Understandable concern over the events in Jammu and Kashmir have meant that the Indian government’s recent amendments to the draconian Unlawful Activities (Prevention) Act (UAPA) have passed relatively unnoticed.
While a provision that gives the Central Government the power to declare persons as ‘terrorist individuals’ was the subject of heated debate in Parliament, the ruling Bharatiya Janata Party (BJP) introduced two more amendments that should give all citizens cause for concern.
Both amendments vastly expand the already bloated powers of the National Investigation Agency (NIA), and by extension the Ministry of Home, and further entrench the problematic trend of the unfettered centralisation of power, through extending the political executive’s rein entirely unchecked.
The Government claims these amendments will strengthen the anti-terror law by removing legal obstacles to combating terrorism and terrorist activity. But a closer glimpse at speeches in Parliament and the pronouncements of government representatives suggests the UAPA is likely to be used against the government’s critics, rather than those who actually pose a threat to the nation.
Amendment To Section 25
Coming to the amendments, firstly, the amendment to Section 25. This provision, pre-amendment, gave NIA officials the power to seize any ‘property’ which was considered to be ‘proceeds of terrorism’.
The all-encompassing definitions of these two terms under the UAPA meant that potentially, an official could seize anything that was intended to be used for terrorist activity, with one caveat — the Director General of Police (DGP) of the State where that property was situated had to give his prior written approval. This acted as a check against unwarranted seizures by a central agency like the NIA in the jurisdiction of a state, as the State Police could refuse to grant approval.
This caveat has been rendered meaningless after the recent amendment. Now, an NIA official can simply get prior written approval from the DGP of the NIA (situated in Delhi) and bypass the DGP of the State entirely. This mocks the concept of ‘cooperative federalism’ as it erodes the powers of the State Government to check unwarranted seizures within its territory, which was one of the concerns raised by opposition MPs.
In his opposition to the amendments, Supriya Sule, a Member of Parliament from the Nationalist Congress Party (NCP) actually cited Narendra Modi, the current Prime Minister, who as the Chief Minister of Gujarat, had defended the concept of cooperative federalism when the BJP was in the opposition in the centre.
Another important aspect of this amendment is that it clears the way for the unrestrained power of the NIA to pre-emptively seize anyone’s property from anywhere in India, merely on suspicion that it was intended to be used for terrorism, and there is nothing that the state government can do to stop this.
In Parliament, Bharatiya Janata Party (BJP) Member of Parliament Meenakshi Lekhi justified this amendment by claiming that when agencies start processing the attachment of properties, terrorists get a whiff of it and immediately start disposing them off, and so this amendment would expedite that seizure process. This outrageous claim seemed to allege collusion between senior police officials of States and those engaging in acts of terrorism. Yet, Lekhi did not provide any basis for saying so.
Amendment to Section 43
The second major amendment targets Section 43 of the UAPA, a safeguard that sets the minimum required seniority for an official before they can investigate offences under the UAPA. This safeguard is ostensibly to ensure a certain standard and quality of the investigation.
For instance, in the case of the CBI or the local police, no officer below the rank of Deputy Superintendent of Police (DSP) or the Assistant Commissioner of Police (ACP) can investigate terror cases under the UAPA. Such a requirement is not unique to this law, and lawmakers sometimes impose a similar minimum bar for public officials for the exercise of powers that, to put it mildly, are excessive.
With this amendment, even Inspector rank officials of the NIA can now investigate terror cases. This is troubling not just because of the seriousness and magnitude of certain offences under the UAPA, but also because the NIA possesses some constitutionally questionable powers that are virtually unchecked.
There are no valid explanations for compromising this safeguard.
While introducing this amendment in the Lok Sabha, G. Kishan Reddy, Minister of State for Home Affairs, said that Inspector level officials of the NIA had become “very experienced” due to the expanding work of the agency, and therefore, it was implied, they had gained competence. But surely, the same could also be said of CBI officials, who investigate and prosecute some of the most complex corruption cases in India and unquestionably handle a far greater volume of work than the NIA. Yet, the amendment does not enable Inspector level officials of the CBI to investigate terror cases under the UAPA.
The other explanation on offer was that the workload of the NIA had increased, since they were also investigating several other offences apart from terrorism, and so there was a shortage of DSP level personnel to take up investigations. If true, the appropriate response would be to increase personnel, and not lower the safeguards built into the law for a robust investigation and preventing its misuse.
Coming to the amendment which allows the Central Government to declare persons as ‘terrorist individuals’.
This received the harshest criticism from the opposition MPs and legal and political analysts alike, for the astonishing power it gives to the Government to arbitrarily brand persons as ‘terrorists’ without specifying any objective criteria, and without any restraints to prevent misuse of such power. The UAPA has a lengthy and well-documented history of being misused against social activists and political dissidents, some of which was highlighted by opposition MPs during the debates.
Viewed purely from the standpoint of any advantages that it might have in the investigation and prosecution of terror crimes, this power will actually accomplish very little. For one thing, the amendment does not make it a crime to be a ‘terrorist individual’ but only empowers the Central Government to declare a person as one. Nor does such an individual become liable to face any additional criminal charges under the UAPA solely because of this label. Moreover, any person who commits terror crimes already stands to be prosecuted and convicted under the UAPA. In that situation, whether s/he is a declared ‘terrorist individual’ or not will make absolutely no difference.
So what does this amendment really do?
The answer is that it gives the Central Government the entirely arbitrary power to potentially target persons who are critical of the government or the ruling party, tainting them with the ‘terrorist’ tag, causing their social, political and economic boycott, destroying their presumption of innocence, and causing prejudicial damage to them in any criminal case they face. Meanwhile, the other two amendments make the NIA, which is already the most empowered investigating agency in the country, just a little more powerful and a little less accountable. All this, without any proper justification for its need.
As India enters a dark new phase of its political story, where the ruling establishment possesses unprecedented legal and political power, and the ability to not just misuse the law, but also control the narratives that follow it, every incremental increase in the power of the Central Government pusher its critics deeper into a state of vulnerability.
And if there was any doubt about the insidious intentions of the ruling establishment, its clearest expression came not from its critics, but from one of its own, in what was perhaps one of the most crucial moments during the Parliamentary discussions, when Meenakshi Lekhi told the floor of the lower house, “there is countless varieties of adversities which we are faced with and Ravan of today, terrorism exhibits itself in a multifaceted manner. Sometimes, it deceives others as NGOs, sometimes it will deceive others as social activists, convenors and so on and so forth.”
At a time when India’s hard-fought civil liberties are under peril, Lekhi’s statements on Parliament’s floor should be a matter of great concern to all citizens. This government sees those who oppose it as “Ravans” and “terrorists”.
Harsh Bora is a criminal lawyer practicing in Delhi in the Trial Courts and the Delhi High Court.