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UAPA: Sharpening teeth and claws to act against terror activities
Passing of the Unlawful Activities (Prevention) Amendment Bill will now make it easier for the Centre to deal with J and K’s situation.
Chennai
Proceeding against terrorism and those involved in terror activities will be quicker. Little could people guess what exactly would follow quick in succession, soon after the passage of the Unlawful Activities(Prevention) Act (UAPA) Amendment Bill in the Rajya Sabha on August 2, 2019.
On August 5, the special status to Jammu & Kashmir was scrapped with the abrogation of Article 370. But that was just taking a big constitutional step forward. What now remains is the bigger task, that is managing the complexities of Kashmir on the ground, including the volatile youth, fire-spewing local political leaders, and hundreds of splinter terrorist organisations operating in the Valley, clandestinely supported by Pakistan.
The prime objective of this Amendment Bill was to strengthen the anti-terror preventive powers of the National Investigation Agency (NIA), by making it agile, quick to put in action, and to take preventive action against any individual who could be named as a ‘terrorist’, thus going beyond the earlier provision of UAPA, where only organisations could be listed as a ‘terrorist organisation’.
When questioned on the need for naming individuals as terrorists, Union Home Minister Amit Shah said thus in the Upper House: “When the USA, Pakistan, China, Israel and the UN can name individuals as terrorists, what is the problem if we in India also do it”. UAPA can be equally used by the state police.
By evening of the same day, social media had started buzzing with unofficial news that PM Narendra Modi and Home Minister Amit Shah were planning some drastic action on Jammu and Kashmir.
The timing of passing this Amendment Bill by the Modi-Shah combine is now being seen as a master stroke by political analysts, as this would be extremely handy for the Government of India to manage the affairs in Jammu and Kashmir, post abrogation of Article 370, which many fear is not going to be smooth for quite some time to come.
This will help the government take strong preventive action against many individual Kashmiri leaders who were openly supporting several anti-national splinter groups mushrooming under different names in the Valley.
Even the Bill’s draft presented by the Home Minister for passing in the Upper House had stated this clearly: ‘Presently, the NIA faces many difficulties in the process of investigation and prosecution of terrorism-related cases. With a view to overcome such difficulties being faced by NIA in the investigation and prosecution of terrorism-related cases due to certain legal infirmities and also to align the domestic law with the international obligations as mandated in several Conventions and Security Council Resolutions on the issue, the government proposes to amend the said Act and for the said purpose, introduce the Unlawful Activities (Prevention) Amendment Bill, 2019’.
This UAPA that first came into existence in 1967 was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations, and for dealing with terrorist activities, and for matters connected therewith. Despite the said objective, in order to make it more effective, this Act had been amended in the years 2004, 2008 and 2013 to add certain provisions relating to various facets of terrorism.But with the existing set of laws under this Act, the NDA government was finding it difficult to deal effectively with the growing threats and changing character, and the new emerging dimensions of anti-national terror activities. With the shocking Pulwama bomb attack in the pre-election months in February 2019 in Kashmir, the issue of strong-hand dealing with terrorism had become top-of-mind agenda not only for PM Modi, but had even gripped the entire nation emotionally.
Political opposition
The Opposition parties led by the Congress have been crying wolf, raising apprehensions and fears about the potential of this Amendment being misused by the current BJP government to harass those individuals not in their favour, by designating them terrorists on their whims and fancies.
The most vocal of the Congress leaders in the Rajya Sabha were Digvijaya Singh and P Chidambaram, who insisted on getting an answer from the Home Minster on what the need was to tag individuals as terrorists now when the organisations they were affiliated to were banned already.
Amit Shah, who had moved this Bill in the Upper House, replied, “It is because when we ban one organisation, another one is formed by the same individual. By the time NIA collects evidence and follows the process to ban an organisation, it takes a couple of years. In the meantime, the individuals continue their terror activities. Till when will we keep banning organisations?”
On the issue of this amended Act possibly being misused against the Kashmiris, Shah further said, “Terrorist acts are committed not by organisations but by individuals. Terrorism has no religion. They are against humanity.”
Offence relating to membership ofa terrorist organisation
A person, who associates himself, or professes to be associated with a terrorist organisation with the intention to further its activities, commits an offence relating to membership of a terrorist organisation, provided that this sub-section shall not apply where the person charged is able to prove that he has not taken part in the activities of the organisation at any time during its inclusion in the list as a terrorist organisation.
Opposition’s apprehensions
The Congress party has been the most vocal among other political parties, voicing its fears against designating any individual as terrorist. Digvijaya Singh questioned, “We doubt their (the BJP’s) intent. The Congress never compromised on terrorists, that is why we had brought this law. It is you (the BJP) who compromised on terror, once during the release of Rubaiya Sayeed ji and second, by letting go of Masood Azhar”. Shah retorted, “They (the Congress) killed democracy when for 19 months India was put under Emergency, when there was no national threat at all. It was only because the Allahabad court had declared Indira Gandhi’s election as invalid. The Congress cannot afford to talk of misusing the laws, as their history is known to all”.
However, on a serious note, the Home Minister assured the House against any possible misuse of this Act. “There is a provision for a committee that is formed for Appeal. There is a review committee which is quasi-judicial. And added to that are the High Courts and the Supreme Court that could be approached. There won’t be violations of human rights. Scrutiny of cases will happen in four stages.”
The Key Amendments
As per the Amendment, an organisation shall be deemed to be involved in terrorism if it:
- Commits or participates in acts of terrorism, or
- Prepares for terrorism, or
- Promotes or encourages terrorism, or
- Is otherwise involved in terrorism
- The Bill additionally empowers the government to designate individuals as terrorists on the same grounds
- It authorises DG (NIA) to attach properties of anyone so named
- Centre authorised to add or remove names of terrorist/terrorist organisation
- Officers of the rank of Inspector and above can investigate cases
- Courts cannot take cognisance of an offence without the Central government’s sanction
- It lists nine treaties whose provisions will define terrorist acts
A look at the provisions of the amended UAPA 2019
Empowering investigating officers: Empowers the Director General (DG), NIA to grant approval of seizure or attachment of property when the case is brought under investigation. A PRS research report says an investigating officer is required to obtain the prior approval of the Director General of Police, state, to seize properties that may be connected with terrorism
Central government empowered to add or de-notify the name of an individual terrorist or terrorist organisation: The Central Government may, by notification, in the Official Gazette, (1) add an organisation, (2) add an organisation that is identified as a terrorist organisation in a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, to combat international terrorism, (3) remove an organisation (4) or, amend the list in some other way
The Bill also adds that if the investigation is conducted by an officer of NIA, then he needs a prior approval in writing from the DG, NIA for seizure of such property. If an officer investigating an offence, committed under UAPA provisions, has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the designated authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned
Insertion to schedule of treaties: As per PRS Research, the Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in 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)
Officers competent to investigate: No police officer below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under UAPA provisions. The Bill additionally empowers the officers of NIA, of the rank of Inspector or above, to investigate cases
Cognisance of offences: No court shall take cognisance of any offence, without the previous sanction of the Central government or, as the case may be, the State government, and where such offence is committed against the government of a foreign country, without the previous sanction of the Central government
Removal of an individual or an organisation from the Terrorist List: An application under sub-section (1) may be made by: (a) the organisation, or (b) any person affected by inclusion of the organisation as a terrorist organisation. The Review Committee may allow an application for review against rejection to remove an organisation from the list, if it considers that the decision to reject was flawed when considered in the light of the principles applicable on an application for judicial review
“Nowadays, terror-related funds are lying in shares or gold schemes on DMAT or digital forms, where they can be transferred out in seconds, therefore the DG of NIA is empowered to approve confiscation of terrorist’s property. If it is state police, then the state’s DG can issue orders. But very often these cases are inter-state or international, and thus transferred to NIA from state police. Hence the NIA DG is empowered now, not that the power of approval has been taken away from state police DG,” Amit Shah explained
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