Uncivil Law

Lessons from India’s failed “anti-terror” legislation

01 October 2018
The activists arrested by the Pune police in August under the UAPA included Sudha Bhardwaj and Gautam Navlakha.

In late August, while investigating the violence at the Bhima Koregaon memorial in Pune earlier this year, the Pune police raided the homes of several well-known human-rights activists, scholars and lawyers, and arrested five among them. The arrests were made under the Unlawful Activities (Prevention) Act—a law that has been widely criticised for its draconian nature. Amid public outcry over the arrests, the Congress too panned the government.

“There is only place for one NGO in India and it’s called the RSS,” the Congress’s president, Rahul Gandhi, tweeted. “Shut down all other NGOs. Jail all activists and shoot those that complain. Welcome to the new India. #BhimaKoregaon.” The Congress spokesperson Abhishek Manu Singhvi stepped up to argue in favour of the accused in the Supreme Court.

The activists arrested by the Pune police in August under the UAPA included Sudha Bhardwaj and Gautam Navlakha.
tauseef mustafa / afp / getty images

Regardless of such gestures by the Congress, we must remember that many of the tools that the BJP-led government is using to stifle dissent are creations of a time when the grand old party was in power. After Independence, several Indian governments repeatedly passed laws that were increasingly draconian, despite a history of widespread abuse of these laws by investigating agencies and the executive. The present crisis, a grave threat to freedom of expression in the country, is an outcome of the Indian state’s refusal to learn from history, and highlights the need for a better approach to tackling militancy.

The UAPA was first passed in 1967 by an Indira Gandhi-led Congress government as a measure against secessionism. Even though that version was not nearly as powerful as the present form of the act, it was criticised heavily in the parliament. Several opposition leaders—Atal Bihari Vajpayee, JB Kripalani and Piloo Mody, among others—spoke against the bill. “All these repressive laws violate the rule of law,” said Kripalani, adding that the UAPA “may be used by the executive for the purpose for which is not intended.” Most importantly, the UAPA gave the central and state governments the power to ban an organisation through an announcement alone.

The next “anti-terror” legislation came in the form of the Terrorist and Disruptive Activities (Prevention) Act, or TADA, passed in 1985 during the insurgency in Punjab. The law gave enormous power to law-enforcement agencies—they no longer had to produce a detainee before a judicial magistrate within 24 hours. An accused person could be detained for up to a year. The rampant misuse of TADA was difficult to miss. In 1990, the Gujarat police booked over five thousand people, most of them were Muslims, under the act. The figure was much higher than those in states facing insurgencies—in the same year, TADA arrests stood at 1,600 in Punjab and at 2,000 in Jammu and Kashmir.

While TADA was scrapped in 1995, the 2001 attack on parliament led to another stringent legislation—the Prevention of Terrorist Activities Act. Like TADA, POTA also gave extraordinary powers to investigative authorities, and was also misused thoroughly. State governments used the act to arrest political opponents—the Jayalalithaa government in Tamil Nadu arrested the Marumalarchi Dravida Munnetra Kazhagam’s Vaiko, while the Mayawati-led Uttar Pradesh government held Raghuraj Pratap Singh, better known as Raja Bhaiyya. In 2003, in the aftermath of the savage anti-Muslim pogrom in Gujarat the previous year, the state’s Narendra Modi government invoked POTA against 123 Muslims accused of start the Godhra fire, but not against any Hindus for the subsequent violence.

In 2004, the newly formed United Progressive Alliance government, ledby the Congress, repealed POTA, but the same government amended the UAPA in 2004, 2008 and 2012, making the law more vicious. The most significant amendment came in 2008, following the militant attacks in Mumbai in November that year. The UAPA was included provisions from TADA and POTA.

For instance, it introduced a very broad definition of a terrorist act. It stipulated that a terrorist act may include any act that made use of “bombs, dynamite … or any other substances … of a hazardous nature,” or “any other means of whatever nature.” The amendment, in fact, broadened the POTA definition by further specifying that any act “likely to threaten” or any act “likely to strike terror in the people” is also a terrorist act. The introduction of the word “likely” in these phrases provided room for broad interpretation. Thus, the government was granted the power to deem any physical act a terrorist act, if it thought the act was likely to cause terror in the people. It could brand any ordinary citizen a terrorist, what it is doing today, not only to the arrested activists but also to hundreds of Muslims and Adivasis across the country.

The 2008 changes to the law clearly enable human-rights violations. Although human-rights organisations protested the amendment, P Chidambaram, then the home minister, justified it, saying that the need to protect civil liberties had to be balanced with the need to fight terrorism. Abhishek Manu Singhvi, Chidambaram’s colleague, now has to contend in court with all the changes to the UAPA brought about by his party in 2008.

The 2008 amendment’s definition of terrorism, furthermore, differs wildly from that provided in 2006 by a United Nations Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism. “The specificity of terrorist crimes is defined by the presence of three cumulative conditions: (i) the means used …(ii) the intent … and (iii) the aim, which is to further an underlying political or ideological goal.” The Rapporteur observed that without all three elements a prohibited act could not be considered a terrorist act because it fails to distinguish itself from an ordinary crime. The 2008 amendments thus seemed ignorant of the international discourse on terrorism.

The amendment made arrests easier to carry out. Section 43A of the UAPA stipulates that a person may be arrested by “[a]ny officer of the Designated Authority” on the basis of “personal knowledge,” or information furnished by another person, or information “from any document, article or any other thing which may furnish evidence of the commission” of an offence under the act. The amendment extended the maximum period of pre-charge detention from 90 days to 180 days—much longer than the permitted maximum detention in other democratic states. The United Kingdom’s Terrorism Act permits 28 days of judicially authorised pre-charge detention. In the United States, such detention is limited to 48 hours, except for aliens suspected of committing a terrorist act, who can be detained for seven days under the USA Patriot Act.

The 2008 UAPA amendment denies an accused person bail if the court believes that, based on the evidence presented, the accusations against her are prima facie true. This is inappropriate because, in jurisprudence, the purpose of a bail hearing is to determine whether the accused will abscond or commit offences while on bail. In the case of the five arrested activists, it is highly unlikely that the prosecution will have adequate evidence to prove that the case against them is legitimate. At the time this article went to print, the Supreme Court was still dealing with the issue.

Another troubling aspect of the 2008 amendment is that, instead of innocence, it presumes guilt, and does not allow the right to remain silent. The right to a fair trial, which includes presumption of innocence and the right to silence, is protected under Article 14 of the International Covenant on Civil and Political Rights, or ICCPR—a multilateral treaty adopted by the United Nations General Assembly, to which India is party. The treaty stipulates that the presumption of innocence is a fundamental human-rights principle. The burden of proving guilt is placed on the prosecution, which must prove guilt beyond reasonable doubt. During parliamentary debates on the act, Chidambaram justified the amendment’s reversal of the burden of proof by claiming that in the past, terrorists evaded conviction because they were permitted to remain silent. Chidambaram stated that if evidence points to the accused, “then the accused has a duty to enter the box or let an evidence to say that I am giving contrary evidence.”. The amended act also gives the central government control over the assets, financial resources and freedom of movement of the accused.

TADA and POTA were temporary legislative frameworks, with provisions for periodic reviews and, if required, withdrawal. But the 2008 amendment, which does not include these review mechanisms, brought a sense of permanence to the repressive laws. It also granted immunity from prosecution to central and state governments, and their employees.

Additionally, the 2008 UAPA amendment provides for very limited review by the judiciary of criminal proceedings. During a debate on the amendment, Chidambaram claimed that there was a safeguard against executive misuse, namely Section 45(2), which provides that a prosecution must first be sanctioned by an appointed authority that reviews the evidence and decides whether the case should proceed. However, the authority is appointed by the government, and is therefore a mere rubber stamp for the executive.

Former UN Secretary-General Kofi Annan has argued that “discrimination on the basis of ethnic origin or religious belief… create grievances that can be conducive to the recruitment of terrorists, including feelings of alienation and marginalization and an increased propensity to seek socialization in extremist groups.” As mentioned earlier, “anti-terror” laws such as TADA and POTA have, in the past, been used to target minority and tribal communities in India.

The government, thus, needs to consider alternatives to these acts. The Second Administrative Reforms Commission—a committee set up by the central government for reviewing the public administration system—advocates a “multi-pronged” approach. It makes the case for legal reform, improved institutional efficiency, increased resources, socioeconomic development and equality. The central and state governments should ensure that any tough provisions meant to deal with militancy are balanced by safeguards against police brutality, official corruption and systemic discrimination. It is not enough to merely establish a Police Complaints Authority in each state to ensure that police actions are within the law and allow citizens to lodge complaints against police abuse. Section 197 of the Criminal Procedure Code, which requires prior permission from the state to prosecute public officials, must be abolished. The right to compensation for wrongful arrest and incarceration must be absolute, and not left to the discretion of a particular judge or bench of the superior courts. The state must realise that repressive “anti-terror” legislation is bound to foster the problem it’s meant to tackle.