Citizen as terrorist?

UAPA Amendment

The amendments to the Unlawful Activities (Prevention) Act that propose to allow the government to designate an individual as a terrorist give rise to the fear of blatant abuse of the provision. Interestingly, the Congress ostentatiously walking out in the Lok Sabha demanding parliamentary scrutiny voted in favour of the UAPA Bill in Rajya Sabha. Congress leaders mumbled they could not oppose its passage, lest they should be portrayed as diluting the fight against terrorism.

Just in case anybody has any questions about the unwary targets, Home Minister Amit Shah’s statement makes it clear that the new law will make it difficult for ‘Urban Naxals’. Anybody harbouring misplaced sympathies or ideologies that the ruling dispensation finds wayward may be booked as terrorists and jailed, while the iron-fisted law would render redress difficult to obtain. Therefore, a vast army of civil and human rights activists, dissenters, political opponents and members of the minority communities — often trolled and vilified as groups belonging to “tukde tukde gang” — already stand terrorised over what the amendments portend.

But hold on. Many consider that the repealing of the Prevention of Terrorism Act of 2002 (POTA) in 2004 was just an eyewash as most of its provisions were added to the UAPA by amending it in 2008, when the UPA was in power. It was empowered with excessive and undemocratic powers by dint of which police officials were authorised to charge at will any “association of persons or a body of individuals” as belonging to a terrorist group. In case of the charge collapsing in a court of law, the offending police officers were not taken to task. Not just POTA, even its predecessor, the Terrorist and Disruptive Activities (Prevention) Act (TADA), was also a discredited law as both were extensively abused, used to target religious minorities, specifically Muslims, and allowed for their harassment and persecution.

It is almost certain that the institutional responses to the 9/11 terror attacks in the US have caused far more damage than the initial attack did in so far as they spawned huge surveillance, passage of several draconian laws, and the creation of a wide range of anti-terrorist policies and practices in many countries.

The most notorious of these is a law passed shortly after the 9/11 attack — Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism — or USA PATRIOT Act. A host of such anti-terrorist laws legalised mechanisms for the routine monitoring of everyday life in airports, schools, offices, libraries, banks, online communications, and the like. Not to be outdone, the Pentagon even expanded its secretive Counterintelligence Field Activity, using “leading edge information technologies and data harvesting” to determine who within the US population could be a security threat.

Much in the same vein, the passage of the POTA, 2002, came in the wake of the 1999 IC-814 hijack and 2001 Parliament attack. But POTA was repealed barely two years later in the wake of reports of its gross misuse. In 2004, the government chose to strengthen the UAPA, 1967. The law was amended further in 2008 after the Mumbai attacks, and again in 2012 in compliance with the guidelines of the Financial Action Task Force (FATF), an inter-governmental organisation set up in 1989 to develop policies to combat money laundering and terrorist financing.

The finer point of designating an individual as a terrorist, as per the latest amendment to the UAPA, has surely raised the possibility of being misused, more so due to a lack of set procedure, and without clear guidelines if an individual can be called a ‘terrorist’ prior to conviction in a court of law. But to be fair, the previous UPA government also had been resorting on the ground to blatantly illegal suppression of various people’s movements in the name of security, while trying to project an enlightened face on paper by admitting that these movements, and naxalism in particular, are intimately connected with social oppression and endemic deprivation. While the UPA government always professed to the ‘correct’ understanding of naxalism, in practice, it never went beyond treating it as a mere ‘law and order’ problem.

The present government is doing the same. Think about how the Modi government, in its first tenure, had been harassing and attempting to silence the leaders of the Dongria Kondh tribe, famous for winning a “David and Goliath” court battle against a British mining giant. There had been an alarming increase in arbitrary, politically motivated arrests of tribal people — typically accused of Maoist links — who were resisting mining operations or government policies which endanger their lands and communities.

Over 72 years after Independence, it is sad commentary to see that democratic India has passed one draconian law after another — MISA (1971) TADA (1985), UAPA (1967), POTA (2002), AFSPA (1958) and numerous other laws enacted by the Union and state governments after Independence on one pretext or another that makes the imperial Rowlatt Act look like a mild and liberal one in comparison. All of them have records of being extensively ruthless and grossly misused in the absence of judicial review and transparency. Indian citizens have been exposed to almost all possible forms of atrocities – custodial torture, rape, illegal detention, extra-judicial murders, fake encounters, disappearances – that continue to remain part of standard police modus operandi in the discharge of their duties.

While the fight against terrorism is necessary, it is time to consider if such draconian laws through which India’s judicial system gives the State far-reaching and authoritarian powers, the roots of which lie in the colonial era and which blur the distinction between suspicion and sure knowledge, have any place in a democracy. To sustain a balance between the imperative to preserve fundamental rights vis-à-vis the need to make the legal framework to combat terror stronger calls for wider constitutional debate.