By: Arshia Jain
India’s National Security Law’s
The Constitution of India was drafted in 1947, shortly after India’s independence, to safeguard and preserve the rights of its population. At the same time, we were implementing the Preventive Detention Act of 1950 (PDA), which stayed in effect until 1969, which was a formidable statute that demolished citizens’ liberties.
The government might imprison someone for a year without prosecution under the preventative detention statute. The primary goal of the Preventive Detention Act was to prevent violence and relocation as a result of the division. This was transitory legislation since it had a sunset clause, which indicates it was passed with a specific goal in mind and will expire after that goal is met.
The Maintenance of Internal Security Statute of 1971 (MISA) was enacted two years after the Preventive Detention Act expired, and it remained in effect until 1977. During a period of emergency, the legislation was adopted to jail those who were opposed to the government. MISA included the majority powers of the preventive detention legislation. MISA was designed to place tighter limits on anyone arrested under the legislation.
After preventative detention and before the establishment of internal security, another statute was passed in 1958, which is still in effect today. The Special Powers Act of the Armed Forces was enacted in 1958. This legislation was passed in response to the separatist movement in Nagaland and rising violence in the north-eastern regions.
The government has the right to declare any area as a disturbed region, and the act grants the armed forces exceptional powers to preserve public order in such a disturbed area.
The National Security Act (NSA) was passed in 1980, and it reflects preventative detention and the upkeep of internal security. In April 2020, four persons in Indore were charged under this statute for employing force against health professionals amid a nationwide lockdown due to the coronavirus. The National Security Act allows the state or federal government the authority to detain anyone to protect national security and public order.
Under this statute, the maximum duration of detention is 12 months. Basic rights including the right to be informed and the right to legal representation would be denied to anyone prosecuted under the NSA.
The Terrorist and Disruptive Activities Act of 1985 (TADA) was designed to regulate separatist and terrorist activities in Punjab, however, it was abolished in 1995 due to its sunset clause. This statute superseded both the Constitution and the Criminal Procedure Code. New offenses were introduced under TADA, police powers were strengthened, and protections for arrested people were weakened, increasing incidences of abuse and torture.
As a result of the Kandahar Hijacking and Parliament Attack that happened two decades ago, the Prevention of Terrorism Act of 2001 (POTA) was adopted to tighten the country’s anti-terror legislation. Anyone accused of terrorism might be held for 180 days under the Prevention of Terrorism Act. When POTA’s aims and loopholes were the same as TADA’s, a problem occurred. Because of widespread abuse of POTA, it was revoked in 2004 under its sunset provision.
After PDA and AFSPA, but before MISA, NSA, TADA, and POTA, another important anti-terror statute, the Unlawful Activities Prevention Act (UAPA), was passed in 1967.
The History of UAPA
The India-China conflict of 1962, the India-Pakistan war of 1971, and the declaration of emergency on the grounds of domestic instability in 1975 are all memorable events during the period 1962 to 1975. Apart from these three big spotlights, a slew of other issues arose throughout this period.
Do you know who the founder of the Dravida Munnetra Kazhagam political party is? Who changed the name of Madras to Tamil Nadu? CN Annadurai, who has also served as Chief Minister of Tamil Nadu, is the answer to both queries. In an address to the Rajya Sabha in 1962, he suggested an independent Tamil republic. He then dropped his desire for a separate Tamil homeland as a result of the 1962 Indo-China conflict.
Consider the stance of the federal government. On the one hand, there is foreign aggression, which has resulted in a conflict with China, and on the other side, there is internal unrest, which has culminated in a desire for a separate Tamil state. It was a full state of terror. The central government was in a quandary at the time, since, while we had emergency provisions under Article 352 to cope up with war situations, it was critical to curbing individuals’ freedoms to deal with internal difficulties. The Unlawful Activities Prevention Act of 1967 was enacted as a consequence of this key cause (UAPA). During the current state of emergency, the statute went into effect.
Legislation against Terror
Let us attempt to grasp the Unlawful Activities Prevention Act of 1967. How was the UAPA Act enacted? What was the purpose of the deed? What was the purpose of the 2019 Unlawful Activities Prevention (Amendment) Act? What are some of the amended act’s flaws?
The National Integration Council established a committee for national integration and regionalization. The Constitutional 16th Amendment Act was enacted by parliament at the committee’s suggestion.
The Central government used this amendment to limit people’s ability to deal with internal issues. Three essential rights, freedom of speech and expression, freedom to congregate peacefully without arms, and the right to organize associations or unions, were all subjected to reasonable constraints under the constitutional 16th amendment act. The UAPA act is an anti-terror law, and the National Investigation Agency (NIA), India’s top counter-terrorism agency, is in charge of enforcing it.
The UAPA Act is primarily concerned with illegal acts. So, what exactly does “illegal action” imply? As a result, illegal activity refers to any action performed by any organization or individual with the intent of bringing cession or resulting in separation, as well as any action that undermines or calls into question India’s sovereignty and territorial integrity.
Now, the year 2004 is significant since it was the year when a significant UAPA amendment legislation was introduced. Through a 2004 revision to the UAPA legislation, Parliament added several specialized chapters to penalize terrorist crimes, as well as most of the sections that were previously covered by POTA.
The UAPA 1976 has been revised multiple times because of fast changes in terrorist tactics and patterns, the most recent revision being the amendment act of 2019.
Analysis of the 2019 Amendment
The opposition and civil rights groups filed significant objections to the 2019 amendment legislation, claiming that it has a high risk of being manipulated by those in power. The Act of 2019 grants the government direct authority to suppress or monitor any kind of opposition. The 2019 amendment to the UAPA revolved on the subject of “who may commit terrorism?” “Who may be labeled a terrorist?” or “Who can be branded as a terrorist?”
Before 2019, the illegal activities prevention act solely applied to companies; however, with the 2019 modification, people were also included in the scope of the act, and all of these changes will be reflected in Chapter 6 (sections 35 and 36) of the UAPA Act. As a result of the recent change, the central government now has the authority to label an individual or an organization as a terrorist if they: – engage or perform acts of terrorism, prepare or promote terrorism, or are otherwise involved in terrorist activities. Individuals and organizations were designated as terrorists based on these criteria.
This change was essential because it was seen that anytime a group was designated as a terrorist organization by the federal government, its members either formed other groups or began operating independently.
The detention provisions were the second adjustment made by this amendment. In India, the provision for a term of detention is addressed by Section 167 of The Criminal Procedure Code, which sets a maximum length of custody of 90 days, after which time the right to bail arises.
The most terrifying provision of the 2019 Amendment Act is Section 43-D of the UAPA Act, which states that if an investigation is not completed within a specified time frame, a person can be detained for 180 days without even filing a charge sheet and that this period of 180 days can be extended further, with no right to bail.
The addition of the 4th schedule to the act was the amendment’s third major change. Because the UAPA legislation empowers the government to declare anybody a terrorist, the government can add the individual’s name to the 4th schedule, but there is no recognized due process for doing so. The person whose name has been added is given the option of filing an appeal with the government within 45 days, requesting that his name be removed from the 4th schedule, and a review committee will be formed to consider the appeal, with a retired/sitting judge as its chairman and three other members.
On December 17, 2019, Assam-based anti-corruption and right to information activist, Akhil Gogoi was arrested under the modified act for sedition, as well as the intent to incite a riot against national integration, criminal conspiracy, and formation of unlawful association.
On April 11, 2020, Jamia Milia Islamia students Meeran Haider and Safoora Zargar were arrested by Delhi police under the Unlawful Activities Prevention Act (UAPA) for their roles in the February 2020, riots in North-East Delhi.
Masrat Zahra, a photojournalist, was arrested by Jammu and Kashmir police on April 20, 2020, under section 13 of the UAPA and section 505 of the Indian Penal Code. On September 13, 2020, Umar Khalid, an activist, was arrested by Delhi Police for actively participating in an organization founded in response to the February 2020 riots in Delhi. He was also charged with sedition, murder, and attempted murder, as well as the other 18 Sections of the Indian Penal Code.
The bulk of national security legislation established is referred to be “necessary evil” because, in addition to being important for security, they feature uncontrolled and unrestrained authorities that limit or harm citizens’ civil rights. The above-mentioned amendment act of 2019 was proposed to combat terrorist activities and safeguard the nation’s sovereignty and integrity, but does anybody know how many loopholes there are in the amendment itself? The first is that once a person is arrested under UAPA, he must serve 180 days in jail before filing a bail application. Second, if he decides to appeal, he will have to do so to the same authority that deemed him a terrorist in the first place.
And if a person is designated a terrorist and his name is put to the 4th schedule, he will be left with no rights since labeling someone a terrorist implies taking away all of their civil rights and leaving them with no options.
The Government’s major motivation for this amendment was to defend residents’ rights, provide security, and provide a secure environment. Is it, however, permissible to take away civil liberties to guarantee security in a society where human rights are prioritized? UAPA’s sole purpose was to combat terrorism, but it has recently been utilized to terrorize civilians who oppose government policy.