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Critical Analysis of the Unlawful Activities Prevention Act,1967

The history of UAPA can be traced back to the Criminal Law Amendment Act of 1908, which was utilised during the British Empire's colonial era to demolish the Indian freedom movement by prosecuting its leaders, by adding the word unlawful association for the first time.

The administration chose to maintain the provisions of the Criminal Law Amendment in place when India attained independence in 1947. However, the Nehru administration began using the clause against its own citizens, specifically against critics of the Indian National Congress.

However, in the years that followed, the Indian judiciary that restrictions on fundamental rights can only occur in the most extreme and extremely uncommon situations, and that any, executive order, or other action that seeks to restrict those rights will be deemed unconstitutional. The judiciary determined that Section 124A of the Criminal Law (Amendment) Act was unconstitutional on the basis of these rulings because it placed arbitrary and unreasonable restrictions on the citizens' ability to exercise their fundamental rights.

In order to circumvent these limitations imposed by the Indian judiciary, the first amendment to the constitution was introduced. Under the umbrella of "reasonable restrictions," the phrases "public order" and "friendly relations with states" were added to Article 19 of the Indian constitution. As a result of such an amendment, the government began using the term "public order" arbitrarily in place of the now repealed 124A section of the Criminal Law (Amendment), and it began rounding up political opponents on the grounds that they had violated "reasonable restrictions."

The subsequent years saw a further rise in the government's arbitrary behaviour; perhaps the most notable instance of this was in 1963, when India was at war with China and the Parliament approved the 16th Amendment to the Constitution to repress local opponents of the government's actions and the conflict with China.

According to the 16th amendment, which further modified Article 19 the government may impose "reasonable" restrictions on the interest of the "sovereignty and integrity" of the state, this provision was essentially designed to give the government total freedom to arrest any individual or group who claimed autonomy or demanded to secede from the Union.

The government presented the first draught of the Unlawful Acts (Prevention) Act on the floor of Parliament against the backdrop of the 16th amendment to the Constitution. Both the first and second draft of the UAPA bill was taken off the house floor due to widespread protests. The UAPA bill was passed into law in 1967. In order to prevent illegal activities that would jeopardise India's integrity and sovereignty, the UAPA was passed in 1967.

It granted the Central Government the power to label as an unlawful organisation any organisation that carries out "unlawful acts." More than a dozen changes led to the current iteration of this statute. It was initially only meant to make crimes out of deeds that fell under the Act's definition of "unlawful activities" in Section 2. One of the strongest anti-terror laws, the Prevention of Terrorist Activities Act (POTA), was repealed in 2004.

The UAPA became India's main anti-terror law when it was updated in the same year to include several of the POTA's provisions verbatim. UAPA was not a terror law before this amendment. With this modification, a new offence known as a "terrorist act" was added to the list of crimes that are prohibited. This gives the government the ability to impose ban on groups for engaged in "terrorist acts."

The most recent and contentious amendment, which allows the government to label anyone as a terrorist, was introduced in 2019 and it will be covered in more detail later in the paper.

The 2019 Amendment to UAPA

In 2019, a change was made to the UAPA that resulted in two modifications. First, it gave the National Investigation Agency total authority to conduct investigations and operate in any region of the country without first obtaining consent from the State Governments and local authorities. Federalism may take a hit as a result of this shift.

Second, it provided the Central Government unrestricted authority to add the name of any "person" to the list of terrorists without providing any justifications. Even when someone has no connection to any terrorist organisations, being labelled a terrorist by an executive can have a significant negative impact on that person's life.

In the case of Sajal Awasthi v. Union of India, this amendment's constitutionality was contested. The modification to the UAPA that was made in 2019 allows the Central Government to designate any person as a terrorist without identifying any concrete criteria that must be met before doing so was challenged by the petitioner as being unconstitutional.

According to him, this provision is a clear violation of Articles 14, 19, and 21 of the Indian Constitution. The fundamental right to life with dignity includes the right to reputation under Article 21 of the Indian Constitution, and it "does not comply to procedure" to label someone a terrorist before the trial even starts or to apply the judicial mind to it.

Overview of the Arbitrary Provisions of UAPA

Meaning of Terrorist Act

Following the abolition of POTA, an amendment to the UAPA was made in 2004 that added this phrase as a separate offence. The term "terrorist act" is defined under Section 15. An individual or organisation will be considered to be engaged in terrorist activities if they are involved:
"In making or using bombs, dynamite, or via any other means of any sort, which are likely to endanger the populace, such as other explosive substances, then that individual or organisation will be said to be engaged in terrorist activities".

The term "any other means of whatsoever nature" provides those in authority unrestricted power to take advantage of and harass defenceless people. The word "likely" gives the government the authority to detain somebody before they actually does something.

The term "any other methods of whatever nature" is highlighted because the government has the authority to classify any physical act as a terrorist act. Setting such a low standard for what constitutes terrorist activities is a capricious tactic the government uses to repress dissenters.

Arrest under UAPA

According to Article 22 of the Constitution, there is a constitutional protection against arrest and detention. It stipulates that every individual who is detained or arrested has the right to learn the reasons for their custody or arrest as quickly as feasible. Within twenty-four hours, the Police are expected to present any arrested or detained individuals to the Magistrate, depending on the situation.

Additionally, while making an arrest without a warrant, police are required by Section 50 of the Criminal Procedure Code to immediately inform the suspect of the charges and crime for which he is being detained. An arrest may be made in accordance with UAPA without providing the accused with a reasonable justification.

The arresting officer simply needs to let the suspect know what charges have been brought against them "as quickly as possible." A police officer or other ostensibly authorised figure may abuse their position and keep the person in custody for longer than is customarily done or what is required by law because there is no established legislative time limit for the phrase "as soon as maybe."

Period of Detention

In order to expand the discretionary powers associated with arrests and detention, the imprisonment period was extended from 90 days, which was already extremely high by global norms, to 180 days by the 2008 amendment. It is not standard procedure for judges to extend detention beyond 90 days, but the government prosecutor can do so by demonstrating that the investigation is progressing after the initial 90 days.

Generally speaking, in addition to demonstrating that the investigation is ongoing, a prosecutor must also demonstrate that there is a considerable risk in releasing the arrested person from custody. Contrarily, Section 167 of the Criminal Procedure Code states that "a person cannot be imprisoned for more than 90 days if he is suspected of an offence punished by death, life imprisonment, or a sentence of not less than 10 years, and for 60 days if he is accused of any other offence".

Presumption of Innocence

One of the main defences for the rule of law and human rights is the right to a fair trial. One of the components of the right to a fair trial is the presumption of innocence, from which there can never be a deviation. The UAPA violates this part of the right to a fair trial by assuming the guilt of the accused unless the accused can demonstrate his innocence.

According to Section 43A of the Act, in the absence of evidence to the contrary, the accused's guilt will be presumed by the court" if definitive evidence is discovered against her/him/them. This also represents a reversal of another international principle of criminal law, which states that the burden of proof for guilt rests with the prosecution.

Significantly Lower Requirement to Establish Means Rea

The act has reduced the standard for proving mens rea, or a guilty mind, in regard to a terrorist activity, as that term is defined by the act. Under this law, the government merely needs to show that the person or group is "likely" to strike terror in the people in order to prove mens rea. Using the foreign person delivering a speech against the government as an example, the government could detain him under this legislation even before he delivers the speech on the grounds that it is likely to incite fear among the populace.

The Supreme Court ruled in the landmark case of Joginder Kumar v. State of UP that "no one can be arrested because doing so is legal for the police officer or the government" in respect to the rules governing arrest and the authority of the executive to carry them out. Having the ability to make an arrest is one thing, but having a reason to use that power is quite another. The UAPA breaks the Supreme Court's decision, as the government is permitted to detain anyone without having to give a valid reason.

Judiciary's Approach
The restrictive approach is taken in the Watali Judgement

In the case of National Investigation Agency v. Zahoor Ahmad Shah Watali, the Supreme Court applied a limited interpretation to the UAPA's already limited provision for regular bail. The Court said that it is not permitted for courts to indulge in a detailed study of the prosecution case while considering bail under UAPA and to determine whether the evidence presented by the prosecution is sufficient or not, which posed still another restriction on judicial engagement .This would lead to a nearly total ban on the granting of bail under the UAPA, depriving the accused of a fair trial, their right to request bail, and their freedom from a lifetime of pre-trial detention.

Union of India v K.A. Najeeb

In the case of Union of India v. K.A. Najeeb, the Watali decision's stringent approach was abandoned by the Court in favour of a more reasonable and equitable approach to providing bail.[1] In this decision, the Supreme Court supported constitutional courts' jurisdiction to grant bail when there has been a breach of fundamental rights, even when there are limitations on granting bail.

The Court also pointed out that strict bail standards in special laws like UAPA have been "mainly justified on the touchstone of timely trials to ensure the protection of innocent people." In this instance, the Court determined that constitutional rights might now be taken into account in situations where the bail jurisprudence under UAPA is in doubt by prioritising them over the legislative restriction under Section 43D (5). But the court in this instance gave the offender bail while adopting a liberal stance "due to the lengthy term of incarceration and the unlikelihood of the trial being concluded anytime in the near future."

In this case, the Court acknowledged the accused's entitlement to a speedy and fair trial under Article 21. In other words, the constitutional guarantees can only be taken into consideration as a valid ground to grant bail in cases where "there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence."[2] This means that at the initial stages of the proceedings, the legislative position opposing the granting of bail is anticipated to be appreciated by the Courts.

This allows the use of constitutional rights only as corrective remedies in situations where there has already been a serious infringement. Even though it differs from the Watali decision in that it is more liberal, this approach just permits the accused's fundamental rights to be respected in cases when they have already endured a protracted term of pre-trial detention.

As a result, even while the Court highlighted the ineffective application of Section 43D (5) and the ensuing grave violation of rights, it did not provide a safeguard for the accused's rights as required by the Constitution and instead only offered the accused a remedy.

The Recent Instances Of The Grant Of Bail By Various High Courts

Recently the Delhi High Court granted bail to Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, three activists who were accused of "conspiring to ignite the Delhi riots" and charged under the strict guidelines of the UAPA.[3]It was decided that until all the elements required under the UAPA are evidently present, protests and opposition against the government cannot be deemed "terrorist activities." 35 The Court in this case emphasised how the State's use of UAPA to repress dissent has made it difficult to distinguish between legitimate protest and terrorist activity.

Furthermore, the Guwahati High Court granted bail to a man on October 6, 2021 after he claimed the Taliban in Afghanistan are not terrorists, in a Facebook post[4]. In this case, the court noted that a "terrorist act" cannot be deemed to have been committed based solely on Facebook posts absent additional incriminating evidence. This demonstrates that the higher bar that must be satisfied for acts to qualify as terrorist activities under UAPA.

The Bombay High Court stated that the fundamental purpose of Article 19(1) (a) is "simple discussion and even advocacy of a certain cause, however unpopular". Only when such talk or advocacy rises to the level of provocation does Article 19(2) come into play.[5] Therefore, simple advocacy for a cause is insufficient to qualify as a terrorist act under UAPA and cannot be held to such harsh guidelines. This raises the bar even higher for an undertaking to meet the requirements of the UAPA.

As a result, the courts have applied a more liberal approach for granting bail under the UAPA and have included a number of accused person's rights under the strict limitations imposed by the Act. It is nonetheless undeniable, though, that under UAPA, the decision to grant bail is still mainly discretionary, and the Act's provisions leave room for abuse by the government and judicial independence. This puts the people at the mercy of the judiciary's ability to stop the abuse of the law.

Furthermore, while the courts' approach recognises a number of the accused's rights, it is nevertheless primarily concerned with offering a remedy. This means that there must already be a breach of a basic right for the courts to step in and defend the rights of the accused.

Thus, the accused cannot be protected by the courts from the abuse of the UAPA; rather, they can only defend their rights from being infringed further. Therefore, the removal of UAPA is essential since its provisions permit blatant abuse and the citizens' access to judicial safeguards is limited or non-existent.

Suggestions:
  1. If periodic evaluation of the Act and its provisions is made mandatory, there will be a major reduction in the possibility of the centre abusing its significant powers or making rash use of the UAPA provisions. Several nations already use this review approach to provide an efficient system for keeping an eye on how terrorist laws are being implemented.
     
  2. To achieve fair justice, a compensation plan should be established for persons who were unjustly accused under the Act. As such custody would effectively be preventive detention without trial, the accused entities should also be allowed to seek compensation if they are incarcerated without prosecution.
     
  3. There must be a tremendous effort made to reform the police, which should involve raising community and religious awareness and working to reduce the vast arbitrary powers that the police wield.
     
  4. A committee must be established so that the provisions of the act are not misused by the government in power, whose members are not just chosen by the Centre itself. To guarantee more equitable operation, the Committee may include more members, with a sitting or recently retired High Court judge serving as its chairman. The committee can be charged with determining whether a given situation falls under the Act and with monitoring any violations of a defendant's human rights that occur throughout the course of the prosecution.
     
  5. Establishing separate fast track courts to handle the cases under UAPA.

Conclusion
The aim of this research paper was to highlight how UAPA violates people's fundamental rights. One of the arguments made in support of enacting this legislation is that it a law is that it advances "national security" in the name of the Directive Principles of State Policies.

Critics of the law, meanwhile, contend that all laws, legislation, and statutes must be in accordance with the fundamental rights of the country .The UAPA not only infringes the right to freedom of association but also fails to distinguish between legitimate political dissent and criminal sedition.

The state is required to defend political dissent as a fundamental right, but this statute does the exact opposite.

Law cannot prevent terrorism on its own, but if it is not applied in letter and spirit, it may be used against the weak by those in positions of power, as was the case with UAPA. Making laws that result in the inclusion of minorities, promote social and economic development, address the issue of unequal development, allow for political dissent and debate, etc. are all crucial in order to stop the threat of terrorism in its tracks.

Without a doubt, the Unlawful Activities Prevention Act in its present form is inadequate for solving the issues it set out to remedy. The fact that the Centre has been given extremely broad powers that are prone to abuse causes severe complications rather than boosting the nation's security. However, there should unquestionably be zero tolerance for terrorism. Therefore, it must be ensured that, in the interests of justice and security, the measures and provisions to combat terrorism do not go beyond what is essential.

The Unlawful Activities Prevention Act of 1967 has the power to improve the future security of this country and its people, if used appropriately. Only by adopting a reasonable and balanced strategy will this be accomplished.

End-Notes:
  1. Union of India v K.A. Najeeb (2021) 3 SCC 713
  2. Aseem Kumar Bhattacharya (n 17)
  3. Asif Iqbal Tanha v State of NCT of Delhi 282 (2021) DLT 121; DevanganaKalita v State of NCT of Delhi 282 (2021) DLT 294; Natasha Narwal v State of Delhi NCT 2021CriLJ 3108
  4. Maulana Fazlul Karim Qasimi v The State of Assam 2021
  5. Iqbal Ahmed Kabir Ahmed v The State of Maharashtra 2021ALL MR (Cri) 3105
References:
  1. https://www.juscorpus.com/wp-content/uploads/2022/01/61.-Reet Balmiki.pdf
  2. http://burnishedlawjournal.in/wp-content/uploads/2021/06/Anatomization-of the-Draconian-Unlawful-Activities-Prevention-Act-by-Abhishek Bhardwaj.pdf
  3. A1967-37.pdf (mha.gov.in)
  4. An-Analysis-on-the-validity-of-the-Unlawful-Acts-Prevention-Act.pdf (ijlmh.com)

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