opinion

Updated: Sep 24, 2019 08:37 IST

As many as four terrorists – Hafiz Sayeed, Zakir-ur -Rehman of the Lashkar-e- Taiba (LeT), Maulana Masood Azhar of the Jaish-e-Mohammed and Dawood Ibrahim – have been designated as terrorist under the amended Unlawful Activities (Prevention) Act (UAPA) of 1967. On August 3, the Parliament amended the UAPA to list an individual as a terrorist – a provision that was not there earlier. Before the amendments, only organizations could be listed as banned groups. The absence of such a provision allegedly put India in an awkward position when it asked other countries including the United Nations to list individuals as terrorists. The amendment is a welcome move, but it is not without its share of drawbacks.

The devil, as always, in the detail. For instance, the new UAPA, listing an individual as terrorist doesn’t require scrutiny of the court or even conviction by a court. The National Investigative Agency and therefore the government can list anyone as terrorist if its “believes” someone is involved in a terror case – courts, evaluation or scrutiny of evidence has no role. Simply put, listing an individual is on the presumption of guilt whereas our criminal jurisprudence says “innocent till proven guilty.”

And to compound issues, the process of listing an individual as a terrorist has still not been made public. For instance who and under what circumstances an individual will be listed as a “terrorists.” As of now, we only have Home Minister Amit Shah’s assurance to the Parliament that provision will not be misused.

Importantly, naming an individual as terrorist will mean that the right to liberty – a fundamental right - is prejudiced and violated. By allowing individuals to be named as a terrorist even before a court of law has come to a decision threatens basic tenet of our Constitution.

There are thousands of cases where innocent people, mostly youth, who are charged with a terror-related offence, locked up for years only to released by the courts for lack of evidence later. It is indicative of the abuse that is a rampant or shoddy investigation. Surprisingly, if ever, have errant officers or institutions penalized in cases where even courts have concluded that the individual was framed.

Misdemeanour, transgressions are not limited to a few, for instance, the local police. Unbridled power mostly makes the lure of easy money irresistible.

Recently, a Superintendent of Police of the National Investigative Agency (NIA) – agency that investigates all terror cases –and two more officers had to removed after it was found that they were asking for bribes. The three officers were investigating a terror funding case. And in yet another case, also relating to the NIA, an officer of the agency was arrested when he was found to be stealing fake Indian currency which was seized during an investigation.

This sweeping power with the government should get every individual worried and concerned. At the core of this concern is, however, the question should be trust governments, importantly whether is it is desirable at all?

Stripped down to bare essentials, democracies are nothing but a situation where the citizens delegate powers to the “Leviathan” of its choice and are ready for outcomes that are uncertain and much is left to chance. And, in this game of uncertain outcomes People-at -large depend on the controlled political conflict between various institutions for a favourable solution. The solution that one hopes for – at least in ideal circumstances is at best Pareto Optimal- improving the plight of individual without degrading the other.

That said, one must add a caveat. Governments and more so in democracies that are maturing, for instance, that in India, wield immense power with an equally great temptation to abuse it. It is for nothing that our founding fathers weaved in an inherent check and balance in the Constitution of India; both Lok Sabha and Rajya Sabha need to agree before a Bill becomes a law, the separation between the Judiciary and legislator and many more.

In the fight against terror, no one doubts the need to name those like Hafiz Sayeed, Maulana Masood Azhar and Dawood Ibrahim as a “terrorist.” Listing them and their front organizations associated with them ensures that funding them becomes difficult if not impossible. There is, however, a better path available. Listing an individual as a “terrorist” could follow a conviction under the UAPA would perhaps be a better way out. Independent scrutiny by the courts would not only irrefutable but also be much assurance to all, especially people- at -large.