Bhima Koregaon raids: Ambiguities in UAPA, lack of unified authority against terrorism worsen security situation

The repeal of Prevention of Terrorism Act (POTA) figured prominently in the Common Minimum Programme of the first UPA government. It was done through an ordinance in September 2004.

Brought during the Atal Bihari Vajpayee-led NDA government in the post 9/11 world, and following the attack on the Indian parliament in December 2001, POTA was swiftly enacted to replace the earlier Terrorist and Disruptive Activities (Prevention) Act (TADA), which the PV Narasimha Rao-led government allowed to lapse back in 1995. When it was enacted, Vajpayee had said that POTA was India’s boldest initiative to combat terrorism, disband terror outfits and possibly cut channels of terror funding.

The repeal of POTA was in sync with the enactment of Unlawful Activities (Prevention) Act (UAPA), 2004 that inserted into UAPA 1967 certain features of POTA. The hazy definition of what comprises a ‘terrorist act’ that was taken from TADA to POTA can also be seen in the new act.

Arjun Sheoran, the lawyer representing human rights activist Sudha Bharadwaj (arrested by Pune Police in the raids linked with the Bhima Koregaon violence), said that the definition of ‘unlawful activities’ in Section 2 of the Act includes disclaiming or questioning the territorial integrity of India. “Up until here, it seems fine. But the third clause on ‘disaffection’ against India. These words are vague and broad and if the disaffection doesn’t lead to violence, then it doesn’t amount to an offence,” explained Sheoran, adding that the Act prohibits anticipatory bail.

Representational image. PTI

Representational image. PTI

“Section 43D modifies the CPRC and doubles the police remand, so instead of 15 days of police remand, judicial custody can be extended to 180 days without a trial,” he said, adding that the law is enacted in ordinary course by the police unlike the TADA, which had a time limit on it and lapsed. What is left behind is a differently branded version of the TADA.

POTA's definition covered political dissenters, allowed pre-trial detention and reversed the presumption of innocence of the person accused. The UAPA defines a person engaging in a terrorist act as ‘whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.’

It includes means or show of criminal force, death or attempts to cause death of any public functionary, detaining, kidnapping or abduction of any person, and threats to kill or injure such person or any other act in order to compel the Government of India. A 2010 report titled ‘Back to the Future: India's 2008 Counterterrorism Laws’, Human Rights Watch stated that India’s counter-terrorism laws ‘authorize warrant-less search, seizure and arrest with wide authority and few safeguards, and compulsion of information from third parties without a court order’.

Human rights lawyer Sudha Bharadwaj said her mobile, laptop and pen drive were seized. She also said she feared that her data would be toyed around with. She — along with Varavara Rao, Arun Ferreira, Gautam Navlakha and Vernon Gonsalves — were taken into custody on Tuesday. The Supreme Court has ordered that the five arrested activists be kept under house arrest till 6 September, when the court will hear the matter next. The court has also issued a notice to the Maharashtra police, seeking a response from the government by then.

The UAPA brought under its ambit economic offences that threatened India’s economic and national security, seeking to encompass economic crimes like currency counterfeiting which threaten the economic stability of the country. The widened scope also included raising of funds both from legitimate or illegitimate sources by a terrorist organisation, terrorist gang or by an individual terrorist. It simultaneously broadened the scope of the definition with respect to perpetrators of crime to include individuals, companies, associations of individuals and companies, societies or trusts.

Some Indian terror groups were using fake Indian currency notes (FICN) to fund their activities. In fact, former defence minister AK Antony had gone on record saying that FICN has been a well-known source of funding for terror groups operating in India. In February 2018, the Lok Sabha was informed that FICN of face value Rs 21.54 crore was seized by security agencies after demonetisation of Rs 1,000 and Rs 500 notes. Factoring in the escalation in potential damage that FICN can cause, this issue was taken into account in the UAPA Amendment Act 2012.

“The UAPA is a bogus act brought in by the Congress and misused by the present government. Both poles of Indian politics are the same. A habeas corpus petition is of no use because it is known that the police has detained him,” said Anil Chaudhary, who runs Popular Education & Action Centre (PEACE) in New Delhi.

Henry Tiphange, who is the executive director of People’s Watch, has issued a communication to the NHRC on behalf of the Human Rights Defenders Alert India, a national network for the protection and promotion of human rights defenders in the country. It is stated in the petition that the arrests under UAPA also make up an attempt by the Maharashtra government to curtail the fundamental rights guaranteed under Articles 14, 19 and 21 of the Indian Constitution.

"The UAPA has several draconian provisions and one of them is allowing detention without filing of a chargesheet for up to 180 days. These arrests under UAPA are undertaken also to deter other organisations, movements and individuals who are calling for actions against pro-Hindutva leaders Sambhaji Bhide and Milind Ekbote, who have a history of allegations against them for causing communal and caste tensions, rioting, etc. It is pertinent to note here that in the complaints and FIRs against Sambhaji Bhide and Milind Ekbote, UAPA was not invoked by the same police," Tiphange said. He shared with Firstpost that the only hope for the human rights defenders community at this stage is that the Delhi High Court intervened in the case of Gautam Navlakha.

Much like the developments globally forced the Indian government to rethink its responses in counterfeiting financing of terrorism, India also needs to put in place an institutionalised mechanism that can coordinate the workings of its multiple anti-terror agencies. This brings the debate of fighting terror to the lack of establishment of the National Counter Terrorism Centre. After the 2008 terror attacks in Mumbai, the then home minister P Chidambaram had outlined the need for NCTC. But the cabinet committee on security didn’t clear the proposal till 2012. "Such an organisation does not exist today. I am told the United States was able to do it within 36 months of 11 September, 2001. India cannot afford to wait for 36 months. India must decide now to go forward and India must succeed in setting up the NCTC by the end of 2010," Chidambaram had said.

The Multi-Agency Centre (MAC), an intelligence-sharing ‘fusion centre’ functioning under the Intelligence Bureau, was to be subsumed under it. The non-establishment of the NCTC, which was to derive its powers from the UAPA, is a reason for worry. Manoj Shrivastava, who has held intelligence-based appointments in Jammu and Kashmir and in Military Intelligence Directorate at Army Headquarters, has argued in his book Re-Imagining Indian Intelligence that by giving the NCTC independent powers of arrest, Chidambaram gave a clandestine police agency powers of arrest that could be misused for political purposes and that infringed on the rights of the state, thereby inviting opposition from them in this so-called jointmanship to counter terror. The overarching result of this is that the idea of the NCTC stands as a politicised measure to subvert and supress the powers of the state.

The inter-agency coordination remains a grave challenge at the level of the Centre and the state. In May 2018, the Parliamentary Standing Committee on Home Affairs recommended that the MHA ‘should immediately revive the idea of the NCTC as a single, unified counter-terrorism agency and re-issue the notification laying down the power, functions and duties of NCTC.’

Brigadier V Mahalingam, a former Force Commander of the National Security Guard and a defence analyst, has published a report titled ‘Countering Terrorism: The Way Forward’ for the Institute for Defence Studies and Analysis. He stressed on the need for a strategic planning body, investigations and execution arm besides the intelligence outfit and that each of them must be placed under appropriate professional heads. "MHA is a busy body dealing with multifarious issues from Telangana to North East to honours and awards and the IB lacks the status and the authority to be able to demand information from the states, other agencies and departments within the country," he said. He also went on to ask whether any IB operation can take place without the local police in operations of navigating, translation of data and supply skills sensitive to local needs.

To increase the quality of sustained investigations, the state police must work in tandem with central agencies so that if and when arrests are made on charges of terrorism, both the law and the machinery that executed it aren’t accused of political motives.

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Updated Date: Aug 30, 2018 00:03:08 IST

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