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The UAPA Amendment And The Future Of Civil Liberties In A Constitutional Democracy

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Recently, the Home Minister Amit Shah introduced a legislation in the “people’s house” termed as the UAPA or Unauthorized Activities Prevention Act Amendment Bill 2019. The major change in the already existing law adds to the draconian characteristic which is carried by the law. The government intends to designate an individual as a “terrorist.” What’s more? The bill aims to designate an individual terrorist even before the accused be presented to the court for “due process” to prove someone a terrorist.

The main arguments I would like to put forth against this bill:

1) This amendment only strengthens the state to curtail civil liberty behind the guise of national security. Amit Shah claimed in his speech that the government needs to be ahead of the terrorists to combat them. This arguments is flat and disguised with usurping powers and bestowing it to the “competent authority.”

2) The bill results in and end to “cooperative federalism” as coined by the NITI Aayog by shutting out centre-state cooperation in handling terror threats. The bill seeks to empower the NIA to imprison the designated terrorist without the involvement of the state and local agencies thus shutting out the major partners in actually combating terrorism.

3) The bill is an extension of the statism championed by leaders like Indira Gandhi who first brought in the UAPA in 1967 to encounter secessionist movements looming large. The MISA or Maintainance of Internal Security Act during the emergency gave the central government leeway in imprisoning the political opponents under the guise to protect “national security.”

4) The bill fails fundamentally in defining who is “terrorist” and what constitutes “terrorist literature” or “terrorist propaganda.” Siddharth Varadarajan put forth a question as to whether carrying Marx’s Communist Manifesto or Mao’s Red Book constitutes terrorist literature?

5) The government ridiculously fails to clarify as to why the government is deciding to place additional layer on the already existing provision of Section 4 which empowers the government to imprison lone wolf terrorists.

6) The government also fails to exhibit the necessity to further strengthen the bill while Nirmala Sitaraman argued that the terrorist attacks on mainland have drastically reduced since 2014? It is also to be noted that the armed forces are already equipped with the powerful Armed Forces Special Powers Act (AFSPA) which has enabled drastic reduction is secessionist activities in the Northeast. These evidences nullify the government’s move to further strengthen the bill.

7) Amit Shah drew an equivalence with foreign nations such as the US, UK, China, Israel, Pakistan, the UN, UNSC, etc. which he claims designates individuals as terrorists. This, I would opine is a half-baked truth. Amit Shah is right when points out at these above mentioned nations for their terrorism laws. However, he selectively refuses to also point out the fact that the liberal democracies like the US, UK, etc. are also protective of civil liberties and prioritize due processes.

Meanwhile, China is an authoritarian regime where political opponents of the Communist regime are deemed to be threats. Basically, a comparison of apples and oranges.

8) The hasty amendment, I opine, is short sighted and inconclusive of various aspects when an individual is labelled as “terrorist.” The socio-psychological trauma of solitary confinement and the outcast of individuals who would bear the name as terrorists from neighbourhoods and communities is completely invisible in the amendment.

9) The loosely defined amendment not only empowers the state to designate an individual as a terrorist but also, inconsequentially allows to blur the line between terrorism and activism. The equivalence between a globally designated terrorist like Hafeez Saeed and activists like Sudha Bharadwaj, Varavara Rao or Anand Teltumbde is concerning.

While the sponsors of this draconian legislation hail the record of NIA, their argument falls short when it comes to the record of UAPA. It is to be noted that 75% of all the cases registered between 2014 and 2016 resulted in acquittal as per NCRB data available online.

Now that the UAPA amendment bill has been given nod by both the houses of Parliament and given assent by the President of India, I was to read the history of this particular act and while I was doing so, I came across the criticism levelled against this particular act when tabled in the Parliament in 1967, the then Member of Parliament Surendranath Dwivedi who likened this bill to that of colonial law.

The equivalence of this bill was to the 1932 ordinance passed by the then Viceroy of India, Lord Willingdon declaring all the Congress organizations “unlawful.” It was on the eve of the civil disobedience movement. He pointed out the major aspects of this bill which continues to exist even to this day: “unlawful association, unlawful instigation, preventive molestation and boycotting ordinance.”

The current bill contains the ordinance of unlawful association and instigation.

Post-independence India’s UAPA bill can also be likened to the 1919 Rowlatt Act. The designation of an individual as a “terrorist” without a due process: the trial. This act is now a culmination of colonial laws aimed at stifling fundamental rights and civil liberties of Indians. The only trivial difference is the actors involved.

It is also to be reminded of the fact that Atal Bihari Vajpayee was one of the major critics of this bill when tabled in the Parliament in 1967.

The fundamental nature of this debate is unfortunately watered down to reflect a narrow BJP versus Congress debate. However, the debate is solely pertaining to the state versus citizens’ civil liberties and human rights. It is to be critically noted the contribution of both Congress and the BJP in the subversion of civil liberties. Whether it is press restrictions placed by Jawaharlal Nehru, UAPA 1967, MISA, TADA, POTA, etc. only expanded the scope of the State in interfering with the civil liberties.

While the Modi government is being blamed for gross abuse of such apparatus, it would be an example of intellectual dishonesty if not pointed out that the very apparatus which empowers the state and negates the fundamental rights were the product of previous regimes.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Read more about her campaign.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
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