Introduction
The Unlawful Activities (Prevention) Act (“UAPA”) is an Indian Law that aims to combat terror and proscribe known terrorist organisations. It is one of the ‘Preventive Detention Laws’ that are in force currently in the country. It was introduced in 1967 by the Indira Gandhi government in order to deal with the secessionist utterances of the Dravidian movement.[1] The primary purpose of this law has been to maintain integrity and sovereignty of India. Today, however, this act has extended to cases of terrorism as well. UAPA has always been seen as problematic for it empowers the government to possess unlimited power in matters of attributing criminality to organisations without restraint. Over the time, it has been amended several times for effective implementation and to fulfil the primary motive of the act.[2] The latest amendments were passed in 2019 which have made UAPA even more contentious as the government can now designate individuals also as terrorists.[3] In this article, we aim to explain the Unlawful Activities (Prevention) Act in detail. We will be delving into the recent amendments which have been termed as draconian and unconstitutional and also try to understand why the act needs to be struck down as a part of our concluding remarks.
What is an ‘Unlawful Activity’?
According to section 2(1)(o) of the act, if any action taken by an individual or an association (whether by committing an act or by words, either spoken or written or by signs or visible representations) disclaims, disrupts or intends to disrupt the territorial integrity and sovereignty of India, it is termed as an ‘Unlawful Activity’. Additionally, this act prohibits the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or a group of individuals to bring about such cession or secession.[4] Terrorist Act; which was added under ‘Unlawful Activities’ after the 2004 amendment, is provided under section 15 of the statute. [5] [6]
Powers of the Central Government
Section 3 of the Act empowers the Central Government to designate an organisation as an unlawful organisation.[7] But, it is subject to confirmation by a tribunal which will first hear the organisation and then confirm the declaration of the Central Government. Once an organisation is unlawful, the government can freeze its funds, declare areas of limits, prosecute a person who continues to remain a member, and prosecute people dealing with the funds of the organisation.[8]
The Parliament, as per the powers granted under the 16th Constitutional Amendment Act, 1963 can by law impose reasonable restrictions on the following fundamental rights in the interests of sovereignty and integrity of India.[9]
- Freedom of Speech and Expression [10]
- Right to assemble peacefully and without arms [11]
- Right to form Associations or Unions [12]
Extent and Application of the Act
UAPA, unlike various other preventive detention acts, is applicable throughout India. Any Indian or foreign national charged under this act is liable to get punished irrespective of the location of crime. The Provisions of UAPA apply to the citizens of India as well as the people from abroad. Even if an offence is committed outside India, punishment will remain the same. Persons on ships and aircrafts registered in India also come under the ambit of this act along with the persons in the government service, wherever they may be at the time of offence.
Recent Amendments in UAPA
In August 2019, the Parliament brought out certain amendments in the act, some of which are being seen as unconstitutional. Following is a brief list of the changes that have been carried out:
- Section 35 got altered, which now gives Central government the power to notify an individual as a terrorist under Schedule IV of the Act. This power was earlier limited to the designation of organisations only.[13] [14] It is being argued that this amendment takes away the right to due process of law, right to reputation and right to dissent. Arbitrary powers have been given in the hands of the executive, which can be used to suppress the voices that go against the government.
- Section 36 mentions about the power of review committee in designation of an individual as a terrorist. However, such committee is again constituted by the central government, thereby giving full powers in their hands.[15] [16]
- Section 43 got amended which now provides for empowerment of additional NIA Officers of ranks of Inspector or above for investigations.[17] Earlier, only the officers of the ranks of Deputy Superintendent or Assistant Commissioner of Police or above could probe the cases. This amendment has been done because of dearth in the number of high ranked investigating officials.[18]
- Section 25 of the Act, after the amendment, mentions that if the investigation is being conducted by the National Investigation Agency (NIA), the permission to seize properties connected with terrorism can be taken from Director General of NIA.[19] Earlier, DGP of the concerned state was empowered to give such permission. This was considered important in order to facilitate timely approvals.[20]
- Another amendment added the International Convention of Suppression of Terrorist Bombings to the list of treaties which has been given in the second schedule of the act. Acts that come within the scope of these treaties are considered as ‘terror acts’. This amendment has been done keeping in view the changing nature of terrorist activities.[21]
Concluding Remarks
On many incidents, it has been witnessed that the UAPA was being used brazenly by the government to supress any kind of dissent. On mere suspicion, anyone who goes against the government can be put behind bars. Family members, friends, well-wishers, all of them have to face social ostracization when an individual is notified as a terrorist under the act on the basis of inadequate evidences. Action against terrorism is surely desirable but it should not come up at the cost of fundamental rights of innocent people. Closing the room for dissent by terming every opposing voice as a threat to national security can not be accepted in a democratic country like India. There are shortcomings in this act which make it very problematic.
Additionally, it has always remained under the close scrutiny of Human Rights organisations for all the infringements that take place. The principle of ‘innocent until proven guilty’ which is recognised as a universal human right is not followed when arrests are made under UAPA. Individuals are not given the opportunity to bring forward their side when arrests are made in accordance with the act. For all the aforementioned reasons, it is imperative that adequate measures should be taken in order to resolve the issues that have emerged.
The article is authored by Hardik Batra (NUJS Kolkata, 2024)
Footnotes
[1] https://www.thehindu.com/opinion/op-ed/sacrificing-liberty-for-national-security/article29213720.ece (Website).
[2] https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/ (Website).
[3] https://economictimes.indiatimes.com/news/politics-and-nation/parliament-approves-amendment-to-uapa-bill-nia-gets-power-to-label-individual-as-terrorist/articleshow/70500418.cms (Website).
[4] Section 2(1)(o), The Unlawful Activities Prevention Act, 1967.
[5] https://thewire.in/rights/uapa-anti-terrorism-laws (Website).
[6] Section 15, The Unlawful Activities Prevention Act, 1967.
[7] Section 3, The Unlawful Activities Prevention Act, 1967.
[8] https://www.firstpost.com/india/unlawful-activities-act-indias-anti-terrorism-laws-ambiguous-nature- gives-unreasonable-power-to-authorities-5070151.html (Website).
[9] The Constitution (Sixteenth Amendment) Act, 1963
[10] Article 19(1) (a), Constitution of India.
[11] Article 19(1) (b), Constitution of India.
[12] Article 19(1) (c), Constitution of India.
[13] https://www.scobserver.in/court-case/association-for-protection-of-civil-rights-v-union-of-india (Website).
[14] Section 35, Unlawful Activities (Prevention) Amendment Act.
[15] https://criminallawstudiesnluj.wordpress.com/2020/05/17/uapa-1967-a-draconian-law-to-combat-terrorism/ (Website).
[16] Section 36, Unlawful Activities (Prevention) Amendment Act.
[17] Section 43, Unlawful Activities (Prevention) Amendment Act.
[18] https://economictimes.indiatimes.com/news/defence/president-gives-assent-to-amendments-to-uapa-individuals-can-now-be-declared-as-terrorists/articleshow/70603448.cms (Website).
[19] Section 25, Unlawful Activities (Prevention) Amendment Act.
[20] https://www.tribuneindia.com/news/archive/nation/uapa-amendment-underlines-classical-dilemma-816499 (Website).
[21] Id., 16.