By Aarushi Singh–
Introduction
Unlawful Activities (Prevention) Act is a law aimed at effective prevention of unlawful activities associations in India across its borders and abroad. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India. Rajya Sabha has cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 or anti-terror law.
Recent and Famous Arrests under UAPA Act
Recently, many activists, journalists and students have been booked under the Unlawful Activities (Prevention) Act (UAPA) in different cases across the country during CAA protest.
On 20th April 2020, Delhi Police has booked Jamia students Meeran Haider and Safoora Zargar under the Unlawful Activities (Prevention) Act (UAPA) in a case related to communal violence in northeast Delhi over the Citizenship (Amendment) Act, said a lawyer. Haider and Zargar, arrested for allegedly hatching a conspiracy to incite the communal riots in February, are in judicial custody. While Zargar is the media coordinator of Jamia Coordination Committee, Haider is a member of the committee[1]. The police has also booked Jawaharlal Nehru University student leader Umar Khalid under the UAPA in the case, said advocate Akram Khan who is representing Haider in the case.[2]
On 4th May 2020, Delhi Police booked a 24-year-old student of Jamia Millia Islamia in connection with the violence in North East Delhi in February.[3]
On 4th June 2020, again, Delhi Police arrested 10 students from DU and JNU as student bodies across the country on Wednesday held a virtual protest to demand the release of activists arrested for staging a protest against the CAA.[4]
In 2019 during the CAA protest, Police have arrested more than 300 students, scholars, professors and activities under UAPA Act stating that they are encouraging violence with their harsh and hurtful comments.
Other major arrests are as follows:
- Maoist Kobad Ghandy, communist revolutionary, was charged with UAPA in 2009.[5]
- Arun Ferreira, Human Rights Activist, in 2007.[6]
- Binayak Sen, a Doctor and human rights activist.[7]
- Gaur Chakraborty,communist revolutionary , the spokesperson of Communist Party of India (Maoist), for having connection with Lalgarh movement.[8]
- Thirumurugan Gandhi is a Tamil Nadu-based Human Rights Activist who founded the May 17 Movement. Charged in UAPA after a series of cases including sedition (on 124-A) filed on him since he arrested by Bengaluru Airport authorities.[9]
- Sudhir Dhawale, Dalit rights worker, in 2018.[10]
- Mahesh Raut, tribal rights worker, in 2018.[11]
- Shoma Sen, professor, in 2018 arrested in Elgar Case to get her retirement benefits.[12]
- Surendra Gadling, Dalit and tribal rights lawyer, in 2018 with relation with Bhima Koregaon Case.[13]
- Rona Wilson, research scholar, in 2018 in relation with Bhima oregano Case[14]
- Sudha Bharadwaj, tribal rights worker, in 2018 in relation with Bhima Koregaon Case.[15]
- Varavara Rao, poet, in 2018 arrested under a host of charges mostly related to terrorism related.[16]
- Gautam Navlakha, member of PUDR, in 2018.[17]
- Akhil Gogoi, Farmer Rights activist, Krishak Mukti Sangram Samiti, in 2019 for wagin war against the nation during the CAA Protests.[18]
- Alan Suhaib and Taha Fasal , students , for allegedly having maoists links were arrested from Kozhikode, Kerala on 2 November 2019.[19]
- Tahir Hussain, Aam Aadmi Party (AAP) councillor for his alleged role in the 2020 Delhi riots during CAA Protests.[20]
- Masrat Zahra, Journalist, in 2020 for uploading procoking pictures on social media which could encourage riots in Kashmir.[21]
- Professor Anand Teltumble Civil Rights Activist in April 2020 during CAA Protest.[22]
- Meeran Haider and Safoora Zargar, student activists, 2020 during CAA Protest.[23]
- Sharjeel Imam, student activist arrested on 28 January 2020[24] during CAA Protest which happened Nation-Wide.
CAA Protest and UAPA Act
The Citizenship Amendment Act (Bill) protests occur when the CAA was enacted by the government of India. The CAA amends the Indian Citizenship to illegal migrants who are Hindu, Sikh, Jain, Parsi, Buddhist and Christian from Afghanistan, Bangladesh as well as Pakistan who entered India before 2014.[25] The bill does not mention Muslims and other communities who fled from the same or other neighboring countries.[26] The bill was widely criticized on the basis of discrimination on the basis of caste and religion. Protestors against the amendment demand that it be scrapped and that the nationwide NRC not be implemented.[27]
The protests started in Assam because people fears loss of rights, land and property, which fled to Northeast India and soon reached New Delhi. The major protests were held in Mumbai, Hyderabad, New Delhi, and Aligarh and everywhere in India basically. The major population included in the protest were students, scholars, professors and other activists. Jamia Millia University and Aligarh Muslim University were the hub of protests and police had to take violent actions.[28] The protests resulted in thousands of arrests and 27 deaths as of 27 December 2019[29]. On 19 December, the police issued a complete ban on protests in several parts of India. As a result of defying the ban, thousands of protesters were detained.
Application of the Act
It is applicable across the entire country. Any Indian or foreign national charged under UAPA is liable for punishment under this Act, irrespective of the location of crime / offense committed. UAPA will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India. The provisions of this Act apply also to citizens of India and abroad. Persons on ships and aircrafts, registered in India, wherever they may be are also under the ambit of this act.
Unlawful Activities definition
Unlawful activity “refers any action taken by individual or association whether by committing an act or by words, either spoken or written, or by signs to questions, disclaims, disrupts or is intended to disrupt the territorial integrity and sovereignty of India.”[30]
This act also prohibits the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which provoke any individual or group of individuals to bring about such cession or secession.
Review committee formed under the Act
There is a review committee established under the Act to counter attack terrorism and prevent the citizens, to fulfil the need of sound legislation with fair procedure for enforcement of anti-terrorist laws in India. These provisions are said to be very harsh and are contrary to established criminal justice principles. Therefore, sufficient protection and check and balance to prevent any misuse of such stringent provisions must be present in the legislation itself. This review committee will have restrictive role to play as compared to the provisions of POTA or National Security Act or COFEPOSA.
Section 37[31] obligates the central government to establish one or more review committee for the purpose of De-notification of a terrorist organization. The provisions of the Act specifically mentions that the committee will consist of a chairperson who has to be a judge of a High Court. Along wth that it will have maximum of three members who is an officer not below the rank of secretary to the government of India and has one year of experience in legal affairs or administration of criminal justice.
The Scope of power exercised by the review committee is limited to Section 36[32] of UAPA i.e. De-notification of a terrorist organization. The committee can review the order of central government who have rejected the application of organization or affected person to remove an organization from the schedule list. The power of review committee extends to De-notification of terrorist organization and to review every order of the central government authorizing for interception of communication.
Investigating Authorities
Section 43[33] of the UAPA clarifies that is competent to investigate the offence of terrorism specified under chapter IV and VI of the Act. The Deputy Superintendent of Police (DSP) or police officer of equivalent rank shall investigate the offence of terrorism and in metropolitans areas it shall be investigated by a police officer not below the rank of Assistant Commissioner of Police (ACP). ‘Designated Authority’ means officer of Central government not below the rank of Joint Secretary to that of government and officer of state government not below the rank of Secretary to that government as notified by the respective government in his behalf.
Punishments under the Act:
- For Terrorist Act –
Resulting in Death – punishable with death or imprisonment for life, and shall also liable to fine.
In any other case – punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine.[34]
- For Conspiracy –
Punishment of imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine.[35]
- For Organizing Terrorist Camps –
Punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine[36]
- For Recruiting of any person or persons for terrorist act –
Punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine.[37]
- For Harboring –
Punishable with imprisonment for a term not less than 3 years which may extend to life imprisonment and shall also liable for fine[38]
- For being a member of terrorist Gang –
Punishable with imprisonment for life and shall also liable for fine.[39]
- For holding proceeds of terrorism –
Punishable with imprisonment for life and shall also liable for fine.[40]
- For Threating Witness –
Punishable with imprisonment for a term not less than 3 years which may extend to life imprisonment and shall also liable for fine[41][42].
Landmark Cases
R.M Malkani vs. State of Maharashtra[43], wherein, taped telephonic conversation which was not obtained in accordance with the interception provision of the Telegraph Act was produced in evidence and relied upon by the Trial Court and High Court which was challenged before the Supreme Court. The court held that there is no bar in admitting relevant contemporaneous evidence even if it is obtained illegally. Supreme Court of India tried to remove the procedural anomaly in the People’s Union of Civil Liberties vs. Union of India[44], and directed the Government to follow a specific modus operandi before proceeding with the interception of messages. However, alongside laying down the procedure in P.U.C.L case, the Supreme Court stressed upon the fact that “it is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded.”
State of Maharashtra vs. Bharat Shanti Lal Shah and others[45], The Maharashtra Control of Organized Crime Act, 1999 has provisions for interception and safeguards for the same. These provisions and their safeguards similar to the directives laid down by the Supreme Court in PUCL’s case. The court observed that though the interception of communications is an invasion of an individual’s right to privacy, the right to privacy is not absolute, thus the court is required to see that the procedure itself is fair, just, and reasonable. Pursuant to the procedural safeguards formulated by the Supreme Court in the P.U.C.L case, the Central Government brought out an amendment to the Indian Telegraph Rules, 1951 but failed to remove unguided interception. To fill the procedural gap the interception powers laid out in the Information Technology Act were amended in 2008, and in 2009 the IT Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules, 2009 (“IT Interception Rules”) were notified. The above two development has supplement the procedural lacuna of Unlawful Activities (Prevention) Act, 1967, 2004, 2008 and 2012 as far as the procedure for interception is concern. Even the National Investigation Agency may use the power of interception but only with the procedural safeguard which now included under the IT amendment 2008 and IT Interception Rules 2009.
Conclusion
Hence, UAPA Act deals with majorly cases where there are reasonable doubt that the action of the person can encourage a riot, sedition, violence in the nation, violent protests or any terrorist activities. The provisions of the Act are harsh and the majorly provides both imprisonment and fin as the punishment and in some circumstances both. Recently, CAA protests have been a major incident in the nation where 27 deaths occurred and thousands of students, activists professors etc were arrested by the police around the nation who were protesting violently before in December 2020 police put a ban on protesting at all. The incident is still not done with, there are instances in the current news every now and then regarding the protest or the outcomes. Due to Covid-19 as per the current situation, the protest is on hold because country is busy maintaining social distancing and curb the disease.
[1] Available at https://theprint.in/india/delhi-police-books-umar-khalid-jamia-students-under-uapa-for-northeast-delhi-violence/406259/ (Last visited on 19 August 2020).
[2] Ibid.
[3] Available at https://scroll.in/latest/962553/delhi-violence-jamia-student-asif-iqbal-tanha-arrested-charged-under-uapa (Last visited on 19 August 2020).
[4] Available at https://www.indiatoday.in/india/story/delhi-police-detains-10-jnu-du-students-demanding-release-of-jailed-anti-caa-activists-1685246-2020-06-04 (Last visited on 19 August 2020).
[5] Available at https://www.thehindu.com/news/national/Kobad-Ghandys-arrest-Major-blow-to-Maoist-movement/article16882930.ece (Last visited on 21 august 2020).
[6] Available at https://scroll.in/latest/901159/bhima-koregaon-case-accused-arun-ferreira-alleges-he-was-beaten-by-police-in-custody-on-sunday (Last visited on 21 august 2020).
[7] Available at https://www.thehindu.com/news/national/Life-term-for-Binayak-Sen/article15607002.ece. (Last visited on 21 august 2020).
[8] Available at https://timesofindia.indiatimes.com/city/kolkata/City-court-acquits-man-held-under-UAPA-after-7-years/articleshow/53286367.cms (Last visited on 21 august 2020).
[9] Available at https://www.thehindu.com/news/cities/bangalore/human-rights-activist-thirumurugan-gandhi-arrested/article24639529.ece (Last visited on 21 august 2020).
[10] Available at https://thewire.in/caste/meet-the-five-arrested-in-the-bhima-koregaon-case (Last visited on 21 august 2020).
[11] Available at https://www.frontlinedefenders.org/en/case/mahesh-raut-arrested (Last visited on 21 August 2020).
[12] Available at https://www.asianage.com/india/all-india/150820/professor-shoma-sen-arrested-in-elgar-case-to-get-her-retirement-benefits.html (Last visited on 21 august 2020).
[13] Available at https://www.indiatoday.in/india/story/bhima-koregaon-case-accused-surendra-gadling-refuses-to-depose-before-inquiry-commission-1596477-2019-09-06 (Last visited on 21 august 2020).
[14] Available at https://caravanmagazine.in/politics/rona-wilson-uapa-urban-naxal-maoist-assassinate-narendra-modi (Last visited on 21 august 2020).
[15] Available at https://www.thehindu.com/news/cities/Delhi/sudha-bharadwaj-arrested/article24805027.ece (Last visited on 21 august 2020).
[16] Available at https://www.frontlinedefenders.org/en/case/arrest-varavara-rao (Last visited on 21 august 2020).
[17] Available at https://thewire.in/law/unwilling-to-give-delhi-high-court-details-of-navlakhas-hasty-transfer-nia-gets-sc-stay (Last visited on 21 august 2020).
[18] Available at https://theprint.in/india/nia-arrests-rti-activist-akhil-gogoi-amid-assam-unrest-charges-him-under-amended-uapa/335484/ (Last visited on 21 august 2020).
[19] Available at https://www.indiatoday.in/amp/india/story/kerala-2-cpi-m-activists-held-for-alleged-links-with-maoists-1615152-2019-11-02 (Last visited on 21 august 2020).
[20] Available at https://www.indiatoday.in/india/story/delhi-riots-case-ex-aap-councillor-tahir-hussain-booked-under-uapa-1669860-2020-04-22 (Last visited on 21 august 2020).
[21] Available at https://caravanmagazine.in/media/kashmir-fir-photojournalist-masrat-zahra-crackdown-coronavirus (Last visited on 21 august 2020).
[22] Available at https://www.aljazeera.com/news/2020/04/india-arrests-activist-anand-teltumbde-2018-dalit-event-200414112452191.html (Last visited on 21 August 2020).
[23] Available at https://scroll.in/latest/960062/delhi-violence-uapa-against-students-grave-abuse-of-state-power-says-civil-society-group (Last visited on 20 August 2020)
[24] Available at https://www.thehindu.com/news/national/no-immediate-supreme-court-relief-for-anti-caa-activist-sharjeel-imam/article31677474.ece (Last visited on 21 August 2020).
[25] Available at https://www.bbc.com/news/world-asia-india-50670393 (Last visited on 19 August 2020).
[26] Available at https://www.npr.org/2019/12/11/787220640/india-passes-controversial-citizenship-bill-that-would-exclude-muslims (Last visited on 19 August 2020).
[27] Available at https://www.vox.com/future-perfect/2019/12/12/21010975/india-muslim-citizenship-bill-national-register (Last visited on 19 August 2020).
[28] Available at https://www.aljazeera.com/news/2019/12/internet-banned-india-uttar-pradesh-anger-killings-191227060434667.html (Last visited on 19 August 2020).
[29] Available at https://www.theguardian.com/world/2019/dec/17/india-protests-students-condemn-barbaric-police (Last visited on 19 August 2020).
[30] Section 40, UAPA Act.
[31] Section 37 Review Committees.—
(1) The Central Government shall constitute one or more Review Committees for the purposes of section 36.
(2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government and in the case of appointment of a sitting Judge, the concurrence of the Chief Justice of the concerned High Court shall be obtained.
[32] Denotification of a terrorist organisation.—
(1) An application may be made to the Central Government for the exercise of its power under clause (c) of sub‑section (1) of section 35 to remove an organisation from the Schedule.
(2) An application under sub‑section (1) may be made by—
(a) the organisation, or
(b) any person affected by inclusion of the organisation in the Schedule as a terrorist organisation.
(3) The Central Government may prescribe the procedure for admission and disposal of an application made under this section.
(4) Where an application under sub‑section (l) has been rejected the applicant may apply for a review to the Review Committee constituted by the Central Government under sub‑section (1) of section 37 within one month from the date of receipt of the order of such refusal by the applicant.
(5) The Review Committee may allow an application for review against rejection to remove an organisation from the Schedule, if it considers that the decision to reject was flawed when considered in the light of the principles applicable on an application for judicial review.
(6) Where the Review Committee allows review under sub‑section (5) by or in respect of an organisation, it may make an order to such effect.
(7) Where an order is made under sub‑section (6), the Central Government shall, as soon as the certified copy of the order is received by it, make an order removing the organisation from the Schedule.
[33] Section 43 Officers competent to investigate offences under Chapters IV and VI.— Notwithstanding anything contained in the Code, no police officer,—
(a) in the case of the Delhi Special Police Establishment, constituted under sub‑section (1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under sub‑section (1) of section 8 of the Code, below the rank of an Assistant Commissioner of Police;
(c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under Chapter IV or Chapter VI.
[34] Section 16, UAPA Act.
[35] Section 18, UAPA Act.
[36] Section 17 UAPA Act.
[37] Section 17 UAPA Act.
[38] Section 19, UAPA Act.
[39] Section 20, UAPA Act.
[40] Section 21, UAPA Act.
[41] Section 22 UAPA Act.
[42] Available at, https://www.latestlaws.com/articles/all-about-unlawful-activities-prevention-act-1967-by-tanu-kapoor/ (Last visited on 20 August 2020).
[43] AIR 1973 SC 157
[44] AIR 1997 SC 568
[45] (2008) 13 SCC 5