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The Delhi High Court recently granted bail to 3 students, accused of conducting riots and anti CAA protests in North East Delhi. This case highlights another instance of misuse of the Unlawful Activities (Prevention) Act (UAPA),1967.
The UAPA was formulated to strengthen the security framework of the country and preserve the unity and integrity of the nation. Nonetheless, it has currently become a tool to curb free speech and political dissent in our country. The cases filed under the law have been rising for a few years, while the conviction rate is going down. It was merely 2.2% between 2016-19.
Therefore, it is imperative to do a comprehensive review of the concerning provisions that make it prone to misuse by the authorities.
What was the case?
- The Delhi High Court granted bail to Natasha Narwal, Devangana Kalita, and Asif Tanha. They were imprisoned for over a year in connection with the riots in northeast Delhi and the anti-CAA-NRC protests under the UAPA act.
- The Delhi HC orders applied the Watali precedent. It placed the burden of making out a prima facie case on the police instead of the court itself.
- The court pointed towards the blurred line between the constitutionally guaranteed right to protest and terrorist activity done by an individual.
- This blurring has allowed the government to suppress dissent and undermine the right to protest under Article 19 of the Indian Constitution.
- In Anita Thakur, 2016, the SC recognised the right to protest as a fundamental right, flowing from Article 19 (1) (b) of the Constitution.
- The bail was granted by resorting to the Sanjay Dutt case. Under this, the SC said that people who are not covered by the express language of the law, shouldn’t be included by stretching the law.
About Unlawful Activities (Prevention) Act,1967
- It is primarily an anti-terror law aimed at effective prevention of certain unlawful activities of individuals and associations.
- Its main objective is to empower the state for dealing with activities directed against the integrity and sovereignty of India.
- The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
- The act has the death penalty and life imprisonment as the highest punishments.
- Under the act, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed on foreign land, outside India.
- The investigating agency can file a charge sheet within a maximum of 180 days after the arrests. This duration can be extended further after information to the court.
- 2004 amendment:
- It added “terrorist act” to the list of offences, to ban organisations for terrorist activities.
- Till 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, the “terrorist act” was added to the list of offences.
- 2019 amendment:
- The amendment empowers the Central Government to designate individuals as terrorists on certain grounds.
- It empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency.
- It also empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism. Earlier, the power to investigate was with the officers of the rank of Deputy Superintendent or Assistant Commissioner of Police only.
The rationale behind the law
- Maintaining Sovereignty and Integrity: It was initially promulgated to enable the government to curb secessionist activities.
- For instance, states of Nagaland and Tamil Nadu were demanding a separate nation for them during the 1960s.
- Similarly, during the 1962 war with China, there were few political parties that were supporting China and raising demands for forming a separate nation.
- Supporting investigation agencies: The law provides greater powers of search, seizure, and detention that are beneficial for aiding the investigation and preventing the occurrence of a bigger crime.
- Constitutional support: In 1963, Article 19(2) of the Constitution was amended for the last and final time. The words ‘the sovereignty and integrity of India’ were inserted in it as one more exception to the right to free speech. This enabled the parliament to enact the UAPA based on this exception.
- International Scenario: Countries across the world have formulated stringent laws for effectively protecting the security framework in their jurisdiction.
- For instance, the United States, Israel, China, Pakistan, and European Union have dedicated laws to declare ‘individuals’ as terrorists.
However, the act is criticized for its Draconian provisions, which makes it susceptible to misuse.
Draconian provisions of the UAPA
- The definition of terrorism in Section 15 of UAPA is indefinite and comprehensive, as it covers almost every kind of violent act, be it political or non-political.
- Under section-43A and section-43B of UAPA, the police are empowered to search, seize and arrest any person involved in unlawful activities without a warrant.
- Under section-43D police are empowered to detain the accused in police custody for 30 days and in judicial custody for a period of 180 days without the charge sheet.
- The police can get the police custody of the accused from the judicial custody with the permission of the court.
- Under UAPA, the accused does not have the option of anticipatory bail. It presumes the accused guilty solely on the basis of the evidence collected.
- Under section-44, secret witnesses are allowed during the case proceedings.
Issues associated with UAPA
- Misuse for Curbing Political Dissent: The wide provisions of the act have been used by the government to curb political dissent rather than to prevent sovereignty and integrity.
- For instance, many people were booked under UAPA for conducting the North East Delhi riots. However, this was a localized offence and didn’t pose a threat to the unity and integrity of India as a whole.
- Further, many innocent protestors were also booked thereby undermining their free speech under Article 19 of the constitution.
- Against Principle of Natural Justice: The principle calls for assuming every person innocent unless proven guilty and hence a pre-trial imprisonment is a violation of this principle.
- However, UAPA allows the Court to deny bail for a terrorist act if there are reasonable grounds to believe that the accusation is prima facie true.
- Violation of Human Rights: The wide powers given to police for search and arrest is a clear violation of an individual’s right to privacy. It is a fundamental right under Article 21 of the Indian constitution as deduced by court in K.S puttaswamy versus Union of India.
- Undermines Federalism: Some experts feel that it is against the federal structure since it neglects the authority of state police in terrorism cases. However, ‘Police’ is a state subject under the 7th schedule of Indian Constitution.
- Frivolous Filing: The wide and ambiguous provisions of the act enables the state to impose frivolous charges on innocent individuals. This is testified by a mere 2.2% conviction rate between 2019-2019.
- The total number of persons arrested and convicted under UAPA was 5,922 and 132 respectively.
- Data Deficit: The NCRB does not maintain UAPA data on the basis of religion, race, caste or gender. This creates a barrier in identifying the vulnerable groups who face greater abuse under the act.
Suggestions for UAPA
- The Parliament should rectify the anomalies with a suitable amendment and vague provisions for improving the interpretation.
- Currently, the act punishes an individual who is a member of a banned organisation under the first schedule of UAPA. However, it fails to define what constitutes membership.
- The court should also strike down the inappropriate provisions of UAPA especially the ones which undermine fundamental rights.
- The SC had done this in the past as well. For instance, in Shreya Singhal Case, Section 66A of the IT Act was held as unconstitutional due to its vagueness that undermined the right to free speech.
- The government needs to educate the Law enforcement authorities to prevent the problem of misuse. The enforcement authorities should be trained regarding the application and non-application cases of UAPA. Further, they should be made sensitive towards Right of Dissent in a democratic setup.
- The record of cases filed under UAPA must be subcategorised on the basis of religion, race, caste, or gender. This will help in the identification of the groups/communities who are most prone to abuse under the act.
UAPA gives unfettered powers to the government and leaves a person vulnerable in front of the government. This Act compromises with constitutional values such as freedom of speech, personal liberty and the right to a fair trial. However given the evolving nature of crime and terrorist activities, it is not possible to completely abandon the law. Hence focus must be placed on balancing the security interests with fundamental freedoms granted by the constitution.