28 December 2023 – The Indian Express

Unlawful Activities Prevention Act

• India’s most stringent anti-terror statute, the Unlawful Activities Prevention Act (UAPA), is said to have some extremely harsh clauses. Because this country has suffered numerous blows from acts of terrorism, there is a great deal of flexibility in its design and operation. However, a disconcerting comparison of the National Crime Records Bureau’s “Crime in India” (for 2022) data about the duration required to file charge sheets under various laws is presented. Nearly 50% of UAPA cases include charge sheets that were filed at least a year after the FIR was filed; 15% of these charge sheets were filed more than two years later.

Unlawful Activities Prevention Act (UAPA): What is it?

• It was initially passed in 1967 in response to anti-national and separatist movements.
• It was revised multiple times, the most recent one in 2019 to add sections on cyberterrorism, individual designation, financing of terrorism, and property confiscation.
• It gives the National Investigation Agency (NIA) the authority to look into and prosecute UAPA cases nationwide.
• The death sentence and life in prison are stipulated as the gravest penalties for acts of terrorism.
• It permits the imprisonment of suspects for up to 180 days without accusation or trial, and it permits the accused to be denied bail until the court is convinced that they are innocent.
• Any conduct that questions or disregards India’s sovereignty and territorial integrity, or that encourages the cession or secession of any part of the country, is considered unlawful behaviour.
• Any act that threatens the unity, security, or economic stability of India or any other nation, or that results in or aims to result in the death, injury, or destruction of any property, is classified as terrorism.

What are the arguments supporting and against UAPA?

Arguments in Support:

• National Security: Supporters contend that in order to protect national security, the UAPA is essential. The law gives the government the authority to take preventative action against people and groups who support or engage in terrorism and other acts that endanger national security.
• Stan Swamy, a Jesuit priest and activist, was charged under the UAPA in January 2018 for instigating violence during a Dalit meeting. According to the government, he was involved in a plot to overthrow the government and was connected to a Maoist organisation that was outlawed.
• Counterterrorism Measures: The Uniform statute Against Terrorism Act (UAPA) is regarded as a comprehensive statute that gives law enforcement authorities the instruments they need to successfully fight terrorism. It makes it simpler to look into, prosecute, and stop acts related to terrorism by enabling the classification of people and groups as terrorists.
• For instance, under the UAPA, the government branded a number of people and groups as terrorists, including Lashkar-e-Taiba, Jaish-e-Mohammad, Masood Azhar, Hafiz Saeed, Zaki-ur-Rehman Lakhvi, Dawood Ibrahim, and others. This made it possible for the government to place penalties on them, freeze their assets, and forbid them from travelling.
• Preventive Detention: Under the UAPA, people who are suspected of engaging in illegal activity may be detained in order to prevent them from committing crimes. Advocates contend that this clause is crucial for averting any dangers before they arise, particularly in situations where there might not be sufficient proof for a formal trial.
• For instance, Safoora Zargar, a student activist, was reportedly a part of a plot to incite communal rioting in Delhi in 2020 and was arrested and held under the UAPA. The government said that she coordinated anti-CAA demonstrations and was a member of an outlawed extremist organisation.
• Global Commitments: Proponents argue that India’s international commitments to combat terrorism align with the UAPA. The law offers a legal basis for collaboration with other countries in the war against terrorism and is in line with international efforts to combat transnational terrorism.
• For instance, the UAPA was modified to include the terms of the United Nations Convention to Suppress the Financing of Terrorism, which was approved by the government in 2019. The amendment gave the government the authority to make financing terrorism illegal and to mandate that financial institutions report any questionable activity.
• Efficient Prosecution: UAPA is thought to be a strong legal instrument that makes it easier to prosecute those who engage in illegal activity. The law makes it simpler to establish evidence against anyone involved in terrorist operations by permitting the use of electronic evidence, intercepted conversations, and other contemporary investigation methods.
• For instance, the government prosecuted and found Ajmal Kasab, the only terrorist who survived the 26/11 Mumbai attacks, guilty under the UAPA. To demonstrate his role in the attacks, the government looked to forensic evidence, phone records, confessions, and CCTV footage. In 2012, he was given a death sentence and put to death.
• Deterrence: The UAPA is thought to function as a disincentive to people and groups who could be tempted to take part in actions that compromise the security of the country. The harsh penalties and legal repercussions imposed by the legislation are meant to deter anyone from engaging in or endorsing illegal activity.
• For instance, consider the 2001 attack on the Parliament, which left 22 people injured and 14 dead. The UAPA was utilised by the government to apply harsh sanctions to anybody deemed responsible for planning and carrying out the assault. In 2013, Afzal Guru was executed by hanging.

Arguments against:

• Violation of Fundamental Rights: The Constitution’s guarantees of the freedoms of expression, assembly, and association are violated by this statute. It can be used to target activists, journalists, students, and minorities who speak out against the government. It also criminalises protest and dissent.
• Absence of Safeguard Mechanism: The legislation does not provide sufficient protections or accountability measures to stop the abuse and misuse of authority by the government. It grants the federal government the exclusive authority to label people as terrorists without subjecting them to court scrutiny or providing them with an appeals process. Furthermore, it transfers the burden of proof to the accused, making it more challenging to get bail or have a fair trial.
• Additionally, in NIA v. Zahoor Ahmad Shah Watali (2020), the Supreme Court decided that it is not permissible for courts to consider bail under UAPA and to determine whether or not the prosecution’s adduced (cited as evidence) evidence is sufficient.
• Subsequently, the court in Thwaha Fasal v. Union of India (2021) eased the process for accused persons charged under UAPA clauses to get bail.
• Opposing the Federal system: The legislation goes against the nation’s federal system by interfering with state governments’ ability to keep the peace and look into criminal activity. Additionally, it threatens the NIA’s independence and autonomy, which are crucial for the organization’s role as a hub for counterterrorism.
• Low Conviction Rate: The law’s low conviction rate suggests that it is arbitrary and ineffectual in accomplishing its goals. Only 2.2% of cases filed under the UAPA between 2016 and 2019 resulted in a court conviction, according to the Union Home Ministry. This demonstrates that, rather than being utilised to stop terrorism, the legislation is used to harass and threaten innocent people.

What View Does the Judiciary Hold?

• The Supreme Court held in Arup Bhuyan v. State of Assam (2011) that a person’s membership in a prohibited organisation does not automatically implicate them. It may be carried out if someone uses violence, encourages others to use violence, or commits an act meant to cause chaos.
• According to the ruling in The People’s Union for Civil Liberties v. Union of India (2004), it will be counterproductive to violate human rights in the name of fighting terrorism.
• In Union of India v. K A Najeeb (2021), the Supreme Court held that constitutional courts have the authority to grant bail even in cases when they believe the accused has been violated in violation of their fundamental rights, even in light of the UAPA’s restrictions on release.
• The Mazdoor Kisan Shakti Sangathan v. Union of India (2018) ruling established the legitimacy of uprisings against parliamentary and governmental activities. Even yet, these gatherings and protests are meant to be nonviolent and peaceful.
• What steps ought to be implemented to reform the UAPA?
• Change the law to exclude constitutionally protected activities including nonviolent protests, dissenting viewpoints, and intellectual manifestations from the description of “unlawful activity” and “terrorist act.” The existing criteria can be used to criminalise any behaviour that the government finds objectionable or dangerous because they are ambiguous, subjective, and wide.
• The right to free speech under Article 19(1)(a) is unavoidably accompanied by dissent, as established in the 2008 case of Maqbool Fida Hussain v. Rajkumar Pandey.
• Transfer the Burden of Proof: Make sure that the prosecution, not the accused, bears the burden of proof. By placing the burden of proof on the accused to establish their innocence rather than the prosecution to establish their guilt, the UAPA law flips the traditional approach to criminal law. Because of this, it is very challenging for the accused to receive bail or a fair trial.
• Create an Independent Review process: Create an unbiased, independent review process to keep an eye on and contest government decisions to outlaw or label particular groups or persons as terrorist or illegal. The administration is exempt from providing justifications or supporting documentation for its acts, and the review tribunal is frequently skewed or controlled by the government, making the current system insufficient and ineffectual.
• Utilise the statute as a Last Resort: Make sure that, when handling security threats or civil disturbance, the UAPA statute is only applied as a last resort.
• The UAPA statute should not be applied to intimidate, harass, or silence members of civil society, journalists, academics, or human rights advocates, or to stifle reasonable dissent, criticism, or opposition.
• All citizens should have their fundamental rights and freedoms respected and protected by the government, and the best ways to settle disputes and settle grievances should be via discussion, compromise, and reconciliation.

Way Forward:

• Although the UAPA is an effective weapon in India’s war on terrorism, questions remain on how it may affect personal freedoms. Proponents emphasise counterterrorism and national security; opponents draw attention to possible rights breaches and a low conviction rate. For a more successful counterterrorism strategy in India, careful revisions, a dedication to due process, and the prudent application of the UAPA are necessary to strike a balance between security and civil liberties.