When democracies get frightened, they reach for draconian laws — so vague in definition and so thin in safeguards that they leave liberty and freedom defenceless. The United States of America now teeters on that same precipice. After the assassination of the conservative commentator, Charlie Kirk, the US president, Donald Trump, signed an executive order designating Antifa, a decentralised coalition of far-Left groups, as a domestic terrorist organisation. Left-wing extremism has been blamed by the Trump administration for Kirk’s killing.
But here’s the catch: legally speaking, under US law, there is no official mechanism to formally designate domestic groups as terrorist outfits. Unlike foreign organisations, which the US state department can designate as terrorist entities under the Immigration and Nationality Act, no statute grants the executive the authority to label domestic groups as ‘terrorists’. Nor is there a specific federal law that criminalises domestic terrorism. Instead, the offence of domestic terrorism is state-based and varies considerably across the country. Thirty-two states and Washington D.C. criminalise the act of domestic terrorism, while the remaining do not. But given the First Amendment guard rails of freedom of speech and association even under state laws, a domestic group cannot be labelled as a terrorist organisation.
Currently, if someone commits an act of violence inside the US that looks and feels like terrorism, there’s no federal law under which the federal government can charge it with domestic terrorism. Instead, agencies under various federal laws utilise dozens of different definitions of terrorism for specific legal purposes — for example, to designate foreign terrorist organisations or to seek enhanced surveillance and penalties. Two commonly used federal definitions can be found in the Anti-Terrorism and Effective Death Penalty Act of 1996 and the USA PATRIOT Act of 2000, but they don’t create an offence of ‘domestic terrorism’.
The debate of enacting an anti-terror law resurfaces every time the US experiences a major act of political or mass violence. After the attack on the Capitol Hill on January 6, 2021, Democrats called for a law against domestic terrorism. As a candidate for president in 2020, Joe Biden said he would push for a law against domestic terrorism, but as president he didn’t. After Kirk’s killing, Washington appears seized, once again, by a fervour to enact a federal anti-terror law to hunt and prosecute those it calls terrorists at home. The US might do well to heed the experience of the world’s largest democracy about the costs and the perils of anti-terror laws. India has walked this road before — and paid dearly for it.
Under its omnibus anti-terror law called Unlawful Activities (Prevention) Act, the Union government can designate both individuals and groups as terrorists without a judicial process. As of 2025, India has named 57 people and 44 groups as terrorists — a list that keeps growing. In 2020, the United Nations Special Rapporteur had warned that the UAPA defies fundamental protections enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Some of its provisions — “likely to strike terror”, “unlawful activity”, “advocacy” — are so ambiguous and elastic that even political dissent or writings critical of State policies can be stretched to fit them. Journalists like Mohammad Manan Dar and Siddique Kappan were arrested under the UAPA — not for bombs or bullets, but for probing cameras and questions. Even Arundhati Roy, the Booker Prize-winning author, was charged in 2024 for words she spoke about Kashmir 14 years earlier.
The law contains stringent provisions, which make it almost impossible to obtain bail, shifting the burden of proof on the accused to satisfy the courts that the charges are not prima facie true. As per the National Crime Records Bureau, conviction rates under the UAPA is below 3%; most accused languish as under-trials without bail for years.
Following the Delhi anti-CAA protests and the subsequent 2020 riots, several student activists were arrested under the UAPA. Five years on, many, including Umar Khalid, remain behind bars without conviction, trapped in a system where due process has been effectively suspended and prolonged pre-trial detention has become punishment in itself. The 84-year-old Jesuit priest and tribal rights activist, Father Stan Swamy, who was charged with UAPA for his alleged role in the 2018 Bhima Koregaon violence, died in jail without a trial.
UAPA is India’s third such anti-terror statute. India enacted its first anti-terror law called Terrorist and Disruptive Activities (Prevention) Act in 1987 to counter the Punjab insurgency. It soon became a machinery for abuse — torture, coerced confessions, and endless pre-trial detentions became synonymous with TADA. Its successor, Prevention of Terrorism Act (2002), repeated the pattern until the UPA-I government repealed it, condemning it as “a slur on democracy”. In 2004, India revived the older, softer-sounding law, the UAPA, and turned it into a sweeping anti-terror law. Three amendments later, the UAPA has metastasised into an all-purpose instrument not just for persecuting ‘terrorists’ and proscribing ‘terror organisations’ but also jailing journalists, activists and political opponents.
Justice Aftab Alam and Justice Rohinton Nariman, former judges of the Supreme Court, have publicly urged the apex court to strike down the law’s “offensive portions”. The Supreme Court once pruned TADA and POTA by reading in procedural safeguards. Yet it has never constitutionally reviewed the UAPA — an abject abdication of its constitutional responsibility of judicial review. The court said in February 2025 that petitions challenging the 2019 UAPA amendment, which gives the Centre powers to label people as terrorists, must first be heard by the high courts. When the Bombay High Court upheld the UAPA’s validity in July 2025, it confirmed the fear that expecting high courts to dismantle the machinery of legal exceptionalism is wishful thinking.
The warning from India is clear: widely-worded, anti-terror laws calcify into a permanent state of exceptionalism. Once the State creates extraordinary powers that override due process — imposing stringent bail conditions, shifting the burden of proof, admitting police confessions — those powers soon reach beyond militants and bombers to ensnare journalists, writers, and activists. What begins as counter-terrorism law mutates into counter-dissent law.
The experience of anti-terror laws in India also demonstrates an inherent linguistic challenge: anti-terror laws by their very definition allow the confabulation of political opposition with extremism. UAPA’s “unlawful activity” clause criminalises any act “intended to disrupt the sovereignty and integrity of India”. Similarly, US drafts that talk of “domestic terror threats” without tethering them to imminent lawless action risk criminalising protest or political dissent as terrorism. Imprecise legal definition in anti-terror statutes has a propensity to become a weapon when wielded by vindictive governments.
Once a democracy empowers the executive to label its enemies as terrorists, those enemies multiply.
In America’s partisan climate, a domestic-terror label would swing like a wrecking ball — from the far-Right to the far-Left. Defining terrorism, then, is not just about security; it is about who gets to define the enemy.
India’s trajectory offers three warnings America should heed: don’t legislate in fear and anger. Each Indian anti-terror law was born out of crisis — the Punjab insurgency, the Parliament attack, the Mumbai terror attacks — and each expanded beyond its immediate trigger. Two, define narrowly, review constantly. Without judicial or parliamentary checks, emergency laws become ordinary tools of policing. The UAPA’s survival without constitutional review is precisely why it has metastasised into a coercive law. Three, remember the purpose: justice, not vengeance. Laws should protect citizens, not politicians. When they protect power or political ideologies instead, they breed the very radicalisation they claim to stop.
India’s UAPA stands today as a case study in how legal measures taken in the name of national security can curdle into perpetual exception. Its text criminalises thought; its practice rewards political persecution. If America constructs its own domestic-terror list, it will inherit the same logic: that some citizens are beyond the law’s protection.
National security does not suffer from lack of laws; it weakens from lack of limits. The real courage of a free nation lies not in how harshly it punishes its enemies, but in how faithfully it restrains itself. Before the US Congress writes a domestic-terror statute, it should read India’s experience like a cautionary scripture.
Ashish Khetan is a lawyer who specialises in international law