This article has been written by Smriti Katiyar, an Associate, Editor at LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho). 

“Sometimes, the scandal is not what law was broken, but what the law allows.”

                                                                                              -Edward Snowden

Introduction 

The safety and security of a country have always been of paramount importance to every state presently in existence. Security isn’t something that has become something of grave consideration as of this day; it has always been a thing of remarkable importance since the very inception of human civilization. All the mythical stories we have heard, all the legends that we have read, all the stories that have been shared with us, all the kings and empires that history can trace back to, there is only one thing which connects every one of them, soldiers and wars. Be it, Jesus Christ, be it the Roman Empire, be it the Spanish inquisition, and be it Zeus and his war with the Titans, soldiers, and wars were a part of all of them. This shows that humanity itself is naturally inclined towards having a sense of security no matter whether it is in their person, their house, their city, or their whole empire. Even Abraham Maslow, in his renowned Maslow’s Need Hierarchy Theory, puts security needs just above the basic physiological needs of a person in his pyramid of needs, thereby showing how important it always has been to mankind.

What’s even more profound is the fact that entire empires have been started from dust, and existing empires have fallen to dust just over the issue of security. Even the Japanese started invading China and parts of Korea because they were afraid that they would themselves be attacked if they did not do so. While the ways have always differed as to what a country perceived as a viable way to secure itself, most of the methods which have been used since time immemorial cannot be used in the present day scenario. As civilized human beings, we always have to learn from our past and the mistakes we’ve made and strive to evolve from them. We have several accords that prevent us from doing terrible acts against an individual and crimes against humanity. Conventions such as the United Nations Convention against Torture (UNCAT), Geneva Conventions, Nuremberg Principles, etc. have put all the necessary checks and balances to ensure that States don’t cross boundaries when it comes to the treatment of prisoners who have harmed or pose a threat to the security of the state.

While these treaties and conventions give a sense of pride and safety to individuals, their real-life implementation shows a completely different ground reality altogether. After the passing of the Geneva Convention back in 1949, states vowed not to do any act which violated the Geneva Convention in any way, shape, or form. The United States of America, which is a signatory and has ratified the Geneva Convention, has been a forerunner when it comes to the gross violations of the said conventions. The most horrifying example of the same would be when the United States Senate Select Committee on Intelligence investigated the Acts of the central intelligence agency, while it investigated all known suspects who had any connection to the September 11 attacks on the World Trade Centre. The horrifying acts which were committed by the CIA were revealed in the Committee Study of the Central Intelligence Agency’s detention and interrogation program. showed that the CIA has used methods such as anal rehydration, waterboarding, mock deaths, sleep deprivation amongst other cruel and inhumane acts to question the known suspects of the 9/11 attacks.

Other countries such as the Russian Federation, the People’s Republic of China, North Korea, etc. have also been, on numerous occasions, criticized by other countries and international organisations for their blatant disregard for the human rights of their citizens. As Nelson Mandela has very rightly put forward, “To deny people their human rights is to challenge their very humanity.” Countries cannot, and should not commit any act which even remotely poses any such threat to individuals.

While its counterparts around the globe have always been subject to speculation over the disregard for human rights, India has always managed to be away from such kind of defamatory criticism. The Indian Government, since its independence, has lived by the words of M.K. Gandhi who said that “The greatness of humanity is not in being human, but in being humane.” India has always stood up for what’s right, and even in the darkest of times when individual liberties were threatened, the Supreme Court of India has always stood firm in protecting the rights of those who are threatened.

That being said, it never was the case that India’s past has been as white as a dove when it came to the liberties of an individual. To protect the sovereignty and integrity of the nation, India has also at times gone to lengths, while having little to no disregard for individual liberties and freedom. The first stain of blotted ink on India’s clean past happened back in the year 1967, when the Government of India decided to pass the Unlawful Activities (Prevention) Act, 1967, which we more prominently have known as the UAPA. While the 1967 act looks like a piece of cake in front of the act which stands today, it still had some horrifying provisions inside of it, which gave the Government unfettered powers to act on their will if a certain crime had been committed and was punishable under the said Act.

The UAPA : a legislative insight 

The UAPA was legislated solely for the reason that there was a growing sense of discontentment amongst the population of India, which wanted to secede from the territory of India. The country as we see today still didn’t look like it back in 1967, a handful of states were yet to join, and those who joined had been voicing their concerns throughout. The State of Tamil Nadu back then already was extremely disappointed with the Government of India holding back on its promises, and taking advantage of this disappointment, the DMK party went on to contest the elections. The party stated in its manifesto that if elected to power, the DMK would work to secede the state of Tamil Nadu from India, and create an independent country for the Tamil. This scared the Government even more since it had already lost a part of its territory in Aksai Chin after the 1962 Sino-Indian War. Therefore, the act which was legislated simply put forward that any person who commits an “Unlawful Activity” shall be punishable under the said act. Also, any person who is a member of an “Unlawful Organization”, shall be punishable under the said Act.

The issue with the legislation was the fact that nowhere in the Act was it clearly defined what constituted an “Unlawful Activity”. What was stated was the fact that any Act, which threatened the sovereignty and integrity of the nation would be considered as an unlawful Act, thereby leaving it entirely in the hands of the Government to decide which act was unlawful and which wasn’t. Furthermore, what was even scarier was the fact that the said Act allowed arrests without warrants and preventive detention for up to 180 days to those who have been charged with this Act. This marked the beginning of gross human rights violations under the said act, which would further go on to become one of the most draconian laws in India. Hence, this led to the Government of India having a scary arbitrary power in its hands. As George Washington has rightly said, “Arbitrary power is most easily established on the ruins of liberty abused to licentiousness.”

Abuse of power under UAPA and the enactment of TADA 

What started with just the UAPA went on and spread like poison in the hands of the Indian Legislature. Years after legislating the UAPA, the country faced a similar issue of internal security. This was after Operation Blue Star was conducted by the government in the State of Punjab. The Government passed the notorious Terrorist and Disruptive Activities Act, 1987, which more prominently came to be known as the TADA. However, the act was so grossly misused by the authorities that it had to be repealed merely 6 years after it was legislated.

The Act provided that a person can be detained for up to 1 year without any formal charges being pressed on him. The Act further provides that a detainee can be in the custody of the police for up to 60 days, and post then even, he need not be presented before a magistrate, but an Executive Magistrate. Furthermore, the Act reverses the presumption of innocence, stating that a person caught under this Act is presumed guilty until his innocence is proven otherwise. Lastly, any person who is tried under this Act cannot appeal anywhere, except to the Supreme Court of India. For reasons such as this which are so immoral, the act was allowed to lapse in 1995 when it was due for renewal. During the 7 years TADA remained in force, 76000 people were arrested in India under the act.

After TADA lapsed, and the Indian Parliament was bombed in the year 2001, the need arose for a new law to prosecute those who have been found guilty of the said offense. This led to the Indian Legislature passing the Prevention of Terrorism Act, 2001, which more prominently came to be known as POTA. Just like TADA, POTA also had numerous provisions that allowed for blatant misuse of powers. POTA also had the provision for holding a person in custody for up to 180 days without any filing of the charge sheet. Further, the laws in India do not accept any confession made to a police officer as evidence and allow it to be rebutted in a trial. “This was however not the case in POTA, and every confession made to a police officer is admissible and can be used against a person in trial. POTA was misused heavily by the government, and the police itself misused the act to torture and humiliate prisoners.” As Norman Finkelstein has rightly put, “No conditions justify torture” and therefore when the government at the center changed, POTA was accordingly repealed.

Analysing the right to arrest without warranty in purview of the right to privacy 

The issue in hand, however, has also been the fact that while states have blatantly used their arbitrary powers to interfere with the rights of a human being, one right which has always gotten stepped upon during all of this is the right to privacy of an individual. The privacy of a person is always something that is valued the most. As Edward Snowden has said, “Privacy isn’t about something to hide, it’s about something to protect.” All the legislation which has been laid forward above has always had one thing in common, which is a blatant disregard for the privacy of an individual. The forerunner in this section, however, remains the UAPA.

An instance of the UAPA being misused for such a horrendous act would be when the Delhi Police barged directly into the home of the AISA President Kanwalpreet Kaur and seized her mobile phone stating that it was required as a part of the investigation under the Delhi Riots. When she was handed the seizure memo, along with a bunch of charges, a few changes were also placed under the UAPA for seizing her mobile phone.

The UAPA has also been criticized by the United Nations Special Rapporteurs for violating the privacy of said individual. The amended Act allows for searches, seizures, and arrests based on the “personal knowledge” of police officers without a written validation from a superior judicial authority. The police are empowered by the amendments to enter the premises of a person on the mere suspicion of her being part of an “unlawful association”. The police have the power to examine the books, and other properties of the accused and also make inquiries against her. This, the statement declares, is a clear violation of the right to privacy as per India’s international law obligations.

The Act also interferes with the privacy and liberty of individuals contravening the provisions which protect against arbitrary or unlawful interference with a person’s privacy and home.  As, the Act allows for searches, seizures, and arrests based on the ‘personal knowledge’ of the police officers without a written validation from a superior judicial authority this interferes with the privacy and liberty of individuals which is not only in violation of fundamental rights but also contravenes the provisions of the International Convention on Civil and Political Rights (ICCPR)”, which protects against arbitrary or unlawful interference with a person’s privacy and home.

The right to privacy of an individual has to be protected, and so has been time and again said by the courts. There have been numerous judgments wherein the courts have asked the government to make laws in accordance with protecting the privacy of an individual, but the government has somehow or the other managed to get away without actually doing something to protect the rights of an individual. The Supreme Court has stressed upon the fact that “it is entirely for the Central Government to make rules on the subject of interception but till the time it is done the right to privacy of an individual has to be safeguarded.”

“If the right to privacy has to mean anything, it is the right of an individual, single or married, to be free from unwarranted government intrusion.” These were the words of William Brennan Jr. when asked about the views on privacy. Well, these words make more sense now than ever, when asked about the state of privacy in India. If we have to be on the morally correct side of history, we cannot let any act, not even national security supersede the privacy of an individual.        

The Unlawful Activities (Prevention) Act, 1967

A brief history of the UAPA

Dissent and opposition are some of the core values of every existing democracy in the world. They are one of the very basic principles on which democracy is based. But, there is a very thin line of difference between dissent and violence, and when one crosses the said line, terrible things are bound to happen, take Pakistan and Bangladesh for example. The need for the Unlawful Activities Prevention Act arose when the National Integration Council appointed the committee on national integration and regionalism. The sole purpose of constituting the committee was to look into the issues concerning the sovereignty and integrity of India. This further led to the passing of the 16^th Amendment to the Constitution of India, which then put reasonable restrictions upon the fundamental rights which were guaranteed by Article 19 of the Constitution of India. The said Act was passed in the wake of the defeat which India suffered at the hands of the India-China war of 1962, and for the purposes of maintaining the sovereignty and integrity of India, because at that time, the DMK Party was contesting elections from the Tamil Nadu state, and it posed a great threat to the sovereignty of India because secession from India was a part of their election manifesto.

The Unlawful Activities (Prevention) Act, 1967 was the Government of India’s first legislation which was targeted at countering terrorism and anti-national activities within the territory of India. With the passage of time, the act was amended several times.

Although legislated for the benefit of the nation, the UAPA started gaining active criticism from 2004 when the said amendment was passed, which contained a majority of the provisions from the repealed Prevention of Terrorism Act (POTA). This criticism only went upwards from that point, calling the act out as fascist, and outright unconstitutional. The reasons for the same are not wrong as well, because the government has time and again made arbitrary arrests within the scope of the said Act. Furthermore, the Act has been criticized for using vague and open-ended terms to define simple things, just so that arrests can be made under this act for a wide range of acts without them actually being something considerate or not.

Reasons for legislating the Unlawful Activities (Prevention) Act, 1967

As very well stated earlier, there were many reasons which were considered before the passing of the UAPA. These reasons were:-

• Defeat in the Sino-Indian War: The Indian Army was heavily unequipped during the Sino-Indian war, and the Chinese were far advanced in their military technologies as well as their equipment. This led to heavy losses on the Indian side. The aftermath of the battle resulted in India losing a significant portion of the Kashmir Valley, known as Aksai Chin, to the Chinese. This was a big blow to the sovereignty of India, and a grave concern to the government back then.
• Rising insurgency in India: Communists and Chinese sympathizers were already starting to assimilate in 1955-56 within West Bengal. India was already in the process of inculcating the princely states with the territory of India, and there was already a growing sense of discontentment within the princely states which were already a part of India, because the Government wasn’t living up to the promises which were made to them while ceding their territory to India. There were even more radical insurgencies rising in the State of Nagaland, claiming direct secession from India.
• DMK contesting elections in Tamil Nadu: The DMK Party at that time planned on contesting the elections for the state legislature of Tamil Nadu. Tamil Nadu was already a part of India at time, and there was a growing sense of discontentment amongst the people of Tamil Nadu because the Government of India had not agreed to separate the states on the basis of language as promised. This became the topmost agenda of the DMK Party, and officially in their election manifesto DMK declared that if they win the elections, they will be moving for a secession from the Indian territory.

These reasons started worrying the Indian Government because that was a time when India was not even geographically as we see it today. The territories of Goa, Pondicherry, and even Sikkim weren’t a part of India, while the states like Mysore and Cochin kept demanding further division on the basis of language. This combined with a loss of territory in Aksai Chin had the Government worried about any further losses to the sovereignty and integrity of India. Hence the Government, after amending the Constitution through the 16^th Amendment Act, and putting reasonable restrictions on the rights provided under Article 19 of the Constitution of India, moved forward with introducing the Unlawful Activities (Prevention) Act, 1967.

Why was the UAPA unique?

Several provisions of the Unlawful Activities (Prevention) Act, 1967, were authoritative, as well as overly broad in their definition, thereby allowing the government to do a large number of things over a simple authority, just because it wasn’t specific enough to point out as to what it was actually referring to. Further, certain things which made the UAPA stand out from other legislations at that time are:-

• Declare all-India bans on organisations and associations: By far the most distinct and the most used feature of the UAPA is the power which the Act gives to the government to impose an all-India ban on organizations. The Government, by virtue of Section 3 of the Act could simply announce that an association is unlawful, by publishing a notice in the Official Gazette, if it is of the opinion. The section further goes on to provide that the government has to provide the reasons as to which it opined that the association is unlawful. However, the proviso to the same subsection provides that nothing in the said clause could mandate the Government to give reasons for banning an association if the Government is of the opinion that declaring such reasons to the public shall not be in the public interest to disclose. This essentially gave the Government the power to declare any organization as unlawful and not give any justification whatsoever as to why it chose to declare it as such.
• Vague and open ended interpretation to clauses: Section 2(f)[6] of the Unlawful Activities (Prevention) Act, defines the term Unlawful Activity, as any act which intends to bring about secession or succession to any part or territory of India, or which incites an individual or association to do so, or it does anything to harm the sovereignty and integrity of India. Now this definition in itself opens up hundreds of interpretations, because nowhere in the said legislation has any Act been defined which could be seen as an act harming the sovereignty or integrity of India. Further, Section 2(g)[7] defines an unlawful organisation as any organisation which does unlawful activity, or whose members do such activity, or which aids in committing such activity.
• Harsh and unreasonable punishments: Section 10 of the Unlawful Activities (Prevention) Act, provides that any person who is merely a member of an unlawful association can be punished with imprisonment up to 2 years. Section 13, on the other hand, punishes who takes part, abets, advises, or incites the commission of any unlawful activity with an imprisonment of up to 5 years. 
• Arrests without warrants: Section 14 of the Unlawful Activities (Prevention) Act, 1967, clearly states that any offence which is listed under this Act shall be cognizable only. This therefore allows the police to arrest a person whom they suspect of being linked to an unlawful association, without a warrant. Not only an arrest, but the police can actually go further and start an investigation without even the permission of the court. This actually in turn grossly overpowers the police in matters related to Unlawful Activities, and the police can misuse the powers for harassing people and activists without any valid reasons or authority to do the same.
• Protection from civil liability: To put the final nail in the coffin, the Government actually went forward and included Section 18[9] of the Unlawful Activities (Prevention) Act, 1967, which stated that no legal proceeding shall lie against the government for any loss or damage caused because of any action taken by the Government while acting under the powers of the said Act. This actually gave the government full immunity from any kind of responsibility which may arise from the continuous use of the said Act.
• The Act did provide some relief, with provisions for establishment of a Tribunal in the case of unjustly ruling an organization a terrorist organization, but little to no relief has been provided through such tribunals, and an organisation which had made its way to be banned under this act has in the end remained banned. The SIMI (Students’ Islamic Movement of India) is a living example of such an Act.

Similar legislations as the UAPA

Although the Unlawful Activities (Prevention) Act as of today deals not only with Unlawful, terrorist activities as well, the same wasn’t always the case when it came to dealing with terrorism and related activities. Prior to inclusion in the UAPA, terrorist activities within the Territory of India were dealt with the Terrorism and Disruptive Activities (Prevention) Act, 1987. This act was brought in by the Parliament after increasing insurgency in the Punjab region due to Bhindrawale. TADA was the first act in India that actually went on and defined terrorism and what it was. TADA defined terrorism as:-

• “Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.”

Post the coming in force of TADA, this Act was heavily misused, and its unpopularity started rapidly increasing, because it led to a number of arbitrary arrests, and misuse by the police force. Apart from this, the TADA had a number of other faulty features which were grossly unconstitutional and outright immoral. For example, the Act provided that a person can be detained for up to 1 year without any formal charges being pressed on him. The Act further provides that a detainee can be in the custody of the police for upto 60 days, and post than even, he needs not to be presented before a magistrate, but an Executive Magistrate. Furthermore, the Act reverses the presumption of innocence, stating that a person caught under this act is presumed guilty until his innocence is proven otherwise. Lastly, any person who is tried under this Act cannot appeal anywhere, except to the Supreme Court of India. For reasons such as this which are so immoral, the Act was allowed to lapse in 1995 when it was due for renewal. During the 7 years TADA remained in force, 76000 people were arrested in India under the Act. Of the people arrested, 25 percent of the cases were dropped by the police without even any formal charges being pressed, while only 35 percent of the cases were brought to trial, resulting in 95 percent conviction. In essence, less than 2 percent of the people who were arrested were actually convicted. This shows how the police abused their power when armed with the TADA. This act lapsed in 1995, and was further repealed by the Prevention of Terrorism Act, 2002.

• In Kartar Singh v. State of Punjab, the validity of TADA was challenged on the ground that it dealt with the issue of ‘public order’, which was within the legislative domain of states. Nevertheless, the Court upheld the validity of TADA. The Court held that ‘public order’ covered issues of lesser gravity and more serious threats covered in TADA fell within the Union’s domain relating to national defence.
• A similar challenge was mounted against POTA in PUCL v Union of India, which too was repelled by the Court on similar grounds.
• The Prevention of Terrorism Act, 2002, was passed by the parliament after a lot of controversy because of the already misused Prevention of Terrorism Ordinance, 2001. The Ordinance was passed in the wake of the 2000 Red Fort attack and the 2001 Parliament Bombings. The Ordinance already came under a lot of criticism when the police started overreaching their powers and misusing the provisions of the Act. The Bill to make this Ordinance into an act failed at the Rajya Sabha, but was later passed by a joint session of the Parliament.

Just like the TADA, POTA also had the provision for holding a person in custody for up to 180 days without any filing of the charge sheet. Further, the laws in India do not accept any confession made to a police officer as evidence and allow it to be rebutted in the trial. This was however not the case in POTA, and every confession made to a police officer is admissible and can be used against a person in trial. POTA was misused heavily by the government, and the police itself misused the act to torture and humiliate prisoners. POTA was later repealed in 2004 when the Government at the center changed.

Further amendments to the UAPA, making it as draconian as it stands

The first substantial amendment to the UAPA was introduced in the year 2004, when the Congress Government, as promised, repealed the POTA. However, the repealing of the POTA had little to no difference in the status quo, because almost a majority of the provisions of POTA including those relating to ‘Terrorism’, ‘Terrorist Organization’, ‘Terrorist Act’ etc. were all inculcated in the UAPA. The Schedule of POTA which listed all the Terrorist Organizations was also added to the UAPA. POTA’s definition of terror afflicts UAPA too. It is defined primarily through intent (“intent to strike terror”), other things being the same. It duplicates a range of criminal law offences, such as causing death, injuries, damage to public property, disrupting essential services, use of firearms, explosives, etc—all of which are otherwise also covered under a range of laws. This provides latitude to the executive—both police and government—to subjectively choose what to designate as terror, and what to dismiss indulgently as ordinary violence. It is in their power then to decide when to invoke the draconian provisions of UAPA, and when to apply (and in some cases, never to apply) ordinary criminal law.

What the UAPA hollows out is the constitutional guarantees of fair trial and the right to life and liberty. It thus perverts the very notion of rule of law beyond recognition. Section 43D(5) of the UAPA, deals with bail provisions. A replica of Section 49(7) of POTA, it makes it practically impossible for an accused to secure bail. Under this section, bail cannot be granted till the public prosecutor has been heard, and it can be declined if the magistrate concludes, upon reading the charge sheet, that the charges are true. So, in effect, an accused has to demonstrate her innocence, that too at the start of the trial, in order to be even granted bail. UAPA thus explicitly—and legally—denies the presumption of innocence. Which, of course, is the very bedrock of modern law.

After the 2008 terrorist attack in Mumbai, some provisions of the repealed POTA and TADA were once again added to the UAPA. These provisions were the ones referring to the time a person can be detained in police custody. The 2012 amendment to the UAPA further went on to expand the definition of terrorism to include offences that harmed the economic security of the nation too.

The final immoral Amendment in 2019

“The most recent amendment that came was the Unlawful Activities (Prevention) Amendment Act, 2019 which dealt with expanding the definition of terrorist to include individuals under Section 35 and 36 of Chapter VI of the Act. It allows the DG of NIA seizure of property from proceeds of terrorism under Section 25 and the powers of officers with the rank of inspectors and above to investigate cases under UAPA Section 43. A Review Committee to denotify the individual notified as a terrorist is also constituted by the Central Government thus removing all chances of any institutional mechanism for judicial review.”

“The primary objections to the Amendment are under Section 35, in addition to the categorization of organizations as terrorist organizations, extending the power to include within its scope the categorization of individuals as terrorists as well. Secondly, the new Amendment is contrary to the principle of ‘innocent until proven guilty’ and also violates the International Covenant on Civil and Political Rights, 1967 which recognizes the mentioned principle as a universal human right. Thirdly, it is being used to repress rather than combat terrorism since the amendment provides that designation of an individual as a terrorist would not lead to any conviction or penalties.” Fourthly, no objective criterion has been laid for categorization, and the government has been provided with “unfettered powers” to declare an individual as a terrorist.

Abuse of powers granted by UAPA and legal challenges

The most prominent abuse of the Unlawful Activities (Prevention) Act can be seen when the Delhi Police arrested Umar Khalid, a student leader at the Jawaharlal Nehru University in connection with hatching a conspiracy to create communal violence over the Citizenship Amendment Act. The Delhi Police further went on to arrest Meeran Haider and Safoora Zargar under the same draconian provisions. The police said that they were all key in premeditating a conspiracy to start riots in the national capital.

The Jammu and Kashmir Police arrested the Journalist Masrat Zahra under Section 13 of the Unlawful Activities (Prevention) Act, 2020 by stating that she uploaded anti-national videos on Facebook to incite the youth in glorifying anti-national activities. They also put this same draconian provision on Peerzada Ashiq when she posted about the diversion of COVID testing kits, stating that it is against the authorities. The Amnesty International Executive Director called such acts by the Indian Government an attempt to curb the right to freedom of expression of its citizens.

“The Jammu and Kashmir police had also invoked Section 13 of UAPA against people who were accessing social media through VPN’s to dodge the longest ever internet ban imposed by the government when it scrapped Article 370 of the constitution to divide the state into two centrally administered UT’s.”[26] The government said that it was done “to curb the misuse of the sites by miscreants for propagating false information/rumors.”

The Supreme Court has scrutinized specific provisions of the above legislation on various occasions. For instance, the Court in “Sri Indra Das v. State of Assam”, read down Section 10 of UAPA and Section 3(5) of TADA, both of which made mere membership of a banned organization criminal. The Court held that “A literal interpretation of these provisions would make them violative of Articles 19 and 21 of the Constitution. This was in line with the previous decision in Arup Bhuyan’s” case where the Court had held that ‘mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’.

“Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally, and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well Under Article 14.” Public interest litigation has been filed by one Sajal Awasthi asking the Supreme Court to declare the UAPA as unconstitutional because it is violative of the fundamental rights of the citizens. He goes on to explain that the right to dissent is one of the very basic rights of an individual and that curtailing the same would be grossly against Articles 14,19, and 21 of the Constitution of India. He also states that the Act does not provide any opportunity to the person arrested to prove that he is not a terrorist, which is very arbitrary to the core. He further went on to say that:-

“Right to Reputation is an intrinsic part of [a] fundamental right to life with dignity under Article 21 of the Constitution of India and terming/tagging an individual as ‘terrorist’ even before the commencement of trial or any application of judicial mind over it, does not adhere to procedure established by law.”

The Association for Protection of Civil Rights (APCR) filed another petition in the Supreme Court challenging Section 35 of the UAPA, because after the 2019 amendment it allows the Government to label an individual as a terrorist, whilst before the same could only be done to organizations and associations.

Privacy concerns over the said Acts

Questionable legislations such as the UAPA, TADA, POTA, etc. have always been surrounded by a question of overreach. The said overreach in this scenario is to what extent these said acts would go in order to breach the privacy of the individual. The UAPA till today itself post the 2019 amendment has been criticized on numerous occasions for having little to no regard for the privacy of a person whom they just ‘suspect’ of some act. In simpler words, the UAPA empowers the investigating agencies to do any act and breach the privacy of an individual if they deem so reasonable after suspecting the said individual.

An instance of the UAPA being misused of such a horrendous act would be when the Delhi Police barged directly into the home of the AISA President Kanwalpreet Kaur and seized her mobile phone stating that it was required as a part of the investigation under the Delhi Riots. When she was handed the seizure memo, along with a bunch of charges, a few charges were also placed under the UAPA for seizing her mobile phone.

The UAPA has also been criticised by the United Nations Special Rapporteurs for violating the privacy of said individual. The amended Act allows for searches, seizures, and arrests based on the “personal knowledge” of police officers without a written validation from a superior judicial authority. The police are empowered by the amendments to enter the premises of a person on the mere suspicion of her being part of an “unlawful association”. The police have the power to examine the books, and other properties of the accused and also make inquiries against her. This, the statement declares, is a clear violation of the right to privacy as per India’s international law obligations.

The Act also interferes with the privacy and liberty of individuals contravening the provisions which protect against arbitrary or unlawful interference with a person’s privacy and home. The Act allows for searches, seizures, and arrests based on the ‘personal knowledge’ of the police officers without a written validation from a superior judicial authority. This interferes with the privacy and liberty of individuals which is not only by a fundamental right but also contravenes the provisions of the International Convention on Civil and Political Rights (ICCPR)”, which protects against arbitrary or unlawful interference with a person’s privacy and home.

If such Acts aren’t horrendous enough, the UAPA has also been used on little things such as the use of a VPN. The Jammu and Kashmir Police actually arrested people under the UAPA from Jammu and Kashmir for allegedly using the internet through a VPN. If that is not enough too, the people who were arrested were actually slapped with not only the UAPA but also the repealed provision Section 66A of the IT Act. For a common man with little to no legal knowledge, committing such acts is horrendous abuse of power, and harassment of individuals while imposing a totally authoritarian regime for them to live in.

Such concerns have not solely been with the UAPA itself, other acts previously existing in the Republic of India also had such serious flaws in them which literally allowed them to step over the right to privacy of an individual. Under Section 7 of the POTA, a police officer investigating an offence under POTA can seize or attack any property if he has reason to believe that such property constitutes the proceeds of terrorism. The fear that’s permitting a police officer to act on the basis of his belief is “draconian and unguided”.

Section 14 requires an officer or authority of the Central or a State government, other organisations and institutions, and even individuals to furnish to am investigating officer, information relating to such an offence, and makes the failure to do so an offence. This provision is against Article 20 of the Constitution, besides being an onslaught on individual freedom and the right to privacy.

Chapter V of POTA deals with the interception of electronic communications, which also creates an audit mechanism that includes some provision for judicial review and parliamentary oversight; however, it remains to be seen how effective such mechanisms will be in practice. In certain high-risk states such as Jammu and Kashmir, search warrants are not required and the government from time to time bans the use of cellular telephones, long-distance phones, and cyber-cafes.

Just because POTA gave police broad, if not indiscriminate, powers of arrest and detention for a variety of ill-defined and constitutionally untested offenses, Indian citizens had far more to fear than infringements upon their privacy. The extent of POTA’s abuse proved that fear of prolonged, arbitrary detention was not unfounded or conjectural.

The right to privacy of an individual has to be protected, and so has been time and again said by the courts. There have been numerous judgments wherein the courts have asked the government to make laws in accordance with protecting the privacy of an individual, but the government has somehow or the other managed to get away without actually doing something to protect the rights of an individual. The Supreme Court has stressed upon the fact that “it is entirely for the Central Government to make rules on the subject of interception but till the time it is done the right to privacy of an individual has to be safeguarded.”

The Maharashtra Control of Organized Crime Act, 1999 has provisions for interception and safeguards for the same. These provisions and their safeguards are similar to the directives laid down by the Supreme Court in PUCL’s case. The court observed that though the interception of communications is an invasion of an individual’s right to privacy, the right to privacy is not absolute, thus the court is required to see that the procedure itself is fair, just, and reasonable. Pursuant to the procedural safeguards formulated by the Supreme Court in the P.U.C.L case, the Central Government brought out an amendment to the Indian Telegraph Rules, 1951 but failed to remove unguided interception. To fill the procedural gap the interception powers laid out in the Information Technology Act were amended in 2008, and in 2009 the IT Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules, 2009 (“IT Interception Rules”) were notified. The above two developments have supplemented the procedural lacuna of Unlawful Activities (Prevention) Act, 1967, 2004, 2008 and 2012 as far as the procedure for interception is concerned. Even the National Investigation Agency may use the power of interception but only with the procedural safeguard which is now included under the IT Amendment 2008 and IT Interception Rules 2009.

Peroration

There has always been a need for a strong hand to counter-terrorism and all such related activities, but if the protection for the citizen came at a cost of a gross miscarriage of justice and violating the basic human, if not fundamental rights of an individual, then what good does such protection do? The right to dissent is one of the core founding principles on which democracies are built, and the UAPA simply tries to take away that right from the people. It is an assault of citizens’ right to an expression which is also a collective right of groups and unions to disseminate their views and UAPA majorly targets this right. Secondly, it can simply be used to bypass fundamental rights and procedures. For instance, those arrested under UAPA can be incarcerated up to 180 days without a charge sheet being filed. It thus directly violates Article 21 of the Constitution. Thirdly, it confers upon the government broad discretionary powers and also authorises the creation of “special courts with the ability to use secret witnesses and to hold closed-door hearings.”

Like the TADA and POTA, UAPA also criminalises ideology and association. By virtue of declaring an organisation ‘unlawful’ or ‘terrorist’ and banning it, these Acts have de facto criminalised their ideologies. Hence mere possession of any literature of such an organisation or even upholding an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence. It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation under the schedule of the Act. Their activists or members get arrested and remain in prison for years, and are denied bail.

Desperate times indeed call for desperate measures, and history is a brave example that no matter how desperate one gets, nothing is above the human rights of an individual. The way the UAPA has been drafted clearly puts it in par with the USA PATRIOT Act, which was criticized way too much for being violative of fundamental rights. In essence, from a neutral standpoint, there is no way an act like the UAPA should exist in a democracy like India, unless we are already an Orwellian State like the US. 

UAPA as a law being misused

The UAPA as a law has been used on several instances to harass, arbitrarily arrest, or even influence people to do certain acts against their will. While we live in a country where the rule of law is valued and upheld the most, certain acts which have been committed by the government and the investigating agencies make us lower our heads in shame.

• In the year 2006, a man called Abdul Wahid Sheikh was arrested by the Mumbai ATS for his alleged involvement in the 2006 Mumbai Train Blasts. What transpired after the said arrest is a horror story for most of us. He was constantly tortured, abused, harassed, and denied medical care while the investigation was going on and no formal charges were pressed. Internationally banned techniques such as waterboarding were used in order to force confessions out of him. In the year 2015, he was finally acquitted after spending 9 years in jail on false charges. This shows the heights to which the UAPA can be manipulated.
• In the year 2011, the ATS arrested members of the artistic group Kabir Kala Manch (KKM) for their alleged involvement with the Maoists. Several of their members have since been arrested, solely for the reason of writing songs on social issues. The Bombay High Court has refused to grant bail to any of the accused, solely because a person charged under the UAPA has to prove his innocence, and the onus of proof is upon him rather than the state.
• On 9^th May 2014, a Professor of the University of Delhi, Dr. G.N. Saibaba was arrested under the UAPA. What’s shocking is the fact that the arrest wasn’t made through proper legal channels, rather, he was abducted while he was on his way home. His family wasn’t informed of the arrest either. He has since been kept in solitary confinement, and for a man who is 90% disabled, this is way too excessive. The only reason for his arrest is his alleged link with the maoists.
• After the 2020 Delhi Riots, the Delhi Police seized the mobile phone of the AISA President Kawalpreet Kaur for investigation. In the seizure memo she provided, a bunch of sections were charged, along with a few under the UAPA. Basically, the Delhi Police used the UAPA to now violate the privacy of individuals, seize their phones and basically do whatever they want under the pretext of an investigation.
• In early 2020, a Kashmiri photojournalist who goes by the name Masrat Zahra, was arrested after she posted some photos online which the police referred to as, “disturbing to communal harmony”. While she was charged under Section 505 of the IPC, another bunch of sections were also added under the UAPA. A number of organizations have challenged this arrest, including press clubs, who say that this arrest is a blatant move of the police against the freedom of press.
• In August of 2019, internet services and social media were brought to a complete halt in the Kashmir Valley, after the Central Government abrogated Article 370 of the Constitution of India, which provided special status to the state of Jammu and Kashmir. Post that, as of this day, only 2G services have been restored in Kashmir, and social media still remains banned. When some people in Kashmir actually tried accessing social media through a virtual private network (VPN), the police arrested them under the UAPA, and the already repealed Section 66A of the IT Act.

Given the monumental instances of blatant abuse of powers, arbitrary arrests, and disregard for human rights, it is only natural for one to be afraid of the UAPA, for it is not a law that should exist in a democratic society, but a weapon of oppression in the hands of an arbitrary government.

References 

1. Maj Gen Sheru Thapliyal, 1962 War: A Critical Analysis, Mar. 30, 2018, http://www.indiandefencereview.com/spotlights/1962-war-a-critical-analysis/ (Last Visited: 01^st August, 2020)
2. Namrata Goswami, Indian National Security and Counter-Insurgency: The Use of Force Vs Non-violent Response, ROUTLEDGE,43. ISBN 978-1-134-51431-1
3. Robert L. Hardgrave, Jr., The DMK and the Politics of Tamil Nationalism, Pacific Affairs, Vol. 37, No. 4 (Winter, 1964-1965), 396-411
4. Vishwa Mohan & Anam Ajmal, “Cops use UAPA to block site, call it ‘goof-up’ later”, The Times of India, Jul 24, 2020
5. http://timesofindia.indiatimes.com/articleshow/77137573.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
6. Union of India v. Students Islamic Movement of India, 2002 SCC OnLine Del 340
7. 21 K.P.S. Gill, Endgame in Pubjab: 1988-1993, (Ajai Sahni) https://www.satp.org/satporgtp/publication/faultlines/volume1/Fault1-kpstext.htm
8. ZAIDI, S. HUSSAIN , BLACK FRIDAY – THE TRUE STORY OF THE BOMBAY BOMB BLASTS.  (Penguin Books. ISBN 978-0-14-302821-5)
9. Editorial, “It’s not POTA, yet,” Outlook, Mar 21, 2002
10. https://www.outlookindia.com/website/story/its-not-pota-yet/214958 (Last Visited 01st August, 2020)
11. Nitya Ramakrishnan, Excerpt | Tortured, Humiliated, But Unbroken: An Interview With S.A.R. Geelani, https://thewire.in/rights/sar-geelani-custodial-torture-nitya-ramakrishnan (Last Visited: 01st August, 2020)
12. International Covenant on Civil and Political Rights, 1976. Art. 14, cl. 2. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (Last Visited: 01st August, 2020)
13. “J&K Police Using Repressive Counter Terrorism Law To Muzzle Access To Social Media”, Amnesty International India, Feb 18, 2020.
14. https://amnesty.org.in/news-update/jk-police-using-repressive-counter-terrorism-law-to-muzzle-access-to-social-media/ (Last Visited: 01^st August, 2020)
15. Deepali Bhandari & Deeksha Pokhriyal, The Continuing Threat of India’s Unlawful Activities Prevention Act to Free Speech, JURIST, Jun 2, 2020.
16. Editorial, “Panic in Kashmir as case filed against social media users”, Al-Jazeera, Feb 18,2020. https://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-media-users-200218114417864.html
17. Arup Bhuyan v. State of Assam, (2015) 12 SCC 702.
18. Ujjaini Chatterji, “UN Special Rapporteurs express concerns over UAPA,” THE LEAFLET, May 18, 2020.https://theleaflet.in/un-special-rapporteurs-express-concerns-over-uapa/
19. Aakar Patel, “UAPA (Amendment) Bill 2019 violates the very international laws it quotes, defies principles of natural justice,” FIRSTPOST, Aug 03, 2019. https://www.firstpost.com/india/uapa-amendment-bill-2019-violates-the-very-international-laws-it-quotes-defies-principles-of-natural-justice-7104391.html
20. https://www.reuters.com/article/us-usa-intelligence/opposing-trump-conservative-bloc-demands-reforms-to-internet-spy-law-idUSKBN1962SR (Last Visited: 01st August, 2020)
21. https://thewire.in/law/abdul-wahid-shaikh-acquitted-interview
22. When Poetry is held Unlawful: A Case of Kabir Kala Manch, INDIA RESISTS, Apr. 23, 2015 April 23, 2015   https://indiaresists.com/when-poetry-is-held-unlawful-a-case-of-kabir-kala-manch/
23. Devika Kohli, “Why Is The Government So Threatened By A Man Who Is 90% Disabled?”, YKA, May 19, 2015. https://www.youthkiawaaz.com/2015/05/gn-saibaba-arrest/
24. AISA’s Delhi head booked under UAPA by Crime Branch, mobile seized, INDIAN EXPRESS, Apr. 29, 2020. ,https://www.newindianexpress.com/cities/delhi/2020/apr/29/aisas-delhi-head-booked-under-uapa-by-crime-branch-mobile-seized-2136830.html
25. First Post Staff, Masrat Zahra booked under UAPA: Kashmiri photojournalist’s work focussed mostly on women, conflict reporting in Valley, FIRSTPOST, Apr. 20, 2020. https://www.firstpost.com/india/masrat-zahra-booked-under-uapa-kashmiri-photojournalists-work-focussed-mostly-on-women-conflict-reporting-in-valley-8278721.html
26. Vishnu gopinath, Why Have People Using VPNs in J&K Been Booked Under UAPA?, THE QUINT, Feb 18, 2020. https://www.thequint.com/podcast/uapa-jammu-and-kashmir-vpn-social-media-illegal-unlawful-terror-geelani-video

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.