UAPA (The law & Analayis)


Context: Arrests and questioning of individuals associated with NewsClick, a news portal, have highlighted concerns about the potential misuse of the Unlawful Activities (Prevention) Act (UAPA) of 1967 and its implications for freedom of speech and expression.

UAPA, although originally designed to combat terrorism with a focus on national security, has evolved over the years into a tool criticized for suppressing dissent. It faces criticism for its vague definitions and the extensive discretionary powers it grants to the government in designating individuals as terrorists.

In this article, we will delve into the details of the UAPA, its amendments, and the significance of this law in contemporary India, as well as the challenges it poses to fundamental rights and civil liberties.”

Historical background

  • UAPA was first introduced, during the British era, in the form of the Criminal Law Amendment Act of 1908, aimed at curbing dissent against the Crown.
  • Post-independence, it remained in place, and in 1967, after wars with Pakistan and China, it was expanded to grant extensive powers for identifying unlawful associations and penalizing those involved in activities supporting India’s secession.
  • Amendments in 2004 introduced a chapter on ‘terrorist activities,’ while post the 2008 Bombay attacks, further amendments allowed for prolonged detention based on personal information, restricted anticipatory bail, and permitted the categorization of individuals as ‘terrorists’ in the 2019 amendment. 

About The Unlawful Activities (Prevention) Act, 1967 (Act)

  • Act defines “Unlawful activity” as “any action taken by individual or association that leads to cession of a part of the territory of India, questions the sovereignty of India or disrupt the integrity of India etc.
  • Powers with the government: Under the Act, Central government can declare a person or an organization as a terrorist/ terrorist organisation, if it/ he:
    • commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism, or is otherwise involved in terrorism.
    • Government can impose all-India bans on associations which are declared ‘unlawful’ under the Act.
    • Both Indian nationals and foreign nationals can be charged under the Act.
    • Also, Act holds offenders accountable in the same manner if crime is committed on foreign land outside India.
  • Investigating powers: Cases can be investigated by both State police and National Investigation Agency (NIA).
  • Appeal mechanism: It provides for tribunal to review or to hear an appeal against the ban.

Amendments to UAPA 

  • Amendments in 2004: Criminalized indirectly supporting a terrorist organisation by raising of funds for a terrorist act or membership of a terrorist organization etc. 
  • Amendments in 2008: Broadened the scope of the provision of “funds” to ensure a wider coverage of the financing of terrorism offences.
  • Amendments in 2012: Expanded the definition of “terrorist act” to include offences that threaten the country’s economic security.
  • Amendments in 2019:
    • Government is empowered to designate individuals as terrorists. Earlier, only organisations could be designated as terrorist organisations.
    • If an investigation is conducted by an officer of the National Investigation Agency (NIA), approval of the Director General of NIA would be required for seizure of property connected with terrorism. (Earlier, approval of the Director General of Police was required).
    • Empowered officers of NIA, of rank of Inspector or above, to investigate cases.
    • Added International Convention for Suppression of Acts of Nuclear Terrorism (2005) to the Schedule under the Act.

Significance of UAPA law in the contemporary times for India 

  • To uproot terrorism from India: Terrorists and insurgents continue to receive material support and funds.
  • Focus on individuals: Not designating individuals as terrorists, would give them an opportunity to circumvent the law and they would simply gather under a different name and keep up their terror activities.
    • This is also important in the context of lone wolf attacks, which do not belong to any organisation.
  • Quickens process of justice delivery by empowering officers in the rank of Inspector to investigate cases and investigation has to be completed within 90 days.
  • Reduces delay in attaching proceeds: Act allows seizure of property connected with terrorism without taking approval of Director General of Police in case investigation is conducted by an officer of National Investigation Agency (NIA). 

Challenges Posed by the UAPA Act, 2019:

  • Erosion of Fundamental Rights, including Article 14, 19(1)(a), 21: The Act denies individuals labeled as terrorists the opportunity to present their case before arrest, allowing detention for up to 180 days without a formal charge sheet, thus significantly infringing upon their fundamental rights.
  • Contrary to the Principle of ‘Innocent Until Proven Guilty’: The Act contradicts universally recognized principles by not upholding the right to be considered innocent until proven guilty, which is a fundamental tenet of justice.
  • Excessive Discretionary Authority: There is a lack of objective criteria for classifying individuals as terrorists grants the government almost unchecked authority to designate anyone as a terrorist, posing a significant risk of misuse of power.
  • Ambiguous and Unclear Definitions: Vagueness in definitions of terms like “terrorism” and its broad definition of ‘unlawful activity’ create confusion and leave room for differing interpretations, impacting the Act’s effectiveness and fairness.
  • Concerns in the Appeals Process: While the Act provides for appeals, the establishment of a government-appointed three-member review committee, potentially including serving bureaucrats, raises concerns about the independence and fairness of the appeals process.
  • Low Conviction Rates: The fact that less than 3% of cases registered under the UAPA Act between 2016 and 2020 (PUCL report) resulted in convictions underscores significant challenges in effectively prosecuting cases under the Act, although this is less immediate but still a notable issue.

With a low conviction rate and concerns regarding the appeal process, the UAPA remains a subject of intense debate, where striking a balance between national security and safeguarding civil liberties remains a challenging task. The ongoing dialogue surrounding the UAPA highlights the need for continued scrutiny, refinement, and thoughtful consideration of its provisions to ensure a just and equitable legal framework in India.

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