The UAPA amendment treats Indians as subjects of a colonial sovereign

10 September 2019

On 8 July, the union home minister Amit Shah introduced an amendment to the Unlawful Activities (Prevention) Act in the Lok Sabha. The Act is an anti-terror law which penalises groups by labelling them either as “unlawful associations” or “terrorist organisations.” One of the important changes to the law that the amendment made was that it allowed the central government to label an individual a terrorist if it “believes” that is the case.

The amendment was hastily passed without any scrutiny by a parliamentary committee, and came in to effect on 14 August. As Shah pointed out in parliament, many countries across the world have similar legislations to deal with lone-wolf terrorist acts. But this does not take away from many worrying portents central to the amendment. A closer look at the details of the statute, or the lack thereof, reveals that the Act has procedurally vested unfettered power in the central government to control the process of labelling anyone a terrorist.

This line of critique overshadows three specific characteristics of the amendment, which make it crystal clear that the government has acted with a blatant disregard for the constitutional compact between the state and a citizen. These are, specifically, the ambiguity about which authority in the government decides whom to label a terrorist and on what basis, how this information gets communicated to the labeled individual and the law’s silence about the consequence of being labelled a terrorist. The government has not provided satisfactory details about these elements in the amendment, and instead simply emphasised the amendment’s importance to national security, in line with its larger political narrative. It seems that future conversations around the “terrorist” label will hinge solely upon the information that the government hands out at its convenience—treating Indians not as citizens of a democracy, but as if they are subjects of a police state.

Firstly, the law is amorphous in setting the terms for the central government to confer, or withdraw, the “terrorist” label. It is unknown which human actors of the government will be involved in taking this call. Will the union home minister or the home secretary be the sole authority to make this decision? Or will a committee be formed to take the call? We do not know how many people will be involved in this process. Will the investigating agency—the National Investigation Agency or the state police—first propose branding someone a terrorist before the central government vets the demand? Will the government periodically review any of the labels that it confers?

It is also unknown what standards apply to decide whether a person should be called terrorist. The amendment states that the central government may decide to assign the label “only if it believes” that an individual is a terrorist. The law mentions no parameters to guide this belief. So, what belief system will drive the decision makers? Will it be similar to the standards of proof that apply in a judicial process, in accordance with a 1994 Supreme Court judgment that was passed in context of the process for labelling an unlawful association?

Abhinav Sekhri is a lawyer practising in the courts of Delhi. His primary interests are criminal law and procedure.

Keywords: Unlawful Activities (Prevention) Act anti-terror laws Amit Shah NIA