- UAPA (Unlawful Activities Prevention Act) was passed in 1967. It aims at the effective prevention of unlawful activities associations in India.
- Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
- The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
- It has the death penalty and life imprisonment as the highest punishments.
- Under UAPA, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed in a foreign land, outside India.
- Under the UAPA, the investigating agency can file a charge sheet in maximum of 180 days after the arrests and the duration can be extended further after intimating the court.
- The 2004 amendment, added the “terrorist act” to the list of offenses to ban organizations for terrorist activities, under which 34 outfits were banned.
- Till 2004, “unlawful” activities referred to actions related to secession and cession of territory.
- In August, Parliament cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists on certain grounds provided in the Act.
- The Act empowers the Director General of National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.
- The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
UAPA Amendment 2019
- It empowers the government to designate individuals as terrorists if the person commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism, or is otherwise involved in terrorism.
- This has been done as it is seen that when a terrorist organization is banned, its members form a new organization to spread terrorism.
- The bill also empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is being investigated by the agency.
- Under the existing Act, the investigating officer is required to obtain the prior approval of the Director General of Police (DGP) to seize properties that bear any connection to terrorism.
- It has been seen that many times a terror accused owns properties in different states. In such cases, seeking approval of DGPs of different states becomes very difficult, and the delay caused by the same may enable the accused to transfer properties.
- It empowers the officers of the NIA — of the rank of Inspector or above, to investigate cases.
- The existing Act provides for the investigation of cases to be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.
- No changes are being made in arrest or bail provisions. Also, the provision that the burden of proof is on the investigating agency and not on the accused has not been changed.
- The International Convention for Suppression of Acts of Nuclear Terrorism (2005) has also been added to the Second Schedule through the Amendment.
Arguments in favor and Arguments against UAPA
Arguments in Favor
National Security:
- Advocates argue that the UAPA is crucial for safeguarding national security. The law empowers the government to take preventive measures against individuals and organizations that are involved in or support terrorism and other activities that threaten the security of the nation.
- For example, Stan Swamy, a Jesuit priest, and activist, was booked under the UAPA for inciting violence during a Dalit meeting in January 2018. The government alleged that he was linked to a banned Maoist group and was part of a conspiracy to overthrow the state.
Counterterrorism Measures:
- UAPA is seen as a comprehensive legislation that provides law enforcement agencies with the necessary tools to combat terrorism effectively. It allows for the designation of individuals and organizations as terrorists, making it easier to investigate, prosecute, and prevent terror-related activities.
- For example, the government designated several individuals and organizations as terrorists under the UAPA, such as Masood Azhar, Hafiz Saeed, Zaki-ur-Rehman Lakhvi, Dawood Ibrahim, Lashkar-e-Taiba, Jaish-e-Mohammad, and others. This enabled the government to freeze their assets, ban their travel, and impose sanctions on them.
Preventive Detention:
- The UAPA allows for preventive detention of individuals suspected of being involved in unlawful activities. Proponents argue that this provision is essential for preventing potential threats before they materialize, especially in cases where there may not be enough evidence for a formal trial.
- For example, Safoora Zargar, a student activist was arrested and detained under the UAPA for allegedly being part of a conspiracy to incite communal riots in Delhi in 2020. The government alleged that she was associated with a banned extremist group and was involved in organizing anti-CAA protests.
Global Commitments:
- Supporters contend that the UAPA is in line with India’s international commitments to combat terrorism. The legislation aligns with global efforts to address transnational terrorism and provides a legal framework for cooperation with other nations in the fight against terrorism.
- For example, the government ratified the United Nations Convention for the Suppression of the Financing of Terrorism in 2019 and amended the UAPA to incorporate its provisions. The amendment enabled the government to criminalize the financing of terrorism and impose obligations on financial institutions to report suspicious transactions.
Effective Prosecution:
- UAPA is perceived as a robust legal tool that facilitates the prosecution of individuals involved in unlawful activities. The law allows for the use of intercepted communications, electronic evidence, and other modern investigative techniques, making it easier to build a case against those engaged in terrorist activities.
- For example, the government used the UAPA to prosecute and convict Ajmal Kasab, the lone surviving terrorist of the 26/11 Mumbai terror attacks. The government relied on CCTV footage, phone records, confessions, and forensic evidence to prove his involvement in the attacks. He was sentenced to death and executed in 2012.
Deterrence:
- The UAPA is seen as a deterrent against individuals and organizations that might be inclined to engage in activities detrimental to the security of the nation. The severe penalties and legal consequences prescribed by the law are intended to discourage individuals from participating in or supporting unlawful activities.
- For example, in the case of the 2001 Parliament attack, which killed 14 people and injured 22. The government used the UAPA to impose severe penalties on those who were found guilty of conspiring and executing the attack. Among them, Afzal Guru was hanged in 2013.
Arguments Against
Violative to Fundamental Rights:
The law violates the fundamental rights of freedom of expression, assembly, and association guaranteed by the Constitution. It criminalizes dissent and protest and can be used to target activists, journalists, students, and minorities who raise their voices against the government.
Lacks Safeguard Mechanism:
- The law lacks adequate safeguards and accountability mechanisms to prevent misuse and abuse of power by the authorities. It gives the central government the sole discretion to designate individuals as terrorists, without any judicial review or opportunity for appeal. It also shifts the burden of proof to the accused, making it difficult to obtain bail or a fair trial.
- Furthermore, the Supreme Court in NIA v. Zahoor Ahmad Shah Watali (2020) ruled that it is not permissible for courts to even engage in a detailed analysis of a prosecution case while considering bail under UAPA and to weigh whether the evidence adduced (cited as evidence) by the prosecution is even sufficient or not.
- Later in the case of Thwaha Fasal vs Union of India (2021) the court made it easier to get bail for accused charged under sections of UAPA.
Against the Federal Structure:
The law is against the federal structure of the country, as it encroaches upon the powers of the state governments to maintain law and order and investigate crimes. It also undermines the autonomy and independence of the NIA, which is supposed to be a central agency for counter-terrorism.
Low Conviction Rate:
The law has a low conviction rate, indicating that it is ineffective and arbitrary in achieving its objectives. According to the Union Home Ministry, only 2.2% of the cases registered under the UAPA between 2016 and 2019 ended in conviction by courts. This shows that the law is used to harass and intimidate innocent people, rather than to curb terrorism.
What reforms could be made to UAPA?
- Amend the Law: Narrow down the definition of “unlawful activity” and “terrorist act” to exclude constitutionally protected activities such as peaceful protests, dissenting opinions, and ideological expressions. The current definitions are vague, broad, and subjective, and can be used to criminalize any act that the government deems undesirable or threatening.
- Dissent is an indispensable feature of the right to free speech under Article 19(1)(a) as rendered in Maqbool Fida Hussain v. Rajkumar Pandey (2008).
- Shift the Burden of Proof: Ensure that the burden of proof lies on the prosecution and not on the accused. The UAPA law reverses the normal principle of criminal law by requiring the accused to prove their innocence rather than the prosecution to prove their guilt. This makes it extremely difficult for the accused to get bail or a fair trial.
- Establish a Review Mechanism: Establish an independent and impartial review mechanism to monitor and challenge the government’s decisions to ban or designate certain associations or individuals as unlawful or terrorist. The current mechanism is inadequate and ineffective, as the government does not have to provide any reasons or evidence for its actions, and the review tribunal is often biased or influenced by the government.
- Use the Law as the Last Resort: Ensure that the UAPA law is used only as a last resort and not as a first response to deal with security threats or social unrest.
- The UAPA law should not be used to suppress legitimate dissent, criticism, or opposition, or to harass, intimidate, or silence civil society actors, journalists, academics, or human rights defenders.
- The government should respect and protect the fundamental rights and freedoms of all citizens, and use dialogue, negotiation, and reconciliation as the preferred means to resolve conflicts and grievances.
