UNLAWFUL ACTIVITY PREVENTION ACT (UAPA)

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29 Dec UNLAWFUL ACTIVITY PREVENTION ACT (UAPA)

Posted at 29 Dec 2023 in Current Affairs by
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UPSC MAINS SYLLABUS GS2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation

WHY IN NEWS? 

  1. A recent judgment by the Division Bench of the Jammu and Kashmir High Court in the case of journalist Fahad Shah has highlighted the issues related to Personal liberty guaranteed under Article 21 of the Constitution arising due to application of the Unlawful Activities (Prevention) Act (UAPA), India’s primary anti-terror statute.
  2. While granting bail to Mr. Shah, the court emphasized the need for circumspection in enforcing anti-terror laws that allow vast interference with personal liberty.
  3. The High Court raised concerns about the UAPA’s procedural aspects, specifically, Section 43-D(5), which restricts bail if accusations are deemed ‘prima facie true.’
  4. The judgment rejected the government’s argument that publishing an article could be considered an act of terror, emphasizing the need for common sense in criminal law. It underscored that the UAPA should not extend to punishing alleged defamation of the country. 

WHAT IS UAPA?

  1. The Union government was considering a stringent law against calls for secession in the mid-1960s.
  2. Further, in March 1967, a peasant uprising in Naxalbari imparted a sense of urgency.
  3. Thus UAPA was passed in 1967 “to provide for the more effective prevention of unlawful activities of individuals and associations”.
  4. As per the Act, Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
  5. The Act assigns absolute power to the Central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  6. Under UAPA, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land or outside India.
  7. Under the UAPA, the investigating agency (NIA) can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
  8. The 2004 amendment, added “terrorist act” to the list of offences to ban organisations for terrorist activities, under which 34 outfits were banned. For example: Khalistan Zindabad Force, Lashkar-E-Taiba, Jaish-E-Mohammed etc. 
  9. It has death penalty and life imprisonment as highest punishments.

UAPA AMENDMENT ACT 2019: 

The provisions were made further stringent by the Amendment Act:

  1. The Act empowers the Director General of National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.
  2. The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
  3. It also included the provision of designating an individual as a terrorist.

ARGUMENTS IN FAVOUR OF UAPA: 

  1. UAPA empowers the government to preventively act against individuals and organizations involved in or supporting terrorism thus safeguarding the nation’s security.
  2. Designation of individuals and organizations like Masood Azhar, Hafiz Saeed, and Lashkar-e-Taiba as terrorists under UAPA, has enabled freezing of assets, travel bans, and sanctions thus effectively fighting challenging issue of Terrorism.
    1. Example: Use of UAPA in prosecuting and convicting Ajmal Kasab, the lone surviving terrorist of the 26/11 Mumbai attacks, based on intercepted communications, electronic evidence, and modern investigative techniques.
  3. UAPA enables the preventive detention of individuals suspected of unlawful activities which is crucial for averting potential threats in cases lacking sufficient evidence for formal trials.
  4. UAPA amendments align with the United Nations Convention for the Suppression of the Financing of Terrorism, showcasing India’s commitment to international efforts against transnational terrorism as guided by DPSP of Article 51.
  5. Severe penalties under UAPA in the case of the 2001 Parliament attack, discourage individuals from engaging in or supporting activities detrimental to the nation’s security, as seen in the hanging of Afzal Guru.

CRITICISM OF UAPA: 

  1. UAPA is criticized for its low conviction rate, which is around 2% as per the Hindu report. 
    1. The example of Gaur Chakraborty among others is cited wherein he spent 7 years in prison during trial only to be acquitted of all charges, wherein the imprisonment during trial itself amounted to punishment as no bail is guaranteed.
  2. The broad and vague definition of ‘Terrorism” potentially encompassing legitimate political activities or dissent under the label of ‘terrorism.’
  3. Further, Pre-emptive Arrests and Detentions without bail, permitting arrests based on suspicion or the anticipation of potential offences acts as chilling effect to Fundamental rights guaranteed under the Constitution.
  4. The Act also includes acts which “likely to threaten” or “likely to strike terror,” granting broad powers to label individuals, including ordinary citizens or activists, as terrorists without the actual commission of such acts.
  5. Section 43(D)(5) of UAPA prevents the release of bail if the police charge sheet indicates reasonable grounds for believing the accusation is prima facie true. Only a small percentage of detainees secured bail according to the PUCL report.

WAY FORWARD: 

The guidelines by Supreme Court Judgements such as in Arup Bhuyan v. State of Assam, that “mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence” shall be strictly followed by agencies. The principle of liberty exists because of the rule of law and thus it is vital to strike a balance between national security imperatives and the protection of individual rights, fostering a legal framework that is effective, transparent, and accountable.

PRACTISE MAINS 2024 QUESTION: 

QUESTION: Indian government has recently strengthened the anti-terrorist laws by amending UAPA 1967 and NIA act. Analyze the changes in the context of prevailing security environment while discussing scope and the reasons for opposing UAPA by human rights organizations. (250 words, 15 Marks)

 

 

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