UNLAWFUL
ACTIVITIES PREVENTION ACT (UAPA) - POLITY
News: Supreme
Court changes stand; now mere membership of a banned outfit is a crime under
UAPA
What's in the news?
● A
three-judge Bench of the Supreme Court clarified that a person who “is or
continues to be” even a “mere member” of a banned organization is liable to be
found criminally liable under the draconian Unlawful Activities Prevention Act
(UAPA) for acting against the sovereignty and integrity of India.
Key takeaways:
● With
this judgment, the Supreme Court has set aside a series of its own judgments
which had concluded that “mere membership” - unlike “active membership” - of an
unlawful association or organization did not make a person a criminal or a
terrorist.
Unlawful Activities (Prevention) Act,1967:
● It
is primarily an anti-terror law –
aimed at more effective prevention of certain unlawful activities of individuals and associations and for
dealing with terrorist activities.
Applicability of law:
The
law is applicable to both Indian and foreign nationals, and it extends to the
whole of India. Besides the provisions of this Act apply also to:
(a)
citizens of India outside India;
(b)
persons in the service of the Government, wherever they may be; and
(c)
persons on ships and aircrafts, registered in India, wherever they may be.
What are Unlawful Activities and Associations?
● The
UAPA lays down the definitions and rules for designating an organization as an
“unlawful association” if it is engaged in certain types of activities.
● Under
Section 3 of the UAPA Act, the
government has powers to declare an association “unlawful”.
● The
government can then issue a notification designating such an organization as a
terrorist organization if it believes that the organization is part of
“terrorist activities.”
Unlawful Activities:
● Under
section 2(o) of the UAPA, an
unlawful activity in relation to an individual or association means – Any
action taken by such an individual or association (whether by committing an act
or by words, either spoken or written, or by signs or by visible representation
or otherwise), –
○ Works
for the Cession of a part of the territory of India or the secession of a part
of the territory of India from the Union
○ Disclaims,
questions, disrupts or is intended to Disrupt the sovereignty and territorial
integrity of India; or
○ which
causes or is intended to cause Disaffection against India;
○ Related
and ancillary acts, including financing, support or promotion of any such
activities are also “unlawful activity”.
Unlawful Association:
● The
UAPA also defines an “Unlawful Association” under section 2(p) as meaning any association,
○ which
has for its object any unlawful activity, or which encourages or aids persons
to undertake any unlawful activity, or of which the members undertake such
activity or
○ which
encourages or aids persons to undertake any such activity, or of which the
members undertake any such activity.
2019 Amendment of UAPA:
● The
act was amended to designate individuals
as terrorists on certain grounds provided in the Act.
○ Earlier
only organizations could be declared as such.
○ Not
designating individuals as terrorists, would give them an opportunity to
circumvent the law and regroup under different name.
● It
empowers the Director General of NIA
to grant approval of seizure or attachment of property when the case is
investigated by NIA.
○ Earlier
it required the consent of State Police which delayed the process.
○ It
empowers the officers of the NIA, of the rank of Inspector or above, to
investigate cases of terrorism.
○ This
will help solve the human resource crunch in the NIA.
Need of UAPA:
1. Designating individuals as terrorist:
● Designating
an individual as a terrorist in line with international practices and to
facilitate speedy investigation and prosecution of terrorist offences.
2. Checks illegal acts:
● Preventing
certain illegal acts of people and organizations especially related to
terrorism can be prevented.
3. Protects integrity of the nation:
● India’s
integrity and sovereignty cannot be undermined at any cost so it gives power to
the state (government) to deal with illegal acts of people.
Issues with UAPA:
1. Terrorism not defined properly:
● There
is no universal definition of the term ‘terrorism’ either in India or at the international
level.
● Section 15 of UAPA merely
defines a terrorist act in extremely wide and vague words.
It states that any act with intent to threaten or likely to threaten the unity,
integrity, security, or sovereignty of India or with intent to strike terror or
likely to strike terror in the people is a terrorist act.
2. Vagueness in UAPA:
● UAPA
states that a terrorist act can be committed by using bombs, dynamite or other
explosive substances or inflammable substances or by any other means of
whatever nature to cause or likely to cause death or injuries. Here the meaning of any other means is not
clear.
● It
enables the state to arrest and incarcerate citizens almost indefinitely. Bail
under the law is extremely difficult to obtain, since courts are required to
depend on police documents to presume the guilt of the accused.
● Recent
amendments extended the pre-charge sheet
custody period from 90 days to 180 days but even this time period is
observed more in the breach.
● It
potentially reduces the economic ability of the accused to fight a legal case.
Because UAPA allows courts to provide for the attachment of property equivalent
to the proceeds of terrorism involved in the offense.
3. Condition of UAPA prisoners:
● The
persons arrested with UAPA are not
entitled to the provisions of jail manual citing safety and security concerns.
Further, there is a continuous violation of human rights inside prison.
4. High pendency rate:
● The
National Crime Records Bureau (NCRB) published the status of UAPA 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. While the number of acquittals is low, at 187.
● According
to the home ministry data, there has been a 72 percent increase in the number
of arrests made under the UAPA between 2015 and 2019.
● The
rate of pendency at the level of trial is at an average of 95.5 per cent. This
signifies the reasons for long years of under trial imprisonment.
● Between
2016 and 2019, the period for which UAPA figures have been published by the
National Crime Records Bureau (NCRB), a total of 4,231 First Information Report
(FIR) were filed under various sections of the UAPA, of which 112 cases have
resulted in convictions. This indicates that it is often misused.
5. Curbs dissent:
● The
law could also be used against political opponents and civil society activists
who speak against the government and brand them as “terrorists.”
6. Ignoring Fundamental Rights:
● It
can simply be used to bypass fundamental rights and procedures. For instance,
those arrested under UAPA can be incarcerated up to 180 days without a charge
sheet being filed.
● It
thus directly violates Article 21 of the
constitution.
7. Sharp Rise in Use:
● This
caution is significant given the sharp surge in the state’s use of this
provision in a sweeping range of alleged offences - against tribals in
Chhattisgarh, those using social media through proxy servers in Jammu and
Kashmir; and journalists in Manipur among others.
8. Undermining Federalism:
● Some
experts feel that it is against the federal structure since it neglects the
authority of state police in terrorism cases, given that ‘Police’ is a state
subject under 7th schedule of Indian
Constitution.
9. Low conviction:
● In
2018-20, as many as 4,690 people were arrested under the UAPA but only 3% were
convicted.
WAY FORWARD:
1. Balancing UAPA with fundamental rights:
● Undoubtedly
there is a need for stringent laws that show
‘zero tolerance’ towards terrorism but the government should also be
mindful of its obligations to preserve
fundamental rights while enacting legislation on the subject.
2. Balancing individual freedom and security of the
state:
● Drawing
the line between individual freedom and state obligation to provide security is
a case of classical dilemma. It is up to the officers to ensure professional
integrity, follow the principle of objectivity and avoid any misuse.
3. Role of judiciary:
● There
is a greater role for the judiciary here to carefully examine the cases of alleged misuse.
● Arbitrariness
under the law should be checked through judicial review.