By Neha Choudhary
Introduction
The national security of a country is the foremost objective and concern of its government. India is a place that has seen dominant terror attacks and for a very long time, there have been instances to show the major terrorists and unlawful activities around the country which are a serious threat to the integrity and sovereignty of the country.
The catastrophic activities have always heightened terror within the public at large and due to which there has been a series of laws were passed for the security of the country.
It is important to safeguard the national security and interest and thus the Government has taken a step ahead by having certain strictest laws in the country.
This Article deals with the legal provisions regarding the control of these terror activities.
What is the Unlawful Activities (Prevention) Act, 1967?
The Unlawful Activities (Prevention) Act, 1967 (hereinafter as UAPA) is an anti-terror law for curbing terrorism in the country and criminalizes creed and association. In 2019, the Act has been amended and passed by the Lok Sabha that empowers the central authorities to deal with the prevention of terrorist activities.
The Act ensures the strictest punishments prescribed for anyone trying to spread terrorism on the native land in any manner whatsoever. However, the anti-terror legislation has ultimately turned into anti-human rights legislation.
Unlawful activity has been defined under Section 2 of the Unlawful Activities (Prevention) Act as, “it refers to 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”.
Its punishment has been prescribed under Section 13 of the Act for committing, participating, or abetting the unlawful activities.
Various enhancements have been incorporated for the betterment of the Act as well as to curb the increasing cases of unlawful happenings in India. There have been amendments which are as follows:
- The Unlawful Activities (Prevention) Amendment Act, 1967
- The Criminal Law (Amendment) Act, 1972
- The Delegated Legislation Provisions (Amendment) Act, 1986
- The Unlawful Activities (Prevention) Amendment Act, 2004
- The Unlawful Activities (Prevention) Amendment Act, 2008
- The Unlawful Activities (Prevention) Amendment Act, 2012
- The Unlawful Activities (Prevention) Amendment Act, 2019
However, the provisions of the previous Act (POTA) for curbing the terrorism around the country was re-incorporated in 2004 and the 2019 amendment was enacted after the Parliament withdrew the POTA (Prevention of Terrorism Act, 2002) which replaced the POTO Act of 2001 and TADA Act (1985–1995).
The modifications were significant for the effectiveness of the Act to prevent the unlawful activities that have been in course in the country especially after the 2008 Mumbai attacks, Delhi attacks, etc. After the 2019 amendment, certain provisions were revised which expanded the ambit of UAPA.
Moreover, the Act was drafted by the National Integration Council (NIA) and a committee was appointed to study the reasonable restrictions in the form of integrity and sovereignty of the country; however, they kept it limited up to casteism, communalism, regionalism, and not terrorism which in 2019 led to amendments of certain provisions of the Act for preventing the increase in terrorism.
The National Integration Council, the Constitution (16th Amendment) Act, 1963, has empowered Parliament to impose (by law) reasonable restrictions in the interests of sovereignty and integrity of India, on the:
- Freedom of Speech and Expression
- Right to Form Associations or Unions
- Right to assemble peaceably and without arms
What was the recent amendment made to the Act in 2019?
The amendment passed by the Lok Sabha and Rajya Sabha in 2019 made it into action after receiving President’s assent. It was meant for restricting unlawful terrorist activities that have been taking place in the country. The UAPA Act originally came into existence to ban the organizations which were dealing in illegal activities linking to terrorism and were harmonious to the country.
The UAPA has been one of the strictest laws and the 2019 amendment made it even sharper which came into origin for the prevention from unlawful terrorism which eventually empowered the Government to restrict the right to freedom for protecting integrity and sovereignty of India.
Terrorist activity has been defined under Section 15 and 16 of the Act as:
“Whoever does any Act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any Section of the people in India or any foreign country by using bombs, dynamite or other explosive substances which will likely to cause death or injury, loss or destruction of the property or any other unlawful Act will sum up to be a terrorist activity” and “shall be punishable with death or imprisonment for life, and shall also be liable to fine in case death of a person or otherwise imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.”
Before the Act was amended, only organizations that were notified as being terrorists’ organizations or have been incorporating in unlawful activities could be banned for committing or participating, being involved in the acts of terrorism in any manner, prepares or promotes terrorism in the country.[1]
However, the individuals who were active members of the activities could not be arrested solely for being members of the organization. Subsequently, the 2019 amendment empowers the authorities to designate individuals as terrorists and could be arrested if being suspected to be part of the terrorist groups and would be punished on the same grounds and add the name of the individual in the 4th schedule.
As far as the reason is concerned, India being a signatory to the United Nations Charter who designates individuals as terrorists are obligated to apply the same under the Act as well.
Moreover, many international organizations and countries, under their clauses provide the necessity to designate an individual as a terrorist.
However, a necessary set of actions is required for the Parliament to consider an individual as a terrorist before the actual trial in Court, as each citizen enjoys the right to life and freedom conferred under Part III of the Constitution.
However, the Bill also provides the power to the Government to remove the name from the schedule and official gazette when an organization/individual makes an application, and the entire decision-making power lies to the central government.
According to Section 36 and 37, when the application gets rejected, the organization/individual thereby has the right to seek a review within a month of rejection. Following the review, the Government sets up a review committee[2] which will be empowered to order the Government to delete the name of the individual from the list.[3]
How has the Amendment Act, 2019 been criticized?
There have been certain criticisms of the amendments as well. The amendment has led to the violations of the basic fundamental rights of the citizen of the country.
It somehow violates the right conferred under Articles 14, 19 (2), and 21 of the Constitution as Section 35 of the aforementioned Act does not provide the reasons and grounds to designate an individual as a terrorist which eventually empowers the Government to be arbitrary violating Article 14.
The right to disagree is an integral part of Article 19 i.e. right to freedom of speech and expression and this right cannot be violated in the garb of terrorism unless the exceptions are mentioned under Article 19.
On the other hand, Article 21 of the Constitution provides the right to life, and designating an individual as a terrorist before trial discredits the reputation of the particular individual which thereby being an integral part of the Article violates Article 21.
The entire violation of the fundamental rights has indirectly curbed the dissented voices where these vague and unfettered powers to the executive work as a tool.
During the discussions regarding the bill, it was also stated that Global terrorists Masood Azhar and Hafiz Saeed would be the first ones who shall be banned as individuals in India who were behind the recent Pulwama attack, and 2001 Parliament attack and Mumbai terror attacks in 2008 respectively after the UAPA amendments are notified by the government.
As Amit Shah has also stated that banning individuals as terrorists was necessary as they will grow different organizations once an institution is banned.
The principle of presuming the individual innocent until proven guilty is not applicable in the cases that fall under the ambit of Unlawful Activities (Prevention) Act, 1967 as according to the act, the organization/individuals will be designated as a terrorist group before the trial without following any due process.
The incessant powers that the Act provides include the powers to the police to arrest or search for shreds of evidence[4], seize the property[5], disallowing anticipatory bail, admissibility of evidence collected through the interception of communications[6], etc. are applicable on the suspects under UAPA Act.
The Act also provides the pre-charge detention for the maximum period of 180 days without filing the charge sheet if the investigation is not completed within time other than 60 or 90 days which is provided under other cases which is much longer than allowed in any other country.[7]
Thus, all these provisions eventually grant “custodial torture” and other “ill-treatment” with the suspects for destroying the integrity and sovereignty of the country.
There have been recent cases where maltreatment has been faced by the individuals who have been arrested under suspicion of being a member of the terrorists’ group or organization. The reports show the neglects, tortures, unlawful and solitary confinements before trial, and how the suspects have been brutalized by the officials designated for the inquiry.
According to the news, G.N Saibaba, a DU professor who was disabled and on wheelchairs was confined in cells without essential facilities like toilets and denied medical facilities when suffered cardiac arrest although being legally mandated.
There was another case of detention of Dr. Binayak for 2 years without trial incarcerated under UAPA. The recent reports for the confinements and arrests show that most of the people who have been arrested are ordinary people like poet Varavara Rao, arrested in 2018, writers, and teachers that have indirectly been targeted for their dissenting opinions over the rights of minorities or other communities and sharing their opinions over general public concerns, for example, Surendra Gadling and Sudha Bharadwaj who were tribal rights lawyer, arrested in 2018.
This Act has threatened the existence of the public for having dissenting opinions by harassing or intimidating the dissenters as it has also violated the basic postulates provided under the fundamental rights.
However, “there was no reason to misbelief the police” which eventually disregard the crimes and mistreatments during the custody. This principal was given in the case of State Vs. Mohd. Afzal.[8]
There have been several documentations for repealing the UAPA provisions by Civil liberties and Democratic rights organizations in India such as the People’s Union of Civil Liberties (PUCL), People’s Union of Democratic Rights (PUDR), etc. as it violates basic human rights of speech and expression. In short, UAPA has criminalized the activities of the performance of civil liberties.
After the 2019 amendment act, the first arrest under the UAPA Act was on December 17, 2019, when Akhil Gogoi, activist for anti-corruption and RTI was arrested under the charges of criminal conspiracy[9] forming unlawful association[10], etc. under UAPA act.
Following, the riots in Delhi which caused major destruction led to the arrest of the people behind riots under the UAPA Act in April 2020.
Another case in April 2020 when Masrat Zahra a photojournalist was arrested under Section 13 of UAPA and Section 505 Indian Penal Code by Jammu and Kashmir police. And lastly the most recent case of Umar Khalid, the activist who was arrested for participating in an organization formed for the Delhi riots of February. He was arrested under major sections of the UAPA Act as well as under IPC.
Do Terrorist Attacks come under the ambit of UAPA Act?
- 2005 Delhi bombings
The New Delhi Patiala House Court delivered its final verdict on the long-awaited case of the 2005 Delhi bombings which killed about 62 people and injured at least 210 others in three explosions i.e. in Paharganj, Govindpuri and the most devastating one was in Sarojini Nagar market.
The court acquitted Mohammed Rafiq Shah and Mohammed Hussain Fazili of all charges and sentenced the accused Tariq Ahmed Dar for 10 years imprisonment under Section 38 and Section 39 of the Unlawful Activities (Prevention) Act, 1967.[11]
- Naxal Attacks
The charge sheet has been filed against 12 Naxals under the sections of the Unlawful Activities (Prevention) Act, Indian Penal Code, and the Explosive Substances Act for killing about 15 policemen in a blast in Mumbai in 2016.[12]
- JNU case – Against CAA
There has been a recent case when in February 2020, a JNU student Umar Khalid along with 15 others were being arrested under this act. He was allegedly behind provoking the public at large through his speech which caused riots on the streets and thereby arrested under large conspiracy riots.
The riot was against CAA the anti-Citizenship (Amendment) Act, 2019 which erupted into violence resulting in numerous deaths across Delhi and has been proved to destructible as it not only caused deaths but also caused damage to the property and more than 150 people were injured.
The riot was against the Government compelling them to withdraw the bill and people were unstoppable during the riot.
The UAPA Act was amended in 2019 which led the individuals to be designated as terrorists and thus the charges under sections 13, 16, 17, and 18 of the UAPA Act have been invoked against student leaders, journalists, activists, etc. for provoking, rioting and conspiring. Umar Khalid and others have been convicted under Section 13 of the UAPA Act and punished for 7 years of imprisonment and as per the current records he has been in judicial custody till 22 October 2020.
However, the JNU students Natasha Narwal, Devangana Kalita along Asif Iqbal Tanha, Faizan Khan were released on bail by Delhi High Court who was arrested under the UAPA Act for riots in Delhi as it has been mentioned by the Court as “deserved bails”. The bench mentioned that:
“It is pertinent to mention here that the onerous conditions/embargo under Section 43D (5) of the UAPA, 1967 will not be applicable in the present case qua the petitioner herein as per the material on record and the investigating agency owns status report, which does not disclose the commission of the offenses under the UAPA, 1967, except bald statements of the witnesses”[13]
- Bail under UAPA Act – Union of India VS. K.A Najeeb[14]
In this case an appeal was filed by the Centre against the order of the Kerala high court releasing the accused on bail under the UAPA Act and it was held that:
“Courts are expected to appreciate the legislative policy against grant of bail but the rigorous of such provisions will meltdown 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. Such an approach would safeguard against the possibility of provisions like Section 43D(5) of UAPA being used as the sole metric for denial of bail or wholesale breach of the constitutional right to a speedy trial.”
In various cases like Najeeb, under trial custodians were arrested and have been behind bars for years without trials.
In the case of NIA Vs. Zahoor,[15] the accused was arrested under the charges of the UAPA Act and his bail was denied based on the accusations by the investigating officers. The time-lapse and the delayed justice eventually cost the accused lifetime even if they are released after years.
However, in another case of Angela Harish Sontakke Vs. State of Maharashtra,[16] the Court notwithstanding Section 43D(5) of UAPA granted bail to the accused.
Conclusion
The unlawful activities preventions Act 1967 was brought into existence after the acts like POTO and TADA were repealed to prevent terrorism in the country as the terrorist’s activities had been rising for a very long time.
The attacks have been a menace to the public whether it was series of Delhi bombings in 2005 or 2011, Mumbai 9/11 attacks, Pulwama attack, and other devastating terrorist attacks which destructed the integrity and sovereignty of the country.
The Act has been amended for providing better provisions to rein the threat of terrorism which however has indirectly violated the rights of citizens as well for having dissenting opinions. The 2019 amendment Act has faced major criticisms and organizations for public rights have been appealing for repealing the act.
There was a major need to curb the terrorist attacks but the modifications made under the amendment Act have violated the fundamental rights of the citizens and thus the Government shall focus to adhere to the main objective of the Act instead of stepping against dissenting voices.
References
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 35(3) ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 37 ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 36 ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 43(a) ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 43(b) ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 46 ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 43(d) ↑
- State Vs. Mohd. Afzal, 2003 (3) JCC 1669 ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 18 ↑
- The Unlawful Activities (Prevention) Act, 1967 (Act 37 Of 1967), Section 10 ↑
- State Vs. Ghulam Ahmed Khan FIR no. 149/2005 ↑
- Press Trust of India, “NIA files charge sheet against 12 Naxals in Gadchiroli landmine blast that killed 15 cops”,
Available at: business-standard.com (last visited on December 5, 2019) ↑
- PTI, “Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita get bail in Delhi riots case”, available at: newindianexpress.com (last visited on June 15, 2021) ↑
- Union Of India Vs. K.A Najeeb, Criminal Appeal No. 98 of 2021 ↑
- NIA Vs. Zahoor, (2019) 5 SCC 1 ↑
- Angela Harish Sontakke Vs. State of Maharashtra, 2 (2016) CCR 374 (SC) ↑