India needs tough laws to combat terror, but the proposedamendments could be misused

The idea of designating an individual as a terrorist, as thelatest amendments to the Unlawful Activities (Prevention) Act propose to do,may appear innocuous. However, designating an individual as a terrorist raisesserious constitutional questions and has the potential for misuse. The practiceof designating individuals under anti-terrorism laws, prevalent in severalcountries, is seen as being necessary because banned groups tend to changetheir names and continue to operate. However, there is no set procedure for designatingan individual a terrorist. Parliament must consider whether an individual canbe called a ‘terrorist’ prior to conviction in a court of law. The absence of ajudicial determination may render the provision vulnerable to invalidation.There ought to be a distinction between an individual and an organisation, asthe former enjoys the right to life and liberty. The likely adverseconsequences of a terrorist tag may be worse for individuals than fororganisations. Further, individuals may be subjected to arrest and detention;even after obtaining bail from the courts, they may have their travel andmovements restricted, besides carrying the taint. This makes it vital thatindividuals have a faster means of redress than groups. Unfortunately, there isno change in the process of getting an entity removed from the list. Just asany organisation getting the tag, individuals, too, will have to apply to theCentre to get their names removed.

A wrongful designation will cause irreparable damage to aperson’s reputation, career and livelihood. Union Home Minister Amit Shah’swarning that his government would not spare terrorists or their sympathisers,and his reference to ‘urban Maoists’, are portentous about the possibility ofmisuse. It has been argued by some members in Parliament that the Bill containsanti-federal features. The provision to empower the head of the NationalInvestigation Agency to approve the forfeiture of property of those involved interrorism cases obviously overrides a function of the State government. Atpresent, the approval has to be given by the State police head. Also, therewill be a section allowing NIA Inspectors to investigate terrorism cases, asagainst a Deputy Superintendent of Police or an Assistant Commissioner. Thissignificantly enhances the scope for misuse. The 2004 amendments to theUnlawful Activities (Prevention) Act, 1967, made it a comprehensive anti-terrorlaw that provided for punishing acts of terrorism, as well as for designatinggroups as ‘terrorist organisations’. Parliament further amended it in 2008 and2013 to strengthen the legal framework to combat terror. While none willquestion the need for stringent laws that show ‘zero tolerance’ towardsterrorism, the government should be mindful of its obligations to preservefundamental rights while enacting legislation on the subject.