By Aditi Tiwari
The human cost of terrorism has been felt all around the globe, especially in the aftermath of the 9/11 attacks, which was a watershed event with regards to the international discourse and approaches to combat terrorism.
Terrorism directly impacts human rights, with respect to the right to life, liberty and security and undermines the rule of law, peace in a civil society and destabilizes governments. [1]
However, in the recent years, measures adopted by countries around the globe to deal with this phenomenon has itself proved to be contradictory in terms of endangering human rights. For example, countries’ blatant disregard for legal safeguards, or use of laws available to stifle the voices of dissent, etc.
These practices together have a detrimental effect and are in fact counterproductive to national and international efforts to tackle terrorism.
Before discussing it further, it is important to get acquainted with what exactly do human rights constitute and the definition of terrorism.
Human rights are rights inherent to all human being irrespective of nationality, race, etc, and are interrelated, interdependent and indivisible. [2]
International human rights law lays down the obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[3]
In the current context of civil and political rights, this includes freedom of movement, right to a fair trial, freedom of expression, association. It prohibits arbitrary use of power by law enforcing authorities- unjust detention or arrest, degrading treatment or punishment.
Terrorism on the other hand has no one comprehensive, universally accepted understanding or definition, but commonly refers to criminal acts of violence that target ordinary population in pursuance of some political or ideological agenda.
The international community has defined some core aspects of it through existing declarations, resolutions. The reason why terrorism is difficult to define is because motives, targets and methods differ broadly from case-to-case, along with the overlap in each of these categories. [4]
The disparity lies in description of the motivation, and targets and methods ultimately reflect the purpose. Another difficulty lies in the fact that whether terrorism should be limited to actions against civilians or whether it extends to governmental forces, particularly the military.
Indian Scenario-UAPA, 1967
India has been facing and combating terrorism in one form or another, since Independence and continues to be the target of terrorist groups even today. It is important to take note of the pattern of governance as well, India being a quasi-federal system of democracy, where the policing power and responsibilities remain with the states by the virtue of it being a subject in the state list.
This leaves the police to possess their own counter-terrorism and intelligence units. We have had a series of federal laws to combat terrorism, but we are currently under the framework of the Unlawful Activities (Prevention) Act, 1967, commonly known as UAPA. When the POTA act was repealed in 2004 amidst public outcry regarding its misuse, the UAPA was amended to incorporate definitions of ‘terrorist act’ and ‘terrorist organization’ within the ambit of unlawful activity. [5]
A further amendment in 2008 increased the period of detention without bail, incarceration without a charge sheet, thus bringing in the stringent provisions for which the POTA was criticised for.
The latest amendment, passed last year in 2019 made more changes to the already draconian law. It seeks to modify section 35 of the act, which currently empowers the central government to designate any organisation or group as a terrorist organisation if it believes that they are “involved in terrorism.”
The amendment adds the word ‘individual’ to the already existing connotation of organization. There is a lack of clarity over what is the fate of the individual who has been labelled so, Thus, it allows the government to designate any person as terrorist, without being tried and convicted.
The implication of the word already has a broad meaning, coupled with the fact that there is no clear definition of ‘terrorism’ in the act, although Section 15 of the act lays down offences which can be construed as ‘terrorist acts’.
All in all, this gives the investigation agencies a wide discretion to decide what constitutes terrorism for the purposes of the amended Section 35. This discretion is not subject to judicial review, it only gives power to the central government to notify or de-notify someone as a ‘terrorist’.
The only way of appeal is through a Review Committee, which is headed by a sitting or retired judge of a high court, and consists of two other members whose qualifications are not defined.
Even though it is headed by a judicial member, there is no legal guarantee of a due process and all members of the committee are appointed by the central government.[6]
The misuse of anti-terror laws is so rampant and well-documented that the Law Commission of India in its 277th report has recommended that those who are wrongfully prosecuted in terrorism cases must be given compensation by the State.
The UAPA, like its predecessors, is well known for its gross misuse. As the Amnesty International recorded in its annual report over India, it states that the UAPA criminalises dissent and implicates individuals from being pro-active members of the society.
The most recent example of this is the 2018 arrests of the human rights activists (the Bhima Koregaon case) who have remained in arbitrary detention for ‘waging a war against the country’.
The case against all these nine activists has allowed them to spend more than a year in jail, without a bail, or any trial. The long periods of wrongful incarceration with no conviction or trial is the overarching infringement of our fundamental rights and most important the basic human rights which forbid any such arbitrary use of power.
All these activists have been historically known to work with the most marginalized communities, including the Dalits and Adivasis, minority communities, and have held views opposing the government. [7]
This was a concern expressed by a panel of human rights experts in the United Nations as well, where they stated that terrorism charges are a pretext to silence the defenders of human rights.
They further appealed to the government to ensure that due process of law is taken into consideration, contending that the wide discretionary powers granted under the UAPA to the state agencies weakens judicial oversight and greatly undermines civil liberties.
In the Bhima Koregaon case again, not only have all the nine accused activists been subjected to a prolonged period of pre-trial detention as mandated by UAPA, getting anticipatory bail is almost impossible because Section 43D(5) states that a court cannot release someone on bail if the case against them is prima facie true.
Concerns of human rights violations come in because the government has not produced sufficient evidence which justifies the connection between the actions taken by them and threat to security[8].
Thus, there are significant procedural irregularities-prejudicial public statements made by the police, lack of independent public witnesses to the arrest and seizure of memos.[9] Pre-trial detention is one of the most significantly evident human rights violations in this case.
More recently in 2020, the Jammu and Kashmir Police started filing FIRs and invoking section 13 of the act which deals with punishment for unlawful activities, against those who were using VPN or proxy servers to accesses social media websites to dodge the longest ever ban on the internet imposed by the government last year after the abrogation of Article 370.
In its defence the police stated it was done to “to curb the misuse of the sites by miscreants for propagating false information/rumours.” Even so, it is hard to justify a complete ban on such a ground because there should be a real threat to the security of India if a person is to be charged under such a provision and mere utterance on social media should not constitute ‘secessionist ideologies.’
What it does seem like, however, as mentioned earlier, is that UAPA has been consistently used as a tool to supress dissent, violating the basic right to freedom of expression as it criminalises thoughts and political protests which are opposing to the government, in the name of the country’s security.
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Human Rights, Terrorism and Counter-terrorism, Fact Sheet No. 32, Published by OHCHR ↑
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<https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> ↑
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<https://www.un.org/en/sections/issues-depth/human-rights/> ↑
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<https://www.e-ir.info/2009/05/14/why-has-defining-terrorism-proved-so-difficult/> ↑
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<https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security-laws> ↑
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<https://www.thequint.com/voices/opinion/uapa-bill-amendment-terrorist-individuals-lack-of-clarity-amit-shah> ↑
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Amnesty International Report on India, 2019 <https://www.amnesty.org/en/countries/asia-and-the-pacific/india/report-india/> ↑
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Preliminary Fair Trial Report on Bhima Koregaon, Published by American Bar Association Centre for Human Rights, October 2019. ↑
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Ibid. ↑