State Has Responsibility To Protect Citizens From Terrorist Acts: Tushar Mehta On UAPA Before UN Human Rights Council

Speaking at the Universal Periodic Review Session of the United Nations Human Rights Council (UNHRC) in Geneva, Solicitor General of India, Tushar Mehta defended the Unlawful Activities (Prevention) Act, 1967 (UAPA) and said that India has been facing terrorism from several decades and that state has a responsibility to protect its own citizens against the terrorist acts.

Mehta said that the UAPA and other similar laws have adequate safeguards inbuilt against any potential misuse.

Mehta was leading India's delegation to the 41st Session of the Universal Periodic Review working group that was held from November 7 to 18 in Geneva. During this session, India's National report for the 4th Universal Periodic Review cycle was reviewed on November 10, 2022.

FCRA

Solicitor General said that the Foreign Contribution Regulation Act provides the basic framework under which NGOs wish to seek funds from abroad for their activities in India and that the legal provisions of the act are similar to regulations in other democratic countries.

"The process of registration under the Act is transparent and technology driven. All data related to registration, renewal, annual returns etc, are in public domain, In cases of refusal, reasons, and provisions under the act and rules are specifically cited and the applicant is duly informed. Even if any renewal application is rejected or cancelled, the organization can still continue its operation and receive for inference by seeking permission on a case-to-case basis", Mehta said.

He added that as per current data 16,542 organizations are eligible to receive foreign funds under the Acts and that actions were taken against some organizations due to their illegal practices, including malafide rerouting of money and willful and continuing violations of extent legal provisions, foreign exchange management rules, and tax laws of India. "It is important to reiterate that civil society organizations are permitted to operate in India. But must do so in accordance with law", he said.

Jammu & Kashmir

"..the entire union territory of Jammu Kashmir and Ladakh were and will always be an integral and inalienable part of India", Mehta said. "After the Constitutional changes and reorganization of the erstwhile, state of Jammu and Kashmir, the people of the region are now able to realize their full potential as in other parts of the country. Despite the continued threat of cross-border terrorism, the security situation has improved significantly in Jammu and Kashmir since August, 2019" he said.

He also said that the extension of over 800 people-friendly and progressive central laws to the region has ensured better opportunities for all the people of Jammu and Kashmir and Ladakh. "These central laws include affirmative action for the vulnerable sections, the right to free and compulsory education, non-discriminatory inheritance laws, protection against domestic violence, and empowerment of women, decriminalization of same-sex relations and conferment of rights to transgender persons", he said.

Freedom of Religion 

Solicitor General reiterated that India is a multilingual, multi-ethnic and multi-religious society and it not only respects but celebrates diversity. He said that provisions embodied in the Constitution of India related to freedom of religion have evolved over the years, through robust to legislations and spirited interpretation by the Constitutional courts. "Further, various states in India, have enacted, Freedom of Religion Act, to ensure, freedom of religion, guaranteed under the Constitution. Such legislations impose restrictions on and prohibit conversions from one religion to another by the use of force, inducement, allurement or fraudulent means referring to such legislation as anti-conversion laws would be a misnomer. The Supreme Court has upheld the constitutional validity of States Freedom of Religion Act", Mehta said.

Death Penalty 

Mehta pointed out that the death penalty is imposed in India only in the rarest of rare cases when the alternative option is unquestionably foreclosed where the crime committed is so heinous, that it shocks the conscience of the society. "While imposing the death sentence the court has to record, its special reasons for arriving at such a drastic conclusion. There is no mandatory death sentence for any offence. Since it runs contemporary to those statutory safeguards which give judiciary the discretion in the matter of imposing the death penalty. There are requisite, procedural safeguards under the law, including right to a fair hearing by an independent court, presumption of innocence, guarantee for defence and right to review by higher courts", he explained the legal position in the country. 

He also highlighted the President's and Governors' power to grant pardons, reprieves, respites or remissions of the punishment, or to suspend remit, or commute the sentence of death. 

Arbitrary Detention, Torture

Mehta said that India condemns any form of torture and maintains and an inviolable stand against arbitrary detention, torture, rape or sexual violence by anyone. The constitution of India guarantees to every person the right to life and personal liberty, with the Supreme Court of India has interpreted to include the right to leave with dignity, he said.

He said that the existing legal framework in India, such as provisions, under the Constitution, Indian Penal Code, the Code of Criminal Procedure among others, guarantees adequate protection against any form of arbitrary, retention, torture and cruel inhuman, or degrading, treatment or punishment as a remedial measure against torture. "Courts in India, have recognized victim's compensation and in some instances, Courts and the National Human Rights Commission have given directed payment of compensation to which the state has duly complied", the Solicitor General said.

Freedom of Speech

Mehta said that the freedom of speech and expression is not absolute in nature and is subject to reasonable restrictions in the interest of the sovereignty and integrity of India, security of the state, friendly relations with the foreign state, public order, decency or morality, contempt of God, defamation or incitement to an offence. "As is evident these restrictions are conceived to protect national and public interest and are required to meet a very high threshold", he said.

Citizenship Amendment Act 

Tushar Mehta said that CAA is a limited and focused legislation which reaffirms India's commitment to the welfare of persecuted minorities in the region.

"It is similar to laws that exist elsewhere in defining specific criteria for citizenship pathways. The criteria, defined here is specific to India and its neighborhood, and takes into account, the historical context and the current ground realities. It is aimed at enabling foreigners of six minority communities, namely Hindu, Sikh, Buddhist, Jain, Parsi and Christian community, from three specified neighbouring countries who have migrated to India going to their religious persecution in those countries to obtain Indian citizenship. It will help in reducing their statelessness and would enable beneficiaries to have a more secure and dignified life. This act, neither takes away citizenship of any Indian citizen nor amends nor abridges any existing process for acquiring Indian citizenship by any foreigner of any country belonging to any faith or religion", Solicitor General said.