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Reject amendments to UAPA – An appeal to members of the Rajya Sabha: JTSA

December 4, 2012

This release was put out by the JAMIA TEACHERS’ SOLIDARITY ASSOCIATION on 3 December 2012. Full list of signatories at the end.

It is saddening and surprising that at a time when more and more evidence is surfacing about the extensive abuse of anti-terror laws in targeting minorities, tribals, deprived sections as well as political activists, the government has chosen to move amendments in the present UAPA 2008. These amendments will make the law even more draconian and amenable to human rights violations.

 You will remember that the amendments in the Unlawful Activities Prevention Act 1967 were passed in December 2008 without any thoroughgoing debate in the aftermath of the horrendous carnage in Mumbai. The Bill was not referred to any Parliamentary committee despite calls by several members for such a scrutiny and consultative process. Whilst the widespread sense of shock and reprehension at the Mumbai killings may have been weighing on the minds of the Hon’ble Members of Parliament then, four years later, surely, there is no reason to push through the amendments without a wider debate.  

Rights activists have pointed out that UAPA amended in 2008 copied many provisions of the previous anti-terror legislation, viz., TADA and POTA, which had already been discredited through credible documentation as anti-rights. A point that need not be belaboured.. Moreover, there is nothing to establish that tough anti-terror laws lead to a reduction in terrorist attacks. On the contrary, history of TADA and POTA has shown the ridiculously low rates of conviction of those accused of terror crimes, leading critics to argue that the purpose of the law was not to secure convictions, but to ensure that people accused of being terrorists were detained as long as possible pending trial. Such laws then can succeed only in breeding alienation and mistrust towards our democratic processes, and in law itself.

 It is often said that law is by itself neutral. It makes no distinction between majorities and minorities but the history of anti-terror law is replete with communal targeting and we can only ignore it at our peril.

 Below are listed some of our crucial concerns as citizens.

 Amendment of Section 2

Person is defined far too broadly, especially as “an association of persons or a body of individuals, whether incorporated or not” and is thus open to misuse.

 This sub clause will actually allow agencies and government to create persons beyond that what are recognized by law. Any group of friends / acquaintances can be labeled an association of persons or a body of individuals by the agencies and Government even though they may not recognize themselves as an organization. From a book reading club to friends who meet every evening in the evening at a dhaba may be deemed to be an association of persons or a body of individuals. This sub clause has the potential to draw in –through guilt by association – a wide circle of people with an accused/ suspect and accuse them of terrorist acts.

 Amendment of Section 6

This extends the ban on an organization from the earlier specified period of two years to five years.

 This amendment is very pernicious on two counts:

a)     It militates against the letter and spirit of the Constitution: Criminalizing membership of associations erodes the Fundamental Rights conferred under Articles 19 (1) (c), 19 (1) (a) and 21 of the Constitution. However, any limitation on this fundamental right to associate should be in consonance with public interest, but at all times be narrowly interpreted so as to cause least infringement of the fundamental right.

Therefore a law which imposes such a heavy restriction on the exercise of fundamental rights such as this one must be read strictly. The proposed amendment, on the contrary, by increasing the period of ban, reads the law very broadly and goes against the nature and spirit of the Indian Constitution.

 It should be recalled that in the debates in December 1967, the Joint Parliamentary Committee (and not simply a select committee) lowered the banning period from three to two years, recognizing that it’s a drastic restriction on fundamental rights. Indeed, no other than Shri Atal Bihari Vajpayee called the act a donkey that had been made to look like a horse.

More pertinently, Shri George Fernandes had moved an amendment that the period of ban be reduced to one year.

 The Home Ministry has argued that longer period of ban will “facilitate to reduce the cost of administering the ban”. Mundane administrative reasons must not be allowed to ride roughshod over the rights enshrined in the Constitution.

Further, it has argued that longer periods of ban will give “ample time to properly collect and compile data, intelligence inputs, status of various cases filed in the court, status of sanction obtained by the police from the State Government, etc”. The SIMI Tribunal history shows that the Central government only starts collecting affidavits from the States after the notification of the Tribunal. Meaning that the Central Government first banned the association, and then asked states to submit information on SIMI. It is the equivalent of charging a person for being a terrorist and then go on to either find or fabricate the evidence against that person.

 Citizens’ fundamental rights cannot be so brazenly sacrificed at the altar of efficiency and costs.

b) It will lead to gross human rights violations: Extensions of bans on organisations are justified by arguing that the organization is continuing to function, and that its members are active. In effect, bans are upheld through continuing arrests of alleged members of the banned organization. However, membership is notoriously difficult to prove. During the past decade of the ban on SIMI, only one case of membership has been proved.  Extending the period of ban will further provide a license to police and investigating agencies to arrest and accuse people of being members of a banned organization.

Amendment of Section 15

This amendment seeks to expand terrorist act to include ‘economic act’.

The amendment criminalizes the production, distribution of “high quality counterfeit currency” which the proposed explanation to the section qualifies as that counterfeit currency that imitates some of the high security features of the currency (specified in the proposed 3rd schedule).

 This clause is repetitive of things that are already covered by the IPC. The equivalent sections in the IPC are already present in 489B, 489C, 489D.

 Experience has shown that when comparable provisions in IPC and terror laws are available for same crimes, the police and agencies exercise the option of booking an accused under the terror law because it affords them greater leverage. This is so because in terror laws, bail provisions are much more stringent and the accused can be kept in custody for long periods (up to 180 days) without the filing of a chargesheet.

 The proposed amendment to include economic offences under terrorist act, would make the offence punishable with a minimum of 5 years, extendable upto life.  This is a wholesale recipe for its misuse.

 Substitution of new section for section 17

This amendment criminalises the raising of funds “from a legitimate or illegitimate source… knowing that such funds are likely to be used …by a terrorist organization”… “notwithstanding whether such funds were actually used or not used” for the commission of a terrorist act, shall be punishable for a term not less than five years but extendable to life.

 It will practically bring under the possibility of prosecution all transactions, even perfectly legitimate ones, even without any remote connection to a terrorist act. All that the prosecution needs to show is that the accused had knowledge that such funds could be likely used for terrorist act. While such subjective knowledge may again be difficult to prove, it will no doubt result in the incarceration of accused for long periods without bail.

 Remittances that workers send home from abroad, money raised by NGOs and social movements can all be easily lumped under this. The sheer magnitude of its potential abuse is mindboggling.

 No Safeguards:

The UAPA, as it stood amended in 2004, while borrowing many of the features of TADA and POTA, renounced the safeguards – however weak—inherent in POTA.  Section 58 of POTA relating to punishment and compensation for malicious action was excluded from UAPA raising fears that the government had provided police with immunity.  There is ample documentation now to show how police books cases under UAPA with little or no basis, and it is only years later when the trials end in acquittal that these men are proved innocent. The broadening of the very definition of person and association, the extension of ban period as well as the expansion of terror acts to include economic offences will only place sweeping powers in the hands of the police and agencies and further aggravate its misuse. The complete lack of any safeguards is frightening.

Responding to the absence of safeguards and the possibility of its misuse by police to harass innocent individuals, the Home Ministry had this to say:  Now, there can be one question that there may be some members of a association, group or a company who were not associated with that decision to keep terrorist funds or with the decision of financing terrorism. It is possible, but there is also a provision here that where any person, any member of a firm or any member of a company is not associated with it, he can produce evidence for that purpose to show that he is not associated with that. That is the safeguard. He can produce evidence to show that he is not associated.”

This is not a safeguard at all! Indeed, it shifts the burden of proving one’s innocence on the accused and overturns the foundational principle of natural justice that one must be considered innocent until proven guilty. The prosecution now only has to accuse someone of being member of what it deems to be an unlawful association and it will fall upon the accused to disprove the charge.

This statement of the Home Ministry made to the Standing Committee is enough to alert us to blatantly draconian nature of this legislation and the urgency of rejecting it.

 Amendments at the behest of Financial Action Task Force (FATF):

 Is it not amazing that while India seems oblivious to fulfilling its commitments to international human rights conventions such as the United Nations Convention against Torture (UNCAT), it seems in a great rush to push through draconian laws at the dictation of International Organisations such as the FATF?

ATF was formed to preserve the banking system and financial institutions of the First World at the initiative of the G-7. It has since its founding in 1989, forced several member countries to make laws compliant to its own interests and has blacklisted countries, in violation of international law, which have failed to heed to its demands. According to the Home Ministry note, the amendment to broaden the definition of terrorism to include economic offences, is clearly driven by the imperative to comply with the FATF requirements.

 It’s a shame that we are turning away from our obligation to the universal declaration of human rights and a plethora of human rights conventions to which India is signatory, and hardening our laws, which have the very real potential of being misused against our own citizens simply to comply with multi-lateral agencies. Which no doubt have their own interests. We wish that there had been a similar enthusiasm towards fulfilling our commitment to the United Nations Convention against Torture (UNCAT).  The current Prevention of Torture Bill falls way short of meeting the standards set in the UNCAT.

 Appeal

Counterterrorism measures should not facilitate, or have the potential, for state terrorism. The amended UAPA will strengthen an already suspicious state, where anyone and everyone can be booked for terrorist acts, so broad are its definitions and sweeping its scope. Draconian measures have not and will not reduce terrorism, howsoever defined and understood.

 Certainly, Shri Sushil Kumar Shinde has tried to reassure the Lok Sabha that the law will not be misused. Similar reassurances in the past from the then Home Miniser Shri P. Chidamabaram could not arrest the tidal wave of false accusations and frame ups in terror cases that have been reported from across the country. In delivering justice, laws cannot rest on assurances.

 If a law can be misused, experience has shown that it will be. And invariably, the objects of its abuse will the vulnerable sections of our society. Let not the marginalized people of this country think that you condemned them to laws that unleash a regime of terror.

 We appeal to you to firmly reject the proposed amendments to the UAPA.

 Endorsed by:

Justice Rajinder Sachar (Retd. Chief Justice, Delhi High Court)

Teesta Setalvad (Centre for Justice and Peace)

Shabnam Hashmi (ANHAD)

Prof. Nandini Sundar, University of Delhi

Prof. Shohini Ghosh, Jamia Millia Isamia

Prof. Niramalangshu Mukherjee, University of Delhi

Prof. Anuradha Chenoy, Jawaharlal Nehru University

Prof. Kamal Mitra Chenoy, Jawaharlal Nehru University

Prof. Mohan Rao, Jawaharlal Nehru University

Mukul Kesavan , Historian and writer

Ajit Sahi, Senior Journalist

Sukumar Muralidharan, Senior Journalist

Jyoti Punwani, Senior Journalist and human rights activist

Dr. Zafarul Islam Khan, All India Muslim Majlis-E-Mushawarat

Dr. V. Suresh, PUCL

N.D. Pancholi, Citizens for Democracy

Pranay Srivastav, Jan Sanskriti Manch

Trideep Pais, Advocate

Kavita Srivastav, PUCL

Mayur Suresh, Legal researcher

 Jawahar Raja, Advocate

Saptarishi Mandal, Legal researcher

Peggy Mohan, Writer

Harsh Kapoor, SAWC.Net

Mansi Dev, Activist

Dr. Rahul Govind, University of Delhi

Prof. Javed Malik, University of Delhi

Prof. Neeraj Malik, University of Delhi

Mahtab Alam and others.

Manisha Sethi, Sanghamitra Misra, Ahmed Sohaib and Adil Mehdi

Released by Jamia Teachers’ Solidarity Association. 3rd December 2012.

www.teacherssolidarity.org

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