I have asked two colleagues who have been working on civil liberties in the war against terror to do an analysis of the Amendment to the Unlawful Activities Prevention Act and the National Investigation Agency Act, and its implications. But in the meanwhile, here is a useful analysis by Rajeev Dhavan where he describes the amendment as a return of POTA and TADA. As if to fulfill Shuddha‘s prophecies, the government according to Dhavan has created a law where everyone is suspect
India’s Unlawful Activities Prevention Act (UAPA): The Return of POTA & TADA After months in pre-trial detention under brutal investigation, the police will extract even untruths. The Bill casts a shadow on all of us. It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state. – Rajeev Dhavan by Rajeev Dhavan, 19 December 2008
India‘s attempt to put its own legal house in order is reflected in two Bills — ‗The National Investigation Agency (NIA) Act‘ and the amendments to the ‗Unlawful Activities Prevention Act (UAPA)‘. Home minister P. Chidambaram‘s Bills bring TADA and POTA back with a bang and innovate a National Investigation Agency (NIA). Hitherto ‗policing‘ was exclusively a ‗state subject‘. India‘s CBI could take over investigation and prosecution on (a) court orders or (b) with the consent of the state. The NIA Bill changes that to let the NIA hijack any prosecution or investigation from the state at will. The proposed NIA Bill is constitutionally competent. The Constitution‘s Union List (List 1 Entry8) permits a ―Central Bureau of Investigation‖. Criminal procedure for prosecution is in the concurrent (List III, Entry 2). The NIA will be operationalised only for statutory offences relating to atomic energy, the UAPA, aviation, maritime, navigation, weapons of mass destruction, sedition and such offences, money laundering and counterfeiting. Under POTA and TADA, the massive misuse came from the states to alarm the Supreme Court, now the potential misuse will come from both the states and the Union, which can hijack the case. Political and communal targeting runs through our antiterrorist legislation. Federalism will also be in partial jeopardy. India is about to create a powerful FBI of its own, whose independence and political vulnerability are not beyond alarm; nor the new style special courts beyond criticism. No review agency is provided. With these caveats the NIA was long overdue.
The UAPA Amendment Bill is dangerous. Our examining principle should be: counterterrorism measures should not facilitate, or have the potential, for state terrorism. This is why the UPA launched a wholly new strategy in 2004. TADA or POTA were thrown out and the ordinary law [Criminal Procedure (Cr.P.C)] was brought back. India‘s ordinary law is tougher than UK and US anti-terror laws. This time the Union‘s shopping list is full. First, the POTA favourites of pretrial imprisonment till 180 days, 30 days police custody, denial of bail if a prima facie case exists (which is easy on a well-written FIR) and the blanket denial of bail to foreigners (including, perforce, suspect Bangladeshis) is back (Sections 43A to 43F). So, also, are the adverse inference provisions — if there is recovery of arms, explosives and other substances, suspected to be involved, including finger prints on them. Second, the definition of ‗terrorist act‘ includes not just radioactive and nuclear material, but anything that may threaten India or overawe or kidnap constitutional and other functionaries listed by the government (Section 53). This list is potentially endless. Third, new offences for organising terrorist...
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