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Unlawful Activities Prevention Act: An Examination Of The Specific Criticisms Of The Act And Their Counter Justifications

The year was 1967, the Parliament enacted the Unlawful Activities Prevention Act. Prior to that, a resolution was passed by the National Integration Council headed by the Prime Minister. National Integration Council resolution urged the Indian Parliament that it should frame a law that should tackle unlawful activities and unlawful organizations and based on this resolution, the Indian Parliament enacted UAPA in the year 1967.

This law has been amended seven times. The seventh amendment was in the year 2019. Prior to 2019, this law has been amended six times- 1969, 1972, 1986, 2004, 2008, 2013. Substantial amendments were made in the years 2008 and 2013.

Unlawful activity implies any activity (regardless of whether by submitting a demonstration or by words, either spoken or composed, or by signs or by apparent portrayal or else), (I) which is proposed, or upholds any case, to achieve, on any ground at all, the cession of a piece of the region of India or the withdrawal of a piece of the region of India from the Union, or which affects any individual or gathering of people to achieve such cession or severance; or which is expected to disturb the power and regional trustworthiness of India; which causes or is planned to cause alienation against India;[i]

The researcher in this research paper examines the Unlawful Activities Prevention Act,1967. The research paper will examine the background of the act, the rationale behind the passing of the Act, the objective it tries to achieve, amendments to the Act, especially the July 2019 amendment which expanded the scope of UAPA allowing the government to designate an individual as a terrorist without trial [ii]

its relation to the Prevention Of Terrorism Act and the researcher aims to find out whether the provisions of the act are highly draconian, whether the provisions of the Act contravenes the requirements of the International Covenant on Civil and Political Rights[iii] whether the Act suppresses dissent and right to freedom of speech and expression, Is the act achieving the objectives for which it was implemented, Is the law being used as a political tool, if so to what degree the law is being misused.

Introduction
The Unlawful Activities Prevention Act has been amended seven times. The seventh amendment in the year 2019, prior to 2019 this law has been amended six times i.e., 1969, 1972, 1986, 2004, 2008, 2013, substantial amendments were made in the years 2008 and 2013. There has been several criticisms as well as parallel justifications to the enactment of the Act mainly in connection with the 2019 amendment. The specific criticisms of the act are examined with counter justifications.

UAPA deals with two kinds of acts: - unlawful acts and terrorist acts. The 1967 UAPA only talked about unlawful activities and unlawful organisations. The law will punish any individual committing unlawful activities and if an organization is an unlawful organization the central government will issue a notification and ban this unlawful organization. Then the scope of UAPA was expanded to cover terrorist acts as well. Now UAPA also bans terrorist organizations.

So, if there is an organization which the central government believes is a terrorist organization the central government will ban that organization and if an individual is a member of these terrorist organizations, supports these terrorist organizations, funds these terrorist organizations there is a punishment for such individual under UAPA.

Difference between an unlawful act and a terrorist act

Now a question arises: -What is the difference between an unlawful act and a terrorist act, there is a difference although these terms are used interchangeably. Unlawful activity is defined under Section 2(0) of the UAPA if an individual commits an act that is against the unity, integrity and sovereignty of the nation but this individual commits this act not through bombs not through ammunition not through weapons not through firearms but through words whether these words are spoken or written or even through pictorial representation.[iv] if one is committing this unlawful activity the central government will punish such individual and if such person is a member of an unlawful organization that organization also shall be banned.[v]

This is similar to section 124E of the Indian Penal Code,1860 which deals with sedition that means unlawful activities can be equated with sedition which is covered under section 124E of the Indian Penal Code that is why critics argue that since the country has sedition law there is no need to have this specific provision under UAPA because both these laws deal with similar kind of offences.

Now what is a terrorist act, a terrorist act is also similar in the sense that if an individual is acting against the unity integrity and sovereignty of the nation, but how, through firearms through ammunition through weapons through landmines and because of these acts it may lead to deaths of individuals it may lead to injuries to individuals it may lead to the destruction of any property.[vi]

If an individual is committing a terrorist act, UAPA will punish such individual that means there are provisions under UAPA that deal with terrorist acts and the punishment for the act is given under section 16. After the UAPA of 1967, we had two other major laws against terrorism, was TADA (Terrorists and Disruptive Activities Prevention Act) and POTA (Prevention of Terrorism Act) both these acts have been repealed because the then government believed that these laws have been misused, overused and abused.[vii]

Amendment of Unlawful Activities Prevention Act in 2019

By the 2019 amendments made to the Unlawful Activities Prevention Act, there are three major changes made to UAPA

Previously only an organization could have been declared as an unlawful or a terrorist organization, now even an individual can be declared as a terrorist that means previously if an individual is an accused in a terrorist case such individual is only an accused. A person is declared a terrorist once the FIR is filed, a charge-sheet is filed then the courts pronounce that the individual is guilty then only such person is declared as a terrorist that means through a legal process an individual was declared as a terrorist.

Now even without a legal process if the central government believes that a particular individual is committing a terrorist act or believes is planning the terrorist act or is supporting a terrorist act or is otherwise in any way involved in terrorism this particular individual can be declared by the central government as a terrorist.

The process is that if the central government believes that an individual a is a terrorist such individual's name will be added to the schedule to UAPA and ultimately this person shall be designated as a terrorist but one important thing is that when a person name is added to the schedule, such person is not even asked for a clarification that means even without the person defending himself his name is mentioned in the schedule to UAPA and such person is declared as a terrorist.[viii]

In the earlier UAPA, an officer of NIA, a principal investigating agency which deals with terrorist activities and acts of crime related to terrorism have to conduct a raid in any state such officer has to take the permission of the Director-General of Police of that particular state. Now the change made in 2019 provides that if an investigating officer of NIA has to conduct a raid in such an officer don't have to seek the permission of the Director-General of Police of the state but have to seek the permission of the Director-General of NIA.[ix] This principle violates federalism because how can a central agency (NIA) enter into a state and not report to the Director-General of Police of that state but report to the director-general of NIA.

The earlier UAPA said that all the cases of terrorism shall be investigated by an officer of the rank of Deputy Superintendent of Police now the 2019 amendment says even an inspector of NIA is authorized to conduct an investigation in any terror-related case which is investigated by NIA[x]

Justifications for the Unlawful Activities Prevention Act, with an emphasis on the 2019 amendment:

  1. The Masood Azhar case
    Indian Government was pleading with the world powers such as the United States, France, UK and even China that they should help India so that United Nations Security Council shall designate Masood Azhar as a a global terrorist.[xi] Here arises an issue, because Indian government in itself has not declared Masood Azhar as a terrorist The fact is our Law did not allow it. The law of 1967 and after their repeated amendments till 2013 only allowed the central government to designate an organization as a terrorist organization there was no provision under UAPA or under any other law of Indian Parliament that they can declare an individual also as a terrorist now this legal loophole has been done away with, now any individual also can be designated as a terrorist by the central government.
     
  2. Individuals Floating New Organizations
    Hafiz Muhammad Saeed started a terrorist organization called Lashkar-e-Taiba. United Nations banned this organization then what Hafiz Muhammad Saeed did, he started another organization and named it Jamaat-ud-Dawah all the funds of Lashkar-e-Taiba were diverted to Jamaat-ud-Dawah all the members of the Lashkar-e-Taiba became the members of the Jamaat-ud-Dawah.[xii] so if the government is banning an organization but are not banning an individual of these organizations, these individuals will float another organization and this vicious cycle continues that is why the only solution to deal with such a problem is that the law should also designate an individual as a terrorist.
     
  3. Individual Terrorist
    There have been instances in the past as recent as in New Zealand when an individual attacked a mosque at Christ Church in New Zealand and killed more than 50 individuals.[xiii] There may be individuals who may be acting on their own. There can be individuals who is committing a terrorist act, who is committing an unlawful act but this individual may not necessarily be part of any terror organization that is why there should be a law which can designate an individual also as a terrorist.
     
  4. Deterrent:
    This tougher law would act as a deterrent and people will think twice, thrice before they commit a terrorist act or an unlawful act, this is because individuals will now fear the law that even such person can be designated as a terrorist, and such person's property can be confiscated and can be put behind the bars. Also, there can be a ban on such individual's travel, there can be an arms embargo on such individual so if all these effects would result if an individual is designated as a terrorist it would act as a very strong deterrent and will prevent future commission of crimes.
     
  5. Organisations are made up of individuals
    If organizations can be declared as terrorist organizations but who makes up these organizations-individuals. if individuals make up an organization and if organizations can be designated as terrorist organizations why can't the law designate individuals who make up these organizations also as terrorists.
     
  6. Comparison with the U.N.O and other world countries
    United Nations has a provision for declaring an individual as a terrorist that is how Masood Azhar in May 2019 was designated as a global terrorist.[xiv] Otherworld powers also such as the United States have a provision where they can designate an individual as a terrorist why should India lag behind. So now India has also joined United Nations and other world powers in having a strong anti-terror law where even an individual can be designated as a terrorist.
     

Wide spread criticism of the Act and analysis of their validation

First criticism is that now and inspector of NIA is authorized to conduct an investigation in a terror related case.[xv] Previously it was a deputy superintendent of police level individual who would carry out the investigation now the critics believe that there will be no oversight on an inspector and this inspector will misuse overuse and abuse these amendments.

Now this argument may not be justified because if an inspector is conducting an investigation in a terror related case, it is not an inspector taking a decision on his own this file will go all the way up to director general of NIA that means it will be a collective decision of NIA.

When an individual is designated as a terrorist an inspector alone will not be in a position to take such a decision that means there is a DG level scrutiny whenever terror-related cases are investigated by inspectors [xvi] and on top of that we have a dearth of personnel we have a dearth of officers if only Deputy Superintendent level officers are authorized to carry out investigations in a terror-related case the government are in dearth of officers that is why the government should go a step-down and also include inspectors who are by the way professionals. These inspectors would also carry out investigations so that investigation is carried out in a swift manner in a time-bound manner and ultimately, we are in a position to tackle the Menace of terrorism.

The other criticism says that if an individual is designated as a terrorist such individual is not heard, which means even without hearing such individual, the central government believes that such individual is a terrorist such individual's name is added to the schedule and is designated as a terrorist.

But there is a safeguard embedded within the law itself, if an individual is designated as a terrorist such individual's name is added to the schedule of UAPA, the safeguard is that such individual can challenge the designation by filing a petition with the central government, there are chances that central government may reject the petition because central government has designated the individual as a terrorist, even then, if the central government rejects the petition within 30 days the individual can file another petition and this time a committee shall be set up by the central government it will be headed by a retired or sitting judge of a High Court it will have three other members as well [xvii] that means that the case will now be heard by an independent committee and this committee will go through the facts of my case will go through the arguments of the central government will go through my arguments as well and then decide whether I am a terrorist or not even if this committee rejects the application there is always the door of the Supreme Court open for the individual to knock that means there is three tear safeguard available under UAPA.

Negative impacts and ambiguity of the Act

The definition of unlawful activity or terrorist activity is very wide and anybody or everybody who disagrees with the government can be labelled as a terrorist.

The most negative aspect of the emergency of 1976 was the preventive detention with the legislation of MISA (Maintenance of Internal Security Act) anybody who disagreed with the government was arrested under MISA because they were designated as anti-nationals. [xviii]

When this law was challenged in the Supreme Court a five-judge bench of the Supreme Court decided that all these arrests are legal even the writ of habeas corpus which was suspended during the time of is justified in the name of national security in the interest of the sovereignty integrity and security of the nation. Justice H.R. Khanna gave a dissenting opinion stating that the writ of habeas corpus cannot be suspended with reference to article 21 of the Indian constitution.[xix]

Article 21 of the Indian Constitution talks about right to life but Supreme Court has said life does not mean physical act of breathing, right to life includes a right to live with dignity, right to reputation.[xx] If an individual is labelled a terrorist there is no FIR, there is no charge sheet, there is no trial, there is no conviction, even without a judicial process an individual can be declared as a terrorist. The reputation and dignity are detoriated.

When United Nations declare somebody as a terrorist there are some consequences that follow, there will be a travel ban imposed on this individual, there will be an arms embargo on this individual he cannot procure arms his property will be confiscated, his funds will be sealed by the state and by the United Nations organizations under UAPA, just a label will be there that individual is a terrorist that means this law is truncated this law is not even complete. Individual designated as a terrorist by the government can file an appeal, if the central government rejected this, within 30 days the individual can file another appeal, if the committee rejects this then individual can approach the judiciary and this process can take hundred days minimum.

For these hundred days, there are high chances that there will be a social boycott against such individual and also, he may be removed such individual is exposed to vigilante justice and opens up avenues for a mob to lynch without any due process. if we look at the instances of how UAPA has been misused over a period of time human rights activists have been arrested under UAPA.[xxi]

We are equating them with terrorists, we are equating them with Maulana Masood Azhar's there has to be a difference between a terrorist and those who are working for tribal rights those who are working for the upliftment of the Dalits in this country those who are working for environmentalism but even all these individuals who work for just causes can be designated as terrorists by the central government if the central government believes that they are terrorists that means article 21 is clearly violated by these 2019 amendments anybody who disagrees with the government can be declared as a terrorist.

Any propaganda can be viewed as an ideology that supports terrorism and as such an individual can also be designated as a terrorist that is why many people believe that these amendments go very far and as such violate article 21 which is the right to live with dignity with reputation. In short, the government can declare anybody as a terrorist without following any judicial procedure.

If an individual is designated as a terrorist the burden of proof shifts. The burden of proof in a criminal case will imply that it is for the prosecution, it is for the state to prove to convince before the judiciary that an individual is a terrorist, that means the prosecution has to prove beyond any reasonable doubt that such individual is a terrorist.

But because of these UAPA amendments the burden of proof shifts to the accused. if an individual is a terrorist designated by the central government such person has to convince and prove to the judiciary the person is not a terrorist and it is very difficult to prove the state, the state machinery wrong article 21 is not an absolute right, there are restrictions to article 21.

Article 21 states the state shall not deprive an individual of his right to life and personal liberty except according to the procedure established by law.[xxii] The right to reputation is an intrinsic part of article 21 of the Constitution of India and tagging an individual as a terrorist even before the commencement of a trial violates a procedure established by law.[xxiii] Article 21 is getting diluted because of these amendments.

These amendments also violate International Covenant on Civil and Political rights, article six of this covenant states every human being has an inherent right to life this right shall be protected by law and no one shall be arbitrarily deprived of his life. [xxiv]

How do we define the membership of an organization how do we define who is a member of an unlawful organization or a terrorist organization? Even a researcher who researches about the organization and ideology can be designated as a member since the individual has to partake in meeting and have to communicate to the organization.

Anybody who has a literature of these organizations can also be penalized and this goes against the Supreme Court verdict of 2011 in Indra das vs. state of Assam where the Supreme Court had made it abundantly clear that if there is an individual who possesses the literature of a banned organization who participates in the meetings of banned organizations that doesn't mean this individual is a member of these organizations this individual can be deemed as a member of these unlawful organizations only and only if he incites people to violence [xxv] that means unless and until I incite people to violence it doesn't matter whether I am in possession of a literature of a banned organization whether I am participating in the meetings of a banned organization it doesn't matter but here the membership definition is so weak that even if an individual participate in these meetings of these banned organizations such individual may be called as a member of a terrorist organization or a member of unlawful organization.

Absence of a bill or an anticipatory bail and that has something to do with section 43(D)(5) of the unlawful activities Prevention Act. In late 1970s the Supreme Court made it clear jail is an exception bail is as much as possible to release individuals on bail if an individual is not a threat to public property, individual accused cannot tamper with the evidence, cannot threaten with the witnesses, cannot run away from this country otherwise keep him in jail but here under UAPA, there is section 43(D)(5) of the Act which says that if the police presents case diary or if the police presents a charge sheet and because of the case diary and the charge sheet, the judiciary can be convinced that prima facie, there is a case against this accused, the individual is guilty no bail should be awarded to this individual, but case diary and charge sheet are the assumption of the state and how can the judiciary go by the arguments of the state and deny the liberty and freedom of life guaranteed by article 21 of the Constitution of India to an accused.

Conclusion
In the research paper, the researcher critically examined the background, criticism and counter justifications of UAPA. We could see that applying the utilitarianism principle, the greater good is securing national security by combating terrorism, at the cost of the liberty of individuals. But here in the case of UAPA, as discussed above the criticisms indicate that prevention of terrorism is not effectively achieved, but the act instead is being misused to a huge extent to suppress political dissent. if liberty is sacrificed to some extent for the greater good then it is acceptable because almost all rights come with reasonable restriction mainly for the greater good (societal interest).

But in the case of UAPA, liberties are sacrificed not for national security but for political security, then such liberty becomes the greater good that has to be protected at the cost of political security. This is where we must use rule utilitarianism rather than act utilitarianism, because rule utilitarianism allows us to refrain from acts that might maximize utility in the short run, and instead follow rules that will maximize utility for the majority of the time.

End-Notes:
  1. The Unlawful Activities Prevention Act, 1967, 2(o), Acts of parliamnet, 1967
  2. Press Trust Of India, Opposition slams amendment to UAPA call it draconian, Deccanherald, (Aug 02, 2019, 13:44 IST)
    https://www.deccanherald.com/national/national-politics/opposition-slams-amendment-to-uapa-call-it-draconian-751479.html
  3. International Covenant On Civil And Poltical Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  4. The Unlawful Activities (Prevention) Act, 1967 2(o), Acts of Parliament, 1967  (India)
  5. The Indian Penal Code,1860 124E, Acts of Parliament, 1860 (India
  6. The Unlawful Activities (Prevention) Act, 1967 15, Acts of Parliament, 1967 (India)
  7. Zaidi, S. Hussain, Black Friday The True Story of the Bombay Bomb Blasts, p.288, (2002).
  8. The Unlawful Activities (Prevention) Act, 1967 35, Acts of Parliament, 1967 (India)
  9. The Unlawful Activities (Prevention) Act, 1967 25, Acts of Parliament, 1967 (India)
  10. The Unlawful Activities (Prevention) Act, 1967 43, Acts of Parliament, 1967 (India)
  11. Shoaib Daniyal, Why China helped India put Masood Azhar on UN's terror list and does it matter?, scroll.in, https://scroll.in/article/922094/scroll-explainer-why-china-helped-india-put-masood-azhar-on-uns-terror-list-and-does-it-matter
  12. Australian National Security, Lakshar-e-Taiba, national security.gov.au, https://www.nationalsecurity.gov.au/Listedterroristorganisations/Pages/Lashkar-e-Tayyiba.aspx
  13. AFP, Christchurch mosque murderer weighing appeal of whole-life term, Aljazeera, https://www.aljazeera.com/news/2021/11/8/christchurch-mosque-murderer-weighing-appeal-of-whole-life-term
  14. Sriram Lakshman, Suhasini Haidar, UN designates JeM chief Masood Azhar as global terrorist, The Hindu, https://www.thehindu.com/news/international/un-designates-jem-chief-masood-azhar-as-global-terrorist/article27002685.ece
  15. The Unlawful Activities (Prevention) Act, 1967 43, Acts of Parliament, 1967 (India)
  16. The Unlawful Activities (Prevention) Act, 1967 25, Acts of Parliament, 1967 (India)
  17. The Unlawful Activities (Prevention) Act, 1967 37, Acts of Parliament, 1967 (India)
  18. Maintenance Of Internal Security Act,, 1971 3, Acts of Parliament, 1971 (India)
  19. ADM Jabalpur vs Shivkant Shukla1976 AIR 1207
  20. Maneka Gandhi v. Union of India AIR 1978 SC 597
  21. Romila Thapar vs Union Of India, Writ Petition (Criminal) No. 260 OF 2018
  22. India Const.art 21
  23. Sajal Awasthi v Union of India WP (C) 1076/2019
  24. International Covenant on Civil and Political Rights, article 6
  25. Sri Indra Das vs State Of Assam, CRIMINAL APPEAL NO.1383 OF 2007

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