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The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes

The rushed amendments to the Unlawful Activities (Prevention) Act 2004 reveal that the government lacks any new ideas about how to tackle terrorism. And yet, India has the benefit of past experience, both with terrorist attacks and different legislative anti-terrorism frameworks.

This unconventional war cannot be won in a conventional way. It can only be won by showing that our values are stronger, better and more just, more fair and more humane than the alternative.1

COMMENTARYEconomic & Political Weekly EPW january 24, 200911likely to cause “disruption [to]…services essential to the life of the community” by using “means of whatever nature”, thus satisfying the Section 15 definition.5 This example demonstrates the un-acceptably broad nature of the UAPA amendment definition.When coupled with the denial of the presumption of innocence (if any evidence is found linking the accused to the said terrorist act), this 2008 amendment em-powers the government with incredible power to construe anything as a terrorist act and prove it without difficulty in the courts. This is a dangerous development that threatens not only genuine terrorists, but also ordinary citizens who may be prosecuted under the amendedUAPA if it is politically convenient.(b) The mental element (mens rea): The 2008 amendment follows the POTA prece-dent by specifying that a terrorist act is one carried out with the intention to “threaten the unity, integrity, security or sovereignty of India or… to strike terror… in the people”. However, the 2008 amendments also broadens the pre-viousPOTA definition, by specifying that any act “likely to threaten the unity, integ-rity, security or sovereignty of India” or any act “likely to strike terror in the people…in India or in any foreign coun-try” is also a terrorist act (emphasis added). This incorporates subjectivity into the definition and extends the definition extra-territorially.(c) The missing element from UAPA (the broader objective): According to the UN’s special rapporteur on the promotion and protection of human rights while counter-ing terrorism, “at the national level, the specificity of terrorist crimes is defined by the presence of three cumulative condi-tions: (i) the means used…(ii) the intent… and (iii) the aim, which is to further an underlying political or ideological goal.” The special rapporteur observed that without all three elements the prohibited act could not be considered a terrorist act because it fails to distinguish itself from an ordinary criminal act.6 The British, Canadian and Australian anti-terrorism laws all define terrorism as an act carried out for the purpose of advancing a politi-cal, religious or ideological objective.7 These definitions, therefore, recognise the multidimensional nature of terrorism and the distinctive rationale behind terrorist attacks. By recognising that individuals and groups resort to terrorist tactics in order to advance political, religious or ideological causes, these definitions also clearly separate terrorist acts from ordi-nary criminal acts. The 2008 Amendment definition fails to do this, and thus remains ambiguous and reflects a lack of concep-tual understanding of terrorism.(ii) Arrest: Under Section 43A of the amended Unlawful Activities (Prevention) Act, a person may be arrested by “[a]ny officer of the Designated Authority” on the basis of belief “from personal knowledge”, or information furnished by another per-son, or “from any document, article orany other thingwhich may furnish evidence of the commission” of an offence under the Act (emphasis added). The arresting officer only needs to inform the suspect of the charge against him/her “as soon as may be”.8 (iii) Pre-charge Detention: The 2008 UAPA Amendment extends the maximum period of pre-charge detention to 180 days, if after 90 days the public prosecutor can show that the investigation has progressed but more time is needed. This standard is inadequate. A judge considering the exten-sion of pre-charge detention should con-sider whether there is adequate evidence against the accused, justifying his/her con-tinuing detention, not merely whether the investigation is progressing. India’s 180-day period is much longer than the permitted maximum detention in other democratic states. The UK Terrorism Act permits 28-day judicially-authorised pre-charge detention.9 In the United States the pre-charge detention is limited to 48 hours,10 except for aliens suspected of committing a terrorist act, who can be de-tained for seven days under the PATRIOT Act.11 Under Australia’s Crimes Code the maximum pre-charge detention is 24 hours, which does not include “dead time” when the suspect is not questioned.As noted by the Council of Europe Parliamentary Assembly, “lengthy pre-charge detention may have detrimental effects… on private and family life… free-dom of movement and the employment situation of the person detained. This can amount to, effectively, a “sentence” on a person who may never be charged with any crime.”12 Fair Trials International has also argued that “[h]olding people with-out charge for lengthy periods, based on the assumption that evidence will be found to prove their guilt, is a dispropor-tionate violation of the right to liberty and presumption of innocence”.13At a minimum, a judge considering the extension of pre-charge detention must consider and record in writing the deci-sion for extending detention beyond 90 days. Additionally, if an accused person is detained but not charged, he/she should have the right to seek compensation.(iv) Bail Application: The 2008UAPA Amendments deny an accused person bail if the court believes that, based on the evi-dence so far, the accusations against him/her are prima facie true. It is inappropriate for the judge to consider the guilt or inno-cence of the accused at a bail hearing. The purpose of a bail hearing is to determine whether the accused will abscond or commit any offences while on bail. At this early stage of proceedings it is highly un-likely that the prosecution will have ade-quate evidence to prove that the case against the accused is prima facie true. Despite a lack of evidence, however, judges are likely to refuse bail for fear or appear-ing lenient on alleged terrorists. The presumption in favour of granting bail was also reversed in Australia, under S 15AA of the Anti-Terrorism Act 2004, with the court only permitted to grant bail in exceptional circumstances for people charged with a terrorism offence. This reversal was censured by theUN’s special rapporteur on the promotion and pro-tection of human rights while countering terrorism, who stated that [w]here there are essential reasons, such as the suppression of evidence or the commis-sion of further offences, bail may be refused and a person remanded in custody…[How-ever, each] case must be assessed on its mer-its, with the burden upon the State for estab-lishing reasons for detention.14The 2008UAPA amendments also deny bail to all non-citizens who have entered India “illegally”, thus denying bail to all asylum seekers or refugees not recognised by the government.
COMMENTARYjanuary 24, 2009 EPW Economic & Political Weekly12(v) Presumption of Innocence and Burden of Proof:As noted by the UN’s special rapporteur on the promotion and protection of human rights and funda-mental freedoms while countering terror-ism, “[t]he right to a fair trial is one of the fundamental guarantees of human rights and the rule of law”.15 The right to a fair trial is protected under Article 14 of the International Covenant on Civil and Politi-cal Rights (ICCPR), which India is a party to. Article 14 protects a number of rights considered necessary for a trial to be fair, including the presumption of innocence and the right to silence.16 The Human Rights Committee (HRC), in its 2007 General Comment No 32, states that while Article 14 is not listed as a non-derogable right, breaching “fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times”, in-cluding public emergencies.17 TheHRC has also established jurisprudence that anti-terrorism measures adopted pursuant to Security Council Resolution 1373 must conform with theICCPR.18 Under Article 51 of the Indian Constitution the government is obligated to “endeavour to… foster respect for international law and treaty obligations”.19 Therefore, any anti-terror legislation must not violate the right to a fair trial by denying an accused the pre-sumption of innocence or reversing the burden of proof.The UN Human Rights Committee’s General Comment No 32 also 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 be-yond reasonable doubt.20 Under the 2008 UAPA Amendments this presumption is denied to the accused. As highlighted above, if arms, explosives, fingerprints or any other “definitive evidence” is found at the crime scene and is linked to the accused, the “Court shall presume, unless the contrary is shown, that the accused has committed such offence”. During the parliamentary debates, the union minister for home affairs justified this reversal of the burden of proof on the basis that in the past, terrorists have evaded conviction because they were permitted to remain silent. The minister stated that if such 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 con-trary evidence”.21 In addition to shifting the burden of proof, this would also deny the accused the right to remain silent. (vi) Power over Assets, Financial Resources, and Freedom of Movement: Under section 51A of the bill the central government has the power to “freeze, seize… attach” and prohibit the use of “funds, financial assets or economic re-sources” of individuals “engaged in orsus-pected to be engaged in terrorism” (empha-sis added). Under this section the central government can also “prevent the entry into or the transit through India of indi-viduals…engaged in orsuspected to be en-gaged in terrorism” (emphasis added). As argued by Asaduddin Owaisi, during the parliamentary debate on the bill, this power is excessively broad. This provision essentially empowers the Indian govern-ment to exercise control over the finances or movements of an individual on the basis of mere suspicion, which is a subjective standard of proof. Thus anyone could be targeted if the government had an interest in freezing their assets or preventing their entry into India, and the accused would have little recourse as suspicion is inher-ently difficult to disprove. 3 Dangers of Making the Extraordinary OrdinaryRather than respond to the Mumbai attacks with well-considered legislation that addresses the complex nature of ter-rorism, the government of India has chosen to merely regurgitate past terrorist laws. The 2008 UAPA Amendments not only reinstate unjust draconian laws from the past, in some cases word for word, but also make them a permanent feature of the criminal justice system. TADA and POTA, now widely discredited as ineffec-tive, were at least only temporary, emer-gency legislative frameworks, with provi-sions for their review, and if required withdrawal. The 2008 UAPA Amendments lack these review mechanisms.3.1 Periodic ReviewUnder the UK Terrorism Act 2000, the home secretary must appoint a person to review the legislation at least once every 12 months. The annual review report must be laid before Parliament.22 TheUK review model has been promoted in other coun-tries, as an effective mechanism for moni-toring the provisions of terrorist legisla-tion, and their impact on human rights.23 Such a review mechanism is especially necessary where individuals have limited capacity to challenge their treatment under terrorist laws. India’s Unlawful Activities (Prevention) Act 2004 grants immunity from prosecution or other legal proceedings to the central and state gov-ernments, and their employees. Addition-ally, the 2008 UAPA amendments provide very limited judicial oversight of criminal proceedings, including bail and pre-charge detention, thus making the need for an independent periodic review of the legislation even more important.Canada’s Anti-Terrorism Act also pro-vides that a parliamentary committee is to be constituted within three years of the Act’s enactment. In accordance with this provision, a House of Commons Subcom-mittee and a Special Senate Committee have reviewed the legislation.243.2 JudicialScrutinyDuring the parliamentary debate on the UAPA Amendment Bill Union Minister for Home Affairs P Chidambaram claimed that there was a safeguard against execu-tive misuse, namely, Section 45(2).25 This section provides that a prosecution must first be sanctioned by an appointed authority, which reviews the evidence and decides if the case should proceed. According to P Chidambaram, this author-ity is independent, and thus the reformed law will have a safeguard against abuse. However, the authority is appointed by the government. As there is no separation of powers under this “safeguard” it is highly probable that the Section 45(2) authority will become a mere rubber stamp for the execu-tive, which has a political interest in appear-ing to be combating terrorist activities.In Australia, the high court, the federal court and the federal magistrates court all have jurisdiction to review executive action. The courts are granted jurisdiction under the Constitution and various feder-al acts to compel or restrain the exercise of executive power and provide adminis-trative law remedies, such as release an
COMMENTARYEconomic & Political Weekly EPW january 24, 200913individual from unlawful detention under habeas corpus.26 The Australian Common-wealth Ombudsman also provides a review mechanism of executive action pursuant to anti-terror legislation.27 If India’s anti-terror laws are to truly balance the imperative for national security with the obligation to uphold human rights, anti-terror legislation must empower an independent judiciary to supervise the ap-plication of the law. Judicial scrutiny would provide a degree of protection to citizens, against executive misuse of the anti-terror laws.3.3 SunsetClauseThe UK’s Joint Committee on Human Rights has recommended “all terrorism legislation should have a life limited to five years maximum, and require renewal by primary legislation not ministerial order”.28 In India, the government’s De-cember 2008 amendments have grafted anti-terrorism provisions into the ordinary criminal law, thus making terrorism legis-lation permanent, unless it is repealed or amended. Previous Indian terrorist legis-lation had a sunset clause, withTADA being in force for eight years,29 andPOTA being in force for three years.30 The cur-rent amendments, therefore, go beyond the precedents set by previous draconian anti-terror legislation, and result in a situ-ation where the provisions of UAPA do not have to be reviewed unless the govern-ment decides to do so. 3.4 Immunity from ProsecutionUnder the Unlawful Activities (Preven-tion) Act 2004[n]o suit, prosecution or other legal proceed-ing shall lie against-(a) the Central Government or a State Gov-ernment or any officer or authority of the Central Government or State Government or District Magistrate or any officer authorised in this behalf by the Government or the Dis-trict Magistrate or any other authority on whom powers have been conferred under this Act, for anything which is in good faith done or purported to be done in pursuance of this Act or any rule or order made there-under; and(b) any serving or retired member of the armed forces or para-military forces in re-spect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.31The 2008 amendments have not altered this provision, thus an individual wrongly arrested, detained and/or imprisoned has virtually no legal recourse to seek com-pensation or combat impunity.4 RecommendationsLaws on their own will not prevent terror-ist attacks. If reforms are to be effective, legislation needs to be supplemented with increased resources, better training and coordination between security agencies, and social inclusion so that minorities are dissuaded from retaliating against the majority. Such a “multi-pronged approach” has been advocated by the Second Admin-istrative Reforms Commission; incorpo-rating legal reform, improved institutional efficiency, increased resources, and socio-economic development and equality.32 Such an approach is better placed to deal with domestic terrorism, rather than one-dimensional legal responses that empower the executive, because a multi-pronged approach reflects the multifaceted nature of terrorism. 4.1 Law ReformThe government of India should immedi-ately repeal the Unlawful Activities (Pre-vention) Bill 2008, and enact separate emergency legislation dealing specifically with terrorism. This emergency anti-terror legislation must not be based on mere rhetoric of balancing national security with human rights, but must actually do so. 4.2 SocialCohesionThe government must promote social cohesion and address the grievances of its constituents. This has been recognised by the Second Administrative Reforms Com-mission, which stated that by responding “to the legitimate and long-standing griev-ances of people” the government can lessen the influence of terrorist propa-ganda, which promises people “wealth and equity”.33 FormerUN secretary-gener-al, Kofi Annan, has also argued that “dis-crimination on the basis of ethnic origin or religious belief… create grievances that can be conducive to the recruitment of ter-rorists, including feelings of alienation and marginalisation and an increased propensity to seek socialisation in extrem-ist groups.”34 As highlighted above, past terrorist laws, such asTADA andPOTA, have been used to target Muslim commu-nities in India. These discriminatory prac-tices continue today.35 The 2008UAPA amendments may also be misused by police authorities against minority groups in India. The relationship between economic opportunity and national security was recognised by Prime Minister Manmohan Singh in December 2007, when he stated that “in many cases, internal security problems arise out of the uneven development”.364.3 PoliceReformAs highlighted above,TADA andPOTA were both associated with misuse by police authorities, which often targeted minority communities. A number of commissions have advocated the establishment of a Police Complaints Authority in each state to ensure that police actions are within the law, and provide an avenue for citizens to lodge complaints against police abuse of power or other illegal activity, such as arbitrary arrest and detention. The gov-ernment of India should pressure the state governments to set up such police com-missions, to ensure that any tough anti-terror provisions are balanced by a safe-guard against police brutality, corruption, and discrimination.5 Conclusions Given the complexity of terrorism, it is in-deed difficult to know what measures will be effective and how exactly to balance collective national security with individual human rights. But India has the benefit of past experience, both with terrorist attacks and different legislative anti-terrorism frameworks. It is precisely this past expe-rience which should now persuade the government that anti-terrorism legislation must not be rushed through with, must not undermine democratic institutions or the rule of law, must redeem the mistakes of past laws, and must comply with inter-national law standards.Certainly, the government needs to ensure that there are effective law enforcement mechanisms to prevent and punish terrorist attacks. But grafting past draconian, and discredited, terrorist laws to the ordinary criminal justice system will not achieve this objective. The rushed
COMMENTARYjanuary 24, 2009 EPW Economic & Political Weekly14December 2008UAPA amendments merely reveal that the government lacks any new ideas about how to tackle terrorism in India.Notes and references1 M Veerappa Moily, Second Administrative Re-forms Commission, “Combating Terrorism: Pro-tecting by Righteousness” (8th report, June 2008) accessed 24 De-cember 2008, p i. 2 This was recommended by Basu Deb Acharia dur-ing the parliamentary debate on the bill. 3 P Chidambaram, “Statement of Objects and Rea-sons” (15 December 2008), The Unlawful Activi-ties (Prevention) Amendment Bill 2008, Bill No 76 of 2008. 4 P Chidambaram, Parliamentary debates, 10 De-cember 2008, ac-cessed 22 December 2008. 5 See Ben Golder and George Williams, “Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism” (2006), 8 Journal of Comparative Policy Analysis, 43, 47 – for a similar argument in relation to terrorist act definitions in other common law countries. 6 Special Rapporteur on the Promotion and Protec-tion of Human Rights while Countering Terrorism (hereafter, Special Rapporteur), “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism” (16 August 2006), UNGA Doc A/61/267, para 44. See also UNSC Res 1566 (8 October 2004) UN Doc S /RES/1566.7Second Administrative Reforms Commission, “Combating Terrorism: Protecting by Righteous-ness” (8th report, June 2008) accessed 24 December 2008, pp 9-10. 8 The Unlawful Activities (Prevention) Amendment Bill 2008, passed by Lok Sabha on 17 December 2008, PassedLoksabha/76-C.pdf accessed 26 December, section 43B(1). 9 Terrorism Act 2006 (UK) acces-sed 26 December 2008, section 23.10 Ari D MacKinnon, “Counterterrorism and Checks and Balances: The Spanish and American Exam-ples”, 82, NYUL Rev 602 (May 2007).11 “Uniting and Strengthening America by Provid-ing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001 (USA PATRIOT Act) 2001”, z?c107:H.R.3162.ENR: accessed 31 December 2008, section 412.12 Council of Europe Parliamentary Assembly, “Pro-posed 42-day Pre-Charge Detention in the United Kingdom” (Committee on Legal Affairs and Human Rights, 30 September 2008) Doc 11725 ac-cessed 29 December 2008.13 Fair Trials International, “Response to the Home Office Discussion Paper on Options for Pre-Charge Detention in Terrorist Cases”,> accessed 29 Dec-ember 2008.14 Special Rapporteur, “Australia: Study on Human Rights Compliance while Countering Terrorism” (14 December 2006), UN Doc A/HRC/4/26/Add 3, para 34.15 Special Rapporteur, “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism” (2008), UNGA Doc A/63/223, p 5.16International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 14(2) and art 14(3)(g).17 HRC, “General Comment No 32 – Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial” (23 August 2007), UN Doc CCPR/C/GC/32 (2007), para 6.18 See UNHRC, “Consideration of Reports Submit-ted by States Parties under Article 40 of the Cove-nant: Concluding Observations of the Human Rights Committee: Estonia” (15 April 2003), UN Doc CCPR/CO/77/EST; UNHRC, “Consideration of Reports Submitted by States Parties under Arti-cle 40 of the Covenant: Concluding Observations of the Human Rights Committee: New Zealand” (7 August 2002), UN Doc CCPR/CO/75/NZL; UN-HRC, “Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: Egypt” (28 November 2002), UN Doc CCPR/CO/76/EGY; UNHRC, “Consideration of Reports Submitted By States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: Republic of Moldo-va” (5 August 2002) UN Doc CCPR/CO/75/MDA; UNHRC, “Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: Yemen” (12 August 2002) UN Doc CCPR/CO/75/YEM; UNHRC, “Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland and Over-seas Territories of the United Kingdom of Great Britain and Northern Ireland” (6 December 2001) UN Doc CCPR/CO/73/UK.19 Constitution of India accessed 19 December 2008.20 HRC, “General Comment No 32 – Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial” (23 August 2007), UN Doc CCPR/C/GC/32 (2007), para 30.21Parliamentary Debate, 17 December 2008 accessed 26 December 2008.22 “Terrorism Act 2006 (UK)” ac-cessed 26 December 2008, section 23.23 “Report of the [Australia] Security Legislation Re-view Committee” (June 2006)[1].pdf/$file/SLRC+Report-+Version+for+15+June+2006[1].pdf accessed 29 December 2008, p.202-203; Aus-tralian Parliamentary Joint Committee on Intelli-gence and Security, “Review of Security and Counter Terrorism Legislation” (2006) accessed 29 December 2008, chapter 2, para 2.60.24 Department of Justice, Canada, “The Anti-Terror-ism Act: Parliamentary Review of the Anti-Terror-ism Act” (20 June 2008) accessed 29 December 2008.25 Parliamentary Debate, 17 December 2008 http:// sdate=12/17/2008 accessed 26 December 2008.26 “Report of the [Australia] Security Legislation Review Committee” (June 2006)[1].pdf/$file/SLRC+Report-+Version+for+15+June+2006[1].pdf accessed 29 December 2008, pp 26-28.27 “Report of the [Australia] Security Legislation Re-view Committee” (June 2006)[1].pdf/$file/SLRC +Report-+Version+for+15+June+2006[1].pdf accessed 29 December 2008, pp 28-29.28 House of Lords, House of Commons, Joint Com-mittee on Human Rights, “Counterterrorism Policy and Human Rights: Prosecution and Pre-Charge Detention” (24th report, Session 2005-06) jt200506/jtselect/jtrights/240/240.pdf accessed 29 December 2008, p 6.29 “Terrorist and Disruptive Activities (Prevention) Act 1987” (India),NATLEGBOD,,IND,3ae6b5818,0.html accessed 23 December 2008, section 1(4).30“Prevention of Terrorism Act (POTA) 2002” (India) act/pota2002294 accessed 23 December 2008, section 1(6).31 “Unlawful Activities (Prevention) Amendment Act 2004”, accessed 30 December 2008.32 Second Administrative Reforms Commission, “Combatting Terrorism: Protecting by Righteous-ness” (8th report, June 2008), accessed 24 December 2008, p 31.33 Second Administrative Reforms Commission, “Combatting Terrorism: Protecting by Righteous-ness” (8th report, June 2008) accessed 24 December 2008, p 31.34 Report of the Secretary-General, “Uniting Against Terrorism: Recommendations for a Global Coun-terterrorism Strategy” (May 2006) ac-cessed 29 December 2008, chapter II.B, para 35.35 The Andhra Pradesh government recently admit-ted wrongly detaining and torturing 21 Muslim youth, over the August 2007 explosions at Mecca Masjid, Gokul Chat and Lumbini Park. See CNN-IBN, 9 November 2008.36 Prime Minister Manmohan Singh, Speech at the Chief Ministers’ Conference on Internal Security (20 December 2007), New Delhi accessed 26 December 2008.EPW Archives (1966-1998) EPW is pleased to offer to its readers digitised pages of the journal from the years 1966-98.The archives are hosted at the EPW web site. Please see “Archives 1966-1998” on the home page.The address is: archives are available to all subscribers of EPW. They are hosted on a separate page and in a format different from the post-1999 archives.The pages for all the volumes for 1989-1998 are now available.Gradually, working backwards pages of all issues from 1966 onwards will be accessible by 31 March 2009. Readers are encouraged to read the detailed description of and introduction to the 1966-98 archives on the opening page of this section on the web site.Access to these archives is restricted to print/web subscribers of EPW.Please do subscribe to the journal to access these archives.

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