This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an overview of the Unlawful Activities (Prevention) Act (UAPA), 1967 which is an Act to provide for the more effective prevention of certain unlawful activities of individuals and associations.
This article has been published by Sneha Mahawar.
Table of Contents
The Unlawful Actions (Prevention) Act, 1967 (hereinafter ‘UAPA’) is designed to make illegal and terrorist activities that threaten India’s integrity and sovereignty, punishable by nature. It gives the Central Government, wide authority to designate organisations as terrorist organizations and to prescribe punishments for those who participate in such related activities. The Act was enacted to ease the process of prevention of certain illegal activities by persons and organisations, as well as matters related to them. The Act was amended by the Parliament in 2019 and the same was notified on August 8, 2019. The most notable alteration brought about by the amendment was that it changed Section 35 of the Act and provided the Central Government with the right to declare someone a ‘terrorist’ under Schedule IV. Individuals were not covered under the head of ‘terrorists’ prior to this amendment since only organisations were identified in that way.
This article provides insight and a detailed analysis of the Act that continues to remain at the top of debates and discussions in democratic India.
The Unlawful Activities (Prevention) Act, 1967, has its origins in colonial times when the Criminal Law (Amendment) Act was passed in 1908. The objective was broad and clear as it aimed to detain freedom fighters using the newly modified Act, which for the first time added the term ‘unlawful association.’ Even after independence, the Nehru government preferred to exploit the Act’s provisions to silence anyone who opposed the government or the land reforms they wanted to implement. Not only the Centre, but also the states enacted their own detention legislation, such as the Preventive Detention Act of 1950, and many Supreme Court judgments, such as AK Gopalan v. State of Madras (1950) and Romesh Thapar vs State of Madras (1950), came flooding in to support the fundamental rights’ sanctity.
Despite the fact that the Act has been in force since 1967, the UAPA Amendment Act of 2004 was the first to add a dedicated Chapter to criminalise terrorist actions (Chapter IV). Following that, revisions to the statute were made in 2008 and 2013. Terrorist actions were principally dealt with under the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and the Prevention of Terrorism Act, 2002 (‘POTA’) prior to the drafting of UAPA. The constitutional legitimacy of both TADA and POTA has been challenged several times throughout the years.
These challenges were primarily based on the fact that the Union lacked the legislative authority to implement these laws. The legitimacy of TADA, for example, was questioned in Kartar Singh v. State of Punjab (1994) on the grounds that it dealt with the subject of ‘public order,’ which was within the legislative jurisdiction of states. Despite this, the Court maintained TADA’s legality. The Supreme Court determined that ‘public order’ included issues of lesser gravity, whereas more serious threats covered by TADA came under the Union’s national defence domain. In PUCL v. Union of India (1996), a similar challenge was made against POTA, which was also rejected by the Apex Court on similar grounds. The UAPA, on the other hand, has never been called into question on the basis of legislative competence.
On several instances, for example, the Court has examined specific portions of the aforementioned statutes. In Sri Indra Das v. State of Assam (2011), the Supreme Court struck down Section 10 of the UAPA and Section 3(5) of the TADA, both of which made simple participation in a banned organization illegal. The Court decided that interpreting these provisions literally would place them in violation of Articles 19 and 21 of the Indian Constitution. This was in keeping with the Court’s prior ruling in Arup Bhuyan’s case (2011), which stated that ‘merely belonging to a banned organization does not render a person a criminal until he resorts to violence, incites others to violence, or causes public disorder by violence or incitement to violence.’
The UAPA regime’s bravado is demonstrated by the state’s own official statistics. Between 2016 and 2019, the National Crime Records Bureau (NCRB) provided that a total of 4,231 FIRs were filed under various provisions of the UAPA, with 112 cases resulting in convictions. While the number of acquittals is minimal (187), the pendency rates reveal the true situation. The pendency rate for police investigations is quite high, averaging 83%, implying that charge-sheets are filed by the police in roughly 17% of all cases brought up for inquiry. The rate of pendency at the trial level is 95.5 percent on average, meaning that less than 5% of trials are finished each year, indicating the causes for long periods of detention without charge.
Scope and applicability of UAPA
- It extends to the whole of India.
- Every individual shall be punished under this Act for any act or omission that is in violation of its provisions and for which he is found guilty in India.
- Any person who commits an offence punishable under this act outside of India shall be dealt with in accordance with the provisions of this Act as if the act had been done in India.
- This Act’s provisions also apply to:
- Citizens of India and those from other countries.
- People who work for the government.
- This Act also applies to those aboard ships and planes registered in India.
Importance of UAPA, 1967
- The Unlawful Acts (Prevention) Act, 1967 aims to prevent illegal activities in India. Its principal goal is to give authorities the power to deal with acts that threaten India’s integrity and sovereignty. The UAPA,1967 was enacted to make it easier to prevent certain illegal activities by persons and organisations, as well as matters related to them.
- UAPA was passed for the first time in 1967. The statute stems from a recommendation made by a committee created by the National Integration Council to look into the subject of ‘national integration and regionalization’ in order to impose ‘appropriate constraints.’ The Constitution (16th Amendment) Act of 1963 was passed in response to the committee’s findings, imposing reasonable restrictions on the exercise of some fundamental rights, including:
- Freedom of Speech and Expression.
- Right to assembly peacefully.
- Right to form associations and unions.
In order to enable the implementation of these restrictions, UAPA was introduced and enacted in the year 1967.
Features of the UAPA, 1967
- According to Section 15 of the Act, the Central Government has the authority to designate any person as a ‘terrorist’ if he or she is discovered to be involved in any type of terror activity that is likely to pose a danger to India’s sovereignty or integrity.
- Companies and organisations found to be involved in any type of illegal or terrorist activity would be held liable under Section 22A of the Act.
- After obtaining approval from the designated authority of the state where such an incident has occurred, the Act enables any inspector rank officer of the National Investigation Agency to investigate any type of unlawful activity as provided under Chapters IV and VI of the Act.
- The Investigating Officer has also been given the authority to conduct raids, and if a seizure is made, he must notify the state’s designated officer within 48 hours after the raid.
- In the event that any property or cash is suspected of being used for terrorist activities or by a terrorist organization, the investigating agency has the authority to seize the cash or property and deliver it to the designated officer within 48 hours.
- If a person identified as a terrorist fears that the law may be used against him, he or she has the right to file an appeal with the Home Ministry, which must respond within 45 days.
- The individual may also appeal to the review committee, which will be composed of retired/current judges and secretaries of the Central Government.
- If an individual believes he or she has been wronged, he or she may file a complaint with the high court or the Supreme Court.
- The Act defines a terrorist act as one that occurs within the scope of any of the treaties specified in the Act’s Schedule.
- The Schedule comprises 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).
When did terror become a part of UAPA
The UAPA was not a terror law between 1967 and 2004. In December 2004, Parliament added a provision to the bill dealing with the punishment of terrorist acts.
- The Manmohan Singh Government introduced the UAPA Amendment Act, 2004 (Chapter IV).
- In the aftermath of the 26/11 Mumbai terror attacks, the UAPA was amended again in 2008 and 2009.
- More revisions to the UAPA were enacted in 2012 and 2019 to broaden its reach.
- Terrorism, money laundering for terror financing, and the classification of groups and people as terrorists are now covered by the UAPA.
How did UAPA become a terror law
- The Terrorist and Disruptive Activities Prevention Act of 1987 (TADA) was India’s first anti-terror legislation. TADA was created with the goal of defining and combating terrorist activity. It was enacted in the aftermath of the assassination of Indira Gandhi and terrorism in Punjab. The Prime Minister at the time was Rajiv Gandhi.
- TADA’s application in the aftermath of the 1993 Bombay explosions and other terror operations drew harsh criticism from human rights organisations and political parties.
- In 1995, TADA was allowed to expire.
- To combat terrorism, the Atal Bihari Vajpayee administration enacted the Prevention of Terrorism Act (POTA) in 2002.
- The Manmohan Singh government repealed POTA in 2004 before amending the UAPA to make it India’s primary terror statute.
The UAPA (Amendment) Act, 2019
- The Unlawful Activities (Prevention) Amendment Act, 2019 was enacted by the Parliament on August 2. It soon gained the President’s approval on August 8th, 2019. The Unlawful Activities (Prevention) Act of 1967 underwent a number of amendments thanks to the Amendment Act, which was passed by Parliament. The main adjustment was made to Section 35 of the 1967 Act.
- The UAPA (Amendment) Act, 2019, included a contentious revision that broadened the definition of “terrorists” under the Act. Under Sections 35 and 36 of Chapter VI of the parent legislation, the Central Government revised it in 2019 to identify persons as ‘terrorists’ if it believes that the individual is involved in terrorism. Once the person is so categorized, their name will be added to Schedule 4 of the Act.
- Sajal Awasthi is the primary petitioner in the two cases that have been brought thus far against the Amendment Act, namely, Sajal Awasthi v. Union of India (2019) and Association for Protection of Civil Rights v. Union of India (2019). Both petitioners had essentially made the same objections to the proposal. Both petitioners’ main contention is the fact that a person can be labelled as a terrorist without any court review and even before a case is started, unjustified. They contended that the Amendment Act violates the Constitution’s rights to life (Article 21), free speech (Article 19), and equality (Article 14).
- According to the Awasthi petition, the provision’s lack of specific criteria upon which one may be labelled a terrorist constitutes a violation of the right to equality. The clause is, therefore, ‘manifestly arbitrary.’ According to the notion of evident arbitrariness, a law is plainly arbitrary and incompatible with the right to equality if it is made without a sufficient guiding basis and is excessive or disproportionate in nature.
Awasthi further asserts that the amendment violates the right of dissent, which is an integral part of freedom of speech. To emphasise the value of free expression and the related freedom to dissent, they cited the rulings in Romesh Thappar v. State of Madras (1950) and Maqbool Fida Hussain v. Rajkumar Pandey (2008).
- The Amendment has been heavily criticised since it grants the Union Government broad and unlimited authority to arrest people without going through the proper channels. The Supreme Court declared in the infamous Justice KS Puttaswamy v. Union of India (2018) case that the right to life and personal liberty (Article 21 of the Indian Constitution) can only be abridged if the due process is followed properly. Article 20 of the Indian Constitution refers to the internationally recognised principle of ‘Presumption of Innocence’ or ‘Innocent till Proven Guilty,’ which does not apply to the designated terrorist under UAPA.
Overview of the chapters of the Unlawful Activities (Prevention) Act (UAPA), 1967
The UAPA, which was first adopted in 1967, was revised in 2004 and 2008 to be modelled after an anti-terror statute. It departs from standard legal procedures, establishing its own ‘extraordinary’ regime in which constitutional safeguards for the accused are reduced to nothing or non-existent. Regular bail is subject to the judge’s satisfaction that no prima facie case exists, and the term of detention is expanded, extending the period of incarceration prior to which default bail cannot be given. Bail is nearly impossible in this situation. Apart from bail, the dilatory trial procedures result in long durations of pre-trial detention for those accused of serious terror offences. In other words, regardless of the outcome of the case, anyone accused under UAPA is automatically sentenced to prison. The UAPA, 1967 is composed of 53 sections spread over seven chapters and three schedules. The different chapters and the subject matters they are concerned with have been listed hereunder:
- Chapter I: Preliminary provisions
- Chapter II: Unlawful associations
- Chapter III: Offences and penalties
- Chapter IV: Punishment for terrorist activities
- Chapter V: Forfeiture of proceeds of terrorism or any property intended to be used for terrorism
- Chapter VI: Terrorist organisations
- Chapter VII: Miscellaneous.
Chapter I: Preliminary provisions
Chapter I, comprising two provisions, provides an introduction to the UAPA, 1967 by laying down its extent, application and list of defined terms that have been time and again used in the entire legislation. The list of essential definitions that the reader needs to be aware of while studying this legislation has been provided hereunder:
- Terrorist Act: Section 2(k) read with Section 15 of the UAPA, 1967, whoever, by means of criminal force, overawes, detains, kidnaps, or abducts any person with the intent to threaten or likely to threaten India’s unity, integrity, security, or sovereignty, or with the intent to strike terror in the people or any section of the people in India or in any foreign country by using bombs, dynamite, or other explosive substances or inflammable substances or weapons, overawes, detains, kidnaps, or abducts any person and threaten to kill or injure such person is said to have committed terrorist acts.
- Unlawful Activity: As per Section 2(o) of the UAPA, 1967, unlawful activity implies any action made by an individual or organisation whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise:
- Is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India, or
- Disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of India; or
- Which causes or is intended to cause disaffection against India.
- Unlawful associations: The term ‘unlawful associations’ under Section 2(p) signifies any associations;
- Which has as its goal any illegal activity, or which encourages or assists people to engage in illegal activity, or whose members engage in illegal activity;
- Which has as its goal any activity punishable under Sections 153A or 153B of the Indian Penal Code, 1860 or which encourages or supports anyone to engage in such activities, or whose members engage in such activities.
In this regard, it is to be noted that the second point will not be applicable in the state of Jammu and Kashmir.
Chapter II: Unlawful associations
Chapter II is spread over Sections 3 to 9 and deals solely with unlawful associations. While we have had an idea about the term ‘unlawful association’ previously under Section 2(p), Chapter II provides a detailed insight into the concept. The provisions and their subject matter have been discussed hereunder:
- Section 3 (Declaration of an association as unlawful): The declaration of an association as unlawful is to be done by the Central Government by means of a notification in the Official Gazette. The declaration is to be subjected to the public interest as the provision expressly mandates that the Central Government should not disclose any fact that it considers to be against the public interest to disclose.
- Sections 4 and 5 (Dealing with the Tribunal): The concept surrounding the Unlawful Activities (Prevention) Tribunal has been spread over Sections 4 and 5 of the Act of 1967. The Central Government may establish, as and when necessary, a tribunal known as the Unlawful Activities (Prevention) Tribunal, consisting of one person chosen by the Central Government, by the announcement in the Official Gazette. For the purpose of conducting an inquiry under this Act, the Tribunal shall have the same powers as a civil court under the Code of Civil Procedure, 1908, when deciding a case. The Consolidated Fund of India will cover all expenses incurred in connection with the Tribunal. Any proceeding before the Tribunal will be treated as a judicial proceeding under Sections 193 and 228 of the Indian Penal Code, 1860, and the Tribunal will be treated as a civil court under Section 195 of the Code.
The period of operation and cancellation of notification are discussed under Section 6 of the Act.
- Section 7 (Central Government’s power to prohibit the use of funds of an unlawful association): One of the secure ways of prohibiting the encouragement of unlawful associations is by means of curbing funds they use for their activities and maintenance. The Central Government has, therefore, under Section 7 of the Act of 1976 been vested with the power to make inquiries if it thinks that any person has custody of any amounts of money, securities, or credits that are being used or are intended to be used for the purpose of the unlawful association. Any order made with respect to this provision is to be carried out expressly in the form of writing.
- Section 8 (Central Government’s power to notify places used for the purpose of an unlawful association): Under Section 8, where an association has been declared unlawful by a notification issued under Section 3, by means of notification, the Central Government can notify places used for the purpose of an unlawful association.
- Section 9 (Procedural prescription): Adoption of civil procedure as provided under the Code of Civil Procedure, 1908 is to be followed for the disposal of applications under this Act.
Chapter III: Offences and penalties
The UAPA Act, 1976 is known for its draconian list of penalties and punishments, along with offences that have been very much in force in recent times due to frequent use of the Act in events that were thought to have ignited contribution towards unlawful activities under the legislation. Section 14 of the Act categorizes every offence under the legislation as cognizable in nature. A cognizable offence under the Code of Criminal Procedure, 1973 implies a case in which a police officer may arrest without a warrant for the same.
The difference between ‘penalties’ and ‘punishments’ need to be cleared for the readers of the fact that the Act prescribes both under Chapter III. Punishments have been dealt with separately under Chapter IV as well. While both the terms seem alike, punishment stems from typical misbehaviour, whereas penalties are consequences of breach of a rule of law.
- Penalty for being a member of an unlawful association, etc. (Section 10):
- Shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.
- If a person continues to be associated with such an unlawful association and results in the death of any person, then he shall be punishable with death or imprisonment for life, and shall also be liable to a fine. In any other case, he shall be punished by imprisonment for a duration of not less than five years but not more than life along with a fine.
- Penalty for dealing with funds of an unlawful association (Section 11): Shall be punishable with imprisonment for a term which may extend to three years, or with a fine, or both.
- Penalty for contravention of an order made in respect of a notified place (Section 12): Shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
- Punishment for unlawful activities (Section 13): Shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to a fine. Assistance in unlawful activities shall result in imprisonment for a term which may extend to five years, or with a fine, or both.
Chapter IV: Punishment for terrorist activities
Section 15 to 23 of Chapter IV of the UAPA, 1976 lays down punishment for terrorist activities which may range from raising funds for terrorist acts, conspiracy, and organising terrorist camps to that recruiting any person or persons for a terrorist act, harbouring, etc.
Section 15 of the Act defines ‘terrorist act’ as any act intended to undermine or likely to threaten India’s unity, integrity, and security, including economic security, or sovereignty, as well as any act intended to incite terror in the general public or a specific group of the general public in India or any foreign country. The list of punishments prescribed for a terrorist act and associated activities has been enlisted hereunder:
- Punishment for the terrorist act (Section 16): Punishable with death or imprisonment for life, and shall also be liable to fine.
- Punishment for raising funds for a terrorist act (Section 17): Punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.
- Punishment for conspiracy, etc (Section 18): Punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for organizing terrorist camps (Section 18A): Punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for recruiting any person or persons for the terrorist act (Section 18B): Punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for harbouring, etc (Section 19): Punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for being a member of a terrorist gang or organisation (Section 20): Punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for holding proceeds of terrorism (Section 21): Punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine
- Punishment for threatening witness (Section 22): Shall be punishable with imprisonment which may extend to three years, and shall also be liable to a fine.
- Punishment for offences by companies, societies or trusts (Section 23): Punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable with a fine.
Chapter V: Forfeiture of proceeds of terrorism or any property intended to be used for terrorism
Spread over Sections 24 to 34, Chapter V of the UAPA, 1967, deals with forfeiture of proceeds of terrorism or any property intended to be usedd for terrorism. The authority to carry out forfeiture of any proceeds is vested on the Central Government as laid down under Section 24A of the 1967 Act. The detailed list of sections and their contents have been briefly stated hereunder:
- Proceeds of terrorism (Section 24): The provision states that ‘proceeds of terrorism’ shall include any property intended to be used for terrorism.
- Powers of investigating officer and designated authority and appeal against an order of designated authority (Section 25): Any kind of representation of proceeds of terrorism if presumed by investigating and officer and designated authority, can be seized provided prior approval in writing of the Director-General of the Police of the state in which such property is situated, is taken.
- Court to order forfeiture of proceeds of terrorism (Section 26): In cases where the property is seized or attached on the grounds that it is the proceeds of terrorism and the court upholds the decision in this respect, it may order forfeiture of such property.
- Issue of show cause notice before forfeiture of proceeds of terrorism (Section 27): The person from whom the property has been seized on grounds of the same being proceeds of terrorism, shall be served with a show cause notice before such action is carried out by designated authorities.
- Appeal (Section 28): Anyone who is not satisfied with a forfeiture order issued under Section 26 has one month from the date they received the order to file an appeal with the high court that has jurisdiction over the court that issued the order they are dissatisfied with.
- Order of forfeiture not to interfere with other punishment (Section 29): The court’s forfeiture order made pursuant to this Chapter shall not preclude the imposition of any other punishment that the person affected thus is subject to.
- Claims by a third party (Section 30): The designated authority before whom the property is delivered must conduct an investigation into any claim or objection that is made in response to the seizure or attachment of any property pursuant to Section 25 on the grounds that the property is not subject to seizure or attachment.
- Powers of Designated Authority (Section 31): The Designated Authority, working in accordance with the terms of this Chapter, shall have all the civil court’s authority necessary to conduct a thorough and impartial investigation into the problem at hand.
- Certain transfers to be null and void (Section 32): When a property mentioned in a Section 25’s order or Section 27’s notice is transferred by any means following the issuance of the order or notice, the transfer is disregarded for the purposes of the proceedings under this Chapter, and if the property is subsequently forfeited, the transfer is deemed to be void.
- Forfeiture of property of certain persons (Section 33): If a person is suspected of committing an offence under Chapter IV or Chapter VI, the court has the discretion to order that any or all of his properties, whether movable or immovable or both, be attached during the course of the case if they haven’t previously been attached under this Chapter.
- Company to transfer shares to government (Section 34): When a company’s shares are forfeited to the Central Government or the state government, depending on the circumstance, in accordance with this Chapter, the company is required to immediately designate the Central Government or the state government, depending on the circumstance, as the transferee of those shares.
Chapter VI: Terrorist organisations
Spread over Sections 35 to 40, Chapter VI of the 1967 Act discusses terrorist organisations. Provisions have been briefly discussed hereunder:
- Denotification of a terrorist organization (Section 36): Everything associated with Section 36 is to be carried out by the Central Government.
- Review committees (Section 37): Committee consisting of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed, is to be formed by the Central Government and is to be recognised and reviewed by committees.
- Offence relating to membership of a terrorist organisation (Section 38): A person commits a crime related to participation in a terrorist organization when they claim to be affiliated with or associate themselves with one with the objective of furthering their actions.
- Offence relating to support given to a terrorist organisation (Section 39): A person is said to have committed the offence relating to support given to a terrorist organisation if he does the following things:
- Has intention of furthering the activities of a terrorist organization, invites support for the same, or
- Who, with the intent to support a terrorist organization’s activities, arranges, manages, or aids in the organization or management of a meeting that is known to support the terrorist organization’s activities.
- A person who speaks at a meeting with the objective of promoting the activities of a terrorist group or soliciting support for the group.
- The offence of raising funds for a terrorist organisation (Section 40): A person is said to have committed the offence of raising funds for a terrorist organisation, who, with the intention of furthering the activity of a terrorist organisation has invited another to provide money, or receive money or other property, or provide money for the purpose of terrorism.
Chapter VII: Miscellaneous
Chapter VII of the UAPA, 1967 deals with a set of provisions that have not been discussed in other chapters of the Act, for the fact that they could not be categorised under a particular head. Spread over Sections 41 to 53, some of the significant provisions have been discussed in brief hereunder:
- Power to delegate (Section 42): Section 42 provides a decentralised system in which the UAPA can be implemented effectively. Hence, comes the power to delegate which is vested on the Central Government to delegate its authority to the state governments as and when it deems fit.
- The procedure of arrest, seizure, etc (Section 43B): The procedure laid down under this provision is just and fair and is accused friendly just like other criminal legislations based in India.
- Any officer who detains a person in accordance with Section 43A must promptly tell him of the reason(s) for the detention.
- Every individual detained and item confiscated in accordance with Section 43A must be sent right away to the officer in charge of the closest police station.
- When a person or item is forwarded to an authority or officer pursuant to subsection (2), they are required to take any expedient action that may be required to comply with the Code’s provisions.
- Protection of witnesses (Section 44): UAPA has highlighted the need for protecting witnesses under Section 44. If a court determines that a witness’s life is in danger as a result of an application made by the witness in a proceeding before it, by the public prosecutor regarding the witness, or on its own initiative, it may take whatever steps are necessary to protect the witness’ identity and address for reasons that must be documented in writing.
- Cognizance of offences (Section 45): Section 45 mandates taking prior sanction by the Central Government by any court taking cognizance of an offence recognised under UAPA, 1967. This indeed shows excessive interference of the executive in the functioning of the legislature and judicial oversight. This very provision also contributes in making UAPA sound draconian by nature.
UAPA, 1967 and freedom of speech : a jigsaw puzzle
Although the term ‘democracy’ is very much prevalent in the nation, it is not permitted to be used moderately. In light of the current state of the nation, abiding by this term could result in fines or rigorous imprisonment. UAPA seeks to curb illegal activity taking place in the nation. Any illegal actions promoted against the Indian sovereign are prohibited by the statute. Although this legislation was designed to protect the security of the state, administration has been noticed to have abused the same, which in turn results in violations of numerous fundamental and legal rights granted by the Indian Constitution.
Books are frequently outlawed, peaceful demonstrations are often suppressed, artistic freedom is often curtailed, and social media expression is also prohibited because doing so could result in an arrest under this legislation. The freedom of the press is another crucial freedom that this legislation restricts, leading to the arrest of prominent journalists for publicly criticising the government’s policies or any other similar topics. The Kashmir dispute is one of the topics where this behaviour is used specifically. Journalists who attempt to cover Kashmir for the public are accused of sedition and other anti-national offences. This is a serious problem that requires immediate attention.
Recent issues UAPA’s implementation is creating on the Freedom of Speech and Expression in India
UAPA has generated debate over Freedom of Speech and Expression since 2019. With the exception of the situations described in Article 19 (2), the Indian Constitution ensures Freedom of Speech and Expression. In a recent modification, the government gained the authority to restrict people’s Freedom of Speech and Expression under the guise of combating terrorism. This is especially true in the state of Jammu and Kashmir and in states with large Maoist populations, such as Madhya Pradesh and Chhattisgarh. It has been observed that the government frequently violates citizen’s right to Free Speech and Expression by placing restrictions on it rather than by defending it.
Use of Section 39 of the UAPA, which punishes someone for aiding terrorist operations anywhere in the country with a fine or a jail sentence of up to 10 years or both, has become a freshly baked problem. With this provision in place, the administration, especially in the state of Chhattisgarh, is branding innocent activists, journalists, and other political organisations as terrorists for merely upholding the fundamental rights of every member of the community. These individuals are unable to report crimes or exercise their right to free expression without being accused of supporting the Naxals and being prosecuted under the aforementioned law.
The Freedom of Speech and Expression as guaranteed by Article 19(1) of the Constitution is directly restricted by the amended Section 35 of the Act. According to the clause, Indian government may add any group to the UN charter’s Chapter 7 that it deems to be a terrorist organisation. This gives the government the authority to restrict people’s Freedom of Speech and Expression.
Freedom of press and its standing in the UAPA – Freedom of Speech and Expression fiasco
The freedom of the press is also being violated by the UAPA legislation, and this is especially true in the state of Jammu and Kashmir where there are many insurgency operations. Under this excuse, the government has the opportunity to accuse any journalist or local news outlet of supporting the terrorists, which results in restrictions on their freedom. Particularly in this state, journalism cannot be practised freely by the press. The government has frequently shut down the internet, detained prominent politicians under the guise of fighting terrorism, and restricted their right to free speech. Independent journalists who cover these topics are likewise forbidden from working in their line of work. Under this Act, numerous journalists are targeted, even if they only tweet. All journalists who practise their profession in the state are subject to the legislation since the terms of the Act are divergent and ambiguous enough to be included the same.
The state of Chhattisgarh, where a sizable Maoist community resides, is witnessing the same problems. There are restrictions on the press’s ability to report freely, and those who do so face consequences. The state’s Chief Justice has also written to the administration about this matter, stressing that no journalist should be prevented from using his right to free speech in order to expose violations of human rights or the current circumstances.
Concern of civil servants on the fiasco surrounding UAPA and the Freedom of Speech and Expression
To reduce governmental interference with personal freedom of speech and expression, a group of former civil officials has appealed to the Supreme Court to “declare an overarching ‘fundamental structure principle’ of the Constitution preserving Freedom of Speech and Expression.” In the statement, which was supported by 108 former bureaucrats, it was stated that the removal of Section 124A from the Indian Penal Code, 1860 (IPC) while maintaining the criminalization of “unlawful activities” under the UAPA would significantly benefit the Union Government and the party currently in power at the central level.
State governments are currently free to bring cases against individuals for crimes under the IPC, including sedition under Section 124A. The Union Government is not compelled to provide approval. States that are not governed by the national political party may occasionally use Section 124A to charge supporters of the national party with sedition (as recently happened in Maharashtra). At the central level, the ruling party is helpless to stop such prosecution.
The UAPA, on the other hand, gives the state governments no authority. It states that no court may recognise a crime involving illegal activities without the prior approval of the Central Government. If Section 124A of the IPC is repealed, only the Union Government will have the authority to bring legal action against persons who spread unfavourable viewpoints about the government. This gives the Union Government a strong motive to repeal Section 124A under the guise of defending human rights while actually enhancing its capacity to draconically restrict freedom.
UAPA 2019 Amendment and hope for a brighter future
The UAPA amendment gives the government the right to violate an individual’s fundamental rights to free expression, dignity, dissent, and reputation. The burden of proof to refute the accusations falls on the person, not the government, and anyone could be labelled a terrorist at the government’s choice. The 2019 revisions to the Act violate Articles 14, 19(1)(a), and 21 of the Constitution, and the legislature has no right to take away a citizen’s fundamental rights because they constitute a fundamental component of the Constitution.
The term ‘terrorist’ was previously primarily used to describe organisations that supported and funded specific acts of terrorism, but recent amendments to Section 35(9) of the Act allow the government to label any individual as a terrorist without having to prove their innocence. To comply with laws, this section requires appropriate attention and modifications.
Due to the journalist’s opinions and criticism of the government, the government has started taking measures against them and accusing them of being terrorists under UAPA. The Freedom of Speech and Expression is violated by this conduct, hence it should be restricted.
Certain aspects of the newly modified UAPA, 2019, are incompatible with the nation’s legal system. In order to combat terrorism, this Act gives the government the authority to enact indirect restrictions on the right to freedom of dissent, however these provisions have unintended consequences that restrict the exchange of ideas within society. As a result of this law, numerous journalists are put on trial and ordered to retract their views on certain contentious topics just because the government believes that doing so would encourage hatred without providing any supporting evidence.
The state of Jammu and Kashmir is where the major effects can be seen. After Article 370 was repealed, the government gained control over the state. Many residents there, particularly journalists, are being tried under UAPA and being prevented from exercising their Right to Free Speech as provided by Article 19(1) of the Constitution.
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Recent judgments on the UAPA, 1967
Three landmark decisions affecting the Unlawful Activities (Prevention) Act of 1967 (UAPA) were handed down in 2021.
- The first is the regular bail granted to three student activists in the Delhi riots case of 2020, namely, Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal, after the Delhi High Court found that the police had tried to build a case on inferences and conjectures and had failed to show that their accusations were prima facie true.
- The second concerns Mohammad Irfan Gaus and Ilyas Mohammad Akbar’s acquittal by a special NIA court in Nanded, Maharashtra, in a nine-year-old UAPA case for lack of evidence. Both of them were suspected of being part of a broader LeT-led terror plot targeting politicians and the media.
- The third case is the Karnataka High Court’s award of default bail to Muzamil Pasha and others, involving 115 Muslim men among 350 who were jailed following rioting and police shooting in 2020. The Court took issue with the fact that the police were given a 90-day extension to file a charge sheet without giving the accused notice or an opportunity to be heard. While these decisions are encouraging, they also serve as a reminder that thousands of people continue to suffer under the UAPA’s arbitrary regime.
K.A. Najeeb v. Union of India (2021)
The Supreme Court concluded in Union of India v. K A Najeeb (2021) that, despite the UAPA’s restrictions on bail, constitutional courts can nevertheless grant bail if the accused’s fundamental rights have been violated. The accused had been detained at Najeeb for more than five years. The Court found that the rigours of UAPA bail limitations “will melt down where there is little chance of a speedy trial and the duration of detention already served has exceeded a substantial portion of the stipulated sentence.”
The Delhi High Court carried this logic a step further in Asif Iqbal Tanha v. State of NCT (2021), saying that courts should not wait until the accused’s right to a speedy trial has been completely revoked before releasing them. Courts should have foresight, especially in situations involving hundreds of prosecution witnesses and a trial that would take years to complete. Courts should adopt the Najeeb principles.
However, the differing outcomes in cases like Asif Tanha and Mohammad Gaus highlight the disparity in access to legal remedies like those provided by Najeeb. Mohammad Gaus indicated that he was unaware that the NIA had filed an appeal and obtained a stay against his bail decision in the Supreme Court after he was freed on ordinary bail in July 2019. Even when accused persons have access to legal counsel, UAPA jurisprudence frequently leads to outrageously unjust conclusions, such as the Supreme Court’s recent home arrest decision in Gautam Navlakha v. NIA (2021). The Supreme Court ruled that home arrest was judicial custody, but it refused to recognise Navlakha’s days in house arrest as custody for the purpose of granting him default bail. In a related case, the Supreme Court’s vacation bench recently ruled that the Delhi riots bail judgments should not be considered precedent until the state’s appeal against the judgments is resolved.
Bikramjit Singh v. The State Of Punjab (2020)
- In the case of Bikramjit Singh v. State of Punjab (2020), decided on 12.10.2020, a three-judge bench comprising Hon’ble Justices KM Joseph, Navin Sinha, and Rohinton F Nariman declared that it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC) are met.
- According to Section 167 (2) of the Criminal Procedure Code, 1973, an accused person’s imprisonment cannot be extended beyond the statutory time limit for the conclusion of the investigation. The statutory period to conduct the investigation and file the charge sheet/final report in cases involving crimes punishable by life imprisonment or death is 90 days. Nonetheless, under UAPA, the maximum sentence is 180 days. The Supreme Court declared default bail to be a basic right while hearing a plea in a UAPA case.
- “We must remember that we are dealing with an accused’s personal liberty under a statute that levies harsh penalties.”The right to default bail, as correctly held by this Court’s judgments, is not merely a statutory right under Section 167(2) of the Code, but is also a part of the procedure established by law under Article 21 of the Indian Constitution, and is thus a fundamental right granted to an accused person to be released on bail once the conditions of Section 167(2) are met,” the Court said.
Thwaha Fasal v. Union of India (2020)
- Thwaha Faisal v. Union of India (2020) was an appeal from a Kerala High Court decision issued on January 4, 2021. The release granted to Thwaha Faisal by the NIA Court was revoked by the High Court, and he was ordered to return to jail. The defendant was charged under the UAPA for purported ties to the banned CPI (Maoist). Possession of particular literature, the creation of “cloth flags,” and participation at certain gatherings were all used as evidence against them. They were not accused of committing any violent crimes or of providing material support to any terrorist organization. The High Court, on the other hand, took the charges as evidence that the accused were “protagonists” of the CPI (Maoist), had strong ties to those who, in turn, had close ties to the CPI (Maoist), and that the literature in their hands included “seeds of fostering secessionist ideology”.
- The Court began its examination by reading Sections 38 and 39 of the UAPA closely. The two-judge panel points out that the condition of “association,” the gravamen of the crime, involves a desire to enhance the terrorist organization’s activities. This is true for Sections 38 (which defines the notion of membership in terms of association) and 39 (which defines the concept of membership in terms of an organisation that provides examples of association, such as the organising of meetings). Thus, a prima facie case under the UAPA would not be made out without evidence showing the accused’s conduct was committed with the goal of furthering the organisation’s objectives.
- The Supreme Court’s interpretation of the UAPA, in this case, is similar to the recent decisions of Delhi and Bombay High Courts. This approach can be summarised as follows: “given the UAPA’s strict restrictions and the near-impossibility of obtaining bail, if individual liberty is not to be completely absorbed by anti-terror law’s imperatives, courts must apply two principles”, namely,
- The UAPA’s definitional terms must be construed strictly and narrowly. This is what the Delhi High Court did in Asif Iqbal Tanha’s case when it came to the definition of “terrorism,” and what the Bombay High Court did in Iqbal Ahmed Kabir Ahmed’s case when it came to Section 20 of the UAPA. The same has been carried out by the Supreme Court in Thwaha Faisal’s case.
- Individualised, factual, and particularistic allegations must be made in the charge sheet. Inferences and supposition cannot bridge the gap between what a person is accused of and what actually happened. This is well demonstrated in the analysis of the Thwaha Faisal ruling.
Shortcomings of the UAPA, 1967
The Unlawful Activities Prevention Act, enacted in 1967, is India’s primary anti-terror statute. The terror statute has recently come under fire, with some judges ruling that the UAPA’s application is arbitrary. In a number of cases, the courts have granted the benefit of the doubt to a number of defendants while highlighting concerns about the UAPA. However, the death of Stan Swamy, a Jesuit priest and campaigner who died in jail after waiting for bail for nine months at the age of 84, has refocused attention on the UAPA. The grounds which make the discussed legislation controversial include:
- The UAPA’s most heinous feature, which makes it even more heinous, is that a person arrested under it can be held for up to 6 months (or 180 days) without even submitting a charge sheet. In contrast, and to emphasise the gravity of the situation, it should be noted that under ordinary criminal law, this term is only restricted to three months (90 days), after which the detained individual is entitled to bail. Bail is difficult to be granted under the terror law. The pre-charge sheet custody period is increased from 90 to 180 days.
- The UAPA limits the right to bail and requires the court to rely on police documents to presume the accused’s guilt.
- The UAPA has a terrible conviction rate. According to data provided to Parliament by the Union home ministry in March this year, 2.2 percent of cases filed under the UAPA between 2016 and 2019 resulted in court convictions.
Room for alternative solutions
There is an urgent need for clarification on whether the Unlawful Activities (Prevention) Act, 1976 complies with India’s Constitution, the international agreements it has made, its adversarial legal system, and whether the Supreme Court correctly determined the legality of the law’s annoying and abusive bail pre-conditions. Although the Act was created with a goal in opposition to what we now see, over time it has turned into a lethal tool for suppressing dissent and has been utilised by governments to justify nefarious intentions under the tired cliche of ‘process set by law.’ The judiciary should not shrug off its prime responsibility of acting as a check on the excesses of the government when it comes to the administration of UAPA, 1976 and leave the common man to suffer the arbitrariness of the executive.
Terrorism is unquestionably a global threat, and terrorist organizations continue to target India even today. As a result, the need for anti-terrorism legislation was recognized, and different laws were implemented. The Unlawful Activities (Prevention) Act, 1967 is one of the foremost laws in India which was originally enacted to impose reasonable restrictions on associations that proved to be involved in such activities which are declared by the legislation. The Act has indeed been the centre of several debates because of its abusive nature and lack of a proper mechanism for backup. The Union has not yet submitted a response to the current legal challenge to the 2019 Amendment Act, so it is only in the preliminary stages. The situation is slated to serve as an excellent proving ground for the scope of the government’s discretion in anti-terror laws. Nevertheless, considering the nature of the challenge and previous critiques of the legislation as draconian, it is fair.
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