The burden of proving that one is not a terrorist will be on the individual who is designated a “terrorist” by the central government under the amended Unlawful Activities Prevention Act, 1967. The amendments will allow the label, which is reserved for convicts, to be extended to individuals accused of or suspected to involved in terror activities.
The Lok Sabha on Wednesday passed the Unlawful Activities (Prevention) Amendment Bill, 2019, which seeks to give the Centre the power to designate not just organisations but also individuals as terrorists, if they are found committing, preparing for, promoting or involved in an act of terror.
The original law, enacted to prevent certain unlawful activities of individuals and associations and for dealing with terrorist activities, gives powers to designate an organisation that commits or participates in acts of terrorism, or prepares for terrorism, or promotes or encourages terrorism, or is otherwise involved in terrorism as “terrorist organisations”. The amendment Bill simply replaced “organisations” with “organisations/individuals” in Sections 35-38, which deal with designation as terrorists.
According to the Bill, the designation is to be notified by the government in the official gazette and the onus will be on the individual to seek a review to satisfy the government that the individual is not a terrorist. The law does not require any other offences to be filed against the individual to declare him/her a terrorist. The law also does not specify any process for the designation.
To be denotifed from the gazette as a terrorist, an individual can make an application to the central government. If the application is rejected, the person can seek a review by a special committee set up by the government.
The law, however, does not prescribe a time limit for the government to set up such a committee or a process for the committee to decide the application.
Opposition parties, lawyers and activists have criticised the proposed amendments, citing potential for misuse.
“The government is taking over judicial function. I can only be called a terrorist after a court convicts me. It cannot be done on the mere feelings of the government or suspicion,” AIMIM MP Asaduddin Owaisi has said in Lok Sabha.
Advocate Abhinav Sekhri said, “It is bad enough that organisations are called terror outfits without due process. Now to add individuals to the law is worse. Organisations and individuals are treated differently under the Constitution.”
Individuals, specifically citizens, have fundamental rights and freedoms under the Constitution and are guaranteed due process and liberty unlike organisations.
The concerns about the UAPA amendments echo those related to amendments to the National Investigation Agency Act, 2008, which were recently passed by Parliament. Drug peddling, human trafficking and cyber terrorism have been added to the list of offences in which the NIA can intervene.
According to advocate Mehmood Pracha, “There were proposals from the NIA earlier, too, to emulate US agencies on the lone wolf theory. But in the India context there is no requirement.”
Owaisi and NCP MP Supriya Sule said the amendments contravened the federal structure as they allowed NIA to bypass local police to raid property in cases being investigated by the anti-terror agency.
“The fact that someone is designated a terrorist exponentially increases his chances of being booked under other serious offences. A trial for terror offences and conviction can be done away with if one were to be simply be labelled a terrorist through a government order,” said Alok Prasanna, a senior resident fellow at Vidhi Centre for Legal Policy.
The amended UAPA will also empower officers of rank of NIA inspector to investigate terror crimes. This was originally reserved for officers of rank of deputy superintendent of police or equivalent.
Home Minister Amit Shah on Wednesday cited the backlog of cases in the NIA and fewer DSP-level officers to allow inspectors to deal with anti-terror cases.
“The Act will be misused, and will meet the same fate as TADA or POTA. There was massive misuse even at the SHO level. POTA was misused for settling personal scores. The same can now be misused by corrupt officials,” Pracha added.