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  • Arman Sheikh

ANALYSIS OF UAPA ACT

Author: Arman Sheikh

Jamia Millia Islamia, New Delhi

Unlawful Activities (Prevention)

INTRODUCTION

Unlawful Activities (Prevention) Act is an Indian law aimed at prevention of unlawful activities associations in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.[i] The most recent amendment of the law, the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019) has made it possible for the Union Government to designate individuals as terrorists without following any formal judicial process. UAPA is also known as the "Anti-terror law".

After India’s Independence, there has been many act and legislations aimed at countering terrorism in India. These statutes have dealt with aspects such as intelligence, preventive detention, apprehension, search, seizure, investigation, trial, rule of evidence and penalty. Legislations such as the Maintenance of internal Security Act (MISA), the Terrorist and Disruptive Activities (Prevention) Act (TADA), and the Prevention of Terrorism Act (POTA) have been accused of being disproportionately draconian, stringent and prone to misuse for political gains.[ii]

One of the common features is the definition of terrorism or terrorist act. According to different legislation, the definition of terrorism and terrorist act is different. This has resulted in widespread misuse of law and this has been used as a deadly tool by different law enforcement agencies against opposition, politicians, journalists and activists who are merely exercising their right to protest against the policies of the government.

OVERVIEW OF ARBITRARY PROVISION UAPA ACT

Meaning of Terrorist Act

After the abolition of POTA, an amendment to the UAPA was made in 2004 that added this phrase as a separate offence. In Section 15, the term "terrorist act" is defined. A person or group will be deemed to be participating in terrorist activities if they are:

"In making or using bombs, dynamite, or via any other means of any sort, which are likely to endanger the populace, such as other explosive substances, then that individual or organisation will be said to be engaged in terrorist activities" [iii]

The term "any other means of whatsoever nature" provides those in authority unrestricted power to take advantage of and harass defenceless people. The word "likely" gives the government the authority to detain somebody before they actually do something. The term "any other methods of whatever nature" is highlighted because the government has the authority to classify any physical act as a terrorist act. Setting such a low standard for what constitutes terrorist activities is a capricious tactic the government uses to repress dissenters.

Arrest under UAPA

According to art 22, it talks about preventive detention. It stipulates that every arrested person has the right to know the reason for arrest and detention. Within 24 hours, police are required to produce arrested and detained persons in front of a magistrate depending upon the situation.

Additionally, while making an arrest without a warrant, police are required by Section 50 of the Criminal Procedure Code to immediately inform the suspect of the charges and crime for which he is being detained. An arrest may be made in accordance with UAPA without providing the accused with a reasonable justification.

The suspect only needs to be informed, "as quickly as possible," of the charges that have been brought against them by the arresting officer. Because there is no set legislative time limit for the phrase "as soon as maybe," a police officer or other ostensibly authorised figure may abuse their position and keep the person in custody longer than is customary or what is required by law.

Period of Detention

With the 2008 amendment, the imprisonment period was increased from 90 days—already extraordinarily long by international standards—to 180 days, thereby expanding the discretionary powers related to arrests and detention. Although it is not customary for judges to grant extensions of detention beyond ninety days, the government prosecutor may be able to do so if they can show that their investigation is continuing beyond the first ninety days.

Generally speaking, a prosecutor must show that there is a significant risk involved in freeing the arrested individual from custody in addition to proving that the investigation is still ongoing. On the other hand, Section 167 of the Criminal Procedure Code stipulates that "if an individual is suspected of committing an offence punishable for which the punishment is life in prison, death, or a minimum sentence of 10 years, as well as for 60 days in the event that he is charged with another offence."

Significantly Lower Requirement to Establish Means Rea

The act has reduced the standard for proving mens rea, or a guilty mind, in regard to a terrorist activity, as that term is defined by the act. Under this law, the government merely needs to show that the person or group is "likely" to strike terror in the people in order to prove mens rea. Using the foreign person delivering a speech against the government as an example, the government could detain him under this legislation even before he delivers the speech on the grounds that it is likely to incite fear among the populace. The Supreme Court ruled in the landmark case of Joginder Kumar v. State of UP[iv] that "no one can be arrested because doing so is legal for the police officer or the government" in respect to the rules governing arrest and the authority of the executive to carry them out. Having the ability to make an arrest is one thing, but having a reason to use that power is quite another. The UAPA breaks the Supreme Court's decision, as the government is permitted to detain anyone without having to give a valid reason.

SOME CASES RELATED TO UAPA

1.In the case of National Investigation Agency v. Zahoor Ahmad Shah Watali,[v] The Supreme Court applied a limited interpretation to the UAPA's already limited provision for regular bail. The Court said that it is not permitted for courts to indulge in a detailed study of the prosecution case while considering bail under UAPA and to determine whether the evidence presented by the prosecution is sufficient or not, which posed still another restriction on judicial engagement. This would lead to a nearly total ban on the granting of bail under the UAPA, depriving the accused of a fair trial, their right to request bail, and their freedom from a lifetime of pre-trial detention.

2. Union of India v K.A. Najeeb[vi] The Court rejected the strict interpretation of the Watali decision in favour of a more reasonable and equitable method of granting bail in the case of Union of India v. K.A. Najeeb.[1] In this ruling, the Supreme Court upheld the authority of constitutional courts to set bail in cases where there has been a violation of a person's fundamental rights, even in cases where bail has restrictions. The Court further noted that the "touchstone of timely trials to ensure the protection of innocent people" has been used to justify the strict bail standards in special laws such as the UAPA. In this case, the Court found that by giving constitutional rights precedence over the legislative restriction under Section 43D (5), it may now be possible to consider them in circumstances where the bail jurisprudence under UAPA is uncertain. However, the court in this case took a liberal stance and granted the offender bail "because of the length of the sentence and the unlikely prospect of the trial being finished anytime soon."

SUGGESTION

  1. To achieve fair justice, a compensation plan should been established for persons who were unjustly accused under the Act. As such custody would effectively be preventive detention without trial, the accused entities should also be allowed to seek compensation if they are incarcerated without prosecution.

  2. A significant amount of work needs to be put into reforming the police. This work should focus on increasing public and religious awareness as well as attempting to curtail the police's extensive and arbitrary power.

  3. Establishing separate fast track courts to handle the cases under UAPA.

  4. In order to prevent the ruling government from abusing the act's provisions, a committee must be established, and its members must be chosen by more than just the Centre. The Committee's chairman is a sitting or recently retired High Court judge, and additional members may be added to ensure more equitable operation. The committee may be tasked with monitoring any violations of a defendant's human rights that take place during the prosecution as well as assessing whether a particular circumstance qualifies under the Act.

CONCLUSION

The fact that this legislation advances "national security" under the guise of the Directive Principles of State Policies is one of the justifications offered in favour of its passage.

On the other hand, opponents of the law argue that all statutes, laws, and regulations should be in line with the nation's fundamental rights.The UAPA fails to distinguish between lawful political dissent and criminal sedition, in addition to violating the right to freedom of association.

The law cannot stop terrorism on its own, but if it is not enforced strictly, as it was with the UAPA, those in positions of authority may use it against the weak. Enacting laws that address the issue of unequal development, foster social and economic development, enable political dissent and debate, and result in the inclusion of minorities are all essential to stopping the threat of terrorism in its tracks.

The Unlawful Activities Prevention Act of 1967 has the power to improve the future       security of this country and its people, if used appropriately. Only by adopting a reasonable and balanced strategy will this be accomplished.

REFERENCES

[i] Unlawful Activities (Prevention) Act

[ii] Countering Terrorism or Suppressing Dissent: A Critical analysis of the UAPA

[iii]Critical Analysis of the Unlawful Activities Prevention Act,1967 https://www.legalserviceindia.com/legal/article-9656-critical-analysis-of-the-unlawful-activities-prevention-act-1967.html (last visited on 9dec 2023)

[iv] Joginder Kumar v. State of UP 1994 AIR 1349, 1994 SCC (4) 260

[v] National Investigation Agency v. Zahoor Ahmad Shah Watali

[vi] Union of India v K.A. Najeeb (2021) 3 SCC 713

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