UAPA
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This article is written by Shruti Yadav, from Jagran Lakecity, Bhopal. This article talks about the UAPA with regards to the right to protest.

Introduction

The Unlawful Activities Prevention Act (UAPA) was initially passed in 1967 under the then Prime Minister Indira Gandhi. However, the law has endured over half a dozen amendments, the last one in 2019 under the Narendra Modi government. The UAPA was manifested as an anti-terrorism law to curb unlawful activities, associations and preserve the sovereignty and integrity of India. Since its inception, it has been amended for efficient application. It serves the Act’s primary. The amendments allowed Parliament to impose constraints on the fundamental rights of freedom of expression, assemble without arms, and form alliances. These restrictions were to be imposed only to safeguard the sovereignty and integrity of India. The 1967 version of the UAPA granted the central government the power to deal with activities levelled against the sovereignty and integrity of India. Terrorism was not yet incorporated under the UAPA. Between 1967 and 2004, the UAPA was not a terror law. In 2004, the Parliament included a chapter assigned to punishing terrorist activities. The UAPA has been amended on various occasions to include the changing routines of terrorism, shifting the burden of proof to executing extra-territorial arrests. The Unlawful Activities (Prevention) Amendment Act, 2019, is the latest amendment made which comprised the definition of “terrorist” to incorporate individuals under Sections 35 and 36 of the Act. 

It gives powers to the Director-General of the National Investigation Agency to seize property from proceeds of terrorism under Section 25. It enables inspectors and officers of higher positions to investigate cases under Section 43. To repeal the label of an individual, a review committee was also established by the central government which eliminated all the possibilities of any institutional mechanism for judicial review. The UAPA, now comprises terrorism, money laundering for terror financing and appellation of groups, and individuals as a terrorist. The terror law makes bail challenging. It prolongs the pre-charge sheet custody period from 90 days to 180 days. It also restricts the right to bail and makes the court dependent on police documents to presume the accused’s guilt. The conviction rate in the UAPA is miserable. According to the Union Home Ministry, in March this year, 2.2 per cent of the cases registered under the UAPA between 2016 and 2019 ended in conviction by courts.

new legal draft

Constitutionality of the UAPA

The fundamental arguments against the Amendment in 2019 are under Section 35, which include:

  • In addition to the categorisation of organisations or groups as terrorist organisations, it extends the power to include the categorisation of individuals as terrorists within its extent.
  • Secondly, the new amendment is contradictory to the principle of ‘innocent until proven guilty. It infringes the International Covenant on Civil and Political Rights, 1967, which identifies the stated principle of universal human rights.
  • Thirdly, it is being practised to impede rather than combat terrorism since the Amendment renders that designation of an individual as a terrorist would not transverse to any conviction or punishments.
  • Fourthly, no intention basis has been concocted for categorisation. The government has been provided with unfettered authorities to hold an individual as a terrorist.
  • The UAPA is a part of security legislation, enabling the government to arrest citizens who might commit crimes. It is problematic legislation for various reasons.
  • It does not tolerate dissent. It criminalises mere thoughts and political remonstrances that provoke disaffection with the State. Thus, it is an onslaught of citizens’ right to expression, a mutual right of groups and unions to propagate their views given under Article 19 of the Indian Constitution
  • It can be utilised to circumvent fundamental rights and procedures. For example, without even a charge sheet filed, those arrested under the UAPA can be detained for a period of 180 days, therefore, directly violating  Article 21 of the Constitution. 
  • It bestows upon the government vast discretionary powers and also empowers the creation of “special courts with the ability to use confidential witnesses and to hold closed-door hearings.”
  • It is being practised to stifle dissent through coercion and harassment, thus imperilling the very existence of public debate and freedom of the press and criminalising the enforcement of civil liberties.
  • The UAPA enables the Parliament to curb the rights and freedoms of citizens for the protection of ‘the sovereignty and integrity of India’. However, the problem remains whether the Parliament under any circumstance can label an individual as a terrorist purely based on a belief of him involved in terrorism without any trial or investigation whatsoever. In his speech in 1993, Atal Vihari Vajpayee apprehended that “the Government would declare all the opposition as unlawful.” The government, however, keeps reiterating that they bear no malice and only intend to keep the country united and safe against existential threats. Hence, it is quite clear that this law can be used as a tool to suppress the opposition and attack the crucial freedom of speech in a democracy in the name of protection.

Petitions against the UAPA

Two petitions have been filed to contest the constitutional validity of Sections 35 and 36 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) as amended in 2019. The initial petition was filed by an Association for Protection of Civil Rights (APCR), a non-profit civil rights society. Sajal Awasthi, an Indian national, filed the second one. The petitioners solicit that Sections 35 and 36 be struck down and declared unconstitutional.

Grounds for the petition

Lack of substantive and procedural process

Section 35 enables the government to list any individual as a terrorist in the Fourth Schedule of the UAPA. The government can claim and notify based on mere suspicion without an intricate process. No just hearing opportunity has been mandated. The grounds on which a person can be declared a terrorist is obscure and unclear. While Section 36 approved an individual who has been labelled as a terrorist under the UAPA, to appeal against the label, its execution is complicated. An individual is not acquainted with the grounds for arrest. There is no prerequisite for oral hearing at the state of appeal. 

The law is dogmatic and violates equality 

The challenged Section fails to provide sureties against the high potential of discretionary authority. While the procedure to notify an organisation of a terrorist organisation has substantive safeguards, it is amiss for an individual. With no clear purpose behind the distinction between an organisation and an individual, the treatment of an individual is excessive and irrational. This does not suffice the ‘reasonable classification’ test under Article 14. 

Furthermore, the absence of a fair trial disrupted the natural justice postulate of Audi alteram partem or the rule of fair hearing. Summoning Union of India v. Tulsiram Patel (1985), the petition contends that violation of natural justice results in arbitrariness and disrupts Article 14. Moreover, the petition led to the People’s Union for Civil Liberties v. Union of India (2004). The Court had decreed that if human rights are violated in combating terrorism, it will be self-defeating.

Indirect violation of free speech

Dissent is an indispensable feature of the right to free speech under Article 19(1)(a) as rendered in Maqbool Fida Hussain v. Rajkumar Pandey (2008). Under the pretence of preventing terrorism, the impugned Sections are intended to target significant speech against the government. The petitioners contest that this Amendment gives the government discretionary powers to curb or silence dissent and opposition voices. Moreover, Sections 35 and 36 infringe the right to equality under Article 14, the right to freedom of speech under Article 19(1)(a) and the right to life with dignity under Article 21 of the Indian Constitution. 

The Amendment dishonours the international conventions sanctioned by India. Especially legal principles under the International Convention on Civil and Political Rights and United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms.

Critical judgements on the issue up till now

The Court’s decision remarks that as the UAPA is meant to deal with terrorism-related offences, its use must be confined to acts that can reasonably fall within a likely understanding of “terrorism”. Earlier this year, the Supreme Court in Union of India v. K A Najeeb (2021) maintained that notwithstanding restrictions on bail under the UAPA, constitutional courts can still allow bail if they perceive that the accused’s fundamental rights have been violated. The Court held that the rigidity of the UAPA bail restrictions would meltdown where there is no plausibility of trial being finished within a reasonable time. The Delhi High Court took this rationale a step further, holding that it would not be beneficial for courts to wait till the accused’s rights to a speedy trial are entirely denied before they are set at liberty.

UAPA as a hindrance to the Right to Protest

In recent times, there have been many cases of the right to protest of citizens being threatened. Approximately 1,100 protestors are under arrest and 5,558 kept in preventive detention concerning the CAA-NRC protests. Most of them have also been arrested under the Unlawful Activities (Prevention) Act. Recently, A bench of justices including Siddharth Mridul and Anup J Bhambhani stated that the “foundations of this nation stood on a surer footing than those likely to be shaken by a protest, however vicious, organised by college students who operated from the confines of a university“. The Delhi High Court also granted bail to three student activists, who were involved in CAANRC protests and were arrested for allegedly inciting the February 2020 Delhi riots, terming the charges against them as “stretched”, “verbiage”, and “hyperbole” and saying that the state may have, by going after the protestors, blurred the line between the “right to protest” and “terrorist activity”. In three separate but similarly worded orders, the Court granted bail to Jawaharlal Nehru University (JNU) students Natasha Narwal and Devangana Kalita. “We are compelled 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,” said the Bench in the judgment granting bail to Kalita.

The Bench commented that “the right to protest is not outlawed and cannot be termed a ‘terrorist act’ within the meaning of the UAPA”.

The three are set to walk out of prison after more than a year’s incarceration in connection to the riots case. Both Narwal and Kalita, members of NGO Pinjra Tod, were accused in three cases and were arrested on May 29 last year for purportedly plotting a conspiracy and the other co-accused to organise the riots.

The Delhi Police have chosen to challenge the High Court Order. “We are not satisfied with the interpretation of the provisions of Unlawful Activities Prevention Act by the Hon’ble High Court in a matter concerned with grant of bail. We are filing a Special Leave Petition before the Hon’ble Supreme Court of India”, said DCP Chinmoy Biswal, Delhi Police spokesperson. The High Court, in its orders, has rebuked the invocation of the anti-terror law against the student activists by the Delhi Police. “We are afraid, that in our opinion, shorn of the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not constitute prima facie disclose the commission of any offence under sections 15, 17 and 18 of the UAPA,” read one of the orders. The Sections consist of charges against being involved in activities with the intention to threaten or likely to threaten the unity, integrity, security or ­sovereignty of India or with intent to strike terror. Quoting the Supreme Court’s take on protests in 2018, in the Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court said that uprisings against governmental and parliamentary actions are legitimate. Though such protests and assemblies are supposed to be peaceful and non-violent, it is not new for protestors to dangle with the limits of law and protests to take a violent turn.

Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams (blockades), instigation of women protesters and other actions…crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA,” the Bench added.

The Bench was emphatic that there was no evidence to prove the probable execution of a terrorist act, or an act of collecting funds to commit a terrorist act, or an act of conspiracy to commit a terrorist act.

Allegations relating to inflammatory speeches, organising of chakka jam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA,” it said. Warning against the frivolous invocation of the “extremely grave and serious penal provisions” under UAPA, the Court added that such a proposition “would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our nation“.

The Court also reaffirmed that it would be wrong to insinuate the protest had an effect on the community at large for it to be classified as an act of terror.

Conclusion

Drawing the line between individual liberty and the state’s duty to render security is a case of a classic predicament. It is up to the state, judiciary, civil society to balance constitutional freedom and the imperative of anti-terror pursuits. The government has time and again adopted draconian laws such as sedition and criminal defamation laws to quell dissent. These laws are dubiously worded and unnecessarily extensive. They have been misused in politics as tools against critics, legitimising “thought-crimes.” The government, in recognising the intent of this Act, has disintegrated human rights. The above contentions have shown that the amendment compromises the fundamental rights of its citizens by putting them in peril and threatening the mere existence of opposition. The government has arrested journalists doing their jobs and citizens asking for their rights and justice in the blanket of such laws. The right to protest has been put under severe jeopardy by the introduction of the UAPA’s recent amendment. The right to protest is an essential feature of democracy. Recently, protesting against the government has led to charges of sedition and being booked under the UAPA for potential terror activities as observed when JNU student Devangana Kalita in a case related to the communal violence in northeast Delhi during protests against the Citizenship Amendment Act was arrested. When such frightful laws violate and infringe the rights of citizens, the Supreme Court must intervene and reclaim faith in democracy. This Amendment shows hints of the way with which laws were made under the colonial regime to curb several freedom movements under cover of assuring public order. The Act mainly criminalises acts based on ‘ideology’ and ‘association’. Thus, these laws can be evidently seen as baby steps in the direction of autocracy from democracy, which urgently needs to be prevented by the judiciary.

References 


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