Context:
The Union Ministry of Home Affairs (MHA) recently banned two factions of the Muslim Conference, Jammu and Kashmir (MCJK), led by Abdul Ghani Bhat and Ghulam Nabi Sumji, respectively, as an “unlawful association under the anti-terror Unlawful Activities (Prevention) Act (UAPA).
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- What does a ‘ban’ on an organisation mean?
- What is a “terrorist” organisation?
- How is an organisation declared a terrorist organisation?
- What are the consequences of declaring an organisation a terrorist organisation?
- The Unlawful Activities (Prevention) Act (UAPA), 1967
- Unlawful Activities Prevention Amendment Bill, 2019
What does a ‘ban’ on an organisation mean?
- The Unlawful Activities Prevention Act gives powers to the government to declare an organisation an “unlawful association” or a “terrorist organisation”, which is often colloquially described as a “ban” on the organisations.
- Declaring an organisation a terrorist organisation has serious consequences in law, including criminalising its membership and the forfeiture of the property of the organisation.
- Several resolutions of the United Nations Security Council starting from 1997 require member states
- To take action against certain terrorists and terrorist organisations,
- To freeze their assets and other economic resources,
- To prevent their entry into or the transit through their territory,
- To prevent the direct or indirect supply, sale, or transfer of arms and ammunition to those individuals or entities listed in the Schedule.
What is a “terrorist” organisation?
- Section 2(m) of the UAPA defines “terrorist organisation” as an organisation listed in the Schedule to the UAPA, or an organisation operating under the same name as an organisation so listed in the Schedule.
- Schedule 1 currently lists 42 organisations, including Hizb-Ul-Mujahideen, Babbar Khalsa International, Liberation Tigers of Tamil Eelam, among others as terrorist organisations.
How is an organisation declared a terrorist organisation?
- Under Section 35 of the UAPA, the central government has powers to declare an organisation a terrorist organisation “only if it believes that it is involved in terrorism”.
- The Schedule can be amended by the government to add or remove organisations from the list. The law states that 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.
What are the consequences of declaring an organisation a terrorist organisation?
- The two crucial consequences of being declared a terrorist organisation is that
- the funding of the organisation
- the association of individuals with the organisation are criminalised
- Section 38 of the UAPA requires a person who “associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation” is punishable with imprisonment for a term not exceeding ten years.
- However, such individuals are exempted from the provision if they have been members before the organisation was declared a terrorist organisation and did not take part in any activities of the organisation at any time during its inclusion in the Schedule.
- Section 20 of the UAPA prescribes punishment for being member of terrorist gang or organisation. It states: “Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.”
- Section 21 prescribes punishment for individuals holding proceeds of terrorism with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
- The UAPA under Section 24A also provides for forfeiture of proceeds of terrorism. The law states that even if the person is not convicted for being associated with a terrorist organisation, “proceeds of terrorism” can be forfeited to the Central Government or the State Government.
What is the recourse in law available to a terrorist organisation?
- An application can be made to the central government to remove an organisation from the Schedule by the organisation itself or any person affected by inclusion of the organisation in the Schedule as a terrorist organisation.
- A review committee is then appointed which is headed by a sitting or former judge of a High Court to “judicially review” the application.
- The organisation will be removed if the review committee “considers that the decision to reject was flawed when considered in the light of the principles applicable on an application for judicial review”.
The Unlawful Activities (Prevention) Act (UAPA), 1967
- The Unlawful Activities (Prevention) Act (UAPA) of 1967 is an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (which lapsed in 1995) and the Prevention of Terrorism Act – POTA (which was repealed in 2004).
- Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.
- The National Integration Council appointed a Committee on National Integration and Regionalisation to look into, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India.
- The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.
- However, the provisions of the UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights.
Unlawful Activities Prevention Amendment Bill, 2019
- The original Unlawful Activities Prevention Act, 1967, dealt with “unlawful” acts related to secession; anti-terror provisions were introduced in 2004.
- It provides special procedures to deal with terrorist activities, among other things.
Key Provisions of the Amendment
- The Bill amends the Unlawful Activities (Prevention) Act, 1967 (UAPA) and additionally empowers the government to designate individuals as terrorists on the same grounds.
- Under the Act, the central government may designate an organisation as a terrorist organisation if it:
- commits or participates in acts of terrorism
- prepares for terrorism
- promotes terrorism
- is otherwise involved in terrorism
- The word “terror” or “terrorist” is not defined.
- However, a “terrorist act” is defined as any act committed with the intent –
- to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India
- to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
- The central government may designate an individual as a terrorist through a notification in the official gazette.
- The Bill empowers the officers of the National Investigation Agency (NIA), of the rank of Inspector or above, to investigate cases.
- Under the Act, an investigating officer can seize properties that may be connected with terrorism with prior approval of the Director General of Police.
Issues with UAPA
- UAPA gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities. Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the Constitution.
- UAPA empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for a developing democratic society. The right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2).
- UAPA can also be thought of to go against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7th schedule of Indian Constitution.
-Source: The Indian Express, The Hindu
