UAPA ACT: A BLACK LETTER LAW OR A NECESSARY EVIL

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INTRODUCTION

In this day and age, all around the globe we are constantly facing and battling the problem of terrorism. To protect and safeguard our country and its citizens, we must have strong legislation with the specific goal of countering terrorism. Even though terrorism is an international issue, still every country has its legislation against it. India has such legislation known as the UAPA act (Unlawful assembly and prevention act). Earlier we used to have two more anti-terror laws known as the TADA act and POTA act. But after subsequent amendments, these laws were removed and their important provisions were included in the UAPA act.

The purpose of this research article is to discuss and present the idea to the reader whether this legislation is a black letter law i.e., whether it should be removed because of its strict and somewhat unfair provisions or whether it is a necessary evil i.e., whether it should be enforced in its current form without any need for any amendments. For this the author will first talk about the origin of this act and further amendments to this act, then will talk about the relevance of this act, lacunae in this act and finally suggestions to improve this act.

ORIGIN OF UAPA ACT (Unlawful Activities Prevention act) AND FURTHER AMENDMENTS

The origin of UAPA can be traced back to India’s colonial times. In 1908, the criminal law amendment act inserted and used the term unlawful association to criminalize and prosecute the then freedom fighters engaging in the freedom movement against the colonial rule of the British in India.

In the year of 1967, the UAPA bill was passed in the parliament after being withdrawn due to the pressure imposed by the opposition against the act. This bill gave the central executive the right to ban organizations which until this legislation was primarily included under the criminal law amendment act. The bill was met with strong opposition in the parliament. The provision that was contested the most was section 5 of the bill as it empowered the Centre to constitute the ‘’unlawful prevention Tribunal’’. This gave an overriding power to the Centre in determining what is deemed to be ‘’unlawful’’ under this act.

Thus, the UAPA act,1967 enabled the central government to impose reasonable restrictions on the right to form an association and it can impose this restriction simply by declaring the association as ‘’unlawful’’.

In 2004 and 2008, amendments were made to the UAPA act. Several provisions were incorporated from the earlier legislation against terrorism such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the prevention of terrorism act (POTA), which was repealed due to opposition.

The 2004 amendment amended the definition of ‘’unlawful activity’’ through the inclusion of the definition of ‘’terrorist act’’ from POTA. It also introduced the idea of a ‘’terrorist gang’’. Another amendment was imposed in the year 2008 which gave more powers to the central government. The central government can now ban associations on two grounds for being unlawful as well as for being a terrorist organization.

On 3rd February 2012, the central government imposed another change in the legislation through the notification of setting up a specialized body called the National Counter Terrorism Centre (NCTC). This body will get its powers from the UAPA for forming intelligence and investigation related functions. They will also be designated with enormous powers provided by the legislation.

’The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha by the Minister of Home Affairs, Mr Amit Shah, on July 8, 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967.  The Act provides special procedures to deal with terrorist activities, among other things.

Who may commit terrorism: Under the Act, the central government may designate an organization as a terrorist organization if it: (i) commits or participates in acts of terrorism, (ii) prepares for terrorism, (iii) promotes terrorism, or (iv) is otherwise involved in terrorism?  The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.

Approval for the seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director-General of Police to seize properties that may be connected with terrorism.  The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for the seizure of such property.

An investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.  The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.

Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.  The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).  The Bill adds another treaty to the list.  This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).’’ [1]

The most recent amendment to this act is perhaps its most controversial one. In this amendment, the major inclusion in the act is that now citizens or people can also be classified as terrorists as opposed to earlier when only organizations were classified as terrorist organizations. Another important change in the legislation is that an investigating officer when conducting an investigation will require the permission of the Director-General of police to seize the properties connected with the act of terrorism. Also, if an NIA officer is conducting the investigation, then permission is required from the Director-General of NIA.

SIGNIFICANCE OF THIS ACT

This particular legislation was first enacted in 1967. The UAPA act originated from a constitutional amendment enacted in 1963 by the recommendation of the National Integration Council. This amendment allowed parliament to make legislation that imposed restrictions on fundamental rights to freedom of expression, assembles without arms and form associations.

But in 2004 an amendment was made to this law which was inserted with the specific focus on punishing terrorist activities. Furthermore, after the drastic attacks of 26/11. The then government under Manmohan Singh, introduced further amendments to establish it as primary legislation for countering terrorism in the country. After removing earlier laws that countered terrorism which were the POTA and the TADA act, this act is the only remaining law in the country that focuses to punish those organizations which engage in terrorist activities against India.

In 2019, there was a major amendment introduced in this law which primarily focused on bringing individuals who engage in terrorist activities under this act. In the current scenario, this law deals in investigating and punishing organizations and individuals who engage in terrorist activities against the country of India.

This legislation was made a primary law on investigating and countering terrorism in India after the drastic events of the terrorist attacks on Mumbai on 26/11. After this horrific event, all the other legislations pertaining to punishing terrorist activities were repealed and several of their provisions were adopted and implemented in the UAPA act. Therefore, this legislation is the primary law which the government of India has against terrorist organizations and individuals (after the 2019 amendment) engaging in terrorist activities against the country.

LACUNAE IN THIS ACT

The purpose of effective legislation on anti-terror law is to reduce the number of terror attacks in the country and also to ensure the safety of its citizens against any potential terror attacks. Due to this fact, anti-terror laws are more stringent and non-bailable as compared to other criminal offenses at large. But there is a slight possibility that legislation enforced to punish those plotting against the nation can also be weaponized against those in dissent of the current regime of the government. It is because of these reasons anti-terror laws are much debated and scrutinized both by the judiciary and the public at large.

Due to the severity of the crime, the law made is stringent and uncompromising. But it can also act as a vicious trap for an innocent person who gets forcibly convicted under this law. the UAPA act is one such stringent and uncompromising law for the perpetrator as any person convicted under this act will not be able to obtain bail due to the severity of the crime and the rigid legislation which makes it difficult to initiate any hearing by the respective court to obtain bail for the person charged under this law.

Furthermore, after the amendments made to the actin 2019, individuals are also included under the purview of this act. This gives the law a new kind of unfettered power as it can now be able to charge terror groups operating under this country as well as any individual remotely involved with them.

It also allows the security agencies to take the perpetrator into detention for up to 180 days without a charge sheet and in police custody for up to 60 days. And the person is also presumed to be guilty without any real or substantive evidence against him but only based on alleged evidence presented by the security agency handling the case. In the legislation, there is also a provision which states that the court which is undertaking the trial will govern the circumstances pertaining to the type of proceedings the accused will have to undergo. It is entirely up to the discretion of the court whether the accused will have a physical courtroom proceeding or the proceeding will take place virtually i.e., in-camera proceedings. This will create a very unfair situation for the accused as the court will create the circumstances under which the proceedings will take place rather than making the trial public as what usually happens in our criminal justice system.

According to the data shared by the home ministry of India, there has been a 72 percent increase in the number of cases made under UAPA as compared to the number of cases made under UAPA in 2015. Also, the ministry shared the data that out of 5922 people convicted under this act only 132 were convicted which brings the number of people convicted under this act to around 2 percent of the total people arrested under this act. This data shows the true face of the effectiveness of this legislation. This data gives us a reasonable cause to believe that this legislation is not used in true cases of terrorism being spread in our country but is being weaponized as a law that suppresses the voice of dissenters, activists and protestors of the government.

There have been various instances in the past where activists, reporters or dissenters of the government were unfairly put in jails and faced trials because of this act. Earlier we also read about the sad demise of Father Stam Swamy, a Jesuit priest and activist who died in jail at the age of 84. He was suffering from Parkinson’s disease. He was prosecuted under this act due to him being accused of using inflammatory speech and also because of his alleged links with a Maoist resurgence group currently active in India. He repeatedly sought medical bail because of his age and suffering at the hands of such a grave disease. But sadly, he was denied because of the strict provisions of this act. An international agency of a digital forensics firm investigated the laptop of Father Stan Swamy which the investigative agency has seized was allegedly hacked and was planted with files. But still, the court didn’t take this report and his poor health into consideration when denying his bail request.

This event proves how the very law enacted to protect the citizens of the country was being used as a political weapon by the government against the citizens who dare to dissent against them.

PETITIONS FILED AGAINST THE ACT

‘’So far, 2 petitions have been filed against the Amendment Act – Sajal Awasthi v. Union of India and Association for Protection of Civil Rights v. Union of India – with Sajal Awasthi being the lead petition. Both petitioners have more or less raised similar arguments against the amendment. While this post only outlines the grounds raised in the lead petition, they overlap greatly with those raised by the Association for Protection of Civil Rights. The overarching argument of both Petitioners is that an individual may be identified as a terrorist without any judicial scrutiny and even before the commencement of a trial. Thus, they challenge the Amendment Act as being violative of the right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.

As per the Awasthi petition, the right to equality is violated since the provision does not provide any detailed grounds based on which one may be categorized as a terrorist. For this reason, the provision is ‘manifestly arbitrary’. The doctrine of manifest arbitrariness, in brief, states that if a law is made without an adequate governing principle and is excessive or disproportionate, the same is manifestly arbitrary and thus antithetical to the right to equality.

Awasthi also submits that the amendment goes against the right to dissent, which is a facet of the right to freedom of speech. They rely on and quote from the decisions in Romesh Thapar v. the State of Madras and Maqbool Fida Hussain v. Rajkumar Pandey to drive home the importance of free speech and the concomitant right to dissent.

As to the argument based on Article 21, Awasthi claims that the right to reputation is an integral aspect of the right to life and this right will be taken away by the arbitrary exercise of powers under Section 35.’’[2]

The above petitions filed against the legislation shows us that the citizens of this country are taking firm notice of the destructive and detrimental effect the legislation of UAPA has on the fundamental rights of the people of India. But still, it will take a long time until this legislation is finally reviewed and scrutinized by the judiciary and all the provisions which are curtailing the fundamental rights of the citizens are made void.

SUGGESTIONS FOR THIS ACT

Although this is the only law that is used against the war on terror. Still, this law is far from perfect and will need various improvements before it can fulfil its true purpose of being a deterrent against those plotting nefarious plans against our country and its citizens. Currently, this law has an ever-expanding scope so much so that it is curtailing the fundamental rights of the citizens. To stop this law from being turned into a political weapon used against those with the dissenting opinion against the government, we have to amend and improve this law by putting in some suggestions such as:

  1. The investigation agency directly dealing in this act which is the National Investigative agency should be biased and free from creating any discrimination against the accused in a trial under this act.
  2. The government should also refrain from interfering in the workings of the investigative agency as it is counterproductive to the investigation as well as seems to promote the political agenda of the government which can prove detrimental in promoting justice to the society.
  3. The individuals should be presumed to be innocent until proven guilty and the onus of the burden of proof should be on the investigative agency. The accused should not be tried merely on the first evidence found by the investigative but only after sufficiently reviewing the evidence and investigating the cause of arrest, the accused should be tried in the court of law.
  4. The period in which the accused is put into detention without a charge sheet should be reduced. Currently, the time for detention without a charge sheet is 180 days (which amounts to 6 periods) which is a very unreasonable time for a person to be put in detention without any charge sheet being filed against him.
  5. The most unfair situation created under this law is the untimely hearing for the request of seeking bail. There should a periodic review of the request for bail by the court hearing the trial.

CONCLUSION

India is a country harbouring a vast majority of citizens. It is one of the largest democracies in the world. Therefore, to keep its citizens safe and secure, the legislation pertaining to the anti-terror should be effective and strong. In the past, there have been major terror attacks in our country which has exploited the loopholes in our security but with disasters comes a certain opportunity of improving and strengthening our laws and our criminal justice system. But the legislators should also ensure that the laws made are such which do not curtail the rights of the very citizens it protects. Neither this legislation should be utilized in such a way so as to act as a political weapon for the government to be used against those opposing their views or agenda in any manner whatsoever.

The act known as UAPA (unlawful assembly prevention act) is the only major legislation left that is made for the purpose of being an anti-terror law in our country. It has its many advantages which were proven effective in the past. But the recent amendments of 2019 are raising a very problematic issue of the government over-policing on its citizens for sake of ensuring peace in the country. It is high time that the judiciary or the lawful authorities take notice of the glaring problems of this legislation. If the authorities do not address the problems in a timely manner, then the purpose of this legislation will turn from being ‘’Anti- Terror’’ to being ‘’Anti Dissent’’.


[1]The Unlawful Activities (Prevention) Amendment Bill, 2019,  https://prsindia.org/billtrack/the-unlawful-activities-prevention-amendment-bill-2019 (last visited on 15th September, 2021).

[2] Brief History: Challenges to the UAPA Available at: https://www.scobserver.in/beyond-the-court/uapa-challenge-a-brief-history (last visited on 15 oct, 2021).

Author: MRITYUNJAY BHARDWAJ, VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, GGSIPU UNIVERSITY, DELHI

Editor: Kanishka VaishSenior Editor, LexLife India.

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