with an individual under the constitution via Article 14, 19 and 21 but it was also in contravention to international conventions i.e. ICCPR and UDHR. The paper analysed the amendment act in five folds. Firstly, the concept of lone wolf terrorism although being addressed in the act, poses questions as to the powers of the government to use internet surveillance. Secondly, the definition of the term in the act was discussed which is to be interpreted in the light of ejusdem generis. Thirdly, the power of the government to designate an organization or individual was discussed. Fourthly, the debates between right to dissent and freedom of speech and expression with respect to incitement of terrorism was analysed and finally, the due process rights was discussed. The act although a step in the right direction can be subjected to misuse. The recommendations proposed (clear criteria as to what constitutes promoting terrorism; in camera proceedings) by the author can be considered as a stepping stone for tackling the lacunae in the legislation.