7 PM | Sacrificing liberty for national security | 22nd August, 2019

Context: The Unlawful Activities (Prevention) Amendment Act, 2019 could be catastrophic for fundamental rights.

More in news:

  • Parliament passes The Unlawful Activities (Prevention) Amendment Bill, 2019 on 2nd August 2019.
  • A PIL has been filed in SC against Unlawful Activities (Prevention) Amendment Act, 2019.

Unlawful Activities (Prevention) Act (UAPA), 1967:

  • The UAPA was passed by the Indira Gandhi government. Its political justification then was to deal with the secessionist utterances of the Dravidian movement.
  • An unlawful activity was defined as “any action taken:
    • which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession
    • which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India
    • which causes or is intended to cause disaffection against India.
  • Today, however, the UAPA is not confined only to cases of secessionist organisations. It has now been extended to cases of terrorism too. After two draconian anti-terrorist legislation: the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) were repealed due to repeated misuse by law enforcement authorities; the UAPA was amended in 2004 to bring into its fold cases of terrorism.

Need of amendment in the existing law:

  • It is argued that when the government designates an organization as terrorist organization by law, then the members disappear to form a different organization under different names.
  • Through the existing law, it is difficult to obtain permissions from several DGPs without the knowledge of the accused. This results in transferring their properties and thereby slow and inefficient investigation.

The Unlawful Activities (Prevention) Amendment Bill, 2019:

The Unlawful Activities (Prevention) Amendment Bill, 2019 amends the Unlawful Activities (Prevention) Act, 1967.  The Act provides special procedures to deal with terrorist activities, among other things.

Provisions of the bill:

  • Under the Act, the central government may designate an organisation as a terrorist organisation if it:
  • commits or participates in acts of terrorism,
  • prepares for terrorism,
  • promotes terrorism,
  • is otherwise involved in terrorism. 

The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.  

  • Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism.  The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property.  
  • Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.  The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
  • The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.  The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).  The Bill adds another treaty to the list.  This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005). 

How it conflicts with fundamental rights:

  • The amended law allowed the state to encroach upon the fundamental rights of dignity, free speech, dissent and reputation.
  • It argued that the UAPA Amendment Act, 2019, conferred upon the Centre “discretionary, unfettered and unbound powers” to declare a person a terrorist. The law could be used by the state to bring disrepute to a person, and even worse, rob him or her of liberty. The heavy burden to prove the state machinery wrong rested with the person.
  • The right to reputation is an intrinsic part of the fundamental right to life with dignity under Article 21 of the Constitution, and tagging an individual as a “terrorist” even before the commencement of trial or application of judicial mind does not amount to compliance with the “procedure established by law”.
  • The right of dissent is a part and parcel of the fundamental right to free speech and expression and, therefore, cannot be abridged under any circumstances except for [those] mentioned in Article 19 (2). The UAPA, 2019, empowers the government, under the garb of curbing terrorism, to impose an indirect restriction on the right of dissent, which is detrimental to our developing democratic society.

Way Forward:

  • Transparency: The government must undertake structural change to provide transparency in the proceedings to be accountable to the actions elated to the investigations in the terror activities.
  • Accountability: The in-charge officer must be accountable for any unjust negative consequences that may occur during the investigation.
  • Terrorism must be defined in an unprejudiced and non-discriminatory manner so that it is not misused by the government against innocent civilians.

Source: https://www.thehindu.com/opinion/op-ed/sacrificing-liberty-for-national-security/article29213720.ece

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