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An International Trojan Horse?

The Unlawful Activities (Prevention) Amendment Bill has been drafted to meet India's obligations to the intergovernmental Financial Action Task Force on combating money-laundering and terrorist fi nancing. However, the powers it will confer on the government could be easily abused to permit prosecution of mass organisations or non-governmental organisations working in communities allegedly associated with banned groups. There are many other concerns and it is essential that the Bill be referred to a standing committee of Parliament before it is considered for enactment.

COMMENTARY

An International Trojan Horse? groups, without judicial review, from two to fi ve years.3 This allows the government’s
Need for Review of UAPA Bill 2011 assumption of guilt to go unchecked for longer, multiplying the harmful effects
of flawed anti-terrorism legislation by
furthering the risk of punishing the
SAHRDC innocent. The assumption of guilt before

The Unlawful Activities (Prevention) Amendment Bill has been drafted to meet India’s obligations to the intergovernmental Financial Action Task Force on combating money-laundering and terrorist financing. However, the powers it will confer on the government could be easily abused to permit prosecution of mass organisations or non-governmental organisations working in communities allegedly associated with banned groups. There are many other concerns and it is essential that the Bill be referred to a standing committee of Parliament before it is considered for enactment.

SAHRDC is the South Asia Human Rights Documentation Centre, New Delhi.

Economic & Political Weekly

EPW
march 10, 2012

T
he Unlawful Activities (Prevention) Amendment Bill, 2011 seeks to amend India’s Unlawful Activities Prevention Act (UAPA) of 1967, a controversial Act that bans organisations deemed to be involved with illegal activities, with amendments targeted at terrorism prevention. The original 1967 Act empowered Parliament to restrict certain rights and freedoms in order to protect India’s “sovereignty and integrity”. UAPA directly curtails the rights to peaceful assembly, to form associations or unions, and the freedom of speech and expression. These fundamental rights guaranteed in domestic and international laws are now at risk of being constricted in new and more drastic ways.

In June 2010, India joined the Financial Action Task Force (FATF), an intergovernmental body seeking to fi ght moneylaundering and terrorist fi nancing.1 As part of its membership, India agreed to adopt legislation to implement these goals by 15 March 2012. The Bill was introduced in the Lok Sabha on 29 December 2011 to ostensibly comply with FATF’s policy.2 While it achieves the goal of making money-laundering and terrorism finance a criminal act, it does so at grave expense to a range of fundamental rights of Indian citizens. In particular, the Bill amends the UAPA to lengthen the period in which a group may be banned before judicial review and it permits the government to deprive individuals of property without conviction for any of these crimes. Further, it could be easily abused to permit prosecution of mass organisations or non-governmental organisations (NGOs) working in communities allegedly associated with banned groups. The flaws in this Bill are too grave to be ignored in the name of security.

Banning of Groups for Five Years before Judicial Review: A primary concern is that the Bill extends the ban of unlawful

vol xlviI no 10

a conviction is a violation of the fundamental human rights principle of the presumption of innocence.

Prosecution of Legal Persons: Originally, the 1967 Act targeted individuals and group associations, whereas the Bill extends the UAPA’s jurisdiction to cover companies, NGOs, intergovernmental organisations and all members and associates of such entities.4 The Bill also replaces the text of the original Section 17 with a clause criminalising directly or indirectly collecting or raising funds that can be associated with terrorism, and in 17(c) clarifi es that providing funds, “in any manner for the benefit of” a person or organisation deemed to be terrorist, “for the purpose not specifically covered under Section 15

shall also be construed as an offence” (emphasis added).5 Although meant to cover prosecution of everyone involved or associated with terrorism, these changes effectively could allow prosecution of organisations for their work in communities allegedly accused of terrorist activity, or for their work protecting the rights of people falsely accused of association with banned groups.

The dangers of this are illustrated by the recent defamation of civil society groups working in Naxal-hit states. In December 2011, for example, the union home ministry announced the identities of 23 insurgent “front organisations”, many of which are legitimate and reputable, including the Committee for the Release of Political Prisoners (CRPP).6 The CRPP works for the unconditional release of political prisoners, regardless of their beliefs, on the basis of the rights to freedom of expression and belief.7 Minister of the State for Home Affairs Jitendra Singh called the CRPP a “Maoist front”, while the police accused CRPP of sheltering those associated with banned groups and providing them with medical aid.8 The CRPP and its members would be at risk for prosecution and could be subject

COMMENTARY

to a five-year ban under the UAPA amendments simply for fighting for the rights of people living in tense locations.

Prosecution for association with a banned organisation, rather than for an illegal activity, will criminalise the exercise of key human rights such as freedom of expression and association and the right to presumption of innocence.9 The Bill will expand the court’s powers to prosecute within the membership or staff of the organisations by including, in Subsection 22a, the right to proceed against “every person (including promoters of the company)” unless “he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence”. When one is presumed guilty, proving innocence of any knowledge of a crime or having attempted to prevent such crimes would put the accused at an unjust disadvantage. Further, the amendment to Article 22A (2) permits convictions for an illegal activity found to be “attributable to any neglect on the part of (the) said legal person(s)”. This can lead to difficulties proving innocence, as the dubious wording could allow conviction on the premise that the crime committed was “attributable to” negligence. Overall, the amendment appears to be designed to guarantee a finding of guilt by association, as innocence and lack of association are hard to prove concretely.

Violations of the Right to Property:

The Bill further grants the government the right to confiscate property without due process and regardless of whether the owner has been convicted of an unlawful activity under the UAPA. Consistent with the Bill’s overarching assumption of guilt, a person not yet convicted or considered a terrorist can be forced to forfeit his/her property, whether monetary or otherwise. Section 24A (2) allows the confiscation of “Proceeds of terrorism, whether held by a terrorist organisation or terrorist gang or by any other person and whether or not such terrorist or other person is prosecuted or convicted for any offence (emphasis added)”. The Bill further violates the right to presumption of innocence by allowing “attachment or forfeiture...of property equivalent to, or, the value of the proceeds of terrorism involved in the offence” merely on the commencement of prosecution. The Bill also contains no explanation of, or reference to, legal guidelines on how confi scated property is to be used by the government. If a person’s, or a whole company’s or organisation’s property can be confi scated without a conviction, there must be regulations on the use or allocation of the property, as well as guidelines on how to return the property if the person, organisation or company, can prove their innocence. India should adhere to the United Nations best practices by establishing a review procedure for removing sanctions on the accused, where assets frozen or seized can be returned through due process. The accused should be afforded a “timely procedure for appealing the sanctions at their own will, as well as a periodic review mechanism to determine if the accused still meets the criteria of the designation.10 As this Bill will change the current review mechanism to once in every five years, this is unacceptable and cannot be considered “timely”.

In Section 24A (5), the Bill further confers to the Indian court the power to confiscate property as material evidence “where the trial under the Act cannot be concluded on account of the death of the accused”. Although the government claims this power is necessary for protecting state security,11 it is an arbitrary and unfounded violation of rights to presumption of innocence and the right not to have property taken without due process. Not only does this provision deprive without trial the decedent’s beneficiary of property now belonging to them, it is an open door for grave human rights violations. In a country, notorious for extrajudicial killings, euphemistically called encounter killings, it is not hard to imagine a staged custodial death to allow for property to be freely confi scated. There must be provisions for determining the property is material evidence, detailing how the property may be used,12 and explaining what happens to any income it generates and how it will be determined whether the property is, in fact, a proceed or somehow involved with an unlawful activity. Without such provisions, the deprivation of property would be arbitrary.

Recommendations

While acknowledging that the Bill is intended to bring Indian legislation in line with international obligations, the concern and worry is that this Bill can and will be used to abuse human rights. It is essential that the Bill now referred to a standing

The Department of Political Science and Development Administration, Gandhigram Rural Institute – Deemed University invites application for Project Fellows for UGC – Special Assistance Programme. The salary for the above Fellows is Rs.14,000 per month for Non-NET candidates and Rs.16,000/ per month for NET candidates. They can pursue Ph.D programme also. Interested candidates have to send their CV to gpgri_rgc@yahoo.com. CV has to come on or before 14th March, 2012.

Prof.G.Palanithurai

Coordinator

UGC – SAP

Department of Political Science and Development Administration,

Gandhigram Rural Institute – Deemed University,

Gandhigram – 624302

Dindigul District

Mobile: 09159099809

march 10, 2012 vol xlviI no 10

EPW
Economic & Political Weekly

COMMENTARY

committee of Members of Parliament before consideration for enactment be subjected to close scrutiny. Any further legislation on preventing and punishing fi nancial terrorism should be introduced to the Lok Sabha as a temporary emergency legislation. Anti-terrorism provisions should always be categoried as “emergency legislation”, under the thumb of judicial review every three to five years, so as not to ingrain curtailments of civil and political rights into normal jurisprudence. This Bill should not be added to the 1967 UAPA, permanent legislation, and should safeguard the rights of the innocent and not place them in further danger.13

Notes

1 Financial Action Task Force and Asia/Pacifi c Group on Money-Laundering, Mutual Evaluation Report “Anti-Money Laundering and Combating the Financing of Terrorism: India”, 25 June 2010. At: http: //www.fatf-gafi .org/ dataoecd/60/56/45746143.pdf

2 PRS Legislative Research. The Unlawful Activities (Prevention) Amendment Bill, 2011. At: http://www.prsindia.org/billtrack/the-unlawful-activities-prevention-amendment-bill-20112159/

3 The Unlawful Activities (Prevention) Amendment Bill, 2011, At: http://www.prsindia.org/uploads/ media/Unlawful%20/Unlawful%20Activities% 20Amendment%20Bill%202011.pdf

4 Refer note 3. 5 Refer note 3.

6 Vishwa Mohan, “Names of Maoist Fronts in Delhi

Unveiled”, The Time of India, 8 December 2011. At: http://articles.timesofi ndia.indiatimes.com/ 2011-12-08/india/30489763_1_maoists-sashastrapeople-s-morcha-naxal-violence

7 “Committee for the Release of Political Prisoners (CRPP) appeal for support and solidarity” NCHRO News at: http://nchro.org/index.php? option=com_content&view=article&id=6999 :committee-for-the-release-of-political-prisoners-crpp-appeal-for-support-and-solidarity-& catid=17:campaigns &Itemid=27

8 Dwaipayan Ghosh 2011, “Geelani ‘Front’ under Scanner, Cops Throw Net”, Times of India, 16 December, at: http://articles.timesofi ndia.

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indiatimes.com/2011-12-16/delhi/30524488_1_ maoist-front-crpp-intelligence-agencies 9 Human Rights Council, “General Comment No 32

– Article 14: Right to equality before courts and tribunals and to a fair trial” (23 August 2007) UN Doc CCPR/C/GC/32 (2007), paragraph 30.

10 FATF Guidance Document, International Best Practices Paper – Freezing of Terrorist Assets (23 June 2009), Section II. In accordance with United Nations Security Council Resolution 1373 (2001) Paragraph 1(b) At: http://www.fatfgafi .org/dataoecd/30/43/34242709.pdf

11 Namrata Biji Ahuja, “Government Plans to Defi ne Word ‘Terrorist’”, Asian Age, 13 October 2011. At: http://www.asianage.com/india/govt-plansdefi ne-word-terrorist-366

12 FATF Guidance Document, International Best Practices Paper – Freezing of Terrorist Assets (23 June 2009), Section II. In accordance with United Nations Security Council Resolution 1373 (2001) Paragraph 1(b).

13 As UAPA is an already flawed act that makes allowances for human rights abuses, it should, rather than be revised, be repealed. Ravi Nair, “The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes”, 24 January, Economic & Political Weekly. Found in: National Judicial Academy, National Judicial Seminar: Terrorism, Safety and Security, Vol 1, pp 287-91.

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Economic & Political Weekly

EPW
march 10, 2012 vol xlviI no 10

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