UAPA- EDGE OF GOVERNMENT?
Author: Alok Kumar, II year of B.A., LL.B.(Hons.) from Dr. Ram Manohar Lohiya National Law University
Terrorism continues as a wicked act in the society which has rattled the conscience of all mankind. It has harmed life and shattered economies to its sole aim, by endangering peace and stability, of meeting political and religious goals. To combat this evil the Unlawful Activity Prevention Act,1967 was brought. The Law on Unlawful Activities attempts to deter criminal activity effectively across India and abroad. The main goal was to give central agencies and states the powers to deal with terrorism.
❏ Unlawful Activity in India
Section 2 of the Unlawful Activity Prevention Act(UAPA) refers to “Any action taken by individuals or organisations, either by acting or in writing or in challenging signs, disclaiming, undermining or attempting to distort India's territorial integrity and sovereignty.”
❏ Application of UAPA
1. Any person or foreign national accused under the UAPA shall be liable, regardless of the place of the crime or violation, for punishment under this Act.
2. Even if the crime is committed on foreign land outside of India, UAPA would also refer to offenders.
3. Persons registered in India on boats and aircraft, no matter where they may be, shall also be subject to this act.
AMENDMENT EDGES AND FLAWS
The UAPA was first passed in 1967 and allowed the government to label any entity as unlawful in its original form. It also established what it called 'unlawful activities' and criminalized it. The Act was amended in 2004 to identify terrorism as a crime and to give the government the power to authorize and prohibit terrorist organizations. The 2004 amendments also gave police enhanced search powers and made it very difficult for an arrested person to secure bail by requiring that the court first be persuaded that the arrested person is prima facie innocent of the crime that he is accused of.
The new stringent amendment act, Unlawful Activities (Prevention) Act, 2019 is implemented to curb terrorism and has been amended taking into account the need for the hour, that how much terrorist groups and persons, their ways and methods, mode of propaganda has increased and aggravated considerably. The UAPA, Amendment Bill,2019 was introduced with a view primarily to overcoming the NIA's difficulties in investigating and prosecuting terrorist cases due to certain legal infirmities and also to aligning domestic law with international obligations as provided by several Conventions and Security Council Resolutions on the matter. The Government claimed that it is incredibly hard for the National Investigation Agency to deal with individuals engaged in terror activities under the current legal framework and therefore the provision was implemented through the amendment to identify individuals as terrorists.
The UAPA gives the State unbridled power to ban organisations, prosecute and detain for more than six months without a charge sheet and there is almost always no risk that a court will interfere for bail proceedings. It is now widening and centralizing those powers further with the passage of this amendment.
The new provision in Section 43 of this Act empowers NIA Inspector officials and others to prosecute crimes referred to in the chapters in question. Importantly, The amendments to Section 35 allow the central government in the Schedule to add or delete a person's name as a terrorist.
❏ Added features through amendment
1. The Act empowers the central government to classify a person as a 'terrorist' if they find that they plan, prepare, encourage or otherwise engage in some act of terror.
2. Allowing a person to be heard before being named is not required by law.
3. Under the law, an individual who is designated as a terrorist can exchange personal/financial details with various Western agencies.
4. It gives NIA inspector rank officers the power to investigate the offences referred to in Chapter IV and VI.
5. Without the prior permission of the relevant State government, the legislation seeks to allow the NIA to conduct raids anywhere, a provision that raises questions and has created consternation in many places.
6. In response to concerns about the misuse of the rule, the Ministry of Home clarified that a person classified as a terrorist may appeal to the Minister of Home Affairs who would dispose of the appeal in 45 days.
7. The person in question can be referred to a review committee headed by a sitting / retired judge, which is composed of at least two retired central government secretaries, without the decision of the Home Secretary. And it can also be done in HC or SC after this appeal.
❏ Criticism on the amendment
In addition to the categorization of terrorist organisations, the amendments' concerns are expanded to include the categorization of individuals as terrorists within its scope under Section 35.
There were no objective criteria for categorization and the "unfettered authority" to designate a person terrorist was delegated to the government.
The new amendment undermines the 'innocent unless proven guilty' principle, as well as breaches the International Covenant on Civil and Political Rights,1967, which accepts the principle as a fundamental human right.
Constitutionality of UAPA
Sajal Awasthi filed a Public Interest Litigation ( PIL) against UAPA, 2019 at the Supreme Court, to find it unconstitutional as it violates fundamental rights. He said it implicitly curtailed the right to dissent and was against the Indian Constitution's Articles 14 (right to equality), 19 (right to freedom of speech and expression) and 21 (right to life).
Moreover, it does not give the person called a terrorist the opportunity to explain his case before the arrest. The petitioner also contended;
“Right to Reputation is an intrinsic part of [a] fundamental right to life with dignity under Article 21 of the Constitution of India and terming/tagging an individual as ‘terrorist’ even before the commencement of trial or any application of judicial mind over it, does not adhere to the procedure established by law.”
Another petition submitted by the Association for the Protection of Civil Rights argued that the new Section 35 permits the Center to classify a person as a terrorist and include his name in Schedule 4 of the Act, while previously only organizations could be identified as terrorist organisations. The amendment does not define the grounds on which a person should be branded a terrorist and that "conferring such arbitrary, unfettered and unbound powers on the central government is contrary to Article 14."
Infringement of Basic Human Rights
Arbitrary action is defined as one which is irrational and unjust and which rests solely on the state's unruly will. Consequently, the antithesis of the rule of law is total power unchecked by the rules. Unlike the rule, S. 35 and 36 of the challenged Act have granted the central government absolute legislative powers. S.35 empowers the Government, under the Official Gazette, to announce and inform people of their terror. under the official Gazette. S.36, on the other hand, addresses the declaration of a person as a terrorist, in the hands of a review committee again created by the Central Government that gives it full powers.
This unregulated power does not uphold the principles of natural justice. The doctrine of natural justice includes the right to be heard before an adverse action is taken. The UAPA does not include any provisions which allow the person to be heard if he or she is considered to be a terrorist. The right to reputation is a fundamental right, enshrined in Article 21 of the Constitution. The Amendment Act can tarnish an individual's credibility without even demonstrating his guilt.
In the case of Kartar Singh v. The State of Punjab the Supreme Court set certain Guidelines for controlling the powers imposed on the authorities, while maintaining the constitutionality of specific parts of the TADA, and mandated that the proceedings be fair and equitable. The guidelines determine the importance of having a 'free environment' or 'use of speech,' which gives him an equal opportunity to be heard. Additionally S.43E of the Act puts a reverse obligation on the accused and states that, unless proved otherwise, the courts assume the guilt of the accused, thus breaching the fundamental principle of the criminal law of 'innocent unless proven guilty.'
The Unlawful Activity Prevention Act,1967 was established as an anti-terrorism law to avoid such unlawful activities association and protect the sovereignty and dignity of India. The UAPA has been updated several times to incorporate new extremist strategies, from lowering the level of evidence to making arrests outside of the region. The act establishes several penalties for offences such as threatening data, conspiracy, terrorist camp activity, etc. However, there are some loopholes which can be improved for eg . the conviction of a person without giving the chance of proving his guilt. There are some provisions which have been argued and many PIL has been filed for improving those provisions as they are infringing some of the fundamental rights.
Like other rules, the act has some area to develop and has faced criticism about the same. However, legislation under the Act is required to control the illegal activities effectively and the act should be amended to improve the provision.