Unlawful Activities (Prevention) Act

IN NEWS:

• Critics have again raised objections against the use of UAPA, following Tripura police’s decision to charge lawyers, journalists and 100-odd social media users with the Act for posts on communal violence and Jammu & Kashmir police registering a case against some Kashmiri medical students in Srinagar for celebrating Pakistan's victory over India in the T20 World Cup match.
• This incident comes just a few months after the death of Fr. Stan Swamy, who was charged under UAPA and was denied bail despite his health conditions. 

UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967:

• The UAPA, 1967 was created to prevent unlawful activities that may cause harm to the integrity and sovereignty of the government.
• Its main objective of the Act is to empower central agencies and states to deal with terrorist activities.
• The Act makes it a crime to support any secessionist movement or to support claims by a foreign power to what India claims as its territory.
• Its key features are:
  • The union government may proclaim or designate an organisation as a terrorist organisation if it is involved in such activities.
  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • Both Indian and foreign nationals can be charged, for crimes committed within as well as outside India.
  • Death penalty and life imprisonment are the highest punishments.
  • The investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
  • The provision of bail is available under the Act, but it is given only in exceptional circumstances.
• The act has been amended in 2008, in 2012 and in 2019.

2019 AMENDMENT ACT:

• Redefined terrorist:
  • Earlier, the central government could designate an organisation as a terrorist organisation if the organisation committed, participated or promoted in acts of terrorism.
  • Now, the amendment empowers the government to designate even an individual as a terrorist based on the same grounds. 
• Seizure of property by NIA:
  • Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism.
  • The amendment adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property. 
• Officers who can conduct Investigation:
  • Earlier no officer below the rank of Deputy Superintendent or Assistant Commissioner of Police could conduct the investigation in terrorism-related cases.
  • The amendment gives authority to the NIA officers, of the rank of Inspector or above to investigate cases. 
• Insertion to schedule of treaties:
  • The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).  The amendment adds another treaty to the list-the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

WHY INDIA NEEDS UAPA AND THE RECENT AMENDMENT:

• Promote internal security:
  • In a country as diverse as India, any terror activity (eg: Riots) can have far reaching implication on the stability of the country. Hence, UAPA is essential to ensure peace and security within India.  
• Precarious neighbourhood:
  • India is surrounded by a tense neighbourhood. For eg: Pakistan is actively promoting terrorism against India, while Afghan is now under the radical Taliban. Hence, the threat of terror is always present in India and strong legislations like UAPA are essential to counter such threats.  
• Changing terrorist methodologies:
  • The nature of terror attacks and the methods used has been drastically changing in recent times. Eg: ‘lone wolf’ attacks and cyber terrorism. Countering such acts require strong legislations.
• Promote inter-agency coordination:
  • Enhanced powers of the NIA would help overcome the issue to weak synergy between different investigating agencies in the country and ensure cross-country cooperation in investigation of cases.
• Overcome procedural complications:
  • Procedural formalities in India are long, which often leads to laxity, delays and ultimately helping the culprits to escape. For eg: Prior to the 2019 amendment, any attempt for search and seizure of suspected properties required prior approval from a bureaucratic chain of command. With the new UAPA, such hurdles can be overcome.
• Plug legal loopholes:
  • Earlier, operators from banned organisations used to form new organisations, masquerading their terror activities and channelling their terror finances through individuals. The Act can counter this, as it allows designating such individuals as terrorists.

CRITICISM:

• Vague definition of ‘unlawful’:
  • The term ‘unlawful’ is vaguely defined, facilitating the government of the day to criminalise a broad spectrum of activities.
  • For eg: Under the Act, even the disruption of any essential supplies or services can be categorised as terrorist activity, which means even an industrial strike can be ’terror’ if the government so chooses it to be.
• Bail provisions:
  • Under UAPA, accused can be held in custody for six months without even the filing of a charge sheet. In comparison, those accused of murder can get bail within three months of arrest if the entirety of the case is not revealed to them.
• Powers to designate an individual as a terrorist:
  • The new amendment grants the Central government the power to label and stigmatise an individual as a terrorist, even when it doesn’t have the evidence to actually prosecute and convict him. This has the potential to be used as a vindictive measure by the ruling government. 
• Indiscriminate use:
  • Since it allows detention for up to six months without filing charges, it has been used for politically motivated detentions and human rights violations.
  • As per data provided in the Lok Sabha, there has been a 72% increase in the number of arrests made under the UAPA in 2019 in relation to those made in 2015.
• Low conviction levels:
  • Less than 2% of the people arrested under the UAPA across the country between 2015 and 2019 were convicted, according to data compiled by the National Crime Records Bureau (NCRB).

• Arbitrary bans:
  • The Act empowers the state to ban organisations without having to provide a reason. This not only undermines the freedom of organisation, but also negates their chances of legal redemption, as they are unaware of the reasons for the ban. 
• Undermines federalism:
  • The 2019 amendment allows the National Investigation Agency much greater leeway to take control of cases that would otherwise fall under the domain of the police in individual states, thereby undermining the federal system.
• Negates the presumption of innocence:
  • Innocent until proven guilty is a fundamental feature of the Indian law system. However, as per the UAPA, a person could be charged with terror for simply being in contact with another accused or for possession of weapons, without having to prove their guilt.
• No periodic review:
  • Detention acts that existed during the creation of UAPA were reviewed on a periodic basis. However, there are no such provisions in the UAPA.

WAY FORWARD:

The very idea of the UAPA and the decision to start naming people terrorists without conviction goes against the principles of law and justice. However, in the wake of numerous threats to its security, preventive detention laws such as the UAPA are but a necessary evil. However, structural reforms in the existing system are essential to ensure that the laws are not misused by the ruling government.

• Properly defining terms such as ‘terrorism’ and ‘unlawful’ can help reduce the irrational use of the act to suppress political dissent.
• Ensuring transparency is also essential. Government should resort to the Act only as a last resort and must give clear justification for using it.
• Creating a system of accountability, so that investigating agencies do not misuse them to cover up their lax in investigations.  
• Providing adequate safeguards to individual privacy, speedy judicial process and compensatory measures to protect the wrongfully convicted.

PRACTICE QUESTION:

Q. 'National security concerns needs to be balanced against the personal liberty of people.' In this context, is the Unlawful Activities (Prevention) Act essential for India? Substantiate your view?