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Constitutionality of UAPA Amendment

The roots of unlawful Activities (prevention) Act,1967 can be found back to colonial times when the criminal Law (Amendment) Act was introduced in 1908. The intention was wide and clear to put the freedom fighters under detention through the newly amended act.

Even After independence, the Nehru - government favoured using the provisions of the act. It was in Ram Nandan vs The state that the supreme court finally held the criminal Law (Amendment) Act,1908 as unconstitutional. Through multiple amendment in the years 1951 and 1963 The first amendment ensured the introduction of the 9th schedule which the government once hoped to use upon any legislation, to keep it outside the purview of the judicial review.

The 16 amendment however created a stepping stone to the enactment of UAPA in 1967 to silence down the voice that the government had to face during the 1962 indo - china war. The reasonable Restrictions of " sovereignty and integrity" of the state were added through which the government aimed to capture away individuals or organizations which demanded autonomy or demanded to differ from the union.

The amendment of UAPA act will help government and intelligence to remain the four steps of terrorist or non-state actor.

The Unlawful Activities Prevention Act (UAPA) was passed in 1967 under the prime minister Indira Gandhi. However the law has done the half of the dozen Amendments, the last in 2019 under the Narendra Modi government.The UAPA was expressed as an anti - terrorism law to curb unlawful activities, association

and preserve the sovereignty and integrity of India. The amendment allowed parliament to impose constraints on the fundamental rights of freedom of expression, assembly without arms, and alliance. IN 1967 the UAPA granted the central government the power to deal with activities equalized against the sovereignty and integrity of India.

Under section 25 it gives power to the Director - General of the National Investigation Agency to seize property from proceeds of terrorism. The UAPA, now comprises terrorism, money laundering for terror financing and appellation of groups, and individual as a terrorist.

The UAPA an enhancement of the TADA ( Terrorist and Disruptive Activities (prevention) Act), which was allowed to lapse in 1995 and prevention of Terrorism Act (POTA) was repealed in 2004 was originally passed in 1967 under the Congress government led by former prime minister Indira Gandhi.

The national investigation agency (NIA) is functioning as a central counter Terrorism Law Enforcement Agency in India established under NIA Act 2008.According to the act the union government may proclaim or designate and Organisation as a terrorist organization if it commit or participate in acts of terrorism and prepare for terrorism and promote terrorism or is otherwise involved in terrorism the bill also empires the government to designate individual as terrorist on the same ground.

The bill adds that if the investigation is conducted by the officer of National investigation against the approval of director general of National investigation Agency it would be required for seizure of such properties.

The act defines terrorist act to include acts committed within the scope of any of the treaties listed schedule to the act. The schedule list 9 treaties comprising of the convention for the separation of terrorist bombings 1997 and the convention against taking of hostages 1979. The bill adds another treaty to this list namely the international convention for separation of act of nuclear terrorism 2005.

What is UAPA?

Unlawful Activities prevention Act is an Indian law aimed at prevention of unlawful activities association in India and was passed in 1967. Its main objective was dealing with activities directed against the integrity and sovereignty of India. UAPA is also known as Anti - terror aim at effective

Prevention of unlawful activities association in India.

Unlawful activities refers to any action taken by an individual or association intended to disrupts the territorial integrity and territorial sovereignty in India.The act assigns absolute power to the central government,by way of which if central deems an activity as unlawful than it may,by way of an official gazette, declare it so.

It has death penalty and imprisonment as highest punishment.

Objective of UAPA:

  1. To make power available for dealing with activities directed against the sovereignty and integrity of India.
  2. The bill was passed by both the houses of parliament and received the assent of the president on 30 December 1967.
  3. The unlawful activities prevention act has been amended in 2004,2008,2012 and 2019 since it came into force.

The UAPA Act Amended By:

  1. The unlawful Activities ( prevention)
    Amendment Act,1969(24 of 1969).
  2. The Criminal Law Amendment Act, 1972 (31 of 1972).
  3. The unlawful Activities (prevention)
    Amendment Act, 2004 (29 of 2004)
  4. The unlawful Activities (prevention)
    Amendment Act, 2008 (35 of 2008)
  5. Individual can also be tagged under terrorist Amendment Act, 2019.
    constitutionality of the UAPA

The Fundamental Arguments Against The Amendment In 2019 Are Under Section 35 Which Includes:

  1. In addition to categorise of organization or group as terrorist organization it extinct to power to include the categorise of individuals as terrorist with in its extent.
  2. The new amendment is contrary to the principal of "innocent until proven guilty"
    It breaches the international covenant on civil and political rights, 1967, which identifies the principle of universal human rights.
  3. The UAPA is a part of security legislation that enables the government to arrest citizens who might commit crimes.
  4. No intention basis has been prepared for categories. The government has been provided with unrestricted authorities to hold an individual as a terrorist.
  5. It can be utilized to avoid fundamental rights and procedure. For example, without even a chart sheet file those arrested under the UAPA can be detained for a period of 180 days therefore directly violating article 21 of the constitution.
  6. It confers upon the government vast discretionary powers and also empowers the creation of special quotes with the ability to use confidential witnesses and to hold close door earrings.

Petitions against the UAPA

Two petitions have been filed to contest the constitutional validity of section 35 and 36 of the unlawful activities prevention act 1967 as amended in 2019. First petition was filed by an association for protection of civil rights, a non profit civil rights society. Second petition was filed by an Indian national Sejal Awasthi. The petitioners ask that section 35 and 36 be extracted down and declared unconstitutional.

Grounds For The Petition

Lack Of Substantive And Procedural Process:
Section 35 allows government to list any individual as a terrorist in the fourth schedule of the UAPA. The government can claim and notify based on major suspicion without any process. No just hearing opportunity has been given. The grounds on which a person can be declared a terrorist is doughtful and unclear. while 36 allow in individual who has been label as a terrorist under the UAPA, to appeal against the label it's execution is complicated. An individual is not informed of the grounds for arrest. There is no condition for oral hearing at the state of appeal.

The supreme court in Puttaswamy v. Union of India (2017) held that the right to life and personal liberty could only be curtailed through due process of law. Section 35 and 36 fails due process standard.

The Law Is Arbitrary And Violates Equality
The section fails to provide sureties against the high potential of discretionary authority. While the procedure to notify in Organisation of a terrorist organizations has substantive safeguards. There is no clear purpose behind the distinction between an organization and an individual, the treatment of an individual is excessive and irrational. This does not surprise the reasonable classification test under article 14.

Union of India v. Tulsiram Patel (1985), contains that violation of natural justice results in arbitrariness and disrupts Article 14.

Indirect Violation Of Free Speech
Disagreement is an indispensable features of right to free speech under article 19(1)(a) in Maqbool Fida Hossain v. Rajkumar Pandey (2008), under the presence of terrorism that are intended to target significant speech against the government.The petitioners said that the Amendment gives the government discretionary powers to restrict the or opposition voice hence the section 35 and 36 breach the right to equality under Article 14,right to freedom of speech under article 19(1)(a) and right to life with dignity under article 21 of the Indian constitution.

The Amendment Violates The International
Conventions by India. Specially legal principles under the international convention on civil and political rights, United Nations special rapporteur on the protection of human rights and fundamental freedoms are violated under the amendment.

In 2016,999 were arrested,in 2017, 1,054 were arrested and In 2018,1031 were arrested. However the conviction rate in UAPA cases were found to be 25%.Also in almost 43%of the cases,the charge sheet has taken more than a year or two to be filed.

Under UAPA both Indian and foreign nationals can be charged. It will be applicable to the offender in the same manner even if the crime is committed outside the country. Under UAPA,the investigation agency can file a charge sheet in maximum 180 days after the arrest and the duration can be extended further after the intimating the court.

The UAPA law goes against the basic tenets of the constitution such as freedom, equality and right to life and personal liberty.

Sajal Awasthi v. Union of India
Parties: Petitioner-Sejal Awasthi - Lawyer -Fauzia Shakil - Petitioner- Association For Protection Of Civil Right - Lawyer- Manju Jetley
Respondent-Union Of India - Lawyers- Solicitor General Tushar Mehta - Intervenor- Om Prakash Ajit Singh Parihar

Case Details:
Case number: WP ( c) 1076/ 2019

Key Issues:
  • Whether the amendment places a fetter on the right to dissent and thus violates the right to Freedom of speech and expression under the article 19 (1)(a )?
  • Whether the unilateral power of the executive under section 35 of the act to categorise an individual as a terrorist an include them in schedule 4 goes against the principle of the law, natural justice and the persons fundamental right to reputation?
  • Whether the 2019 amendment to the unlawful activities prevention act, 1967 is manifested arbitrarily and violates article 14 and 21 of the constitution?

Case Description

The unlawful activities prevention act (1967) means to penalised the unlawful and terrorist activities, which creates a threat to the integrity and sovereignty of India. It also provides the powers to the central government to designate organizations as terrorist organization and also prescribed the penalties for taking part in the activities of the organization.

In 2019,the parliament carried out certain amendment to the act.The most significant changes in the amendment is brought by section 35 alter and gives the power to notify as an individual as a terrorist under the schedule lV of the act.

Historical Challenges
The act has been forced in 1967, the parliament only adding a chapter towards punishing terrorist activities in 2004 by the way of UAPA amendment act 2004,after this the amendment made in 2008 and 2013 as well. Before the UAPA, terrorist activities were primarily dealt under the now deleted Terrorist and Disruptive Activities (prevention) Act,1987(TADA) and prevention and terrorism Act,2002(POTA).

In Kartar Singh v/s State Of Punjab, the validity of TADA was challenged on the ground that it deal with the issue of " public order" which was within the legislative domain of state.The court held that " public order" covered issue of gravity and more serious threat covered in TADA fell down relating to National domain.

It has been challenged several times in the supreme court of India where the constitutionality of section 35 and section 36 of the act on the grounds that it gives the exorbitant power to the state.

Under the recent amendment the government has been given to designate an organisation as a terrorrist organisation if (a) if it commits or participates an acts of terrorism. (b) prepare and promote the terrorism.(c) otherwise involved in terrorism.

These laws give exceptional power to the state to arrest the citizens, to detain them,to charge them with the offences.

  • The provisions of UAPA are violative of fundamental rights guaranteed to citizens of India.
  • The provisions of UAPA are violative judicial criterion set by DK Basu v. State of West Bengal.
The unlawful Activities prevention Act 1976, was brought to curb the increasing thread of terrorism in India like the Mumbai attacks 2011,Delhi bombing 2013,Hyderabad blast and increasing cross border insurance in Kashmir had compelled the parliament to bring the amendments in the Act.

The prime objective of the act is to counter terrorist activities and compact illegal activities which are a threat to the integrity and security of India and the government needs to focus on complain with the objective of the act instead of stepping descent voices.certain provisions of the act are still under judicial scrutiny as they deem to be contrary fundamental rights.

Drawing the line between individual liberty and the states duty to render security in case of a classic predicament. It is up the state judiciary civil society to balance constitutional freedom and the imperative of Anti terror pursuit. Government has time and again adopted laws such as sedation and criminal defamation laws to quell dissent. They have been misused in politics as tools against criticism, legising thoughts, and crime. The government in recognizing the intent of this act has integrated human rights.

The government has arrested journalists doing jobs and citizens asking for their rights and justice in the blanket of such laws. This amendment shows hints of the way which laws were made under the colonial regime to curb several freedom movements under cover of assuring public order.

The act is mainly criminalising based on ideology and association Thus,these laws can be evidently seen as short steps in the direction of the autocracy from democracy, which urgently needs to be prevented by the judiciary.

  1. An immediate repeal of unlawful Activities prevention Bill, such an act should be repealed by a legislation that allows a degree of transparency, and judicial scrutiny.
  2. Legislations relating to protection of political dissent should be passed, in order to properly define what does or does not constitute political dissent.
  3. Compensation should be provided those individuals who were detained under UAPA for a significant amount, and proven innocent.

Written By: Sankalp Mirani

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