Abstract
This research paper is aimed at highlighting about UAPA Act, 1967. UAPA was originated from a constitutional amendment which was enacted in 1963. UAPA was not all considered as a terror law between 1967 and 2004. It was by the Manmohan Singh Government who introduced UAPA Amendment Act, 2004. By the end of 2019 much more amendments were introduced in order to expand the scope and ambit of this Act. At presently this Act covers terrorism also, this Act restricts Right to Bail too.
The main agenda regarding the enactment of Unlawful Activities (Prevention) Act, was made to introduce powers available against those activities which are directed against the integrity and sovereignty of India. Commission of this unlawful activity can lead to imprisonment for that can extends to seven years also even liable for the fine, this is defined under Section 13 of Unlawful Activities (Prevention) Act, 1967.
Key Points Highlighted in the Abstract
- Origin of UAPA from a constitutional amendment enacted in 1963
- UAPA was not considered a terror law between 1967 and 2004
- UAPA Amendment Act, 2004 introduced by the Manmohan Singh Government
- Post-2019 amendments expanded the scope and ambit of the Act
- Restriction on Right to Bail under the Act
- Penal consequences under Section 13 of UAPA, 1967
Introduction
In [1]1967, Unlawful Activities (Prevention) Act came into force, during the time Indira Gandhi was the ruling Prime Minister. Till [2]2019 Unlawful Activities (Prevention) Act has undergone different amendments. At the time of enactment UAPA or Unlawful Activities (Prevention) Act was not all considered to include terror law.
Background of Terror Laws in India
[3]Terrorist and Disruptive Activities Prevention Act, 1987 (TADA) it was the first terror law in India was enacted. All India bans on associations were formulated by the form of conferring powers to Central Government by Unlawful Activities (Prevention) Act.
Judicial Interpretation and Constitutional Concerns
Even in the recent judgement, Honorable Supreme Court held that, when there occurs the denial of speedy trial bails can be granted to those accused. In Manekha Gandhi v Union of India, it was held that “the procedural law must be just and fair and reasonable” but none of the guidelines matches the Unlawful Activities (Prevention) Act. The definition of terrorist act seems vague in Unlawful Activities (Prevention) Act or UAPA.
Summary of Issues Identified
| Aspect | Observation |
|---|---|
| Nature of UAPA | Initially not considered a terror law |
| Amendments | Multiple amendments till 2019 expanding scope |
| Right to Bail | Significantly restricted under the Act |
| Judicial Safeguards | Bail possible in case of denial of speedy trial |
| Definition of Terrorist Act | Appears vague under UAPA |
Petitions Questioning the UAPA’s Constitutionality
Different petitions were filed by questioning the constitutionality of Unlawful Activities (Prevention) Act.
APCR Petition Challenging Section 35
One of the petitions filed by the Association for Protection of Civil Rights (APCR) claimed that the new Section 35 allowed the Centre to designate a person as a terrorist also his identity was added in the new Section 4 of the said act.
Sajal Awasti v. Union of India
Also, in the case of [4] Sajal Awasti v Union of India, the newly inserted provisions were also challenged.
Pending Petitions and Democratic Concerns
- The similarity exists in both petitions filed are cases are still pending.
- Even the person continued to be tried under the law.
- It is very clear that this law can be used as a tool against the opposition.
- The law attacks the very importance of speech in a democracy in the name of security.
Another issue which resolved around was regarding JMI (Jamia Milia Islamia University).
Introduction of Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA)
Constitutional Amendment Process in India
An amendment of the Indian Constitution can only be made by the introduction of a Bill in either House of Parliament and they are Lok Sabha and Rajya Sabha.
The said Bill must be passed in each House by a majority of the total membership of that particular pass and also not a less than two by third majority of present and voting.
Thus, the existence of an amendment comes into force.
Terrorist and Disruptive Activities (Prevention) Act, 1985
Terrorist and Disruptive Activities (Prevention) Act i.e. (TADA) came into force on 1985.
Section 20(8) specifies about granting of bail under (TADA).
Prevention of Terrorism Act, 2002
Prevention of Terrorism Act (POTA) came into force in 2002.
POTA was enacted after 9/11 attack in USA also the attack in Parliament in India.
Repeal of TADA and POTA and Expansion of UAPA
Terrorist and Disruptive Activities (Prevention) Act or (TADA) and Prevention of Terrorism Act or (POTA) were repealed during 2004, by that UAPA became stronger enough to include all the provisions.
Even the ambit of UAPA or Unlawful Activities (Prevention) Act made to include unlawful activities as well as terrorist acts.
Detailed Discussions and Societal Impact of Amendments
Even after the enactment of UAPA Act of 1967, various amendments came into force. It was on 30 December 1967, the bill was passed in both Houses also by receiving the assent of the President, this 1967 Act came into application. Herein below are the detailed study about the various amendments.
The most noticeable fact that deals regarding the latest amendments is they are in violation Part III that deals with (Fundamental Rights) also the basic structure. In a well-known case Kesavananda Bharti v State of Kerala[5], it was held that basic structure of Indian Constitution cannot be damaged through any amendments made by the Parliament of India.
Object and Intent Behind the Amendments
The main agenda regarding the enactments of amendments was to increase the power within the Central Government. The term “terrorist” was considered as vague term, it was one among the issue which were raised mainly.
- Various petitions were filed regarding the questioning of Section 35 as well as Section 36.
- It was raised that it was in violation of Article 14, Article 19(1)(a), Article 21 of the Indian Constitution.
- Even arbitrary power under Section 35 can take away right to reputation.
Constitutional Challenges and Due Process
Questioning of amendments was made on the grounds of not following “due process”. There were also many noticeable cases which were also registered under UAPA Acts. Even the misuse of UAPA Act by Central Government were revealed too.
Introduction of various amendments were in violation of Fundamental Rights. It was mainly concerned with the misuse than being benefitted. Thus, indiscriminately violating human rights. Even the statistics revealed that humans were locked behind the bars because of various amendment procedures.
Impact on Policing and Centralisation of Power
Earlier amendments gave power to the police to interrogate. But the actual purpose was to enhance the power within the Central Government.
One of the main issues curbed regarding the said Act (UAPA) moved against the federal structure. Other issue was it was against the principle of “Speedy and Fair Trial” envisaged under Article 21 of the Indian Constitution.
- In the absence of trial that person is entitled to consider as “terrorist”.
- Grounds of arrest are not mentioned in any of the provisions of the Act.
Procedural Fairness and Constitutional Mandate
Even the law stress upon that, procedure laid down should be just, fair and reasonable in accordance with the Article 19[6], 14[7] and 21[8] of the Indian Constitution. But the UAPA Act and various provisions are silent regarding it.
Without conducting fair and speedy trial, the person will be designated as “terrorist”. Society would consider him/her as an evil-minded person, losing of their reputation, dismissal from the job, discarding from ceremonies and functions.
Way Forward
Petitions are still pending before the court regarding the violation of Article 14, 19, 21. Judicial review must be given recognition where judiciary must play the role of removing the misuse of human rights.
But the fact exist is that TADA and POTA Acts have been challenged on the grounds of legislative competence whereas UAPA till now have not been challenged.
Significance of Arbitrary Power
Terrorism in UAPA Act was considered as a vague definition. Under this UAPA Act more powers are given to police officers. Power of police officer to arrest the person makes the offence cognizable.
Enactment of Act introduced special courts, also given wide discretion to in camera proceedings (closed-door hearings). Moreover, they are in violation of the principle “Fair Trial”.
- In the absence of reasons, a person should not be locked behind the bars.
- Suspicion and doubt must not be the sole ground for arrest and detention under this Act.
- The amendment passed in the Act is clear violation of “innocent until proven guilty”.
Introduction of this amendment even violates the basic structure. Laws enacted must be always crystal clear, only then it can preserve the human rights.
Misuse Of UAPA Act
Our law of land considers a person, innocent until they are proven guilty. Even the statistic and data have revealed that there is huge spike in the number of cases being reported under UAPA Act. Infringement of Fundamental Rights of the citizens are also resulting from the side of UAPA Act. From both the side of Central government and State government the act is being misused.
Section 15 of UAPA Act specifies about the term “terrorist” by committing any form of criminal force or by the way of blackmail towards government. Such persons who indulge in these forms of commission can only be termed as terrorist under [9]Section 15 of UAPA Act. But the situations have reversed. In many reports it has shown that people who were arrested under UAPA Act, they were not the actual terrorist as specified under the Section 15 of the said act.
During 2020 also there were huge rate of cases which were registered under the act. Also, infringement to Fundamental Rights were one of the issues which is still prevailing. So, it’s time for the government to bring new enactments or appropriate amendment in the said act. So that such misuse of the act can be minimized, even the innocent can be rescued from locking behind the bars.
Key Concerns Related To UAPA Act
- Huge spike in the number of cases reported under the UAPA Act.
- Infringement of Fundamental Rights of citizens.
- Misuse of the Act by both Central Government and State Government.
- Arrest of persons who do not fall within the definition of “terrorist” under Section 15.
- Need for new enactments or appropriate amendments.
Section 15 Of UAPA Act – Overview
| Provision | Description |
|---|---|
| Section 15 | Specifies the term “terrorist” by committing any form of criminal force or by the way of blackmail towards government. |
| Practical Scenario | People arrested under UAPA Act were not the actual terrorist as specified under the Section 15 of the said act. |
What Is Terrorism And Who Is A Terrorist
Parts of Jammu and Kashmir and other north eastern parts are mostly affected by terrorist attack. Dated February 14 2019, there occurred terrorist attack in Pulwama (Jammu and Kashmir).
In simpler terms, terrorism can be defined as – targeting a specific group, community or even a country by the means of violence and threat. There can be terrorist attack by focusing on religious aspects, or even by the means of political aspects.
All over the world we can see as well as hear about the breath- taking incidents regarding terrorism. Millions of people are being killed by the way of terrorism. Governments of the nations must strengthen the borders as well as they must be equipped in every minute.
Nowadays religious attacks are highly recognized thus leading int splitting of communities. Indo- Pak war was one of the most highly debated war that ever had seen. But it’s a fortunate for all the citizens of the nation to have strong, dedicated and selfless soldiers who are ready to work in day and night for the Nation.
Nature And Types Of Terrorism
Constituting violence alone cannot be termed as terrorism. Even though accurate definition cannot be traced for the terrorism. There occurs both state governmental groups as well non state governmental terrorism.
- State Terrorism: In state terrorism the government use force as well as violence that is terrorism attack against their own people directly.
- Non-State Terrorism: Terrorist activities carried out by non governmental groups.
Such forms of clashes resulting in terrorism between the countries are a form of challenging ones. There requires much need in order to reduce these forms of violence against the country people.
Unity And National Security
Thus, strengthening of country borders are the only way to reduce half a portion of terrorism. We must always remember ‘without unity nothing can be saved or achieved’; that is “Unity is Strength”.
Is There Any Urgency Need for the Repeal of UAPA Act
Let’s see this as a reformative stage in bringing up new clauses, new provisions also further amendments, so that misuse regarding the UAPA Act from the side of the Central Government as well as State Government can be reduced to an extent. It is still a debated issue whether the Unlawful Activities (Prevention) Act comes within the ambit as well as framework of the Indian Constitution.
Even in many judgments it has been stated that the basic structure of the Indian Constitution, by the way of Article 368 (that is, the amending power of the Constitution), should not be damaged. So, even the main issue concerning the UAPA Act is its violation of the fundamental rights of the citizen.
By taking all these matters into consideration, there requires an urgency need in bringing a revolutionary change in the said Act, i.e., the UAPA Act. Introduction and formation of amendments transformed UAPA from being a preventive law to a substantive law.
By the way of the 2008 amendments, enactment of resolution came into force, especially United Nations resolutions. Even some of the provisions were borrowed from the Terrorist and Disruptive Activities (Prevention) Act (TADA) as well as from the Prevention of Terrorism Act (POTA).
Analyzing and by the way of conducting surveys, it was concluded that there requires the need of amendment in the UAPA Act. It is a must when considering from the standpoint view as a citizen, without any violation of our basic fundamental rights.
Criticism About the UAPA Act
The Government of India pointed out that the introduction of the Bill gave the power to probe terror attacks on India. By the presentation of the Bill in the Lok Sabha, there arose many objections from the opposition party, pointing out that the Bill did give rise to misuse, especially the provisions enshrined under the said Act, that is, the UAPA Act.
Also, in the absence of declaring an innocent person even as guilty and accused under the provisions of the Act, by not following accurate procedure, was questioned and highlighted.
| Issue Highlighted | Concern Raised |
|---|---|
| Misuse of Provisions | Broad and flexible nature allowing misuse against innocent persons |
| Due Process | Accusations made without following accurate legal procedure |
| Absence of Trial | Individuals charged and detained without timely trial |
One of the former Supreme Court Judges once raised the case of Father Stan Swamy, a well-known incident that happened in Kerala. He was charged with an offence under the UAPA Act in the absence of trial. Later, he died due to COVID-19 in prison itself.
The former judge also pointed out that the UAPA Act did not possess any stability in its true nature, as its provisions are flexible in nature.
Suggestions and Conclusions
In the current scenario, the UAPA Act has become an obstacle for those who practice Freedom of Speech and Expression as enshrined under Article 19(1)(a) of the Constitution of India.
- Speeches given by JNU students or other activists
- Expression of dissent or criticism
- Participation in protest-related activities
All the above often come under the offence category of the UAPA Act.
The Legislature has also realized that the Act has disregarded the basic human rights of citizens. Rejection of bail and the absence of trials are still unresolved questions before all.
Therefore, it rests upon the State, the Judiciary, as well as civil society to bring a balance between constitutional freedom and anti-terror activities.
To conclude, my suggestion is that by the way of strict amendments only, a new revolution can be brought. Otherwise, the Act becomes a means of nuisance, hampering public policy and working against public interest. All matters have to be resolved, and let justice be served to all.
References
- https://www.mha.gov.in/sites/default/files/A1967-37.pdf
- https://www.indiacode.nic.in/handle/123456789/1470
- https://www.thehindu.com/news/national/explained-what-makes-the-uapa-so-stringent/article35257856.ece
- https://egazette.nic.in/WriteReadData/2019/210355.pdf
- https://indiankanoon.org/doc/1214158/
- https://en.wikipedia.org/wiki/Unlawful_Activities_(Prevention)_Act
- https://www.indiatoday.in/india/story/decoded-terror-law-uapa-stan-swamy-death-1824443-2021-07-06
- https://www.icsi.edu/uapa/
- https://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Act
- https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/
- https://www.livelaw.in/book-reviews/unlawful-activities-prevention-act-1967-uapa-national-investigation-agency-act-2008-175399
- https://www.thehindu.com/news/national/magistrates-cannot-extend-probe-under-uapa-at-will-sc/article36404336.ece
End-Notes
- Unlawful Activities (Prevention) Act, 1967
- Unlawful Activities (Prevention) Act, 2019
- Terrorist and Disruptive Activities (Prevention) Act, 1987
- Sajal Awasti v. Union of India, WP (C) 1076/2019
- Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
- Constitution of India, Article 19
- Constitution of India, Article 14
- Constitution of India, Article 21
- Unlawful Activities (Prevention) Act, 1967, Section 15
