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Unlawful Activities (Prevention) Act: An Analysis Of The Act

Our constitution gave wide powers to its citizens under article 19 [1]when it was being made but soon after its implementation government realized that the power under article 19 must be restricted to some extent which resulted into the very first amendment of the constitution in 1951 by adding the world "reasonable" before restriction and "public order" to keep a check on the fundamental rights

In 1963 the National Integrity and Regionalism Committee was setup by National Integration Council (NIC). On the recommendation of this committee constitution was amended for the 16th time in 1963 and article 19(2) was being amended again and towards "the sovereignty and integrity of India" were added to it in order to handle the domestic crises and the need to limit citizens' fundamental rights. As at the point of time we were facing internal and external aggression (i.e., demand to make Tamil Nadu a separate country and Indo- Chian war)

The 16th amendment act 1963 imposed three reasonable restriction which are as follows:
  • Freedom of speech and expressions
  • Right to assemble peacefully
  • Right to form association and union
After this amendment due to immense need of national security, "The Unlawful Activities Prevention Act 1967" was brought into force. This act gave vast powers to the authorities to take action against the organisations working against the association of India.

At that point of time our country was facing major security and terrorist issues. Due to Punjab terrorist activities TADA [Terrorist and Disruptive Activities (Prevention) Act] was introduced in 1985. The act defined what terrorist act and disruptive activities mean and put restrictions to grant bail.

The law gives wide power to law enforcement agencies for dealing with "socially disruptive" and national terrorist actions. A detainee was not required to be brought before a magistrate within 24 hours by the police. The accused person might spend up to a year in jail. In a court of law, confessions made to police officials were acceptable as evidence, with the onus of proof resting with the accused to establish his innocence. Courts were established specifically to hear cases and provide rulings involving those charged under this Act.

The witness identities might be kept secret, and the trials could take place behind closed doors. Police officials were also given the authority to seize the accused's property under Section 7A of the Act. Police are not permitted to administer third-degree or harassed everyone who wanted to speak, under the statute.

Since the Act had clauses that violated human rights, it received harsh criticism from these organisations. The criticism concentrates on the following facts: Under this Act, anyone who advocates for cession or secession in any region of India, whether directly or indirectly, is punishable. A person may be detained for a maximum of a year under the Act without being formally charged or placed on trial.

According to Section 20 of the Act, a detainee may spend up to 60 days in police custody, which increases the possibility of torture. The detainee may also appear before an executive magistrate rather than a judicial magistrate, who is a member of the police and administration service and is not answerable to the high court. The trial can be held secretly at any place and also keeps the identity of the witness's secret violating international standards of fair trial.

The accused person is no longer presumed innocent under the Act. According to Section 21 of the Act, a person is suspected of committing a terrorist act if weapons and explosives were found, they confessed to someone other than a police officer, they gave money to commit the act, or there is reason to believe they have the necessary funds or weapons to commit the act of the terrorist act or by suspicion that the person has arms or explosives or financial assistance to commit the act.

Unless the opposite can be demonstrated, anyone accused of a terrorist act will be assumed guilty. Confessions made to a police officer with a level higher than superintendent of police may be used against the individual making them as evidence. Section 19 of the Act bars persons accused under this Act to appeal except the Supreme Court

After the Gandhar Hijack and The Parliament attack POTA (Prevention of Terrorism Act) 2002 was introduced. In order to boost counterterrorism efforts, the Indian Parliament passed the Prevention of Terrorism Act, 2002 (POTA) in 2002. The Act was passed as a result of multiple terrorist assaults occurring in India, particularly in retaliation for the attack on the Parliament.

The Act, which was supported by the government's National Democratic Alliance, replaced the Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985-1995) and the Prevention of Terrorism Ordinance (POTO) of 2001. In 2004, the United Progressive Alliance coalition abolished the Act. The Act gave the designated investigating agencies special powers and defined what constituted a "terrorist act" and what a "terrorist" was. Certain safeguards were incorporated within the Act to make sure the investigative agencies' discretionary powers weren't abused and human rights abuses weren't committed.

Provisions Compared to TADA
The statute allowed for the detention of a suspect for up to 180 days without the submission of a chargesheet with a court, which is similar to the provisions in TADA. Nonetheless, a very significant difference was made since, unlike TADA, this act did not contain a clause that permitted preventative detention. Second, there is the issue of the accused's police admissions. Yet, under POTA, admissions given to a police officer were acceptable as evidence in court.

The ordinary law in India does not recognise confessions made to police as evidence admissible in court and allows a person to dispute such confessions in court. Law enforcement organisations were also permitted to hide the identities of witnesses under POTA Anti-Terrorism Day is observed annually on May 21. The POTA statute did, however, include some protections. A division bench of the relevant High Court will consider the appeal. Any decision on bail petitions or the judgement of the special courts established under this Act may be appealed.

But due to wide scale misuse of these act, TADA was repealed in 1995 and POTA was repealed in 2004

Now to fulfil the vacuum created by the repealing of these two acts, the Unlawful Activities (Prevention) Act 2004 was being introduced and some of the provisions of the POTA were soaked in the Unlawful Activities (Prevention) Act 2004. That's why UAPA is also known as POTA 2.0

UAPA is an antiterror legislation and NIA is informant body of it which is counter terrorism agency of the country. The main purpose of the act deals directly with the "Unlawful activity" This amendment gave the new definition of terrorist organisation and "terrorist act" from the POTA. The concept of "Terrorist gang" was also introduced.

This amendment gave the new definition of "terrorist gang" which empowered the authorities to investigate and arrest a group of people who are involved in unlawful activities and the central government terms them as terrorist gang

After this in 2008 again the act was amended and the major change was increased into the time period of the custody of accused without a charge sheet. If any person is being arrested then can be detained for 180 days which may extend further and till then his right to bail doesn't arise which is in direct conflict with sec. 167 of CrPC as under this provision the maximum time period for filling charge sheet is 90 days and after 90 days accused have rights to bail and cannot be detained further.

Sec.43 D of UAPA says that if the investigation is incomplete with 90 days then accused custody will extend automatically for another 90 days as compared to section 167 of CrPC and resulting into non arise of mandatory bail.

The act was again amended and added offences that threaten the country's economic security in the definition of the terrorist act by reusing the fund from legitimate or illegitimate sources. This was added to fulfil the obligation of FATF

The most recent amendment of UAPA was did in 2019 which gave rise to many controversies as the amendment gave direct power to government to control, monitor and grab any decent. The amendment included 'individuals' in the meaning of the 'unlawful activities' as given in sec 35 of chapter 6 of UAPA-19.

UAPA defines as any activity of individual or organisation which intends to bring cession or separation or disrupt or question the sovereignty/ territorial integrity of India. Under this amendment the government has been given "Power" to designate an organisation as a terrorist organisation and individual as well:
  1. If commit or participates in acts of terrorism
  2. Prepares or promotes terrorism
  3. Otherwise involve in terrorism
On all these grounds an organisation or individuals can be designated as terrorist:
  1. The reason for changing the definition was that as soon as an organisation is being identified or banned by the government as a terrorist, then the members of that organisation start forming new organisation or start functioning individually.
  2. Second major change is the detention period, under new UAPA 2019 if a person is being arrested by the authorities, then the minimum period for which he can be detained until the chargesheet is filed is 180 days which may extend further and till then his right to bail doesn't arise. Sec 34D of UAPA says that if the investigation is not complete within 90 days and his right to bail would not arise under section 167 of CrPC.
  3. In third major change is the addition of 4th schedule in the UAPA. This schedule gave power to govern terrorist to any individual or organisation. The new amendment does not contain any due process of law, which gave rise to new controversies. The only remedy available is an appeal to government within 45 days for the decodifying of the name from the list (notification).

Case Laws
Shri Indra Das v. State of Assam[2]
The case's facts state that Anil Kumar Das vanished on the evening of November 6, 1991, and his body was found in the river Dishang on January 19, 1992, two months later. The appellant was one of five people accused of causing his death. The FIR did not name the appellant. No witness for the prosecution has implicated the appellant in any way. Charges were framed more than four years after the charge sheet was filed, which was filed in this case nine years after the date the offence was committed. Other than the confessional statement, there is no proof against the appellant. The appellant later denied making the purported confession.

Nothing else in the record supported the supposed confession. In Arup Bhuyan's case (above), we determined that confessions are a very flimsy kind of evidence and that it is risky to convict someone on their basis without sufficient corroborating evidence. There is no corroborative evidence in the current situation. Nonetheless, the appellant has been found guilty in accordance with Section 3(5) of TADA, which makes even being a member of a prohibited organisation a crime, and has been given a five-year harsh jail sentence and a Rs. 2000 fine.

In this Supreme Court stated that on a plain language of provision mere membership of a banned organisation criminal has to be read down and we have to deport from the literal rule of interpretation in such cases otherwise their provision will become unconstitutional as violation of article 19 and 21 of the Indian Constitution. It is true that ordinary we should follow the literal rule of interpretation while constructing a statutory provision but if the literal interpretation makes the provision but if the literal interpretation made the provision unconstitutional, we can depart from it so that the provision becomes constitutional. The Act defines the term "membership".

K.S. Puttaswamy v. Union of India Writ Petition [3]
To decide whether privacy is a virtue that is protected by the constitution, the Supreme Court's nine justices convened. The issue reaches out to the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic ideas on which our Constitution has been formed and their ramifications for a way of life it aspires to defend. Challenges to constitutional interpretation are presented by this case. Our ideas of liberty and the entitlements that follow from its protection would be significantly redefined if privacy were to be viewed as a protected constitutional asset.

The International Declaration of Human Rights from 1948 expressly states in Article 12 that the right to privacy is one of the fundamental human rights. "No one should be the object of wilful intrusion into his or her private life, family, home, or communications, or of attacks on his or her honour or reputation. Everyone is entitled to legal protection from these types of intrusions or assaults.

The following points were highlighted by the Court in its ruling:
It was decided that as both state and non-state entities might now, thanks to technology, cause privacy problems, both of them can be accused of violating people's privacy. The Court further ruled that, in the internet age, informational privacy is not a fundamental right and that, when a person exercises his right to data control, it may materially violate his right to privacy. Additionally, it was stated that the Supreme Court judges' agreement throughout the years has caused the scope of Article 21 to continually expand, giving rise to a multiplicity of rights has been included with in article 21

On August 24, 2017, a 9-judge Supreme Court bench issued its decision in this historic case, affirming the basic right to privacy derived from Article 21. The right to privacy is an inherent and essential component of Part III of the Constitution, which protects fundamental rights, according to the court. The dispute in this area mostly emerges between a person's right to privacy and the government's legitimate desire to enforce its policies, and while doing so, a balance needs to be maintained.

Additionally, the SC ruled that the right to privacy is not a given and that any invasion of private by state or non-state actors must pass the three criteria listed below:
  1. Legality Legitimate
  2. Goal
  3. Proportionality

Akhil Gogoi v. the State (National Investigation Agency) and ors.[4]
Gogoi, an independent legislator representing Assam's Sibsagar and President of Raijor Dal party was arrested in December 2019 when the protests against the Citizenship Amendment Act were at their peak.

He was booked under various provisions of UAPA. Subsequently even while incarcerated he contested and won the assembly elections in 2021, defeating BJP's Surabhi Rajkonwari. He was subsequently released after spending one and half year in detention for his alleged role in anti- CAA agitation when a special NIA court discharges him and three other persons on the ground of the non- availability of material on record on basis of which charges could be framed.

The arguments raised above cause this appeal to be rejected. No intervention is necessary with regard to the contested order, issued by the learned Special Judge Assam, Guwahati resulting from Special NIA which denied the bail request. This Court upholds the aforementioned order because the charge sheet against the appellant contains sufficient evidence, and as a result, the Court does not see any flaws in the conclusion made by the learned Special Judge (NIA) that there are reasonable grounds to believe that the allegations of offences punishable under Chapters IV and VI of the UA(P) Act against the appellant are true on their face.

The appellant cannot be freed on bail due to the express bar imposed by section 43D (5) of the UA(P) Act. Hence, the Court grants the following order:

For the aforementioned causes, the current appeal is rejected since it lacks any merit.

It should be noted that the trial of the case will not be impacted by any initial perspective or opinion given during the process of this judgement.

Waheed-Ur-Rehman Parra v. Union Territory of J&K[5]
Initial Report of Information A FIR was filed against Syed Naveed Mushtaq and others at P.S. Qazigund on January 11, 2020, in accordance with Sections 18, 19, 20, 38, and 39 of the UAPA read with Sections 7/25 of the Arms Act, 1959 (hereinafter referred to as the "Arms Act").

The National Investigation Agency, sometimes known as "NIA," began an investigation into this FIR in accordance with Sections 6(4) and 8 of the NIA Act, and the FIR was subsequently re-registered. The NIA filed the second supplemental chargesheet in the FIR before the Court of the Third Additional Sessions Judge, Jammu (Special Judge NIA Act), arraying the appellant as accused in the case. The appellant was arrested in the aforementioned FIR

The respondent in this case filed an application with the trial court under Sections 44 of the UAPA and 173(6) of the Cr.P.C., seeking the designation of five witnesses as protected witnesses and the exclusion of certain papers identified as D-1 from the materials to be provided to the accused. The trial court approved the application submitted by the respondent in this case by order noting that given the sensitivity of the case, it appeared that the witnesses' and their families' lives and property were in danger.

Therefore, the statements of prosecution witnesses designated as A-1 through A-5 were retained in a sealed cover in view of the scope and purpose of Section 44 of the UAPA. In addition, the documents designated as D-1 (which were likewise in a separate sealed cover) were set apart from other records and contained the testimony of protected witnesses in a sealed cover.

We believe that the provisions of Section 173(6) of the Criminal Procedure Code read with Section 44 of the UAPA and Section 17 of the NIA Act stand on a different plane with different legal implications as compared to Section 207 of the Criminal Procedure Code.

This is based on a conspectus of the aforementioned legal position and the limited contours of the facts required for determination of the issue. We say this since the first order was accepted at the door. The accused was not given any notice. Protecting witnesses is the goal of Section 44, UAPA, Section 17, NIA Act, and Section 173(6).

They have the characteristics of a legal witness protection. Such an order may be issued if the court determines that disclosing the witness's identity and residence could jeopardise both the witness and his or her family (2019 17 SCC 299). They also relate to distinct rules established for crimes covered by unique laws. These factors were taken into account by the trial court when it issued the ruling dated 01.06.2021, and even the appellant has no complaints about it.

UAPA is not the only act which has the provisions Maharashtra control of organised crime act 1999 also has the provision where accused is not allowed to get bail before 6 months

In Shreya Singh v UOI[6] the supreme court had identified vagueness as one of the grounds if the IT act the law imposed an unreasonable restriction on online speeches

There is major problem with the new amendment in the UAPA as follows:
  1. If a person is being arrested under UAPA then there is no scope of bail until 180 days because his rights to bail won't arise before 180 days and this period may also extend by 180 days which is a clear violation of article 21 of the constitution
  2. To remove an individual name the one has to appeal to the same authority within 45 days who had included the name of that person in the list of terrorists. Which is a clear violation of the principle of natural justice "Nemo Iudex in Causa sua" and is an arbitrary act.
  3. Once a person is being declared as terrorist then no civil rights remain with him.
  4. The act does not specify what is terrorism or terrors act which is lack in

The main purpose and aim of the government is to protect the rights of the citizens and to provide security and safe environment. But on the name of providing security taking away of fundamental rights is on unfair barter system. Government before detaining someone under this act must provide conclusive evidence as to why they think the individual or organisation is put in that list.

Also, appeal shall lie to the court but not the same authority for a transparent and unbiassed action could be taken. It is the legislature which ultimately requires to replace the arbitrary and pseudo-democratic provisions for the purpose of revamping the spirit of rule of law and participatory justice in consistent with the Constitution of India.

  1. Freedom of Speech and Freedom
  2. 2011 S.C.R 289
  3. (Civil) No. 494 of 2012
  4. Cr1.A /192/2020
  5. Crl.A-9031/2021
  6. Criminal no.167 of 2012

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