Indian Counter-Terrorism Law Fails To Conform With International Law

The Indian government’s 2019 amendment to the Unlawful Activities Prevention Act 1967 (UAPA) was made to curb terrorism and other crimes. This has given discretionary and arguably limitless powers to the central government, which will likely encourage arbitrary and unreasonable use of UAPA to silence a particular person, group, or section of society.

UAPA is the current counter-terrorism legislation in India and provides specific procedures to deal with so-called terrorist activities. The 2019 amendment contains provisions in direct violation of the Indian Constitution and international human rights standards. UAPA has been criticised by many international bodies, including Amnesty International and Progressive International amongst others.

It poses a myriad of challenges to the principles laid out in the country’s constitution and international law since its very inception. The provisions of the legislation deal with matters such as branding a person as a “terrorist” without providing any detailed grounds for what this means, banning associations without proper judicial scrutiny, reversal of the right to be presumed innocent until proven guilty, and the length of pre-trial detention, all of which are unquestionably in violation of the Indian Constitution and set principles of international law.

In recent years, UAPA has been routinely weaponised against critics of various ruling governments, which is confirmed by the data from the National Crime Records Bureau (NCRB) Crime in India statistics released for 2019.

A total of 1226 cases were filed under UAPA in 2019, an increase of 33% from 2016. Charge sheets were only filed in 9% of cases, and 11% of cases were closed due to insufficient evidence or because the accused was untraceable. The conviction rate for UAPA cases was 29.2% in 2019. A number of petitions were unsuccessfully filed to declare the provisions of the Act unconstitutional. 

A number of United Nations Special Rapporteurs wrote to the Indian government on 6 May 2020 to voice their concerns regarding UAPA. The letter addressed UAPA’s non-compliance with set international standards for counter-terrorism legislation as well as several violations of the international human rights obligations of India.

PRINCIPLE OF LEGAL CERTAINTY

Article 15(1) of the United Nations International Covenant on Civil and Political Rights (ICCPR) and article 11 of the Universal Declaration of Human Rights (UDHR) enshrine the principle of “legal certainty,” which requires criminal law to clearly lay out what constitutes an offence so as to prevent any arbitrary application or abuse.

In contrast, UAPA offers an ambiguous definition of what constitutes a “terrorist act”. This very broad definition includes the death of or injuries to any person, damage to any property, an attempt to “over awe any public functionary” by means of criminal force, and any act to compel the government or any person to do, or abstain from doing, any act. It is worth noting that the definition also encompasses any act that is “likely to threaten” or “likely to strike terror in people,” giving unbridled power to the government to brand any ordinary citizen or activist a terrorist without these acts actually being committed. This undermines a range of fundamental human rights and poses a real risk of deliberate misuse.

It was noted by the Special Rapporteurs that “non-violent criticism of state policies or institutions, including criticism of the judiciary, should not be made a criminal offence under counter-terrorism measures in a society governed by rule of law and abiding by human rights principles and obligations”.

Article 19 of the UDHR and article 19 of the ICCPR provide for the right to freedom of expression. The Human Rights Council Resolution 12/16 calls for states to recognise the right to exercise freedom of opinion and expression as one of the essential foundations of a democratic society. The Indian Constitution also recognizes this right under article 19(1)(a).

The reversal of the burden of proof in UAPA violates the right to presumption of innocence as set out in article 14(2) ICCPR and article 11(1) UDHR which state that every person charged with a criminal offence is entitled to be presumed innocent until proven guilty according to law.

PRE-TRIAL DETENTION AND BAIL

The ICCPR allows for pre-trial detention to be used only as a last resort when it is necessary, reasonable, and proportionate to the objective sought by the prosecution. However, detention under UAPA is allowed for 180 days without being charged, in contrast to the usual 60-90 days under India’s criminal law. Article 14(3)(c) ICCPR provides that a person charged with a criminal offence has the right to be tried without undue delay and this is a well-established principle under international law. If there is undue delay, the person must be released.

Police custody under UAPA can be extended by up to 30 days, increasing the possibility of custodial violence. This allows for an individual to be detained arbitrarily for prolonged periods of time, and with a bleak possibility of bail. It contravenes the legal doctrine that “bail is the rule, jail is an exception”. In this regard, UAPA is grossly inconsistent with set international human rights standards.

Masarat Zahra, a female photojournalist based in the state of Jammu and Kashmir, was unfairly booked under UAPA for allegedly “uploading anti-national posts with criminal intention to induce the youth and promote offences against public tranquillity”. This was an act of intimidation and attracted strong criticism from journalists and activists all over the world.

Safoora Zargar, a 27-year-old student of Jamia Milia University was arrested under UAPA for inciting riots in Delhi during the Citizenship Amendment Act (CAA) protests. She was detained whilst three-months pregnant amidst the COVID-19 pandemic. Her bail application was rejected three times before being granted by the court on “humanitarian grounds” after 70 days.

It is significant that the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the “Bangkok Rules”) recommend that whilst deciding on pre-trial measures, non-custodial alternatives should be preferred for pregnant women where possible and appropriate.

THE RIGHT TO PRIVACY

UAPA also violates article 17 ICCPR and article 12 UDHR which protect against arbitrary and unlawful interference with a person’s privacy and home. The amendments allow for searches, seizures and arrests on the basis of the “personal knowledge” of police officers, without a written validation from a superior judicial authority—that is, without a warrant from the magistrate.  

UAPA also gives officers the power to examine the books of the person, search for securities, credits, and to make inquiries of the person. They also have the power to intercept a person’s communication without any independent prior approval or monitoring.

This was seen in the case of Anand Teltumbde, a Dalit activist arrested under UAPA for his alleged role in hatching conspiracy to promote enmity between caste groups, leading to violence and loss of life. He wrote an open letter in which he stated that his phone was tapped without permission and was used to wrongly implicate him.

UAPA can therefore be used to gravely interfere with a person’s privacy. It can also be used to attack their reputation and honour, a fundamental right enshrined under article 21 of the Indian Constitution.

As rightly observed by the Human Rights Council, UAPA has become “an instrument of oppression,” which was essentially meant to combat terror and known terrorist organisations. The incumbent government is arbitrarily using the provisions of UAPA against those who oppose it and its policies such as critics, dissidents, civil society, religious minorities, lawyers, artists, and human right defenders, amongst others.

With this in mind, arrest under this draconian law sends a chilling message to citizens that their disagreement with the government will not be tolerated in any way, and will instead be penalised. This is causing irreparable damage to an already collapsing democratic system and is unacceptable when considering its incompatibility with the international framework for protection of human rights and the Indian Constitution itself.

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Kajal Prasad is a final year law student at Campus Law Centre, University of Delhi, India. She is interested in doing research in the field of international human rights law, humanitarian law and refugee law and wishes to pursue a career in this field. Currently, she contributes as a joint secretary to a registered society named The Human Street Foundation.

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