06-December-2023-Special-Article

THE CASE OF DELAYED BAIL AND TRIAL

The Unlawful Activities Prevention Act (UAPA) stands as India’s most stringent anti-terror law, equipped with provisions aimed at combating secessionist movements, anti-national activities, and terrorism. While it has been amended multiple times, including in 2019, to address contemporary challenges, recent data from the National Crime Records Bureau reveals concerning delays in filing charge sheets under the UAPA.

Background and Overview of UAPA:

Definition and Evolution: Enacted in 1967 to address secessionist movements and anti-national activities. Amended in 2019 to encompass terrorist financing, cyber-terrorism, individual designation, and property seizure. Empowers the National Investigation Agency (NIA) for nationwide investigation and prosecution.

Provisions and Penalties: Allows detention without charge or trial for up to 180 days. Provides for the death penalty and life imprisonment for terrorist acts. Defines unlawful activity and terrorism, addressing actions threatening India’s sovereignty.

Arguments in Favor:

National Security: Crucial for safeguarding national security against terrorism and threats. Empowers the government to take preventive measures.

Counterterrorism Measures: Comprehensive legislation aiding effective counterterrorism efforts. Facilitates designation of individuals and organizations as terrorists.

Preventive Detention: Essential for preventing potential threats before they materialize. Allows detention of suspects in the absence of sufficient trial evidence.

Global Commitments: Aligns with international efforts to combat terrorism. Incorporates provisions from the United Nations Convention for the Suppression of the Financing of Terrorism.

Effective Prosecution: Facilitates prosecution using modern investigative techniques. Played a role in convicting individuals involved in the 26/11 Mumbai terror attacks.

Deterrence: Serves as a deterrent against individuals supporting unlawful activities. Imposes severe penalties to discourage participation in such activities.

Arguments Against:

Violative to Fundamental Rights: Violates freedom of expression, assembly, and association. Criminalizes dissent, protests, and minority voices against the government.

Lacks Safeguard Mechanism: Insufficient safeguards against misuse and abuse of power. Provides sole discretion to the central government for terrorist designations.

Against Federal Structure: Encroaches upon state governments’ powers to maintain law and order. Undermines the autonomy of the NIA, impacting the federal structure.

Low Conviction Rate: Indicates ineffectiveness and arbitrariness. Only 2.2% conviction rate from 2016 to 2019 raises questions about its efficacy.

Judiciary’s View:

Supreme Court Rulings:

Mere membership in a banned organization not incriminating (Arup Bhuyan vs State Of Assam, 2011).

Fundamental rights protection emphasized in combating terrorism (People’s Union for Civil Liberties v. Union of India, 2004).

Constitutional courts can grant bail if fundamental rights are violated (Union of India v. K A Najeeb, 2021).

Reform Measures:

Amend the Law: Narrow down vague definitions to exclude constitutionally protected activities. Ensure clarity to prevent the criminalization of dissent and peaceful protests.

Shift the Burden of Proof: Place the burden of proof on the prosecution, not the accused. Uphold the principle of ‘innocent until proven guilty’ for fair trials.

Establish a Review Mechanism: Create an independent review mechanism to monitor government decisions. Provide transparency and accountability to prevent misuse.

Use the Law as the Last Resort: Employ UAPA as a last resort, not as the primary response. Avoid suppressing legitimate dissent, criticism, or opposition.

Conclusion:

While the UAPA plays a crucial role in India’s counterterrorism efforts, concerns about potential rights violations and its low conviction rate necessitate careful consideration. Striking a balance between national security and individual liberties requires thoughtful amendments, transparent review mechanisms, and a commitment to due process. A judicious approach to the UAPA will contribute to a more effective and equitable counterterrorism strategy in India.

Mains Question:

1. Discuss the significance of the Unlawful Activities Prevention Act (UAPA) in India’s counterterrorism efforts. Examine the arguments in favor and against the UAPA, considering its impact on fundamental rights and the federal structure. Propose reform measures to address concerns and ensure a balanced approach between national security and individual liberties. (150 Words)