This article is written by Ghanisht, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
A fifty-year-old legislation which is still considered to be one of the most controversial Act till date- The Unlawful Activities (Prevention) Act, 1967 (hereinafter as UAPA) has been recently highlighted in the news after the Bhima Koregaon case and the recent Delhi and Bengaluru riots. It is claimed that the UAPA is aimed at effective prevention of unlawful activities against the association of India. It strengthens our fight against the terrorism in India.
The Need Of UAPA
Since the inception of India there have been many organizations, religious groups and terrorist groups which are working to disrupt the association of India, carrying unlawful activities in India and raising demands to make a separate country. To check on such organizations and illegal activities, UAPA was passed by the parliament in 1967. Its main objective was to make powers available to the state for dealing with activities directed against the integrity and sovereignty of India.
Why was UAPA Enacted?
Wide powers were given to the citizens of India under Article-19 of the constitution of India in the beginning but soon the government realized that these power must be restricted to some extent and amended the constitution for the first time in 1951 and added two words ‘reasonable’ before restrictions and ‘public order’ to keep a check on the fundamental rights.
During the 1962 war with China there were few political parties that were supporting China and raising demands for forming a separate nation. Observing all these scenarios the committee on National Integration and Regionalism was appointed by the National Integration Council (NIC) which recommended further restrictions on the fundamental rights in 1963.
Therefore on the recommendations the constitution was amended for the 16th time in 1963, Article-19(2) of the Constitution was amended for the last and final time, and the words ‘the sovereignty and integrity of India’ were inserted in it, creating one more enumerated exception to the right to free speech. After this amendment the UAPA was brought into force by the government of India. This Act gave vast powers to the authorities to take action against the organizations working against the association of India. Any organization could now be termed as ‘unlawful’ by the government subject to judicial review.
Major Amendments of UAPA
The Unlawful Activities (Prevention) Act, 2004
This amendment was brought into force after the Prevention of Terrorism Act (POTA) in 2004 was repealed and major provisions of POTA were amended into UAPA. The definition of ‘unlawful activity’ was changed and included the definition of ‘terrorist organization’ and ‘terrorist act’ from the POTA. The concept of ‘terrorist gang’ was also introduced. The following are the amended sections :
Section-15 of the UAPA defines the term ‘terrorist act’ as any act done with the intention to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.
Section-2(l) of the UAPA defines “terrorist gang” as any association, other than terrorist organization, whether systematic or otherwise, which is concerned with, or involved in, terrorist Act.
Section-2(m) of the UAPA states that “terrorist organization” means an organization listed in the Schedule or an organization operating under the same name as an organization so listed.
The amendment gave the new definition of ‘terrorist gang’ which empowered the authorities to investigate and arrest a group of people who are involved in unlawful activities and the central government can term them as ‘terrorist gang’.
The Unlawful Activities (Prevention) Act, 2008
Soon after the Islamic terror attack at Taj in Mumbai the UAPA was amended on 17th December, 2008. The major amendments done were the increase in the time period of custody of the accused without a charge sheet i.e. the custody could be extended to one hundred and eighty days. The police could take the accused in police custody from judicial custody on giving a good reasoning to the judge for the same. The bail provisions were made strict and the section-438 of the Code of Criminal Procedure, 1973 i.e. anticipatory bail was not applicable in case the accused is charged under UAPA.
The Unlawful Activities (Prevention) Act, 2012
To fulfil the obligation of the Financial Action Task Force (FATF), an inter-governmental body responsible for setting global standards against money laundering and terror financing, the government amended the UAPA and added offences that threaten the country’s economic security in the definition of ‘terrorist act’. It also criminalizes the raising of funds “from legitimate or illegitimate sources”.
The Unlawful Activities (Prevention) Act, 2019
Following the footsteps of the legislations of United Nations, United States, Israel, China, Pakistan and European Union the Indian parliament amended the UAPA which allows the government to tag ‘individuals’ as terrorists under section-35 of the Act, if they:
- commit acts of terrorism,
- prepare for acts of terror,
- promote terrorism or,
- are otherwise involved in terrorism.
Earlier, the government was empowered to designate organizations and not individuals, as terrorists. It is the individual who carries out the terrorist act and not an organization.
The new provisions also empower the Director-General of National Investigation Agency(NIA) to grant approval of seizure or attachment of property when the case is investigated by the agency. Earlier the seizure of property was done only after the investigating officer obtained permission from the Director General of Police. This gives the power of seizure directly to the center government from the state government. Is it said that such things lead to centralization of power?
The amended UAPA under section-43 gives authority to the NIA officers, of the rank of Inspector or above to investigate cases. Earlier the power to investigate was with the officers of the rank of Deputy Superintendent or Assistant Commissioner of Police only.
The Draconian Provisions of UAPA
The definition of terrorism in UAPA is indefinite and comprehensive as it covers almost every kind of violent act be it political or non-political. It is believed that such acts are kept intentionally by the political parties so that they can easily suppress the voices of dissent. This Act empowers the government to declare any ‘unlawful organization’ as a ‘terrorist organization’ and ban it but it is subject to judicial review under section-36 of the UAPA. Now the government can even term an ‘individual’ as ‘terrorist’ under UAPA.
The definition of ‘unlawful activity’ under section-2(o) of UAPA states that any action taken by such individual or association which is intended, or supports any claim, to bring out about, on any ground, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession ;or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India. These words are unclear and wide, and this comes close to making a regime of thought crimes. This puts a strict check on the liberty of a person to question or speak against the government.
Under section-43A and section-43B of UAPA the police is empowered to search, seize and arrest any person involved in unlawful activities without a warrant. Under section-43D police are empowered to detain the accused in police custody for thirty days and in judicial custody for a period of one hundred and eighty days without the charge sheet. The police can get the police custody of the accused from the judicial custody with the permission of the court.
Under UAPA the accused does not have the option of anticipatory bail. It presumes the accused guilty solely on the basis of the evidence collected. The secret witnesses are allowed under section-44 of the Act. There is no sunset clause.
Which acts are Considered Crimes under UAPA?
The act under section-38 criminalizes any person who associates himself with a terrorist organization with the intention to further its activities, commits an offence relating to membership of a terrorist organization. In Sri Indra Das v. State of Assam (2011), the Supreme Court stated that ‘on a plain language of provisions mere membership of a banned organization criminal has to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional, we can depart from it so that the provision becomes constitutional.’ The Act does not define the term ‘membership’.
The U.S. Supreme Court in Elfbrandt Vs. Russell, 384 U.S. 17 (1966) has rejected the doctrine of ‘guilt by association’. ‘Mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence’ was stated by the Supreme Court of India in Arup Bhuyan v. State of Assam.
The act under section-39 criminalizes a person who commits the offence relating to support given to a terrorist organization. The support can be given in many ways like inviting support for terrorist organization, to further the activity of a terrorist organization, to manage or assists in arranging or managing a meeting to which a person knows is to support terrorist organization in one way or another and to address a meeting for the purpose of encouraging support for the terrorist organization or to further its activity.
The cct under section-40 criminalizes the offence of raising funds for a terrorist organization. Funds can be in the form of money or any other property. This is a very wide section and covers all the forms of funding a terrorist organization.
The UAPA criminalizes the ideology of a person and association of a person to a terrorist organization. This Act by declaring an organization ‘unlawful’ or ‘terrorist’ and ‘banning’ it actually criminalized their ideologies. Few examples of such crimes are- possession of any literature of such an organization, upholding an ideology without committing any violent act, membership or association with such an organization, attending a meeting of such an organization.
How Does it Affect Civil Liberties?
This Act transgresses our human rights and basic constitutional rights under Article-19 and Article-21 of the Constitution of India. In K.S. Puttuswamy v. Union of India, the Supreme Court stated that the right to privacy is an integral part of Article 21 of the Constitution which guarantees a right to life and personal liberty. The apex court held that the right to be let alone is a reflection of the inviolable nature of the human personality. Profiling by the executive is thus a violation of Article 21 as it infringes upon the personal autonomy of an individual.
This Act gives the power to the police to arrest a person without a warrant and keep that person in custody for a period of one hundred and eighty days without filing a charge sheet. This is in violation of Article-21 of the constitution of India. But UAPA is not the only Act which has this provision, Maharashtra Control of Organized Crime Act, 1999 (MCOCA) also has the provision where accused is not allowed to get bail before six months.
In Shreya Singhal v. Union of India, the Supreme Court had identified ‘vagueness’ as one of the grounds for striking down Section 66A of the Information Technology Act. The law imposed an unreasonable restraint on online speech. Similarly, the UAPA also have provisions which are vague. The UAPA criminalizes the thoughts and political protests which are against the association of India. This somehow violates the Fundamental Right under Article-19 of the Constitution of India as it puts a check on the right to freedom of speech and expression.
According to the National Crime Records Bureau (NCRB), the conviction rate under UAPA cases was 33.3% in 2016 across the country, 14.5%in 2015 and 27.3% in 2014. Looking at the large picture the NCRB data also revealed that over half of the trials in the country ended in the acquittal of the accused: the overall conviction rate at the end of 2017 was 48.8 percent. The conviction rates for theft and criminal breach of trust are lower than the average: at 36 percent and 23.6 percent respectively. This data only suggests that there is a need for change in a criminal justice system.
Highlighted Cases of UAPA Being Used
The Students Islamic Movement of India (SIMI), an Islamic fundamentalist organization, seeks the ‘liberation of India’ through conversion of the country into an Islamic land. SIMI, which was involved in a series of terror acts in the country, has been banned under UAPA by the government for five years as it continues to indulge in subversive activities.
The group ‘Kabir Kala Manch’ is alleged to have links with the banned Communist Party of India (CPI-Maoist) has been banned under UAPA.
The court found Saibaba guilty of waging a war against India. He was also found having maoist links.
The recent cases made under UAPA are the Delhi-riot cases which are said to be pre-planned violence. The case is under trial as of now.
UAPA gives unfettered powers to the government and leaves a person vulnerable in front of the government. This Act compromises with the constitutional values such as freedom of speech, personal liberty and the right to a fair trial. There is no doubt that such stringent laws are required to fight against the terrorism so that authorities do not feel powerless while making a case against the accused but there is no justification for the vague language of many provisions of the Act. To keep a balance between such laws, human rights and constitutional values the role of judiciary is paramount. Judiciary must keep a check on misuse of such laws.
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