UAPA Amendment Bill to be debated in Rajya Sabha today: Draft law fails basic test of elasticity, doesn't safeguard against potential abuse

As another week comes to a close on the Monsoon Session of Parliament, it is an opportune time to address one of the more contentious bills passed by the Lok Sabha. The bill in question is The Unlawful Activities (Prevention) Amendment Bill, 2019 which makes substantial changes to its parent legislation, The Unlawful Activities (Prevention) Act, 1967. The pertinent question to ask here is — what are these changes and what are the concerns that these amendments raise? A static legislation for changing times The inception of the 1967 law goes back to a recommendation by the Committee on National Integration and Regionalism, formed under the aegis of the National Integration Council. This legislation was also a result of the 16th constitutional amendment which imposed reasonable restrictions on the right to free speech, expression and forming associations under Article 19 of the Constitution. The objective of the National Integration Council was to enshrine and promote the Nehruvian principle of Unity in diversity while also stymieing down on secessionist demands in the early decades post independence. However, from its inception the legislation has played fast and loose with definitions of essential terms such as terrorist, unlawful activities among others. It is these aspects which have lead to the UAPA developing a reputation over the years as a tool to bludgeon political opponents and those espousing different political ideologies. It is this tradition that appears to continue with the present set of amendments. The Amendments [caption id=“attachment_7074911” align=“alignleft” width=“380”] Union Home Minister Amit Shah had introduced The Unlawful Activities (Prevention) Amendment Bill, 2019 in Lok Sabha. PTI[/caption] The practice of designating individuals as terrorists and seizure of property emerges in part because terrorist organisations often change their names and thus are able to evade the authorities. A feature many countries across the globe have incorporated as part of their anti-terrorist legislations. The problem remains that at present there is no set procedure for designating an individual as a terrorist and whether they are deemed to be one, only after conviction by court or not. Given that the UAPA is not privy to full judicial scrutiny, there is a viable claim for invalidation of this provision and the act at large owing to the far reaching impact it has on an individual’s right to life, and liberty. The Supreme Court in a 1952 decision (The State of Madras versus VG Row) struck down the provisions of a pre-Independence law as it violated the Constitution by not providing complete judicial scrutiny on the government’s decision to ban associations. On the secondary issue of delegating authority to lower ranking officers of the National Investigation Agency, the Home Minister states that it is based on pragmatism and expediency. However to counter this claim, the existent legislation already allows the police officials to choose with ample discretion who they want to prosecute, when and for what reason. In addition, the accused can be held in custody for six months before they get to know the case against them. To keep the human rights concern aside, delays, if any, are incurred in the present process, can be questioned.

When read in conjunction with the amendments passed for the NIA Bill, this clause raises concerns about the erosion of the collaborative federal structure by taking a domain which principally falls within the State List (Item 1 & 2) of maintaining Public Order and Police to that of the Union List under Item 2-A.

The legislation continues with the burden of proof being placed on the accused as opposed to the Investigation Authority, in addition to its restrictions imposed on securing bail and preventive detention. This is one area that the legislation had an immense prospect for improvement and for gathering pan-national support. Given the reliance the bill shows on a variety of international covenants, it curiously misses out on incorporating any clauses that would ensure a free and fair trial to a terror accused organisation and/or individual as stated under Article 10 and 14 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, respectively. The severities of the provisions within this legislation necessitate the need to balance it out with international covenants that India has signed and ratified to uphold the rule of law. Union Home Minister Amit Shah did little to dissuade the perpetual charge that these amendments will serve as another tool for carrying out political witch-hunts, by raising a clarion call against Urban Maoists. A term which has for better part of the past two years generated intense debate and has lead to arrest charges against activists such as Arun Ferreiera, Sudha Bharadwaj among others.

The abysmal conviction rates under this act and concomitant legislations such as the TADA and POTA are also indicative how these have legislations have been able to do little in terms of quelling terrorist activities but more effective in intimidating political dissidents. Thus, if the objective was truly to strengthen our capabilities against potential terrorist activities, the evidence shows little in its favour.

Rather than viewing this amendment in a piecemeal manner, it is important to consider it as part of the evolving narrative of developing India into a state with a robust surveillance network. Recently, the MHA announced a plan for the deployment of facial recognition technology as part of the Crime and Criminal Tracking Network System (CCTNS). This decision along with the above-mentioned amendment is also reflective of a pattern of decisions being taken where programs are being initiated and laws are being passed with little consideration on the potential for human rights abuses. While a robust surveillance network and a legal system serving as an effective deterrent is a necessary requirement for any modern nation state. However, the problem lies with the need to do this without following through established procedure and safeguards as has been developed by the Supreme Court’s jurisprudence in a range of decisions from Kesavananda Bharati to the most recent reiteration of fundamental right of privacy in the case of KS Puttuswamy. Even if one disregards Shah’s comments on urban maoists, the elasticity of any potential legislation should be assessed by not just those who use it in the present but also by those who are likely to use it in the future. It was a similar concern which led to a young Franklin D. Roosevelt to express to his mother, his worry about the growing power of the then American President and his 5th cousin, Theodore E. Roosevelt in 1907. For these legislations do not serve as mere state instruments, instead they are the doctrines which seek to enshrine and protect the Rule of Law for the present and the foreseeable future. However, the history lesson that this five-decade-old legislation teaches us is that use of UAPA lies in its misuse and one which has taken place across party lines. With the overwhelming majority of the Lok Sabha appearing convinced, only time will tell whether this was the first step towards a more secure India or the last nail in the coffin for free speech and political dissent. The author works as a lawyer with Common Cause.