India needs to specifically and directly ban terror outfit ISIS under Unlawful...

India needs to specifically and directly ban terror outfit ISIS under Unlawful Activities (Prevention) Act

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ISIS (Islamic State of Iraq and Syria), also called IS (Islamic State) or ISIL (Islamic State of Iraq and the Levant), is the most deadly terror organisation in the world today. The kind of brutality that has been unleashed by ISIS is unheard of. It has spread its wings in newer regions quite fast. The number of its sympathisers among Muslim fundamentalists has gone up drastically. Even developed countries, such as in Europe, are not untouched and there are reports of many Muslim youths going from there to Iraq to join ISIS. India has also seen involvement of certain Muslim youths in ISIS activities, covertly or overtly. Recently, a Mumbai youth Arif Majeed returned from Iraq after having joined ISIS, and then a Bengaluru techie Mehdi Masroor Biswas was caught spreading messages of ISIS through his Twitter handle @ShamiWitness. There are several other reports, from different parts of India, of some Muslims showing their support for ISIS by waving ISIS flags or wearing ISIS T-shirts, etc. Most shocking aspect is that even highly educated Muslims who come from good families, such as Arif and Mehdi, are being swayed by ISIS. This should alarm the Government of India and the Indian security establishment. Unless it is nipped in the bud, such support can turn difficult to control in future. So, have we formally banned ISIS under our laws as a terrorist organisation? The answer is both “yes” and “no”. Let me explain this answer.

Group photo of some youths in Tamil Nadu wearing T-shirts with ISIS emblem.
Group photo of some youths in Tamil Nadu wearing T-shirts with ISIS emblem

The Unlawful Activities (Prevention) Act, 1967, deals with terrorist organisations. Clause (m) of Section 2 of this Act defines “terrorist organisation” as under:

“(m) “terrorist organisation” means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed;”

[Note: It may be noted that by Section 14 of the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013), the existing “Schedule” has been renumbered as “First Schedule”. However, I find that in the above definition in Section 2(m), the word “Schedule” has not been replaced by the words “First Schedule” to correctly reflect the present numbering of the Schedule, perhaps by mistake on the part of the draftsman who drafted the 2013 Amendment to the said Act. Such mistakes in an Act of Parliament are rare and unfortunate, and can sometimes lead to legal complications.]

The First Schedule to the said Act contains a detailed list of “terrorist organisations”. It is pertinent to point out that as per Section 35(1) of this Act, the Central Government has been empowered to add or remove a terrorist organisation to/from the said Schedule by notification in the Official Gazette. As per clause (b) of Section 35(1), the Central Government has a similar power to add also an organisation to the First Schedule, which is identified as a terrorist organisation in a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, to combat international terrorism.

At present, there are 36 entries in the said Schedule. All these entries relate to individual terrorist organisations, excepting entry No. 33 which relates to a group of terrorist organisations. Entry No. 33 is reproduced below:

“33. Organisations listed in the Schedule to the U.N. Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007 made under section 2 of the United Nations (Security Council) Act, 1947 and amended from time to time.”

Thus, this entry [read with Section 35(1)(b) of the Act] gives power to add those terrorist organisations as banned terrorist organisations which are identified as such by the Security Council of the United Nations.

In this regard, it may be pointed out that the United Nations (Security Council) Act, 1947, is, in fact, an Indian Act consisting only of two sections, Section 2 of which empowers the Central Government to give effect to certain decisions taken by the Security Council of the United Nations; this section is reproduced as under:

2. Measures under Article 41 of the Charter of the United Nations.—If, under Article 41 of the Charter of the United Nations signed at San Francisco on the 26th day of June 1945 the Security Council of the United Nations calls upon the Central Government to apply any measures, not involving the use of armed force, to give effect to any decision of that Council, the Central Government may, by order published in the Official Gazette, make such provisions (including provisions having extra-territorial operation) as appear to it necessary or expedient for enabling those measures to be effectively applied, and without prejudice to the generality of the foregoing power, provision may be made for the punishment of persons offending against the order.”

In exercise of the powers under the above Section 2 of the United Nations (Security Council) Act, 1947, the Government of India has made the (U.N.) Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007. Under the provisions of this Order, certain terrorists and terrorist organisations as falling within the purview of certain Resolutions of the Security Council of the United Nations relating to international terrorism, have been identified and provisions have been made therein to prevent and suppress their activities. The Schedule to this 2007 Order lists in detail such terrorists and terrorist organisations falling within the purview of the aforesaid Resolutions of the Security Council of the UN. It is pertinent to point out that it is this Schedule which is referred to in aforesaid Entry No. 33 in the First Schedule to the Unlawful Activities (Prevention) Act, 1966. This is how the terrorist organisations mentioned in the Schedule to the aforesaid 2007 Order (covering the terrorist organisations named by the Security Council) are banned as “terrorist organisations” under the aforesaid Unlawful Activities (Prevention) Act, 1967.

It is germane to mention that there is an entity under the title of “QE.J.115.04. Name: JAMA’T AL-TAWHID WA’AL-JIHAD (JTJ)” which is mentioned in this Schedule to the above 2007 Order which basically refers to the ISIS. This entity as originally named by the Security Council, and as notified in the above 2007 Order, did not refer to the ISIS specifically by name, though it mentioned 10 alias names for this entity.

The details of this entity were subsequently amended by the Security Council. At present, this entity is described in the Al-Qaida List of the UN Security Council as under (this list can be seen online here):

QE.J.115.04. Name: AL-QAIDA IN IRAQ

Name (original script): القاعدة في العراق

A.k.a.: a) AQI b) al-Tawhid c) the Monotheism and Jihad Group d) Qaida of the Jihad in the Land of the Two Rivers e) Al-Qaida of Jihad in the Land of the Two Rivers f) The Organization of Jihad’s Base in the Country of the Two Rivers g) The Organization Base of Jihad/Country of the Two Rivers h) The Organization Base of Jihad/Mesopotamia i) Tanzim Qa’idat Al-Jihad fi Bilad al-Rafidayn j) Tanzeem Qa’idat al Jihad/Bilad al Raafidaini k) Jama’at Al-Tawhid Wa’al-Jihad l) JTJ m) Islamic State of Iraq n) ISI o) al-Zarqawi network p) Islamic State in Iraq and the Levant F.k.a.: na Address: na Listed on: 18 Oct. 2004 (amended on 2 Dec. 2004, 5 Mar. 2009, 13 Dec. 2011, 30 May 2013, 13 May 2014, 2 Jun. 2014) Other information: Review pursuant to Security Council resolution 1822 (2008) was concluded on 25 May 2010.” [Emphasis and underlining supplied.]

Thus, it can be seen that one of the alias names of this entity is “Islamic State in Iraq and the Levant”, i.e., ISIL. As mentioned in the beginning of this article, ISIS is also known as ISIL.

It is in this circuitous and indirect manner that ISIS is banned as a terrorist organisation in India under the provisions of the Unlawful Activities (Prevention) Act, 1967. It may be noted that the details of this entity were originally listed by the Security Council committee on 18 October 2004 and were thereafter amended on 6 different occasions. On the other hand, the said Schedule to the 2007 Order was made by the Government of India (Ministry of External Affairs) on 28 March 2007, and while I have been given to understand that this Order has been amended from time to time to take care of the amendments made in the list of the Security Council, it has not been possible for me to access these amendments either online or in physical form (in fact, even the 2007 Order itself is not available online). Moreover, I do not know whether our system is absolutely perfect and efficient to take care of such frequent amendments in the above list of the Security Council, and that too in a timely manner. This shows the difficulties attached with this method of banning a terrorist organisation, and it may have several legal complications which will be known mostly after several years when the relevant cases reach the higher courts.

At present, barring the aforesaid Entry No. 33 in the First Schedule to the above Act, there are 35 other entries which specifically ban 35 terrorist organisations individually by their specific names (this list can be seen online here). However, ISIS is not specifically named as a terrorist organisation under the said Act; it is named indirectly through the aforesaid Entry No. 33 in the First Schedule as one of many such organisations banned by the Security Council of the United Nations.

It may be pointed out that recently (16 December 2014) there were reports that the Union Home Minister Shri Rajnath Singh has informed the Parliament that ISIS has been banned in India under the provisions of the Unlawful Activities (Prevention) Act. However, as this news report in Hindustan Times correctly points out, and as my research has revealed, what was referred to as banning of ISIS in India was merely on the basis of its having been “banned in India as all outfits proscribed by the United Nations get banned here as well under the Unlawful Activities (Prevention) Act (UAPA)”. The aforesaid news report quotes a home ministry official as saying that “if alleged IS tweeter Mehdi Masroor Biswas is found to be in touch with the IS, he will be chargesheeted for supporting the cause of a terror outfit on the basis of the UN resolution, even if India has not issued a separate notification under the UAPA to ban the ISIS”. Thus, it is clear that no specific and separate notification has so far been issued by the Government of India to directly ban ISIS as a terrorist organisation under the law.

Given that, today, ISIS is perhaps the most brutal and deadly terrorist organisation and it is fast spreading its wings in various countries, including in India, there is no reason as to why the Government of India should not take specific steps to include the name of ISIS as a terrorist organisation, specifically by its own individual name as a specific Entry in the aforesaid First Schedule to the Unlawful Activities (Prevention) Act. This will obviate many legal complications and will facilitate quick and effective legal action against members of ISIS in India. It is in this sense that I had mentioned in the beginning of the article that the answer to the question as to whether ISIS is banned as a terrorist organisation in India is both “yes” as well as “no”. It is difficult to understand as to why the Government of India has not shown urgency in this regard so far. One can perhaps understand the lethargy on the part of the Government if it concerns some small-time organisation, though even that should not be excused in view of its importance for national security. However, such lethargy in the case of the most dangerous terrorist organisation in the world today is difficult to comprehend. One can only hope that national security will receive the utmost priority and urgency from the Government, given that terrorist activities have seen enormous rise in last few months in various parts of the world, including in our neighbourhood.

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