“By passing some draconian laws, terrorism and crime will not be reduced; instead our country’s progress will be obstructed.1 ”
Terrorism is a huge concern for both developing and developed countries and anti-terrorism and legislations have been passed by countries time and again to combat terrorist activities. The legislature while passing such laws always strives to strike a balance between individualistic rights and concerns of national security. In the garb of national security, these anti-terrorist legislations are misused by the government to muffle and censor dissent. Dissent is an integral part of any country’s democratic structure and an unavoidable pillar of democracy, this anti-terrorism legislation though drafted with a sense of maintaining the integrity of the State, is often used to terrorize citizens of the country. One such anti-terrorism legislation that is currently operative in India is the Unlawful Activities Prevention Act (hereafter referred to as the UAPA). The UAPA was passed in 1967 with the intent to maintain the unity and integrity of India, it also aimed to prevent unlawful activities by affiliations and unions. This law passed in 1967 has been criticized vehemently for its vaguely defined sections. The UAPA has been amended a couple of times, i.e. in 2008 and subsequently in 2011, but the recent amendment to UAPA has increased the scope of this Act significantly and in turn, has increased the chance of misuse. Till the 2019 amendment, only organizations could be termed as terrorist organizations or persons concerning organization could be booked, however, the recent amendments to this draconian law have vested the power on authorities to unilaterally term individuals as terrorists and subsequently detain them under the provisions of the Act. It can be argued that this amendment helps strengthen the anti-terrorism laws of our country, but more than serving the purpose of protecting national security, it has been used as a whip to stifle dissenters.
The UAPA, one of the main laws of counter-terrorism in India, is manifested with vague arbitrary sections. Section 15 of the Act which defines what constitutes terrorist act states that “Whoever does any act………with intent to strike terror or likely to strike terror in the people” then the section goes on to define what conditions are required to be present for the commission of terrorist act, it states the use of bomb, dynamites, etc or “by means of whatever nature” This indicates that even trade strike constitutes to be a terrorist activity and following the 2019 amendment2 , a person participating can be held under this stringent section. This is a bare minimum threshold of labelling people as terrorist. A United Nations Special Rapporteur in 20063 states that to term any activity as a terrorist, three minimum criteria need to be fulfilled these include: (i) the means used must be deadly (ii) 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 (iii) the aim must be to further an ideological goal. UAPA lacks these cumulative criteria. Subsequently, a person once declared terrorist can be held in detention for over 180 days before filing a charge-sheet. Getting a bail once booked under this law is notoriously difficult and this legislation can be hugely misused to detain dissenting voices. The amendment provides the authorities “unbridled power to invoke the law with no objective guidelines as to who constitutes a terrorist under the act”4 .
UAPA AND FREEDOM OF PRESS
Press is considered to be the fourth pillar of democracy; in a democratic country, it serves a huge role of bridging the gap between authorities and citizens of the country. Article 19(1)(a) of the Indian Constitution provides its citizens the freedom of speech, this includes freedom of dissent as well as freedom of the press and it is an integral part of democracy. Article 19(2) provides reasonable restrictions5 . In a case6 the Honourable Supreme Court held that:
“One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce …..”
Controlled media shows a varying degree of authoritarianism and indicates the downfall of democratic norms in a country. The object of free media is such that the press can report issues to make citizens more aware of the political, social or economic scenario; these issues so reported can be critical of the government. The freedom of the press in India has decreased over the years and this change is brought about by right-leaning parties coming forwarding and censoring media to a great extent and allowing the publication of articles or reports that appeases their policies. In the World Press Freedom Index, India’s rank lowered to 142. Reporters without Borders (RSF) in a study mentions that after the 2019 elections “pressure on the media to toe the Hindu nationalist government’s line has increased7 .” In an article, Sarah Repucci8 writes, “the ruling Party has supported campaigns to discourage speech that is “anti-national,” and government-aligned thugs have raided critical journalists’ homes and offices.” Along with charges of Sedition (Indian Penal Code, Section 124(A)) against journalists who criticize the Government, authorities have relied on the draconian UAPA to unilaterally term individual journalists as terrorist under Section 15 of the Act. Kashmir has for a long time being a disputed area; however, the Constitution of India under Article 370 provided special status to Kashmir. In the monsoon session of the Parliament in 2019, this Article was abolished bringing Kashmir under the direct jurisdiction of Indian Government. Following this, the controversial Citizenship Amendment Act was passed. People started protesting throughout the country calling it a degradation of Fundamental Rights and Constitutional values. Violence broke out in Kashmir and the state went under complete internet shutdown. Only recently, 2G internet access was provided to the state, this situation made it difficult for the journalists in the state to provide ground reports nevertheless they strived. Cyber-police became extremely vigilant post this and anything that they “deemed” can disrupt the peace was taken down or journalists were called in and labelled anti-national9 . This power ranged from actual instigating posts to simple dissent or government critical posts. In April 2020 three journalists from Kashmir were booked under the draconian UAPA. Peerzada Ashiq10 was first arrested under the law on 19th April over the publication of an erroneous piece of information. The Police stated that he had been spreading “fake news” that could cause unprecedented alarm among citizens. Following this, a photojournalist, Masrat Zahra, was arrested on 20th April under the same piece of legislation because the photographs uploaded by her could “provoke the public to disturb law and order.”11 Her 19 months old post12 was considered to be inappropriate and authorities justified that it was criminally intimidating youth to do anti-national activities.13 Later on 21st April, Gowhar Ghelani was booked under UAPA as authorities reasoned that his posts were “glorifying terrorism…..that may lead to commission of offence…”It was even stated that it was “prejudicial to national integrity, sovereignty and security.”14 Scott Griffen the deputy director of the International Press Institute stated, “Over the past few months, Kashmir has become one of the world’s most repressive spots for the press, with the authorities using arrests, internet shutdowns and surveillance to control the flow of news15”. Not just Kashmir, press monitoring has become very common in India with the media becoming “widely flattering”16 for people in power.
PROTESTS AND DISSENT
In Niharendu v. Emperor17 it was held that “…the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing system of government is not excluded, nor even the expression of a desire for a different system altogether.” But criticism in India is dealt with iron-clad hands and the lacunae in anti-terrorism legislation are used as “political-weapons18” to suppress voices of dissent. After the Citizenship Amendment Act (CAA) was passed the whole country went into peaceful protests and questions were raised even by the UN High Commissioner for Human Rights, the US Commission on International Religious Freedom (USCIRF), the European Parliament and various others against the same. A clash happened particularly in Delhi for an inflammatory speech delivered by a political leader who also gave police a three day ultimatum to remove protestors19. Subsequently, following the protests, four people were booked under the provisions of UAPA. These included Fayiza CA, Meeran Haider, Safoora Zargar and Asif Iqbal Tanha20. The arrest of Safoora Zargar was condemned by the International Human rights organization
. She was later granted bail on humanitarian grounds.21 But other protestors booked under the notorious anti-terrorism legislation remain in jail just for voicing their dissent.
Few individuals have been booked under the UAPA and the numbers will only increase, the UAPA comes without a sunset clause that makes it impossible to be removed unless done by the Parliament itself. This piece of anti-terrorism legislation has over the last few decades largely violated human rights and is now serving as an actual source of terror for government critics and journalists. Legislated with the intent of preventing terrorism and protecting the integrity of India, this legislation with its vast ambiguous sections has been utilized as political-weapon to harass people. Dissent is the hallmark of democracy and the dissenters should feel at home rather than fearing violence while voicing their dissent in a democratic country.22 Freedom of speech and expression is of paramount interest in a democracy and for people to thoroughly excise their right of choice, general discussion in the matter of public importance are equally essential23. Thus, to end with, as Howard Zin said “Protest beyond the law is not a departure from democracy; it is essential to it”24 and India being a populous democracy should encourage dissent rather than instilling fear in people for being critical of the government.
JUSTICE KATJU, WHITHER INDIAN DEMOCRACY 33 (Bloomsbury, 2018).
Unlawful Activities Prevention Act, 1967.
United Nation, Commission of Human Rights on Promotion and Protection of Human Rights, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, ¶ 72, U.N. Doc. E/CN.4/2006/98 (December 28, 2005) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/168/84/PDF/G0516884.pdf?OpenElement (Last Visited Jul. 10, 2020, 05:00 PM).
Angela Dua, Counter-Terrorism Laws: Transgressing Human Rights in the Name of Security of the State, CILJ 2019 (Jul. 10, 2020, 05:00 PM) http://cilj.co.uk/2019/05/21/counter-terrorism-laws-transgressing-human-rightsin-the-name-of-security-of-the-state/
INDIA CONST. art 19.
The Secretary, Ministry of Information & Broadcasting V Cricket Association of Bengal & Anr. 1995 AIR 1236, 1995 SCC (2) 161.
REPORTERS WITHOUT BORDERS, https://rsf.org/en/india (last visited Jul. 10, 2020)
Sarah Repucci, Media Freedom: A downward spiral, FREEDOM HOUSE (Jul. 10, 2020, 6:00 PM), https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral.
The Print Team, UAPA charge on J&K journalist is misuse of power, effort to terrorise media: Editors Guild, The Print, Apr. 21, 2020 (Jul. 10, 2020,06:00 PM) https://theprint.in/india/uapa-charge-on-jk-journalist-is-misuse-of-power-effort-to-terrorise-media-editorsguild/406263/
Shakir Mir, Use of UAPA Against Journalists is Last Nail in Coffin for Press Freedom in Kashmir, The Wire, Apr. 26,2020 (Jul. 10, 2020, 06:30 PM) https://thewire.in/media/use-of-uapa-against-journalists-is-last-nail-incoffin-for-press-freedom-in-kashmir.
Scroll Staff, Kashmir: Photojournalist charged under UAPA for ‘anti-national’ social media posts, The Scroll, Apr. 20, 2020 (Jul. 10, 2020, 06:40 PM) https://scroll.in/latest/959703/kashmir-photojournalist-charged-underuapa-for-anti-national-social-media-posts.
Id 6, at 2.
Id 7, at 2.
PTI, Police Begins Probe Into Social Media Posts of Kashmiri Journalist Gowhar Geelani, The Wire, Apr. 22, 2020 (Jul. 11, 2020, 04:00 PM) https://thewire.in/rights/police-begins-probe-into-social-media-posts-ofkashmiri-journalist-gowhar-geelani.
Minna Heikura& Helsingin Sanomat, Harassment of journalists in Kashmir worsens amid new legal cases, IPI, May. 4, 2020 (Jul. 11, 2020, 05:00 PM) https://ipi.media/harassment-of-journalists-in-kashmir-worsens-amidnew-arrests/.
Id 9, at 2.
Niharendu v. Emperor (1942) 4 FCR 38.
N Manoharan, Trojan Horses: Counter-terror Laws and Security in India, 44(46) EPW 20, 22 (2009) (Jul. 11, 2020, 05:00 PM) http://www.jstor.com/stable/25663783.
Amnesty International India, Government of India Must Stop using draconian Laws against Dissenting Voices, Amnesty International, Apr. 22,2020 ( Jul. 12, 2020 04:00 PM) https://amnesty.org.in/newsupdate/government-of-india-must-stop-using-draconian-laws-against-dissenting-voices/.
DALIT CAMERA, https://www.dalitcamera.com/who-are-the-jamia-millia-students-modi-govt-witch-hunts/ (last visited Jul. 12, 2020).
Aditi Singh, Breaking: Delhi High Court grants Safoora Zargar bail in Delhi Riots case, Bar and Bench, Jun. 23, 2020(Jul. 12, 2020 04:00 PM) https://www.barandbench.com/news/breaking-delhi-high-court-grantssafoor-zargar-bail.
Maqbool Fida Hussain v. Rajkumar Pandey, (2008) Cri L.J. 4107 (SC).
Maneka Gandhi v. Union of India, 1978 AIR 597 1978 SCR (2) 621.
Anand Teltumbde, Criminalising People's Protests, 48(14) EPW 10, 10 (2013) (Jul. 12, 2020 04:00 PM) https://www.jstor.org/stable/pdf/23527275.pdf?refreqid=excelsior%3Ac8343ba72f120d53e0569935d1dad53a
Student of Law from
Alliance School of Law, Bangalore
mailing address of the author