19-June-2024-Special-Article

UNLAWFUL ACTIVITIES (PREVENTION) ACT (UAPA)

The Unlawful Activities (Prevention) Act (UAPA) is a legislation enacted by the Indian government aimed at the effective prevention of unlawful activities and terrorism.

It was originally promulgated as an ordinance on 17th June 1966 and later enacted as an Act in 1967.

The UAPA has undergone several amendments to enhance its provisions to combat terrorism, including the latest in 2019.

Background

Ordinance Introduction: On 17th June 1966, the President of India promulgated the Unlawful Activities (Prevention) Ordinance to prevent unlawful activities by individuals and associations.

Act Enactment: The UAPA was enacted in 1967, replacing the ordinance with more comprehensive legislation.

About the UAPA

• Purpose: To provide for the more effective prevention of unlawful activities of individuals and associations and to deal with terrorist activities.
• Definition of Unlawful Activities: Actions supporting or inciting the cession or secession of any part of India, or actions questioning or disrespecting its sovereignty and territorial integrity.
• Investigative Authority: The National Investigation Agency (NIA) is empowered by the UAPA to investigate and prosecute cases nationwide.
• Property Seizure: The Director-General of the NIA can approve the seizure or attachment of property related to investigations.

Major Amendments

• 2004 Amendment: Expanded the definition of “unlawful activities” to include terrorist acts.
• 2008 Amendment: Enhanced provisions related to terrorist financing and cyber-terrorism.
• 2012 Amendment: Introduced measures to address terrorism more effectively.
• 2019 Amendment: Empowered the government to designate individuals as terrorists and expanded the scope of property seizure.

Major Provisions of UAPA

• Unlawful Activities and Terrorist Acts: The Act initially focused on actions related to secession and cession. The 2004 amendment added terrorist acts to the list of offenses.
• Designation of Terrorists: The 2019 amendment allows the government to designate individuals as terrorists without judicial review.
• Authority to Declare Unlawful Activities: The central government can declare any activity as unlawful by publishing a notice in the Official Gazette.
• Extended Detention: The investigating agency can file a charge sheet within a maximum of 180 days after arrests, extendable further with court intimation.
• Applicability: Both Indian and foreign nationals can be charged, and the Act applies even if the crime is committed outside India.
• Punishments: The Act includes the death penalty and life imprisonment as the highest punishments.

Related Judgments

• Arup Bhuyan vs State of Assam (2011): The Supreme Court ruled that mere membership in a banned organization does not incriminate a person unless they resort to violence or incite violence.
• Supreme Court 2023 Ruling: Membership alone in banned organizations can be considered an offense without overt violence.
• People’s Union for Civil Liberties v. Union of India (2004): The Court held that combating terrorism must respect human rights.
• Mazdoor Kisan Shakti Sangathan v. Union of India (2018): The Court affirmed that peaceful protests against governmental actions are legitimate.
• Hussain and Anr. v/s Union of India (2017): Emphasized that bail should be the norm and imprisonment the exception.
• NIA v. Zahoor Ahmad Shah Watali (2019): Courts should trust the state’s case as presented when making bail decisions under the UAPA.

Concerns Related to UAPA

• Low Conviction Rate: A significant number of UAPA cases remain pending, with only 18% resulting in convictions.
• Subjective Interpretation: The vague definition of unlawful activities allows for subjective interpretations, leading to potential misuse.
• Limited Judicial Review: The 2019 amendment allows the government to designate individuals as terrorists without judicial review.
• Extended Detention: The UAPA allows for detention up to 6 months without charge, compared to 3 months under regular criminal law.
• Violation of Fundamental Rights: The Act infringes on free speech, assembly, and association rights protected by the Constitution.
• Misuse Against Dissidents: The law can be used to suppress dissent and target advocates, journalists, students, and marginalized communities.

Way Forward

Use the Law as the Last Resort

• UAPA should be used only as a last resort to address security threats or social unrest.
• The law should not suppress legitimate dissent or target civil society actors, journalists, or human rights defenders.

Need for Amendment

• Refine the definition of “unlawful activity” and “terrorist act” to exclude constitutionally protected activities like peaceful protests.
• The definitions should be clear and specific to prevent misuse.

Non-Biased Review Mechanism

• Establish an independent and impartial system to review government decisions to ban or label groups or individuals as unlawful or terrorist.
• Ensure the system allows for monitoring and challenging government actions.

Presumption of Innocence

• Amend Section 43D(5) to emphasize the presumption of innocence until proven guilty.
• Ensure the prosecution bears the burden of proof throughout the bail procedure.

Clearer Grounds for Denial of Bail

• Define specific and well-established grounds for denying bail.
• Provide clarity to the courts and the accused regarding the situations in which bail can be denied.

Conclusion

The UAPA, while intended to prevent unlawful activities and terrorism, raises several concerns due to its broad definitions and potential for misuse.

The recent prosecution of novelist Arundhati Roy under this Act highlights the delicate balance between national security and fundamental rights.

It is crucial to refine the UAPA to protect against arbitrary actions and ensure it is used appropriately, preserving the democratic values enshrined in the Constitution.

Mains Question

1. Discuss the Unlawful Activities (Prevention) Act (UAPA) in the context of its role in counterterrorism and the concerns regarding its potential misuse against fundamental rights in India. (150 WORDS)