Author: Vinisha Jethwani, 4th year law student at Indian Institute of Legal Studies.
What is the UAPA?
The unlawful activities prevention act is also known as UAPA. UAPA amendment bill was passed in 2019 in the Rajya sabha with 147 members of the parliament and 42 voted against it. With increasing terrorist activities in the country, the NDA has amended some provisions of the UAPA act 1967 to tackle terrorist activities.
The applicability of this act is as follows:
- Applicable across the entire country.
- Any Indian or foreign national charged under UAPA will be punished under the act
- UAPA applies to the offenders in the same manner even if the crime is committed in a foreign land
- The provision of the act is applied to both within the country and outside/abroad.[i]
We all aware of the three things which took place from 1962 to 1975.
- 1962: Indo-China War
- 1971: Indo-Pak War
- 1975: Internal Emergency
During these major events, there were many other things taking place but due to these major events, they were not put forward. So, in 1962 C.N. Annudurai a member of DMK (Dravida Munnetra Kazhagam) a political party, and also The Chief Minister of Tamil Nadu had proposed a separate Tamil country which is Madras as Tamil Nadu (rename) in Rajya Sabha speech. Later due to the 1962 Indo-China War he let go of his proposal of a separate country. There was a complete panic situation, there was already Indo-China War going on and on the other hand, demand for a separate country was put forward. So, the Central Government thought that to deal with external aggression we have emergency provisions but for the domestic crisis, the Central Government had to restrict the rights of the citizen. So, before the emergency got over UAPA was passed/enacted Unlawful Activity Prevention Act 1967.[ii]
How UAPA was enacted?
National Integration Council was set up a committee for national integration and regionalization. On the recommendation of the committee, the constitutional 16th amendment act was put forward and brought to force. The central government thought that to handle domestic crisis the needed to restrict the rights of the citizen. So from the 16th amendment act on 3 fundamental rights, reasonable restrictions were imposed.[iii]
The 3 fundamental rights are:
- Freedom of speech and expression
- Right to assemble peacefully
- Right to form association and unions
UAPA is an anti-terror legislation and the enforcement body of UAPA is NIA (national investigation agency) India’s central counter-terrorism agency.
Challenges to UAPA
Before the amendment of UAPA, there had been other security laws to deal with terrorist activities. TADA and POTA which is now repealed but was also a part of security law. There have been challenges made to the constitutional validity of the TADA and POTA. The challenges mainly dealt with the grounds that the union did not have any legislative competence to enact the law. For instance in the case of Kartar Singh v. The State of Punjab, in this case, the validity of TADA was questioned on the ground that it dealt with the issue of public order which is within the legislative domains of the state policy the court upheld the validity of TADA and held that the public order covered fewer issues of importance and that there were more serious threats which are covered in TADA which falls within the Union’s domain relating to national defence.[iv]
A similar challenge was made against POTA in PUCL v Union of India, which was also repelled by the Court on similar grounds of TADA. The UAPA has never been challenged on the ground of legislative competence.
What UAPA deals with?
UAPA mainly deals with unlawful activity. Unlawful activity means that any individual or organization takes any action or intents to bring cession or separation or disrupts or questions India’s sovereignty or territorial integrity is considered to be unlawful activity.
UAPA is not the 1st security law, before the commencement of UAPA there had been:
- Preventive detention act (1950-1969)
- Armed forces special powers act (1958-till now)
- UAPA (1967- till now) after UAPA more laws were also made like
- Maintenance of internal security act (1971-1977)
- National security act (1980-till now)
- Terrorist and Disruptive Activities (prevention act) TADA (1985-1995)
- Prevention of terrorism act POTA (2001-2004)
During the time of internal emergency Punjab terror activities were going on and TADA came into force. Khandar Hijack and Parliament attacks brought POTA into force. But both TADA and POTA was repealed due to wide-scale misuse. TADA was repealed in 1995 and POTA was repealed in 2004.[v]
In 2004 an amendment of UAPA took place, an important amendment. In the 2004 UAPA amendment, the parliament introduced some dedicated chapters to punish terrorist activities.
UAPA was there since 1967 then why was it amended in 2004? This is because POTA was repealed in 2004. The 2004 amendment of UAPA is also known as POTA 2.0.[vi]
UAPA Act was amended in 2008 and it brought to assurance that the interest of security would be balanced with civil liberties and also while introducing the amendment it openly disregarded the criminal fundamental principles. [vii]
2012 amendment of UAPA expanded the definition of the terrorist act to include offenses that are a threat to the country’s economic security
When the 2019 amendment was getting passed the opposition and the civil liberty had raised a strong objection, which was that the misuse of this amendment had high chances because this act gives direct power to control, monitor, and curb any kind of dissent.[viii]
Major changes in the 2019 amendment
- Who can do terrorism?
Before 2019 this act was applied only to the organization but after the amendment, this act is now applicable to individuals as well as organizations. This act also says that the central government can declare any individual and organization as a terrorist. Under the recent amendment, the government has been given powers to designate an individual as well as an organization as a terrorist organization. On the grounds, if he/she
- Commits or participates in acts of terrorism.
- Prepares or promotes terrorism
- Otherwise involved in terrorism.
This change was brought because it was noticed that whenever any terrorist organization was outlawed the outlawed members of the terrorist organization they start making other terrorist organization or actively participate in terrorism or start functioning individually.
- Detention provisions
The second change was brought in detention provisions. Detention said that the terrorist will be detained for 180 days which is 6months and without any charge sheet it can be extended further but the right to bail cannot arise.
According to CrPC in such situations maximum time for detention is 90days which is 3months and after 3months right to bail can arise and cannot be detained again. But according to the UAPA act section 43 says that if the investigation is not complete he can be detained for 180days and further without any charge sheet and the right to bail cannot arise.
- 4th schedule
The third change was brought in the 4th schedule. The 2019 amendment added the 4th schedule in the UAPA act. The problem here is that the UAPA act gives power to the government to brand anyone as a terrorist and their name is added in the 4thnsechedule. The remedy for this is that within 45 days you can appeal to the government to remove your name from the 4th schedule/notification. A review committee will be set up with a retired sitting judge as his head along with 3 other members.
- Approval to seize the property by NIA
Earlier under UAPA the provision was that if any property was connected/related to any kind of terrorist activity it can be seized during the investigation on the approval of the director-general of the state police. But after the amendment, it empowers the director-general of NIA as well to give such approval.
- Investigation by NIA
The amended UAPA act empowers the officers of the NIA of the rank of inspector or above to investigate cases. Earlier before the amendment, an investigation of the cases was conducted by the DSP deputy superintendent and assistant commissioner and above.[ix]
Thus, concluding that it is important to remember that securing public security and the fundamental rights of the citizens should not be violated and ensuring that it should be practiced within a frame work and these are the duties of the state. The state needs to balance these interests in compliance with the constitutional framework and not in contravention. Overall, the article was good. Short, terse and to-the-point. Author could have opined themselves a bit more, the conclusion and introduction seem to be insufficient, and few sentences could be rephrased and a thorough grammar check could be done. Could be published if the author adds a bit more of their view.
References[i] https://www.jagranjosh.com/general-knowledge/unlawful-activities-prevention-act-1967-1564055853-1 [ii] https://www.youtube.com/watch?v=1fPMyvpbvbA [iii] https://medium.com/the-%C3%B3pinion/a-critical-legal-analysis-of-the-enforcement-of-uapa-amendment-2019-9b7f52bf4133 [iv]https://www.scobserver.in/beyond-the-court/uapa-challenge-a-brief-history [v] https://www.hindustantimes.com/analysis/the-uapa-amendments-what-it-really-means/story-9gOsDNk1syqxyYd0iFeHDN.html [vi] https://frontline.thehindu.com/cover-story/article29618049.ece [vii] https://kochipost.com/2019/10/08/uapa-national-security-and-fundamental-rights-not-mutually-exclusive/ [viii] https://www.jagranjosh.com/general-knowledge/unlawful-activities-prevention-act-1967-1564055853-1 [ix] https://www.thehindu.com/news/national/uapa-amendment-supreme-court-asks-govt-to-respond-to-pleas/article29349629.ece