Context: The UAPA grants State agencies extensive powers, reducing judicial oversight effectiveness and undermining personal liberty within its broad scope as an “anti-terrorism law”.
Unlawful Activities Prevention Act
The act was enacted to make powers available for dealing with activities directed against the integrity and sovereignty of India and to protect India from anti-social, radical elements. This law has been amended seven times 1969, 1972, 1986, 2004, 2008, 2013 and 2019.
Provisions
| Unlawful Association | If the Central Government is of the opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful subject to the confirmation by the tribunal constituted under the act. |
| Membership | A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation. |
| Unlawful activity (Section 2) | if an individual commits an act that is against the unity, integrity and sovereignty of the nation through words whether these words are spoken or written or even through pictorial representation. |
| Terrorist Activity (Section 15) | if an individual is acting against the unity, integrity and sovereignty of the nation through firearms or through ammunition or through weapons or through landmines and because of these acts it is leading to deaths of individuals or it is leading to injuries to individuals or it is leading to the destruction of any property. |
| Section 38 of UAPA | Defines Offence relating to membership of a terrorist organisation like gaining membership or professing the principle of banned organistation etc. |
| Section 39 of UAPA | Define Offence relating to support given to a terrorist organisation such as further the activity of a terrorist organisation etc. |
| Section 16 | It provides punishment of 5 years to life-imprisonment for unlawful or terrorist activities, in case it results in causing death it shall be punishable with death or imprisonment for life and shall also be liable to fine. |
Amendments of 2019
| UAPA | Amendment made in 2019 |
| Only an organization could have been declared as an unlawful or a terrorist organization. | An individual can also be declared as a terrorist. |
| There was no such provision. | if the central government believes that an individual a is a terrorist such individual’s name will be added to the fourth schedule to UAPA and ultimately this person shall be designated as a terrorist. |
| An officer of National Investigation Agency (NIA), a principal investigating agency which deals with terrorist activities and acts of crime related to terrorism have to conduct a raid in any state such officer has to take the permission of the Director-General of Police of that particular state. | An investigating officer of NIA in matter of conducting a raid must seek the permission of the Director-General of NIA. |
| All the cases of terrorism shall be investigated by an officer of the rank of Deputy Superintendent of Police. | Even an inspector of NIA is authorized to investigate in any terror-related case which is investigated by NIA. |
Issue
- Increasing ambit: In addition to the categorisation of organisations or groups as terrorist organisations, it extends the power to include an individual as terrorists within its extent.
- Lack of substantive and procedural process
- A member can be designated as a terrorist just by the addition of his name by the central government without following any due process.
- The problem of excessive breadth to “membership clauses”, in which even possession of the material related to the banned organistaion is resulting in establishing membership.
- Violation of Principle of Equality
- Reasonable classification of a person on suspicion or central government’s subjective interpretation violates the principle non-arbitrariness.
- Violation of freedom of speech
- Central Government has been given unparallel powers which can result in curbing dissent.
- Fear of getting arrested resulting in Chilling effect.
Court Cases
The People’s Union for Civil Liberties v. Union of India (2004)
The Court had decreed that if human rights are violated in combating terrorism, it will be self-defeating.
Union of India v. K A Najeeb (2021)
Supreme Court said that notwithstanding restrictions on bail under the UAPA, constitutional courts can still allow bail if they perceive that the accused’s fundamental rights have been violated.
Bail Issue of UAPA
- Section 43(D)(5) of this Act, prevents the release of any accused person on bail if, on a perusal of the case diary, or the report made under Section 173 of the Code of Criminal Procedure, the court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
- Section 43D (5) of UAPA highlights that person accused under Chapter IV (Punishment for Terrorist Activities) or under Chapter VI (Terrorist Organisations and Individuals) of UAPA – SHALL NOT BE RELEASED ON BAIL – If the Court after going through the investigation report or case diary prepared by the Police – is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Inconsistencies in Judicial Pronouncements on Granting Bail under UAPA
Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) has provided a narrow and strict interpretation of Section 43(D)(5) of UAPA which made it difficult to get bail for accused charged under UAPA.
Later in the case of Thwaha Fasal vs Union of India court made it easier to get bail for accused charged under sections of UAPA.
| Case | Judgement | Impact of judgement |
| National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) | Burden is on the accused to show that the charges framed by the state under UAPA are not prima facie true. Courts were prohibited a thorough and deeper examination or investigation into materials and evidence – as per Section 43(D)(5) | Due to such a narrow interpretation of Section 43(D)(5) by Courts – bail pleas were rejected even when evidence was short. Many people including Sudha Bharadwaj, Siddique Kappan and even Stan Swamy were denied bail based on a narrow interpretation of the bail provision as done in Zahoor Ahmad Shah Watali judgment. |
| Thwaha Fasal vs Union of India | SC said that mere association with a terrorist organisation is not sufficient to attract the offences alleged. Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out. Mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence. | The Court held that even the stringent provisions under Section 43D (5) do not curtail the power of the constitutional court to grant bail on the ground of violation of fundamental rights. Thwaha Fasal judgment has asserted the primacy of judicial process over the text of the enactment, by way of interpretation by also keeping the aspects of human rights in mind. |
MANDATORY BAIL OR STATUTORY BAIL
- Under Section 167, magistrate can either allow for police custody or judicial custody.
- Magistrate may allow for police custody for a period of 15 days.
- However, the accused can also be sent to judicial custody for a period of 90 days or 60 days.
- Crime for which an accused can be sent to judicial custody of 90 days – crime which entails a punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60 days.
- Crime for which an accused can be sent to judicial custody of 60 days – all other crimes.
- Section 167(2) further provides that if at the end of the period (60 or 90 days) of judicial custody, if the investigation is not completed by the police, the court shall release the person “if he fulfill bail conditions”.
- According to law or a statute (section 167 of CRPC) a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
- The stipulated period within which the charge sheet must be filed begins from the day the accused is remanded for the first time. It includes days undergone in both police and judicial custody, but not days spent in house-arrest.
Way Forward
Applying the utilitarianism principle, the greater good is securing national security by combating terrorism, at the cost of the liberty of individuals.
- But in the case of UAPA, as criticisms indicate that prevention of terrorism is not effectively achieved, the act instead is being misused to a huge extent to suppress political dissent.
- If liberty is sacrificed to some extent for the greater good, then it is acceptable because almost all rights come with reasonable restriction mainly for the greater good, that is social interest.
- But if liberties are sacrificed not for national security but for political security, then such liberty becomes the greater good that must be protected at the cost of political security.
