The Lok Sabha modified the Unlawful Activities (Prevention) Act (UAPA 1967), or anti-terror law, in 2019. The bill gives central authorities and states the power to deal with terrorist activity firmly.
The Unlawful Activity (Prevention) Act is an Indian statute that aims to prohibit illegal activities associations in India. Its primary goal was to provide authorities for dealing with acts aimed at undermining India’s integrity and sovereignty.
WHAT IS THE UNLAWFUL ACTIVITIES PREVENTION ACT?
The Unlawful Actions (Prevention) Act of 1967 enacted to efficiently suppress unlawful activities by individuals and groups deals with activities promoting terrorism or other comparable components. It is applicable throughout the country.
If accused under the UAPA, any Indian or foreign national is subject to punishment regardless of the offence committed. Individuals get equally responsible under this legislation if they commit the crime mentioned above in a foreign land.
Due to legal issues, Terror-specific legislations such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act, 2002 (POTA) over time got abolished. And the UAPA became India’s principal anti-terror legislation.
Since 2004, the UAPA has been amended several times to make it harsher in accused rights and cover additional terror-related offences.
EXTENT AND APPLICATION OF UAPA 1967?
- It is relevant throughout the entire country.
- Any Indian or foreign citizen accused under UAPA is subject to punishment under this Act, regardless of the location of the offence committed.
- Any Indian or foreign citizen accused under UAPA is subject to punishment under this Act, regardless of the location of the crime/offence committed.
- This Act’s provisions apply to both Indian and foreign nationals.
- Persons on ships and aeroplanes registered in India, wherever they are, are likewise subject to the provisions of this act
The Amending Acts are as follows:
- The Unlawful Activities (Prevention) Amendment Act, 1969
- The Criminal Law (Amendment) Act, 1972
- The Delegated Legislation Provisions (Amendment) Act, 1986
- The Unlawful Activities (Prevention) Amendment Act, 2004
- The Unlawful Activities (Prevention) Amendment Act, 2008
- The Unlawful Activities (Prevention) Amendment Act, 2012
- The Unlawful Activities (Prevention) Amendment Act, 2019
The last Amendment got passed when Parliament voted to remove POTA. However, the majority of POTA’s provisions were re-incorporated in the 2004 Amendment Act. It was enhanced further in 2008, following the Mumbai attacks.
The most recent change was in 2019. The Bill modifies the Unlawful Acts (Prevention) Act, 1967, to make it more effective in combating unlawful activities and satisfying promises made at the Financial Action Task Force, according to the statement of aims and reasons (an intergovernmental organisation to combat money laundering and terrorism financing).
The scope of UAPA got increased in July 2019. It was changed to allow the government to identify someone as a terrorist without a trial. Previously, only groups may get labelled as terrorists under the Bill.
On 1 February 2021, the Supreme Court of India decided that it might bail the accused if the right to a speedy trial got breached.
WHAT WERE THE CONSEQUENCES OF THE AMENDMENTS?
- The regulations regulating the designation of persons as terrorists received strong criticism from the opposition in the Union Parliament and other legal professionals. Consequently, Sajal Awasthi and an NGO, Association for Protection of Civil Rights (APCR), filed a petition.
- The NGO’s appeal called into question the constitutionality of Sections 35 and 36 of the UAPA, which allow the government to designate someone as a terrorist.
According to APCR, “a lifetime stigma is attached to a person who has been designated as a terrorist even after they have been denotified.”
- It further sought to declare the conduct a violation of fundamental rights as embodied in Articles 14, 19, and 21 of the Indian Constitution7, which address the Right to Equality, the Right to Freedom of Speech and Expression, and the Right to Life and Personal Liberty, respectively.
- The other petition, filed by Sajal Awasthi, contested the UAPA changes, claiming that the latest revisions allow individuals to get designated as terrorists. In contrast, the UAPA, 1967, may designate only the organisations as such.
The Unlawful Activities (Prevention) Act, 1967, Chapter VI, and Sections 35 and 36 have been amended by the UAPA 2019.
According to the petition, “the new or revised Section 35 of the UAPA, 1967 authorises the Central Government to categorize any individual as a terrorist and add such a person’s name to Schedule 4 of the Act.”
- Conferring such arbitrary, unrestricted, and unbounded powers on the Central Government is counter to Article 14 of the Indian Constitution.”
It further claimed that the revised Section 35 of the UAPA “directly and adversely affects the basic right to free expression and expression,” as guaranteed in Article 19 (1)(a) of the Indian Constitution.
- This petition also claimed that UAPA 2019 infringed the right to reputation, a right to life component, by labelling an individual as a terrorist before the trial.
WHY ARE ARRESTS UNDER UAPA SO PROBLEMATIC?
Vague Concepts That Can Get Used to Arrest Activists and Lawyers
- The UAPA’s provisions have an extensive scope, allowing them to get used against not just criminals and terrorists but also authors, professors, attorneys for accused terrorists, and human rights advocates.
- As noted earlier in The Hindu by lawyer and legal expert Gautam Bhatia, the description of criminal acts contains phrases that are “staggeringly imprecise and wide.” For example, under Section 2(o) of the UAPA, challenging India’s territorial integrity is an illegal action.
- But why can simple questioning be considered a crime? And what precisely qualifies as questioning? Similarly, causing “disaffection against India” is prohibited conduct. With no definition of disaffection under the UAPA, this clause becomes ripe for abuse. Even if these offences were not arbitrary and vague, as Bhatia points out, penalising them would “come dangerously close to establishing a system of thought crimes.”
- Membership in illegal associations, terrorist gangs, and terrorist organisations is also hazardous. Terrorist organisations are merely those classified as such by the state and get listed in a list in Schedule 1 of the UAPA; if you are proven to be a member of one of them, you might face life in prison.
- However, the UAPA lacks a definition of membership, allowing investigators to book people as members of unlawful associations or terrorist organisations based on the flimsiest of evidence, from possessing books and pamphlets to expressing sympathy for the organization’s members or goals. Articles on revolutionary movements, including copies of the Communist Manifesto, have been presented as “proof” when probing links to Naxal or Maoist groups, for example.
Draconian Procedural Aspects of the UAPA
- DUE TO ITS AMBIGUOUS SUBSTANTIVE AND DRACONIAN PROCEDURAL PROVISIONS, the UAPA became a weapon of choice against dissidents (by previous governments). It allows the state to keep people in custody for extended periods without bail.
- The bail clause is particularly problematic since it effectively permits virtually endless detention even if the accused is acquitted. Even if there is no solid evidence, the prosecution/police/state version just needs to imply a terror-related offence on the surface.
- While high courts, for example, the Delhi High Court, endeavoured to guarantee that the police had some sensible proof to back up their cases of a by all appearances dread related claim for the bar on bail to apply.
The Supreme Court in the Watali judgment of 2019 permitted the specialists to guarantee that the courts couldn’t stringently investigate the material gave to ensure that there is an at first sight fear-related case for the bar on bail to apply. It made it considerably more difficult for persons charged under the UAPA to get bail, even if the evidence against them is exceedingly weak.
Indefinite Imprisonment Without Trial
CASE STUDY Involving UAPA
Bhima Koregaon Case
The Pune Police detained nine activists on January 1, 2018, under the Unlawful Activities (Prevention) Act, 1967 (UAPA), for their suspected role in the violence that followed the Bhima Koregaon festivities. Every year, the festival commemorates the fall of the Peshwa Kingdom, which was notorious for its harsh and casteist governance.
A small battalion of the English Army made up of men from Dalit, tribal, Muslim, Christian, and other backward communities beat a much larger army headed by Peshwa Bajirao II in the hamlet of Koregaon Bhima on January 1, 1818.
On the 200th anniversary of the war, thousands of people congregated at the Bhima Koregaon Vijay Stambh, 30 kilometres from Pune, to pay their tributes. A crowd made up of members of several right-wing organisations assaulted them on their way back.
Two retired judges, P. B. Sawant and B.G. Kolse Patil had arranged an anti-caste gathering called the Elgaar Parishad the day before, on December 31st. The remarks and acts gave at this gathering, police believe, may have sparked the assaults the next day.
Anita Sawale, a victim, filed an FIR with the Pune Rural Police on January 2, identifying Milind Ekbote and Manohar Bhide, also known as Sambhaji Bhide, as the main offenders.
The Maharashtra government claimed in an affidavit filed in the Supreme Court on February 13 that the violence got carried out as part of a pre-planned plot by Ekbote and others.
The narrative, however, took a different course in April. The Pune City Police raided the residences of five activists throughout the country in response to an FIR filed by Tushar Damgude, a devotee of Sambhaji Bhide.
They were detained on June 6 under the draconian UAPA, reportedly for having connections with Maoists, who the police believe planned the Elgaar Parishad rally and triggered the violence.
The police also discovered letters purportedly authored by Maoists in which they discussed an assassination plan against the Prime Minister. Anti-insurgency specialists have regarded these letters as forgeries. They did, however, popularise the phrase “Urban Maoist.”
On September 28 through J. DY Chandrachud, the Supreme Court issued a minority dissenting decision in which it questioned the Maharashtra Police’s ability to conduct an unbiased inquiry.
The Court also questioned the validity of a letter reportedly written by accused Sudha Bharadwaj, which contained terms and phrases that a Marathi speaker could only use.
While agreeing that the Special Investigating Team should establish the case, Justice Chandrachud raised concerns about how the police had selectively leaked material to the media. Recently the case was moved to the NIA on January 24, 2020, which sparked controversy.
Legal Provisions Involved
- The FIR lodged against the nine activists was based on their affiliation with anti-national organisations (like Maoists and other terrorist organizations). They got arrested under UAPA. This legislation gives the government the authority to prohibit unlawful and terrorist groups from operating.
- The UAPA is so arbitrary that the essential requirement for satisfying an infraction, “Mens Rea” (implying the desire to commit the offence, is absent. As a result, even the most innocuous conduct might lead to incarceration.
- They have also got charged under Section 120-B of the Indian Penal Code, which stipulates that anybody who participates in a criminal conspiracy gets punished by execution, life imprisonment, or severe imprisonment for a term of two years or more.
- Since the occurrence in 2018, the Bhima Koregaon violence has been a source of contention. It has been long thought that political parties sought to protect the actual perpetrators of the violence. The nature of the police inquiry has long been a source of contention.
- It gets evidenced by the fact that the two main suspects, Milind Ekbote and Manohar Bhide, have never been apprehended. The entire case got transferred onto nine people suspected of having Maoist ties. The country’s left groups will never acknowledge that its people were behind the bloodshed.
- Furthermore, the recent transfer of the case to the National Investigation Agency has sparked much debate about the role of the Central Government. It gets widely assumed that the BJP administration has been attempting to shape the case to their advantage. The State Government, led by Udhav Thakre, had been staunchly opposed to this.
While we have witnessed several instances of a dishonest attempt to preserve the basic principles of state policy in India, fundamental liberties repeatedly get jeopardised in the name of “national security.”
In recent years, the amendments to the UAPA have criminalised various fundamental rights such as association, life, and liberty, free speech, and expression and muddled the line between healthy political dissent and criminal terrorism.
The act delegitimizes the political thoughts, ideologies, and beliefs that are opposed to the government.
Furthermore, labelling individuals as terrorists is a step toward grave violations of a citizen’s right to protest, considering that there have been recurrent claims of malicious prosecution under the UAPA, as well as police impunity. Overall, the legislation, together with its recent revisions, necessitates some serious rethinking and rephrasing in conformity with core human rights and constitutional principles.
Is UAPA bailable?
Under UAPA, both conventional bail and bail by default, such as CrPC, are permitted, with some exceptions under Section 43 D of UAPA. A competent magistrate can grant regular bail in UAPA under section 437 CrPC and the high court or district and sessions court under section 439 CrPC.
What is the severest punishment in the Unlawful Activities Prevention Act?
The Act delegated absolute power to the central government, and if the Centre believes conduct to be illegal, it may declare it such in an Official Gazette. The death sentence and life imprisonment are the most severe punishments.
How is UAPA perverting the idea of justice?
Because of several circumstances, a UAPA case has a far greater toll on individual liberty than normal prosecutions. The most severe claims may get under Indian criminal law, the UAPA offers the least procedural protection.
What is an unlawful activity under UAPA?
The term “unlawful activity” refers to any action performed by an individual or an association (whether by committing an act or by words, either spoken or written, or by signs) that questions, disclaims, disrupts, or is intended to undermine India’s territorial integrity and sovereignty.