UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967


India’s wars with China and Pakistan resulted in severe UAPA; there is no opportunity for anticipatory bail, and the minimum punishment is five years, with the maximum being life imprisonment. In terms of bail, the prosecution need simply establish a prima facie case, and this rule should be considered in light of Sedition. Unlawful activity is defined as any behaviour that is intended to jeopardise the State’s security or cause disaffection with India. Thus, here a contrast is created between the State – defined as Indian as a concept and as a country – and the current government. Despite this divergence, the evil of Disaffection remains codified. National Investigation Agency Act, 2008 (NIA) establishes an investigative organisation under the Ministry of Home Affairs to assist with UAPA cases.

ORIGIN AND EVOLUTION OF UAPA:


UAPA was first passed in the year 1967. The origin of the act lies in the recommendation of a committee appointed by the National Integration Council, to look into the issue of ‘
National integration and regionalization’ for introducing ‘reasonable restrictions’. Based on the findings of the committee, the Constitution (16th Amendment) Act, 1963 was passed that introduced reasonable restrictions in the exercise of certain fundamental rights, namely:

  1. Freedom of Speech and Expression;
  2. Right to assembly peacefully;
  3. Right to form associations and unions.

Gradually, other anti-terror laws were repealed to widen the ambit of UAPA like:

  • The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was repealed in 1995;
  • Prevention of Terrorism Act, 2002 (POTA) was repealed in 2004,

THE AMENDMENTS TO UAPA:


Originally the UAPA of 1969 was amended to make it an anti-terror law in 2004 and 2008. Although gone through several amendments, one of the major amendments in the act was made in the year 2004. The Unlawful Activities (Prevention) Act, 2004, increased its ambit by including punishment for the ‘
Terrorist Act’ which was defined in Section 15 is seen as an attempt to keep POTA alive in its substance.

The most recent amendment has been made in the Act of 2019. The 2019 Bill was aimed at making the 2019 Act more effective in preventing unlawful activities and meeting commitments made at the Financial Action Task Force. Bill became law in August 2019, and provides the following provisions: 

  • Under the Act, the Union Government may designate an organisation or an individual as a terrorist organisation if it:

(i) commits or participates in acts of terrorism;

(ii) prepares for terrorism;

(iii) promotes terrorism; or

(iv) is otherwise involved in terrorism.

  • Investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. Or by the officers of the NIA, of the rank of Inspector or above, to investigate cases.
  • Under the Act, an investigating officer is required to obtain the prior approval of the Director-General of Police to seize properties that may be connected with terrorism and if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for seizure of such property.
  • The Act defines terrorist acts to include acts committed within the scope of any of the nine treaties listed in a schedule to the Act.

On the face of it, the Act appears to be like any penal provision enacted with both preventive and deterrent scope. But the application of the Act upon innocent individuals brings disaster to a civilized country. The law allows authorities to designate someone as a “terrorist” and detain them without producing any incriminating evidence. It also has stringent requirements for granting bail, which means individuals often spend months, sometimes years, in jail without being found guilty.

The validity of the Amendment Act, 2019 has been challenged in a Public Interest Litigation, Sajal Awasthi v. Union of India Writ Petition (Civil) No. 1076/2019, and it is pending before the Hon’ble Apex Court. The crux of this matter is that Section 35 of the Act empowers the Central Government to add the name of any organisation or individual in the fourth schedule i.e. list of declared terrorists.

MISUSE OF UAPA – INCREASED ARRESTS, LOW TRIALS AND CONVICTIONS RATE:


Between 2016 and 2019, a total of 4,231 FIRs were filed under various sections of the UAPA, of which 112 cases have resulted in convictions (based on data from India’s National Crime Records Bureau). However, only 2.2 per cent of cases registered under the law from 2016 to 2019 ended in a court conviction. Nearly 11 per cent of cases were closed by the police for lack of evidence. Therefore, proving that increased use, however, has not led to many convictions and trials. Around 1,948 people were arrested under UAPA in 2019 – an increase of nearly 37 per cent from the previous year. Justice D. Y. Chandrachud, a sitting Supreme Court judge, said the courts must act as the “
first line of defence against the deprivation of liberty of citizens,” and this amplified the debate on the continuance of the Act in its current form.

FORGOTTEN FUNDAMENTAL RIGHTS WHILE DRAFTING AND IMPLEMENTING DRACONIAN LAWS:


When our constitution-makers were drafting the constitution, they had realized the importance and necessity – as reflected in the Constituent Assembly Debates – to protect what was already possessed by human beings i.e. the Fundamental Rights. Though all Fundamental Rights are equally important having the same level of relevance; the Right to life & Personal Liberty, the Right to Equality, and the Freedom of Speech & Expression has been the most cherished rights of all.

The Hon’ble Supreme Court in Maneka Gandhi vs. UOI (AIR 1978 SC 597), held that any law which deprives a person of his personal liberty should stand the test of Articles 21, 14 as well as 19 of the Constitution. Also, the principles of natural justice are sheltered under Article 21, and therefore, no person is deprived of his voice to be heard inside the court. Further to declare any state action or legislation invalid, the “Golden Triangle” of Articles 14, 19 and 21 can be applied.

The Hon’ble Apex Court in Satwant Singh Sawhney vs. D Ramarathnam (1967 3 SCR 525), held that personal liberty in its ambit also includes the right of locomotion and travel abroad. Hence, no person can be deprived of such rights, except through procedures established by law. Since the State had not made any law regarding the regulation or prohibiting the rights of a person in such a case, the confiscation of the Petitioner’s passport violates Article 21 and its grounds being unchallenged and arbitrary, it is also violative of Article 14.

Despite the courts protecting citizens a few times, the legislature has consistently tried to encroach upon these sacrosanct rights and the most illustrative example of such laws are offensive parts of The Unlawful Activities Prevention Act (UAPA), 1967 and Section 124A, IPC.

DOES EVERY DISSENT AMOUNT TO SEDITION/UAPA AND THE SPEAKER A TERRORIST?


In India, the Freedom of the Press is implied in the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) guarantees that all citizens shall have the right to freedom of speech and expression. But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2).

In Romesh Thapar vs. State of Madras (1950 SCR 594), Chief Justice Patanjali Shastri held that freedom of expression and the press lay at the heart of all democratic organisation, for without open political debate, no public education, so critical to the efficient functioning of popular government, is possible. In this case, the Government of Madras prohibited the entry and ban of the English magazine ‘Cross Road’, which was printed and published in Bombay. It was deemed a violation of Free Speech and Expression because, without the freedom of circulation, publishing is of limited value.

The Hon’ble Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. vs. Union of India [1973] 2 S.C.R. 757, it was held that in today’s free society, press freedom is vital to social and political discourse. The press has increasingly adopted the role of public educator, enabling widespread access to formal and non-formal education, particularly in developing countries where television and other forms of modern communication are not yet available to all segments of society. Press aims to advance the public interest by publicising facts and opinions that are necessary for a democratic electorate [Government] to make informed decisions. Newspapers, as publishers of news and viewpoints affecting public administration, frequently publish content that is unpalatable to governments and other authorities.

Unfortunately, the recent instances have completely vanished the line of distinction between what constitutes Sedition/UAPA and freedom of speech and expression.  The recent custodial death of 84-year-old Father Stan Swamy who was charged under UAPA, and the case of an activist in Manipur, who was put in jail under NSA for merely stating that cow urine was not a cure for COVID is a barbaric example of the State autonomy under draconian laws.

Former Supreme Court judge, Justice Madan B. Lokur, remarked that the courts, society and the state should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition under the Unlawful Activities (Prevention) Act and languishing in jail for months and stated that its ‘soft torture’.

The continuous and repetitive calls by Justice Deepak Gupta who supported the need for the Supreme Court’s intervention under Article 142 of the Constitution, and used it to lay down guidelines on the use of UAPA adding that it is a proven fact that UAPA can be misused. He even emphasised that “The UAPA should not remain in this form,” and questioned whether we were living in a “Police State”.

Apart from local laws the Act dishonours the international conventions and legal principles under the International Convention on Civil and Political Rights and United Nations Special Rapporteur on the Protection of Human Rights, and Fundamental Freedoms of which India is a signatory.

CONSTANT TARGETING PARTICULAR COMMUNITY OR STATE:


In a democratic country like ours where the Rule of Law must prevail and not of man and where equality is the part of Basic Structure of the Constitution enshrined under Article 14-18, it is mischief on part of the authorities to misuse the provisions of UAPA or Sedition against a particular community or state. There is no rationale behind such decisions and the agony amplifies when the family members of those arrested are not even given any information as to his whereabouts.

A recent paradigm of ceaseless abuse of UAPA is Mohammed Irfan’s case who in his early 20s was leading a peaceful life until a counterterrorism squad in August 2012 entered his store in Nanded, a city in India’s Maharashtra state, and arrested him for allegedly plotting to kill Indian politicians and he was soon charged under the country’s draconian anti-terror law, the Unlawful Activities Prevention Act (UAPA). He was finally released in June 2021 after the court acknowledged that he was wrongly jailed, but it was all in vain as he had already spent nine years in prison.

Similarly, in November 2021, Tripura Police booked 102 social media handles, and 4 lawyers, under UAPA. Among those who have been booked by the Tripura Police were Maktoob Media’s journalist Meer Faisal, global correspondent CJ Werleman, and three Supreme Court lawyers including Ehtesham Hashmi.

RIGHT TO PROTEST AND UAPA:


The Supreme Court’s take on protests in 
Mazdoor Kisan Shakti Sangathan vs. Union of India (2018) 17 SCC 324, was that uprisings against governmental and parliamentary actions are legitimate. Though such protests and assemblies are supposed to be peaceful and non-violent, it is not new for protestors to dangle with the limits of law and protests to take a violent turn. Despite the Hon’ble Supreme Court’s reiterating the importance of people’s right to protest, the UAPA and Sedition stand firmly as a hindrance in its way. Approximately 1,100 protestors are under arrest and 5,558 are kept in preventive detention concerning the CAA-NRC protests. Out of the arrested people, some have been arrested under the Unlawful Activities (Prevention) Act.

In similar yet different orders, the trial court while granting bail to Jawaharlal Nehru University (JNU) students Natasha Narwal and Devangana Kalita held that the court is constrained to state that the State appears to have blurred the line between the constitutionally guaranteed ‘Freedom to protest’ and ‘terrorist action’ in its haste to crush dissent and its dread of things getting a matter of hand. If this type of blending takes traction, democracy will be jeopardised.

UAPA THROUGH THE PRISM OF CONSTITUTIONALITY


Targeted Categorisation
: As illustrated earlier, the amended act, in addition to the categorisation of organisations or groups as terrorist organisations, extends the power to include individuals as terrorists. The jurisprudential principle of criminal and constitutional law ‘innocent until proven guilty’ is blatantly disregarded by the Executive while applying draconian legislation and this tenet of criminal and constitutional law has no place in the UAPA. It further infringes the International Covenant on Civil and Political Rights, 1967which identifies the stated principle of Universal Human Rights. As per the scheme of the Act, the person will be treated as a terrorist from the very moment of applying/misapplying to this law.

Absence of intelligible differentia: There is no rational basis/intelligible differentia to categorise a person or organization as a terrorist, and such acts are inconsistent with the object it sought to achieve. It gives unfettered powers to the Government without any safeguards, the innocent individuals will languish in jails for decades to come. A clear encroachment upon fundamental rights can be seen, for example, without even a charge sheet filed, those arrested under the UAPA can be detained for 180 days, therefore, directly violating Article 21 of the Constitution. It imperils the very existence of public debate, freedom of the press and criminalising the enforcement of civil liberties.

Read the latest order dated 11.05.2022 passed by the Hon’ble Supreme Court on the misuse of Sedition

Almighty Government becomes the most powerful: It bestows upon the government vast discretionary powers and also empowers the creation of “special courts with the ability to use confidential witnesses and to hold closed-door hearings.” The UAPA works on ‘belief and apprehensions’, the Act enables the Parliament to curb the rights and freedoms of free citizens in the name of the protection of ‘the sovereignty and integrity of India’. However, the problem remains whether the Parliament under any circumstance can label an individual as a terrorist purely based on a belief that he is involved in terrorism without any trial or investigation whatsoever. 

Also Read:

SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 1
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 2
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 4
SEDITION & UAPA – Are These Provisions License to Abuse Power?- Complete Article

In Indra Das vs. State of Assam (2011) 3 SCC 377 and Arup Bhuyan vs. State of Assam (2015) 12 SCC 702. By these judgments, the Supreme Court unambiguously stated yet again that only speech that amounts to ‘incitement to imminent lawless action’ can be criminalised. The Apex Court also held that mere membership of a banned organisation cannot criminalize a person unless he is proven to have resorted to acts of violence or incited people to imminent violence. The Union of India has, however, sought a review of these judgments on the issue related to the membership of banned organisations.

Authors:

Lalima Gupta
Intern
The Law Codes

Dr. Rohit Samhotra
Advocate
Supreme Court of India