Author: Srishti Srivastav, Law Student at City Academy Law College, an affiliated college of University of Lucknow, Lucknow, Uttar Pradesh

Introduction

The Unlawful Activities Prevention Act of 1967, also called the UAP Act or UAPA, is an act to prevent anti-terrorism activities across the territory of, the Union of India or, any part India has acquired. The National Investigation Agency, the central counter-terrorism agency, is this act’s enforcement body. The act presents itself as a more effective means of dealing with terrorist activities and other related problems, as well as the prohibition of certain illicit activities carried out by individuals or associations. The UAPA, 1967’s Section 1 Subsection (2) states that the act is applicable throughout the entirety of India and that anyone found to have violated any of its provisions may face legal repercussions. The act also has provisions for every person who commits an offense or omission under this act (Section 1 sub-section (3) of UAPA,1967). Any person who has committed an offense or omission outside India shall be punished as if the act or omission had been committed in India (Section 1 sub-section (4) of UAPA,1967). Any individual, company, firm, organization, association of persons, or body of individuals, whether or not incorporated, as well as any artificial juridical person and any agency, office, or branch owned or controlled by any of the aforementioned individuals, are all considered “persons” under the definition of “person” provided by Section 2 sub-section (ec) of this act.

If it is discovered that any person or group is engaged in any terrorist activity as defined by this act, the Indian government has the authority to label them as terrorists or terrorist organizations. Any individual can be detained by the authorities under this act for ninety days which can be extended up to one hundred and eighty days if the investigation has not been completed even without a chargesheet being filed or without the exhibition of evidence. Within the duration of detention, either 90 days or 180 days, the right to bail does not arise. The accused cannot be freed even after the specified period of custody has passed unless the court finds that there are good reasons to believe the charges against them are true in the first place.

The History of UAPA,1967

In 1962, CN Annadurai, founder of the Dravida Munnetra Kazagham (DMK), proposed a separate Tamil nation in his Rajya Sabha speech. But later, due to the Indo-China War of 1962, he let go of this proposal. During this period, the government believed that India already had provisions to deal with external aggression in the form of emergency granted by Article 352 of the constitution but the nation had no law to deal with the domestic crisis. The Unlawful Activities Prevention Act was created in 1967 as a result of the need for an anti-domestic crisis statute. It was formed by setting up a committee by the National Integration Council for national integration and regionalization. On the recommendation of this committee, in 1963, the 16^th Constitutional Amendment was made which added the words “sovereignty and integrity of India” as a reasonable restriction in Article 19(2), (3), (4) of the Indian Constitution. Certain fundamental rights granted to people by Article 19(1) were curtailed by this amendment: the freedom of speech and expression, the right to peaceful assembly without the use of force, and the right to organize into cooperative organizations, unions, or associations.

UAPA,1967 is the successor of a few anti-terrorism laws of the independent India. After India became a liberal democratic the nation witnessed many domestic crises such as large-scale communal violence, displacement, and internal disturbance as a consequence of partition. Intending to secure the territory of India, its constitution, and the rights of its citizens the Prevention Detention Act of 1950 was formulated. According, to this act the government had the power to detain individuals for 1 year without any charge. The act had a “sunset clause”, i.e., it was made for a temporary period and a specific purpose. Thus, in 1969 the Parliament believed that the purpose of this law was complete and as a consequence, it was lapsed. In the year 1958, the Armed Forces Special Power Act was passed which is still enforced.

The Maintenance of Internal Security Act of 1971 was passed two years after the Preventive Detention Act of 1950 expired. The Maintenance of Internal Security Act of 1971 inherited much of the 1950’s Preventive Detention Act’s provisions. It was revoked in 1977 as a result of widespread abuse by Smt. Indira Gandhi’s administration during the emergency in 1975. Additionally, another security measure that is still in effect, the National Security measure of 1980, was created in essentially the same amount of time.

In response to the unrest brought about by the Punjab Terror Acts, the Terrorist and Disruptive Activities (Prevention) Act was created in 1985. It was repealed in 1995 because of its wide misuse. In 2001, after the deadly terrorist attack on the Parliament, Mr. Vajpayee led the NDA government passed the Prevention of Terrorism Act, 2001. It was a draconian law that was being widely misused and hence, was repealed by the UPA government in 2004.

Amendments in UAPA

1. Amendment of 2004

Repealing the Prevention of Terrorism Act of 2001, the system experienced a vacuum that the Amendment of 2004 fulfilled. The majority provisions of the POTA,2001 were shoved into the Unlawful Activities Prevention Act of 1967. This was the first amendment that enhanced the extent of the act and added anti-terrorism provisions to it. Definitions like terrorist acts, terrorist gangs, and terrorist organizations were added. With the amendment, the state might designate any organization as a “terrorist organization” and place them in a schedule without following the proper legal procedures. The amendment included new chapters specifically for the punishment of acts of terrorism.

2. Amendment of 2008

Following the horrific 26/11 assaults in Mumbai, Maharashtra, the UAPA, 1967 underwent its second modification to take action against international terrorism. This amendment can constitute a “Special Court” under the National Investigation Agency Act,2008. The amendment also added the definition of “property” in the act. It enhanced penalties for terrorism-related offenses. The amendment enlarged police custody and jail time for the accused and developed a stricter bail procedure without any chargesheet being filed.

3. Amendment of 2012

This amendment added a few definitions to Section 2 of the act such as economic security, person, and proceeds of terrorism. The amendment altered the duration of the notification from which an organization could be designated as a terrorist organization from two years to five years which means now an organization would be banned for five years instead of two years before judicial review. The government by this amendment is empowered to forfeit the property of the individuals if they are convicted under this act.

4. Amendment of 2019

The most recent amendment in the UAPA Act is the amendment of 2019. It gave the National Investigation Agency the authority to investigate cases under this act. Under this recent amendment, the government can designate any organization as a terrorist organization if it commits, participates, prepares, promotes, or is otherwise involved in any of them. The amendment altered the maximum period of detention from 90 days to 180 days or longer without the right of bail being raised. In general laws, the right to bail is raised after the expiration of the period of 90 days. The new 4thSchedule was added through this amendment wherein the government can brand any individual as a terrorist which will have no designated due process. The individual branded as a terrorist under this Schedule can appeal to such government to de-notify his/her name from the 4th Schedule.

Arguments either for or against

Arguments in support:

1. Security of the State- A nation must preserve its unity and integrity by taking effective measures for safeguarding its security.  The act gives authority to the agencies to take preventive actions against the person or organization that is involved or supports the activities that threaten the nation’s integrity.

For example- The government, in the Second Schedule of the UAPA has designated several organizations as terrorist organizations such as the People Liberation Army, National Democratic Fund Bodoland, Kanglei Yaol Kanba Lup, etc.

2. International Commitment– To prevent international terrorism, the United Nations urges in its Charter that all governments adopt the necessary steps. As mandated by the DPSP of Article 51, the supporters of the legislation assert that India’s efforts to counter international terrorism are demonstrated by the UAPA.

3. Preventive Measures- The Unlawful Activities Prevention Act (UAPA) empowers the government and law enforcement agencies to proactively target persons and groups that they suspect of engaging in illicit activities before they become apparent.

4. Effectivity against terrorism- The strict provisions of the act discourage individuals and organizations from engaging in or supporting any act threatening the nation’s security.

5. To counter terrorism activities- The legislation of UAPA provides the law to the agencies to combat anti-terrorism activities in the nation. It gives authority to designate an individual as a terrorist or an organization as a terrorist organization if they are found to be involved in a terrorist act under this act and make the investigation and prosecution smooth.

Arguments against-

1. Abrogates Fundamental Rights- The fundamental rights guaranteed to citizens by the Constitution are compromised by the act. A few Article 19 rights, including the freedoms of speech and expression, assembly without the use of force, and formation of unions and associations, are reasonably restricted by the act. Additionally, it infringes upon the fundamental rights guaranteed by Articles 14 and 21, including the rights to equality, life, and personal liberty.

2. Low Conviction Rate- According to the Ministry of Home Affairs, in 2018 the number of arrested persons across India was 1,421 out of which 35 were convicted while in 2019, it rose to 1,948 out of which only 34 got convicted. In the year 2020, out of 1,321, the number of convicted persons was 80. Hence, on average, only 3% of the arrested persons were convicted under this act.

3. Rigorous Bail Procedure- According to the statute, an arrested individual cannot be released on bail for a period of 90 days, although this can be extended to 180 days or more if the court is satisfied with the Public Prosecutor’s report, which states that the investigation into the matter is not yet finished even in the absence of a chargesheet.It is unnecessary to immediately signify the cause of arrest to the person arrested or detained.

4. Centralised Power- Through this act, the power is centralized in the hands of the central government or the agencies of the central government (National Investigating Agency) to declare any individual as a terrorist if it believes the involvement of such person in any unlawful activity. Any individual may be designated as a terrorist by the government through the Official Gazette.

5. Against the Federal Structure- The liability of maintaining law and order in a state lies upon the government of such state but the UAPA law encroaches upon such power of the state government.

6. Political Misuse- Due to the lengthened period of imprisonment even without a chargesheet being filed this counter-terrorism act is misused by the ruling political party or government to suppress the non-consent of the individuals against them.

Judiciary’s View

1. In the recent case of Prabir Purkayastha (2024) the court decided that the investigative agencies had to notify the person who was arrested under the UAPA of the reasons for their arrest. This way, the person could use the information to effectively consult with his attorney, challenge the police custody remand, and request bail.

2. In the Union of India vs. K.A. Najeeb (2021) the UAPA’s rules, according to the Supreme Court, do not restrict constitutional courts’ authority to issue bail where they determine that the accused person’s fundamental rights have been violated.

3. In Arup Bhuyan vs State of Assam (2011), the Supreme Court ruled that an individual is not automatically guilty just for belonging to a prohibited group. It can be applied when someone uses violence, encourages others to use violence, or engages in any other behavior meant to cause chaos.

4. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the court held that an insurrection or protest against parliamentary and governmental measures cannot be deemed illegitimate if it is conducted peacefully and without violence.

Conclusion

 Historically, the colonizers used to suppress the dissent of the citizens as they didn’t want them to be opinionated against the rule of the government or the crown. Even after 75 years of independence and separation from colonial governance, the state still finds the urge to stifle the non-consent of the citizens towards the regime. India is a democratic nation and by definition, a democracy is a system in which a varied group of people with a range of viewpoints and the freedom to pursue their own interests and speak for themselves elect leaders.

Every nation must have laws to counter terrorism activities to protect the security of the state. Still, while doing so it shall not persistently impact or abrogate the basic fundamental rights of its citizens. The rampant and inconvertible political imprisonment raises the question of why there is such opposition to dissent in a democracy. For the nation’s security, such a bargain of the fundamental rights of the citizens is unjust. By carefully crafting amendments, security and civil liberties must coexist in harmony.