Counter-terrorism laws 'misused' in India to target non-profits, academics: Top US report

By Rajiv Shah 
A high-profile American Bar Association (ABA) report, prepared by its Center for Human Rights, which claims to mobilize lawyers to defend threatened advocates, protect vulnerable communities, and hold governments accountable under law, has accused the Government of India of misusing counter-terrorism financing legislations in order to targets non-profit organizations (NPOs) and human rights defenders.
Titled “The Adverse Impact of Counter Terrorism Laws on Human Rights Defenders and FATF Compliance in India,” the report, based is on an analysis of India’s compliance with the Financial Action Task Force’s (FATF) requirements and guidelines in the context of three laws: the Unlawful Activities Prevention Act 1967 (UAPA), the Prevention of Money Laundering Act (PMLA), and the Foreign Contribution (Regulation) Act (FCRA).
An intergovernmental body set up by the Group of Seven (G-7) countries with the objective of combating money laundering, India joined FATF in 2010 and embarked on a series of amendments to its anti-terrorism and money laundering legislations, aimed at “aligning itself” with FATF requirements.
“However”, report regrets, “This process has led to sweeping adverse consequences for NPOs and human rights defenders who have been subject to prosecution, often for the sole reason of exercising their civic freedoms and expressing criticism of the government." It quotes the World Organization Against Torture (OMCT) to say that there is, in fact, “little evidence of the effectiveness of stopping terrorism financing.”
The 65-page report offers specific case studies involving NPOs and human rights defenders in India to prove its point, including the allegedly bogus case against journalist Siddique Kappan, the application of terror funding charges against protestors of the citizenship bill, the arrest of Kashmiri political leader Waheed-ur-Rehman Parra, the Bhima Koregaon case, and the suppression of democratic rights activists in Telangana to justify its argument.
Stating that Indian investigating authorities have employed “vague accusations and inconsistent evidence in their attempts to penalize human rights defenders and NPOs critical of India's government”, it says, “Anti-terror laws have expanded over time, becoming increasingly ambiguous and frequently undermining fundamental procedural protections for defendants.”
Noting that the amendments passed in recent years have violate Indian provisions of personal liberty, the right to fair trial, and the presumption of innocence against the defendants, the report, referring to the anti-terror Unlawful Activities Prevention Act (UAPA), takes strong exception to how the scope of the law was expanded without any larger public debate, inputs, or scrutiny”, noting, the definition of terrorist act is “vague, imprecise, and so sweeping (‘any other means of whatever nature’), as to include non-violent political activity within its ambit.”
“For example”, the report says, “charges of terrorist conspiracy and terror funding have been invoked against leaders and activists of the peaceful movement against the new citizenship laws in 2020, such as Safoora Zargar and Khalid Saifi.” Also, “Disruption to essential services” was brought within its sweep “for industrial strike actions, or other mass movements.” It comments, “These have grave implications for the enjoyment of the right to freedom of speech and expression, as well as the right to peaceful assembly and association.”
India’s definition of terrorism “runs afoul of the framework recommended by the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism”, the report claims.
The Special Rapporteur’s definition of terrorist act include “(a) acts committed with the intention of causing death or serious bodily injury, or the taking of hostages; (b) for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act; and (c) constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism.”
However, “the definition of terrorist act under UAPA is bereft of any relation to the aim of the act perpetrated or intended, and thus falls short of the recommendation made by the Special Rapporteur”, the report says, adding, the pitfalls are used “to outlaw political opposition, religious entities, or minority, indigenous or autonomy movements that have never resorted to violence against persons.”
Offering figures, the report says, while over 5,027 cases -- in which 24,134 people are accused -- were registered under UAPA between 2016 and 2020, an overwhelming 97 percent even today “continue to languish in jail as undertrials”, adding, “These high figures confirm the indiscriminate resort to anti-terror provisions are mobilized to meet everyday crime control situations and to target movements and HRDs.”
Coming to the Prevention of Money Laundering Act (PMLA), the report says, NPOs were especially impacted by recent amendments in March 2023 “whereby the definition of NPOs was expanded to include charitable organizations and the new category of ‘Politically Exposed Persons’ was introduced.” In fact, the law empowers officers of the Enforcement Directorate (ED) “to carry out investigations as well as attach property in cases involving the offense of money laundering.”
In fact, “the PMLA affords very wide-ranging powers to ED without concomitant procedural safeguards. This is demonstrated in the case study of a journalist, Siddique Kappan, who engaged in investigative journalism but was charged under the PMLA by an ED which claimed that Siddique was charged in order to stop a conspiracy of international groups who aimed to incite communal violence in India”, the report says.

India does not comply with FATF rules requiring government to undertake outreach to protect NPOs from abuse of terrorist financing

Further, the report says, under PMLA there “is not even the recording of the First Information Report (FIR), which ought to inaugurate a criminal case. Instead, it is guided by an internal manual and only records the Enforcement Case Information Report (ECIR), which is not mandated to be disclosed to the accused.” It adds, “The absence of formal procedure has serious consequences: statements made by the accused are not protected as under ordinary criminal law, and there is a stark lack of judicial oversight.

Siddique Kappan

For example, ED is empowered under Section 50, in the course of an investigation, to summon any person and demand that that person give and ratify a statement under a threat of penalty or arrest.”

Also, it grants ED “extraordinary powers of arrest, seizure and attachment sans judicial oversight”, empowering the government “to act punitively against human rights workers.”
As for the Foreign Contribution (Regulation) Act (FCRA), the report compares the usage of the law with the manner in which African and Eastern European legislations “have ended up overregulating the NPO sector through the lack of a risk-based approach, lack of involvement of NPOs in risk assessments, burdensome requirements, lack of clear guidance on implementation and disproportionate sanctions.”
Referring to the government’s official claim at one place that intelligence inputs suggest how “money is received for development works but is used to train Naxalites,” the report says, such an argument “reflects a risk assessment-devoid approach. Such a broad-brush approach is speculative and has disrupted legitimate NPO activity, imperiling many crucial services that NPOs provide to society.”
It comments, “By failing to adopt a risk-based approach during the prosecution stage, the government has not only violated the rights of NPOs to freely carry out their statutory activities by having access to financial resources, the government has also failed to engage in good faith with NPOs.”
Stating that India is found to be “not compliant with FATF rules”, which require the government to “undertake comprehensive outreach to the NPO sector with a view to protecting the sector from abuse of terrorist financing as well as wider outreach in relation to good governance and accountability”.
It adds, “Failing to engage with the NPOs not only limited the effectiveness of the government’s ability to execute risk-based evaluations, but it also facilitated the government’s efforts to punish NPOs that were critical of the government.”