Introduction

The Unlawful Activities (Prevention) Act 1967 (UAPA) is a key Indian law aimed at combating terrorism and internal security threats. Enacted in 1967, it has been frequently amended over the years, most recently in 2019, to expand its scope and powers. However, civil liberties activists have consistently criticized UAPA as an overly broad and draconian law that upsets the delicate balance between national security imperatives and individual rights. This debate has come to the fore again with the latest amendment, which arms the government with more powers of search, seizure, arrest and detention under UAPA with limited procedural safeguards for accused persons. This blog post will analyse UAPA’s key controversial provisions, evaluate judicial pronouncements on its constitutional validity, and recommend measures to recalibrate the law to strike a better balance.

Key Controversial Provisions of UAPA

UAPA’s expansive definitions of unlawful activities and terrorism, draconian powers of arrest and detention, presumption of guilt, and lack of safeguards for accused persons have come under heavy criticism from civil liberties groups.

A. Broad definitions of ‘unlawful activity’ and ‘terrorism’

UAPA has an overbroad definition of ‘unlawful activity’ covering actions taken by individuals or associations that question the territorial integrity or economic and social sovereignty of India. Even speech acts, which may not incite violence, can be deemed unlawful. The definition of ‘terrorist act’ is also nebulous – it includes any act to threaten unity, integrity, security or sovereignty of India even when such threat may not be real [1]. Such wide definitions give the government excessive discretion to brand legitimate political dissent as unlawful activity or terrorism.

B. Powers of search, seizure and arrest without warrant

UAPA grants powers to search and seize properties and arrest individuals without warrant on mere suspicion of threat to national security. Such powers violate the right to privacy and personal liberty under Article 21, and ignore Supreme Court’s checks on arbitrary arrest [2]. Warrantless searches and seizures can be misused to intimidate and harass critics of the government.

C. Extended detention without chargesheet

While ordinary criminal law requires filing chargesheet within 90 days of arrest, UAPA allows detention of up to 180 days without chargesheet [3]. Prolonged detention without judicial scrutiny violates personal liberty and the right to speedy trial. It also increases the risk of torture in custody.

D. Presumption of guilt

UAPA presumes guilt rather than innocence of the accused. The onus is on the accused to prove innocence, undermining fair trial standards [4]. When combined with restrictions on bail and limits on appeal, presumption of guilt makes it difficult for accused persons to secure acquittal.

E. Denial of bail

UAPA makes grant of bail difficult by prohibiting it for undertrials charged with terrorist acts resulting in deaths. Courts can deny bail if the accusation seems prima facie true, lowering the bar for bail denial [5]. Such bail restrictions undermine the right to personal liberty and presumption of innocence until proven guilty. Prolonged denial of bail has ruinous impact on lives and careers of undertrials.

F. Lack of procedural safeguards

UAPA does not provide adequate procedural safeguards against misuse of powers. It does not require the government to provide grounds of arrest or detention to enable effective legal challenge. The government is also not required to disclose evidence on which the terrorist designation of individuals/groups is based [6]. This hampers defence and makes judicial review difficult.

Judicial Interpretation of UAPA’s Constitutional Validity

While the Supreme Court has upheld UAPA’s validity for the most part, its judgments have imposed some limitations and safeguards against misuse of UAPA powers.

A. Upholding UAPA but reading down Section 15

In the landmark Arup Bhuyan case (2011), the Supreme Court upheld UAPA’s constitutional validity but read down Section 15 which criminalized membership of banned organizations [7]. It ruled that mere membership without actual incitement to violence is not criminal. This checked misuse of UAPA to arbitrarily arrest members of banned groups.

B. Restricting pre-charge detention period

In Sajal Awasthi case (2021), the Supreme Court restricted pre-charge detention under UAPA to maximum 90-180 days depending on offence gravity, bringing it closer to ordinary criminal law [8]. This provides relief against indefinite detention under UAPA without judicial scrutiny.

C. Due process for terrorist designation

In Doordarshan case (2021), the Court ruled that terrorist designations under UAPA must follow due process – disclosure of reasons and evidence to the accused to enable effective legal challenge [9]. This offers some protection against arbitrary branding of individuals/groups as terrorists.

While these judgments have imposed some safeguards, the extensive powers under UAPA and limited procedural protections still threaten civil liberties. The Supreme Court needs to expand safeguards while upholding validity of the amended UAPA.

Recommendations for Reform

To achieve a better balance between national security imperatives and individual rights, legislative, executive and judicial reforms are needed to recalibrate UAPA.

A. Legislative reforms

Definitions of ‘unlawful activity’ and ‘terrorism’ should be revised to restrict scope for misuse. Vague terms like ‘disaffection against India’ should be removed. A violence or harm threshold should be added to qualify as terrorism [10].

Powers of warrantless arrest, search and seizure should be restricted, especially for offences not resulting in loss of life. Procedural safeguards like requirement of warrant, or post-search/arrest judicial review should be added.

Maximum period of detention pending investigation should be reduced from 180 to 90 days for all offences. Bail eligibility standards should be eased.

B. Executive reforms

The process of designating individuals/groups as terrorists should be made more transparent by requiring disclosure of reasons and evidence. There should be judicial oversight of the designation process rather than just executive decision-making.

Accountability of law enforcement agencies should be enhanced through sensitization, training and disciplinary action for abuse of UAPA powers.

C. Judicial reforms

Courts must robustly uphold due process and safeguards while adjudicating UAPA cases. Burden of proof should be on prosecution rather than presumption of guilt against accused.

Bail should be granted unless public security is directly threatened. Prolonged pre-trial detention without bail should be avoided.

Judicial oversight and time limits must be imposed on detention pending investigation to prevent torture and protect personal liberty.

Conclusion

In summary, UAPA’s overbroad provisions, draconian powers and inadequate safeguards threaten to upset the crucial balance between national security and individual rights. While terrorism and internal security challenges are real, an overly broad law without checks can be counterproductive. Prudent legislative, executive and judicial reforms are needed to target genuine threats while upholding civil liberties and constitutional values. The way forward is not to discard UAPA altogether but to recalibrate it through well-considered measures to balance security and liberty concerns.

References

[1] The Unlawful Activities (Prevention) Act 1967, Section 15.

[2] Joginder Kumar v. State of UP, (1994) 4 SCC 260.

[3] The Unlawful Activities (Prevention) Act 1967, Section 43D.

[4] Babu v. State of Kerala, (2010) 9 SCC 189.

[5] The Unlawful Activities (Prevention) Act 1967, Section 43D(5).

[6] Sajal Awasthi v. Union of India, 2021 SCC OnLine SC 331.

[7] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.

[8] Sajal Awasthi v. Union of India, 2021 SCC OnLine SC 331.

[9] Union of India v. Doordarshan, 2021 SCC OnLine SC 481.

[10] The Unlawful Activities (Prevention) Amendment Bill, 2019.