Central Government Claims On New UAPA Bill Misleading
Bengaluru/ New Delhi: 19 July 2019 2:10 pm
The Central government’s claim in the Lok Sabha that the proposed amendments to the Unlawful Activities Prevention Act (UAPA) complies with international standards is false. The proposed amendments will allow the government to designate an individual as a terrorist. This amendment violates international human rights law and opens the floodgate to harassment of human rights defenders and activists, said Amnesty International India.
On July 8, 2019, the Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in the Lok Sabha by Amit Shah, the Minister of Home Affairs. Beside other amendments, the Bill proposes that the central government may designate an individual as terrorist if such person 1) commits or participates in acts of terrorism, ii) prepares for terrorism, iii) promotes terrorism, or iv) is otherwise involved in terrorism. While introducing the Bill, Amit Shah stated that the amendment will ‘align the domestic law with the international obligations as mandated in several conventions and Security Council resolutions.’
“It is ironic that the government is relying on international law for passing this amendment when the entire law is ignorant of international discourse on human rights. Time and again, UAPA, India’s principal counter-terrorism law has been abused by recurring governments to target human rights defenders working with the poor and marginalized communities and those who criticise government inactions or excesses,” said Mrinal Sharma, Policy Advisor, Amnesty International India.
At the outset, the definition of a ‘terrorist act’ in the UAPA exceedingly differs from the definition promoted by the United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In 2006, the Special Rapporteur had said that to call an offense a ‘terrorist act’, three elements must be cumulatively present: the means used must be deadly; the intent behind the act must be to cause fear among population or to compel a government or international organization to do or refrain from doing something; and the aim must be to further an ideological goal.
The UAPA, on the other hand, offers an overbroad and ambiguous definition of a ‘terrorist act’ which 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 etc. It also includes 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 the actual commission of these acts.
The International Convention on Civil and Political Rights (ICCPR), to which India is a party stipulates that presumption of innocence is a universal human rights principle. In contradiction to this, the UAPA reverses the burden of proof if the government proves recovery of arms or fingerprints of the accused on materials associated with a terrorist act. This is not only inconsistent with the fundamental norm but also impels the deliberate planting of evidence.
The ICCPR also sets out other fair trial safeguards which are applicable at all times and the UAPA stands in blatant violation of these. The Convention allows pre-trial detention to be used as a last resort and only when it is necessary, reasonable and proportionate to the objective sought by the prosecution. Instead, under UAPA, the police is allowed a time of 180 days for investigating a case as opposed to the usual 60 to 90 days under criminal law. This further allows the police to detain an accused for 6 months at a stretch without producing any evidence against the accused justifying such custody. It also allows the accused to be held in police custody for 30 days instead of 15 days.
“Torture and other ill-treatment in police custody are widespread in India, but are rarely punished. But we are yet to see India ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that provides for absolute prohibition of torture and other ill-treatment and criminalize torture,” said Mrinal Sharma.
The Act also interferes with the privacy and liberty of individuals contravening the provisions of ICCPR which protects against arbitrary or unlawful interference with a person’s privacy and home. The Act allows for searches, seizures and arrests based on the ‘personal knowledge’ of the police officers without a written validation from a superior judicial authority.
According to the National Crime Records Bureau, between 2014 and 2016, over 75% of cases under the UAPA ended in either acquittal or discharge. “Over the years, UAPA has become a tool of repression – a weapon to keep people entangled in legal system and place people in jails for as long as the state wants. This amendment will further concentrate disproportionate power with the government to implicate individuals for being proactive members of the society, ban critical thinking and criminalise dissent by designating them terrorists, ” said Mrinal Sharma.
United Nations Security Council Resolution 1456 states that States must ensure that any measure taken to combat terrorism must comply with all their obligations under international law in particular international human rights, refugee and humanitarian law. But this resolution remains conspicuously absent from the preamble of the UAPA.
“International laws and conventions must not be cherry-picked by the government to suit their objectives. Terrorism must not be countered at the expense of human rights.” said Mrinal Sharma.
For more information please contact:Nazia Erum
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