Article by Sarthak Raizada,
The recent amendments to the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) that empowers the Central Government to proscribe individuals as terrorists has sparked a debate on the freedom of speech in India. Many civil rights advocate have argued that the Unlawful Activities (Prevention) Amendment Act 2019 (“Amending Act”) impinge upon the freedom of speech and expression and right of reputation guaranteed to Indian citizens under Article 19 and 21 of the Constitution. According to the proponents of free speech, the Amending Act lack any procedural safeguards and violate the principle of due process. Perceptibly, this might appear to be true. However, any inquiry about the constitutionality of the legislation would be confronted with a conflict between citizen’s freedom of speech and right of reputation, on one hand and national security concerns, on the other. While striking a balance between these competing interests without compromising either would be the most desirable approach, it should be emphasized that restrictions placed for preventing terrorist activities and safeguarding national security are qualitatively different from and should not be conflated with other restrictions imposed to deter individuals from defaming other people or to prevent riots and mob disturbances. A brief reflection on the modern terrorism and measures formulated by countries to respond to this global phenomenon is, therefore, extremely critical before rushing to conclusions about the constitutionality of the legislation.
Nature of Terrorist Activities
The scourge of terrorism has compelled several States across the globe to adopt various measures and reforms for combating terrorist activities. These reactions have been prompted by the paradigmatic shift in the nature of terrorist activities that remain attributable to cross-border terrorism, rise of Islamic fundamentalism in the middle-east, illegal immigration and role of non-State actors in radicalization — posing a serious threat to both internal and external security.
Faced with this characteristically different nature of terrorist activities, countries have commonly shared a belief that a strong and effective counter-terrorism policy should be situated in preventive action that should proactively focus on preventing terror attacks rather than punishing them after their commission. This approach is premised on the belief that modern terrorism and terrorist activities have entrenched ideological underpinnings that remain committed to martyrdom. The suicide bombing of the CRPF personnel in Pulwama is the most unfortunate but hard evidence of the ideological tenor behind similar incidents. It shows that even the fear of death is not sufficient to dissuade them from engaging in terrorist activities. In such a scenario, it becomes extremely difficult to expect that deterrence by punishing such crimes would play any role in combating terrorism. Preventive measures are, therefore, imperative which may extend to designation of individuals as terrorists where such individuals are involved in terrorism.
Proscription Regimes in other countries
Globally, many states have implemented proscription regimes for outlawing individuals who are engaged in terrorist activities. For instance, the Secretary of State is empowered to designate foreign persons (including American citizens) as “specially designated terrorists” if the individual poses a risk to national security of the United States. Similar designation process has been adopted by Australia (Charter of the United Nations (Dealing with Assets) Regulations 2008) and United Kingdom (Terrorist Asset-Freezing etc. Act 2010) after the United Nations Security Council passed the Security Council Resolution 1373 — United Nations Suppression of Terrorism Regulations making it obligatory for member States to prevent and suppress the financing of terrorism. Albeit diverse, these designation regimes prove to be a very useful tool for transnational cooperation in the fight against terrorism. The Amending Act that authorizes the Central Government to designate an individual as a terrorist is a step in the direction where India also becomes a responsible stakeholder in the global sphere towards suppression of terrorism.
Purpose of Proscribing Individuals
The designation of an individual as a terrorist serves multiple purposes. It is common knowledge that advanced means of warfare employed by modern terrorist groups has been made possible by their deep financial foundations. Most of these funds are laundered either by private businessmen or sham charitable and non-governmental organizations. Thus, the freezing and confiscation of assets and financial belonging to individuals involved or suspected of being involved in terrorist activities is an effective legal tool to counter terrorism by crippling their financial ecosystem. In the US, UK and Australia, designation of an individual as a terrorist, attracts sanctions in the form of asset-freeze and prohibition of financial assistance or support to such an individual. A look at other regimes such as Canada would also show that designation of a person as a terrorist is usually accompanied by freezing actions. In fact, the obligation to freeze is binding obligation on member States under international law that emanates from the Security Council Resolution 1373.
Although the UAPA as it stood before the amendment also empowered the Central Government under Section 51A to freeze funds and other financial assets or economic resources held by individuals or entities listed in the Schedule to the Order, there was no provision under which the Central Government could have designated individuals as terrorists under the Act. The power to freeze was, therefore, a toothless tiger in its application to individuals as without the power to designate, the Central Government was not empowered to freeze the financial assets or funds held by such individuals. This lacuna under the UAPA has now been closed with the enactment of Section 5 of Amending Act.
Another purpose for proscribing individuals as terrorists is the pervading and deep influence of the leaders of terrorist outfits on vulnerable groups. An unfortunate illustration of the ability of such individuals to indoctrinate other people can be found in a book “The ISIS Caliphate: From Syria to the Doorsteps of India” authored by Stanly Johny. In his book he describes, how Abu Bakr al-Baghdadi, forming top brass of ISIS leadership influenced camp inmates during his stay at the US-run detention center at Camp Bucca. Discussing Baghdadi, his co-inmate remarked that “New recruits were prepared so that when they were freed, they were ticking time bombs”. In fact many people who came in contact with Baghdadi at Camp Bucca later went ahead to occupy leadership positions in ISIS. Therefore, the mobilizing ability of such individuals cannot be undermined and by empowering the Central Government to designate individuals as terrorists alongside organizations, India has expressed its intention to socially and internationally condemn and disavow individuals who promote their terrorist activities by abusing the frailties of underprivileged groups.
Safeguards under UAPA: Substantive and Procedural
Civil rights advocates remain disturbed that the UAPA and the Amending Act confers an unbridled power on the Central Government to proscribe an individual as a terrorist. These criticisms also lay too much emphasis on the absence of any due process under the UAPA regime, as there is no requirement to give a prior hearing or adequate notice before proscription. However, the argument is unfounded for two reasons.
First, the procedure to list a person as a terrorist under UAPA is circumscribed by two substantive limitations. Under Section 35(2) of the UAPA as amended, the Central Government can add a person to the Schedule only if it believes that such an individual is involved in terrorism. The grammatical variation of “terrorism” is defined under Section 15 as any act intended to threaten or likely to threaten the unity, integrity, security 5, economic 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.
The substantive standard “only if it believes” under Section 35(2) serves as a limiting principle on the power of the Central Government to designate an individual as a terrorist. If the test of reasonableness, as laid down in Maneka Gandhi v. Union of India is applied to Section 35(2), the expression “only if it believes” should be interpreted as “reasonable grounds to believe” — a standard lower than both the criminal standard of “beyond reasonable doubt” and the standard applicable in civil matters of proof on the “balance of probabilities”. However, the standard would always require something more than a mere suspicion i.e. the method for listing of an individual as a terrorist under the Schedule should be an objective determination of facts based upon credible intelligence inputs and evidence. This interpretation is also consistent with the international standards under the Model Legislative Provisions Against Terrorism where the evidentiary threshold for listing is recommended as “reasonable grounds to believe”.
The other limitations on the power to designate are the words and expressions “intention to threaten”, “likely to threaten”, “with the intent to strike terror” and “likely to strike terror” used in Section 15. These expressions imply that the individual sought to be designated, as a terrorist should either have “actual knowledge” or “reasonable suspicion” based upon the information available to him that his acts would threaten the unity, integrity, security, economic security, or sovereignty of India. Moreover, the words and expressions used in Section 15 are well-known terms employed in anti-terrorism laws enacted elsewhere in the world and cannot be termed as arbitrary for want of precision. In sum, the powers of the Central Government under Section 35 are severely curtailed to eliminate the risk of abuse by the political executive.
With regard to procedural due process, it is quite arguable that UAPA is not constitutionally intra vires as it provides meaningful checks and balances on the exercise of power under Section 35. Under Sections 36 and 37 of UAPA, the listing of an individual as a terrorist can be reviewed through a dual process of administrative review— by the Central Government and the Review Committee. On the aspect of pre-designation notice or a fair hearing, it seems quite impractical that such a requirement should be made mandatory before prescribing an individual. A pre-designation notice or hearing might frustrate the very purpose of Section 35. According to settled case-law, “it is established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion” (See Union of India v. Tulsiram Patel (1985) 3 SCC 398). In other words, importing the requirement of a fair notice or audi alteram partem will allow individuals suspected of terrorist activities to tighten their affairs that would scuttle an effective investigation into their terrorist activities and give an opportunity to wire funds and other financial resources out of the country before the Central Government invokes Section 51A to freeze their assets.
Nevertheless, the scope of judicial review in matters of national security remains extremely limited. The Court should tread with caution when it adjudicates the validity of the Amending Act because in matters of conflict between national security and due process, wider deference should be given to the Executive branch. Constructive notice in the form of publication of the name of an individual designated, as terrorists, in the Official Gazette should be treated as sufficient compliance with due process in view of the post-designation remedies and impracticality attached to pre-designation notice and fair hearing.
Conclusion
The Unlawful Activities (Prevention) Amendment Act 2019 is aimed at preventing the spread of terrorism by condemning those who preach violence. In addition to terrorist organizations, it is telling that individual terrorists have become institutions of power through consolidation of their brutal terror network. They play an instrumental role in radicalization of the young and perpetration of mass scale violence. An effective law like the Unlawful Activities (Prevention) Amendment Act 2019 is therefore a necessary tool for inhibiting such terrorist activities. It paves way for not only penetrating the financial resources of such persons but gives out a strong symbolic message expressing social disapproval of terrorist leaders. By providing sufficient safeguards that are inbuilt in the UAPA for ensuring adherence to the due process, it provides for an ideal model to identify individuals who indulge in acts of terrorism.
-Sarthak Raizada
Advocate
Supreme Court of India
B.A. LL.B. (Hons.)
Dr. RML National Law University, Lucknow