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.