Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s McCarthyism Moment
In a chilling throwback McCarthyism in the United States, India’s Parliament has passed the Unlawful Activities (Prevention) Amendment Bill, 2019 which will allow the Central government to designate individuals as ‘terrorists’ without the exercise of due process of law.
The Bill received the assent of the Upper House of the Indian Parliament, the Rajya Sabha, on 2nd August, 2019. The Bill proposes to include the names of ‘terrorists’ in the Fourth Schedule proposed to be added to the Unlawful Activities (Prevention) Act, 1967. The law was originally enacted in 1967 with the ostensible object of national integration. An individual may be designated as a terrorist if he commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism. The Bill also allows a Review Committee constituted by the Central Government to exercise the power of review and denotify an individual classified as a ‘terrorist’. The amendment is likely to empower the executive to initiate a witch-hunt against political opponents of the ruling dispensation or religious minorities, with no institutional mechanism for judicial review.
Neither the Amendment Bill nor the parent statute provides a concrete definition of terrorism. This opens a Pandora’s box. Categorization as a ‘terrorist’ by the executive bears serious consequences, such as social boycott or loss of employment. Labelling by the executive could also encourage a spiral of intolerance and lead to mob lynching by vigilante groups, a widespread problem that the Indian government is grappling with presently. The constitutionality of the proposed law deserves to be keenly contested since it could be viewed as colourable legislation which bears the potential for abuse by the executive.
The Supreme Court of India, in Shreya Singhal v. Union of India, had identified ‘vagueness’ as one of the grounds for striking down Section 66A in India’s Information Technology Act. The law imposed an unreasonable restraint on online speech. Likewise, the proposed amendment can cause a chilling effect on the freedom of speech and expression which is enshrined as a fundamental right in Article 19 (1) (a) of India’s Constitution. The Supreme Court had also endorsed the advocacy-incitement distinction of the US Supreme Court in Brandenburg v. Ohio and held that Article 19 (1) (a) would protect free speech to the extent that there is mere advocacy of opinion and no incitement of violence.
In K.S. Puttuswamy v. Union of India, the Supreme Court recently recognized the right to privacy as an integral part of Article 21 of the Constitution which guarantees a right to life and personal liberty. The apex court held that the right to be let alone is a reflection of the inviolable nature of the human personality. Profiling by the executive is thus a violation of Article 21 as it infringes upon the personal autonomy of an individual. Furthermore, there are established judicial precedents in India which denounce the practice of guilt by association on the basis of mere membership of banned organizations or denial of bail for possession of potentially seditious literature.
Countering terrorism is a noble goal but the legislature has clearly erred in pursuing it at the cost of eroding human rights. The proposed amendment violates the mandate of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Indian Supreme Court has often taken resort to these international instruments to reinvigorate the fundamental rights chapter in the Constitution. In 2018, the judiciary played an admirable counter-majoritarian role to read down a colonial-era provision in the Indian Penal Code which criminalized homosexual acts. Since the constitutional foundations of the Bill appear to be weak, any challenge to its constitutionality should offer the Indian judiciary an opportunity to strictly scrutinize it and walk down the same path. The Unlawful Activities (Prevention) Amendment Bill, 2019 echoes laws made under the colonial regime to crush the freedom movement in the garb of ensuring public order. On the contrary, India’s constitution-makers had envisaged a transformative role for its constitution to usher in an environment where civil rights are protected and not left at the mercy of executive supremacy.