Why are Indians so shocked by the recent Amendment to India’s anti-terrorism law?

Why do Indians consider the recent Amendment to an anti-terrorism law as unconstitutional when the Constitution in-fact does allow arbitrary arrest? Columnist ANMOL SINGH HUNDAL explores the issue

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By Anmol Singh Hundal | OPINION |

The Indian Parliament recently passed an amendment to an anti-terrorism law known as the Unlawful Activities Prevention Act 1967 (or UAPA). The Indian media is making a big deal out of it because the law allows the Indian Union Government to arbitrarily declare an individual as a terrorist with the onus being on the individual that he is not one. Some are even calling this amendment “unconstitutional”.

I will argue the following in this article:

  1. The law was already bad enough without this Amendment.
  2. In the past many such (and even worse) laws have been passed by the Union Government and were used against specific minorities.
  3. The Indian Constitution does allow arbitrary arrest. Thus, this amendment is fully constitutional.

Introduction: What the leaders of the newly formed Republic of India called a “nation” was in fact a multi-ethnic, multi-lingual, multi-cultural empire that they wanted to forge into a nation. As such, one thing that Indian leaders are very nervous about is the unity and integrity of India and they are willing to use as much force as necessary to hold India together.

THE ORIGINAL UAPA 1967:

The original UAPA defined what were called “unlawful” and “terrorist” activities and also specified the punishment for individuals who commit those activities.
Unlawful Activities: These were defined in passage “o” of the Section 2 of UAPA 1967.

The following is a reproduction of that passage:

(o) “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise), —

(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;

The punishment for an unlawful activity is described in Section 13 which is reproduced as follows:

13. Punishment for unlawful activities. —

(1) Whoever —

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

(2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.

(3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorized in this behalf by the Government of India

According to that definition, even a verbal cry of “May Panjab be Sovereign” or “May Kashmir be Sovereign” by a common citizen would be considered an “unlawful activity” and could be punished by life imprisonment depending on the circumstances.

Terrorist Act: This was defined in Section 15 which is reproduced as follows (emphasis mine):

15 Terrorist act. — Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or ­sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, —

(a) by using bombs, dynamite or 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 (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause —

(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Explanation. — For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary.]

Again, would a verbal cry of “May Panjab be Sovereign” be considered a terrorist act? Even though this definition places more emphasis on violent activities, according to the very first statement (“whoever does any act with intent to threaten or likely to threaten the unity … of India” commits a terrorist Act), the answer is yes. And the punishment for a terrorist act is no less severe than that for an “unlawful activity”. Now, what is this if not a violation of freedom of speech and conscience?

And UAPA is not the only such law, I can make the same argument by quoting passages from another draconian law known as the Terrorist and Disruptive Activities Act 1987 (or TADA)

THE PUNJAB DISTURBED AREAS ACT 1983:

If the provisions of the UAPA did not arouse your contempt, I promise you this one will. The UAPA only allows the State to label certain actions as “unlawful” and punish individuals for it. This one is a bit more efficient from the angle of the State as it allows State officials to just kill anyone they want. It also protects those State officials who commit such a murder from a subsequent court inquiry. The following is a reproduction of some passages of this law (emphasis mine)

4. Power to fire upon persons contravening certain orders. — Any Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case of the Armed Branch of the Police may, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning, as he may consider necessary, fire upon, or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.

6. Protection of persons acting under sections 4 and 5. — No suit, prosecution or other legal proceedings shall be instituted except with the previous sanction of the 1 [Central Government] against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sections 4 and 5.
The above passages are pretty clear and do not need further clarification. Welcome to India.


THE INDIAN CONSTITUTION:

You might wonder what the Indian Constitution says about this. Since India is advertised as the “world’s largest democracy”, its Constitution should guarantee its citizens some personal liberties. The answer is that we have been lied to from the very beginning. The Indian Constitution in fact does not guarantee any liberty to its citizens and people have been pointing this out since the day this Constitution was enacted.

Article 19: This Article is said to provide Indian citizens with their basic liberties but as we shall see it does the opposite. The following is a reproduction of Article 19:

19. (1) All citizens shall have the right —
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms; © to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause © of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, —
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Passage (1) seems to provide some liberties at first but then all of that is nulled by the subsequent passages. For freedom of speech in particular, nothing prevents the state to impose “reasonable restrictions” on speech in the interests of “morality”, “decency” and the unity and integrity of India.

Article 22: This Article is purported to prevent arbitrary arrest, but just like the case with Article 19, it does the opposite. The following is a reproduction of the Article:

22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply —
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless —

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub- clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe —
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

At first glance this Article seems to prevent the State from making arbitrary arrest and that is what passages (1) and (2) say. However, the subsequent passages allow for exception which allow the Parliament to make laws which allow to State to make arbitrary arrests. This was also pointed out by Shri HV Kamath, a member of the Constituent Assembly.

Again, we and the emergency provisions and article 22–I do not know how the latter found a place in the Fundamental Rights,–the right of a person to be detained without trial for three months or more. These provisions water down the principle embodied in the Preamble regarding individual liberty. They have fettered individual liberty.  – Shri HV Kamath (Constituent Assembly Debates Vol XI, 19th November 1949)

If the Constitution provides no rights to begin with, then how can we call laws that infringe the liberty of citizens as unconstitutional? It might be unjust, but it is constitutional.

Why was there not an outcry before?

As I have demonstrated previously, the Indian Parliament had in the past created laws that were even worse and segments of Indian population were made subject to them. Panjabis and Sikhs in particular were one of the victims. Much of the Sikh youth in the Panjab was decimated by the Indian State during the 80s when Panjabis lived in terror of the Indian State for about a decade. The perpetrators were rarely held accountable and even the few who were imprisoned by the Indian judiciary were granted pardons by the Union Government. The family members of the victims have accepted the fact that there would be no justice. Despite all this, there was no outcry for human rights or the “unconstitutionality” of these laws in the Indian Media or among Indian celebrities. What was the reason behind that?

The reason is that suppression of liberty is not the issue here. The issue here is that currently it is the Indian Right (BJP) in power and the Indian Left (INC) wants to present a narrative that the Right (in contrast to the Left) presents a threat to the so called “democratic foundations” of India. In reality however, both the Left and the Right stand for centralized dictatorial unaccountable rule at the expense of the freedom of the individual. Just remember that most of the suppression of personal liberty and mass murders of minorities took place when the Left was in power and the perpetrators still walk free.

Conclusion: The audience of the Indian Media (both Indian and Western) should be extremely careful because the sole purpose of the Indian Media is to deceive others and prevent them for focusing on real issues. Also, Indians should have empathy with those who lived under the terror of the Indian State and should stand for justice for the victims. Finally, Indians should know their Constitution and should understand that it is the source of all these draconian laws that strip them of their liberty and that they perceive as “unconstitutional”. If they cannot accept that, then honestly this is what they deserv

Anmol Singh Hundal is a US-based software engineer at Quora and author of The Constitution of India Simplified. The article was also published here.

* This is the opinion of the writer, organisation or publication and does not necessarily represent the views of Asia Samachar.

 

RELATED STORY:

Was Maharaja Ranjit Singh an Indian or a Panjabi? (Asia Samachar, 28 June 2019)

Will the BJP rewrite the Constitution of India now that it has won the 2019 elections? (Asia Samachar, 30 May 2019)

 

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