In a searing television broadcast in 1954, American journalist Edward R Murrow took Republican politician Joseph McCarthy to task for conflating dissent with disloyalty. As McCarthy’s campaign to identify people he claimed were communists forced thousands out of their jobs, Murrow warned, “We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, of one another.”

Sixty five years later, this cry of caution has become eerily relevant again as India’s Parliament last week made sweeping amendments to the Unlawful Activities Prevention Act, the country’s primary anti-terror law.

At the heart of these amendments is the subversion of the Constitutional scheme that protects liberty by insisting that a person cannot be deemed a criminal until the procedures established by law have been completed. A task that should primarily be that of the judiciary has been snatched through the legislative process and brought into the ambit of the executive.

The government has claimed that the amendments were made to synchronise domestic law with international practices. But statements made by Union Home Minister Amit Shah in his defence of the law have raised questions about who the real targets of these amendments are.

The amendments

In the latest set of amendments, there are several key changes that have been effected to the Unlawful Activities Prevention Act. The most important is how terrorism itself has been conceptualised.

Until these amendments on July 24, the Act provided two types of classifications for groups. An “unlawful association” is one which indulges in unlawful activity, which includes crimes such as supporting or trying to cause the secession of any part of India or impinging the sovereignty of the country. A “terrorist organisation” is one that commits an act of terror as defined under the law.

Until now, the criminality of individuals flowed from their association with unlawful and terror organisations. Thus, when a person was convicted under the law, this was primarily for their association with a banned organisation, with the specific action of the member being designated a unlawful activity or terrorist act.

The new amendments have transformed the designation clauses for the terrorism part of the law. An individual can now be designated as a terrorist and there is no requirement that the person should belong to a banned terrorist organisation. For the purpose of listing these individuals, the Act has created a new fourth schedule. The list of organisations that are designated as terrorist in nature come under the first schedule.

While Amit Shah argued that the law in no way disturbs the presumption of innocence and the burden on the prosecution to prove the case, what he did not elaborate on were the other effects that this new classification has on the individual designated as a terrorist.

First, unlike an organisation, the individual enjoys fundamental rights. Once a person is designated a terrorist, there is no way the state could be expected to let her enjoy liberty. The immediate consequence will be incarceration, without which the very purpose of the law as an anti-terror legislation will be defeated.

Second, the amendments do not create a more sensitive remedial procedure for the individual. The designated individual has to follow the same process of review that an organisation will follow. The problem here is that an organisation may have wider resources at its disposal to fight the designation. Such resources may not be available to the individual, who could be in jail while he or she is expected to go through the review procedure to clear the name.

Activists Vernon Gonsalves, Arun Ferreira, Gautam Navlakha, Sudha Bharadwaj and Varavara Rao are among those accused of being 'urban Maoists'.

The first step of this denotification process involves appealing to the same central government that designated the individual as a terrorist in the first place. A second level of appeal involves a review committee, the chairperson of which is drawn from the higher judiciary. While all these will require an individual to raise considerable financial support, the amendments also allow central agencies to attach an individual’s properties and disable his finances. With both liberty and financial means lost, the process could become even more daunting.

V Suresh, lawyer and national general secretary of the People’s Union for Civil Liberties, said Shah’s speech which included a frontal attack on those being deemed as “urban Maoists” raises the fear that the law serves an insidious purpose. “Nothing now stops the government from going after individual dissenting voices using this law,” he said.

When the Bill was discussed in Parliament, Opposition parties raised the apprehension of the law being abused to target minorities, especially Muslims.

Suresh pointed out that being designated a terrorist has huge social ramifications for the individual. “It essentially destroys his image in the society and even if finally cleared by the judiciary, the stain of terrorism will be very difficult to get rid of,” he said.

The activist added that while the government has claimed that the bail provisions have not be altered, once a person is produced before a court with a terrorist tag, it would be very difficult for a judge to award bail.

Unconstitutional provisions?

The government has argued that the amendments were necessary to bring India’s anti-terror laws in tune with international laws and treaties.

For example, the United Nations Security Council has passed at least 10 resolutions since 1999 mandating member states to initiate certain legal measures to curb the activities of terrorists and terrorist organisations, including attaching the properties and curtailing the movements of designated terrorists. One of the explanations given in the international forum for declaring individuals as terrorists is that organisations often change their names, structure and members to circumvent sanctions. Recent instances of such actions by the United Nations include those on Hafeez Saeed, who founded the Lashkar-e-Taiba.

Amnesty International has pointed out that this adherence to international norms has been selective. The International Convention on Civil and Political Rights, to which India is a party, sets out fair trial safeguards which are applicable at all times. The Unlawful Activities Prevention Act stands in blatant violation of these measures, the human rights organisation said.

Given this context, the question of whether domestic constitutional rights could be subverted for the sake of complying with international laws remains open.

If the law is challenged, the judiciary may be called upon to decide on critical legal aspects. By allowing an individual citizen to be designated as a terrorist without a trial, is the legislature trespassing on the territory of the judiciary and violating the constitutional balance?

Unfortunately, the judiciary in the past has approved of preventive detention laws that designate an individual as an anti-social element even before the completion of the trial. However, the amendments to the Unlawful Activities Prevention Act take such measures to the extreme, given the weight of the burden of a terrorist tag.

This brings into focus the question of arbitrariness and excessive punishments. Given the profound impact of designating someone as a terrorist, the current review procedures may not suffice to counter the argument that this was a form of conviction before a trial. Such laws that circumvent due process, judicial trial and punished individuals directly are deemed Bill of Attainders or Bill of Pains and Penalties, something that liberal democracies have resisted world over, especially in the United States and the United Kingdom, from which India’s judiciary draws many precedent for its analysis.