Balancing Security and Liberty: Reforming UAPA For A Democratic India

Introduction

It is crucial to strike a careful balance between protecting national security and preserving basic civil liberties in any democracy. India’s primary legislative tool for combating terrorism and illegal activities is the Unlawful Activities (Prevention) Act (UAPA), 1967, which it uses to address complex and changing threats.

In order to solve these serious issues, a strong legal framework is necessary, and this paper seeks to suggest workable and practical changes to the UAPA. In order to minimise unnecessary harm to those participating in democratic debate or civic engagement, it is important to maintain its effectiveness against real threats while simultaneously fortifying safeguards.

The UAPA: Understanding its Purpose and Evolution

The original purpose of the UAPA was to stop illegal actions that endangered India’s territorial integrity and sovereignty. Its scope has been significantly expanded over time, especially by major changes in 2004, 2008, and 2019, to cover “terrorist acts,” the classification of persons as terrorists, and increased authority for investigative organisations such as the National Investigation Agency (NIA) [1].

The ongoing attempt to adjust to the changing nature of security threats is reflected in these legislative revisions. The goal of this discussion is to pinpoint ways to improve its use for increased efficiency, responsibility, and fairness.

Key Changes in the 2019 Amendment:

• Individuals can be declared terrorists: Earlier, only organizations could be declared terrorist. Now, the central government can label individuals as terrorists without a court trial.
• No requirement of prior approval: The National Investigation Agency (NIA) can now seize property linked to terrorism without state government approval.
• Expanded investigative powers: NIA officers of the rank of Inspector or above can now investigate UAPA cases (earlier, it was limited to Deputy Superintendent or above).

Opportunities for Enhancement: Addressing Current Challenges

Although the UAPA plays a vital role in counterterrorism, there are some areas that may use modification to guarantee that it is consistent with constitutional principles and to reduce the possibility of unforeseen repercussions.

Ambiguity in Definitions

First, the Act’s definitions, especially those of phrases like “unlawful activity” and “terrorist act”, have been the focus of much debate. Their scope can occasionally result in broad interpretations, which raises questions about their possible use to people whose acts fit within the parameters of peaceful democratic participation or critical expression, even though they are intended to offer flexibility in confronting a variety of dangers [2]. Similar to this, the procedure for labelling people “terrorists” might need more open and reviewable norms to guarantee strong due process and impartiality.

Stringent Bail Provisions

Second, the bail provisions—particularly Section 43D(5)—are intended to prevent re-offending and safeguard ongoing investigations. But the rule that says courts must refuse bail if the accusation seems “prima facie true” (true at first glance) is often used too strictly. Following its decision in NIA v. Zahoor Ahmad Shah Watali [3], the Supreme Court made it extremely difficult to obtain bail under the UAPA, which commonly led to extended pre-trial imprisonment.

The wider issue is still there even though the later ruling in Union of India v. K.A. Najeeb [4] provided some respite by acknowledging that prolonged detention may in and of itself warrant bail. When cases involve complex investigations and charge sheets can take up to 180 days to file, the accused’s freedom is often at risk. In many cases, the act of lengthy detention itself may have a chilling impact on public involvement in democratic processes, particularly if it is based on nebulous or weak claims.

Conviction Rates and Procedural Efficiency

Thirdly, conviction rates under UAPA have stayed low [5] despite broad investigative capabilities. The National Crime Records Bureau (NCRB) reports that while there are a lot of arrests, there are disproportionately few convictions [6]. This calls into question whether the Act is always applied prudently, the quality of the evidence, and the speed of investigations. When people are detained for an extended period of time without being given a fair trial, the phenomenon known as “the process becomes the punishment” becomes particularly concerning.

Authentic data emphasises this issue: Out of 8,719 cases filed under the UAPA between 2014 and 2022, only 215 were found guilty and 567 were acquitted. Acquittals have continuously surpassed convictions in this trend; in 2022, there were 153 acquittals, the most since 2014, while there were only 36 convictions in the same year [6a]. Just 2.2% of cases filed under the UAPA between 2016 and 2019 resulted in court convictions [6b].

Additionally, as reported by The News Minute, just 235 of the 8,371 people arrested under the UAPA between 2015 and 2020 were found guilty, meaning that the overall conviction rate, based on the number of people arrested, was only 2.8%. Accordingly, approximately 97.2% of defendants in UAPA cases are frequently imprisoned for protracted periods of time before being found not guilty [6c]. The aggregate numbers show limitations in state police forces looking into cases related to terrorism, even if the National Investigation Agency (NIA) has a greater conviction rate (almost 90%) [6d].
 

Absence of Compensation Mechanism

Lastly, it is noteworthy that there is no official compensation or remedy for unjust detention. After years of incarceration, people who are ultimately found not guilty frequently suffer permanent social, psychological, and financial repercussions. One major hole in the legal system is the absence of a legislative framework that might provide monetary compensation for the wrongful detention or extended incarceration [7]. In addition to having an effect on people’s lives, this disparity undermines public confidence in the justice system, especially when the law is seen as a means of silencing views that contribute to democratic discourse.

Proposing Constructive Reforms: Enhancing Effectiveness and Justice

To ensure the UAPA remains both effective and just, a set of forward-looking reforms is essential.

• Refining Legal Definitions

  Important terms like “terrorist act” and “unlawful activity” need to be clarified to only include actions that directly and seriously endanger national security. Activities that are non-violent or protected by the constitution shouldn’t be included in legal language. There should be a time-bound, independent review process to challenge such designations, along with objectively stated criteria for designating people or organisations.
   

• Reforming Bail Provisions

  It is essential to amend Section 43D(5) to provide judges more discretion. Courts ought to be able to issue bail when investigations are largely finished or when there is little real danger that the accused will falsify evidence or avoid trial. The preservation of judicial discretion is necessary to prevent the presumption of innocent from becoming illusory. It would also improve procedural efficiency and protect liberty to require accelerated hearings on bail petitions.
   

• Ensuring Timely Investigations and Trials

  The creation of fast-track courts just for UAPA matters would greatly increase the rate at which cases are resolved. At the same time, it is necessary to establish more precise standards for the prompt filing of charge sheets and the conclusion of investigations. The Act’s abuse as a punitive instrument can be reduced by promoting thorough evidence gathering and prompt judicial review.
   

• Institutionalizing Judicial Oversight

  A mandatory independent judicial review process ought to be implemented for detentions that last longer than a specified period, such ninety days. This oversight would support accountability and act as an essential safeguard against arbitrary detention. In order to prevent due process from being compromised in the name of security, judicial magistrates and sessions judges should be given the authority to review case materials more thoroughly during the remand phase.
   

• Providing Compensation for Wrongful Detention

  Establishing a system for compensating people who are unfairly jailed under the UAPA and subsequently found not guilty is urgently needed. This framework ought to take into account elements including the length of incarceration, financial loss, damage to one’s reputation, and psychological suffering. Based on the Malimath Committee’s recommendations, such a framework might include a compensation fund and an impartial adjudicating authority. Acquitted individuals’ dignity will be restored, and systemic responsibility will be encouraged, if the personal consequences of unjust detention are acknowledged.
   

Anticipated Positive Outcomes of Reform

There would be significant advantages to putting these measures into practice. They would declare India’s dedication to the principle of justice, liberty, and the rule of law, which are the cornerstones of its constitutional structure. Better collaboration between citizens and state entities would be made possible by increased public confidence in the counterterrorism legal framework.

The efficiency of the law would be increased by a system that rewards more thorough investigations and prompt trials, which would inevitably result in higher conviction rates in real cases. By resolving issues brought up by international human rights forums, India can improve its democratic reputation around the world. Above all, by incorporating safeguards for those involved in lawful civic activities, the legal system can prevent unintentionally suppressing democratic participation under the pretext of national security.

Conclusion

India’s national security system still relies heavily on the Unlawful Activities (Prevention) Act. It must, however, be accompanied by extraordinary safeguards to match its incredible powers. The reforms proposed here are not intended to weaken the UAPA, but to ensure that its application adheres to the values of openness, due process, and constitutional integrity.

The legislation can more successfully concentrate on real concerns while upholding individual rights by improving procedural clarity, guaranteeing prompt reviews, and strengthening oversight measures.

Justice, decency, and the freedoms that are essential to a thriving democracy will be upheld with the support of such deliberate improvements. By doing this, India can fortify its security forces while guaranteeing that the law continues to serve as a protective barrier rather than as a weapon misapplied against the same voices that uphold and enhance democratic discourse.

References:

1. Unlawful Activities (Prevention) Act, 1967 (as amended).
2. Nyaaya.org, What should you know about the UAPA law in India? (www.nyaaya.org)
3. Supreme Court Observer, Bail Under UAPA: Court in Review (www.scobserver.in). For the judgment: National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.
4. Union of India v. K.A. Najeeb, (2021) 3 SCC 713.
5. A. Agarwal, Low Conviction Rate Under UAPA: Is Law a Tool for Harassment?, The Quint (Nov. 1, 2022) (www.thequint.com)
6. National Crime Records Bureau, Crime in India 2022 (Ministry of Home Affairs, Government of India, 2023) (www.ncrb.gov.in)
7. Ministry of Home Affairs, Government of India, Lok Sabha Unstarred Question No. 2376 to be Answered on 6th August, 2024 (Data from 2014-2022). See also The New Indian Express, UAPA cases: Highest acquittals at 153 in 2022 (Sept. 8, 2024) (www.newindianexpress.com)
8. Drishti IAS, Low Convictions Rate Under UAPA Act (Feb. 11, 2021) (citing Ministry of Home Affairs data presented in Rajya Sabha and 2019 Crime in India Report by NCRB) (www.drishtiias.com)
9. The News Minute, 97.2% of UAPA accused jailed for long periods and eventually acquitted, study finds (Oct. 8, 2022) (www.thenewsminute.com)
10. The New Indian Express, UAPA cases: Highest acquittals at 153 in 2022 (Sept. 8, 2024). See also Times of India, Conviction rate in cases registered by Centre under UAPA 94.17%: MoS Home Rai (Aug. 3, 2022) (www.newindianexpress.com, www.timesofindia.indiatimes.com)
11. V. Kumar, Compensation for wrongful prosecution, incarceration and conviction, Bar & Bench (June 4, 2022) (www.barandbench.com). See also: Supreme Court Observer, HC’s Power to Grant Compensation for Wrongful Detention (www.scobserver.in)
12. Testbook.com, Malimath Committee – History, Objectives And Recommendations (www.testbook.com). See also: Law Finder, Legal Provisions On Compensation To Victims Of Crime (www.lawfinderlive.com)
13. United Nations Human Rights Office of the High Commissioner, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (www.ohchr.org). See also: Permanent Mission of India to the United Nations, India’s Statement at the 58th Session of UN Human Rights Council, Geneva (PMIUN, Feb. 24, 2025) (www.pmindiaun.gov.in)

Written By: Arbab Haider, Department of Law, AMU