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. Terrorism is a multifaceted phenomenon that must be dealt with intelligently. Anti-terror laws must only be enacted after well-considered debate. Laws that empower the security agencies by limiting civil liberties should not be constructed in haste. The December 2008 Unlawful Activities (Prevention) Bill was rushed through without adequate debate. The government ignored calls from some Members of Parliament (MPs) to refer the bill to a standing committee for review before being enacted.
Disappointingly, the bill incorporated provisions borrowed from previous anti-terrorist laws, which were discredited due to their misuse by the police and their draconian anti-rights measures. Yet, despite the fact that these past anti-terror laws failed to achieve their objective, and divided Indian society by being used predominantly against minority groups, the United Progressive Alliance (UPA) government has chosen to revive them with minor alterations.
Undermining Civil Liberties and Criminal Investigations
The 2008 legislative amendments intended to deal with terrorists, and adopted in haste following the November 2008 Mumbai terrorist attacks, were preceded by the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA), and the Prevention of Terrorism Act 2002 (POTA). Both TADA and POTA were criticised as draconian and anti-rights. TADA lapsed in 1995; the government decided not to extend the legislation following widespread protests. POTA was repealed in 2004, with the government recognising that its provisions were being misused.
Both TADA and POTA were censured for being used as a control mechanism against minority groups in India. In 2004 the government introduced amendments to the Unlawful Activities (Prevention) Act 1967 (UAPA), thus making UAPA India’s main anti-terror legislation. The December 2008 Unlawful Activities (Prevention) Amendment Bill further amends this Act.
As will be shown below, the December 2008 amendments merely borrow provisions from the previous anti-terror laws, rather than offering a new approach, in spite of the past failures of stringent anti-rights laws to curb terrorist attacks.
The 2008 amendment
According to the government, the December 2008 amendments balance the need to fight terrorism with the need to protect civil liberties. The 2008 Amendment Bill proposes a number of changes to the existing UAPA Act.
(i) Definition of a ‘Terrorist Act’: The 2008 UAPA Amendment Bill defines a terrorist act in very broad terms.
(a) The physical element: The 2008 amendments, which are virtually identical to the POTA provision, stipulate that a terrorist act is one involving the use of “bombs, dynamite… other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances… of a hazardous nature or by any other means of whatever nature” (emphasis added). This last sentence means that any physical act could be deemed a terrorist act, if the government could satisfy the very low burden of proof threshold – that the act was likely to cause terror in the people. For example, if Indian paramedics commenced industrial action it could be argued that they are committing a terrorist act, because the strike is “likely to strike terror in the people”, who would have limited access to emergency assistance, and the strike is likely to cause “disruption [to]…services essential to the life of the community” by using “means of whatever nature”, thus satisfying the Section 15 definition.
This example demonstrates the unacceptably 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 empowers 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 amended UAPA if it is politically convenient.
(b) The mental element: The 2008 amendment follows the POTA precedent 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 previous POTA definition, by specifying that any act “ likely to threaten the unity, integrity, security or sovereignty of India” or any act “likely to strike terror in the people…in India or in any foreign country” is also a terrorist act. 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 countering terrorism, “at the national level, the specificity of terrorist crimes is defined by the presence of three cumulative conditions: (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.
The British, Canadian and Australian anti-terrorism laws all define terrorism as an act carried out for the purpose of advancing a political, religious or ideological objective. 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 ordinary criminal acts. The 2008 Amendment definition fails to do this, and thus remains ambiguous and reflects a lack of conceptual 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 person, or “from any document, article or any other thing which may furnish evidence of the commission” of an offence under the Act. The arresting officer only needs to inform the suspect of the charge against him/her “as soon as may be”
(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 extension of pre-charge detention should consider whether there is adequate evidence against the accused, justifying his/her continuing 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. 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 detained for seven days under the PATRIOT Act. 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 precharge detention may have detrimental effects… on private and family life… fr
eedom 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.”
Fair Trials International has also argued that “[h]olding people without charge for lengthy periods, based on the assumption that evidence will be found to prove their guilt, is a disproportionate violation of the right to liberty and presumption of innocence”.
At a minimum, a judge considering the extension of pre-charge detention must consider and record in writing the decision 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 2008 UAPA Amendments deny an accused person bail if the court believes that, based on the evidence so far, the accusations against him/her are prima facie true. It is inappropriate for the judge to consider the guilt or innocence 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 unlikely that the prosecution will have adequate 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 appearing 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 the UN’s special rapporteur on the promotion and protection of human rights while countering terrorism, who stated that [w]here there are essential reasons, such as the suppression of evidence or the commission of further offences, bail may be refused and a person remanded in custody…[However, each] case must be assessed on its merits, with the burden upon the State for establishing reasons for detention.
The 2008 UAPA 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.
(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 fundamental freedoms while countering terrorism, “[t]he right to a fair trial is one of the fundamental guarantees of human rights and the rule of law”. The right to a fair trial is protected under Article 14 of the International Covenant on Civil and Political 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.
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”, including public emergencies. The HRC has also established jurisprudence that antiterrorism measures adopted pursuant to Security Council Resolution 1373 must conform with the ICCPR.
Under Article 51 of the Indian Constitution the government is obligated to “endeavour to… foster respect for international law and treaty obligations”. Therefore, any anti-terror legislation must not violate the right to a fair trial by denying an accused the presumption 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 beyond reasonable doubt. 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 contrary evidence”. 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 resources” of individuals “engaged in or suspected to be engaged in terrorism” (emphasis added). Under this section the central government can also “prevent the entry into or the transit through India of individuals… engaged in or suspected to be engaged 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 government 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 inherently difficult to disprove.
Dangers of making the extra ordinary ordinary
Rather than respond to the Mumbai attacks with well-considered legislation that addresses the complex nature of terrorism, 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 ineffective, were at least only temporary, emergency legislative frameworks, with provisions for their review, and if required withdrawal. The 2008 UAPA Amendments lack these review mechanisms.
Under 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. The UK review model has been promoted in other countries, as an effective mechanism for monitoring the provisions of terrorist legislation, and their impact on human rights. 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 governments, and their employees. Additionally, the 2008 UAPA amendments provide very limited judicial oversight of criminal proceedings, including bail and precharge detention, thus making the need for an independent periodic review of the legislation even more important.
Canada’s Anti-Terrorism Act also provides 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 Subcommittee and a Special Senate Committee have reviewed the legislation.
During the parliamentary debate on the UAPA Amendment Bill Union Minister for Home Affairs P Chidambaram claimed that there was a safeguard against executive misuse, namely, Section 45(2). This section provides that a prosecution must first be sanctioned by an ap
pointed authority, which reviews the evidence and decides if the case should proceed.
According to P Chidambaram, this authority 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 executive, which has a political interest in appearing 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 federal acts to compel or restrain the exercise of executive power and provide administrative law remedies, such as release an individual from unlawful detention under habeas corpus
The Australian Commonwealth Ombudsman also provides a review mechanism of executive action pursuant to anti-terror legislation. 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 application of the law. Judicial scrutiny would provide a degree of protection to citizens, against executive misuse of the anti-terror laws.
The 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”. In India, the government’s December 2008 amendments have grafted anti-terrorism provisions into the ordinary criminal law, thus making terrorism legislation permanent, unless it is repealed or amended. Previous Indian terrorist legislation had a sunset clause, with TADA being in force for eight years, and POTA being in force for three years.
The current amendments, therefore, go beyond the precedents set by previous draconian anti-terror legislation, and result in a situation where the provisions of UAPA do not have to be reviewed unless the government decides to do so.
Immunity from Prosecution
Under the Unlawful Activities (Prevention) Act 2004 [n]o suit, prosecution or other legal proceeding shall lie against- (a) the Central Government or a State Government 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 District 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 respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.
The 2008 amendments have not altered this provision, thus an individual wrongly arrested, detained and/or imprisoned has virtually no legal recourse to seek compensation or combat impunity.
Laws on their own will not prevent terrorist 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 Administrative Reforms Commission; incorporating legal reform, improved institutional efficiency, increased resources, and socioeconomic development and equality. 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.
The government of India should immediately repeal the Unlawful Activities (Prevention) 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. The government must promote social cohesion and address the grievances of its constituents. This has been recognised by the Second Administrative Reforms Commission, which stated that by responding “to the legitimate and long-standing grievances of people” the government can lessen the influence of terrorist propaganda, which promises people “wealth and equity”.
Former UN secretary-general, Kofi Annan, has also argued that “discrimination on the basis of ethnic origin or religious belief… create grievances that can be conducive to the recruitment of terrorists, including feelings of alienation and marginalisation and an increased propensity to seek socialisation in extremist groups.”
As highlighted above, past terrorist laws, such as TADA and POTA, have been used to target Muslim communities in India. These discriminatory practices continue today. The 2008 UAPA 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”.
As highlighted above, TADA and POTA 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 government of India should pressure the state governments to set up such police commissions, to ensure that any tough anti-terror provisions are balanced by a safeguard against police brutality, corruption, and discrimination.
Given the complexity of terrorism, it is indeed 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 experience 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 international 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 December 2008 UAPA amendments merely reveal that the government lacks any new ideas about how to tackle terrorism in India.
This article appeared in the Economic and Political Weekly, volume no. 44 issue no. 4 dated 24 January 2009-30 January 2009.
Ravi Nair is the Executive Director of the South Asia Human Rights Documentation Centre, based in New Delhi. SAHRDC is the Secretariat of the Asia Pacific Human Rights Network and SAHRDC has Special Consultative Status with the United Nations Economic and Social Council [ECOSOC]