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This article is an overview of the stringent provisions under Unlawful Activities (Prevention) Act, 1967 (hereinafter “UAPA”). The purpose is to analyse why the mentioned act has been termed as a “draconian law” and how it is being brought under sharp scrutiny in recent times. No political view point is made supporting any organisations in this article. General legal opinion of stringent provisions of UAPA is emphasised with respect to some recent cases.
“If the freedom of speech is taken away then dumb and silent, we may be led, like sheep to the slaughterhouse”, is a quote by George Washington which highlights the essence of Freedom of Speech. Constitution of India, under Section 19 guarantees all citizens the right to freedom of speech and expression, and also to form associations or unions. The main object of the Constitution (Sixth Amendment) Act, 1963, was to empower Parliament to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India, on the:
- Freedom of speech and expression;
- Right to assemble peaceably and without arms; and
- Right to form associations and unions.
National Integration Council also urged the Parliament to form a law to tackle unlawful activities and unlawful associations causing domestic crisis in India which led to enactment of Unlawful Activities (Prevention) Act, 1967.
By 2004, 2 major laws against terrorism, Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorism Act were repealed and the purview of terror related provisions were added to UAPA Amendment and it became a major anti-terror law in India.
Recently, after the death of Jesuit Priest and tribal rights activist, Father Stan Swamy, UAPA has attracted huge deal of criticisms in view that authorities are misusing this piece of legislation to target anyone and everyone who challenges government policies. After challenging the bail petition, Stan Swamy had succumbed to death at the age of 83 years as a prisoner charged under UAPA. The grave injustice in his matter has enshrined the need for review of certain stringent provisions under UAPA.
The act not only criminalises fundamental rights but also diminishes difference between dissent and criminal activity. The question is, are sympathisers, journalists, civil rights, tribal rights and student or academic activists’ terrorists? With no weapon in hand, but only beliefs and voicing out concerns against dissatisfaction of government policies, activists are being targeted by authorities using UAPA and are slammed with ‘terrorist’ tags. Cases under UAPA have increased drastically after the Amendment Act of 2019.
Definitions of certain terms like ‘terrorist act’, ‘unlawful activity’, ‘terrorist organisations’ are vague and not transparent, and its application is wholly dependent on the discretion of the Court. Terrorist or terrorism are not specifically defined and left to interpretation by Courts. ‘Unlawful activity’ under Section 2(o) of the act includes that action taken by an individual or association which intends or supports any claim to the cession or secession of a part of territory of India to disrupt sovereignty and territorial integrity and disaffection against India.
UAPA Amendment Act in 2019 expanded the definition of ‘terrorist’ to include individuals apart from organisations as terrorists. Since then, many activists are being slammed with ‘terrorist’ tags and are arrested for any dissent made by them. State is making an attempt to send a message to public eye that any dissatisfaction by individuals towards government policies will be dealt with severely. If Central Government believes an individual is planning, supporting, committing or involved in ‘terrorist act’, they can now be termed as ‘Terrorists’ when arrested without any legal process (FIR and Chargesheet). Soon after, their names will be added to Schedule in UAPA under ‘terrorists’ without allowing such individuals to defend themselves.
Inclusion of ‘individuals’ as terrorists has helped in tackling lone wolves like Masood Azhar designating ‘global terrorist’ tag to him, but anybody and everybody challenging government policies can be termed as ‘terrorists’ before the commencement of trial, and it is violating of Article 21 of Indian Constitution guaranteeing Right to life (to live with dignity).
Section 15(1) of UAPA states that ‘terrorist act’ means,
“Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of people in India or in any foreign country”.
‘Any act’ in this definition gives a broad perspective. The offensive speeches, alleged conspiracies or statements made by individuals are also being called as “terrorist act”. In Section 15(1)(a), the term ‘by any other means of whatever nature’ used in terrorist act allows for inclusion of all physical acts causing terror as terrorist act. The fault in this definition is that, the actual commission of an act is not required to term it as ‘terrorist act’. And any physical act instigating terror is termed as a terrorist act.
The main legal issue of UAPA lies in these vague definitions challenging human rights, personal liberty and morality. With no specific or definitive terms that constitute any act as terrorism, is the main reason why UAPA is a stringent law.
BAIL UNDER UAPA
Generally speaking, there is absence of bail under UAPA which is subjected to much critique. Bail means the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court. Under Section 43D (5) of UAPA,
“Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of his act, if in custody, will be released on bail.”
The proviso in (5) states that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing thar the accusation against such person is ‘prima facie’ true. The main problem with stringent provision of bail lies here. Bail petitions are dismissed on the grounds of ‘prima facie’ involvement of the accused in the case, even if it is not backed by factual evidence. Totality of the case is examined while granting bail. The act gives way to accusation based on suspicions.
It was held in the case, Bikramjit Singh v. State of Punjab (2020) 10 SCC 616, that according to Section 43-D (2)(b), proviso, the accused can be detained for 90-180 days or beyond those days without filing of chargesheet if the Special Court is satisfied with the report of the Public Prosecutor indicating progress of investigation and specific reasons for detention of the accused.
In case, NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, bail granted by Delhi High Court to J&K based businessman accused in terror funding conspiracy to systematically upturn establishment with larger object to cause cessation of J&K from Union of India was set aside.
Therefore, UAPA is being used to silence and lock away activists or anyone raising their voice in disapproval of political policies and religious ideologies without granting them bail. Stalling of bail is normally seen in terrorism cases and such methods used by authorities only highlights the misuse of UAPA.
Father Stan Swamy was arrested in October 2020 for his role in Bhima-Koregaon Violence in 2018. Arrest was merely on the suspicion of his links with Maoists arrested in the case. Jesuit Priest and tribal activist Stan Swamy was just named in the case and did not play any part in the violence. His medical bail was denied by the court and the ground for such decision is still puzzling. Two days before his death, Father Stan Swamy had challenged the Court that, ‘the way the bail provision has been drafted, it is virtually impossible to get bail and if a statue is denying an individual bail, it is violative of fundamental Right to life and liberty guaranteed under Section 21 of our Constitution’. He further said that bail is an ‘illusory’ under UAPA
The human rights activist, K. Balagopal had argued that an abiding legacy of liberalisation is the delegitimization of concern for the oppressed. This is why a man who strove all his life for solidarity, fraternity and justice in real terms stands accused by our government of prooting enmity. And why his death, while foretold, transcends textual analysis of the UAPA, courtroom proceedings and prison reforms.
In 2007, activist Seema Azad and her husband were arrested as “Maoist sympathisers” for having Maoist literature. Here, membership of Maoist organisation was simply deduced by possessing literature of that organisation. Draconian law UAPA is being used as a witch hunt for any ‘Urban Maoist’ as terrorists. Sympathisers are considered as propagating the ideology of terrorism.
Maoists are arrested and charged under Section 39 of the Act with ‘Offence relating to support given to a terrorist organisation’ criminalises a person who invites support including monetary, non-monetary or property support ‘with intention to further the activity of terrorist organisation’. While the threat of Maoist violence presents a legitimate concern, the government cannot treat mere expressions of support or neutral reporting as coextensive with violence carried out in the name of Maoism/Naxalism.
The Government has also tried to link anti-CAA stir with terror links. Akhil Gogoi was one amongst the protestors who was arrested under charges of anti-terror law UAPA and sedition. His speech during anti-CAA protests may have been a sharp political statement, but it was not an act of terrorism. An NIA judge held that there was no ‘incitement’ to damage property or obstruct public officials to categorise Gogoi’s actions as punishable under UAPA.
In Delhi Riots Conspiracy case, recently Delhi High Court made decision to grant bail for 3 student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha who were charged under UAPA. This decision is like a ray of hope to many prisoners in jail arrested under this stringent anti-terror law. The bench in the judgement said that, “We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy will be in peril”. Allegations against them did not count as crime under UAPA.
Kerala-based journalist Siddique Kappan and others with him were allegedly arrested as they were suspected to be linked with People Front of India. They were on their way to UP’s Hathras village to report on the alleged gang rape and murder of a girl. Their arrest was on the apprehension of causing a ‘breach of peace’ and were charged with violation of Sections 17 and 18 of the anti-terror law UAPA, with stringent sedition charges. Raising funds, directly or indirectly, for terrorist acts are punishable under UAPA. Siddique Kappan arrest was a dramatic one, this was brought to light in a letter written by his wife to CJI N.V. Ramana. His wife mentioned that, journalist Kappan was ‘being chained to a cot like an animal’ and there was a need of immediate intervention. He was being deprived of basic human rights. After one year struggle for his release, UP court dropped charges against all the accused after the police failed to complete investigation within six months (180 days).
We can only assume how individuals slammed with ‘terrorist’ tags are treated in prisons. Many cases have been dealt inhumanely and prisoners arrested under UAPA are languishing in prisons awaiting their trial for a very long time. UAPA allows indefinite detention of anyone who dissents, and is basically used as a tool of political safety than as a law for national security.
There are enough provisions under Indian Penal Code to deal with terrorism, in that case, the need for such a stringent law like UAPA is insignificant. The pace at which our criminal justice system works is so slow that public is of the opinion that, UAPA is used to bring terror in people literally for having thoughts or opinions against the State.
Supporters of minority rights are targeted as terrorists and are mostly disadvantaged by the provisions of counter-terrorism laws. There is strong case against the systematic failure made in UAPA and there is a need for revisiting UAPA provisions defining ‘terrorist acts’ and discouraging bail. It is not only travesty of justice, but also a political attempt made by the state to send a message for any movements carried out against it. Anti-terror law maybe deterrent, but the terror it fills in people, stopping them from saying anything which can be used to arrest them and term them as terrorists is far beyond imagination.
It is true that tougher laws are needed to combat terrorism but in reality, anyone who makes political dissent, civil rights activists, tribal rights activists, journalists, student and academic protestors are being targeted as terrorists. Application of such laws, however, requires constant review. Whoever is working for minorities, raising their voice against government policies are charged under the draconian law – UAPA. There has to be a difference between activists and terrorists. Stringent UAPA has become a controversial topic lately. Generally, anyone can be targeted and designated as terrorists under this act. Harsh laws of UAPA are being misused by the establishments to silence individuals with critical political opinions.
UAPA is called stringent because of its bail provisions that make it impossible for anyone arrested under charges of terrorism to get bail because of their trivial involvement in the case. For example, a listener of a speech which is against the sovereignty or integrity of India can be arrested and slammed with ‘terrorist’ tag on grounds that he was supporting the ‘terrorist act’ by listening to the speech. The Central government’s ‘reason to believe’ that a person has committed terrorist act should not be a legitimate ground for arresting individuals and call them terrorists.
Our Constitution guarantees us freedom of speech, but there is no freedom after speech. Stringent law UAPA has become one of India’s unforgivable laws, which mainly does not curb restriction on fundamental rights, but is used to outcast certain individuals and organisations with opinions against state. These reasons have led to the need for not only reviewing, but scrapping of the grotesquely draconian legislation – Unlawful Activities (Prevention) Act.
 George Washington address to Officers of US Army, “The writings of George Washington, Vol.10, pp 1782 – 1785.
 The Unlawful Activities (Prevention) Act, 1967 [Act 37 of 1967 as amended up to Act 28 of 2019]
 Supra note, 2.
 Chitrangada Choudhury, ‘In a passing, the large picture of dispossession’, The Hindu, on July 9, 2021
 SAHRDC, ‘Stifling Freedom of Expression and Opinion’, Economic and Political Weekly, Vol. 45, No. 32 (AUGUST 7-13, 2010), pp. 19-22
Author: VARSHITHA K, KLE SOCIETY’S LAW COLLEGE, BENGALURU
Editor: Kanishka Vaish, Senior Editor, LexLife India.