CRITICAL ANALYSIS – Unlawful Activities (Prevention) Act

INTRODUCTION TO UAPA

Unlawful Activities (Prevention) Act is an Indian law aimed at prevention of unlawful activities associations in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.

The National Integration Council appointed a Committee on National Integration and Regionalization to look into, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism. Pursuant to the acceptance of recommendations of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. The BJP led NDA government claimed that in order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament. However, the provisions of the UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights.

The UAPA – an enhancement on the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004 — was originally passed in 1967 under the then Congress government led by former Prime Minister Indira Gandhi. Eventually, amendments were brought in under the successive United Progressive Alliance (UPA) governments in 2004, 2008 and 2013. At present, the National Investigation Agency (NIA) is functioning as the Central Counter-Terrorism Law Enforcement Agency in India established under NIA Act 2008.

[1]Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the:

  1. Freedom of Speech and Expression;
  2. Right to Assemble peaceably and without arms; and
  3. Right to Form Associations or Unions.

The object of this bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India. The bill was passed by both the Houses of Parliament and received the assent of the President on 30 December 1967. The Amending Acts are as follows:

  1. The Unlawful Activities (Prevention) Amendment Act, 1969
  2. The Criminal Law (Amendment) Act, 1972
  3. The Delegated Legislation Provisions (Amendment) Act, 1986
  4. The Unlawful Activities (Prevention) Amendment Act, 2004
  5. The Unlawful Activities (Prevention) Amendment Act, 2008
  6. The Unlawful Activities (Prevention) Amendment Act, 2012
  7. The Unlawful Activities (Prevention) Amendment Act, 2019

This last Amendment was enacted after POTA was withdrawn by the Parliament. However, in the Amendment Act in 2004, most of provisions of POTA were re-incorporated. In 2008, after Mumbai attacks, it was further strengthened. The most recent amendment has been done in 2019. According to the statement of objects and reasons, the Bill amends the Unlawful Activities (Prevention) Act, 1967 to make it more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force (an intergovernmental organization to combat money laundering and terrorism financing).[8] In July 2019, the ambit of UAPA was expanded. It was amended allowing the government to designate an individual as a terrorist without trial. The previous versions of the Bill allowed for only groups to be designated as terrorists.

In a ruling passed on 1 February 2021, the Supreme Court of India ruled that bail could be granted to accused if the right to speedy trial was violated.

UNLAWFUL ASSOCIATIONS

An unlawful association is defined as one that “encourages or aids persons to commit acts of violence or intimidation, or of which the members habitually commit such acts.” The president has the power to declare an association unlawful.

UNLAWFUL ACTIVITIES

means to directly engage in conduct or to solicit, request, command, encourage, or intentionally aid another person to engage in conduct which would constitute any offense described by the following crimes or categories of crimes, or to attempt or conspire to engage in an act which would constitute any of those offenses, regardless of whether the act is in fact charged or indicted by any authority or is classified as a misdemeanor or a felony

AMENDMENTS MADE THEREUNDER

The 2004 amendment

[2]In 2004, amidst public outcry against the misuse of the Prevention of Terrorism Act (POTA), the government repealed it, but majorly amended the UAPA at the same time. The repeal of POTA was an election promise of the then newly elected Congress government. The amended UAPA made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’. In fact, chapters IV, V and VI dealing with ‘punishment for terrorist activities’, ‘forfeiture of proceeds of terrorism’ and ‘terrorist organizations’ respectively, were heavily borrowed from the repealed POTA. The schedule to the POTA of ‘terrorist organizations’ was also incorporated into the UAPA verbatim. A sunset clause that was earlier part of so-called anti-terror acts like Terrorist and Disruptive Activities (TADA) and POTA was done away with.

Even if one were to buy the ‘desperate times call for desperate measures’ logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. In fact, the justification to the inclusion of a sunset clause in previous extra ordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation.

The 2008 and 2012 amendments

On December 17, 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on November 26, 2008. More provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without a charge sheet and restrictions on bail were incorporated into the UAPA. The 2012 amendments to the UAPA further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.

The Unlawful Activities (Prevention) Amendment Bill, 2019

[3]The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha by the Minister of Home Affairs, Mr. Amit Shah, on July 8, 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967.  The Act provides special procedures to deal with terrorist activities, among other things.
 

Who may commit terrorism:

 Under the Act, the central government may designate an organisation as a terrorist organisation if it:

  1. commits or participates in acts of terrorism,
    1. prepares for terrorism,
    1. promotes terrorism, or
    1. is otherwise involved in terrorism. 
    1. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.  
       

Approval for seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism.  The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property.  
 

Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.  The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
 Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.  The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).  The Bill adds another treaty to the list.  This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005). 

MISUSE OF THE ACT

Ever since the Narender Modi led Bharatiya Janata Party assumed power at the center, the regime the amendment made by the NDA regime attracted heavy criticism by the opposition and media. The amendment brought under the NDA regime was criticized because under the amendment the [4]government has empowered itself to designate any individual as a terrorist if it believes that the individual has committed or participated in acts of terrorism, prepared for terrorism, promoted terrorism, or is otherwise involved in terrorism. Earlier, only organizations could be designated as terror outfits and its membership and/or support of which was an offence under the UAP Act, 1967.

Now, individuals can be listed as terrorists in the Fourth Schedule to the UAPA, even without establishing their affiliations to any such organisation.

The amended anti-terror law allows the director general (DG) of the National Investigation Agency (NIA) to approve the seizure or attachment of property which is believed to represent the proceeds of terrorism. Earlier, any seizure or attachment required the approval of the director general of police (DGP) of the state in which the property is situated.

The amended act says officers with the rank of inspector of the NIA should be able to investigate terrorist activities and terrorist organizations. Earlier, officers with the rank of deputy superintendent of police (DSP) or assistant commissioner of police (ACP) or above were empowered to probe such offences.

Experts and constitutional scholars allege that the government has opened a gateway to misuse the law by supplying above amendments to the new legislation – which was already controversial. The critics call it a “over-broad and vague” statute.

As per the National Crime Records Bureau (NCRB), 67% of UAPA cases result in the acquittal or discharge of the accused.

“The UAPA extends the amount of time people can be sent to custody without being charged, does not allow anticipatory bail and prevents courts from releasing the accused on bail if the case against them is prima facie true. And therefore, it is considered draconian. Allowing the Centre to designate individuals as terrorists will make matters worse as no commensurate safeguards for this arbitrary power have been introduced. Furthermore, the arguments were made that the act violates Article 21 of the Constitution of India, [5]Advocate Abubakr Sabbaq of the Association for Protection of Civil Rights (APCR) argues that the designation of individuals as terrorists without a fair trial is a “violation of Article 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) and Article 14 (equality before law) of the Constitution of India”.

 Now, the NIA will no more be bound to follow Article 22 (a safeguard that says every person who is arrested or detained in custody shall be produced before the nearest magistrate within a period of 24-hours of arrest) of the Constitution and the sections of the CrPC (Code of Criminal Procedure). A person can now be designated as terrorist by a government’s notification. He or she will have to prove himself or herself innocent before the probing agency within a period of one month. If investigators reject the arguments of the defendant, he has to approach the Review Committee, which will comprise of ex-judges and bureaucrats. No time period is specified for the committee to give its opinion on the matter. If the Review Committee rules against the person, he or she will have to knock the doors of the Supreme Court,” he said, adding that the NIA has been given immense power, which in all likelihood will be abused and innocent people will be framed and voices of dissent will be suppressed. Earlier, the government had the power to attach properties but only the judiciary was empowered to declare anyone a terrorist. The NIA had the obligation to inform the local police before conducting any raid, detaining any suspect and calling the person for questioning and there should be diary entry of any such action in the local police station. But the amendment has infringed upon the power of the state police. The NIA can take any suspect on remand for a period of six months. Earlier, it was 30 days (one month). When this reporter pointed out that several countries such as the United States and the United Kingdom, too, designate individuals as terrorists, Sabbaq said, “But the police or investigating agencies of these nations are accountable to people. They generally do not frame innocents. But in our country, such draconian laws have always been abused and therefore, POTA (Prevention of Terrorism Act) and TADA (Terrorist and Disruptive Activities (Prevention) Act) were repealed.”

Moreover, the amended law is in violation of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two are known as the International Bill of Human Rights.

MISUSE OF UAPA

Between 2016 to 2018, 3005 cases were registered under UAPA and 3,974 have been arrested

NameNotesChargeYearCurrent Status
Kobad GhandySedition, UAPA;2009Acquitted in 2016
Arun FerreiraHuman Rights Activist2007; Rearrested 2018Acquitted – 2012;
Binayak SenDoctor and Human rights activist
Gaur ChakrabortyIncarcerated for 7 yearsAccused of involvement in terrorist activity and member of banned organisation2009Acquitted of charges in 2016
Thirumurugan GandhiHuman Rights Activist, founder – May 17 Movement2018
G.N. SaibabaScholar, writer, human rights activist and professorSentence to life for having Maoist link.2017
Sudhir Dhawale,Dalit Rights ActivistAccused in 2018 Bhima Koregaon violence.2018
Mahesh RautTribal Rights ActivistAccused in 2018 Bhima Koregaon violence.2018
Shoma SenRights Activist/ ProfessorAccused in 2018 Bhima Koregaon violence.2018
Surendra GadlingDalit and tribal rights lawyerAccused in 2018 Bhima Koregaon violence.2018
Rona WilsonSecretary – Committee for Release of Political PrisonersAccused in 2018 Bhima Koregaon violence.2018
Sudha BharadwajTrade Unionist/Civil Rights ActivistAccused in 2018 Bhima Koregaon violence.2018
Varavara RaoActivist/PoetAccused in 2018 Bhima Koregaon violence.2018Granted bail on medical grounds
Vernon Gonsalvestrade unionist, activist and academicianAccused in 2007 for Naxalite links and in 2018 Bhima Koregaon violence.2007 & 2018
Gautam NavlakhaHuman Rights Activist/JournalistAccused in 2018 Bhima Koregaon violence.2018
Asif SultanJournalist2018
Akhil GogoiPeasant leader/ RTI ActivistFor CAA-NRC Protests2019Acquitted in 2021
Masrat ZahraJournalist2020
Anand TeltumbdeCivil Rights Activist/Scholar2020
Meeran Haider and Safoora ZargarStudent Activists2020
Sharjeel ImamActivistSeditious speech during anti CAA protests in Delhi2020
Umar KhalidHuman Rights ActivistAccused in Delhi Riots2020
Stan SwamyJesuit priest, tribals rights activistAccused in 2018 Bhima Koregaon violenceOctober 2020Died during incarceration – 2021
Ishrat JahanCongress Councillor, DelhiAnti-CAA protests,February 2020
Siddique KappanJournalistArrested on his way to report on the death of a Dalit teenagerOctober 2020

CONCLUSION

The Unlawful Activities (Prevention) Amendment Bill was first passed by the Congress government and later amended several times by both NDA as well as UPA government. Ever since, the Modi government assumed power reports of unlawful infliction of cases have been registered on those whoever disagree with the regime. The Congress have been accusing Narender Modi led NDA government of suppressing dissent of the opposition. As per recent case, [7]the Delhi High Court observed that the state, in its anxiety to suppress dissent, has blurred the line between the constitutionally guaranteed right to protest and “terrorist activity”. If such blurring gains traction, democracy would be in peril, The bail orders also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.

High Court has made a clear distinction between those accused of offences against the country’s integrity and security on the one hand, and protesters or dissenters roped in unjustifiably under the rubric of ‘terrorism’ on the other. If the Delhi High Court’s approach to grant bail is upheld by SC, it would help secure the liberty of other dissenters held under the UAPA elsewhere without sufficient basis.


CONSLUSION

[1] byjus.com 

[2] thewire.in/rights/uapa-anti-terrorism-laws

[3] prsindia.org

[4] http://www.newsclick.in

[5] http://www.newsclick.in

[6] A Tale of Two Arrests: Anchor Arnab Goswami & Activist Stan Swamy”The Leaflet. Retrieved 25 November 2020.

[7] iasbaba.com

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