UAPA
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This article is written by Naman Sherstra, from Department of Law, University of Calcutta. This article discusses how far has been the UAPA Act been successful in combating terrorism.

Introduction

The sovereignty and integrity of a state have always been important as the unlawful activities trigger threat in the State. Amidst the backdrop of the 1962 China wars and 1965 Pakistan war, the insurgency in India increased suddenly with illegal activities having a tendency to harm the soul of the nation. At that time the regional groups like Dravida Munnetra Kazhagam, a political group of Tamil Nadu, had started a frequent secession demand to get a new state for itself. The Government of India, looking into the threat of unlawful activities against the Indian territory to achieve such succession aims, brought the Unlawful Activities (Prevention) Act 1967. This act put reasonable restrictions on the right to association of the citizen as under Article 19 of the Constitution of India. The Government has the power to declare any kind of act or organisation as unlawful what it deems suitable on its prudence. The recent arrest of a student of Jamia Millia Islamia Safoora Zargar under UAPA shows the exorbitant power of the executive provided under the Act. With the passage of time, India witnessed several threats including terrorist attacks and growing internal unlawful voices and the government amended the Act four times whenever it sought such need.

Unlawful activities (prevention) act 1967

The Unlawful Activities (Prevention) Act is an act passed by the Parliament to counter the unlawful activities of the individuals and the organisations which become a threat to the integrity and security of India. With the passage of time as the terrorist activities grew up, the Act saw gradual evolution by the way of amendment. The UAPA is also sought as a step towards constricting the Rights to freedom of speech, assembly and expression as under Article 19 of the Constitution of India. 

Features

The features of the Act are given as:

  1. This act empowers the Central Government to designate any individual terrorist if he/she is found to be indulged in any kind of terror activities which is likely to cause a threat to the sovereignty or integrity of India as provided in Section 15 of the Act.
  2. The Companies and the organisations who are found to be indulged in any kind of unlawful activities or terror activities shall be held as guilty of the offence as provided in Section 22A of the Act.
  3. The act empowers any inspector rank officer of the National Investigation Agency to investigate any kind of unlawful activities as provided under Chapter IV and VI of the Act after taking permission from the designated authority of the State where such incidence has happened.
  4. The Investigating Officer has also been empowered to conduct raids and in case the seizure is made, he shall have to notify the Designated Officer of the State within 48 hours of conducting such raids.
  5. In case of any kind of suspense of the property or cash being used for any kind of terrorist activity or a terrorist organisation, the investigating agency shall have the power to cease such kind of cash or property and produce it before the Designated Officer within 48 hours.
  6. If the person designated as a terrorist has fear of law being misused against him,  he/she has the power to appeal to the Home Ministry where such kind of appeal shall be disposed within 45 days.
  7. The individual shall also have the option of moving towards the review committee headed by the retired/sitting judges and secretaries of the Central Government.
  8. In case the Individual feels injustice done to him, he/she may proceed to the High Court or Supreme Court.
  9. The Act defines the terrorist act within the scope of such act within the scope of any kind of treaties listed in the Schedule of the Act.
  10. The Schedule comprises of nine treaties including Convention for Suppression of Terrorists Bombing (1997), Convention Against Taking of the Hostages (1979) and International Convention for Suppression of Act of Nuclear Terrorism (2005).
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A check on fundamental rights

The Unlawful Activities Prevention Act enables the Central Government to put reasonable restrictions on the freedom of speech, expression, and the assembly. Article 19(2) of the Constitution of India enables the Government to impose reasonable restrictions on the freedom of speech and assembly of the citizens if it seeks such to do in the interests of the security and integrity of India and for upholding the sovereignty. The Constitutional (Sixteenth Amendment) Act 1963 was brought to amend the Article 19 of the Constitution by inserting clause (2) which empowered the state to make any kind of law which can impose reasonable restrictions on the rights of the citizen conferred under clause (1) of the said Article for the integrity and security of India.

The intention of bringing the constitutional amendment by the Parliament was to constrict such elements who on the name of exercising the right to speech, expression and association can become a threat to the sovereignty and integrity of the nation.

Challenges made in courts

The UAPA has been controversial as it provides direct powers to the executive to stifle the fundamental right of speech on even mere suspicion of being indulged in suspicious activities. Due to such nature of the act, it has been challenged several times in the Supreme Court of India. A petitioner Sajan Awasthi challenged the constitutionality of Section 35 and Section 36 of the Act on the ground that it provides exorbitant power to the State to declare anyone terrorist which becomes a life long stigma for a suffered person even if he is not found guilty. The petitioner also asserted that the Act curtails the right to dissent, which is contrary to Article 14, Article 19, and Article 21. A similar petition was filed by the Association for Protection of Civil Rights challenging Section 35 of the Act on the ground that it does not specify the grounds of declaring a person a terrorist which is contrary to Article 14 of the Constitution. The apex court had issued notice to the respective ministries of the Central Government seeking reasonability behind such Sections.

Famous arrests under the Act

The major objective of the UAPA was to counter terrorism and curb unlawful activities which are a threat to the sovereignty of the territory. However, the executive started using this law as a tool to stifle the dissenting voices of the political activists, media persons, and the intellectuals. The major arrests made under the act were as follows:

  1. Arun Ferreira, an Indian Activist was arrested twice, once in 2007, and after that in 2018 for having allegations of links with the Naxalite Movement. During his first arrest, he spent 5 years in prison before acquittal in 2012. Now, he has been put under House arrest.
  2. Binayak Sen, a doctor, human rights activist, and Vice President of PUCL was arrested under the Act in 2007 for supporting the Naxals. 
  3. Sudhir Dhawle, a Dalit rights activist and actor was arrested in 2018 for alleged Maoists link. 
  4. Sudha Bhardwaj, a trade unionist, famous columnist, and civil rights activist was arrested in 2018 for suspicion of being indulged in the moist activists.
  5. Gautam Nawalkha, a Journalist, Civil rights activist, and editorial consultant of Economic and Political Weekly was arrested under the Act for having links with the Bhima Koregaon incident.
  6. Masrat Zahra, a renowned photojournalist, was arrested in 2020 by the Jammu and Kashmir police for her Facebook posts.
  7. Umar Khalid, Safoora Zarger, Meeran Halder and Natasha Agrawal all student activists were arrested recently for protesting against the newly amended Citizenship Laws.

Despite being on the list many more activists, journalists became the prey of the UAPA as they strongly raised their voices against the Government’s arbitrary action.

Major amendments

The Unlawful Activities (Prevention) Act has been amended in 2004, 2008, 2012, and 2019 since it has come into force.

Introduction of Terrorist Act

In 2004, the misuse of the Prevention of Terrorism Act (POTA) was on a high stake where the government was facing public outcry. The UPA Government amidst the public outcry repealed the “POTA ” amending the UAPA.  The newly amended act now included the definition of the “unlawful activities and “terrorist acts” and the “terrorist organisation”. The concept of ‘punishment of terrorist activities’ and the ‘forfeiture of proceeds of terrorism’ was also included in the amendment, however, the inserted concepts were not new but borrowed from the earlier repealed POTA.

Later on, the 2008 and 2012 amendment was brought which included similar provisions as POTA. The provisions of an increased period of police custody, restrictions on the bail, and incarceration of a person without charge sheet were included in the 2008 amendment. The 2012 amendment extended the definition of the ‘terrorist act’ by adding offences which affect the economic security of the nation.

Recent amendments

The increasing threat of terrorism on the security of Indian territory compelled the government to amend the UAPA laws in 2019. The new amendment provided enormous power to the government to declare anyone terrorist under the terrorist act. Now the law could be sparsely used for the dreadful terrorists like Yashin Bhatkal and Azhar Masood. The law is based on the anti-terror laws which most countries like China, Israel, the US, and the EU follow. The investigating officer of the National Investigation Agency has been given the power to investigate and conduct raids in case of suspicion over the property being used for any kind of terrorist activity. The individual has been provided with an opportunity to represent himself/herself before the Home Ministry and after that in case of injustice, he can move an appeal before the committee headed by retired or sitting judges and Cabinet Secretary of Government of India.

Criticism received

The newly amended Act has faced a lot of criticism due to arbitrary power exercised by the government to declare a person terrorist and striking over the fundamental rights of speech, expression, life, and liberty under the Constitution of India. Since the Act was brought to put a curb on the unlawful activities and eliminate the terrorism in order to establish peace and harmony but the government started misusing it to curb raising dissent voice against itself.

Act providing absolute power to the state

It is one of the major reasons behind the criticism of the Act. Under Section 35 sub-section (2), the Act provides power to the Central Government to declare an individual or organisation terrorist or terrorist organisation if it believes that the individual or organisation is indulged in terrorism. It means that the government has the discretion to decide any person or organisation as a terrorist without any FIR, charge sheet and trial. The Act has faced a lot of criticism and public rage as recently the government exercised its exorbitant power in arresting human rights activists and journalists.

Act undermining inherent human rights

The Act is said to have been a threat to the fundamental right of life and personal liberty. The specific Section 35 of the act is contrary to the Principle of Natural Justice as no individual can be held guilty without hearing. The act curbs such rights of an individual by directly declaring someone a “terrorist” without a fair trial. The act is antithetical to the principle of “innocent until proven guilty” in Criminal Jurisprudence. However, even after being proven not guilty, it is very tough for a respected person to sustain in a society with the stigma of “terrorist”.

The amended section also violates the International Covenant on Civil and Political Rights, which recognizes the presumption of innocence as a universal human right.

Conclusion

The Unlawful Activities (Prevention) Act 1967 was brought to curb the increasing threat of terrorism in India. The Mumbai 9/11 attacks, 2011 Delhi bombing, 2013 Hyderabad blasts, and increasing cross-border insurgency in Kashmir had compelled the parliament to bring the amendments in the act. The prime objective of the Act is to counter terrorist activities and combat illegal activities which are a threat to the integrity and security of India. Nonetheless, the executive failed to comply with the objective of the Act, and it started misusing it by arresting the human rights activists and journalists. Every time the arrests of Individuals are justified with the threat to the sovereignty of India. We agree with the fact that India has been facing a threat of terror attacks since a long back and there was a need for terror-laws, but such laws must govern in a reasonable and sound principle so that it must not violate the fundamental rights of an Individual. The government needs to focus on complying with the objective of the Act instead of stifling dissent voices. However, certain provisions of the act are still under judicial scrutiny as they deem to be contrary to the fundamental rights of individuals.

References


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