This article is written by Vinayak Gupta, from Dr Ram Manohar Lohiya National Law University, Lucknow.

Introduction

Unlawful activity is concerned with a wide array of illegal activities that are done by an individual, enterprise or at times even our own government and state. It is very laborious to define unlawful activities in a layman language owing to its immenseness. In context to the Unlawful Activities (Prevention) Act, 1967, unlawful activity is essentially that activity that excites any individual or group of individuals to bring about cession or secession in the county, which also causes disruption in the sovereignty and the integrity of our country and which cause or intend to cause disaffection against India. In simple words, it is the law which is made to curb terrorism and punish people and organizations which excites the feeling of terrorism and works to disrupt integrity and sovereignty of India.

Terrorism has no religion and it is against humanity. Terrorism has vastly affected India in past and continues to do so. The reasons for terrorism in India may vary vastly from religious to geographical hob nobbings. To curb these activities the government introduced an amendment in the UAPA.

History of Unlawful Activities (Prevention) Act

UAPA received the assent of the president on 30 December, 1967. The main motive for introducing this bill back then was effective prevention of unlawful activities of associations in India because at that time these organizations in India were working toward disrupting the integrity and sovereignty of the country by spreading propaganda of secession of the country. This law was amended for the first time in 2004. The major change that this amendment brought was to the definition of ‘unlawful activity’ which now included definition of ‘terrorist act’ and ‘terrorist organization’ from repealed POTA and this amendment also introduced the concept of ‘terrorist gang’

In 2008 another amendment to UAPA was moved and adopted after the terrorist attack that took place in Mumbai. Provisions similar to POTA and TADA were introduced in this amendment. The third amendment to the law took place in 2012. This amendment was done in keeping the view of the economic security of the nation. It was basically done to fulfill FATF commitments.

Features of Unlawful Activities (Prevention) Amendment Act

A brief summary of new features that are introduced through the amendment is given below:

1. The Act empowers the central government to designate an individual as a ‘terrorist’ if he is found committing, preparing, promoting or otherwise involved in any act of terror.
2. The government is not required to give an individual an opportunity to be heard before being designated.
3. Under the law, personal/financial information of an individual designated as a terrorist can be shared with various Western agencies. 
4. it gives power to officers of the rank of Inspector of NIA to investigate the offences under chapter IV and Chapter VI. 
5. The bill seeks to empower NIA to conduct raids anywhere without the relevant state government’s prior permission, a clause that has raised concerns and caused consternation in various quarters. 
6. To allay fears about misuse of the law, the home ministry has said that an individual designated as a terrorist can appeal to the Home Secretary, who will have to dispose of the appeal within 45 days. 
7. If not satisfied with the Home Secretary’s decision, the individual in question can move to the review committee headed by a sitting/retired judge of a high court and comprising at least two retired secretaries of the central government. And after that appeal could also be done in HC or SC.
8. The provisions of the law are similar to a UN policy used by the Security Council to apply pressure on a state or entity to comply with the objectives set by the UN without resorting to the use of force. 

Need for the new Amendments

There is not one but umpteen number of reasons why there’s the need for the new amendment. With the advent of time and terrorist activities taking new shape it was necessary to introduce an amendment in the UAPA. It is necessary to keep law enforcement agencies a step ahead of terrorists and their activities. The new stringent amendment act, Unlawful Activities (Prevention) Act, 2019 is introduced to fight terrorism and it has been amended keeping in view the need of the hour, how much terrorist organizations and individuals, their ways and method, mode of spreading their propaganda has greatly increased and aggravated. Amendment to the existing act was a necessary step to escalate our fight against the increased and aggravated terrorist activities with efficiency and to put to rest their activities which are against all of humanity.

Terrorism has no religion and is against humanity. The UAPA amendment law is not against any person, human rights, political party, or against any specific religion. It is solely against individuals who are a threat to humanity. 

India is not the first country to declare individuals as terrorist the countries which already has strict laws that declare an individual terrorist are-

1. USA (the country which is considered the champion of human right)
2. Pakistan
3. China
4. Israel
5. European Union and
6. United Nations Security Council (which is considered as the advocate of Human rights)

This act would help in ease of operation of the National Intelligence Authority. To show the efficiency of NIA some facts are put NIA had 278 cases registered under UAPA from 2014 till 2019. Out of 278 cases in 204 cases, charge sheets were filed. Total of 54 cases have got their verdict and out of 54 cases in 48 cases offenders have been convicted. This shows the accuracy rate of NIA. The conviction rate of NIA is highest in the whole of the world.

The cases registered by NIA under UAPA are a very heinous kind of terrorist act, the roots of which generally spread interstate as well as international. The power transferred to NIA through this act makes sure that NIA can work efficiently to get hold of the criminals easily. The power transfer does not mean that the state has been ripped off of the previous powers they had. Powers that the state government had, has just been extended to NIA. 

The need felt for introducing this amendment arose due to the loopholes in the UAPA, under UAPA actions were taken against only organizations which almost every time led to offenders being at large and continuing with their activity under a different banner name. One example is of a known terrorist Yasin Bhatkal who is the founder of Indian Mujahideen. He was let free due to a lack of stringent law which could have declared him as a terrorist. The previous law declared Indian Mujahideen as a terrorist outfit but failed to designate its founder as a terrorist. Yasin Bhatkal could have been prosecuted and have got the sentence if stringent laws regarding terrorism were applied at that point in time.

Concerns regarding the amendment of Unlawful Activities (Prevention) Act

The main point of concern regarding this bill is that it hinders the human right of a person who is being subjected to this law. Specific human rights, per se, right to be tried in the court of law. To clear this false notion regarding the amendment act, the government has provided a provision in the bill that a review committee will review the case of a person who has been designated as terrorist. If a person is not satisfied by the verdict of the review committee he can anytime appeal in the honorable High Court or the Supreme Court. The person would be provided with the umpteen number of opportunities to prove his innocence, thereby not depriving a person of his basic human right which is to prove his innocence. The process follows the 4 step scrutiny process that assures no one’s human rights is compromised.

Another point of concern regarding this bill is that it gives too much power to a government agency and it can be used as a tool to seek political revenge/vendetta. To clear the standing regarding this point it is duly noted that the amendment has clearly written in it that under which situations can a person be designated as terrorist thereby nullifying the chances of its unlawful use. The provisions laid out in the act which tells us when a person can be declared as a terrorist are-

1. When a person does the act of terrorism.
2. When the person aids in the act of terrorism.
3. When the person plans an act of terrorism.
4. When the person is indulged with a listed terrorist organization.
5. When the person spreads the propaganda that can brainwash people into spreading terrorism.

Another issue concerning the human rights of a person is regarding the confiscation of the personal property of a person designated as a terrorist. So as to make the stand clear on it the amendment act does not allow investigation authority to confiscate the property of a person involved in the terrorist activities, it only allows the investigation agencies to attach the property of the person. The final declaration of confiscation of the personal property rests with the court after the proper trial has been conducted.

Criticism of UAPA

One of the major criticisms of this bill is that this Law allows a person to be called a terrorist without FIR, charge sheet or trial. Section 35 Sub Section 2 as amended reads: “The Centre shall exercise its power under Clause (a) of Sub Section 1 in respect of an organization or an individual only if it believes that such an organisation and individual is involved in terrorism”.

What it means is that if the Central Government believes that an individual is involved in terrorism, the individual will be named as terrorist. There will be no FIR, no charge sheet, no trial and no conviction and yet, the individual will be designated as a terrorist. 

Opposition fears that this law could be used as a tool to seek political vendetta according to the whims and fancies of the government in power.

Conclusion

A law has to depend on us for its existence and effective implementation. It is nebulous to assume that the law itself would eradicate crime and terrorism. The law depends upon the will and the intention of the implementers. The new law introduced in the parliament has shown to the world that India is keen to fight terrorism to its core.  

This act gives essence to the fact that an organization is made up of individuals and if we punish individuals we will ultimately be crippling the propaganda that an individual spread through his organization which even goes on after it gets banned because the individual is still at large.

The law passed by the government will only hold good if the government would not harass genuine social activists and if the government does not misuse this law according to its own whims and fancies. Certainly the government needs to ensure that there are effective law enforcement mechanisms to prevent and punish terrorist attacks and it is put only to this use.

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