In Parliament this month, former Union Minister P. Chidambaram questioned the need for certain amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967. The Bill empowers the Central government to name any individual a terrorist if it believes him or her to be so.
Arguments in Parliament
Mr. Chidambaram said, “We [the Congress] are opposing the mischievous amendment which has empowered the Central government to name an individual [as a terrorist]... The real mischief is in Section 35 subsection (2)... as amended reads: The Central government shall exercise its power under Clause (a) of sub-section (1) in respect of an organisation or an individual only if it believes [that] such [an] organisation or individual is involved in terrorism... There is no FIR. There is no charge sheet. There are no charges framed. There is no trial in a court. There is no conviction... What is the basis in which you will name an individual? Only because you believe he’s involved in terrorism... My worry is, who you are going to name first? Don’t compare Hafiz Saeed with Gautam Navlakha. My worry is there’s a close parallel between sedition and unlawful activity. In Bhima Koregaon... all the accused... are all activists… I believe that none of them advocates violence. If you name somebody only because you believe he is involved in terrorism, that day none of us can sleep in peace.”
Defending the amendment, Home Minister Amit Shah said: “This Act is to fight terror and has no other purpose... Chidambaramji asked why name an individual as a terrorist when the organisation he is affiliated to is already banned. It is because we ban one organisation, another one comes up by the same individual. Till when will we keep banning organisations?”
The above parliamentary exchange mirrors the uneasiness of the powerless when confronted by the seemingly righteous indignation expressed by governments seeking increased powers to deal with disaffection and anarchy. Governments keep asserting that they bear no malice, but only seek to keep the country united against existential threats. Those in Opposition are wary of laying the citizen’s liberties at the feet of the great man of the day.
The UAPA was passed by the Indira Gandhi government. Its political justification then was to deal with the secessionist utterances of the Dravidian movement. During the 1962 war, the Communist Party blamed Jawaharlal Nehru and did not wholeheartedly support the Indian troops. In 1966, Hindu Sadhus protesting against cow slaughter marched in front of Parliament. It was against this backdrop that an unlawful activity was defined as “any action taken... (i) 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; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India.”
In his speech in Parliament during the no-confidence motion of July 1993, Atal Bihari Vajpayee recalled, “When the Unlawful Activities (Prevention) Bill was presented in the House in 1967, I was a member of the House... A grand debate was held that time. Shri Yashwant Rao Chavan went on assuring the Members that it would not be applied against them. He gave an assurance that the Government was seeking a right to take action against those who wanted to disintegrate the country. I too delivered my speech. I started [sic] my apprehension that the Government would involve all the opposition parties in the name of so-called cause of integrity and declare the opposition as unlawful. Those who would be declared unlawful would go underground. You want to stop the unlawful activities, but how can you stop these activities, you have the option to arrest them; but are you making arrests that can win the battle of thoughts?”
It is pertinent to mention that when Vajpayee was speaking thus, the Rashtriya Swayamsevak Sangh itself had been declared unlawful under the UAPA by a notification of December 10, 1992. Despite his apprehensions in 1967, Vajpayee and other individual members of banned organisations were not arrested solely on grounds of being a member of such an organisation.
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 and the Prevention of Terrorism Act — were repealed due to repeated misuse by law enforcement authorities, the UAPA was amended in 2004 to bring into its fold cases of terrorism. A large list of organisations such as the Liberation Tigers of Tamil Eelam, the Hizbul Mujahideen and the Khalistan Commando Force have been included in the schedule to the UAPA as banned organisations. Most of these bans are not challenged, and judicial tribunals have upheld the imposition of such bans from time to time.
Banning an organisation renders its members vulnerable to prosecution. Other than imprisonment, consequences include loss of property linked to terrorism. To avoid such drastic results, a member of such an organisation may prove that he or she has not interacted with the organisation after the ban order. The organisation itself may challenge the notification in a judicial tribunal.
All these defences will vanish if an individual is notified as a terrorist. No link to any organisation needs to be proved. What is worse is that people consorting in any manner with a notified individual can also be roped in under the Act. The Act itself is broadly framed, to sweep in all kinds of suspect organisations. The same looseness of language when applied to an individual can be catastrophic at the level of his fundamental rights. Almost any utterance on social media these days can be construed as one “which causes or is intended to cause disaffection against India”.
The Act itself carries no safeguards against its misuse at an individual level. A judicial determination at a later stage is scant solace to a man in danger of losing liberty and his house for being associated with someone who has been designated as a terrorist under the Act. The die has been cast, however. Despite Mr. Chidambaram’s arguments, his party ended up ensuring the passage of the amendment. At the end of the day, the Congress and the BJP have together sacrificed individual liberties at the altar of national security. Benjamin Franklin said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Indians deserve better respect for their liberties than this ill-thought-out parliamentary misadventure.
Sanjay Hegde is a senior advocate of the Supreme Court of India