Unlawful Activities (Prevention) Act
UAPA
ABSTRACT
After world war II, human rights and civil liberty became the topic of discussion in the civil arena. In the meanwhile India was witnessing its long-awaited freedom from the Britishers and Constitution was drafted. Our freedom fighters ensure our liberty and freedom through article 19 but soon the liberty given to us was subjective rather than absolute. The state has imposed several restrictions on us according to their need for time. Some of the restrictions imposed were very harsh. But none the less it is still the topic of discussion that How much this power is used or abused in the name of law?
INTRODUCTION
India which is the Union of India is what we see today is not the same in the 60s era. At that time India was a country that got Independence recently and it has a lot of challenges. Our country is very big and very diverse and one of the main challenges was to make India united because in the 1960s some groups were raising their voice of secession from the Union of India. After the 1962 India China war, the war put the government on a weaker side, the trouble started in Tamil Nadu with Dravida Munnetra Kazhagam (DMK) became the voice and face of Tamil nationalism in that era. DMK became against the government policies and played high on the North South divide, defeated the Congress, and formed the government in Tamil Nadu in early 1967. In 1967 one more thing happened in the Darjeeling district of West Bengal, the Naxalbari movement, the first Naxal attack in the country a sub-inspector was killed in the attack, and soon the movement got momentum and reaches various parts of the country. These activities made the government take some strict actions against those who threaten the integrity and sovereignty of India.
National Integration Council (NIC) made a Committee on National Integration and Regionalism which recommend further restrictions on Fundamental Rights in 1963.16th Constitutional Amendment Act 1963, was enacted empowering Parliament to impose reasonable restrictions by law in the interests of sovereignty and integrity of India on the: -
· Freedom of speech & expression
· Right to assemble peacefully & without arms &
· Right to form associations or unions
The UAPA bill was passed by both the house of Parliament and received the assent of the President on 30 Dec 1967. Indian states could now declare associations that sought secession from India as ‘Unlawful’. UAPA gave the central government power to impose all India bans on associations. The main objective of UAPA is to stop associations act against the integrity and sovereignty of India.
Amendments made to UAPA are: -
· The UAPA amendment act 1969
· The Criminal Law (Amendment) Act, 1972
· The Delegated Legislation Provisions (Amendment) Act, 1986
· The UAPA amendment act, 2004
· The UAPA amendment act, 2008
· The UAPA amendment act, 2012
· The UAPA amendment act, 2019
Some of the important changes brought by amendments to this act are: -
· 2004- After Parliament in 2002 POTA came but after the 2004 parliamentary elections, UAPA government repeal POTA but amended the UAPA & put almost the same provisions of POTA in this amendment. The ‘Terrorist gang’ concept was used.
· 2008- After the Mumbai attack, similar to TADA provisions amendments were made in UAPA. 6 months police custody without charge sheet for any terrorist.
· 2012- this amendment was done to fulfill FATF commitments, it expands the definition of ‘terrorist act’, it also includes offenses that threaten the country’s economic security.
DRACONIAN PROVISION OF UAPA
· Definition of ‘Unlawful activities’ any organization by words or by writing “disclaiming” or “questioning” the territorial integrity of India and causing “disaffection” against India but the problem is the definition of “Unlawful activities” is vague and broad, questioning of government is also considered as a crime.
· Government can ban ‘Unlawful organizations’ & ‘Terrorist organizations’ but be subjected to judicial review.
· The vague definition of terrorism is to suppress nonviolent political activity, including political protest.
· Search, seize & arrest without warrant.
· Detention without a charge sheet for up to 180 days & police custody can be up to 30 days.
· Anticipatory bail provision is not available. Even it is almost impossible to get bail from the court under UAPA.
· Creation of special courts, camera hearings (closed-door hearings without journalists), and police can use secret witnesses.
· No sunset clause.
· No provision for mandatory periodic review.
WHAT IS CRIME IN UAPA?
UAPA criminalizes ideology and association which try to act against the integrity and sovereignty of India. Possession of any literature of such ban organization under UAPA is a crime. Upholding an ideology of such an organization without committing any violent act is a crime. Membership of such association, an organization is a crime but the act has no provisions of the definition of membership. Attending meetings of such association is a crime. In simple words, any relation with such a ban organization can invoke UAPA. In 2011, SC attempted to narrow the ‘membership’ & said it will only apply to active involvement in violence. However, this ruling has not been applied to other cases related to UAPA. Amendment will in this regard is only going to be valid.
CHANGES AFTER UAPA 2019 AMENDMENT
The main change this amendment had brought is now an individual can be designated as ‘terrorist’ earlier organization and association could only be declared. The main argument put by the government was declaring an organization as a terrorist organization will not stop the individuals behind it. It will stop the lone wolf attack in the country. There’s a need for a provision to declare an individual a terrorist. UN, USA, China, Pakistan, Israel, EU has this type of provision.
Before the 2019 amendment, an investigating officer is required to obtain the prior approval of the Director-General of Police of that state to seize the properties connected with terrorism. But now the only requirement of Director General of NIA. Another change under this amendment is, earlier investigation of cases can be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of police or above but now it empowers the rank of inspector or above of NIA to investigate.
WHY GETTING BAIL UNDER UAPA IS SO TOUGH?
· Under UAPA, a remand order can be for 30 days instead of the usual 15 days.
· Under UAPA, the maximum period of judicial custody before the filing of a Chargesheet is extendable from the usual 90 days to 180 days.
· UAPA gives absolute power to the central government to declare an act as unlawful by way of an official gazette.
· The highest punishment includes the death penalty and rigorous life imprisonment.
· Under UAPA, both Indian & Foreign nationals can be charged.
· Under section 43D(5) of UAPA, bail can’t be granted to a suspect if the court believes that there are reasonable grounds to believe that the charges are prima facie true.
· NIA v/s Zahoor Ahmad Shah Watali, SC reiterated that under the UAPA, the court must presume every allegation made in First Information Report to be corrected. Bail can only be obtained if the accused produces material to contradict the prosecution. Simply, the burden rests on the accused to disprove the allegation.
WHY IN THE NEWS?
Father Stan Swamy, a tribal rights activist arrested in the Elgaar Parishad case (Bhima Koregaon case) last year, passed away at a private hospital in Mumbai on 5 July 2021. He was a Jesuit priest and a tribal rights activist based on Jharkhand where he had worked for over three decades. He was the voice of many voiceless people, he raised voices of land and forest rights, forced displacement due to mining and industrial projects, the right to food, and death from hunger. He also questioned the nonimplementation of the fifth schedule of the Constitution, which stipulated the setting up of a Tribes Advisory Council with members solely of the Adivasi community for their protection, well-being, and development in the state.
He was arrested for alleged involvement in the activities of the CPI (Maoist), a banned terrorist organization and as one of the conspirators in the Bhima Koregaon case. But the surprise element in this matter is NIA didn’t interrogate even once after the arrest. Swamy moves court asking for permission to allow him a straw and sipper to consume liquids as he suffers from Parkinson’s disease. NIA responds that it does not have the straw and sipper, after the Bombay high court order Swamy was provided sipper and straw. in the over crowed jail, Swamy got infected from covid, he was shifted to a private hospital. The court rejected his bail on medical grounds. Swamy suffers cardiac arrest and was put on ventilator support but later died.
United States commission on international religious freedom, United Nations special report on Human rights dependence, European union special representative on human rights had expressed their deep condolences and concern on the death of Stan Swamy.
CONCLUSION
Stan Swamy is not just a solo person who is a victim of draconian UAPA law, cases registered under UAPA raised since 2015. Less than 2% of the people arrested under the UAPA across the country in five years till 2019 were convicted, according to data compiled by the National Crime Records Bureau (NCRB). Further, only 155 of the 7840 people arrested on charges of terrorism were convicted by the trial courts. This act is used as a tool for suppressing political dissent. The purpose of this act when introduced was to counter terrorism while today it is used for a different purpose.
CONTENT WRITER:
NAME: Mayank Kumar
COLLEGE: Reva University, Bengaluru
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