Unlawful Activities Prevention Act

Background:

• UAPA was first introduced, during the British era, in the form of the Criminal Law Amendment Act of 1908, aimed at curbing dissent against the Crown.
• Post-independence, it remained in place, and in 1967, after wars with Pakistan and China, it was expanded to grant extensive powers for identifying unlawful associations and penalizing those involved in activities supporting India’s secession.
• Amendments in 2004 introduced a chapter on ‘terrorist activities,’ while post the 2008 Bombay attacks, further amendments allowed for prolonged detention based on personal information, restricted anticipatory bail, and permitted the categorization of individuals as ‘terrorists’ in the 2019 amendment. 
• Over the years, UAPA which was originally designed to combat terrorism with a focus on national security, has evolved over the years into a tool criticized for suppressing dissent. It faces criticism for its vague definitions and the extensive discretionary powers it grants to the government in designating individuals as terrorists.

About The Unlawful Activities (Prevention) Act, 1967:

• Act defines “Unlawful activity” as “any action taken by individual or association that leads to cession of a part of the territory of India, questions the sovereignty of India or disrupt the integrity of India etc.
• Terrorist act: Section 15 of UAPA defines terrorist act as any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.
• Powers with the government: Under the Act, Central government can declare a person or an organization as a terrorist/ terrorist organisation, if it/ he:
  • commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism, or is otherwise involved in terrorism.
  • Government can impose all-India bans on associations which are declared ‘unlawful’ under the Act.
  • Both Indian nationals and foreign nationals can be charged under the Act.
  • Act holds offenders accountable in the same manner if crime is committed on foreign land outside India.
  • It provides for the death penalty and life imprisonment as the highest punishments for terrorist acts.
  • It allows for the detention of suspects without charge or trial for up to 180 days, and for the denial of bail to the accused unless the court is satisfied that they are not guilty.

• Investigating powers: Cases can be investigated by both State police and National Investigation Agency (NIA).
• Appeal mechanism: It provides for tribunal to review or to hear an appeal against the ban.

Significance of UAPA in present time for India:

• Uproot terrorism from India: Terrorists and insurgents continue to receive material support and funds, UAPA provides law enforcement agencies with enhanced powers to prevent and investigate terrorist activities. It allows for the designation of individuals and organizations as terrorist entities, enabling authorities to take proactive measures to disrupt their operations and networks.
• Focus on individuals: Not designating individuals as terrorists, would give them an opportunity to circumvent the law and they would simply gather under a different name and keep up their terror activities.
  • This is also important in the context of lone wolf attacks, which do not belong to any organisation.
• Quickens process of justice delivery by empowering officers in the rank of Inspector to investigate cases and investigation has to be completed within 90 days.
• Reduces delay in attaching proceeds: Act allows seizure of property connected with terrorism without taking approval of Director General of Police in case investigation is conducted by an officer of National Investigation Agency (NIA).
• Preventing Radicalization: Act includes provisions for preventing radicalization and promoting deradicalization initiatives by targeting individuals and organizations involved in promoting extremist ideologies.

Challenges Posed by the UAPA Act, 2019:

• Erosion of Fundamental Rights, including Article 14, 19(1)(a), 21: The Act denies individuals labeled as terrorists the opportunity to present their case before arrest, allowing detention for up to 180 days without a formal charge sheet, thus significantly infringing upon their fundamental rights.
• UAPA being used against journalists: In recent times, there is a trend of UAPA being slapped against journalist which is contrary to the fundamental rights enjoyed by press in India (NewsClick case)
• Contrary to the Principle of ‘Innocent Until Proven Guilty’: The Act contradicts universally recognized principles by not upholding the right to be considered innocent until proven guilty, which is a fundamental tenet of justice.
• Excessive Discretionary Authority: There is a lack of objective criteria for classifying individuals as terrorists grants the government almost unchecked authority to designate anyone as a terrorist, posing a significant risk of misuse of power.
• Ambiguous and Unclear Definitions: Vagueness in definitions of terms like “terrorism” and its broad definition of ‘unlawful activity’ create confusion and leave room for differing interpretations, impacting the Act’s effectiveness and fairness.
• Concerns in the Appeals Process: While the Act provides for appeals, the establishment of a government-appointed three-member review committee, including serving bureaucrats, raises concerns about the independence and fairness of the appeals process.
• Rise in number of cases: There has been a drastic rise in UAPA cases in recent years. As per a report of the National Crime Bureau Records, 814 UAPA cases were filed in 2021, while 1,005 cases under the UAPA were filed in 2022.
• Low Conviction Rates: Less than 3% of cases registered under the UAPA Act between 2016 and 2020 (PUCL report) resulted in convictions underscores significant challenges in effectively prosecuting cases under the Act, although this is less immediate but still a notable issue.
• Criticism of government being considered as terrorist act: Over the period, the critics of government and its policies are also being prosecuted under UAPA. (Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr. (2023))

Recent cases and opinion of judiciary on UAPA:

• Arup Bhuyan vs State of Assam (2011):  Supreme Court held that mere membership of a banned organisation will not incriminate a person. It can be done if a person resorts to violence or incites people to violence or does an act intended to create disorder.
• 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.
• Asif Iqbal Tanha v. Union of India: 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. 

Conclusion:

Terrorism is an important security issue in contemporary times, but laws need to be balanced with the fundamental rights and spirit of the constitution. There should be checks and balances in the system and UAPA should not be used in haste against mere criticism of government and issues arising out of socio-economic unrest in the country.