India in recent weeks has been abuzz with some legal changes that the National Democratic Alliance (NDA) government has been pursuing with respect to the national security framework. One of these changes is via The Unlawful Activities (Prevention) Amendment Bill, 2019 (UAPA Bill) which was passed in the Lok Sabha last week. The UAPA Bill aims to amend the Unlawful Activities (Prevention) Act, 1967 (UAP Act). This Act is a detailed Central legislation that seeks to provide rules and procedures to deal with terrorist and other unlawful activities that affect the territorial integrity and sovereignty of India. The UAPA Bill essentially proposes to make four changes to the existing UAP Act:
- It allows the Central government, subject to certain procedural requirements and conditions, to designate an individual as a terrorist. As per the existing UAP Act, the Central government can only designate organisations, and not individuals, as terrorists.
- It empowers the Director General of the National Investigation Agency (NIA) to grant approval of seizure or attachment of property associated with terrorism when the said agency investigates the case. The existing UAP Act requires the Central government to obtain prior approval from the highest police officer in a state (ie, The Director General of Police) before seizing or attaching any property associated with terrorism.
- It allows officers of the NIA, of the rank of Inspector or above, to investigate cases under the UAP Act. As per the existing UAP Act, only officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above are allowed to investigate cases.
- It broadens the scope of what constitutes a terrorist act. Among other things, the existing UAP Act defines terrorist acts to include acts committed within the scope of certain treaties listed in the schedule to the Act. The UAPA Bill has added another treaty, namely the International Convention for Suppression of Acts of Nuclear Terrorism (2005) to the schedule to the UAP Act.
The Opposition and the NDA’s critics have been contesting these changes on the grounds that the government can misuse the proposed changes against people critical of it. Even before going into the merits of the changes, I think that is not a very sound argument. Any law can be misused. The potential of a law being misused is not a good enough reason to not pass a law. If the government wants to make life miserable for someone, the tax code is enough to do it (and a more subtle way to do it). It does not need laws such as the UAP Act. On the other hand, the government and its bandwagon are going on about how these amendments are imperative for India’s national security. Based on the changes the amendment is proposing, I do not think that is true.
In such a case, what exactly are these changes and what purposes do they serve? The first change mentioned above (which is what everyone is talking about) of allowing the Central government to designate individuals as terrorists does not seem to have any new or significant legal consequences (Note - Any individual suspected of terrorist activities already faced several consequences under the existing UAP Act.) This designation does not automatically convict an individual of a crime or violate their due process as people have been arguing. As one commentator mentions, the prime purpose of such a change “seems designed to brand a person and expose them to the political and social consequences thereto. This… shows the change in thinking about criminal laws – as an instrument of public shame rather than an instrument of providing justice.” I could not agree more and evidence from countries like the United States indicate the same.
Insofar as the other changes are concerned — while the fourth change is a minor one, mainly expanding the scope of the UAP Act to include a new form of terrorism, it is the second and third changes that are the significant ones (and which I think we should all rather be talking about). Both these changes in small ways expand the police powers of the Central government. Traditionally, the police powers are exercised by the State government. The Central government has room to exercise some powers on that front when it concerns the defence and national security of India. The second and third changes being proposed in the UAPA Bill (along with those already made by the National Investigation Agency (Amendment) Bill, 2019) will make the Central government stronger and enhance its police powers.
At the offset, this is not something new or unique that the present NDA government is trying to do. Pretty much every time any government has been in power, they have tried to do the same. But is such consolidation of power good? The answer to this depends on how one views the Centre and how much power does one think it should have. In my opinion, any shortcomings on the end of the state police being unable to investigate instances of terrorism and other unlawful activities should be solved by providing more training and resources to the state police rather than giving more power to the Central government. It will be preferable if police powers were to lie with the local and state governments. Modern-day authoritarian states are not created by coups or similar usurpations but by incremental steps of consolidating Central power through legal means.
I must admit, this is how I think of the distribution of powers and things that affect democratic foundations. There are loads of people who think otherwise. There are people who do not trust state governments enough and/or think they are not competent. Then there are those who think that the Central government should have more powers, especially in a country with numerous challenges like India. Moreover, the reality is that this bill will move to the Rajya Sabha and eventually get passed there. Further, it is doubtful that the changes this bill proposes will be held unconstitutional by the Supreme Court. The only possible ground on which it could be held unconstitutional is that it violates the federal structure of the Indian Constitution and I highly doubt that the Supreme Court will buy that argument. Indian federalism is extremely murky, and enough precedents exist on the national security front to allow the Central government to go ahead and make such changes.
The bright light is that the NDA government has made assurances that it would use its powers under the amended UAP Act sparingly. Let’s hope that’s the case – both with the current NDA government and any future government. If they do not, let’s hope that whoever is in the opposition manages to use their institutional leverages efficiently to ensure that the UAP Act is not misused. Irrespective of these things, the citizenry should always keep its eyes open and ensure that the government does not abuse its powers.
Amal Sethi is an International Lawyer and a Doctoral Candidate at the University of Pennsylvania. He tweets at @thdemocracydude
Updated Date: Aug 01, 2019 20:28:43 IST